Amendments to Rules of Practice Under the Perishable Agricultural Commodities Act (PACA)

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 47

[Docket Number FV98-358]

Amendments to Rules of Practice Under the Perishable Agricultural

Commodities Act (PACA)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is amending the Rules of

Practice under the Perishable Agricultural Commodities Act (other than

formal disciplinary proceedings). In addition to bringing several

sections of the Rules of Practice into compliance with the PACA

Amendments of 1995, USDA is making other changes to enhance customer

service.

EFFECTIVE DATE: August 16, 1999.

FOR FURTHER INFORMATION CONTACT: Charles W. Parrott, Assistant Chief,

PACA Branch, Room 2095-So. Bldg., Fruit and Vegetable Division, AMS,

USDA, Washington, D.C. 20250, Phone (202) 720-4180, Email_

[email protected].

SUPPLEMENTARY INFORMATION:

Background

The Perishable Agricultural Commodities Act (PACA or Act)

establishes a code of fair trading practices for the marketing of fresh

and frozen fruits and vegetables in interstate and foreign commerce.

The Act requires that parties fulfill their contractual obligations,

and provides a forum where firms that buy and sell fruits and

vegetables can settle commercial disputes outside of the civil court

system. Under the PACA, these disputes, or reparation complaints, are

handled first on an informal basis in an attempt to achieve an amicable

settlement between the disputing parties. About 75 percent of all

reparation complaints are resolved informally, generally within eight

weeks. However, if an informal settlement is not reached, there is a

formal complaint procedure available under which USDA's Judicial

Officer issues a binding decision in the case. The Rules of Practice

applicable to reparation proceedings inform the industry of USDA's

procedures and requirements for the handling of informal and formal

complaints under the PACA.

A proposed rule to amend the regulations was published in the

Federal Register on January 28, 1999 (64 FR 4342). The proposal amended

several sections of the Rules of Practice to comply with the PACA

Amendments of 1995, and made numerous other changes to enhance customer

service. Comments on the proposed rule were to be submitted by March 1,

1999. The Agricultural Marketing Service (AMS) received two comments.

We received comments from JSG Trading Corp. (JSG), Tinton Falls,

New Jersey and McCarron & Associates (McCarron), Washington, D.C. JSG

objected to the Department of Agriculture's (USDA) handling of

reparation cases in general. McCarron suggested some additional

revisions to further enhance customer service.

In its comment, JSG objected to the preparation of draft reparation

decisions by PACA Branch personnel (Sec. 47.2(i)). The commentor

questioned whether PACA personnel could be impartial in the preparation

of such drafts. We believe that the commentor's concern is misplaced

because the knowledge and expertise of PACA personnel have always been

utilized in resolving disputes involving perishable agricultural

commodities. These services are routinely sought by the parties

involved. USDA, of course, has no vested interest in the outcome of any

complaints. PACA Branch personnel have a widely recognized history of

professional impartiality. Moreover, we believe that the commentor's

concern is more than adequately addressed by the provision which

requires that all draft decisions prepared by PACA Branch personnel be

reviewed by an attorney employed by the Office of the General Counsel.

Therefore, AMS is making no change based on this comment.

McCarron's comments touched on several points. With regard to

Sec. 47.6(a), he suggested that the appropriate period of time to

elapse before a file is permanently closed be left to the judgment of

the Deputy Administrator, and that it not exceed 20 days. The proposed

amendment to Sec. 47.6(a) allowed a complainant nine months to file a

formal complaint after informal handling had been completed. After

further consideration, we agree that a 9-month period allows more time

than is needed for a complainant to decide to proceed with a formal

complaint. However, the suggested 20-day period is considered too

short. Therefore, the final rule provides a complainant with 90 days to

file a formal complaint after the informal handling by the PACA Branch

has been completed. McCarron further suggested that the wording of this

section clarify that the waiver of further proceedings applies only to

actions before the Secretary of Agriculture. The Rules of Practice

under the Perishable Agricultural Commodities Act (other than formal

disciplinary proceedings) apply, however, only to reparation

proceedings filed before the Secretary of Agriculture. Therefore, with

the exception of the change discussed above, Sec. 47.6(a) will remain

as proposed.

With regard to Sec. 47.9, McCarron addressed the proposed

requirement that complainant in a reparation complaint respond to a

counterclaim or be held to have admitted the respondent's allegations

contained in the counterclaim. McCarron stated that this alteration is

overly legalistic, adds nothing to assist the decision-maker, and

unduly delays resolution of the matter. We are making no change to the

rule based on this comment because a counterclaim has the same weight

in the formal complaint process as does a complaint, and it is a matter

of equity that both parties be treated equally and be required to

answer any positive charges against them. No changes to the final rule

are necessary.

With regard to Secs. 47.15(a)(1) and 47.16(a), McCarron stated that

it is not clear that the examiner who may grant a hearing or authorize

taking depositions in connection with an oral hearing, is the presiding

officer or an agency employee. This was addressed in the change to

Sec. 47.2(i), where it is made clear that agency employees are to act

as

[[Page 38104]]

examiners solely in cases handled through the documentary procedure. No

change in the final rule is necessary.

With regard to Sec. 47.20, McCarron suggested the addition of

language to clarify that the $30,000 figure for determining whether a

complaint may be handled through oral hearing, should be the principal

amount of the claim only, and should not include interests and/or costs

associated with the claim. We agree with his suggestion. Therefore, we

have changed the final rule to reflect that the $30,000 threshold

amount for an oral hearing not include accrued interest.

Finally, McCarron suggested that a time limit be placed on USDA for

the resolution of informal complaints and for the issuance of decision

and orders, from the time the case is ready for decision. Such

restricted deadlines could, however, run afoul of conditions outside

the control of the agency. In fact, most informal complaints are at

present being resolved within 90 days of their opening, and the great

majority of documentary procedure decisions are being issued within 90

days from the time the case is ready for decision.

Agricultural Marketing Service (AMS) believes that the amendments

to the Rules of Practice will enhance customer service by allowing

certain documents in formal PACA reparation proceedings to be served

via private or commercial mail delivery, in addition to service by

certified or registered mail.

The amendments clarify certain regulations and definitions.

Throughout the Rules of Practice, the term ``shortened procedure'' was

replaced with ``documentary procedure'' to reflect more accurately a

formal reparation process that does not involve an oral hearing.

Due to the reorganization of AMS, the definition of the ``Fruit and

Vegetable Programs'' was substituted for the definition of

``Division,'' the definition of ``Associate Administrator'' was

substituted for the definition of ``Deputy Administrator,'' and the

definition of ``Deputy Administrator'' was substituted for the

definition of ``Director.'' Additionally, the words ``Program'' and

``Deputy Administrator'' were substituted for ``Division'' and

``Director'' respectively, wherever they appeared in Part 47. The term

``examiner'', Sec. 47.2(i)(1) was expanded to indicate that senior

marketing specialists may also prepare decisions in shortened or

``documentary procedure'' cases subject the review of USDA's Office of

the General Counsel (OGC). The definition of ``examiner's report'' in

Sec. 47.2(j) was shortened to eliminate the references to

Administrative Law Judges because they do not participate in reparation

cases and do not write examiner's reports. The definitions of ``mail''

and ``re-mail'' were expanded to allow for additional methods of

service to include commercial or private mail delivery services. The

section regarding informal complaints, Sec. 47.3, was revised to

require that the complaint be in writing and allow for the filing of an

informal complaint by facsimile transmission. In addition, the

information required in an informal complaint was revised for

clarification purposes. The revision changed ``car initial and number,

if carlot;'' to read ``carrier identification;'' and corrected a

typographical error in Sec. 47.3(a) (2) (vii) by inserting the word

``and'' between the words ``gross net.'' A statement regarding the

required filing fee of $60.00 was added to the text. Additionally,

paragraph (c) of that section regarding the ``Status of person filing

informal complaint'' was eliminated because it is not pertinent to

these regulations.

Section 47.4, which addresses service matters, was revised to

permit the commercial or the private delivery of certain documents and

now describes when service is perfected under the various mailing

options. Additionally, the reference to the service of the Chief's

determination that a person was responsibly connected with a licensee

was deleted from paragraph (b)(1) because this issue is addressed in

Sec. 47.49 of the regulations (7 CFR 47.49).

The section that delineates formal complaints in the Rules of

Practice was changed to include the requirement that a formal complaint

be filed within ninety days of notification that complainant may

proceed formally, or the complainant loses the opportunity to proceed

with a formal complaint. Additionally, the rules were revised to

require that a $300.00 handling fee must accompany the filing of a

formal complaint or counterclaim before AMS will serve the complaint on

the respondent(s). The handling fee for formal complaints was included

in the Rules of Practice to comform with the PACA Amendments of 1995.

Significant changes were made to Sec. 47.9, which addresses the

reply to a counterclaim or set-off. The counterclaim or set-off will

now be treated as a formal complaint filed by the respondent, and

therefore, failure to reply will be a default on complainant's part as

to the counterclaim or the set-off. In the previous rules, a failure to

file a reply was treated as a denial of the allegations of the

counterclaim or set-off, whereas the revised rules have created a

parallel between the filing of a complaint and the filing of a

counterclaim or set-off.

With the new expanded definition of examiner in Sec. 47.2(i),

Sec. 47.11 was amended to clarify that only OGC attorneys, and not

other USDA employees, are granted certain powers under this section of

the regulations because only OGC attorneys conduct oral hearings. The

examiner's powers now include the ability to require parties to provide

copies of exhibits prior to hearings and depositions in any type of

hearing.

The Rules of Practice were amended to comply with the 1995 PACA

Amendments which raised the minimum claim for damages required for an

oral hearing from $15,000 to $30,000. Sections 47.11 and 47.16 were

amended to clarify that subpoenas or orders for depositions are made

over the facsimile signature of the Secretary. In addition, the

regulations regarding oral hearings no longer permit a complainant to

submit evidence in the form of depositions in lieu of appearing in

person or by counsel. Instead, all parties are now required to appear

in person or through a representative at oral hearings.

The section which discusses the deposition process was expanded to

include references to the possibility of depositions in a case that is

converted from an oral hearing case to a documentary procedure case.

In order to ensure sufficient opportunity for review by the

examiner and sufficient notice to the individual who is subpoenaed,

Sec. 47.17 was amended to require that applications for subpoena be

received at least thirty days prior to the hearing or deposition date,

and that the subpoena be issued at least twenty days before the date of

appearance. An exception may be made for good cause shown.

All filings with regard to claims for fees and expenses in oral

hearing cases and the resultant objections will now be filed with the

Hearing Clerk instead of the examiner in order to ensure that the

documents are properly filed into the official record kept by the

Hearing Clerk. The Hearing Clerk's Office is now the appropriate place

to file petitions for rehearing, reargument, reconsideration of orders,

reopening of hearings and reopening after a default. The regulations

were revised by replacing the words ``hearing clerk'' with the words

``Hearing Clerk'.

As previously stated, the term ``shortened procedure'' was changed

to ``documentary procedure''. In the documentary procedure section, the

rule regarding verification of pleadings or statements was expanded to

note that

[[Page 38105]]

certification by a notary public alone is not sufficient; rather, a

signed verifying statement must be appended to the document.

Procedures for requesting a reopening after a default were removed

from the provision that covers filing, extensions of time, effective

date of filing, computations of time, and official notice and were

moved to the more appropriate section that deals with rehearing,

reargument, reconsideration of orders, and reopening of hearings. In

addition, the provision for reopening after a default was revised to

permit a petition to reopen the proceedings to be filed before the

expiration of 30 days from the date of issuance of the default order.

This revision eliminates any confusion that existed in the previous

regulation because it did not provide a time certain for filing. The

amendment clarified that the filing must be made before the Default

Order becomes final. For all filings, the provision for computation of

time was revised to include Saturdays as well as Sundays and holidays.

Executive Orders 12866 and 12988

This final rule, issued under the Perishable Agricultural

Commodities Act (7 U.S.C. 499 et seq.), as amended, has been determined

to be not significant for the purposes of Executive Order 12866, and

therefore, has not been reviewed by the Office of Management and Budget

(OMB).

This final rule has been reviewed under Executive Order 12988,

Civil Justice Reform, and is not intended to have retroactive effect.

This final rule will not preempt any State or local laws, regulations,

or policies, unless they present an irreconcilable conflict with this

rule. There are no administrative procedures which must be exhausted

prior to any judicial challenge to the provisions of this rule.

Effects on Small Businesses

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA) (5 U.S.C. 601 et seq.), USDA has considered the economic

impact of this final rule on small entities. The purpose of the RFA is

to fit regulatory actions to the scale of businesses subject to such

actions in order that small businesses will not be unduly or

disproportionately burdened. Small agricultural service firms have been

defined by the Small Business Administration (13 CFR part 121) as those

whose with less than 500 employees. The PACA requires all businesses

that operate subject to its provisions maintain a license issued by

USDA. There are approximately 15,700 PACA licensees, a majority of

which may be classified as small entities.

The revisions to the PACA Rules of Practice streamline USDA

procedures and requirements for handling of informal and formal

complaints under the PACA. In Fiscal Year 1998, there were 2198

informal reparation claims, 21 counterclaims, and 563 formal reparation

cases filed with USDA under the PACA. The revisions to the reparation

Rules of Practice apply only to firms that utilize USDA's service for

resolving commercial disputes under the PACA. AMS believes that these

revisions to the Rules of Practice will enhance customer service to the

industry by expediting the handling of documents in PACA reparation

proceedings. Most of the revisions provide notice to claimants of the

procedure that AMS will now follow in adjudicating claims. For example,

the proposed revision that provides for additional methods of service

of formal documents by AMS will not produce any economic effect on

licensees initially. But, if the use of commercial and/or express

delivery services take the place of certified mail, licensees may be

required to absorb the additional costs through marginally higher user

fees.

There are some revisions, however, that will affect the rights and

obligations of claimants. For example, claimants must be certain to

adhere to the filing requirements for both informal and formal

complaints, which require the payment of statutorily mandated filing

and handling fees, respectively. If the required fees do not accompany

a filing, a claimant may lose access to the reparation forum. These

revisions, and others, may affect a claimant's due process rights,

which are difficult to quantify. However, since the reparation forum is

but one available means to resolve contract disputes concerning

perishable agricultural products in interstate commerce, AMS has

determined that the provisions of this final rule will not have a

significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 does not apply to this final

rule since it does not seek answers to identical questions or reporting

or recordkeeping requirements imposed on ten or more persons, and the

information collected is not used for general statistical purposes.

List of Subjects in 7 CFR Part 47

Administrative practice and procedure, Agricultural commodities,

Brokers.

For the reasons set forth in the preamble, 7 CFR part 47 is amended

as follows:

PART 47--[AMENDED]

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

follows:

Authority: 7 U.S.C. 499o; 7 CFR 2.22(a)(1)(viii)(L),

2.79(a)(8)(xiii).

2. Section 47.2 is amended by removing paragraph (j)(2) and

redesignating paragraph (j)(1) as paragraph (j) and revising paragraphs

(e), (g), (h), (i), (s), and (t) to read as follows:

Sec. 47.2 Definitions.

* * * * *

(e) Associate Administrator means the Associate Administrator of

the Service, or any officer or employee of the Service to whom

authority has heretofore lawfully been delegated, or to whom authority

may hereafter lawfully be delegated, to act in his or her stead.

* * * * *

(g) Fruit and Vegetable Programs means the Fruit and Vegetable

Programs of the Agricultural Marketing Service.

(h) Deputy Administrator means the Deputy Administrator of the

Fruit and Vegetable Programs or any officer or employee of the Fruit

and Vegetable Programs to whom authority has heretofore lawfully been

delegated, or to whom authority may hereafter lawfully be delegated by

the Deputy Administrator, to act in his stead.

(i) Examiner. In connection with reparation proceedings, the term

``examiner'' is synonymous with ``presiding officer'' and means any

attorney employed in the Office of the General Counsel of the

Department, or in connection with reparation proceedings conducted

pursuant to the documentary procedure in Sec. 47.20, the term

``examiner'' may mean any other employee of the PACA Branch whose work

is reviewed by an attorney employed in the Office of the General

Counsel of the Department.

* * * * *

(s) Mail means to deposit an item in the United States Mail with

postage affixed and addressed as necessary to cause it to be delivered

to the address shown by ordinary mail, or by certified mail or

registered mail if specified, or to cause a properly addressed item to

be delivered by a commercial or private mail delivery service to the

address shown.

(t) Re-mail means to mail by ordinary mail to an address an item

that has been returned after being sent to the same address by

certified or registered mail or

[[Page 38106]]

by a commercial or private mail delivery service.

5. In Sec. 47.3, the first sentence in paragraph (a)(2) and

paragraph (a)(2)(iv) are revised, in paragraph (a)(2)(vii) the word

``and'' is added between the words ``gross'' and ``net'', paragraph (c)

is removed, and a new paragraph (a)(4) is added to read as follows:

Sec. 47.3 Institution of proceedings.

(a) * * *

(1) * * *

(2) Informal complaints may be made in writing by telegram, by

letter, or by facsimile transmission, setting forth the essential

details of the transaction complained of. * * *

* * * * *

(iv) Carrier identification;

* * * * *

(4) The informal complaint shall be accompanied by a filing fee of

$60 as required by the Act.

* * * * *

7. Section 47.4 is amended by revising the section heading and

paragraphs (b)(1), (b)(3), (c)(1), and (d)(1) to read as follows:

Sec. 47.4 Service and proof of service.

* * * * *

(b) Service on Party. (1) Any complaint or other document initially

served on a person to make that person a party respondent in a

proceeding, a final order, or other document specifically ordered by

the presiding officer or Judicial Officer to be served by certified or

registered mail, or commercial or private mail delivery service, shall

be deemed to be received by any party to a proceeding on the date of

delivery by certified or registered mail, or commercial or private mail

delivery service to the last known principal place of business of such

party, last known principal place of business of the attorney or

representative of record of such party, last known residence of such

party if an individual: Provided, That, if any such document or paper

is sent by certified, registered, commercial, or private mail, but is

returned, it shall be deemed to be received by such party on the date

of the re-mailing by ordinary mail to the same address.

* * * * *

(3) Any document or paper served other than by certified,

registered, commercial, or private mail on any party to a proceeding

shall be deemed to be received by such party on the date of:

* * * * *

(c) * * *

(1) Delivery by certified, registered, commercial, private or mail

to the last known principal address of such person, last know principal

place of business of the attorney or representative of record of such

person, or last known residence of such person if an individual;

* * * * *

(d) * * *

(1) A certified or registered mail receipt returned by the postal

service with a signature, or a signed receipt returned by a private or

commercial mail delivery service;

* * * * *

8. In Sec. 47.6, paragraphs (a) and (c) are revised to read as

follows:

Sec. 47.6 Formal complaints.

(a) Filing; contents; number of copies. (1) If the procedure

provided in Sec. 47.3(b) fails to effect an amicable or informal

settlement, the person who filed the informal complaint may, if further

proceedings are desired, file a formal complaint with the Fruit and

Vegetable Programs. The formal complaint shall be filed within ninety

days of notification of the opportunity to proceed formally. Failure to

file a formal reparation complaint within the time prescribed shall

result in the waiver of further proceedings on the claim alleged in the

informal complaint.

(2) The formal complaint shall set forth the information and be

accompanied by the papers indicated in Sec. 47.3(a)(2) and (3),

including a statement of the amount of damages claimed, with the basis

therefor, and the method of determination. The original and three

copies shall be furnished for filing, and service on the respondent. If

there is more than one respondent, a further copy shall be furnished

for each additional respondent.

* * * * *

(c) Service upon respondent; proof of service. Upon receipt by the

Fruit and Vegetable Programs of the formal complaint, the accompanying

papers and the $300 handling fee required by the Act, a copy thereof

shall be served by the Fruit and Vegetable Programs upon the respondent

in accordance with Sec. 47.4. If the complaint is not in the proper

form, the Fruit and Vegetable Programs shall return it and inform the

complainant of the deficiencies therein.

* * * * *

9. In Sec. 47.8, paragraph (a) is amended by adding a sentence at

the end of the section to read as follows:

Sec. 47.8 The answer.

(a) * * * If the answer includes a counterclaim, the answer shall

be accompanied by the $300 handling fee required by the Act for formal

complaints.

* * * * *

10. In Sec. 47.9, paragraphs (b) and (c) are revised to read as

follows:

Sec. 47.9 The reply.

* * * * *

(b) Contents. The reply shall be confined strictly to the matters

alleged in the counterclaim or set-off in the answer. It shall contain

a precise statement of the facts which constitute the grounds of

defense to the counterclaim or set-off, and shall specifically admit,

deny, or explain each of the allegations of the counterclaim or set-

off, unless the complainant is without knowledge, in which case the

reply shall so state; or a statement that the complainant admits all of

the allegations of the counterclaim or set-off; or a statement

containing an admission of liability in an amount less than that

alleged in the counterclaim or set-off and a denial of liability for

the remaining amount.

(c) Failure to file reply. Failure to file a reply shall be deemed

a waiver of hearing on the counterclaim or set-off and an admission of

the allegations contained in the counterclaim or set-off. If no reply

is filed, the allegations of the counterclaim or set-off shall be

deemed admitted.

11. In Sec. 47.11, the introductory text of paragraph (c), and

paragraphs (c)(4), (c)(9), (c)(10) and (c)(13) are revised to read as

follows:

Sec. 47.11 Examiners.

* * * * *

(c) Powers. Subject to review by the Secretary, as provided in this

Part, the examiner who is an attorney employed in the Office of the

General Counsel of the Department, in any proceeding assigned to him or

her, shall have power to:

* * * * *

(4) Issue subpoenas over the facsimile signature of the Secretary

requiring the attendance and testimony of witnesses and the production

of books, contracts, papers, and other documentary evidence;

* * * * *

(9) Require each party, prior to any hearing, to provide all other

parties and the examiner with a copy of any exhibit that the party

intends to introduce into evidence;

(10) Require each party, prior to any deposition, to provide all

other parties and the examiner with a copy of any document that the

party intends to use to examine a deponent;

* * * * *

[[Page 38107]]

(13) Do all acts and take all measures necessary for the

maintenance of order and for the efficient conduct of the proceeding.

* * * * *

12. In Sec. 47.12, the introductory text is revised to read as

follows:

Sec. 47.12 Intervention.

At any time after the institution of a proceeding and before it has

been submitted to the Secretary for final consideration, the Secretary

or the examiner as defined in Sec. 47.2(i)(1) may, upon petition in

writing and for good cause show, permit any person to intervene

therein. The petition shall state with preciseness and particularity:

* * * * *

13. In Sec. 47.15, paragraphs (a)(1), (a)(2), (b) and (d)(1) are

revised to read as follows:

Sec. 47.15 Oral hearing before the examiner.

(a) When permissible. (1) Where the amount of the damages claimed,

either in the complaint or in the counterclaim, does not exceed $30,000

(excluding interest), an oral hearing shall not be held, unless deemed

necessary or desirable by the Fruit and Vegetable Programs or unless

granted by the examiner as defined in Sec. 47.2(i)(1), upon application

of complainant or respondent setting forth the peculiar circumstances

making an oral hearing necessary for a proper presentation of the case.

(2) Where the amount of damages claimed, either in the complaint or

in the counterclaim, is in excess of $30,000 (excluding interest), the

procedure provided in this section (except as provided in

Sec. 47.20(b)(2)) shall be applicable.

(b) Request for hearing. Any party may request an oral hearing on

the facts by including such request in the complaint. Failure to

request an oral hearing within the time allowed for filing of the

reply, or within 10 days after the expiration of the time allowed for

filing an answer, shall constitute a waiver of such hearing, and any

party so failing to request an oral hearing will be deemed to have

agreed that the proceeding may be decided upon a record formed under

the documentary procedure provided in Sec. 47.20.

* * * * *

(d) Appearances--(1) Representation. In any proceeding under the

Act, the parties may appear in person or by counsel or other

representative.

* * * * *

14. In Sec. 47.16, the introductory text of paragraph (a), and

paragraph (b)(1) are revised to read as follows:

Sec. 47.16 Depositions:

(a) Application for taking deposition. Upon the application of a

party to the proceeding, the examiner as defined in Sec. 47.2(i)(1)

may, except as provided in paragraph (b) of this section, at any time

after the filing of the moving papers, order, over the facsimile

signature of the Secretary, the taking of testimony by deposition. The

application shall be in writing, shall be filed with the Hearing Clerk,

and shall set forth:

* * * * *

(b) Examiner's order for taking deposition. (1) If, after

examination of the application, the examiner is of the opinion that the

deposition should be taken, or if the parties are using depositions in

lieu of affidavits pursuant to Sec. 47.20(b)(2), the examiner shall

order the taking of the deposition. In no case, except for good cause

shown, may the examiner order the taking of a deposition less than 10

days prior to the designated date of deposition. The order shall be

filed with the Hearing Clerk upon the parties in accordance with

Sec. 47.4.

* * * * *

15. In Sec. 47.17, a sentence is added at the end of paragraph (a)

to read as follows:

Sec. 47.17 Subpoenas.

(a) Issuance of subpoenas. * * * Except for good cause shown,

applications for subpoenas shall be filed with the Hearing Clerk at

least 30 days prior to the designated date of hearing or deposition.

Except for good cause shown, the examiner shall not issue subpoenas

less than 20 days prior to the designated date of hearing or

deposition.

* * * * *

16. In Sec. 47.19, paragraphs (d)(1), (d)(4), (d)(5) and (d)(6) are

revised to read as follows:

Sec. 47.19 Post-hearing procedure before the examiner.

* * * * *

(d) Claim for award of fees and expenses--(1) Filing. Prior to the

close of the hearing, or within 20 days thereafter, each party may file

with the Hearing Clerk a claim for the award of the fees and expenses

which he incurred in connection with the oral hearing. No award of fees

and expenses to the prevailing party and against the losing party shall

be made unless a claim therefor has been filed, and failure to file a

claim within the time allowed shall constitute a waiver thereof.

* * * * *

(4) Service of claim. A copy of each such claim filed shall be

served by the Hearing Clerk on the other party or parties to the

proceeding.

(5) Objections to claim. Within 20 days after being served with a

copy of a claim for fees and expenses, the party so served may file

with the Hearing Clerk written objections to the allowance of any or

all of the items claimed. If evidence is offered in support of an

objection, it must be in affidavit form. A copy of any such objections

shall be served by the Hearing Clerk on the other party or parties.

(6) Reply to objections to claim. A claimant who is served with a

copy of objections to his or her claim may, within 20 days after such

service, file with the Hearing Clerk a reply to such objection. If

evidence is offered in support of a reply, it must be in affidavit

form. A copy of any such reply shall be served by the Hearing Clerk on

the other party or parties.

* * * * *

17. In Sec. 47.20, the section heading, the first sentence in

paragraph (a), paragraphs (b)(1), (b)(2), and the introductory text of

paragraph (h) are revised to read as follows:

Sec. 47.20 Documentary procedure.

(a) In general. The documentary procedure described in this section

shall, whenever it is applicable as provided in paragraph (b) of this

section, take the place and serve in lieu of the oral hearing procedure

hereinbefore provided. Under the documentary procedure, the pleadings

of the parties, if verified in accordance with paragraph (h) of this

section, and any report of investigation filed with the hearing clerk

pursuant to Sec. 47.7 will be considered as evidence in the proceeding.

* * *

(b) When applicable--(1) Where damages claimed do not exceed

$30,000. The documentary procedure provided for in this section shall

(except as provided in Sec. 47.15(a)) be used in all reparation

proceedings in which the amount of damages claimed, either in the

complaint or in the counterclaim, does not exceed $30,000 (excluding

interest).

(2) Where damages claimed exceed $30,000. In any proceeding in

which the amount of damages claimed, either in the complaint or in the

counterclaim, is greater than $30,000 (excluding interest), the

examiner, whenever he or she is of the opinion that proof may be fairly

and adequately presented by use of the documentary procedure provided

for in this section, shall suggest to the parties that they consent to

the use of such procedure. Parties are free to consent to such

procedure if they

[[Page 38108]]

choose, and declination of consent will not affect or prejudice the

rights or interests of any party. A party, if he or she has not waived

oral hearing, may consent to the use of the documentary procedure on

the condition that depositions rather than affidavits be used. In such

case, if the other party agrees, depositions shall be required to be

filed in lieu of verified statements. If any party who has not waived

oral hearing does not consent to the use of the documentary procedure,

the proceeding will be set for oral hearing. The suggestion that the

documentary procedure be used need not originate with the examiner. Any

party may address a request to the examiner asking that the documentary

procedure be used.

* * * * *

(h) Verification. Verification shall be made under oath of any

facts set forth in the pleading or statement, by the person who signs

the pleading or statement. Certification by a notary public is

insufficient. The form of verification may be as follows:

* * * * *

18. Section 47.21 is revised to read as follows:

Sec. 47.21 Transmittal of record.

The Hearing Clerk, immediately after the filing of the examiners'

report, shall transmit to the Secretary the record of the proceeding.

Such record shall include: The pleadings; motions and requests filed,

and rulings thereon; the report of investigation conducted by the Fruit

and Vegetable Programs; the transcript or record of the testimony taken

at the hearing, together with the exhibits filed therein; any

statements or stipulations filed under the documentary procedure; any

documents or papers filed in connection with conferences; such proposed

findings of fact, conclusions, and orders and briefs as may have been

permitted to be filed in connection with the hearing as provided in

Sec. 47.19(b) and (c); such statements of objections, and briefs in

support thereof, as may have been filed in the proceeding; and the

examiner's report.

* * * * *

19. In Sec. 47.24, the section heading and paragraph (a) are

revised and a new paragraph (d) is added to read as follows:

Sec. 47.24 Rehearing, reargument, reconsideration of orders, reopening

of hearings , reopening after default.

(a) Petitions to rehear, reargue, and reconsider. A petition for

rehearing or reargument of the proceeding, or for reconsideration of

the order, shall be made by petition to the Secretary filed with the

Hearing Clerk within 20 days after the date of service of the order.

Every such petition shall state specifically the matters claimed to

have been erroneously decided and the alleged errors. If the Secretary

concludes that the questions raised by the petition have been

sufficiently considered in the issuance of the order, the Secretary

shall dismiss the petition without service on the other party.

Otherwise, the Secretary shall direct that a copy of the petition be

served upon such party by the Hearing Clerk. The filing of a petition

to rehear or reargue a proceeding, or to reconsider an order, shall

automatically operate to set aside the order pending final action on

the petition. Only one petition to rehear, reargue, or reconsider will

be accepted from each party, except when a mathematical or

typographical error appears in either the original decision and order

or in the decision on reconsideration.

* * * * *

(d) Reopening after default. The party in default in the filing of

an answer or reply required or authorized under this part may petition

to reopen the proceeding at any time prior to the expiration of 30 days

from the date of service of the default order. If, in the judgment of

the examiner, after notice to and consideration of the views of the

other party(ies), there is good reason for granting such relief, the

party in default will be allowed 20 days from the date of the order

reopening the proceeding to file an answer.

20. In Sec. 47.25, the section heading and paragraph (d) are

revised, paragraph (e) is removed and paragraph (f) is redesignated as

paragraph (e) to read as follows:

Sec. 47.25 Filing; extensions of time; effective date of filing;

computations of time; official notice.

* * * * *

(d) Computations of time. Saturdays, Sundays and holidays shall be

included in computing the time allowed for the filing of any document

or paper: Provided, That, when such time expires on a Saturday, Sunday

or Federal holiday, such period shall be extended to include the next

following business day.

* * * * *

21. Part 47 is amended by removing the words ``hearing clerk'' and

adding in their place the words ``Hearing Clerk'', everywhere they

appear.

22. Part 47 is amended by removing the word ``Division'' and adding

in its place the words ``Fruit and Vegetable Programs'', everywhere

they appear.

23. Part 47 is amended by removing the words ``Director'' and

``Director's'', and adding in their place the words ``Deputy

Administrator'' and ``Deputy Administrator's'' respectively, everywhere

they appear.

Dated: July 12, 1999.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 99-18047 Filed 7-14-99; 8:45 am]

BILLING CODE 3410-02-P