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(d) Effective date of filing. Any document or paper required or authorized under the rules in this part to be filed shall be deemed to be filed at the time when it reaches the Hearing Clerk; or, if authorized to be filed with another officer or employee of the Department it shall be deemed to be filed at the time when it reaches such officer or employee.
(e) Computation of time. Saturdays, Sundays and Federal 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 extened to include the next following business day.
paper to the individual to be served or to a member of the partnership to be served, or to the president, secretary, or other executive officer or any director of the corporation or association to be served, or to the attorney of record representing such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business or residence of such individual, partnership, corporation, organization, or association, or of the attorney or agent of record and mailing by regular mail another copy to such person at such address; or (3) by registering or certifying and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to the attorney or agent of record, at the last known residence or principal office or place of business of such person: Provided, That if the registered or certified document or paper is returned undelivered because the addressee refused or failed to accept delivery, the document or paper shall be served by remailing it by regular mail. Proof of service hereunder shall be made by the certificate of the person who actually made the service: Provided, That if the service be made by mail, as outlined in paragraph (b)(3) of this section, proof of service shall be made by the return post-office receipt, in the case of registered or certified mail, or by the certificate of the person who mailed the matter by regular mail. The certificate and post-office receipt contemplated herein shall be filed with the Hearing Clerk, and made a part of the record of the proceeding.
(c) Extensions of time. The time for the filing of any document or paper required or authorized under the rules in this part to be filed may be extended by the Judge or the Judicial Officer as provided in § 1.143, if, in the judgment of the Judge or the Judicial Officer, as the case may be, there is good reason for the extension. In all instances in which time permits, notice of the request for extension of the time shall be given to the other party with opportunity to submit views concerning the request.
8 1.148 Depositions.
(a) Motion for taking deposition. Upon the motion of a party to the proceeding, the Judge may, at any time after the filing of the complaint, order the taking of testimony by deposition. The Motion shall be in writing, shall be filed with the Hearing Clerk, and shall set forth:
(1) The name and address of the proposed deponent; (2) the name and address of the person (referred to hereafter in this section as the “officer”) qualified under the regulations in this part to take depositions, before whom the proposed examination is to be made; (3) the proposed time and place of the examination, which shall be at leat 15 days after the date of the mailing of the motion; and (4) the reasons why such deposition should be taken, which shall be solely for the purpose of eliciting testimony which otherwise might not be available at the time of hearing, for uses as provided in paragraph (g) of this section.
(b) Judge's order for taking deposition. If the Judge finds that the testimony may not be otherwise available at the hea ng, the taking of the deposition may be ordered. The order shall be filed with the Hearing Clerk, shall be served upon the parties, and shall state:
(1) The time and place of the examination; (2) the name of the officer before whom the examination is to be made: and (3) the name of the deponent. The officer and the time and place need not be the same as those suggested in the motion.
(c) Qualifications of officer. The deposition shall be made before the Judge or before an officer authorized by the law of the United States or by the law of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths.
(d) Procedure on examination. (1) The deponent shall be examined under oath or affirmation and shall be subject to cross-examination. Objections to questions or documents shall be in short form, stating the grounds of objections relied upon. The questions proponded, together with all objections made (but not including argument or debate), shall be recorded verbatim. In lieu of oral examination, parties may transmit written questions to the officer prior to the examination and the officer shall propound such questions to the deponent.
(2) The applicant shall arrange for the examination of the witness either by oral examination, or by written questions upon agreement of the parties or as directed by the Judge. If the examination is conducted by means of written questions, copies of the questions shall be served upon the other party to the proceeding and filed with the officer at least 10 days prior to the date set for the examination unless otherwise agreed, and the other party may serve cross questions and file them with the officer at any time prior to the time of the examination.
(e) Certification by officer. The officer shall certify on the deposition that the deponent was duly sworn and that the deposition is a true record of the deponent's testimony. The officer shall then securely seal the deposition, together with one copy thereof (unless there are more than two parties in the proceeding, in which case there should be another copy for each additional party), in an envelope and mail the same by registered or certified mail to the Hearing Clerk.
(f) Corrections to the transcript. (1) At any time prior to the hearing, any party may file a motion proposing corrections to the transcript of the deposition.
(2) Unless a party files such a motion in the manner prescribed, the transcript shall be presumed, except for obvious typographical errors, to be a true, correct, and complete transcript of the testimony given in the deposition proceeding and to contain an accurate description or reference to all exhibits in connection therewith, and shall be deemed to be certified correct without further procedure.
(3) At any time prior to use of the deposition in accordance with paragraph (g) of this section and after consideration of any objections filed thereto, the Judge may issue an order making any corrections in the transcript which the Judge finds are warranted, which corrections shall be entered onto the original transcript by the Hearing Clerk (without obscuring the original text).
(g) Use of deposition. A deposition ordered and taken in accordance with the provisions of this section may be used in a proceeding under these rules if the Judge finds that the evidence is otherwise admissible and (1) that the witness is dead; (2) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; (3) that the party offering the deposition has endeavored to procure the attendance of the witness by subpoena, but has been unable to do so; or (4) that such exceptional circumstances exist as to make it desirable, in the interests of justice, to allow the deposition to be used. If the party upon whose motion the deposition was taken refuses to offer it in evidence, any other party may offer the deposition or any part thereof in evidence. If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction of any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
§ 1.149 Subpoenas.“
(a) Issuance of subpoenas. The attendance and testimony of witnesses
*This section relates only to subpoenas for the stated purpose and has no relevance with respect to investigatory subpoenas.
and the production of documentary or accompanied by the required proof evidence from any place in the United of service, shall be returned to the ofStates on behalf of any party to the ficial who issued the same. The party proceeding may be required by subpoe- at whose instance a subpoena is issued na at any designated place of hearing shall be responsible for the service if authorized by the statute under
thereof. which the proceeding is conducted. Subpoenas shall be issued by the $ 1.150 Fees of witnesses. Judge upon a reasonable showing by the applicant of the grounds and ne
Witnesses summoned under these cessity thereof; and with respect to
rules of practice shall be paid the subpoenas for the production of docu
same fees and mileage that are paid ments, the request shall also show witnesses in the courts of the United their competency, relevancy, and ma
States, and witnesses whose depositeriality. All requests for subpoenas
tions are taken, and the officer taking shall be in wiriting, unless waived by the same, shall be entitled to the same the Judge for good cause shown. fees as are paid for like services in the Except for good cause shown, requests courts of the United States. Fees shall for subpoenas shall be submitted by be paid by the party at whose instance the applicant to the Judge at least 10 the witness appears or the deposition days prior to the date set for the hear. is taken. ing.
(b) Service of subpoenas. Subpoenas $ 1.151 Ex parte communications. may be served (1) by a United States
(a) At no stage of the proceeding beMarshal or a deputy marshal, or (2) by
tween its institution and the issuance any other person who is not less than
of the final decision shall the Judge or 18 years of age, or (3) by registering or
Judicial Officer discuss ex parte the certifying and mailing a copy of the
merits of the proceeding with any subpoena addressed to the person to be served at the last known principal
person who is connected with the proplace of business or residence. Proof of
ceeding in an advocative or in an invesservice may be made by the return of
tigative capacity, or with any represervice on the subpoena by the United
sentative of such person: Provided, States Marshal or deputy marshal; or,
That procedural matters shall not be if served by an employee of the De
included within this limitation; and partment, by a certificate stating that
Provided further, That the Judge or the employee personally served the Judicial Officer may discuss the merits subpoena upon the person named of the case with such a person if all therein; or, if served by another parties to the proceeding, or their atperson, by an affidavit stating that torneys have en given notice and an such person personally served the sub- opportunity to participate. A memopoena upon the person named therein; randum of any such discussion shall or, if service was by registered or certi- be included in the record. fied mail, by an affidavit made by the (b) No interested person shall make person mailing the subpoena that it
or knowingly cause to be made to the was mailed as provided herein and by
Judge or Judicial Officer an ex parte the signed return post-office receipt:
communication relevant to the merits Provided, That the return receipt
of the proceeding. without an affidavit or certificate of mailing shall be sufficient proof of
(c) If the Judge or the Judicial Offiservice. In making personal service,
cer receives an ex parte communicathe person making service shall leave a
tion in violation of this section, the copy of the subpoena with the person
one who receives the communication subpoenaed, or, if such person is not
shall place in the public record of the immediately available, with any other
proceeding: responsible person residing or em- (1) All such written communications; ployed at the place of residence or (2) Memoranda stating the subbusiness of the person subpoenaed. stance of all such oral communicaThe original of the subpoena, bearing tions; and
(3) All written responses, and memo- (b) “Complaint” means a formal randa stating the substance of all oral complaint instituted by the Secretary responses thereto.
of Agriculture requiring respondent to (d) Upon receipt of a communication show cause why an order should not knowingly made or knowingly caused be made directing it to cease and desist to be made by a party in violation of from acts of monopolization or rethis section, the Judge or Judicial Of- straint of trade, which result in undue ficer may, to the extent consistent
price enhancement. with the interests of justice and the
(c) “Complainant” or “Secretary” policy of the underlying statute, re
means the Secretary of Agriculture, quire the party to show cause why his
United States Department of Agriculclaim or interest in the proceeding
ture, or any officer(s) or employee(s) should not be dismissed, denied, disre
to whom authority has heretofore garded, or otherwise adversely affect
been delegated, or whom authority ed on account of such violation.
may hereafter he delegated, to act in (e) To the extent consistent with the
his stead. interests of justice and the policy of the underlying statute, a violation of
(d) “Respondent” means the cooper
ative this section shall be sufficient grounds
associations, association, for a decision adverse to the party who
against whom a complaint has been
issued. knowingly commits a violation of this section or who knowingly causes such
(e) “Hearing Clerk” means the Heara violation to occur.
ing Clerk, United States Department (f) For purposes of this section “ex
of Agriculture, Washington, D.C. parte communication" means an oral
20250. or written communication not on the (f) "Judge” means any Administrapublic record with respect to which tive Law Judge appointed pursuant to reasonable prior notice to all parties is 5 U.S.C. 3105 (the Administrative Pronot given, but it shall not include re- cedure Act) and assigned to the proquests for status reports on any ceeding involved. matter or the proceeding.
(g) “Judicial Officer" means an offi
cial of the United States Department Subpart 1-Rules of Practice Govern- of Agriculture delegated authority by
ing Cease and Desist Proceedings the Secretary, pursuant to the Act of Under Section 2 of the Capper-Vol- April 4, 1940 (7 U.S.C. 450c-450g) and stead Act
Reorganization Plan No. 2 of 1953 (5
U.S.C. 1976 ed., Appendix, p. 764), to AUTHORITY: 42 Stat. 388, 7 U.S.C. 291, 292.
perform the function involved (7 CFR SOURCE: 45 FR 6587, Jan. 29, 1980, unless
2.35), or the Secretary if he exercises otherwise noted.
the authority so delegated.
(h) “Decision" means: (1) the § 1.160 Scope and applicability of rules in Judge's decision, and includes (i) findthis part.
ings and conclusions and the reasons The rules of practice in this part
or basis therefor on all material issues shall be applicable to cease and desist of fact, law, or discretion, (ii) order, proceedings, initiated upon complaint and (iii) rulings on proposed findings, by the Secretary of Agriculture, pursu- conclusions and order submitted by ant to section 2 of the Capper-Vol- the parties, and (2) the decision and stead Act.
order by the Judicial Officer upon an
appeal of the Judge's decision. $ 1.161 Definitions.
(i) “Hearing” means that part of the As used in this part, words in the proceeding which involves the submissingle form shall be deemed to import sion of evidence before the Judge for the plural, and vice versa, as the case
the record in the proceeding. may require. The following terms shall (j) “Association" means a cooperabe construed, respectively, to mean: tive association, a federation of coop
(a) “Act” means the Capper-Vol- eratives, or other association of agristead Act, approved February 18, 1922, cultural producers, as defined in sec42 Stat. 388, 7 U.S.C. 291, 292.
tion 1 of the Act.
in response to each of the allegations of the complaint, and shall clearly set forth any affirmative defense.
(c) Default. Failure to file an answer shall constitute an admission of the allegations in the complaint, and may be the basis for a decision upon the presentation of a prima facie case by the complainant.
$ 1.162 Institution of proceedings.
(a) Filing of Information. Any person having information that any agricultural association, as defined in the Capper-Volstead Act, is engaged in any practice which monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any agricultural product is unduly enhanced by reason thereof, may submit such information to the Secretary. Such information shall be in writing and shall contain a complete statement of facts detailing the price enhancement and the practices alleged.
(b) Consideration of Information. The Secretary shall consider all information filed under part (a) of this section, and any other information which he may obtain relating to a violation of section 2 of the Act. If the Secretary finds that there is reason to believe that any association monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any agricultural product is unduly enhanced thereby he shall cause a complaint to be filed, requiring the association to show cause why an order should not be made directing the association to cease and desist from such monopolization or restraint of trade. The complaint shall be filed with the Hearing Clerk, who shall assign to the proceeding a docket number and effect service upon respondent. 8 1.163 The complaint.
The complaint shall state briefly all allegations of fact which constitute a basis for the proceeding, and shall designate a time and place for the hearing in the matter, which shall be at least 30 days after the service of the complaint upon the respondent.
$ 1.165 Amendments.
Amendments to the complaint may be made prior to the filing of an answer in which case the time for filing the answer shall be extended 20 days or for other time agreed to by the parties. After the answer is filed, amendments to the complaint, or to the answer or other pleading, may be made by agreement of the parties or allowed at the discretion of the Judge. In case of an amendment which significantly changes the issues, the hearing shall, on the request of a party, be postponed or adjourned for a reasonable period, if the Judge determines that such action is necessary to avoid prejudice to the party.
$ 1.166 Consent order.
At any time, complainant and respondent may agree to the entry of a consent order. Such order shall be entered by the Judge (prior to a decision) or the Judicial Officer (after a decision by the Judge), and become effective on the date specified therein.
8 1.167 Prehearing conference.
Upon motion of a party or upon the Judge's own motion, the Judge may direct the parties to attend a prehearing conference when the Judge finds the proceeding would be expedited by prehearing discussions on matters of procedure and/or possible stipulations, for the purpose of (a) simplifying the issues, (b) limitation of expert or other witnesses, (c) orderly presentation of complex evidence, and (d) such other matters as may expedite and aid in the disposition of the proceeding.
8 1.164 Answer.
(a) Filing and Service. Within 20 days after service of the complaint, or such other time as may be specified therein, the respondent shall file with the Hearing Clerk, an answer, signed by the respondent or his attorney. The answer shall be served upon the complainant by the Hearing Clerk.
(b) Contents. The answer shall clearly admit, deny, or offer an explanation
$ 1.168 Procedure for hearing.
(a) Time and Place. The oral hearing shall be held at such time and place as specified in the complaint, and not less than 30 days after service thereof. The