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: Proposed rule.

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SUMMARY: The Department of Agriculture (USDA) is proposing to amend 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 proposing numerous additional changes in an

effort to enhance customer service.

DATES: Comments must be received by March 1, 1999.

ADDRESSES: Interested persons are invited to submit written comments

concerning this proposal. Comments must be sent to Charles W. Parrott,

Assistant Chief, PACA Branch, Fruit and Vegetable Division, AMS, USDA,

Room 2095-So. Bldg., P.O. Box 96456, Washington, DC 20090-6456. Email_

[email protected]. All comments should reference the docket

number and the date and page number of this issue in the Federal

Register and will be made available for public inspection in the PACA

Branch during regular business hours and posted on the internet at

www.ams.usda.gov/fv/paca.htm.

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.

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.

Agricultural Marketing Service (AMS) believes that amending the

Rules of Practice will enhance customer service by expediting the

handling of

[[Page 4343]]

documents in PACA reparation proceedings. For example, the Rules of

Practice applicable to reparation proceedings presently require that

the initial attempt to serve formal reparation documents must be made

by certified or registered mail. The amendments will expand the options

for the service of certain documents to include private or commercial

mail delivery.

The amendments would also clarify certain regulations and

definitions. The Rules of Practice are being amended throughout Part 47

to replace the term ``shortened procedure'' with ``documentary

procedure''. This more accurately reflects a formal reparation process

that does not involve an oral hearing.

A number of definitions have been amended in the Rules of Practice.

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

Vegetable Programs'' would be substituted for the definition of

``Division,'' a definition of ``Associate Administrator'' would be

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

definition of ``Deputy Administrator'' would be substituted for the

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

``Deputy Administrator'' would be substituted for ``Division'' and

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

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

marketing specialists may also prepare decisions in shortened or

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

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

Sec. 47.2(j) has been shortened to eliminate the references to

Administrative Law Judges because they do not participate in reparation

cases and do not write examiner's reports. As already indicated, the

definitions of ``mail'' and ``re-mail'' have been expanded to allow for

additional methods of service to include commercial or private mail

delivery services. The section regarding informal complaints,

Sec. 47.3, would be revised to require that the complaint be in writing

and would allow for the filing of an informal complaint by facsimile

transmission. The required information to be contained in an informal

complaint would be slightly revised for clarification purposes. The

revision changes ``car initial and number, if carlot;'' to read

``carrier identification;'' and corrects 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

would be added to the text. Without the required accompanying fee, a

reparation case file will not be opened and the statute of limitations

would not be tolled. Additionally, paragraph (c) of that section

regarding the ``Status of person filing informal complaint'' would be

eliminated because it is not pertinent to these regulations.

In section 47.4, which addresses service matters, revisions would

permit the commercial or the private delivery of certain documents and

describe when service is perfected under the various mailing options.

By expanding ways to ``mail'' and ``re-mail'', service options will be

more flexible and accommodating. Additionally, the reference to the

service of the Chief's determination that a person was responsibly

connected with a licensee will be 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 would be changed to include a requirement that a formal

complaint be filed within nine months of notification that complainant

may proceed formally or complainant will lose the opportunity to

proceed with a formal complaint. Additionally, the rules would now

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

formal complaint in order for the complaint to be served upon the

respondent. If respondent files a counterclaim as part of its answer,

it must also include the $300.00 handling fee. The handling fee for

formal complaints is required by the Act and including it in the rules

is a change to conform with the 1995 Amendments.

Significant changes would be made to section 47.9, which addresses

the reply to a counterclaim or set-off, in order to require the same

information in the reply that is now required in the answer. The

counterclaim or set-off would be treated as a formal complaint filed by

the respondent, and therefore, failure to reply would be a default on

complainant's part as to the counterclaim or the set-off. In the

current rules, a failure to file a reply is treated as a denial of the

allegations of the counterclaim or set-off; the proposed changes will

create 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 section 47.2(i),

section 47.11 is amended to clarify that only OGC attorneys, and not

other USDA employees, would be granted certain powers under this

section of the regulations because only OGC attorneys may conduct oral

hearings. The examiner's powers would be amended to include the ability

to require parties to provide copies of exhibits prior to hearings and

depositions in any type of hearing. Currently, this power is limited to

audio-visual and telephone hearings, but it is appropriate to expand

the examiner's powers in this way in order to promote efficiency. In

addition, only OGC attorneys may permit intervention of a party for

good cause shown. While the definition of examiner has been expanded

for documentary procedures, any non-attorney examiner's powers would be

specified and reviewed in order to ensure that legally sound and

consistent reparation decisions are prepared. The Rules of Practice

would be changed throughout to reflect this assignment of

responsibilities.

The proposed amendments update the Rules of Practice 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. Another

correction that would be made in sections 47.11 and 47.16 is the

clarification that any subpoenas or orders for depositions would be

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

regulations regarding oral hearings would no longer permit complainant

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

person or by counsel. Instead, all parties would be required to appear

in person or through a representative.

The section which discusses the deposition process would be

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. Currently, the section does not refer to this type of

deposition; the regulations only refer to depositions linked to oral

hearings.

In order to ensure sufficient opportunity for review by the

examiner and sufficient notice to the individual who is subpoenaed,

section 47.17 would be 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 would 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 would also be the appropriate

place to file petitions for rehearing, reargument, reconsideration of

orders, reopening of hearings and reopening after a default. Anywhere

in the regulations that the

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words ``hearing clerk'' appears would be replaced by the words

``Hearing Clerk''.

As already discussed, the term ``shortened procedure'' would be

changed to ``documentary procedure''. In the documentary procedure

section, the rule regarding verification of pleadings or statements

would be expanded to note that 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 would be

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

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

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 would be 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 would eliminate any confusion that exists in the current

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

amendment clarifies that the filing must be made before the Default

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

time would be corrected to include Saturdays as well as Sundays and

holidays.

Executive Orders 12866 and 12988

This proposed 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 proposed rule has been reviewed under Executive Order 12988,

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

This proposed 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 proposed 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 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 proposed revisions to the PACA Rules of Practice would

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 proposed revisions

to the reparation Rules of Practice would apply only to firms that

utilize USDA's service for resolving commercial disputes under the

PACA. AMS believes that the 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 proposed

revisions provide notice to claimants of the procedure that AMS will

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 fees.

There are some proposed revisions, however, that would 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 proposed rule would not have

a significant economic impact on a substantial number of small

entities.

Paperwork Reduction Act

In compliance with OMB regulations (5 CFR, Part 1320) which

implement the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the

information collection and record keeping requirements covered by this

proposed rule were approved by OMB on April 1, 1998, and expire on

April 30, 2001.

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

proposed to be 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 State Mail with

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

to the address

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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 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 nine

months 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;

* * * * *

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(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;

* * * * *

(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 peition 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, 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, 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), 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 of

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.

(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, the examiner,

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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 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 peition 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: January 21, 1999.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable Programs.

[FR Doc. 99-1968 Filed 1-27-99; 8:45 am]

BILLING CODE 3410-02-P