Rules of Practice

SUMMARY: We are amending the Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by the Secretary Under Various

Statutes, the Rules of Practice Governing Cease and Desist Proceedings

Under Section 2 of the Capper-Volstead Act, the Rules of Practice Under

the Perishable Agricultural Commodities Act, and the Rules of Practice

Applicable to Reparation Proceedings Under the Packers and Stockyards

Act. This final rule provides that conferences shall be conducted by

telephone or correspondence, hearings shall be conducted by audio-

visual telecommunication, and depositions shall be conducted either in

the manner agreed to by the parties or by telephone, unless the person

conducting the proceeding determines that the conference, hearing, or

deposition may be conducted by some other means. The final rule also

provides for the use of recordings of hearings and depositions and the

exchange of written narrative statements of the direct testimony prior

to hearings to be conducted by telephone. These amendments will save

the government and those who participate in the proceedings time and

money.

In addition, this rule amends 9 CFR chapter II to reflect the

abolishment of the Packers and Stockyards Administration and the

establishment of the Grain Inspection, Packers and Stockyards

Administration in the recent Department of Agriculture reorganization.

EFFECTIVE DATE: This final rule is effective March 16, 1995, except for

the amendments to the chapter heading of 9 CFR chapter II and the

references to the agency name in the chapter which are effective upon

publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: William Jenson, Senior Counsel,

Regulatory Division, Office of the General Counsel, USDA, room 2422,

South Building, 14th Street and Independence Avenue SW., Washington, DC

20250, (202) 720-2453.

SUPPLEMENTARY INFORMATION:

Background

The Department conducts a number of adjudicatory proceedings in

which conferences, depositions, and hearings are held. Many of these

conferences, depositions, and hearings are conducted by personal

attendance which necessitates travel by those who participate in the

conferences, depositions, and hearings.

Generally, conferences at which personal attendance is required are

attended by the person conducting the proceeding (an administrative law

judge, hearing officer, examiner, or presiding officer), the parties to

the proceeding, and counsel for the parties to the proceeding.

Depositions are attended by an officer authorized to administer oaths,

a court reporter, the parties, counsel for the parties, and the

deponent. Hearings are attended by the person conducting the

proceeding, the parties to the proceeding, counsel for the parties to

the proceeding, a court reporter, and witnesses called by the parties.

The costs associated with travel to conferences, depositions, and

hearings (meals, lodging, and actual travel expense) are often

substantial. These travel costs burden all taxpayers and particularly

burden the individuals who attend these proceedings. In addition to

expenditure of money, individuals personally attending the proceedings

often must spend valuable time traveling to and from these conferences,

depositions, and hearings.

Proposed Rule

Therefore, on February 25, 1994, we published a document in the

Federal Register (59 FR 9114-9136) proposing to amend the Rules of

Practice Governing Formal Adjudicatory Proceedings Instituted by the

Secretary Under Various Statutes (7 CFR 1.130 through 1.151) (referred

to as the ``Uniform Rules'' below), the Rules of Practice Governing

Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act

(7 CFR 1.160 through 1.175) (referred to as the ``Capper-Volstead

Rules'' below), the Rules of Practice Under the Perishable Agricultural

Commodities Act Applicable to Reparation Proceedings (7 CFR 47.1

through 47.25 and 47.46) (referred to as the ``PACA Reparation Rules''

below), the Rules of Practice Under the Perishable Agricultural

Commodities Act Applicable to Determinations as to Whether a Person is

Responsibly Connected With A Licensee Under the Perishable Agricultural

Commodities Act (7 CFR 47.1, 47.2(a) through 47.2(h), and 47.47 through

47.68) (referred to as the ``PACA Responsibly Connected Rules'' below),

and the Rules of Practice Applicable to Reparation Proceedings Under

the Packers and Stockyards Act (9 CFR 202.101 through 202.123)

(referred to as the ``P&S Reparation Rules'' below). Specifically, we

proposed to provide that: (1) Conferences may be conducted by

telephone, correspondence, audio-visual telecommunication, or by

personal attendance of the participants; (2) depositions and hearings

may be conducted by telephone, audio-visual telecommunication, or

personal attendance of the participants; (3) hearings and depositions

may be recorded rather than transcribed; and (4) prior to a hearing,

parties exchange written narrative statements of the direct testimony

they intend to introduce at the hearing.

Comments on the Proposed Rule

We solicited comments concerning the proposal for a 60-day comment

period ending April 26, 1994. We received 12 comments by that date. One

of the commenters requested that we reopen and extend the comment

period. In response to that request, on June 22, 1994, we published a

document in the Federal Register (59 FR 32138) reopening and extending

the comment period until July 22, 1994. We received two additional

comments by the close of the reopening and extension of the comment

period. The fourteen comments were from the following organizations and

individual: (1) The Administrative Law Section of the American Bar

Association; (2) the Agriculture Law Committee, Administrative Law

Section of the American Bar Association; (3) the American Meat

Institute; (4) the Eastern Meat Packers Association; (5) the Federal

Administrative Law Judges Conference; (6) the Forum of United States

Administrative Law Judges; (7) Janet L. Heins; (8) Holland & Knight;

(9) the Livestock Marketing Association; (10) the National Association

of Perishable Agricultural Receivers; (11) Olsson, Frank and Weeda,

P.C.; (12) the Society for Animal Protective Legislation; (13) the

United Fresh Fruit & Vegetable Association; and (14) the Western States

Meat Association. [[Page 8447]]

All of the commenters generally opposed the proposed rule. However,

many of these commenters supported some aspects of the proposal. Seven

of the commenters stated that the Department should experiment with

adjudicatory proceedings conducted by telecommunication, two commenters

praised the Department's effort to save money expended on adjudicatory

proceedings, and two of the commenters supported the elimination of

gender specific references.

The comments and our responses to those comments are as follows.

1. Constitutional Due Process

Ten commenters stated that a hearing conducted by telecommunication

would violate the constitutional right to due process.

We disagree with these comments. Prior to drafting the proposed

rule, we carefully examined whether hearings conducted by

telecommunication provide a full and fair evidentiary hearing that

comports with due process. We concluded that the due process clause

does not preclude the use of telecommunication in adjudicatory

proceedings.

The memorandum containing our analysis and findings was placed in

the rulemaking record upon publication of the proposed rule. As we

stated in that memorandum, due process is flexible and calls for such

procedural protections as the particular situation demands. Morrissey

v. Brewer, 408 U.S. 471 (1972). The courts have applied a balancing

test that examines: (1) The private interest that will be affected by

the official action; (2) the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any,

of additional or substitute procedural safeguards; and (3) the

government's interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute procedural

requirement would entail. Mathews v. Eldridge, 424 U.S. 319 (1976).

The question of what process is due requires flexibility rather

than an either/or analysis which assumes that either face-to-face oral

hearings are always required or that face-to-face oral hearings are

never required. The proposed rule provides such flexibility. Hearings

would be conducted by telephone, audio-visual telecommunication, or by

the personal attendance of any individual who is expected to

participate in the hearing. Under the proposal, the person conducting

the proceeding would determine which method of conducting the hearing

is to be used in a particular instance based, in part, on the need to

conduct the hearing in a manner that would not prejudice any of the

parties to the proceeding. (See proposed 7 CFR 1.141(b) (3) and (4),

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

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

Despite our view that the proposal provides the person conducting

the proceeding with sufficient flexibility to tailor the manner in

which a hearing is conducted so that due process is provided, we have

made changes that address the due process concerns raised by the

commenters.

Specifically, the final rule provides that the hearings held under

the Uniform Rules, the Capper-Volstead Rules, the PACA Reparation

Rules, the PACA Responsibly Connected Rules, and the P&S Reparation

Rules shall be conducted by audio-visual telecommunication unless the

person conducting the proceeding determines that conducting the hearing

by personal attendance of any individual who is expected to participate

in the hearing: (1) Is necessary to prevent prejudice to a party; (2)

is necessary because of a disability of any individual expected to

participate in the hearing; or (3) would cost less than conducting the

hearing by audio-visual telecommunication.

The person conducting the proceeding may, in his or her sole

discretion or in response to a motion by a party to the proceeding,

conduct the hearing by telephone only if the person conducting the

proceeding finds that a hearing conducted by telephone: (1) Would

provide a full and fair evidentiary hearing; (2) would not prejudice

any party; and (3) would cost less than conducting the hearing by

audio-visual telecommunication or personal attendance of any individual

who is expected to participate in the hearing. (See 7 CFR 1.141(b) (3)

and (4), 1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2)

and (3) and 9 CFR 202.112(a) (3) and (4) in this final rule.)

2. Compliance with the Administrative Procedure Act

Four commenters stated that a hearing conducted by

telecommunication would violate the Administrative Procedure Act. All

four commenters stated that a hearing conducted by telecommunication

would deprive the parties of their right to cross-examine witnesses in

violation of 5 U.S.C. 556(d). Two commenters stated that a hearing

conducted by telecommunication would deprive the judge of the ability

to control the proceeding to ensure that only reliable evidence is

received. One commenter stated that a hearing conducted by

telecommunication would deprive the parties of the right to participate

in the hearing in violation of 5 U.S.C. 554(c) and the right to present

oral or documentary evidence in violation of 5 U.S.C. 556(d).

We disagree with these comments. Prior to drafting the proposed

rule, we carefully examined whether hearings conducted by

telecommunication would violate the Administrative Procedure Act. We

concluded that the Administrative Procedure Act does not preclude the

use of telecommunication in adjudicatory proceedings. The memorandum

containing our analysis and findings was placed in the rulemaking

record upon publication of the proposed rule.

There is no provision in the Administrative Procedure Act that

explicitly requires face-to-face adjudicatory hearings and we found

nothing to indicate that Congress intended to exclude the use of

telecommunication in adjudicatory proceedings conducted pursuant to the

Administrative Procedure Act. As previously discussed in this

rulemaking document, this final rule amends the Uniform Rules, the

Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly

Connected Rules, and the P&S Reparation Rules to provide that the

hearings shall be conducted by audio-visual telecommunication unless

the person conducting the proceeding determines that conducting the

hearing by personal attendance of any individual who is expected to

participate in the hearing: (1) Is necessary to prevent prejudice to a

party; (2) is necessary because of a disability of any individual

expected to participate in the hearing; or (3) would cost less than

conducting the hearing by audio-visual telecommunication. A hearing

conducted by audio-visual telecommunication allows full cross-

examination with an ability to observe the demeanor of the witness;

provides an opportunity to transmit and receive documents by the use of

facsimile; provides for a prior exchange of exhibits; and allows the

person conducting the proceeding full control of the course of the

hearing. If a hearing conducted by telecommunication would not

constitute a full and fair hearing, the person conducting the hearing

may require a face-to-face hearing.

Further, the final rule provides that the person conducting the

proceeding may, in his or her sole discretion or in response to a

motion by a party to the proceeding, conduct the hearing by telephone

only if the person conducting the proceeding finds that a hearing

conducted by telephone: (1) Would [[Page 8448]] provide a full and fair

evidentiary hearing; (2) would not prejudice any party; and (3) would

cost less than conducting the hearing by audio-visual telecommunication

or personal attendance of any individual who is expected to participate

in the hearing.

Toward this end, we proposed to amend the Uniform Rules, the

Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly

Connected Rules, and the P&S Reparation Rules to authorize the person

conducting a proceeding to: (1) Require each party to provide all other

parties and the person conducting the proceeding with a copy of any

exhibit that the party intends to introduce into evidence prior to any

hearing to be conducted by telephone or audio-visual telecommunication;

and (2) require that any hearing to be conducted by telephone or audio-

visual telecommunication be conducted at locations at which the parties

and the person conducting the proceeding are able to transmit documents

during the hearing. These proposed provisions (see proposed 7 CFR

1.144(c) (9) and (11), 1.173(d) (7) and (8), 47.11(c) (9) and (11), and

47.56 (g) and (h) and 9 CFR 202.118(a) (8) and (10)) regarding the

exchange of exhibits prior to a hearing conducted by telecommunication

and the ability to transmit documents during a hearing conducted by

telecommunication are designed to ensure that all parties have a full

opportunity to participate in the hearing, present oral or documentary

evidence, and cross-examine witnesses.

We have retained these provisions in the final rule with one minor

modification to correct an oversight in the proposed rule. As stated

above, proposed 7 CFR 1.144(c)(11), 1.173(d)(8), 47.11(c)(11), and

47.56(h) and 9 CFR 202.118(a)(10) would authorize a person conducting a

proceeding to require that any hearing to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties and the person conducting the proceeding are able to transmit

documents during the hearing. We have amended 7 CFR 1.144(c)(11),

1.173(d)(8), 47.11(c)(11), and 47.56(h) and 9 CFR 202.118(a)(10) to

authorize a person conducting a proceeding to require that any hearing

to be conducted by telephone or audio-visual telecommunication be

conducted at locations at which the parties and the person conducting

the proceeding are able to transmit and receive documents during the

hearing.

3. Statutory Requirements

One commenter stated that the plain meaning of statutes that

require hearings to be held ``before the Secretary'' is that face-to-

face hearings are required. Therefore, any hearings under those

statutes which are conducted by telecommunication would be inconsistent

with those statutes.

Numerous hearings conducted under the rules of practice which this

final rule amends are conducted pursuant to statutes that require

hearings ``before the Secretary.'' We fully examined whether hearings

conducted by telecommunication in which some or all of the evidence is

introduced at locations other than the location at which the person

conducting the proceeding is situated would violate statutes that

require hearings to be conducted ``before the Secretary.'' We concluded

that such hearings would not violate these statutes. The memorandum

containing our analysis and findings was placed in the rulemaking

record upon publication of the proposed rule.

A few courts have found that telephone hearings were insufficient

due to language of the statute under which the hearings were conducted.

For example, in Purba v. Immigration & Naturalization Service, 884 F.

2d 516 (9th Cir. 1989), the court held that a deportation hearing must

be conducted in the physical presence of the immigration judge, absent

the consent of the parties, because the statute under which the hearing

was held required the hearing to be ``before'' the judge. The court

found the plain meaning of the word ``before'' is ``in the presence

of,'' ``in sight of,'' or ``face-to-face with'' a person and that

conducting the hearing by telephone was not a hearing ``before'' the

judge. However, the Supreme Court has recently held that where Congress

has not decided, any alternative dictionary definition of a word that

has a rational effect under a statute is a possibility for agency

choice, and the courts are to defer to the agency's choice of the

interpretation of the word, if it is reasonable. National Railroad

Passenger Corp. v. Boston and Maine Corp., ____ U.S. ____, 112 S. Ct.

1394 (1992).

The eleventh circuit, applying the rationale in National Railroad

Passenger Corp., found that a hearing conducted by telephone did not

violate the Immigration and Nationality Act that provides that a

``[d]etermination of deportability * * * shall be made only on the

record in a proceeding before a special inquiry officer.'' Bigby v.

United States Immigration and Naturalization Service, 21 F. 3d 1059

(11th Cir. 1994). (Emphasis added.) The eleventh circuit explicitly

rejected the argument that ``before'' was susceptible of only one

meaning. The court found that the word ``before'' did not of necessity

mean ``in front of'' or ``in the presence of,'' thereby mandating that

the special inquiry officer be physically present at a hearing required

to be held ``before'' the special inquiry officer. The court found that

``before'' could be used in a jurisdictional sense and mean ``to be

judged or acted on by'' or ``under the official or formal consideration

of.'' The court, citing Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), held that ``[i]n the

absence of unambiguous congressional intent, we defer to an agency's

reasonable interpretation of a statute it is charged with

administering.

None of the statutes that require proceedings to be conducted

``before the Secretary'' under which hearings are conducted pursuant to

the rules of practice amended by this final rule define the word

``before'' nor do these statutes provide any clear indication of

congressional intent with respect to the meaning of the word ``before''

as used in these statutes. Therefore, it is reasonable for the

Department to find that the word ``before,'' as used in these statutes,

is jurisdictional and means ``to be judged or acted on by,'' ``under

the official or formal consideration of,'' or ``under the cognizance or

jurisdiction of.''

4. Credibility Determinations

Seven commenters stated that hearings conducted by

telecommunication negatively impact credibility determinations. Five

commenters focused exclusively on the need for the judge to observe

demeanor to determine credibility. One commenter stated that it is

important for all participants to assess credibility of other

participants. Four commenters raised the specter of witnesses reading

prepared statements without the knowledge of all participants.

Hearings conducted by audio-visual telecommunication do not impact

credibility determinations because the fact finder is able to see and

hear witnesses in a hearing conducted by audio-visual telecommunication

in much the same manner and to the same extent as the fact finder would

see and hear witnesses in a face-to-face hearing. Hearings conducted by

telephone may, but do not necessarily, negatively impact credibility

determinations.

While we believe that the proposal provides the person conducting

the proceeding with sufficient flexibility to tailor the manner in

which a hearing is conducted so that credibility

[[Page 8449]] determinations are not negatively impacted, in the final

rule we made substantial changes to these proposed provisions which

address the concerns regarding credibility raised by the commenters.

The final rule provides that hearings conducted under the Uniform

Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the P&S Reparation Rules shall be

conducted by audio-visual telecommunication unless the person

conducting the proceeding determines that conducting the hearing by

personal attendance of any individual who is expected to participate in

the hearing: (1) Is necessary to prevent prejudice to a party; (2) is

necessary because of a disability of any individual expected to

participate in the hearing; or (3) would cost less than conducting the

hearing by audio-visual telecommunication.

The person conducting the proceeding may, in his or her sole

discretion or in response to a motion by a party to the proceeding,

conduct the hearing by telephone only if the person conducting the

proceeding finds that a hearing conducted by telephone: (1) Would

provide a full and fair evidentiary hearing; (2) would not prejudice

any party; and (3) would cost less than conducting the hearing by

audio-visual telecommunication or personal attendance of any individual

who is expected to participate in the hearing. (See 7 CFR 1.141(b) (3)

and (4), 1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2)

and (3) and 9 CFR 202.112(a) (3) and (4) in this final rule.)

We do expect that, after the effective date of this final rule, a

number of hearings will be conducted by telephone based upon a finding

by the person conducting the proceeding that a hearing conducted by

telephone will provide a full and fair evidentiary hearing; will not

prejudice any party; and will cost less than conducting the hearing by

audio-visual telecommunication or personal attendance of any individual

who is expected to participate in the hearing.

Numerous courts have found that hearings conducted by telephone do

not increase the risk of error because witness demeanor cannot be

viewed. In Casey v. O'Bannon, 536 F. Supp. 350 (E.D. Pa. 1982), the

court determined that plaintiffs failed to prove that the constitution

compels face-to-face hearings and that there is a risk of an erroneous

deprivation by virtue of the telephone procedures as they currently

exist. The court was influenced by testimony at trial showing that

``hearing examiners can effectively judge credibility over the phone by

noting voice responses, pauses, levels of irritation and other

factors'' and a survey showing that 82% of examiners who have presided

over telephone hearings believe they can judge credibility in hearings

conducted by telephone. Id., at 353-54, citing Attitudes Towards the

Use of the Telephone in Administrative Fair Hearings, The California

Experience, 31 Admin. L. Rev. 247 (1979).

Further, in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 131

(2nd Cir. 1967), the Second Circuit stated, ``Utica finds in the due

process clause of the Fifth Amendment a requirement that when there are

issues of credibility, as was assumed to be true here, no determination

of fact may be made unless the decider has either seen the witnesses

himself or has been furnished with a report as to the credibility by

another who has * * *. We discern no such absolute in the history laden

words of the Fifth Amendment; Utica would freeze what is usually a

sensible rule of judicial administration into a constitutional

imperative.'' The court further noted that when the Constitution was

adopted the settled practice in the English chancery courts was to take

evidence almost wholly by deposition. Id., at 131 n. 3. Utica was cited

as support in at least two other federal cases involving the fact

finder's inability to observe demeanor. See Moore v. Ross, 687 F.2d

604, 609-10 (2nd Cir. 1982), cert. denied, 459 U.S. 1115 (1983); Blake

v. Ambach, 691 F.Supp. 651, 655-56 (S.D.N.Y. 1988).

Numerous state courts have also upheld the use of telephone

hearings under circumstances in which the issue of demeanor and

credibility was raised. In Babcock v. Employment Division, 696 P.2d 19,

21 (Or. App 1985), the court considered credibility the most difficult

issue for unemployment compensation telephone hearings, yet stated that

while ``[p]hysical appearance can be a clue to credibility, * * * of

equal or greater importance is what a witness says and how she says

it.'' The Oregon appellate court was satisfied ``that the audible

indicia of a witness' demeanor are sufficient for a referee to make an

adequate judgment as to believability.'' Id.

In State, ex. rel. Human Services Department v. Gomez, 657 P.2d

117, 124 (N.M. 1983), the court rejected Gomez's contention that the

telephonic hearing was not meaningful because his efforts to remain on

welfare depended upon his credibility and the hearing officer could not

judge credibility without seeing him. The court did state that

credibility may be a minimal factor in disability determination, but

``a requirement that the hearing officer also see Gomez testify * * *

would impose the rigidities of judicial procedure on what is supposed

to be an informal proceeding.'' Id., at 124-25.

5. Exchange of Direct Testimony of Each Witness a Party Will Call

We proposed to amend the Uniform Rules, the Capper-Volstead Rules,

the PACA Reparation Rules, the PACA Responsibly Connected Rules, and

the P&S Reparation Rules to provide that unless the hearing is

scheduled to begin less than 20 days after the person conducting the

proceeding issues a notice stating the time of the hearing, each party

must exchange, in writing, with all other parties, a verified narrative

statement of the direct testimony of each witness that the party will

call to provide oral direct testimony at the hearing. (See proposed 7

CFR 1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 202.112(e).)

One commenter objected to the exchange of direct testimony of each

witness. Two commenters stated that they had no objection to the

exchange of direct testimony as long as each witness is required ``to

appear in court for cross-examination.''

The requirement that parties exchange the written narrative

statements of the direct testimony of witnesses the parties intend to

call at a hearing may, in some instances, necessitate a significant

expenditure of time and resources. Based on our past experience, many

administrative proceedings conducted under the rules of practice which

we are amending are settled just prior to the scheduled date of

hearing. In these circumstances, the preparation and exchange of a

written verified narrative statement of the oral direct testimony of

each witness the parties intend to call would constitute an unnecessary

expenditure of time and resources. One of the purposes of this final

rule is to make adjudicatory proceedings conducted by the Department as

efficient as possible. Therefore, this final rule limits the provisions

regarding the exchange of written verified narrative statements of the

oral direct testimony of witnesses the parties intend to call to

hearings to be conducted by telephone. Except as discussed below, we

have retained the provision regarding the exchange of written verified

narrative statements of oral direct testimony prior to hearings

conducted by telephone to expedite these hearings, prevent surprise,

ensure that all parties have a full opportunity to participate in the

hearing and cross-examine witnesses, and assist the

[[Page 8450]] person conducting the hearing with credibility

determinations.

Proposed 7 CFR 1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR

202.112(e) would have required each party to obtain written verified

narrative statements of oral direct testimony of all witnesses the

party intends to call to provide oral direct testimony. Under the

proposal, testimony would be limited to the written direct testimony.

Occasionally parties call hostile witnesses or witnesses over whom they

have no control to provide oral direct testimony at hearings in

proceedings conducted under the Uniform Rules, the Capper-Volstead

Rules, the PACA Reparation Rules, the PACA Responsibly Connected Rules,

and the P&S Reparation Rules. Requiring a party to obtain and exchange

written verified narrative statements from hostile witnesses and

witnesses over whom a party has no control could result in a party's

inability to introduce relevant and material evidence at a hearing.

Therefore, this final rule provides that each party need only obtain

and exchange written verified narrative statements of the oral direct

testimony of the following witnesses that the party intends to call at

hearings to be conducted by telephone: (1) The party; (2) the employees

and agents of the party; and (3) the party's expert witnesses. The oral

direct testimony provided by a witness at a hearing conducted by

telephone will be limited to the presentation of the written direct

testimony, unless the person conducting the hearing finds that oral

direct testimony which is supplemental to the written direct testimony

would further the public interest and would not constitute surprise.

6. Verbatim Recordings in Lieu of Transcripts

We proposed to amend the Uniform Rules, the Capper-Volstead Rules,

the PACA Reparation Rules, the PACA Responsibly Connected Rules, and

the P&S Reparation Rules to provide for the use of recordings of

hearings, and, where applicable, depositions. Four commenters opposed

the use of recordings. One commenter objected to the use of recordings

of hearings and depositions rather than transcripts, but did not state

the basis for the objection. Three commenters stated that the review of

a recording is more time-consuming than the review of a transcript of

the same proceeding and the citation of relevant portions of a

recording more difficult than the citation of relevant portions of a

transcript. Two commenters stated that transcripts of prehearing

conferences are necessary at a hearing in order to refer to evidentiary

rulings made in prehearing conferences and transcripts of depositions

are necessary for the proper cross-examination of witnesses. One

commenter noted that the Department would have to purchase equipment to

enable its counsel to review recordings.

We made changes based on these comments. The final rule requires

that hearings to be conducted by telephone shall be recorded verbatim

by electronic recording device. Hearings conducted by audio-visual

telecommunication or the personal attendance of any individual who is

expected to participate in the hearing shall be transcribed, unless the

person conducting the hearing finds that recording the hearing verbatim

would expedite the proceeding and the person conducting the hearing

orders the hearing to be recorded verbatim. The person conducting the

hearing shall certify that to the best of his or her knowledge and

belief the recording with exhibits that were accepted into evidence is

the record of the hearing. The final rule provides that if a party

requests the transcript of a hearing or part of a hearing and the

person conducting the hearing determines that the disposition of the

proceeding would be expedited by a transcript of the hearing or part of

a hearing, the person conducting the hearing shall order the verbatim

transcription of the recording as requested by the party. (See 7 CFR

1.141(i), 1.168(h), 47.15(i), and 47.60 and 9 CFR 202.112(i) in this

final rule.) The final rule provides that transcripts and recordings of

hearings conducted under the Uniform Rules and the Capper-Volstead

Rules shall be made available to any person at actual cost of

duplication. (See 7 CFR 1.141(i) and 1.168(h) in this final rule.) We

have retained the provisions regarding the cost and availability of

transcripts that are currently in the PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the P&S Reparation Rules (see current

7 CFR 47.15(g) and 47.60 and 9 CFR 202.112(h)) and have applied these

cost and availability provisions to recordings. (See 7 CFR 47.15(i) and

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

The discretion provided to the person conducting the hearing to

order that a transcript be provided to a party rather than a recording

will ensure that transcripts are available when a party does not have

access to equipment that enables that party to use recordings. Further,

we believe that parties will be able to review recordings as quickly as

they review transcripts by using the fast forward and reverse modes

that are available on most recording devices. In addition, relevant

portions of recordings can be referenced by time, revolution, or some

other method, as determined by the person conducting the proceeding.

Prior to this rulemaking proceeding, none of the rules of practice

which are the subject of this rulemaking proceeding required that

prehearing conferences be recorded and we did not propose to require

the transcription of prehearing conferences. Therefore, the comment

regarding the transcription of prehearing conferences in order to refer

to evidentiary rulings made in prehearing conferences is beyond the

scope of this rulemaking proceeding.

7. ``Practical'' Problems

Four commenters stated that hearings conducted by telecommunication

would result in what the commenters characterized as ``practical

problems.''

(a) One commenter stated that hearings conducted by

telecommunication would impair the ability of the parties to observe

documents and call witnesses.

We proposed to amend the Uniform Rules, the Capper-Volstead Rules,

the PACA Reparation Rules, the PACA Responsibly Connected Rules, and

the P&S Reparation Rules to authorize the person conducting a

proceeding to: (1) Require each party to provide all other parties and

the person conducting the proceeding with a copy of any exhibit that

the party intends to introduce into evidence prior to any hearing to be

conducted by telephone or audio-visual telecommunication; and (2)

require that any hearing to be conducted by telephone or audio-visual

telecommunication be conducted at locations at which the parties and

the person conducting the proceeding are able to transmit documents

during the hearing. These proposed provisions (see proposed 7 CFR

1.144(c) (9) and (11), 1.173(d) (7) and (8), 47.11(c) (9) and (11), and

47.56 (g) and (h) and 9 CFR 202.118(a) (8) and (10)) regarding the

exchange of exhibits prior to a hearing conducted by telecommunication

and the ability to transmit documents during a hearing conducted by

telecommunication are designed to ensure that all parties have a full

opportunity to participate in the hearing, present oral or documentary

evidence, and cross-examine witnesses.

As we stated above, we have retained these provisions in the final

rule with one minor modification to correct an oversight in the

proposed rule.

Further, we proposed to amend the Uniform Rules, the Capper-

Volstead [[Page 8451]] Rules, the PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the P&S Reparation Rules to provide

that unless the hearing is scheduled to begin less than 20 days after

the person conducting the proceeding issues a notice stating the time

of the hearing, each party must exchange, in writing, with all other

parties, the direct testimony of each witness that the party will call

to provide oral direct testimony at the hearing. (See proposed 7 CFR

1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 202.112(e).) The

written direct testimony must be in narrative form and must be

verified. The written direct testimony of witnesses shall be exchanged

by the parties at least 10 days prior to the hearing. The oral direct

testimony provided by a witness at the hearing will be limited to the

presentation of the written direct testimony, unless the person

conducting the proceeding finds that oral direct testimony which is

supplemental to the written direct testimony would expedite the

proceeding and would not constitute surprise. These provisions

regarding exchange of direct testimony are designed to ensure that all

parties have a full opportunity to participate in the hearing, and

cross-examine witnesses. As discussed above, we have limited the

provisions regarding the exchange of written verified narrative

statements of oral direct testimony to hearings to be conducted by

telephone and to certain specified witnesses.

These provisions will ensure that parties to adjudicatory

proceedings conducted under the rules of practice which we are amending

will have ample opportunity to observe documents.

We do not agree with the comment that parties will have any more

difficulty calling witnesses in a hearing conducted by

telecommunication than parties will have when calling witnesses in a

face-to-face hearing. The commenter did not provide any basis for this

concern.

(b) One commenter stated that no provision can be made in hearings

conducted by telecommunication for--the introduction of real evidence,

the examination of a witness regarding documents that the witness has

in his or her possession on entering the courtroom, the examination of

a witness regarding his or her ability to read at a distance, the

request that a witness draw a picture; or any ``other unexpected

events.''

We have not made any change based on this comment. Very few of the

hearings conducted under the rules of practice which this final rule

amends necessitate the introduction of real evidence, the examination

of a witness regarding documents that the witness has in his or her

possession on entering the courtroom, the examination of a witness

regarding his or her ability to read at a distance, or the request that

a witness draw a picture.

As discussed previously in this rulemaking document, the final rule

provides that the person conducting the proceeding may require hearings

conducted by telecommunication to be held at locations at which the

parties and the person conducting the proceeding are able to transmit

and receive documents during the hearing. This requirement will enable

parties to examine witnesses regarding documents that the witness has

in his or her possession on entering the courtroom and the ability to

read at a distance, and to request witnesses to draw pictures or

diagrams in hearings conducted by telecommunication.

If real evidence is to be introduced in a hearing, the hearing or

that part of the hearing in which the real evidence is to be introduced

can be conducted by the personal attendance of those who are to

participate in the hearing. As stated above, the person conducting the

proceeding can require the hearing to be conducted by personal

attendance of any individual who is expected to participate in the

hearing if personal attendance is necessary to prevent prejudice to a

party. The inability of a party to introduce admissible evidence

because a hearing is conducted by telecommunication may prejudice a

party, and, in such circumstances, a face-to-face hearing will be

conducted.

(c) Two commenters stated that hearings conducted by

telecommunication would reduce the appearance of justice.

We disagree with the comment and have not made any change based on

this comment. The quality of justice will not be affected by this final

rule. If any party will be prejudiced by a hearing conducted by

telecommunication, the person conducting the proceeding will require

the hearing to be conducted by personal attendance of any individual

who is expected to participate in the hearing. The use of audio-visual

technology preserves due process, promotes ease of participation by

those for whom travel is difficult, and allows each party and the

person conducting the proceeding to participate fully and with the

effect of face-to-face confrontation. Therefore, we believe that this

final rule will in fact heighten the appearance and fact of justice

done.

(d) Two commenters stated that hearings conducted by

telecommunication would make sequestration difficult.

A person conducting a hearing by telecommunication could order

sequestration in the same manner in which it is ordered in a face-to-

face hearing. We agree that, in most situations, the person conducting

a hearing by telecommunication will not be in a position to determine

whether a sequestration order has been followed. We expect that all

parties in adjudicatory proceedings conducted by the Department and

counsel to those parties will make every effort to comply with lawful

orders issued by the person conducting the proceeding.

(e) Two commenters stated that hearings conducted by

telecommunication would make recesses impractical.

We disagree and have made no change based on these comments.

Recesses can be called as easily in a hearing conducted by

telecommunication as in a hearing conducted by personal attendance of

those involved with the hearing.

(f) Four commenters stated that prompting witnesses at hearings

conducted by telecommunication would be difficult to control.

Prompting of witnesses can occur in face-to-face hearings, but we

do agree that, in some situations, it may be more difficult for a

person conducting a hearing to detect witness prompting at a hearing

conducted by telecommunication than to detect witness prompting at a

hearing conducted by personal attendance of participants. However,

prompting of witnesses in hearings conducted by audio-visual

telecommunication will be far more difficult to conceal from other

parties and the person conducting a hearing than in hearings conducted

by telephone. In fact, current audio-visual technology can provide the

person conducting the proceeding and the parties with virtually

unlimited vision in the room in which a hearing is being conducted. We

believe that the potential prompting problem is minimized by making

audio-visual hearings the prevalent method of hearing.

(g) Two commenters stated that hearings conducted by

telecommunication could be negated by a signal or power failure or

electronic interference.

We disagree. If a signal or power failure were to occur, the

hearing would be adjourned until such time as the hearing could be

resumed. That portion of the hearing which is completed prior to the

signal or power failure would not be negated. A signal or power failure

which causes the adjournment of a [[Page 8452]] hearing conducted by

telecommunication is not different than an event, such as a power

failure or fire in the building in which a hearing is being conducted,

that may cause the person conducting a face-to-face hearing to

temporarily adjourn a hearing.

(h) One commenter stated that the rules of practice would be

subject to challenge which would add to uncertainty and cost money to

defend.

While proceedings conducted by telecommunication could be

challenged, we believe that these challenges can be easily defended.

Above, we cited a number of cases in which adjudicatory proceedings

conducted by telecommunication have been challenged, and the state and

federal agencies conducting proceedings by telecommunication have

prevailed.

(i) Two commenters stated that hearings conducted by

telecommunication would often necessitate the employment of multiple

counsel by each party to observe witness demeanor at each location at

which a hearing is being held.

The final rule does not require counsel to be present at the

location at which a witness is testifying in a proceeding conducted by

telecommunication. While we do not believe that the presence of counsel

at each location at which witnesses testify is necessary, a party may

chose to have counsel present at some or all of the locations at which

witnesses testify in hearings conducted by telecommunication. Such an

expenditure would be at the option of each party to the proceeding.

8. The Rulemaking Record

Six commenters stated that the rulemaking record is deficient.

(a) Four commenters stated that the cost-benefit analysis is

inadequate or nonexistent.

We have not made any change based upon these comments. In

accordance with Executive Order 12866, we prepared an assessment in

connection with the preparation of the notice of proposed rulemaking

which preceded this final rule. The assessment, which was included in

the rulemaking record, contains a discussion of the costs and benefits

associated with the proposed rule. Again, in accordance with Executive

Order 12866, we prepared an assessment in connection with the

preparation of this final rule. The assessment, which was included in

the rulemaking record, contains a discussion of the costs and benefits

associated with the final rule.

(b) Two commenters stated that there was no ``justification of the

technical feasibility of conducting cross-examination via audio-visual

devices.''

We have not made any change based upon these comments. Prior to

preparing the proposed rule, we thoroughly examined the range of

equipment available to conduct adjudicatory proceedings by

telecommunication. We found that both the telephone and audio-visual

telecommunication equipment are generally adequate to conduct cross-

examinations. Again, the final rule amends the Uniform Rules, the

Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly

Connected Rules, and the P&S Reparation Rules, to provide that hearings

will be conducted by the personal attendance of any individual who is

expected to participate in the hearing if the person conducting the

proceeding finds that personal attendance: (1) Is necessary to prevent

prejudice to a party; (2) is necessary because of a disability of any

individual expected to participate in the hearing; or (3) would cost

less than conducting the hearing by audio-visual telecommunication. The

person conducting the proceeding may, in his or her sole discretion or

in response to a motion by a party to the proceeding, conduct the

hearing by telephone only if the person conducting the proceeding finds

that a hearing conducted by telephone: (1) would provide a full and

fair evidentiary hearing; (2) would not prejudice any party; and (3)

would cost less than conducting the hearing by audio-visual

telecommunication or personal attendance of any individual who is

expected to participate in the hearing.

(c) One commenter stated that it did not have adequate notice of

the proposed rule, and, therefore, the comment period should be

extended.

On June 22, 1994, in response to this comment, we published a

document in the Federal Register (59 FR 32138) reopening and extending

the comment period until July 22, 1994.

9. Suggestions

(a) Five commenters stated that the Department should experiment

with proceedings conducted by telecommunication on a limited basis.

We have not made any change based on these comments. The use of

telecommunication in adjudicatory proceedings is not new. Numerous

state and federal agencies have conducted adjudicatory proceedings by

telecommunication in the past. We believe that experience of other

state and federal agencies is sufficient to enable the Department to

forego the implementation of telecommunication on an experimental

basis.

(b) Five commenters stated that hearings should only be conducted

by telecommunication when the parties agree.

We have not made any change based on this comment. The final rule

provides the parties with ample opportunity to make the person

conducting the proceeding aware of the parties' preferences regarding

the manner in which the hearing should be conducted and to persuade the

person conducting the proceeding to conduct the hearing in a manner

other than that ordered by the person conducting the proceeding.

Specifically, the final rule amends the Uniform Rules, the Capper-

Volstead Rules, the PACA Reparation Rules, the PACA Responsibly

Connected Rules, and the P&S Reparation Rules to provide that any party

may move that the hearing be conducted by telephone or personal

attendance of any individual expected to attend the hearing rather than

by audio-visual telecommunication. Further, within 10 days after the

person conducting the proceeding issues a notice stating the manner in

which the hearing is to be conducted, any party may move that the

person conducting the proceeding reconsider the manner in which the

hearing is to be conducted. (See 7 CFR 1.141(b)(2), 1.168(b)(2),

47.15(c)(2), and 47.53 (b) and (c) and 9 CFR 202.112(b) (2) and (3) in

this final rule.)

(c) Two commenters stated that the parties should elect the manner

in which depositions are to be held and judges should only be involved

if the parties cannot agree.

We agree with the commenters with respect to the PACA Reparation

Rules and the P&S Reparation Rules. We proposed to amend the Uniform

Rules, the PACA Reparation Rules, and the P&S Reparation Rules to

provide that a deposition shall be conducted by telephone unless the

person conducting the proceeding determines that conducting the

deposition by audio-visual telecommunication: (1) Would cost less than

conducting the deposition by telephone; (2) is necessary to prevent

prejudice to a party; or (3) is necessary because of a disability of

any individual expected to participate in the deposition. If the

deposition is not conducted by telephone, the deposition shall be

conducted by audio-visual telecommunication unless the person

conducting the proceeding determines that conducting the deposition by

personal attendance of any individual who is expected to participate in

the deposition: (1) Would cost less than [[Page 8453]] conducting the

deposition by telephone or audio-visual telecommunication; (2) is

necessary to prevent prejudice to a party; or (3) is necessary because

of a disability of any individual expected to participate in the

deposition.

However, the government is never a party in proceedings conducted

under the PACA Reparation Rules and the P&S Reparation Rules and incurs

very little cost associated with depositions taken in PACA and P&S

reparation proceedings. Therefore, the final rule provides that in

proceedings conducted under the PACA Reparation Rules and the P&S

Reparation Rules the parties may agree upon the manner in which the

depositions are to be conducted and the person conducting the

proceeding will only determine the manner in which a deposition is to

be conducted when the parties cannot agree. (See 7 CFR 47.16(b) (3) and

(4) and 9 CFR 202.109(d) (4) and (5) in this final rule.)

(d) One commenter opposed the proposal, but urged the Department to

modernize its rules and to form an ad hoc committee to review the

rules.

We welcome any comments or petitions for rulemaking which any

interested member of the public may wish to make regarding any of the

Department's rules of practice, but we do not believe that it is

necessary to form a committee to review the Department's rules or

practice. The Department regulation regarding petitions for issuance,

amendment, or repeal of a rule is set forth in 7 CFR 1.28.

(e) Two commenters supported conducting conferences by telephone

when the judge decides that the use of the telephone is appropriate.

We did not make any change based on these comments. The proposed

rule provided that conferences are to be held either by telephone or by

correspondence unless certain findings are made by the person

conducting the proceeding. The final rule retains those provisions.

Conclusion

Based on the rationale in the proposed rule and this rulemaking

document, we are adopting the provisions of the proposal as a final

rule except as previously discussed in this rulemaking document and

except for minor editorial changes for clarity. In addition, since the

preparation of the notice of proposed rulemaking 7 CFR 180.300 has been

redesignated as 7 CFR 97.300. Therefore, we have removed the amendment

of 7 CFR 180.300 in this final rule and, instead, amended 7 CFR 97.300.

Further, based upon the general need to allow the person conducting

the proceeding to tailor the manner in which the proceeding is

conducted to prevent prejudice to any party and to ensure that any

hearing is a full and fair evidentiary hearing, we have eliminated all

of the provisions which appeared in the proposal concerning

interlocutory appeal. Specifically, we proposed to amend 7 CFR 1.143(e)

to allow any party to appeal to the Judicial Officer a Judge's order:

(1) To conduct a conference by audio-visual telecommunication or

personally attend a conference; (2) to conduct a hearing by audio-

visual telecommunication or personally attend a hearing; or (3) to

conduct a deposition by audio-visual telecommunication or personally

attend a deposition. Further, we proposed to amend 7 CFR 47.13(b) to

allow any party to appeal to the Secretary an examiner's order: (1) To

conduct a conference by audio-visual telecommunication or personally

attend a conference; (2) to conduct a hearing by audio-visual

telecommunication or personally attend a hearing; or (3) to conduct a

deposition by audio-visual telecommunication or personally attend a

deposition. Further still, we proposed to amend 7 CFR 1.172(e) to allow

any party to appeal to the Judicial Officer a Judge's order: (1) To

conduct a conference by audio-visual telecommunication or personally

attend a conference; or (2) to conduct a hearing by audio-visual

telecommunication or personally attend a hearing. Finally, we proposed

to amend 9 CFR 202.118(b) to allow any party to appeal to the Judicial

Officer a presiding officer's order: (1) To conduct a conference by

audio-visual telecommunication or personally attend a prehearing

conference; (2) to conduct an oral hearing by audio-visual

telecommunication or personally attend an oral hearing; or (3) to

conduct a deposition by audio-visual telecommunication or personally

attend a deposition. None of these proposed amendments concerning

interlocutory appeal have been adopted in this final rule.

Further, the proposed rule amended the Uniform Rules, the PACA

Responsibly Connected Rules, and the P&S Reparation Rules to require

hearings to be recorded verbatim by an electronic recording device.

Only if a party to the proceeding requests a transcript of the hearing

or a part of the hearing and the person conducting the proceeding

determines that the disposition of the proceeding would be expedited by

a transcript of the hearing could the person conducting the proceeding

order the verbatim transcription of the recording as requested by the

party. We proposed to require that any presiding person's order to

transcribe a hearing and the basis for the order be reduced to a

written order and filed with the Hearing Clerk. We have eliminated the

requirement that the order of the person conducting the proceeding and

the basis of that order be reduced to a written order and filed with

the Hearing Clerk. (See 7 CFR 1.141(i) and 47.60 and 9 CFR 202.112(i)

in this final rule.) We do not believe that an order regarding

transcription of a hearing must be handled in a manner different than

any other order issued by the person conducting the proceeding.

Finally, the Department will bear the entire cost of audio-visual

transmission and only some of the travel costs related to face-to-face

hearings, conferences, and depositions. Therefore, there could be rare

circumstances in which the overall cost of conducting a conference,

hearing, or deposition by audio-visual telecommunication may be cheaper

than conducting the same conference, hearing, or deposition in some

other manner and at the same time the Department's cost of conducting

the conference, hearing, or deposition by audio-visual

telecommunication could be higher than conducting that conference,

hearing, or deposition in some other manner. In order to avoid a

measurable increase in costs to the Department, this final rule

provides that if the person conducting the proceeding finds that a

hearing or deposition conducted by audio-visual telecommunication would

measurably increase costs to the Department, the hearing or deposition

shall be conducted by personal attendance or by telephone. If the

person conducting the proceeding finds that a conference conducted by

audio-visual telecommunication would measurably increase costs to the

Department, the conference shall be conducted by personal attendance,

by telephone, or by correspondence. (See 7 CFR 1.140(c), 1.141(b),

1.148(b), 1.167(b), 1.168(b), 47.14(c), and 47.15(c), and 9 CFR

202.110(b) and 202.112(a) in this final rule.) We did not make this

change with respect to depositions conducted under the PACA Reparation

Rules or the P&S Reparation Rules because the government is never a

party in proceedings conducted under those rules and incurs very little

cost associated with depositions taken in PACA and P&S reparation

proceedings. [[Page 8454]]

Establishment of the Grain Inspection, Packers and Stockyards

Administration

Pursuant to Public Law 103-354, the Federal Crop Insurance Reform

and Department of Agriculture Reorganization Act of 1994, the Secretary

of Agriculture published a notice of the Department's reorganization

establishing the Grain Inspection, Packers and Stockyards

Administration (59 FR 66517). This rule includes amendments to 9 CFR

chapter II which are necessary to bring agency regulations in alignment

with the departmental reorganization.

Executive Order 12866 and Regulatory Flexibility Act

We are issuing this final rule in conformance with Executive Order

12866. This rule has been determined to be significant and has been

reviewed by the Office of Management and Budget under Executive Order

12866.

This final rule provides for conducting certain conferences,

depositions, and hearings in connection with proceedings under the

Uniform Rules, the Capper-Volstead Rules, the PACA Reparation Rules,

the PACA Responsibly Connected Rules, and the P&S Reparation Rules by

telecommunication. Further, the final rule provides for the use of

recordings in connection with depositions and hearings conducted under

the Uniform Rules, the Capper-Volstead Rules, the PACA Reparation

Rules, the PACA Responsibly Connected Rules, and the P&S Reparation

Rules. Finally, this final rule requires each party to exchange, in

writing, with all other parties in the proceeding a verified narrative

statement of the oral direct testimony of certain specified witnesses

the party intends to call in hearings to be conducted by telephone.

These amendments are designed to save money associated with the

purchase of transcripts and time and money associated with travel to

conferences, depositions, and hearings.

Most of the costs of the proceedings conducted under the Uniform

Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the P&S Reparation Rules are borne by

the United States, which is not a small entity. The vast majority of

conferences, hearings, and depositions held under the rules we are

amending are conducted at locations convenient to the private

individuals participating in the proceeding. Therefore, the United

States will incur most of the costs associated with travel in

connection with the proceedings. Further, most conferences held under

the rules that we are amending are currently held by telephone, unless

the conference is held during the hearing. Therefore, this final rule

will not result in a change with respect to the manner in which most

conferences are conducted.

Nonetheless, we believe that private individuals who participate in

conferences, depositions, and hearings conducted by telecommunication,

which will be paid for by the United States, will reduce costs which

are associated with travel, even to convenient locations, and private

parties who participate in these proceedings will save the difference

between the cost of transcripts and recordings in depositions and

hearings in which recordings are used.

Most of the private individuals who participate in proceedings

conducted under the Uniform Rules, the Capper-Volstead Rules, the PACA

Reparation Rules, the PACA Responsibly Connected Rules, and the P&S

Reparation Rules are small entities. This final rule will result in a

small economic impact on private individuals who participate in the

proceedings in question.

Under these circumstances, the Secretary has determined that this

action will not have a significant economic impact on a substantial

number of small entities.

Executive Order 12778

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. This rule: (1) Preempts all State and local laws and

regulations that are inconsistent with this rule; (2) has no

retroactive effect; and (3) does not require administrative proceedings

before parties may file suit in court challenging this rule.

Paperwork Reduction Act

The Paperwork Reduction Act of 1980 does not apply to this rule

because the rule does not seek answers to identical questions or impose

reporting or record keeping requirements on 10 or more persons, and the

information collected is not used for general statistical purposes.

List of Subjects

7 CFR Part 0

Conflict of interest.

7 CFR Part 1

Administrative practice and procedure, Agriculture, Antitrust,

Blind, Claims, Concessions, Cooperatives, Equal access to justice,

Federal buildings and facilities, Freedom of information, Lawyers,

Privacy.

7 CFR Part 47

Administrative practice and procedure, Agricultural commodities,

Agricultural Marketing Service, Brokers.

7 CFR Part 50

Administrative practice and procedure, Agricultural commodities,

Agricultural Marketing Service.

7 CFR Part 51

Agricultural commodities, Food grades and standards, Fruits, Nuts,

Reporting and recordkeeping requirements, Vegetables.

7 CFR Part 52

Food grades and standards, Food labeling, Frozen foods, Fruit

juices, Fruits, Reporting and recordkeeping requirements, Vegetables.

7 CFR Part 53

Cattle, Hogs, Livestock, Sheep.

7 CFR Part 54

Food grades and standards, Food labeling, Meat and meat products.

7 CFR Part 97

Administrative practice and procedure, Labeling, Plants.

9 CFR Part 202

Agriculture, Animals, Administrative practice and procedure,

Reparation proceedings.

Accordingly, 7 CFR part 0, part 1, subpart H and subpart I, part

47, part 50, part 51, part 52, part 53, part 54, and part 97 and 9 CFR

part 202 are amended as follows:

TITLE 7--[AMENDED]

SUBTITLE A--OFFICE OF THE SECRETARY OF AGRICULTURE

PART 0--EMPLOYEE RESPONSIBILITIES AND CONDUCT

1. The authority citation for part 0 is revised to read as follows:

Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Comp., page 306;

5 CFR 735.104; 18 U.S.C. 207(j), unless otherwise noted.

Sec. 0.735-11 [Amended]

2. Section 0.735-11 is amended as follows:

a. In paragraph (b)(6), by adding the words ``or such monitoring or

recording occurs in the course of a Department of Agriculture

proceeding conducted by telephone or audio-visual telecommunication and

the person conducting the proceeding is an administrative law judge,

hearing officer, examiner, or presiding officer'' immediately before

the semicolon. [[Page 8455]]

b. In paragraph (b)(7), by adding the words ``or such monitoring or

recording occurs in the course of a Department of Agriculture

proceeding conducted by telephone or audio-visual telecommunication and

the person conducting the proceeding is an administrative law judge,

hearing officer, examiner, or presiding officer'' immediately before

the semicolon.

PART 1--ADMINISTRATIVE REGULATIONS

3. The authority citation for part 1, subpart H, is revised to read

as follows:

Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, 149, 150gg, 162, 163,

164, 228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2621, 2714,

2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828; 16 U.S.C. 620d,

1540(f), 3373; 21 U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f,

135a, 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR 2.35, 2.41.

Sec. 1.131 [Amended]

4. In Sec. 1.131, paragraph (a), the second sentence is revised to

read ``Section 1.26 shall be inapplicable to proceedings covered by

this subpart.''

Sec. 1.132 [Amended]

5. Section 1.132 is amended as follows:

a. In paragraph (d), the reference to ``459g'' is removed and

``450g'' added in its place.

b. In paragraph (d), the reference to ``1970 ed. appendix, p. 550''

is removed and ``App. (1988)'' added in its place.

c. In paragraph (d), the reference to ``7 CFR 2.35(a)'' is removed

and ``Sec. 2.35(a) of this chapter'' added in its place.

d. Section 1.132 is amended by removing all alphabetical paragraph

designations and placing the definitions in alphabetical order.

Sec. 1.133 [Amended]

6. In Sec. 1.133, paragraph (a)(1), the first sentence is amended

by removing the words ``of this subpart''.

Sec. 1.140 [Amended]

7. In Sec. 1.140, the section heading is revised to read as set

forth below; paragraph (a)(1) introductory text is amended by removing

the word ``prehearing'' and revising the second sentence to read

``Reasonable notice of the time, place, and manner of the conference

shall be given.''; paragraph (b) is amended by removing the word

``prehearing''; and paragraph (c) is revised to read as follows:

Sec. 1.140 Conferences and procedure.

* * * * *

(c) Manner of Conference. (1) The conference shall be conducted by

telephone or correspondence unless the Judge determines that conducting

the conference by audio-visual telecommunication:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the conference; or

(iii) Would cost less than conducting the conference by telephone

or correspondence. If the Judge determines that a conference conducted

by audio-visual telecommunication would measurably increase the United

States Department of Agriculture's cost of conducting the conference,

the conference shall be conducted by personal attendance of any

individual who is expected to participate in the conference, by

telephone, or by correspondence.

(2) If the conference is not conducted by telephone or

correspondence, the conference shall be conducted by audio-visual

telecommunication unless the Judge determines that conducting the

conference by personal attendance of any individual who is expected to

participate in the conference:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the conference; or

(iii) Would cost less than conducting the conference by audio-

visual telecommunication.

* * * * *

Sec. 1.141 [Amended]

8. Section 1.141 is amended as follows:

a. Paragraph (b) is revised to read as set forth below.

b. Paragraph (e) is amended by removing the words ``of these

rules'' both times they appear.

c. Paragraph (g)(7) is amended by adding the words ``or recording''

immediately after the word ``transcript'' each of the three times the

word ``transcript'' appears.

d. Paragraphs (g) and (h) are redesignated as paragraphs (h) and

(i) respectively.

e. New paragraph (g) is added to read as set forth below.

f. Redesignated paragraph (i) is revised to read as set forth

below.

Sec. 1.141 Procedure for hearing.

* * * * *

(b) Time, place, and manner. (1) If any material issue of fact is

joined by the pleadings, the Judge, upon motion of any party stating

that the matter is at issue and is ready for hearing, shall set a time,

place, and manner for hearing as soon as feasible after the motion is

filed, with due regard for the public interest and the convenience and

necessity of the parties. The Judge shall file with the Hearing Clerk a

notice stating the time and place of the hearing.3 This notice

shall state whether the hearing will be conducted by telephone, audio-

visual telecommunication, or personal attendance of any individual

expected to participate in the hearing. The Judge's determination

regarding the manner of the hearing shall be made in accordance with

paragraphs (b)(3) and (b)(4) of this section. If any change in the

time, place, or manner of the hearing is made, the Judge shall file

with the Hearing Clerk a notice of such change, which notice shall be

served upon the parties, unless it is made during the course of an oral

hearing and made part of the transcript or recording, or actual notice

is given to the parties.

\3\The place of hearing in a proceeding under the Packers and

Stockyards Act shall be set in accordance with the Packers and

Stockyards Act (7 U.S.C. 228 (e) and (f)). In essence, if there is

only one respondent, the hearing is to be held as near as possible

to the respondent's place of business or residence depending on the

availability of an appropriate location for conducting the hearing.

If there is more than one respondent and they have their places of

business or residence within a single unit of local government, a

single geographical area within a State, or a single State, the

hearing is to be held as near as possible to their places of

business or residence depending on the availability of an

appropriate location for conducting the hearing. If there is more

than one respondent, and they have their places of business or

residence distant from each other, 7 U.S.C. 228 (e) and (f) have no

applicability.

---------------------------------------------------------------------------

(2) (i) If any material issue of fact is joined by the pleadings

and the matter is at issue and is ready for hearing, any party may move

that the hearing be conducted by telephone or personal attendance of

any individual expected to attend the hearing rather than by audio-

visual telecommunication. Any motion that the hearing be conducted by

telephone or personal attendance of any individual expected to attend

the hearing must be accompanied by a memorandum in support of the

motion stating the basis for the motion and the circumstances that

require the hearing to be conducted other than by audio-visual

telecommunication.

(ii) Within 10 days after the Judge issues a notice stating the

manner in which the hearing is to be conducted, any party may move that

the Judge reconsider the manner in which the hearing is to be

conducted. Any motion for reconsideration must be accompanied by a

memorandum in support of the motion stating the basis for the motion

and the circumstances that require the hearing to be conducted other

than in accordance with the Judges's notice. [[Page 8456]]

(3) The hearing shall be conducted by audio-visual

telecommunication unless the Judge determines that conducting the

hearing by personal attendance of any individual who is expected to

participate in the hearing:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the hearing; or

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication. If the Judge determines that a hearing conducted by

audio-visual telecommunication would measurably increase the United

States Department of Agriculture's cost of conducting the hearing, the

hearing shall be conducted by personal attendance of any individual who

is expected to participate in the hearing or by telephone.

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

a motion by a party to the proceeding, conduct the hearing by telephone

if the Judge finds that a hearing conducted by telephone:

(i) Would provide a full and fair evidentiary hearing;

(ii) Would not prejudice any party; and

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication or personal attendance of any individual who is

expected to participate in the hearing.

* * * * *

(g) Written statements of direct testimony. (1) Except as provided

in paragraph (g)(2) of this section, each party must exchange with all

other parties a written narrative verified statement of the oral direct

testimony that the party will provide at any hearing to be conducted by

telephone; the direct testimony of each employee or agent of the party

that the party will call to provide oral direct testimony at any

hearing to be conducted by telephone; and the direct testimony of each

expert witness that the party will call to provide oral direct

testimony at any hearing to be conducted by telephone. The written

direct testimony of witnesses shall be exchanged by the parties at

least 10 days prior to the hearing. The oral direct testimony provided

by a witness at a hearing conducted by telephone will be limited to the

presentation of the written direct testimony, unless the Judge finds

that oral direct testimony which is supplemental to the written direct

testimony would further the public interest and would not constitute

surprise.

(2) The parties shall not be required to exchange testimony in

accordance with this paragraph if the hearing is scheduled to begin

less than 20 days after the Judge's notice stating the time of the

hearing.

* * * * *

(i) Transcript or recording. (1) Hearings to be conducted by

telephone shall be recorded verbatim by electronic recording device.

Hearings conducted by audio-visual telecommunication or the personal

attendance of any individual who is expected to participate in the

hearing shall be transcribed, unless the Judge finds that recording the

hearing verbatim would expedite the proceeding and the Judge orders the

hearing to be recorded verbatim. The Judge shall certify that to the

best of his or her knowledge and belief any recording made pursuant to

this paragraph with exhibits that were accepted into evidence is the

record of the hearing.

(2) If a hearing is recorded verbatim, a party requests the

transcript of a hearing or part of a hearing, and the Judge determines

that the disposition of the proceeding would be expedited by a

transcript of the hearing or part of a hearing, the Judge shall order

the verbatim transcription of the recording as requested by the party.

(3) Recordings or transcripts of hearings shall be made available

to any person at actual cost of duplication.

Sec. 1.142 [Amended]

9. Section 1.142 is amended as follows:

a. In paragraph (a), the heading is amended by adding the words

``or recording'' immediately after the word ``transcript''.

b. Paragraph (a)(1) is amended by adding the words ``or recording''

immediately after the word ``transcript''.

c. Paragraph (a)(2) is amended by adding the words ``or recording''

immediately after the word ``transcript'' both times the word

``transcript'' appears.

d. Paragraph (a)(3) is amended by adding the words ``or recording''

immediately after the word ``transcript'' each of the three times the

word ``transcript'' appears.

e. Paragraph (c)(2) is amended by removing the words ``of the

record'' and adding the words ``or recording'' in their place.

Sec. 1.144 [Amended]

10. Section 1.144 is amended as follows:

a. Paragraph (c)(2) is revised to read as set forth below.

b. Paragraphs (c)(9) and (c)(10) are redesignated as paragraphs

(c)(13) and (c)(14) respectively.

c. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) are added

to read as set forth below.

Sec. 1.144 Judges.

* * * * *

(c) * * *

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

hearing, adjourn the hearing, and change the time, place, and manner of

the hearing;

* * * * *

(9) Require each party to provide all other parties and the Judge

with a copy of any exhibit that the party intends to introduce into

evidence prior to any hearing to be conducted by telephone or audio-

visual telecommunication;

(10) Require each party to provide all other parties with a copy of

any document that the party intends to use to examine a deponent prior

to any deposition to be conducted by telephone or audio-visual

telecommunication;

(11) Require that any hearing to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties and the Judge are able to transmit and receive documents during

the hearing;

(12) Require that any deposition to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties are able to transmit and receive documents during the

deposition;

* * * * *

Sec. 1.145 [Amended]

11. Section 1.145 is amended as follows:

a. In paragraph (a), the reference to ``Sec. 1.141(g)(2)'' is

removed and ``Sec. 1.141(h)(2)'' added in its place.

b. In paragraph (c), the second sentence is amended by adding the

words ``or recording'' immediately after the word ``transcript''.

Sec. 1.147 [Amended]

12. In section 1.147, paragraph (c)(2) is amended by removing the

words ``of this part''; and paragraph (d) is amended by removing the

words ``of this part''.

Sec. 1.148 [Amended]

13. Section 1.148 is amended as follows:

a. Paragraph (b) is revised to read as set forth below:

b. In paragraph (f), the words ``or recording'' are added

immediately after the word ``transcript'' in the paragraph heading; in

paragraph (f)(1), once; in paragraph (f)(2), twice; and in paragraph

(f)(3), twice.

Sec. 1.148 Depositions.

* * * * * [[Page 8457]]

(b) Judge's order for taking deposition. (1) If the Judge finds

that the testimony may not be otherwise available at the hearing, the

taking of the deposition may be ordered. The order shall be filed with

the Hearing Clerk and shall state:

(i) The time of the deposition;

(ii) The place of the deposition;

(iii) The manner of the deposition (telephone, audio-visual

telecommunication, or personal attendance of those who are to

participate in the deposition);

(iv) The name of the officer before whom the deposition is to be

made; and

(v) The name of the deponent. The officer and the time, place, and

manner need not be the same as those suggested in the motion for the

deposition.

(2) The deposition shall be conducted by telephone unless the Judge

determines that conducting the deposition by audio-visual

telecommunication:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the deposition; or

(iii) Would cost less than conducting the deposition by telephone.

If the Judge determines that a deposition conducted by audio-visual

telecommunication would measurably increase the United States

Department of Agriculture's cost of conducting the deposition, the

deposition shall be conducted by personal attendance of any individual

who is expected to participate in the deposition or by telephone.

(3) If the deposition is not conducted by telephone, the deposition

shall be conducted by audio-visual telecommunication unless the Judge

determines that conducting the deposition by personal attendance of any

individual who is expected to participate in the deposition:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the deposition; or

(iii) Would cost less than conducting the deposition by telephone

or audio-visual telecommunication.

* * * * *

Sec. 1.149 [Amended]

14. In Sec. 1.149, paragraph (b), the last sentence is amended by

removing the words ``of this part''.

15. The authority citation for part 1, subpart I, is revised to

read as follows:

Authority: 7 U.S.C. 291, 292; 7 CFR 2.35, 2.41.

Sec. 1.161 [Amended]

16. Section 1.161 is amended as follows:

a. In paragraph (c), the words ``or her'' are added immediately

after the word ``his''.

b. In paragraph (g), the reference to ``1976 ed., appendix, p.

764'' is removed and ``App. (1988)'' added in its place.

c. In paragraph (g), the reference to ``7 CFR 2.35'' is removed and

``Sec. 2.35(a) of this chapter'' added in its place.

d. In paragraph (g), the words ``or she'' are added immediately

after the word ``he''.

e. Section 1.161 is amended by removing all alphabetical paragraph

designations and placing the definitions in alphabetical order.

Sec. 1.162 [Amended]

17. Section 1.162 is amended as follows:

a. In paragraph (b), in the first sentence, the word ``part'' is

removed and the word ``paragraph'' added in its place.

b. In paragraph (b), in the first sentence, the word ``he'' is

removed and the words ``the Secretary'' added in its place.

c. In paragraph (b), in the second sentence, the word ``he'' is

removed and ``, the Secretary'' added in its place.

Sec. 1.164 [Amended]

18. In Sec. 1.164, paragraph (a), the first sentence is amended by

removing the word ``his'' and adding the words ``the respondent's'' in

its place.

Sec. 1.167 [Amended]

19. Section 1.167 is revised to read as follows:

Sec. 1.167 Conference

(a) Purpose. Upon motion of a party or upon the Judge's own motion,

the Judge may direct the parties to attend a conference when the Judge

finds that the proceeding would be expedited by discussions on matters

of procedure and/or possible stipulations. The conference may include

discussions regarding:

(1) Simplification of the issues;

(2) Limitation of expert or other witnesses;

(3) The orderly presentation of evidence; and

(4) Any other matters that may expedite and aid in the disposition

of the proceeding.

(b) Manner of the Conference. (1) The conference shall be conducted

by telephone or correspondence unless the Judge determines that

conducting the conference by audio-visual telecommunication:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the conference; or

(iii) Would cost less than conducting the conference by telephone

or correspondence. If the Judge determines that a conference conducted

by audio-visual telecommunication would measurably increase the United

States Department of Agriculture's cost of conducting the conference,

the conference shall be conducted by personal attendance of any

individual who is expected to participate in the conference, by

telephone, or by correspondence.

(2) If the conference is not conducted by telephone or

correspondence, the conference shall be conducted by audio-visual

telecommunication unless the Judge determines that conducting the

conference by personal attendance of any individual who is expected to

participate in the conference:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the conference; or

(iii) Would cost less than conducting the conference by audio-

visual telecommunication.

Sec. 1.168 [Amended]

20. Section 1.168 is amended as follows:

a. In paragraph (e)(1), the first sentence is amended by removing

the word ``reported'' and adding the words ``transcribed or recorded''

in its place.

b. In paragraph (e)(2), the first sentence is amended by removing

the word ``he'' and by adding the words ``the party'' in its place.

c. In paragraph (e)(2), the second sentence is amended by adding

the words ``or recording'' immediately after the word ``transcript''.

d. Paragraph (e)(6) is amended by adding the words ``or recording''

immediately after the word ``transcript'' each of the three times the

word ``transcript'' appears.

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

(e), and (g) respectively.

f. New paragraphs (b), (f), and (h) are added to read as follows:

Sec. 1.168 Procedure for hearing.

* * * * *

(b) Manner of hearing. (1) The Judge shall file with the Hearing

Clerk a notice stating whether the hearing will be conducted by

telephone, audio-visual telecommunication, or personal attendance of

any individual expected to attend the hearing and the Judge's

determination regarding the manner of [[Page 8458]] hearing shall be

made in accordance with paragraphs (b)(3) and (b)(4) of this section.

If any change in the manner of the hearing is made, the Judge shall

file with the Hearing Clerk a notice of the change, which notice shall

be served on the parties, unless it is made during the course of an

oral hearing and made part of the transcript or recording, or actual

notice is given to the parties.

(2)(i) Any party may move that the hearing be conducted by

telephone or personal attendance of any individual expected to attend

the hearing rather than by audio-visual telecommunication. Any motion

that the hearing be conducted by telephone or personal attendance of

any individual expected to attend the hearing must be accompanied by a

memorandum in support of the motion stating the basis for the motion

and the circumstances that require the hearing to be conducted other

than by audio-visual telecommunication.

(ii) Within 10 days after the Judge issues a notice stating the

manner in which the hearing is to be conducted, any party may move that

the Judge reconsider the manner in which the hearing is to be

conducted. Any motion for reconsideration must be accompanied by a

memorandum in support of the motion stating the basis for the motion

and the circumstances that require the hearing to be conducted other

than in accordance with the Judges's notice.

(3) The hearing shall be conducted by audio-visual

telecommunication unless the Judge determines that conducting the

hearing by personal attendance of any individual who is expected to

participate in the hearing:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the hearing; or

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication. If the Judge determines that a hearing conducted by

audio-visual telecommunication would measurably increase the United

States Department of Agriculture's cost of conducting the hearing, the

hearing shall be conducted by personal attendance of any individual who

is expected to participate in the hearing or by telephone.

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

a motion by a party to the proceeding, conduct the hearing by telephone

if the Judge finds that a hearing conducted by telephone:

(i) Would provide a full and fair evidentiary hearing;

(ii) Would not prejudice any party; and

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication or personal attendance of any individual who is

expected to participate in the hearing.

* * * * *

(f) Written statements of direct testimony. (1) Except as provided

in paragraph (f)(2) of this section, each party must exchange with all

other parties a written narrative verified statement of the oral direct

testimony that the party will provide at any hearing to be conducted by

telephone; the direct testimony of each employee or agent of the party

that the party will call to provide oral direct testimony at any

hearing to be conducted by telephone; and the direct testimony of each

expert witness that the party will call to provide oral direct

testimony at any hearing to be conducted by telephone. The written

direct testimony of witnesses shall be exchanged by the parties at

least 10 days prior to the hearing. The oral direct testimony provided

by a witness at a hearing conducted by telephone will be limited to the

presentation of the written direct testimony, unless the Judge finds

that oral direct testimony which is supplemental to the written direct

testimony would further the public interest and would not constitute

surprise.

(2) The parties shall not be required to exchange testimony in

accordance with this paragraph if the hearing is scheduled to begin

less than 20 days after the Judge's notice stating the time of the

hearing.

* * * * *

(h) Transcript or recording. (1) Hearings to be conducted by

telephone shall be recorded verbatim by electronic recording device.

Hearings conducted by audio-visual telecommunication or the personal

attendance of any individual who is expected to participate in the

hearing shall be transcribed, unless the Judge finds that recording the

hearing verbatim would expedite the proceeding and the Judge orders the

hearing to be recorded verbatim. The Judge shall certify that to the

best of his or her knowledge and belief any recording made pursuant to

this paragraph with exhibits that were accepted into evidence is the

record of the hearing.

(2) If a hearing is recorded verbatim, a party requests the

transcript of a hearing or part of a hearing, and the Judge determines

that the disposition of the proceeding would be expedited by a

transcript of the hearing or part of a hearing, the Judge shall order

the verbatim transcription of the recording as requested by the party.

(3) Recordings or transcripts of hearings shall be made available

to any person at actual cost of duplication.

* * * * *

Sec. 1.169 [Amended]

21. Section 1.169 is amended as follows:

a. In paragraph (a), the heading is revised to read ``Corrections

to transcript or recording.''

b. In paragraph (a)(1), the words ``or recording'' are added

immediately after the word ``transcript''.

c. In paragraph (a)(2), the words ``or recording'' are added

immediately after the word ``transcript'' both times the word

``transcript'' appears.

d. In paragraph (a)(3), the words ``or recording'' are added

immediately after the word ``transcript'' each of the three times the

word ``transcript'' appears.

e. In paragraph (c), in the last sentence, the word ``herein'' is

removed.

Sec. 1.170 [Amended]

22. Section 1.170 is amended as follows:

a. In paragraph (a), in the second sentence, the reference to

``Sec. 1.167(e)(2)'' is removed and ``Sec. 1.168(g)(2)'' added in its

place.

b. In paragraph (c), the words ``or recording'' are added

immediately after the word ``transcript''.

c. In paragraph (i), in the last sentence, the word ``herein'' is

removed.

Sec. 1.171 [Amended]

23. Section 1.171 is amended by removing the word ``herein''.

Sec. 1.172 [Amended]

24. In Sec. 1.172, paragraph (a) is amended by adding the words

``or recording'' immediately after the word ``transcript''.

Sec. 1.173 [Amended]

25. Section 1.173 is amended as follows:

a. In paragraph (b)(1), the words ``or herself'' are added

immediately after the word ``himself''.

b. In paragraph (b)(2), the word ``he'' is removed and the words

``the Judge'' added in its place.

c. In paragraph (b)(2), the words ``or herself'' are added

immediately after the word ``himself''.

d. In paragraph (d), in the introductory language, the words ``or

her,'' are added immediately after the word ``him''.

e. Paragraph (d)(2) is revised to read as set forth below.

[[Page 8459]]

f. Paragraph (d)(7) is redesignated as paragraph (d)(9).

g. New paragraphs (d)(7) and (d)(8) are added to read as set forth

below.

h. In paragraph (e), the word ``his'' is removed and the words

``the Judge's'' added in its place.

i. In paragraph (e), the word ``him'' is removed and the words

``the Judge'' are added in its place both times the word ``him''

appears.

Sec. 1.173 Judges.

* * * * *

(d) * * *

(2) Set the time, place, and manner of any conference, set the

manner of the hearing, adjourn the hearing, and change the time, place,

and manner of the hearing;

* * * * *

(7) Require each party to provide all other parties and the Judge

with a copy of any exhibit that the party intends to introduce into

evidence prior to any hearing to be conducted by telephone or audio-

visual telecommunication;

(8) Require that any hearing to be conducted by telephone or audio-

visual telecommunication be conducted at locations at which the parties

and the Judge are able to transmit and receive documents during the

hearing;

* * * * *

Sec. 1.174 [Amended]

26. In Sec. 1.174, paragraph (c) is amended by adding the words

``or recording'' immediately after the word ``transcript''.

SUBTITLE B--REGULATIONS OF THE DEPARTMENT OF AGRICULTURE

CHAPTER I--AGRICULTURAL MARKETING SERVICE

PART 47--RULES OF PRACTICE UNDER THE PERISHABLE AGRICULTURAL

COMMODITIES ACT

27. The authority citation for part 47 is revised to read as

follows:

Authority: 7 U.S.C. 499o; 7 CFR 2.17(a)(8)(xiii),

2.50(a)(8)(xiii).

Sec. 47.2 [Amended]

28. Section 47.2 is amended as follows:

a. In paragraph (c), the words ``or her'' are added immediately

after the word ``his''.

b. In paragraph (e), the words ``or her'' are added immediately

after the word ``his''.

c. In paragraph (f), the words ``or her'' are added immediately

after the word ``his''.

d. In paragraph (h), the words ``or her'' are added immediately

after the word ``his''.

Sec. 47.3 [Amended]

29. Section 47.3 is amended as follows:

a. In paragraph (b)(1), in the first sentence, the word ``his'' is

removed and the words ``the Director's'' added in its place.

b. Paragraph (c) is revised to read as follows:

Sec. 47.3 Institution of proceedings.

* * * * *

(c) Status of person filing informal complaint. The person filing

an informal reparation complaint shall not be a party to any

disciplinary proceeding which may be instituted as a result of the

informal reparation complaint. The person filing an informal reparation

complaint shall have no legal status in the reparation proceeding,

except as he or she may be subpoenaed as a witness or deposed without

expense to him or her.

Sec. 47.4 [Amended]

30. In section 47.4, paragraph (b)(2) is amended by removing the

words ``of this part''.

Sec. 47.5 [Amended]

31. Section 47.5 is amended by removing the words ``of these

regulations in this part'' and ``of the regulations in this part'' and

revising the last sentence to read as follows:

Sec. 47.5 Scope and applicability of rules of practice.

* * * In addition, except to the extent that they are inconsistent

with Secs. 1.130 through 1.151 of this chapter, Secs. 47.1 through 47.5

and 47.46 are also applicable to procedures governing the filing and

disposition of formal complaints and other moving papers relating to

administrative proceedings to enforce the Act pursuant to Secs. 1.130

through 1.151 of this chapter.

Sec. 47.11 [Amended]

32. Section 47.11 is amended as follows:

a. In paragraph (b), in the second sentence, the word ``he'' is

removed and the words ``the Secretary'' are added in its place.

b. In paragraph (c), in the introductory language, the words

``elsewhere in the regulations'' are removed.

c. In paragraph (c), in the introductory language, the words ``or

her'' are added immediately after the word ``him''.

d. Paragraph (c)(2) is revised to read as set forth below.

e. Paragraph (c)(9) is redesignated as (c)(13).

f. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) are added

to read as set forth below.

g. In paragraph (d), the word ``him'' is removed and the words

``the examiner'' added in its place.

Sec. 47.11 Examiners.

* * * * *

(c) * * *

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

hearing, and change the time, place, and manner of the hearing;

* * * * *

(9) Require each party to provide all other parties and the

examiner with a copy of any exhibit that the party intends to introduce

into evidence prior to any hearing to be conducted by telephone or

audio-visual telecommunication;

(10) Require each party to provide all other parties with a copy of

any document that the party intends to use to examine a deponent prior

to any deposition to be conducted by telephone or audio-visual

telecommunication;

(11) Require that any hearing to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties and the examiner are able to transmit and receive documents

during the hearing;

(12) Require that any deposition to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties are able to transmit and receive documents during the

deposition;

* * * * *

Sec. 47.12 [Amended]

33. Section 47.12 is amended by removing the word ``he'' and adding

the words ``the petitioner'' each of the three times the word ``he''

appears.

Sec. 47.13 [Amended]

34. Section 47.13 is amended as follows:

a. In paragraph (a)(1), the words ``or recording'' are added

immediately after the word ``transcript''.

b. Paragraph (b) is revised to read as follows:

Sec. 47.13 Motions and requests.

* * * * *

(b) Certification to the Secretary. The submission or certification

of any motion, request, objection, or other question to the Secretary

prior to transmittal of the record to the Secretary as provided in this

part shall be made by and in the discretion of the examiner. The

examiner may either rule upon or certify the motion, request,

objection, or other question to the Secretary, but not both.

[[Page 8460]]

Sec. 47.14 [Amended]

35. Section 47.14 is revised to read as follows:

(a) In any proceeding in which it appears that a conference will

expedite the proceeding, the examiner, at any time prior to or during

the course of the oral hearing, may request the parties or their

counsel to appear at a conference before the examiner to consider:

(1) The simplification of the issues;

(2) The necessity or the desirability of amendments to the

pleadings;

(3) The possibility of obtaining stipulations of fact and of

documents which will avoid unnecessary proof;

(4) The limitation of the number of expert or other witnesses; or

(5) Such other matters as may expedite and aid in the disposition

of the proceeding.

(b) No transcript or recording of the conference shall be made. If

the conference is conducted by correspondence, the examiner shall

forward copies of letters and documents to the parties as circumstances

require. The correspondence in connection with a conference shall not

be part of the record. The examiner shall prepare and file for the

record a written summary of the action agreed upon or taken at the

conference, which shall incorporate any written stipulations or

agreements made by the parties at the conference or as a result of the

conference.

(c) Manner of the Conference. (1) The conference shall be conducted

by telephone or correspondence unless the examiner determines that

conducting the conference by audio-visual telecommunication:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the conference; or

(iii) Would cost less than conducting the conference by telephone

or correspondence. If the examiner determines that a conference

conducted by audio-visual telecommunication would measurably increase

the United States Department of Agriculture's cost of conducting the

conference, the conference shall be conducted by personal attendance of

any individual who is expected to participate in the conference, by

telephone, or by correspondence.

(2) If the conference is not conducted by telephone or

correspondence, the conference shall be conducted by audio-visual

telecommunication unless the examiner determines that conducting the

conference by personal attendance of any individual who is expected to

participate in the conference:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the conference; or

(iii) Would cost less than conducting the conference by audio-

visual telecommunication.

Sec. 47.15 [Amended]

36. Section 47.15 is amended as follows:

a. Paragraph (c) is revised to read as set forth below.

b. In paragraph (d)(2), the word ``he'' is removed and the words

``the party'' are added in its place.

c. In paragraph (d)(2), the words ``or her'' are added immediately

after the word ``his''.

d. In paragraph (d)(3)(i), the words ``or her'' are added

immediately after the word ``him''.

e. In paragraph (f)(2)(i), the word ``he'' is removed and the words

``the party'' are added in its place.

f. In paragraphs (f)(2)(i), the words ``or recording'' are added

immediately after the word ``transcript'' both times the word

``transcript'' appears.

g. In paragraph (f)(6)(ii), ``recording,'' is added immediately

after ``document,'' both times ``document,'' appears.

h. In paragraph (f)(8), the words ``or recording'' are added

immediately after the word ``transcript'' the three times the word

``transcript'' appears.

i. In paragraph (g), in the first sentence, the words ``hereinafter

provided'' are removed and the words ``provided in this part'' are

added in their place.

j. In paragraph (g), in the second sentence, the word ``he'' is

removed and the words ``the examiner'' are added in its place.

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

(i) respectively.

l. A new paragraph (f) is added to read as set forth below.

m. Redesignated paragraph (i) is revised to read as set forth

below.

Sec. 47.15 Oral hearing before examiner.

* * * * *

(c) Time, place, and manner. (1) If and when the proceeding has

reached the stage of oral hearing, the examiner, giving careful

consideration to the convenience of the parties, shall set a time for

hearing and shall file with the hearing clerk a notice stating the time

and place of hearing. Unless the parties otherwise agree, the place of

the hearing shall be the place in which the respondent is engaged in

business. This notice shall state whether the hearing will be conducted

by telephone, audio-visual telecommunication, or personal attendance of

any individual expected to participate in the hearing and the

examiner's determination regarding the manner of the hearing shall be

made in accordance with paragraphs (c)(3) and (c)(4) of this section.

If any change in the time, place, or manner of the hearing is made, the

examiner shall file with the hearing clerk a notice of the change. The

notice of any change in the time, place, or manner of the hearing shall

be served on the parties, unless it is made during the course of an

oral hearing and made part of the transcript or recording, or actual

notice is given to the parties.

(2)(i) If and when the proceeding has reached the stage of oral

hearing, any party may move that the hearing be conducted by telephone

or personal attendance of any individual expected to attend the hearing

rather than by audio-visual telecommunication. Any motion that the

hearing be conducted by telephone or personal attendance of any

individual expected to attend the hearing must be accompanied by a

memorandum in support of the motion stating the basis for the motion

and the circumstances that require the hearing to be conducted other

than by audio-visual telecommunication.

(ii) Within 10 days after the examiner issues a notice stating the

manner in which the hearing is to be conducted, any party may move that

the examiner reconsider the manner in which the hearing is to be

conducted. Any motion for reconsideration must be accompanied by a

memorandum in support of the motion stating the basis for the motion

and the circumstances that require the hearing to be conducted other

than in accordance with the examiner's notice.

(3) The hearing shall be conducted by audio-visual

telecommunication unless the examiner determines that conducting the

hearing by personal attendance of any individual expected to attend the

hearing:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the hearing; or

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication. If the examiner determines that a hearing conducted

by audio-visual telecommunication would measurably increase the United

States Department of Agriculture's cost of conducting the hearing, the

hearing shall be conducted by personal attendance of any individual who

is expected to participate in the hearing or by telephone.

[[Page 8461]]

(4) The examiner may, in his or her sole discretion or in response

to a motion by a party to the proceeding, conduct the hearing by

telephone if the examiner finds that a hearing conducted by telephone:

(i) Would provide a full and fair evidentiary hearing;

(ii) Would not prejudice any party; and

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication or personal attendance of any individual who is

expected to participate in the hearing.

* * * * *

(f) Written statements of direct testimony. (1) Except as provided

in paragraph (f)(2) of this section, each party must exchange with all

other parties a written narrative verified statement of the oral direct

testimony that the party will provide at any hearing to be conducted by

telephone; the direct testimony of each employee or agent of the party

that the party will call to provide oral direct testimony at any

hearing to be conducted by telephone; and the direct testimony of each

expert witness that the party will call to provide oral direct

testimony at any hearing to be conducted by telephone. The written

direct testimony of witnesses shall be exchanged by the parties at

least 10 days prior to the hearing. The oral direct testimony provided

by a witness at a hearing conducted by telephone will be limited to the

presentation of the written direct testimony, unless the examiner finds

that oral direct testimony which is supplemental to the written direct

testimony would further the public interest and would not constitute

surprise.

(2) The parties shall not be required to exchange testimony in

accordance with this paragraph if the hearing is scheduled to begin

less than 20 days after the examiner's notice stating the time of the

hearing.

* * * * *

(i) Transcript or recording. (1) Hearings to be conducted by

telephone shall be recorded verbatim by electronic recording device.

Hearings conducted by audio-visual telecommunication or the personal

attendance of any individual who is expected to participate in the

hearing shall be transcribed, unless the examiner finds that recording

the hearing verbatim would expedite the proceeding and the examiner

orders the hearing to be recorded verbatim.

(2) If a hearing is recorded verbatim, a party requests the

transcript of a hearing or part of a hearing, and the examiner

determines that the disposition of the proceeding would be expedited by

a transcript of the hearing or part of a hearing, the examiner shall

order the verbatim transcription of the recording as requested by the

party.

(3) If a reporter transcribes or records the testimony at a

hearing, the reporter shall deliver the original transcript or

recording, with exhibits thereto attached, to the examiner, who will

retain such copy for the official file and for use in preparing his or

her report. The reporter will also deliver to the examiner such other

copy or copies as may be ordered by the Department, which copy or

copies the examiner will forward to the hearing clerk.

(4) Parties to the proceeding, or others, who desire a copy of the

transcript or recording of the hearing may place orders at the hearing

with the reporter, who will furnish and deliver such copies direct to

the purchaser upon payment of the applicable rate.

* * * * *

Sec. 47.16 [Amended]

37. Section 47.16 is amended as follows:

a. Paragraphs (a)(3) and (a)(4) are revised and (a)(5) and (a)(6)

are added to read as set forth below.

b. Paragraph (b) is revised to read as set forth below.

c. Paragraph (d)(1) is revised to read as set forth below.

d. In paragraph (e), in the first sentence, the word ``him'' is

removed and the words ``the officer'' added in its place.

e. In paragraph (e), in the second sentence, the word ``He'' is

removed and the words ``The officer'' added in its place.

Sec. 47.16 Depositions.

(a) * * *

(3) the proposed time of the deposition which, unless otherwise

agreed, shall be at least 30 days after the date of the mailing of the

application; (4) the proposed place of the deposition; (5) the proposed

manner in which the deposition is to be conducted (telephone, audio-

visual telecommunication, or by personal attendance of the individuals

who are expected to participate in the deposition); and (6) the reasons

for taking the deposition.

(b) Examiner's order for taking deposition. (1) If, after

examination of the application, the examiner is of the opinion that the

deposition should be taken, the examiner shall order the taking of the

deposition. The order shall be filed with the hearing clerk and shall

be served by the hearing clerk upon the parties in accordance with

Sec. 47.4.

(2) The order shall state:

(i) The time of the deposition (which unless otherwise agreed shall

not be less than 20 days after the filing of the order);

(ii) The place of the deposition;

(iii) The manner of the deposition (telephone, audio-visual

telecommunication, or personal attendance of those who are to

participate in the deposition);

(iv) The name of the officer before whom the deposition is to be

made; and

(v) The name of the deponent.

(3) The deposition shall be conducted in the manner (telephone,

audio-visual telecommunication, or personal attendance of those who are

to participate in the deposition) agreed to by the parties.

(4) If the parties cannot agree on the manner in which the

deposition is to be conducted:

(i) The deposition shall be conducted by telephone unless the

examiner determines that conducting the deposition by audio-visual

telecommunication:

(A) Is necessary to prevent prejudice to a party;

(B) Is necessary because of a disability of any individual expected

to participate in the deposition; or

(C) Would cost less than conducting the deposition by telephone.

(ii) If the deposition is not conducted by telephone, the

deposition shall be conducted by audio-visual telecommunication unless

the examiner determines that conducting the deposition by personal

attendance of any individual who is expected to participate in the

deposition:

(A) Is necessary to prevent prejudice to a party;

(B) Is necessary because of a disability of any individual expected

to participate in the deposition; or

(C) Would cost less than conducting the deposition by telephone or

audio-visual telecommunication.

* * * * *

(d) Procedure on examination. (1) The deponent shall be examined

under oath or affirmation and shall be subject to cross-examination.

The testimony of the deponent shall be recorded by the officer or some

person under the officer's direction. In lieu of oral examination,

parties may transmit written questions to the officer prior to

examination and the officer shall propound the written questions to the

deponent.

* * * * * [[Page 8462]]

Sec. 47.17 [Amended]

38. In Sec. 47.17, paragraph (c), the last sentence is amended by

removing the words ``of this part''.

Sec. 47.19 [Amended]

39. Section 47.19 is amended as follows:

a. In paragraph (a), the heading is revised to read ``Certification

of transcript or recording.''.

b. In paragraph (a), the words ``or recording'' are added

immediately after the word ``transcript'' each of the five times the

word ``transcript'' appears.

c. In paragraph (a), the words ``or her'' are added immediately

after the word ``his'' both times time the word ``his'' appears.

d. In paragraph (a) the word ``he'' is removed and the words ``the

examiner'' added in its place both times the word ``he'' appears.

e. In paragraph (b), in the second sentence, the words ``or she''

are added immediately after the word ``he''.

f. In paragraph (d)(3), the word ``his'' is removed and the words

``the party's'' are added in its place.

g. In paragraph (d)(6), in the first sentence, the words ``or her''

are added immediately after the word ``his''.

h. In paragraph (e), the words ``or her'' are added immediately

after the word ``his''.

Sec. 47.20 [Amended]

40. Section 47.20 is amended as follows:

a. In paragraph (b)(2), the words ``or she'' are added immediately

after the word ``he'' both times the word ``he'' appears.

b. In paragraph (h), ``(or she)'' is added immediately after the

word ``he'' both times the word ``he'' appears.

c. In paragraph (k), the words ``or her'' are added immediately

after the word ``his''.

d. In paragraph (l), the words ``or her'' are added immediately

after the word ``his''.

Sec. 47.21 [Amended]

41. Section 47.21 is amended by adding the words ``or recording''

immediately after the word ``transcript'' and by removing the word

``prehearing''.

Sec. 47.22 [Amended]

42. In Sec. 47.22, paragraph (a) is amended by removing the

reference to ``Sec. 47.15(g)'' and adding ``Sec. 47.15(h)'' in its

place.

Sec. 47.23 [Amended]

43. Section 47.23 is amended by removing the word ``he'' and adding

the words ``the Secretary'' in its place each of the three times the

word ``he'' appears; and by adding the words ``or her'' immediately

after the word ``his'' each of the three times the word ``his''

appears.

Sec. 47.24 [Amended]

44. In Sec. 47.24, paragraph (a) is amended by removing the word

``he'' and adding the words ``the Secretary'' in its place both times

the word ``he'' appears.

Sec. 47.25 [Amended]

45. In Sec. 47.25, paragraph (e) is amended by removing the words

``the regulations in'', and by adding the words ``or her'' immediately

after the word ``him''.

Sec. 47.46 [Amended]

46. Section 47.46 is amended by removing the word ``he'' and adding

the words ``the Secretary'' both times the word ``he'' appears; and

adding the words ``or her'' immediately after the word ``his''.

Sec. 47.47 [Amended]

47. Section 47.47 is amended as follows:

a. In the introductory language, the reference to ``7 CFR 47.2 (a)

through (h)'' is removed and ``Secs. 47.2 (a) through (h)'' added in

its place.

b. In the introductory language, the reference to ``7 CFR 47.47

through 47.68'' is removed and ``Secs. 47.47 through 47.68'' added in

its place.

c. Section 47.47 is amended by removing all paragraph designations

and placing the definitions in alphabetical order.

Sec. 47.49 [Amended]

48. In section 47.49, paragraph (f) is revised to read as follows:

Sec. 47.49 Determinations.

* * * * *

(f)(1) The presiding officer will order that an oral hearing be

held if one is requested by the petitioner, or if the presiding officer

determines that an oral hearing is necessary. A verbatim record shall

be made of the hearing. In the event that an oral hearing is neither

requested by the petitioner, nor ordered by the presiding officer, the

presiding officer shall provide the petitioner a copy of the official

file, and give the parties an opportunity to submit documents and other

evidence to support their positions, as well as written arguments

pertaining to their positions.

(2) If an oral hearing is held, it shall be conducted by audio-

visual telecommunication unless the presiding officer determines that

conducting the hearing by the personal attendance of any individual

expected to attend the hearing:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the hearing; or

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication. If the presiding officer determines that a hearing

conducted by audio-visual telecommunication would measurably increase

the United States Department of Agriculture's cost of conducting the

hearing, the hearing shall be conducted by personal attendance of any

individual who is expected to participate in the hearing or by

telephone.

(3) The presiding officer may, in his or her sole discretion or in

response to a motion by a party to the proceeding, conduct the hearing

by telephone if the presiding officer finds that a hearing conducted by

telephone:

(i) Would provide a full and fair evidentiary hearing;

(ii) Would not prejudice any party; and

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication or personal attendance of any individual who is

expected to participate in the hearing.

Sec. 47.53 [Amended]

49. Section 47.53 is revised to read as follows:

Sec. 47.53 Notice of time, place, and manner of hearing and

provision of the official file.

(a) Upon assignment of the matter for oral hearing, the presiding

officer shall notify the parties by serving them with copies of the

notice of hearing, stating the time and place of the hearing. The

notice shall state whether the oral hearing will be conducted by

telephone, audio-visual telecommunication, or personal attendance of

any individual expected to attend the hearing, and the presiding

officer's determination regarding the manner of the hearing shall be

made in accordance with Sec. 47.49(f)(2) and Sec. 47.49(f)(3). The

parties will be notified as soon as possible of any change in the time,

place, or manner of the hearing.

(b) If the presiding officer orders an oral hearing, any party may

move that the hearing be conducted by telephone or personal attendance

of any individual expected to attend the hearing rather than by audio-

visual telecommunication. Any motion that the hearing be conducted by

telephone or personal attendance of any individual

[[Page 8463]] expected to attend the hearing must be accompanied by a

memorandum in support of the motion stating the basis for the motion

and the circumstances that require the hearing to be conducted other

than by audio-visual telecommunication.

(c) Within 10 days after the presiding officer issues a notice

stating the manner in which the hearing is to be conducted, any party

may move that the presiding officer reconsider the manner in which the

hearing is to be conducted. Any motion for reconsideration must be

accompanied by a memorandum in support of the motion stating the basis

for the motion and the circumstances that require the hearing to be

conducted other than in accordance with the presiding officer's notice.

(d) Upon assignment of the matter for oral hearing, the presiding

officer shall make the official file a part of the records of the

proceeding and shall provide the petitioner with a copy of the official

file.

Sec. 47.56 [Amended]

50. Section 47.56 is amended as follows:

a. Paragraph (b) is revised to read as set forth below.

b. Paragraphs (g) and (h) are redesignated as paragraphs (i) and

(j) respectively.

c. New paragraphs (g) and (h) are added to read as set forth below.

Sec. 47.56 Powers of presiding officer.

* * * * *

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

hearing, and change the time, place, and manner of the hearing;

* * * * *

(g) Require each party to provide all other parties and the

presiding officer with a copy of any exhibit that the party intends to

introduce into evidence prior to any hearing to be conducted by

telephone or audio-visual telecommunication;

(h) Require that any hearing to be conducted by telephone or audio-

visual telecommunication be conducted at locations at which the parties

and the presiding officer are able to transmit and receive documents

during the hearing;

* * * * *

Sec. 47.58 [Amended]

51. Section 47.58 is amended as follows:

a. In paragraph (b), the words ``or recording'' are added

immediately after the word ``transcript'' both times the word

``transcript'' appears.

b. In paragraph (f), the words ``or recording'' are added

immediately after the word ``transcript'' both times the word

``transcript'' appears.

c. Paragraphs (a), (b), (c), (d), (e), and (f) are redesignated as

(b), (c), (d), (e), (f), and (g) respectively.

d. A new paragraph (a) is added to read as follows:

Sec. 47.58 Evidence.

(a) Written statements of direct testimony. (1) Except as provided

in paragraph (a)(2) of this section, each party must exchange with all

other parties a written narrative verified statement of the oral direct

testimony that the party will provide at any hearing to be conducted by

telephone; the direct testimony of each employee or agent of the party

that the party will call to provide oral direct testimony at any

hearing to be conducted by telephone; and the direct testimony of each

expert witness that the party will call to provide oral direct

testimony at any hearing to be conducted by telephone. The written

direct testimony of witnesses shall be exchanged by the parties at

least 10 days prior to the hearing. The oral direct testimony provided

by a witness at a hearing conducted by telephone will be limited to the

presentation of the written direct testimony, unless the presiding

officer finds that oral direct testimony which is supplemental to the

written direct testimony would further the public interest and would

not constitute surprise.

(2) The parties shall not be required to exchange testimony in

accordance with this paragraph if the hearing is scheduled to begin

less than 20 days after the presiding officer's notice stating the time

of the hearing.

* * * * *

Sec. 47.59 [Amended]

52. Section 47.59 is amended as follows:

a. The section heading is revised to read ``Filing transcripts or

recordings and exhibits.''

b. In section 47.59, the words ``or recording'' are added

immediately after the word ``transcript'' each of the five times the

word ``transcript'' appears.

Sec. 47.60 [Amended]

53. Section 47.60 is revised to read as follows:

Sec. 47.60 Transcript or recording.

(a) Hearings to be conducted by telephone shall be recorded

verbatim by electronic recording device. Hearings conducted by audio-

visual telecommunication or the personal attendance of any individual

who is expected to participate in the hearing shall be transcribed,

unless the presiding officer finds that recording the hearing verbatim

would expedite the proceeding and the presiding officer orders the

hearing to be recorded verbatim. The presiding officer shall certify

that to the best of his or her knowledge and belief any recording made

pursuant to this paragraph with exhibits that were accepted into

evidence is the record of the hearing.

(b) If a hearing is recorded verbatim, a party requests the

transcript of a hearing or part of a hearing, and the presiding officer

determines that the disposition of the proceeding would be expedited by

a transcript of the hearing or part of a hearing, the presiding officer

shall order the verbatim transcription of the recording as requested by

the party.

(c) Parties to the proceeding who desire a copy of the transcript

or recording of the hearing may place orders at the hearing with the

reporter who will furnish and deliver such copies direct to the

purchaser upon payment therefore at the rate provided by the contract

between the reporter and the Department for such reporting services.

Sec. 47.62 [Amended]

54. In Sec. 47.62, the last sentence is amended by removing the

words ``of this part''.

PART 50--RULES OF PRACTICE GOVERNING WITHDRAWAL OF INSPECTION AND

GRADING SERVICES

55. The authority citation for part 50 is revised to read as

follows:

Authority: 7 U.S.C. 1621 et seq.; 7 CFR 2.35, 2.41.

56. Part 50 is revised to read as follows:

PART 50--RULES OF PRACTICE GOVERNING WITHDRAWAL OF INSPECTION AND

GRADING SERVICES

Subpart A--General

Sec.

50.1 Scope and applicability of rules of practice.

Subpart B--Supplemental Rules of Practice

50.10 Definitions.

50.11 Conditional withdrawal of service.

50.12 Summary suspension of service.

Subpart A--General

Sec. 50.1 Scope and applicability of rules of practice.

(a) The Rules of Practice Governing Formal Adjudicatory Proceedings

Instituted by the Secretary Under Various Statutes set forth in

Secs. 1.130 [[Page 8464]] through 1.151 of this title are rules of

practice applicable to adjudicatory proceedings under the regulations

promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of

inspection, certification, or grading service. In addition, the

supplemental rules of practice in subpart B of this part shall be

applicable to adjudicatory proceedings under the regulations

promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of

inspection, certification, or grading service.

(b) Neither the rules of practice in Secs. 1.130 through 1.151 of

this title nor the supplemental rules of practice in subpart B of this

part modify existing procedures for refusing to inspect, grade, or

certify a specific lot of a product because of adulteration, improper

preparation of the lot for grading, improper presentation of the lot

for grading, or because of failure to comply with any similar

requirements set forth in applicable regulations.

Subpart B--Supplemental Rules of Practice

Sec. 50.10 Definitions.

Director. The Director of the Division or any employee of the

Division to whom authority to act in his or her stead is delegated.

Division. The Division of the Agricultural Marketing Service,

United States Department of Agriculture, initiating the withdrawal of

inspection, certification, or grading service.

Mailing. Depositing an item in the United States mail with postage

affixed and addressed as necessary to cause the item to be delivered to

the address shown by ordinary mail, certified mail, or registered mail.

Sec. 50.11 Conditional withdrawal of service.

(a) The Director may withdraw grading or inspection service from a

person for correctable cause. The grading or inspection service

withdrawn, after appropriate corrective action is taken, will be

restored immediately, or as soon thereafter as a grader or inspector

can be made available.

(b) Written notice of withdrawal of grading or inspection service

under this section shall be given to the person from whom grading or

inspection services will be withdrawn in advance of withdrawal,

whenever it is feasible to provide such an advance written notice. If

advance written notice is not given, the withdrawal action and the

reasons for the withdrawal shall be confirmed as promptly as

circumstances permit, unless the deficiency which is the basis for the

withdrawal has already been corrected.

Sec. 50.12 Summary suspension of service.

(a) General. In any situation in which the integrity of grading or

inspection service would be jeopardized if the grading or inspection

service were continued pending a decision in a proceeding to withdraw

grading or inspection service, such service to the respondent may be

suspended effective on the third day after mailing of a written notice

of the suspension of service to the respondent's last known address or

designated address or upon actual receipt of the written notice,

whichever is earlier.

(b) Actual or threatened physical violence. In any case of actual

or threatened physical violence to an inspector or grader, grading and

inspection services to the respondent may be suspended prior to the

transmittal of the written notice of suspension to the respondent. A

written notice shall be given as promptly as circumstances permit.

PART 51 [AMENDED]

57. The authority citation for part 51 is revised to read as

follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50; unless

otherwise noted.

Sec. 51.46 [Amended]

58. Section 51.46 is amended by revising the last sentence to read

``The Rules of Practice Governing Formal Adjudicatory Proceedings

Instituted by the Secretary Under Various Statutes set forth in

Secs. 1.130 through 1.151 of this title and the Supplemental Rules of

Practice in part 50 of this chapter shall govern proceedings conducted

pursuant to this section.''

PART 52 [AMENDED]

59. The authority citation for part 52 is revised to read as

follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.

Sec. 52.54 [Amended]

60. In Sec. 52.54, paragraph (a) is amended by revising the last

sentence to read ``The Rules of Practice Governing Formal Adjudicatory

Proceedings Instituted by the Secretary Under Various Statutes set

forth in Secs. 1.130 through 1.151 of this title and the Supplemental

Rules of Practice in part 50 of this chapter shall be applicable to

such debarment action.''

PART 53-LIVESTOCK (GRADING, CERTIFICATION, AND STANDARDS)

61. The authority citation for part 53 is revised to read as

follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.

Sec. 53.13 [Amended]

62. In Sec. 53.13, paragraph (a)(2) is revised to read as follows:

Sec. 53.13 Denial or withdrawal of service.

(a) * * *

(2) Procedure. All cases arising under this paragraph shall be

conducted in accordance with the Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by the Secretary Under Various

Statutes set forth in Secs. 1.130 through 1.151 of this title and the

Supplemental Rules of Practice in part 50 of this chapter.

* * * * *

PART 54--MEATS, PREPARED MEATS, AND MEAT PRODUCTS (GRADING,

CERTIFICATION, AND STANDARDS)

63. The authority citation for part 54 is revised to read as

follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.

Sec. 54.11 [Amended]

64. In Sec. 54.11, paragraph (a)(2) is revised to read as follows:

Sec. 54.11 Denial or withdrawal of service.

(a) * * *

(2) Procedure. All cases arising under this paragraph shall be

conducted in accordance with the Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by the Secretary Under Various

Statutes set forth in Secs. 1.130 through 1.151 of this title and the

Supplemental Rules of Practice in part 50 of this chapter.

* * * * *

PART 97--PLANT VARIETY PROTECTION

65. The authority citation for part 97 is revised to read as

follows:

Authority: 7 U.S.C. 2321, 2326, 2352, 2353, 2356, 2371, 2402(b),

2403, 2426, 2427, 2501(c); 7 CFR 2.17, 2.50.

Sec. 97.300 [Amended]

66. In Sec. 97.300, paragraph (d), the last sentence is revised to

read ``If a formal hearing is requested, the proceeding shall be

conducted in accordance with the Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by the Secretary Under Various

Statutes set forth in Secs. 1.130 through 1.151 of this title.''

[[Page 8465]]

TITLE 9--[AMENDED]

Chapter II--Grain Inspection, Packers and Stockyards Administration

(Packers and Stockyards Programs), Department of Agriculture

67. The heading of 9 CFR chapter II is revised to read as set forth

above.

68. In 9 CFR chapter II, consisting of parts 200 to 205, all

references to ``Packers and Stockyards Administration'' are revised to

read ``Grain Inspection, Packers and Stockyards Administration (Packers

and Stockyards Programs)'' and all references to ``P&SA'' are revised

to read ``GIPSA''.

PART 202--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS

AND STOCKYARDS ACT

69. The authority citation for part 202 is revised to read as

follows:

Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e), 2.56.

Sec. 202.102 [Amended]

70. Section 202.102 is amended by removing all paragraph

designations and placing the definitions in alphabetical order.

Sec. 202.103 [Amended]

71. In Sec. 202.103, paragraph (a), the second sentence is amended

by removing the words ``the provisions of''.

Sec. 202.105 [Amended]

72. In Sec. 202.105, paragraph (f)(2) is amended by removing the

words ``of this part''.

Sec. 202.109 [Amended]

73. Section 202.109 is amended as follows:

a. Paragraph (a)(5) is revised to read as set forth below.

b. In paragraph (c)(2), in the second sentence, the word ``pace''

is removed and the word ``place'' is added in its place.

c. Paragraph (d) is revised to read as set forth below.

d. In paragraph (g), the words ``or recording'' are added

immediately after the word ``transcript'' each of the four times the

word ``transcript'' appears.

e. In paragraph (h), the words ``or recording'' are added

immediately after the word ``transcript'' each of the four times the

word ``transcript'' appears.

f. In paragraph (i), the words ``or recording'' are added

immediately after the word ``transcript'' each of the six times the

word ``transcript'' appears and, in the first sentence, the words ``the

provisions of'' are removed.

g. In paragraph (j), the word ``therein'' is removed and the words

``in the deposition'' added in its place.

h. In paragraph (l), the words ``or recording'' are to be added

immediately after the word ``transcript'' both times the word

``transcript'' appears.

Sec. 202.109 Rule 9: Depositions.

(a) * * *

(5) if oral, a suggested time and place where the proposed

deposition is to be made and a suggested manner in which the proposed

deposition is to be conducted (telephone, audio-visual

telecommunication, or by personal attendance of the individuals who are

expected to participate in the deposition). The application for an

order for the taking of testimony by deposition shall be made in

writing, unless it is made orally on the record at an oral hearing.

* * * * *

(d) Order. (1) The presiding officer, if satisfied that good cause

for taking the deposition is present, may order the taking of the

deposition.

(2) The order shall be served on the parties and shall include:

(i) The name and address of the officer before whom the deposition

is to be made;

(ii) The name of the deponent;

(iii) Whether the deposition will be oral or on written questions;

(iv) If the deposition is oral, the manner in which the deposition

is to be conducted (telephone, audio-visual telecommunication, or

personal attendance of those who are to participate in the deposition);

and

(v) The time, which shall not be less than 20 days after the

issuance of the order, and place.

(3) The officer, time, place, and manner of the deposition as

stated in the presiding officer's order need not be the same as the

officer, time, place, and manner suggested in the application.

(4) The deposition shall be conducted in the manner (telephone,

audio-visual telecommunication, or personal attendance of those who are

to participate in the deposition) agreed to by the parties.

(5) If the parties cannot agree on the manner in which the

deposition is to be conducted:

(i) The deposition shall be conducted by telephone unless the

presiding officer determines that conducting the deposition by audio-

visual telecommunication:

(A) Is necessary to prevent prejudice to a party;

(B) Is necessary because of a disability of any individual expected

to participate in the deposition; or

(C) Would cost less than conducting the deposition by telephone.

(ii) If the deposition is not conducted by telephone, the

deposition shall be conducted by audio-visual telecommunication unless

the presiding officer determines that conducting the deposition by

personal attendance of any individual who is expected to participate in

the deposition:

(A) Is necessary to prevent prejudice to a party;

(B) Is necessary because of a disability of any individual expected

to participate in the deposition; or

(C) Would cost less than conducting the deposition by telephone or

audio-visual telecommunication.

* * * * *

Sec. 202.110 [Amended]

74. Section 202.110 is amended as follows:

a. In paragraph (a), the last sentence, the words ``or recording''

are added immediately after the word ``transcript''.

b. Paragraph (b) is revised to read as set forth below.

Sec. 202.110 Rule 10: Prehearing Conference.

* * * * *

(b) Manner of the prehearing conference. (1) The prehearing

conference shall be conducted by telephone or correspondence unless the

presiding officer determines that conducting the prehearing conference

by audio-visual telecommunication:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the prehearing conference; or

(iii) Would cost less than conducting the prehearing conference by

telephone or correspondence. If the presiding officer determines that a

prehearing conference conducted by audio-visual telecommunication would

measurably increase the United States Department of Agriculture's cost

of conducting the prehearing conference, the prehearing conference

shall be conducted by personal attendance of any individual who is

expected to participate in the prehearing conference, by telephone, or

by correspondence.

(2) If the prehearing conference is not conducted by telephone or

correspondence, the prehearing conference shall be conducted by audio-

visual telecommunication unless the presiding officer determines that

conducting the prehearing conference by personal attendance of any

individual who is expected to participate in the prehearing conference:

(i) Is necessary to prevent prejudice to a party; [[Page 8466]]

(ii) Is necessary because of a disability of any individual

expected to participate in the prehearing conference; or

(iii) Would cost less than conducting the prehearing conference by

audio-visual telecommunication.

Sec. 202.112 [Amended]

75. Section 202.112 is be amended as follows:

a. Paragraph (a) is revised to read as set forth below.

b. Paragraph (b) is revised to read as set forth below.

c. In paragraph (e)(2), in the second sentence, the words ``or

recording'' are added immediately after the word ``transcript'', and

the word ``thereon'' is removed and the words ``on objections'' added

in its place.

d. In paragraph (e)(3), the words ``or recording'' are added

immediately after the word ``transcript'' both times the word

``transcript'' appears.

e. In paragraph (e)(5), the word ``thereof'' is removed and the

words ``of the Department'' added in its place, and the word

``therein'' is removed and the words ``in the record of the

Department'' added in its place.

f. Paragraphs (e), (f), (g), (h), (i), and (j) are redesignated as

(f), (g), (h), (i), (j), and (k) respectively.

g. New paragraph (e) is added to read as set forth below.

h. Redesignated paragraph (i) is revised to read as set forth

below.

i. In redesignated (j), the heading is revised to read ``Filing,

and presiding officer's certificate, of the transcript or recording.'';

the words ``or recording'' are added immediately after the word

``transcript'' each of the 10 times the word ``transcript'' appears;

and the words ``or recorded'' are added immediately after the word

``transcribed''.

j. In redesignated paragraph (k), the heading is revised to read

``Keeping of copies of the transcript or recording.''; and the words

``or recording'' are added immediately after the word ``transcript''

each of the three times the word ``transcript'' appears.

Sec. 202.112 Rule 12: Oral hearing.

(a) Time, place, and manner. (1) If and when the proceeding has

reached the stage where an oral hearing is to be held, the presiding

officer shall set a time, place, and manner for oral hearing. The time

shall be set based upon careful consideration to the convenience of the

parties. The place shall be set in accordance with paragraph (a)(2) of

this section and careful consideration to the convenience of the

parties. The manner in which the hearing is to be conducted shall be

determined in accordance with paragraphs (a)(3) and (a)(4) of this

section.

(2) The place shall be set in accordance with paragraphs (e) and

(f) of section 407 of the Act, if applicable. In essence, under

paragraphs (e) and (f) of section 407 of the Act, if the complainant

and the respondent, or all of the parties, if there are more than two,

have their principal places of business or residence within a single

unit of local government, a single geographical area within a State, or

a single State, the oral hearing is to be held as near as possible to

such places of business or residence, depending on the availability of

an appropriate location for conducting the hearing. If the parties have

such places of business or residence distant from each other, then

paragraphs (e) and (f) of section 407 of the Act are not applicable.

(3) The oral hearing shall be conducted by audio-visual

telecommunication unless the presiding officer determines that

conducting the oral hearing by personal attendance of any individual

who is expected to participate in the hearing:

(i) Is necessary to prevent prejudice to a party;

(ii) Is necessary because of a disability of any individual

expected to participate in the hearing; or

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication. If the presiding officer determines that a hearing

conducted by audio-visual telecommunication would measurably increase

the United States Department of Agriculture's cost of conducting the

hearing, the hearing shall be conducted by personal attendance of any

individual who is expected to participate in the hearing or by

telephone.

(4) The presiding officer may, in his or her sole discretion or in

response to a motion by a party to the proceeding, conduct the hearing

by telephone if the presiding officer finds that a hearing conducted by

telephone:

(i) Would provide a full and fair evidentiary hearing;

(ii) Would not prejudice any party; and

(iii) Would cost less than conducting the hearing by audio-visual

telecommunication or personal attendance of any individual who is

expected to participate in the hearing.

(b) Notice. (1) A notice stating the time, place, and manner of

oral hearing shall be served on each party prior to the time of the

oral hearing. The notice shall state whether the oral hearing will be

conducted by telephone, audio-visual telecommunication, or personal

attendance of any individual expected to participate in the hearing. If

any change is made in the time, place, or manner of the oral hearing, a

notice of the change shall be served on each party prior to the time of

the oral hearing as changed, unless the change is made during the

course of an oral hearing and shown in the transcript or on the

recording. Any party may waive such notice, in writing, or orally on

the record at an oral hearing and shown in the transcript or on the

recording.

(2) If the presiding officer orders an oral hearing, any party may

move that the hearing be conducted by telephone or personal attendance

of any individual expected to attend the hearing rather than by audio-

visual telecommunication. Any motion that the hearing be conducted by

telephone or personal attendance of any individual expected to attend

the hearing must be accompanied by a memorandum in support of the

motion stating the basis for the motion and the circumstances that

require the hearing to be conducted other than by audio-visual

telecommunication.

(3) Within 10 days after the presiding officer issues a notice

stating the manner in which the hearing is to be conducted, any party

may move that the presiding officer reconsider the manner in which the

hearing is to be conducted. Any motion for reconsideration must be

accompanied by a memorandum in support of the motion stating the basis

for the motion and the circumstances that require the hearing to be

conducted other than in accordance with the presiding officer's notice.

* * * * *

(e) Written statements of direct testimony. (1) Except as provided

in paragraph (e)(2) of this section, each party must exchange with all

other parties a written narrative verified statement of the oral direct

testimony that the party will provide at any hearing to be conducted by

telephone; the direct testimony of each employee or agent of the party

that the party will call to provide oral direct testimony at any

hearing to be conducted by telephone; and the direct testimony of each

expert witness that the party will call to provide oral direct

testimony at any hearing to be conducted by telephone. The written

direct testimony of witnesses shall be exchanged by the parties at

least 10 days prior to the hearing. The oral direct testimony provided

by a witness at a hearing conducted by telephone will be limited to the

presentation of the written direct [[Page 8467]] testimony, unless the

presiding officer finds that oral direct testimony which is

supplemental to the written direct testimony would further the public

interest and would not constitute surprise.

(2) The parties shall not be required to exchange testimony in

accordance with this paragraph if the hearing is scheduled to begin

less than 20 days after the presiding officer's notice stating the time

of the hearing.

* * * * *

(i) Transcript or recording. (1) Hearings to be conducted by

telephone shall be recorded verbatim by electronic recording device.

Hearings conducted by audio-visual telecommunication or the personal

attendance of any individual who is expected to participate in the

hearing shall be transcribed, unless the presiding officer finds that

recording the hearing verbatim would expedite the proceeding and the

presiding officer orders the hearing to be recorded verbatim. The

presiding officer shall certify that to the best of his or her

knowledge and belief any recording made pursuant to this paragraph with

exhibits that were accepted into evidence is the record of the hearing.

(2) If a hearing is recorded verbatim, a party requests the

transcript of a hearing or part of a hearing, and the presiding officer

determines that the disposition of the proceeding would be expedited by

a transcript of the hearing or part of a hearing, the presiding officer

shall order the verbatim transcription of the recording as requested by

the party.

(3) Parties to the proceeding who desire copies of the transcript

or recording of the oral hearing may make arrangements with the

reporter, who will furnish and deliver such copies direct to such

parties, upon receipt from such parties of payment for the transcript

or recording, at the rate provided by the contract between the reporter

and the Department for such reporting service.

* * * * *

Sec. 202.115 [Amended]

76. Section 202.115 is amended as follows:

a. Paragraph (b), the second sentence is amended by adding the

words ``or recording'' immediately after the word ``transcript''.

b. Paragraph (d) is revised to read as set forth below.

Sec. 202.115 Rule 15: Submission for final consideration.

* * * * *

(d) Oral argument. There shall be no right to oral argument other

than that provided in rule 12(h), Sec. 202.112(h).

Sec. 202.118 [Amended]

77. Section 202.118 is amended as follows:

a. Paragraph (a)(1) is revised to read as set forth below.

b. In paragraph (a)(7), the word ``and'' is removed.

b. Paragraph (a)(8) is redesignated as paragraph (a)(12).

c. New paragraphs (a)(8), (a)(9), (a)(10), and (a)(11) are added to

read as set forth below.

202.118 Rule 18: Presiding officer.

(a) * * *

(1) Set the time, place, and manner of a prehearing conference and

an oral hearing, adjourn the oral hearing from time to time, and change

the time, place, and manner of oral hearing;

* * * * *

(8) Require each party to provide all other parties and the

presiding officer with a copy of any exhibit that the party intends to

introduce into evidence prior to any oral hearing to be conducted by

telephone or audio-visual telecommunication;

(9) Require each party to provide all other parties with a copy of

any document that the party intends to use to examine a deponent prior

to any deposition to be conducted by telephone or audio-visual

telecommunication;

(10) Require that any hearing to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties and the presiding officer are able to transmit and receive

documents during the hearing;

(11) Require that any deposition to be conducted by telephone or

audio-visual telecommunication be conducted at locations at which the

parties are able to transmit and receive documents during the

deposition; and

* * * * *

Done in Washington, D.C., this 31st day of January, 1995.

Richard E. Rominger,

Acting Secretary of Agriculture.

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

BILLING CODE 3410-01-P