[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3824]


[[Page Unknown]]

[Federal Register: February 25, 1994]


                                                    VOL. 59, NO. 38

                                          Friday, February 25, 1994
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DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Parts 0, 1, 47, 50, 51, 52, 53, 54, and 180

Packers and Stockyards Administration

9 CFR Part 202

 

Rules of Practice

AGENCY: Office of the Secretary of Agriculture, USDA.

ACTION: Proposed rule.

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SUMMARY: We propose to amend the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes, the Rules of Practice Governing Cease and Desist Proceedings 
Under section 2 of the Capper-Volstead Act, the Rules of Practice Under 
the Perishable Agricultural Commodities Act, and the Rules of Practice 
Applicable to Reparation Proceedings Under the Packers and Stockyards 
Act. The proposal would provide that conferences shall be conducted by 
telephone or correspondence, and hearings and depositions by telephone 
unless the person conducting the proceeding orders that the conference, 
hearing and deposition be conducted by audio-visual telecommunication 
or personal attendance. This proposal would also provide for the use of 
recordings of hearings and depositions. These amendments would save the 
government and those who participate in the proceedings time and money.

DATES: Consideration will be given only to comments received on or 
before April 26, 1994.

ADDRESSES: Please send an original and three copies of your comments to 
William Jenson, Senior Counsel, Office of the General Counsel, USDA, 
Room 2422, South Building, 14th Street and Independence Avenue SW., 
Washington, DC 20250. Comments received may be inspected at USDA, Room 
2422, South Building, 14th Street and Independence Avenue SW., 
Washington, DC 20250, between 8 a.m. and 4:30 p.m., Monday through 
Friday, except holidays. Persons wishing to inspect comments are 
encouraged to call ahead (202) 720-2453 to facilitate entry.

FOR FURTHER INFORMATION CONTACT:
Mary Hobbie, Deputy Assistant General Counsel, Trade Practices 
Division, Office of the General Counsel, USDA, room 2446, South 
Building, 14th Street and Independence Avenue SW., Washington, DC 
20250, (202) 720-5293.

SUPPLEMENTARY INFORMATION: 

Background

    The Department conducts a number of adjudicatory proceedings in 
which conferences, depositions, and hearings are held. Many of the 
conferences, depositions, and hearings are conducted by personal 
attendance which necessitates travel by those who participate in the 
conference, deposition, or hearing.
    Generally, conferences, at which personal attendance is required, 
are attended by the person conducting the proceeding (an administrative 
law judge, hearing officer, examiner, or presiding officer), the 
parties to the proceeding, and counsel for the parties to the 
proceeding. Depositions are attended by an officer authorized to 
administer oaths, a court reporter, the parties, counsel for the 
parties, and the deponent. Hearings are attended by the person 
conducting the proceeding, the parties to the proceeding, counsel for 
the parties to the proceeding, a court reporter, and witnesses called 
by the parties.
    The costs associated with travel to Department conferences, 
depositions, and hearings (meals, lodging, and actual travel expense) 
are often substantial. These travel costs burden all taxpayers and 
particularly burden the individuals who attend these proceedings. In 
addition to expenditure of money, individuals personally attending the 
proceedings often must spend valuable time traveling to and from these 
conferences, depositions, and hearings.
    We believe that most conferences conducted in connection with 
adjudicatory proceedings, held by the Department can be conducted by 
telephone or correspondence, and that most depositions and hearings 
conducted in connection with adjudicatory proceedings held by the 
Department can be conducted by telephone or audio-visual 
telecommunication. Therefore, we propose to amend the Rules of Practice 
Governing Formal Adjudicatory Proceedings Instituted by the Secretary 
Under Various Statutes (7 CFR 1.130 through 1.151) (referred to as the 
``Uniform Rules'' below), the Rules of Practice Governing Cease and 
Desist Proceedings Under Section 2 of the Capper-Volstead Act (7 CFR 
1.160 through 1.175) (referred to as the ``Capper-Volstead Rules'' 
below), the Rules of Practice Under the Perishable Agricultural 
Commodities Act Applicable to Reparation Proceedings (7 CFR 47.1 
through 47.25 and 47.46) (referred to as the ``PACA Reparation Rules'' 
below), Rules of Practice Under the Perishable Agricultural Commodities 
Act Applicable to Determinations as to Whether a Person is Responsibly 
Connected With A Licensee Under the Perishable Agricultural Commodities 
Act (7 CFR 47.1, 47.2(a) through 47.2(h), and 47.47 through 47.68) 
(referred to below as the ``PACA Responsibly Connected Rules''), and 
the Rules of Practice Applicable to Reparation Proceedings Under the 
Packers and Stockyards Act (9 CFR 202.101 through 202.123) (referred to 
below as the P&S Reparation Rules) as described below, to specifically 
provide that conferences may be conducted by telephone, correspondence, 
audio-visual telecommunication, or by personal attendance of the 
participants and to specifically provide that depositions and hearings 
may be conducted by telephone, audio-visual telecommunication, or 
personal attendance of the participants.
    We also propose to amend these rules of practice to allow the use 
of recordings of depositions and hearings instead of requiring the 
transcription of depositions and hearings. Transcription of hearings 
and depositions is more expensive than recording hearings and 
depositions, and transcriptions do not provide a better record of 
hearings and depositions than audio or audio-visual recordings.
    The Department conducts numerous hearings in accordance with rules 
of practice which we are not proposing to amend. However, the vast 
majority of the Department's adjudicatory proceedings are conducted in 
accordance with the Uniform Rules, the Capper-Volstead Rules, the PACA 
Reparation Rules, the PACA Responsibly Connected Rules, and the P&S 
Reparation Rules which we are proposing to amend. We intend to review 
other Department rules of practice applicable to other Department 
proceedings (both adjudicatory and non-adjudicatory) and, if 
appropriate, propose to amend those rules of practice to provide for 
conducting all or part of those proceedings by telecommunication and to 
provide for recordings in lieu of transcription.
    We have carefully considered the due process concerns that could be 
raised regarding Department proceedings conducted by telecommunication. 
This proposal provides for conducting conferences, depositions, and 
hearings by personal attendance in circumstances in which any party may 
be prejudiced by conducting the conference, deposition, or hearing by 
telecommunication or when a disability of any individual expected to 
participate in the conference, deposition, or hearing necessitates that 
the conference, deposition, or hearing be conducted by personal 
attendance.

Conferences

    Current 7 CFR 1.140(c) provides that in the event that the Judge 
concludes that personal attendance by the Judge and the parties or 
counsel at a conference under the Uniform Rules is unwarranted or 
impracticable, but determines that a conference would expedite the 
proceeding, the Judge may conduct the conference by telephone or 
correspondence. Current 7 CFR 1.167 provides that the Judge may direct 
the parties to attend a conference under the Capper-Volstead Rules when 
the Judge finds that the conference would expedite the proceeding. 
Title 4, CFR, Sec. 1.167 does not state the manner in which the 
conference is to be held. Current 7 CFR 47.14 provides that an examiner 
conducting a proceeding under the PACA Reparation Rules may request the 
parties to appear at a conference before the examiner to expedite or 
aid in the disposition of the proceeding. If appearance is not 
practical, the examiner may request the parties to correspond with the 
examiner to expedite or aid in the disposition of the proceeding. 
(There are no provisions for conferences under the PACA Responsibly 
Connected Rules). Current 9 CFR 202.110 provides that the presiding 
officer conducting a proceeding under the P&S Reparation Rules, at any 
time prior to the commencement of a hearing, may request the parties or 
their counsel to appear at a conference to expedite and aid in the 
disposition of the proceeding. If appearance at the conference is 
impracticable, the presiding officer may conduct the conference by 
telephone or correspondence.
    We propose to amend 7 CFR 1.140(c), 1.167, and 47.14 and 9 CFR 
202.110 to provide that conferences shall be conducted by telephone or 
correspondence unless the Judge (the examiner, under the PACA 
Reparation Rules; and the presiding officer, under the P&S Reparation 
Rules) determines that audio-visual telecommunication of the 
conference: (1) Would cost less than conducting the conference by 
telephone or correspondence; (2) is necessary to prevent prejudice to a 
party; or (3) is necessary because of a disability of any individual 
expected to participate in the conference. We also propose that if the 
conference is not conducted by telephone or correspondence that it 
shall be conducted by audio-visual telecommunication unless the Jude 
(the examiner, under the PACA Reparation Rules; and the presiding 
officer, under the P&S Reparation Rules) determines that personal 
attendance of any individual expected to participate in the conference: 
(1) Would cost less than conducting the conference by audio-visual 
telecommunication; (2) is necessary to prevent prejudice to a party; or 
(3) is necessary because of a disability of any individual expected to 
participate in the conference.
    We believe that the vast majority of conferences should be 
conducted by telephone or correspondence. These conferences are 
generally held to narrow issues, focus testimony, discuss settlement, 
and expedite the proceeding. Observations of demeanor for the purposes 
of determining credibility of persons participating in such conferences 
is not relevant to the conference.
    We propose three specific bases for an order by the person 
conducting the proceeding that the conference be conducted by audio-
visual telecommunication rather than telephone or correspondence. 
First, the person conducting the proceeding could order that the 
conference be conducted by audio-visual telecommunication when the 
person conducting the proceeding determines that a conference conducted 
by audio-visual telecommunication would cost less than conducting the 
conference by telephone or correspondence. We believe that most 
conferences conducted by telephone or correspondence will be less 
expensive than conferences conducted by audio-visual telecommunication. 
However, there are rare situations in which conferences conducted by 
audio-visual telecommunication may be less expensive than conferences 
conducted by telephone or correspondence. For instance, conferences 
conducted by audio-visual telecommunication held during or just prior 
to a hearing conducted by audio-visual telecommunication may be less 
expensive than conferences conducted by correspondence or telephone.
    Second, the person conducting the proceeding could order that a 
conference be conducted by audio-visual telecommunication if conducting 
the conference by audio-visual telecommunication is necessary to 
prevent prejudice to a party. While this is extremely unlikely, there 
may be unusual circumstances in which a party is denied due process or 
is put at a disadvantage if the party is required to participate in a 
conference conducted by telephone or correspondence and this prejudice 
would be negated by conducting the conference by audio-visual 
telecommunication.
    Third, the person conducting the proceeding could order that a 
conference be conducted by audio-visual telecommunication if it is 
necessary because of a disability of any individual expected to 
participate in the conference. For instance, if an individual expected 
to participate in the conference has a severe speech or hearing 
impediment and has difficulty communicating in writing, an audio-visual 
telecommunication conference, instead of a conference conducted by 
telephone, may be necessary.
    Further, we propose that, if the conference is not conducted by 
telephone or correspondence, the conference shall be conducted by 
audio-visual telecommunication unless the person conducting the 
proceeding determines that conducting the conference by personal 
attendance of any individual who is expected to participate in the 
conference: (1) Would cost less than conducting the conference by 
audio-visual telecommunication; (2) is necessary to prevent prejudice 
to a party; or (3) is necessary because of a disability of any 
individual expected to participate in the conference.
    We propose three bases for an order by the person conducting the 
proceeding to require that the conference be conducted by personal 
attendance of the participants instead of audio-visual 
telecommunication. These are the same bases as we propose with respect 
to a presiding person's order that the conference be conducted by 
audio-visual telecommunication instead of by telephone or 
correspondence.
    We also propose that any determination be the person conducting the 
proceeding that audio-visual telecommunication or personal attendance 
of any individual at a conference is necessary, and the basis for that 
determination, must be reduced to a written order and filed with the 
Hearing Clerk, unless the person conducting the proceeding orders the 
audio-visual telecommunication of a conference to be held during a 
hearing conducted by audio-telecommunication or personal attendance of 
an individual at a conference to be held during a hearing and that 
individual is personally attending the hearing. A party may appeal the 
presiding person's order to the Judicial Officer (the Secretary, under 
the PACA Reparation Rules) by filing an interlocutory appeal petition 
with the Hearing Clerk.
    We believe that the cost of conferences conducted by audio-visual 
telecommunication and personal attendance should be avoided, if 
possible, and that the parties who generally bear most of the costs 
associated with conferences conducted by audio-visual telecommunication 
or personal attendance should be given an opportunity to appeal orders 
to conduct these conferences by audio-visual telecommunication or 
personal attendance. In order to limit a party's ability to disrupt a 
scheduled conference, we also propose that no party may file an 
interlocutory appeal petition within 5 days of the scheduled date of 
the conference, and any interlocutory appeal petition must be filed 
within 10 days after service of a presiding person's order on the party 
filing the interlocutory appeal petition.
    We also propose that, within 10 days after the service of a copy of 
an interlocutory appeal petition, any party to the proceeding, other 
than the party who filed the interlocutory appeal petition, may file 
with the Hearing Clerk a response in support of or in opposition to the 
interlocutory appeal petition.
    In order to allow the Judicial Officer (the Secretary, under the 
PACA Reparation Rules) time to consider both the appeal from the 
presiding person's order to attend a conference personally and any 
response to the appeal, we propose that the presiding person's order 
which is the subject of a party's interlocutory appeal petition shall 
be stayed from the time the interlocutory appeal petition is filed 
until 5 days after the Judicial Officer's (the Secretary's, under the 
PACA Reparation Rules) ruling on the interlocutory appeal petition is 
served on all of the parties to the proceeding.

Hearings

    Current 7 CFR 1.141(b) provides that, under the Uniform Rules, the 
Judge shall set the time and place of hearing by notice filed with the 
Hearing Clerk. Further, if any change in the time or place is made, the 
Judge is required to give the parties notice of the change. Current 7 
CFR 1.168 sets forth the procedure for hearings under the Capper-
Volstead Rules. Current 7 CFR 47.15 provides that, under the PACA 
Reparation Rules, the examiner shall set the time and place of hearing 
by notice filed with the Hearing Clerk. Further, if any change in the 
time or place is made, the examiner is required to give the parties 
notice of the change. Current 7 CFR 47.49(f) provides that, under the 
PACA Responsibly Connected Rules, the presiding officer shall issue an 
order for a hearing if one is requested by the petitioner or found 
necessary by the presiding officer. Currently, in all cases in which 
there is an oral hearing, the presiding officer must require the 
petitioner to appear in person for the purpose of oral testimony and 
examination. Current 7 CFR 47.53 requires the presiding officer to 
provide the parties to the proceeding with notice of the time and place 
of hearing and notice of any change in the time or place of hearing. 
Current 9 CFR 202.112 provides that, under the P&S Reparation Rules, 
the presiding officer shall set a time and place for oral hearing and 
provide notice to the parties prior to the oral hearing. Further, if 
any change in the time or place is made, the presiding officer is 
required to give notice of the change.
    We propose to amend 7 CFR 1.141(b), 47.15(c), and 47.53 and 9 CFR 
202.112(b) to provide that the presiding person's notice shall also 
state the manner in which the hearing is to be held (telephone, audio-
visual telecommunication, or personal attendance of any individual 
expected to participate in the hearing). Further, we propose to amend 7 
CFR 1.141(b), 1.168, 47.15, and 47.49(f) and 9 CFR 202.112(a) to 
require that the hearing shall be conducted by telephone unless the 
person conducting the proceeding determines that conducting the hearing 
by audio-visual telecommunication: (1) Would cost less than conducting 
the hearing by telephone; (2) is necessary to prevent prejudice to a 
party; (3) is necessary because of the importance of observing the 
demeanor of any individual who is expected to testify at the hearing; 
or (4) is necessary because of a disability of any individual expected 
to participate in the hearing.
    We propose four specific bases for an order by the person 
conducting the proceeding that an audio-visual hearing be conducted 
instead of a hearing conducted by telephone. First, the person 
conducting the proceeding could order that the hearing be conducted by 
audio-visual communication if conducting the hearing by audio-visual 
telecommunication would cost less than conducting the hearing by 
telephone. Given the current relative cost and availability of the two 
technologies, we believe that most, if not all, hearings conducted by 
telephone will be less expensive than hearings conducted by audio-
visual telecommunication.
    Second, the person conducting the proceeding could order that a 
hearing be conducted by audio-visual telecommunication if conducting 
the hearing by audio-visual telecommunication is necessary to prevent 
prejudice to a party. While this is extremely unlikely, there may be 
unusual circumstances in which a party is denied due process or is put 
at a disadvantage if the party is required to participate in a hearing 
conducted by telephone and this prejudice would be negated by 
conducting the hearing by audio-visual telecommunication.
    Third, the person conducting the proceeding could order that the 
hearing be conducted by audio-visual telecommunication instead of by 
telephone if the person conducting the proceeding determines that 
audio-visual telecommunication is necessary because of the importance 
of observing the demeanor of any individual who is expected to testify 
at the hearing. Hearings are often held when there is a dispute of 
fact. However, the credibility of those who are expected to testify at 
these hearings is generally not an issue. In the vast majority of 
hearings, disputes regarding facts arise because the parties honestly 
disagree regarding events that took place, the relevance or materiality 
of events to the proceeding, and the relevance or materiality of 
mitigating circumstances. Therefore, only in unusual circumstances 
would the demeanor of persons testifying at a hearing necessitate a 
hearing conducted by audio-visual telecommunication instead of a 
hearing conducted by telephone. Further, voice is an excellent 
determinant of credibility.
    Fourth, the person conducting the proceeding could order that a 
hearing be conducted by audio-visual telecommunication if it is 
necessary because of a disability of any individual expected to 
participate in the hearing. For instance, if an individual expected to 
participate in the hearing has a severe speech or hearing impediment, 
an audio-visual telecommunication hearing, instead of a hearing 
conducted by telephone, may be necessary.
    Further, we propose that, if the hearing is not conducted by 
telephone, the hearing shall be conducted by audio-visual 
telecommunication unless the person conducting the proceeding 
determines that conducting the hearing by personal attendance of any 
individual who is expected to participate in the hearing: (1) Would 
cost less than conducting the hearing by telephone or audio-visual 
telecommunication; (2) is necessary to prevent prejudice to a party; or 
(3) is necessary because of a disability of any individual expected to 
participate in the hearing.
    We propose only three bases for an order by the person conducting 
the proceeding to require that the hearing be conducted by personal 
attendance of the participants instead of audio-visual 
telecommunications. These are the same bases as we propose with respect 
to a presiding person's order that the hearing be conducted by audio-
visual telecommunication instead of by telephone, except that there is 
no provision for requiring personal attendance because of the necessity 
of observing demeanor of an individual who is expected to testify at 
the hearing. A hearing conducted by audio-visual telecommunication 
would provide as good an opportunity to observe demeanor of witnesses 
as a hearing conducted by personal attendance.
    We also propose to require that any order by the person conducting 
the proceeding that the hearing be conducted by audio-visual 
telecommunication or by the personal attendance of those who 
participate in the hearing be reduced to a written order which, within 
proposed specified time limits, may be appealed to the Judicial Officer 
(the Secretary, under the PACA Reparation Rules; the Administrator, 
under the PACA Responsibly Connected Rules) by a party. Hearings 
conducted by audio-visual telecommunication or by personal attendance 
are substantially more expensive than hearings conducted by telephone, 
and parties who generally bear most of these costs should have the 
right to appeal an order to conduct the hearing by audio-visual 
telecommunication or by personal attendance. We further propose that no 
party may file an interlocutory appeal petition within 10 days of a 
scheduled hearing and that any interlocutory appeal petition must be 
filed within 10 days after service of the presiding person's order. 
This will limit a party's ability to disrupt a scheduled hearing.
    Further still, we propose that, if an interlocutory appeal petition 
is timely filed, the presiding person's order to conduct the hearing by 
audio-visual telecommunication or by personal attendance would be 
stayed to allow the Judicial Officer (the Secretary, under the PACA 
Reparation Rules; the Administrator, under the PACA Responsibly 
Connected Rules) to rule on the interlocutory appeal.
    Additionally, we propose to amend 7 CFR 1.141(b), 1.168(b), 
47.15(c), and 47.53 and 9 CFR 202.112 (a) and (b) to specifically 
provide that a party may move that a hearing be conducted by audio-
visual telecommunication or personal attendance. Any such motion would 
be required to be accompanied by a memorandum stating the basis for the 
motion and the circumstances that require the hearing to be conducted 
other than telephonically. Further, parties who want reconsideration of 
the presiding person's order concerning the manner of the hearing would 
be required to make a motion for reconsideration within 10 days of the 
order. This motion would have to be accompanied by a memorandum in 
support of the motion stating the basis for the motion and the 
circumstances that require the hearing to be conducted other than in 
accordance with the presiding person's order.
    Finally, current footnote in 7 CFR 1.141(b) provides that, if there 
is one respondent in a hearing, the hearing is to be held as near as 
possible to the respondent's place of business or residence, depending 
on the availability of a courtroom or other appropriate hearing room. 
If there is more than one respondent, and they have their places of 
business or residence within a single unit of local government, a 
single geographical area within a state, or a single state, the hearing 
is to be held as near as possible to their places of business or 
residence, depending on the availability of a courtroom or other 
appropriate hearing room. We propose to amend footnote 3 in 
Sec. 1.141(b) to eliminate the references to courtrooms and hearing 
rooms because hearings conducted by telephone or audio-visual 
telecommunication will not necessarily be conducted in courtrooms or 
hearing rooms. Instead, we propose to amend footnote 3 in Sec. 1.141(b) 
so that the proximity of a hearing to the respondent(s) place(s) of 
business or residence will be dependent on an appropriate location for 
conducting the hearing. Current 9 CFR 202.112(a) contains similar 
provisions which we also propose to amend.

Depositions

    Current 7 CFR 1.148(b) provides that, under the Uniform Rules, if 
the Judge finds that testimony may not be otherwise available at a 
hearing, the Judge may order the taking of a deposition. The order must 
state the time and place of the deposition. Current 7 CFR 47.16(b) 
provides that, under the PACA Reparation Rules, the examiner may, upon 
application of a party, order the taking of a deposition. The order 
must state the time and place of the deposition. Current 9 CFR 202.109 
provides that, under the P&S Reparation Rules, the presiding officer 
may, upon application of a party, order the taking of a deposition. The 
order must state the time and place of the deposition. (There are no 
provisions for ordering a deposition under the Capper-Volstead Rules or 
under the PACA Responsibly Connected Rules.)
    We propose to amend 7 CFR 1.148(b) and 47.16 and 9 CFR 202.109(d) 
to require that the order of the person conducting the proceeding 
include the manner (telephone, audio-visual telecommunication, or 
personal attendance) of the deposition. Further, we propose to require 
that the deposition be conducted by telephone unless the person 
conducting the proceeding determines that conducting the deposition by 
audio-visual telecommunication: (1) Would cost less than conducting the 
deposition by telephone; (2) is necessary to prevent prejudice to a 
party; or (3) is necessary because of a disability of any individual 
expected to participate in the deposition.
    We propose three specific bases for an order by the person 
conducting the proceeding that the deposition be conducted by audio-
visual telecommunication instead of by telephone. First, the person 
conducting the proceeding could order that the deposition be conducted 
by audio-visual communication if the deposition conducted by audio-
visual telecommunication would cost less than conducting the deposition 
by telephone. Given the current relative cost and availability of the 
two technologies we believe that most, if not all, depositions 
conducted by telephone will be less expensive than depositions 
conducted by audio-visual telecommunication.
    Second, the person conducting the proceeding could order an audio-
visual telecommunication deposition if a deposition conducted by audio-
visual telecommunication is necessary to prevent prejudice to a party. 
While this is extremely unlikely, there may be unusual circumstances in 
which a party is denied due process or is put at a disadvantage if the 
party is required to participate in a deposition by telephone and this 
prejudice would be negated by conducting the deposition by audio-visual 
telecommunication.
    Third, the person conducting the proceeding could order an audio-
visual telecommunication deposition if audio-visual telecommunication 
is necessary because of a disability of any individual expected to 
participate in the deposition. For instance, if an individual expected 
to participate in the deposition has a severe speech or hearing 
impediment, a deposition conducted by audio-visual telecommunication 
may be necessary.
    We further propose that if the deposition is not conducted by 
telephone, the deposition shall be conducted by audio-visual 
telecommunication unless the person conducting the proceeding 
determines that conducting the deposition by personal attendance of any 
individual who is expected to participate in the deposition: (1) Would 
cost less than conducting the deposition by telephone or audio-visual 
telecommunication; (2) is necessary to prevent prejudice to a party; or 
(3) is necessary because of a disability of any individual expected to 
participate in the deposition.
    These are the same bases we proposed with respect to a presiding 
person's order that the deposition be conducted by audio-visual 
telecommunication instead of by telephone.
    We are not proposing that the person presiding over the proceeding 
order a deposition conducted by audio-visual telecommunication based 
upon a determination that it is necessary to observe the demeanor of a 
person testifying at the deposition because depositions are not 
generally attended by the person conducting the proceeding, and, 
therefore, there is no opportunity for the fact finder to observe 
demeanor at these depositions.
    We also propose that any determination by the person conducting the 
proceeding that a deposition be conducted by audio-visual 
telecommunication or personal attendance of any individual expected to 
testify in the deposition, and the basis for this determination, must 
be reduced to a written order which shall be filed with the Hearing 
Clerk and which may be appealed by any party within proposed specified 
time limits. Depositions conducted by audio-visual telecommunication or 
by personal attendance are substantially more expensive than 
depositions conducted by telephone, and parties who generally bear most 
of these costs should have the right to appeal an order to conduct the 
deposition by audio-visual telecommunication or by personal attendance.
    We further propose that no party may file an interlocutory appeal 
petition within 10 days of a scheduled deposition and that any 
interlocutory appeal petition must be filed within 10 days after 
service of the presiding person's order. This will limit a party's 
ability to disrupt a scheduled deposition.
    Further still, we propose that, if an interlocutory appeal petition 
is timely filed, the presiding person's order to conduct the deposition 
by audio-visual telecommunication or by personal attendance would be 
stayed to allow the Judicial Officer (the Secretary, under the PACA 
Reparation Rules) to rule on the interlocutory appeal.

Recordings

    Current 7 CFR 1.141(h) provides that hearings, under the Uniform 
Rules, shall be recorded and transcribed verbatim and that transcripts 
shall be made available to any person at cost. Current 7 CFR 47.60 
provides that, under the PACA Responsibly Connected Rules, any party 
who desires a transcript of a hearing may place an order with the 
reporter, who will furnish and deliver a copy of the transcript at the 
rate provided by contract between the reporter and the Department. 
Current 9 CFR 202.112(h) provides that, under the P&S Reparation Rules, 
any party who desires a transcript of a hearing may place an order with 
the reporter, who will furnish and deliver a copy of the transcript at 
the rate provided by contract between the reporter and the Department. 
(There is no similar provision under the Capper-Volstead Rules or the 
PACA Reparation Rules.)
    We propose to amend 7 CFR 1.141(h) and 47.60 and 9 CFR 202.112(h) 
to require that hearings be recorded verbatim by an electronic 
recording device. Only if a party requests the transcript of a hearing 
or part of a hearing, and the person conducting the proceeding 
determines that the disposition of the proceeding would be expedited by 
a transcript of the hearing or part of a hearing, could the person 
conducting the proceeding order the verbatim transcription of the 
recording as requested by the party. Any presiding person's order to 
transcribe a hearing or part of a hearing and the basis for the order 
must be reduced to a written order and filed with the Hearing Clerk. We 
also propose to require that recordings or transcripts of hearings be 
made available to any person at actual cost of duplication.
    We propose this amendment because the cost of transcription is more 
expensive than the cost of recording a hearing. We believe that a 
hearing or parts of a hearing should only be transcribed when a 
transcript of the hearing or part of the hearing would expedite the 
proceeding.
    Further, we propose amendments to current 7 CFR 1.148 and 9 CFR 
202.109 to provide for recordings of depositions taken in proceedings 
conducted under the Uniform Rules and the P&S Reparation Rules. The 
PACA Reparation Rules currently allow the recording of depositions. As 
stated above, there are no provisions for ordering a deposition under 
the Capper-Volstead Rules or under the PACA Responsibly Connected 
Rules.
    We propose appropriate amendments to the Uniform Rules, the Capper-
Volstead Rules, the PACA Reparation Rules, the PACA Responsibly 
Connected Rules, and the P&S Reparation Rules to provide for the use of 
recordings in the same manner as transcripts are currently used.

Certification or Appeal

    Current 7 CFR 1.143(e) provides that, for proceedings conducted in 
accordance with the Uniform Rules, the submission or certification of 
any motion, request, objection, or other question to the Judicial 
Officer prior to filing an appeal from an initial decision of the Judge 
shall be made by and in the discretion of the Judge. Current 7 CFR 
1.172(e) contains an identical provision relating to proceedings 
conducted in accordance with the Capper-Volstead Rules. Current 7 CFR 
47.13(b) provides that, in proceedings conducted in accordance with the 
PACA Reparation Rules, the submission or certification of any motion, 
request, objection, or other question to the Secretary prior to the 
transmittal of the record to the Secretary shall be in the discretion 
of the examiner. Current 9 CFR 202.118(b) provides that, in proceedings 
conducted under the P&S Reparation Rules, the presiding officer is 
authorized to rule on all motions and requests filed in the proceeding 
prior to the submission of the presiding officer's report to the 
Judicial Officer. Further, 9 CFR 202.118(b) provides that the 
submission or certification of any question to the Judicial Officer, 
prior to the submission of the presiding officer's report to the 
Judicial Officer, shall be in the discretion of the presiding officer.
    We propose to amend 7 CFR 1.143(e) to allow any party to appeal to 
the Judicial Officer a Judge's order: (1) To personally attend a 
conference; (2) to conduct a hearing by audio-visual telecommunication 
or personally attend a hearing; or (3) to conduct a deposition by 
audio-visual telecommunication or personally attend a deposition. 
Further, we propose to amend 7 CFR 47.13(b) to allow any party to 
appeal to the Secretary an examiner's order: (1) To personally attend a 
conference; (2) to conduct a hearing by audio-visual telecommunication 
or personally attend a hearing; or (3) to conduct a deposition by 
audio-visual telecommunication or personally attend a deposition. 
Further still, we propose to amend 7 CFR 1.172(e) to allow any party to 
appeal to the Judicial Officer a Judge's order: (1) To personally 
attend a conference; or (2) to conduct a hearing by audio-visual 
telecommunication or personally attend a hearing. Finally, we propose 
to amend 9 CFR 202.118(b) to allow any party to appeal to the Judicial 
Officer a presiding officer's order: (1) To personally attend a 
prehearing conference; (2) to conduct an oral hearing by audio-visual 
telecommunication or personally attend an oral hearing; or (3) to 
conduct a deposition by audio-visual telecommunication or personally 
attend a deposition. (As stated above, the Capper-Volstead Rules do not 
contain provisions relating to depositions. The PACA Responsibly 
Connected Rules do not contain provisions restricting interlocutory 
appeals to the Administrator.)

Powers of the Person Conducting the Proceeding

    Current 7 CFR 1.144(c) sets forth the powers of the Judges assigned 
to proceedings conducted under the Uniform Rules. Current 7 CFR 
1.144(c)(2) provides that Judges shall have the power to set the time 
and place of a conference and the hearing and change the time and place 
of the hearing. Current 7 CFR 1.173 sets forth the powers of Judges 
assigned to proceedings under the Capper-Volstead Rules. Current 7 CFR 
1.173(d)(2) provides that Judges shall have the power to set the time 
and place of any requested conference, adjourn a hearing from time to 
time, and change the time and place of hearing. Current 7 CFR 47.11 
sets forth the powers of examiners assigned to proceedings conducted 
under the PACA Reparation Rules. Current 7 CFR 47.11(c)(2) provides 
that the examiner shall have the power to set the time and place of 
hearing, adjourn the hearing from time to time, and change the place 
and time of hearing. Current 7 CFR 47.56 sets forth the powers of the 
presiding officer assigned to proceedings under the PACA Responsibly 
Connected Rules. Current 7 CFR 47.56(b) provides that the presiding 
officer shall have the power to set the time and place of hearing, 
adjourn the hearing from time to time, and change the place and time of 
hearing. Current 9 CFR 202.118 sets forth the powers of a presiding 
officer assigned to proceedings under the P&S Reparation Rules. Current 
9 CFR 202.118(a)(1) provides that the presiding officer shall have the 
power to set the time and place of prehearing conference and oral 
hearing, adjourn the oral hearing from time to time, and change the 
place and time of oral hearing.
    We propose to expand these powers to allow the person conducting a 
proceeding under the Uniform Rules, the Capper-Volstead Rules, the PACA 
Reparation Rules, and the P&S Reparation Rules to set the manner of 
conferences (telephone, audio-visual telecommunication or personal 
attendance). (There is no provision for conferences under the PACA 
Responsibly Connected Rules.) Further, we propose to expand these 
powers to allow the person conducting a proceeding under the Uniform 
Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA 
Responsibly Connected Rules and the P&S Reparation Rules to set the 
manner of hearings (telephone, audio-visual telecommunication or 
personal attendance) and to change the manner of the hearing. As stated 
above, before a conference may be conducted by personal attendance, the 
person presiding over the proceeding would be required to make certain 
specified determinations as set forth in proposed 7 CFR 1.140(c), 
proposed 7 CFR 1.167(b), proposed 7 CFR 47.14(c), and proposed 9 CFR 
202.110(b), and before a hearing would be conducted by audio-visual 
telecommunication or by personal attendance, the person presiding over 
the proceeding would be required to make certain specified 
determinations set forth in proposed 7 CFR 1.141(b), proposed 7 CFR 
1.168(b), proposed 7 CFR 47.15(c), proposed 7 CFR 47.49(f), and 
proposed 9 CFR 202.112(a).
    In addition, we propose to add two new powers to the list of 
presiding person's powers specified in current 7 CFR 1.144(c), 
1.173(d), 47.11(c), and 47.56 and 9 CFR 202.118(a). First, in proposed 
7 CFR 1.144(c)(9), proposed 7 CFR 1.173(d)(7), proposed 7 CFR 
47.11(c)(9), proposed 7 CFR 47.56(g), and proposed 9 CFR 202.118(a)(8), 
we provide the person conducting the proceeding with the power to 
require each party to provide all other parties and the presiding 
person with a copy of any exhibit that the party intends to introduce 
into evidence, prior to any hearing to be conducted by telephone or 
audio-visual telecommunication. We believe that this power is necessary 
to expedite hearings conducted by telephone or audio-visual 
telecommunication when the parties expect to introduce numerous 
exhibits.
    We also propose to provide the person conducting proceedings under 
the Uniform Rules, the PACA Reparation Rules, and the P&S Reparation 
Rules with the power to require parties participating in a deposition 
conducted by telephone or audio-visual telecommunication to exchange 
any documents which the parties expect to use for the examination of a 
deponent prior to the deposition. There are no provisions for ordering 
a deposition under the Capper-Volstead Rules or the PACA Responsibly 
Connected Rules.
    Second, we propose in 7 CFR 1.144(c)(11), 1.173(d)(8), 
47.11(c)(11), and 47.56(h) and 9 CFR 202.118(a)(10) to provide persons 
conducting proceedings with the power to require that any hearing to be 
conducted by telephone or audio-visual telecommunication be conducted 
at locations at which the parties and the person conducting the 
proceeding are able to transmit documents during the hearing. This 
would enable each party to enter or use exhibits during a hearing which 
the party did not provide to the person conducting the proceeding and 
other parties prior to the hearing.
    We also propose to provide the person conducting proceedings under 
the Uniform Rules, the PACA Reparation Rules, and the P&S Reparation 
Rules to require that any deposition to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties are able to transmit documents during the deposition. There are 
no provisions for ordering a deposition under the Capper-Volstead Rules 
or the PACA Responsibly Connected Rules.

Written Statements of Direct Testimony

    Current 7 CFR 1.141 sets forth the procedure for hearing under the 
Uniform Rules; current 7 CFR 1.168 sets forth the procedure for hearing 
under the Capper-Volstead Rules; current 7 CFR 47.15 sets forth the 
procedure for oral hearing before an examiner under the PACA Reparation 
Rules; current 7 CFR 47.58 sets forth the rules of evidence at hearings 
conducted under the PACA Responsibly Connected Rules; and current 9 CFR 
202.112 sets forth the procedure for oral hearing under the P&S 
Reparation Rules.
    We propose to amend 7 CFR 1.141, 1.168, 47.15, and 47.58 and 9 CFR 
202.112 to require that each party must exchange, in writing, with all 
other parties, the direct testimony of each witness the party will 
call. This written direct testimony would be required to be in 
narrative form and verified, and exchanged by the parties at least 10 
days prior to the hearing. Further, the oral direct testimony provided 
by a witness at the hearing would be limited to presentation of the 
written direct testimony, unless the person conducting the proceeding 
finds that oral direct testimony which is supplemental to the written 
direct testimony would expedite the proceeding and would not constitute 
surprise. If adopted, this requirement would expedite the hearing and 
would eliminate a party's being taken by surprise concerning any 
material aspect of the direct testimony to be introduced at the 
hearing.
    This requirement would not apply if the hearing is scheduled to 
begin less than 20 days after the notice, issued by the person 
conducting the proceeding, stating the time of the hearing. In a few 
instances, hearings are held on an expedited basis and it would be 
difficult for the parties to adequately prepare written testimony prior 
to the hearing.

7 CFR Part 50

    We are proposing to eliminate all of the Rules of Practice 
Governing Withdrawal of Inspection and Grading Services in 7 CFR part 
50, except those rules relating to conditional withdrawal of services 
in current 7 CFR 50.11 and 50.12 and summary suspension of service in 
current 7 CFR 50.40.
    Title 7, CFR 1.131(b) provides that the Uniform Rules are 
applicable to adjudicatory proceedings under the Agricultural Marketing 
Act of 1946 (7 U.S.C. 1621 et seq.) for the denial or withdrawal of 
inspection, certification, or grading service. Title 7, CFR part 50 
contains rules of practice governing withdrawal of inspection and 
grading services furnished under the Agricultural Marketing Act of 1946 
(7 U.S.C. 1621 et seq.). Since 1977, when the Department promulgated 
the Uniform Rules, all proceedings regarding the withdrawal of 
inspection and grading services furnished under the Agricultural 
Marketing Act of 1946 (7 U.S.C. 1621 et seq.) have been conducted in 
accordance with the Uniform Rules. Further, in the future, we do not 
intend to conduct proceedings regarding withdrawal of inspection and 
grading services furnished under the Agricultural Marketing Act of 1946 
(7 U.S.C. 1621 et seq.) in accordance with the rules of practice in 7 
CFR part 50. Therefore, we propose to delete all of the rules of 
practice in 7 CFR part 50 with the exception of the provisions which 
relate to conditional withdrawal and summary withdrawal of inspection 
and grading services.
    There is no provision in the Uniform Rules which would provide for 
conditional withdrawal and summary suspension of inspection and grading 
services furnished under the Agricultural Marketing Act of 1946 (7 
U.S.C. 1621 et seq.). Therefore, we are proposing to retain the 
provisions in 7 CFR part 50 which relate to conditional withdrawal of 
service and summary suspension of service. These provisions, found in 
current 7 CFR 50.11, 50.12, and 50.40, would be retained in proposed 7 
CFR 50.11 and 50.12. In addition, for clarity, proposed 7 CFR 50.1 
identifies the scope of proposed 7 CFR 50.11 and 50.12; and proposed 7 
CFR 50.10 defines words used in proposed 7 CFR 50.11 and 50.12.
    Current 7 CFR 51.46, 52.54(a), 53.13(a)(2), 54.11(a)(2), and 
180.300(d) contain cross references to the Rules of Practice Governing 
Withdrawal of Inspection and Grading Services in 7 CFR part 50. We are 
proposing to amend these cross references because of the above-
mentioned changes to 7 CFR part 50. Title 7, CFR 51.46, 52.54(a), 
53.13(a)(2), and 54.11(a)(2) would be amended to require that the 
proceedings referenced be held in accordance with the Uniform Rules and 
proposed 7 CFR part 50. Title 7, CFR 180.300(d) would be amended to 
require that the proceeding referenced be held in accordance with the 
Uniform Rules.

7 CFR Part 0

    Current 7 CFR 0.735-11(b)(6) provides that, except as authorized by 
the Inspector General with the consent of a party to the conversation 
when necessary in criminal investigations, Department employees are 
prohibited from monitoring or recording, or authorizing or permitting 
others under their administrative control to monitor or record, 
telephone conversations for the purpose of taking a verbatim transcript 
of all or part of the conversation, unless such monitoring or recording 
is agreed to in advance by all participants in the conversation. 
Current 7 CFR 0.735-11(b)(7) provides that, except as authorized by the 
Inspector General with the consent of a party to the conversation when 
necessary in criminal investigations, Department employees are 
prohibited from utilizing a mechanical or electronic device to monitor 
or record nontelephone conversations, unless such monitoring or 
recording is agreed to in advance by all participants in the 
conversation. We propose to amend 7 CFR 0.735-11(b)(6) and 0.735-
11(b)(7) to allow monitoring and recording conversations during the 
course of a Department proceeding held by telephone or audio-visual 
telecommunication that is conducted by an administrative law judge, 
hearing officer, examiner, or presiding officer.

Minor and Non-substantive Changes

    We are proposing a number of minor and non-substantive changes. 
Specifically, we are proposing to: (1) Eliminate all gender specific 
references in 7 CFR 1.160 through 1.175 and part 47; (2) correct all 
improper cross references in 7 CFR 1.130 through 1.151, 1.160 through 
1.175, and part 47; (3) correct minor errors in the authority citations 
in 7 CFR 1.130 through 1.151, 1.160 through 1.175, and part 47; (4) 
alphabetize the words and terms defined in 7 CFR 1.132, 1.161, and 
47.47 and 9 CFR 202.102; and (5) eliminate an erroneous reference to 
``complaint'' in Sec. 1.141(f) and replace it with a reference to 
``complainant''. In addition, we have proposed to change the references 
to ``prehearing conferences'' in 7 CFR 1.130 through 1.151, 1.160 
through 1.175, and part 47 to ``conference'' because the ``prehearing 
conferences'' referred to in these regulations may be held prior to or 
during a hearing. Further still, we propose other minor non-substantive 
changes for clarity.

Executive Order 12866 and Regulatory Flexibility Act

    We are issuing this proposed rule in conformance with Executive 
Order 12866.
    The changes we are proposing would provide for conducting certain 
conferences, depositions, and hearings in connection with proceedings 
under the Uniform Rules, the Capper-Volstead Rules, the PACA Reparation 
Rules, the PACA Responsibly Connected Rules, and the P&S Reparation 
Rules by telecommunication. Further, the changes we are proposing would 
provide for the use of recordings, rather than transcripts, in 
connection with most depositions and hearings conducted under the 
Uniform Rules, the Capper-Volstead Rules, the PACA Reparation Rules, 
the PACA Responsibly Connected Rules, and the P&S Reparation Rules. 
Finally, this proposal would require each party to exchange, in 
writing, with all other parties in the proceeding, the direct testimony 
of each witness the party intends to call. These proposed amendments 
are designed to save money associated with the purchase of transcripts 
and time and money associated with travel to conferences, depositions, 
and hearings.
    Most of the coast of the proceedings conducted under the Uniform 
Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA 
Responsibly Connected Rules, and the P&S Reparation Rules are borne by 
the United States, which is not a small entity. The vast majority of 
conferences, hearings, and depositions held under the rules we propose 
to amend are conducted at locations convenient to the private 
individuals participating in the proceeding. This requires the United 
States to incur most of the costs associated with travel in connection 
with the proceedings. Further, most conferences held under the rules 
that we are proposing to amend are currently held by telephone, unless 
the conference is held during the hearing. Therefore, this proposal 
would not result in a change with respect to the manner in which most 
conferences are conducted.
    Nonetheless, we believe that, if this rule is adopted, private 
individuals who participate in conferences, depositions, and hearings 
conducted by telecommunication, which will be paid for by the United 
States, will reduce costs which are associated with travel, even to 
convenient locations, and private parties who participate in these 
proceedings will save the difference between the cost of transcripts 
and recordings.
    Most of the private individuals who participate in proceedings 
conducted under the Uniform Rules, the Capper-Volstead Rules, the PACA 
Reparation Rules, the PACA Responsibility Connected Rules, and the P&S 
Reparation Rules are small entities. If adopted, this proposed rule 
would result in a small economic impact on private individuals who 
participate in the proceedings in question.
    Under these circumstances, the Secretary has determined that, if 
adopted, this proposed rule would not have a significant economic 
impact on a substantial number of small entities.

Executive Order 12778

    This proposed rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. If this rule is adopted: (1) All State and local 
laws and regulations that are in conflict with this rule will be 
preempted; (2) no retroactive effect will be given to this rule; and 
(3) administrative proceedings will not be required before parties may 
file suit in court challenging this rule.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1980 does not apply to this proposed 
rule since the proposed rule does not seek answers to identical 
questions or impose reporting or recordkeeping requirements on 10 or 
more persons, and the information collected is not used for general 
statistical purposes.

List of Subjects

7 CFR Part 0

    Conflict of interest.

7 CFR Part 1

    Administrative practice and procedure, Agriculture, Antitrust, 
Blind, Claims, Concessions, Cooperatives, Equal access to justice, 
Federal buildings and facilities, Freedom of information, Lawyers, 
Privacy.

7 CFR Part 47

    Administrataive practice and procedure, Agricultural commodities, 
Agricultural Marketing Service, Brokers.

7 CFR Part 50

    Administrative practice and procedure, Agricultural commodities, 
Agricultural Marketing Service.

7 CFR Part 51

    Agricultural commodities, Food grades and standards, Fruits, Nuts, 
Reporting and recordkeeping requirements, Vegetables.

7 CFR Part 52

    Food grades and standards, Food labeling, Frozen foods, Fruit 
juices, Fruits, Reporting and Recordkeeping requirements, Vegetables.

7 CFR Part 53

    Cattle, Hogs, Livestock, Sheep.

7 CFR Part 54

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

7 CFR Part 180

    Administrative practice and procedure, Labeling, Plants.

7 CFR Part 202

    Administrative practice and procedure, Agriculture, Animals, 
Reparation proceedings.

    Accordingly, we propose to amend 7 CFR part 0, part 1, subpart H 
and subpart I, part 47, part 50, part 51, part 52, part 53, part 54, 
and part 180 and 9 CFR part 202 as follows:

Title 7--[Amended]

PART 0--EMPLOYEE RESPONSIBILITIES AND CONDUCT

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

    Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965, Supp.; 5 CFR 
735.104; 18 U.S.C. 207(j), unless otherwise noted.


Sec. 0.735-11  [Amended]

    2. Section 0.735-11 would be amended as follows:
    a. In paragraph (b)(6), by adding the words ``or such monitoring or 
recording occurs in the course of a Department of Agriculture 
proceeding conducted by telephone or audio-visual telecommunication and 
the person conducting the proceeding is an administrative law judge, 
hearing officer, examiner, or presiding officer'' immediately before 
the semicolon.
    b. In paragraph (b)(7), by adding the words ``or such monitoring or 
recording occurs in the course of a Department of Agriculture 
proceeding conducted by telephone or audio-visual telecommunication and 
the person conducting the proceeding is an administrative law judge, 
hearing officer, examiner, or presiding officer'' immediately before 
the semicolon.

PART 1--ADMINISTRATIVE REGULATIONS

    3. The authority citation for part 1, subpart H, would be revised 
to read as follows:

    Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, 149, 150gg, 162, 163, 
164, 228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2621, 2714, 
2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828; 16 U.S.C. 620d, 
1540(f), 3373; 21 U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f, 
135a, 154, 463(b), 621, 1043, 43 U.S.C. 1740; 7 CFR 2.35, 2.41.


Sec. 1.131  [Amended]

    4. In Sec. 1.131, paragraph (a), the second sentence would be 
revised to read ``Section 1.26 shall be inapplicable to proceedings 
covered by this subpart.''


Sec. 1.132  [Amended]

    5. Section 1.132 would be amended as follows:
    a. In paragraph (d), the reference to ``459g'' would be removed and 
``450g'' added in its place.
    b. In paragraph (d), the reference to ``1970 ed. appendix, p. 550'' 
would be removed and ``App. (1988)'' added in its place.
    c. In paragraph (d), the reference to ``7 CFR 2.35(a)'' would be 
removed and ``Sec. 2.35(a) of this chapter'' added in its place.
    d. Section 1.132 would be amended by removing all paragraph 
designations and placing the definitions in alphabetical order.


Sec. 1.133  [Amended]

    6. In Sec. 1.133, paragraph (a)(1), the first sentence would be 
amended by removing the words ``of this subpart''.


Sec. 1.140  [Amended]

    7. In Sec. 1.140, the section heading would be revised to read as 
set forth below; paragraphs (a)(1) and (b) would be amended by removing 
the word ``prehearing'' in the two places the word appears; and 
paragraph (c) would be revised to read as follows:


Sec. 1.140  Conferences and procedure.

* * * * *
    (c) Manner of Conference. (1) The conference shall be conducted by 
telephone or correspondence unless the Judge determines that conducting 
the conference by audio-visual telecommunication:
    (i) Would cost less than conducting the conference by telephone or 
correspondence;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the conference.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Would cost less than conducting the conference by audio-visual 
telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the conference.
    (3) Any determination by the Judge that audio-visual 
telecommunication or personal attendance of any individual at a 
conference is necessary and the basis for the Judge's determination as 
provided in paragraph (c)(1) or (c)(2) of this section must be reduced 
to a written order and filed with the Hearing Clerk, unless the Judge 
orders the conference to be conducted by audio-visual telecommunication 
during a hearing that is being conducted by audio-visual 
telecommunication or the personal attendance of an individual at a 
conference to be held during a hearing and that individual is 
personally attending the hearing.
    (4) A party may appeal to the Judicial Officer the Judge's order 
issued under this paragraph requiring a conference to be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the conference by filing an interlocutory 
appeal petition with the Hearing Clerk. No party may file an 
interlocutory appeal petition within 5 days of the scheduled date of 
the conference, and any interlocutory appeal petition must be filed 
within 10 days after service of a Judge's order on the party filing the 
interlocutory appeal petition.
    (5) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the Hearing 
Clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (6) The Judge's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 5 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.
* * * * *


Sec. 1.141  [Amended]

    8. Section 1.141 would be amended as follows:
    a. Paragraph (b) would be revised to read as set forth below.
    b. Paragraph (e) would be amended by removing the words ``of these 
rules'' both times they appear.
    c. Paragraph (f) would be amended by removing the word 
``complaint'' and adding ``complainant'' in its place.
    d. Paragraph (g)(7) would be amended by adding the words ``or 
recording'' immediately after the word ``transcript'' each of the three 
times the word ``transcript'' appears.
    e. Paragraphs (g) and (h) would be redesignated as paragraphs (h) 
and (i) respectively.
    f. New paragraph (g) would be added to read as set forth below.
    g. Redesignated paragraph (i) would be revised to read as set forth 
below.


Sec. 1.141  Procedure for hearing.

* * * * *
    (b) Time, place, and manner. (1) If any material issue of fact is 
joined by the pleadings, the Judge, upon motion of any party stating 
that the matter is at issue and is ready for hearing, shall set a time 
and place for hearing as soon as feasible after the motion is filed, 
with due regard for the public interest and the convenience and 
necessity of the parties. The Judge shall file with the Hearing Clerk a 
notice stating the time and place of the hearing.\3\ This notice shall 
state whether the hearing will be conducted by telephone, audio-visual 
telecommunication, or personal attendance of any individual expected to 
participate in the hearing. The Judge's determination regarding the 
manner of the hearing shall be made in accordance with paragraphs 
(b)(3) through (b)(5) of this section. If any change in the time, 
place, or manner of the hearing is made, the Judge shall file with the 
Hearing Clerk a notice of such change, which notice shall be served 
upon the parties, unless it is made during the course of an oral 
hearing and made part of the transcript or recording, or actual notice 
is given to the parties.
---------------------------------------------------------------------------

    \3\The place of hearing in a proceeding under the Packers and 
Stockyards Act shall be set in accordance with the Packers and 
Stockyards Act (7 U.S.C. 228 (e) and (f)). In essence, if there is 
only one respondent, the hearing is to be held as near as possible 
to the respondent's place of business or residence depending on the 
availability of an appropriate location for conducting the hearing. 
If there is more than one respondent and they have their places of 
business or residence within a single unit of local government, a 
single geographical area within a State, or a single State, the 
hearing is to be held as near as possible to their places of 
business or residence depending on the availability of an 
appropriate location for conducting the hearing. If there is more 
than one respondent, and they have their places of business or 
residence distant from each other, 7 U.S.C. 228 (e) and (f) have no 
applicability.
---------------------------------------------------------------------------

    (2)(i) If any material issue of fact is joined by the pleadings and 
the matter is at issue and is ready for hearing, any party may move 
that the hearing be conducted by audio-visual telecommunication or 
personal attendance of any individual expected to attend the hearing 
rather than by telephone. Any motion that the hearing be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to attend the hearing must be accompanied by a memorandum in 
support of the motion stating the basis for the motion and the 
circumstances that require the hearing to be conducted other than 
telephonically.
    (ii) Within 10 days after the Judge issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the Judge reconsider the manner in which the hearing is to be 
conducted. Any motion for reconsideration must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than in accordance with the Judges's notice.
    (3) The hearing shall be conducted by telephone unless the Judge 
determines that conducting the hearing by audio-visual 
telecommunication:
    (i) Would cost less than conducting the hearing by telephone;
    (ii) Is necessary to prevent prejudice to a party;
    (iii) Is necessary because of the importance of observing the 
demeanor of any individual who is expected to testify at the hearing; 
or
    (iv) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (4) If the hearing is not conducted by the telephone, the hearing 
shall be conducted by audio-visual telecommunication unless the Judge 
determines that conducting the hearing by personal attendance of any 
individual who is expected to participate in the hearing:
    (i) Would cost less than conducting the hearing by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (5) Any determination by the Judge that conducting the hearing by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the hearing is necessary and the basis for 
the Judge's determination as provided in paragraph (b)(3) or (b)(4) of 
this section must be reduced to a written order which shall be filed 
with the Hearing Clerk.
    (6) A party may appeal to the Judicial Officer the Judge's order 
issued under this paragraph requiring a hearing to be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the hearing by filing an interlocutory 
appeal petition with the Hearing Clerk. No party may file an 
interlocutory appeal petition within 10 days of the scheduled date of 
the hearing and any interlocutory appeal petition must be filed within 
10 days after service of a Judge's order on the party filing the 
interlocutory appeal petition.
    (7) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the Hearing 
Clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (8) The Judge's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.
* * * * *
    (g) Written statements of a direct testimony. Unless the hearing is 
scheduled to begin less than 20 days after the Judge's notice stating 
the time of the hearing, each party must exchange, in writing, with all 
other parties, the direct testimony of each witness that the party will 
call to provide oral direct testimony at the hearing. The written 
direct testimony must be in narrative form and must be verified. The 
written direct testimony of witnesses shall be exchanged by the parties 
at least 10 days prior to the hearing. The oral direct testimony 
provided by a witness at the hearing will be limited to the 
presentation of the written direct testimony, unless the Judge finds 
that oral direct testimony which is supplemental to the written direct 
testimony would expedite the proceeding and would not constitute 
surprise.
* * * * *
    (i) Transcript or recording. Hearings shall be recorded verbatim by 
electronic recording device. If a party requests the transcript of a 
hearing or part of a hearing and the Judge determines that the 
disposition of the proceeding would be expedited by a transcript of the 
hearing or part of a hearing, the Judge shall order the verbatim 
transcription of the recording as requested by the party. The Judge's 
order to transcribe a hearing or part of a hearing and the basis for 
the order, as provided in this paragraph, must be reduced to a written 
order and filed with the Hearing Clerk. The recordings or transcript of 
hearings shall be made available to any person at actual cost of 
duplication.


Sec. 1.142  [Amended]

    9. Section 1.142 would be amended as follows:
    a. In paragraph (a), the heading would be amended by adding the 
words ``or recording'' immediately after the word ``transcript''.
    b. Paragraph (a)(1) would be amended by adding the words ``or 
recording'' immediately after the word ``transcript''.
    c. Paragraph (a)(2) would be amended by adding the words ``or 
recording'' immediately after the word ``transcript''.
    d. Paragraph (a)(3) would be amended by adding the words ``or 
recording'' immediately after the word ``transcript''.
    e. Paragraph (c)(2) would be amended by removing the words ``of the 
record'' and adding the words ``or recording'' in their place.


Sec. 1.143  [Amended]

    10. In Sec. 1.143, paragraph (e) would be revised to read as 
follows:


Sec. 1.143  Motions and requests.

* * * * *
    (e) Certification or appeal to the Judicial Officer. (1) Except as 
provided in paragraph (e)(2) of this section, the submission or 
certification of any motion, request, objection, or other question to 
the Judicial Officer prior to filing an appeal pursuant to Sec. 1.145 
shall be made by and in the discretion of the Judge. The Judge may 
either rule upon or certify the motion, request, objection, or other 
question to the Judicial Officer, but not both.
    (2) Any party may appeal to the Judicial Officer a Judge's order 
issued under:
    (i) Sec. 1.140(c) to conduct a conference by audio-visual 
telecommunication or personally attend a conference;
    (ii) Sec. 1.141(b) to conduct a hearing by audio-visual 
telecommunication or personally attend a hearing; or
    (iii) Sec. 1.148(b) to conduct a deposition by audio-visual 
telecommunication or personally attend a deposition.


Sec. 1.144  [Amended]

    11. Section 1.144 would be amended as follows:
    a. Paragraph (c)(2) would be revised to read as set forth below.
    b. Paragraphs (c)(9) and (c)(10) would be redesignated as 
paragraphs (c)(13) and (c)(14) respectively.
    c. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) would be 
added to read as set forth below.


Sec. 1.144  Judges.

* * * * *
    (c) * * *
    (2) Set the time, place, and manner of a conference and the 
hearing, adjourn the hearing, and change the time, place, and manner of 
the hearing;
* * * * *
    (9) Require each party to provide all other parties and the Judge 
with a copy of any exhibit that the party intends to introduce into 
evidence prior to any hearing to be conducted by telephone or audio-
visual telecommunication;
    (10) Require each party to provide all other parties with a copy of 
any document that the party intends to use to examine a deponent prior 
to any deposition to be conducted by telephone or audio-visual 
telecommunication;
    (11) Require that any hearing to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties and the Judge are able to transmit documents during the 
hearing;
    (12) Require that any deposition to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties are able to transmit documents during the deposition;
* * * * *


Sec. 1.145  [Amended]

    12. Section 1.145 would be amended as follows:
    a. In paragraph (a), the reference to ``Sec. 1.141(g)(2)'' would be 
removed and ``Sec. 1.141(h)(2)'' added in its place.
    b. In paragraph (c), the second sentence would be amended by adding 
the words ``or recording'' immediately after the word ``transcript''.


Sec. 1.147  [Amended]

    13. In section 1.147, paragraph (c)(2) would be amended by removing 
the words ``of this part''; and paragraph (d) would be amended by 
removing the words ``of this part''.


Sec. 1.148  [Amended]

    14. Section 1.148 would be amended as follows:
    a. Paragraph (b) would be revised to read as set forth below:
    (b) In paragraph (f), the words ``or recording'' would be added 
immediately after the word ``transcript'' in the paragraph heading; in 
paragraph (f)(1), once; in paragraph (f)(2), twice; and in paragraph 
(f)(3), twice.


Sec. 1.148  Depositions.

* * * * *
    (b) Judge's order for taking deposition. (1) If the Judge finds 
that the testimony may not be otherwise available at the hearing, the 
taking of the deposition may be ordered. The order shall be filed with 
the Hearing Clerk and shall state:
    (i) The time of the deposition;
    (ii) The place of the deposition;
    (iii) The manner of the deposition (telephone, audio-visual 
telecommunication, or personal attendance of those who are to 
participate in the deposition);
    (iv) The name of the officer before whom the deposition is to be 
made; and
    (v) The name of the deponent. The officer and the time, place, and 
manner need not be the same as those suggested in the motion for the 
deposition.
    (2) The deposition shall be conducted by telephone unless the Judge 
determines that conducting the deposition by audio-visual 
telecommunication:
    (i) Would cost less than conducting the deposition by telephone;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the deposition.
    (3) If the deposition is not conducted by telephone, the deposition 
shall be conducted by audio-visual telecommunication unless the Judge 
determines that conducting the deposition by personal attendance of any 
individual who is expected to participate in the hearing:
    (i) Would cost less than conducting the hearing by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the deposition.
    (4) Any determination by the Judge that conducting the deposition 
by audio-visual telecommunication or personal attendance of any 
individual expected to participate in the deposition is necessary and 
the basis for the Judge's determination as provided in paragraph (b)(2) 
or (b)(3) of this section must be reduced to a written order which 
shall be filed with the Hearing Clerk.
    (5) A party may appeal to the Judicial Officer the Judge's order 
issued under this paragraph requiring a deposition to be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the deposition by filing an interlocutory 
appeal petition with the Hearing Clerk. No party may file an 
interlocutory appeal petition within 10 days of the scheduled date of 
the deposition and any interlocutory appeal petition must be filed 
within 10 days after service of a Judge's order on the party filing the 
interlocutory appeal petition.
    (6) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the Hearing 
Clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (7) The Judge's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.
* * * * *


Sec. 1.149  [Amended]

    15. In Sec. 1.149, paragraph (b), the last sentence would be 
amended by removing the words ``of this part''.
    16. The authority citation for part 1, subpart I, would be revised 
to read as follows:

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


Sec. 1.161  [Amended]

    17. Section 1.161 would be amended as follows:
    a. In paragraph (c), the word ``he'' would be removed and the word 
``be'' added in its place.
    b. In paragraph (c), the words ``or her'' would be added 
immediately after the word ``his''.
    c. In paragraph (g), the reference to ``1976 ed., appendix, p. 
764'' would be removed and ``App. (1988)'' added in its place.
    d. In paragraph (g), the reference to ``7 CFR 2.35'' would be 
removed and ``Sec. 2.35(a) of this chapter'' added in its place.
    e. In paragraph (g), the words ``or she'' would be added 
immediately after the word ``he''.
    f. Section 1.161 would be amended by removing all paragraph 
designations and placing the definitions in alphabetical order.


Sec. 1.162  [Amended]

    18. Section 1.162 would be amended as follows:
    a. In paragraph (b), in the first sentence, the word ``part'' would 
be removed and the word ``paragraph'' added in its place.
    b. In paragraph (b), in the second sentence, the word ``he'' would 
be removed and '', the Secretary'' added in its place.


Sec. 1.164  [Amended]

    19. In Sec. 1.164, paragraph (a), the first sentence would be 
amended by removing the word ``his'' and adding the words ``the 
respondent's'' in its place.


Sec. 1.167  [Amended]

    20. Section 1.167 would be revised to read as follows:


Sec. 1.167  Conference.

    (a) Purpose. Upon motion of a party or upon the Judge's own motion, 
the Judge may direct the parties to attend a conference when the Judge 
finds that the proceeding would be expedited by discussions on matters 
of procedure and/or possible stipulations. The Conference may include 
discussions regarding:
    (1) Simplification of the issues;
    (2) Limitation of expert or other witnesses;
    (3) The orderly presentation of evidence; and
    (4) Any other matters that may expedite and aid in the disposition 
of the proceeding.
    (b) Manner of the conference. (1) The conference shall be conducted 
by telephone or correspondence unless the Judge determines that 
conducting the conference by audio-visual telecommunication:
    (i) Would cost less than conducting the conference by telephone or 
correspondence; '
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the conference.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Would cost less than conducting the conference by audio-visual 
telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the conference.
    (3) Any determination by the Judge that conducting the conference 
by audio-visual telecommunication or personal attendance of any 
individual expected to participate in the conference is necessary and 
the basis for the Judge's determination as provided in paragraph (b)(1) 
or (b)(2) of this section must be reduced to a written order and filed 
with the Hearing Clerk, unless the Judge orders the conference to be 
conducted by audio-visual telecommunication during a hearing that is 
being conducted by audio-visual telecommunication or the personal 
attendance of an individual at a conference to be held during a hearing 
and that individual is personally attending the hearing.
    (4) A party may appeal to the Judicial Officer the Judge's order 
issued under this paragraph requiring a conference to be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the conference by filing an interlocutory 
appeal petition with the Hearing Clerk. No party may file an 
interlocutory appeal petition within 5 days of the scheduled date of 
the conference and any interlocutory appeal petition must be filed 
within 10 days after service of a Judge's order or the party filing the 
interlocutory appeal petition.
    (5) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the Hearing 
Clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (6) The Judge's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 5 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
the parties to the proceeding.


Sec. 1.168  [Amended]

    21. Section 1.168 would be amended as follows:
    a. In paragraph (e)(1), the first sentence would be amended by 
removing the word ``reported'' and adding the words ``transcribed or 
recorded'' in its place.
    b. In paragraph (e)(2), the first sentence would be amended by 
removing the word ``he'' and by adding the words ``the party'' in its 
place.
    c. In paragraph (e)(2), the second sentence would be amended by 
adding the words ``or recording'' immediately after the word 
``transcript''.
    d. Paragraph (e)(6) would be amended by adding the words ``or 
recording'' immediately after the word ``transcript'' each of the three 
times the word ``transcript'' appears.
    e. Paragraphs (b), (c), (d), and (e) would be redesignated as (c), 
(d), (e), and (f) respectively.
    f. New paragraphs (b) and (f) would be added to read as follows:


Sec. 1.168  Procedure for hearing.

* * * * *
    (b) Manner of hearing. (1) The Judge shall file with the Hearing 
Clerk a notice stating whether the hearing will be conducted by 
telephone, audio-visual telecommunication, or personal attendance of 
any individual expected to attend the hearing and the Judge's 
determination regarding the manner of hearing shall be made in 
accordance with paragraphs (b)(3) through (b)(5) of this section. If 
any change in the manner of the hearing is made, the Judge shall file 
with the Hearing Clerk a notice of the change, which notice shall be 
served on the parties, unless it is made during the course of an oral 
hearing and made part of the transcript or recording, or actual notice 
is given to the parties.
    (2)(i) Any party may move that the hearing be conducted by audio-
visual telecommunication or personal attendance of any individual 
expected to attend the hearing rather than by telephone. Any motion 
that the hearing be conducted by audio-visual telecommunication or 
personal attendance of any individual expected to attend the hearing 
must be accompanied by a memorandum in support of the motion stating 
the basis for the motion and the circumstances that require the hearing 
to be conducted other than telephonically.
    (ii) Within 10 days after the Judge issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the Judge reconsider the manner in which the hearing is to be 
conducted. Any motion for reconsideration must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than in accordance with the Judges's notice.
    (3) The hearing shall be conducted by telephone unless the Judge 
determines that conducting the hearing by audio-visual 
telecommunication:
    (i) Would cost less than conducting the hearing by telephone;
    (ii) Is necessary to prevent prejudice to a party;
    (iii) Is necessary because of the importance of observing the 
demeanor of any individual who is expected to testify at the hearing; 
or
    (iv) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (4) If the hearing is not conducted by telephone, the hearing shall 
be conducted by audio-visual telecommunication unless the Judge 
determines that conducting the hearing by personal attendance of any 
individual who is expected to participate in the hearing:
    (i) Would cost less than conducting the hearing by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (5) Any determination by the Judge that conducting the hearing by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the hearing is necessary and the basis for 
the Judge's determination as provided in paragraph (b)(3) or (b)(4) of 
this section must be reduced to a written order which shall be filed 
with the Hearing Clerk.
    (6) A party may appeal to the Judicial Officer the Judge's order 
issued under this paragraph requiring a hearing to be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to participate in the hearing by filing an interlocutory 
appeal petition with the Hearing Clerk. No party may file an 
interlocutory appeal petition within 10 days of the scheduled date of 
the hearing and any interlocutory appeal petition must be filed within 
10 days after service of a Judge's order on the party filing the 
interlocutory appeal petition.
    (7) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the Hearing 
Clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (8) The Judge's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.
* * * * *
    (f) Written statements of direct testimony. Unless the hearing is 
scheduled to begin less than 20 days after the Judge's notice stating 
the time of the hearing, each party must exchange, in writing, with all 
other parties, the direct testimony of each witness that the party will 
call to provide oral direct testimony at the hearing. The written 
direct testimony must be in narrative form and must be verified. The 
written direct testimony of witnesses shall be exchanged by the parties 
at least 10 days prior to the hearing. The oral direct testimony 
provided by a witness at the hearing will be limited to the 
presentation of the written direct testimony, unless the Judge finds 
that oral direct testimony which is supplemental to the written direct 
testimony would expedite the proceeding and would not constitute 
surprise.
* * * * *


Sec. 1.169  [Amended]

    22. Section 1.169 would be amended as follows:
    a. In paragraph (a), the heading would be revised to read 
``Corrections to transcript or recording.''
    b. In paragraph (a)(1), the words ``or recording'' would be added 
immediately after the word ``transcript''.
    c. In paragraph (a)(2), the words ``or recording'' would be added 
immediately after the word ``transcript'' both times the word 
``transcript'' appears.
    d. In paragraph (a)(3), the words ``or recording'' would be added 
immediately after the word ``transcript'' each of the three times the 
word ``transcript'' appears.
    e. In paragraph (c), in the last sentence, the word ``herein'' 
would be removed.


Sec. 1.170  [Amended]

    23. Section 1.170 would be amended as follows:
    a. In paragraph (a), in the second sentence, the reference to 
``Sec. 1.167(e)(2)'' would be removed and ``Sec. 1.168(g)(2)'' added in 
its place.
    b. In paragraph (c), the words ``or recording'' would be added 
immediately after the word ``transcript''.
    c. In paragraph (i), in the last sentence, the word ``herein'' 
would be removed.


Sec. 1.171  [Amended]

    24. Section 1.171 would be amended by removing the word ``herein''.


Sec. 1.172  [Amended]

    25. Section 1.172 would be amended as follows:
    a. In paragraph (a), the words ``or recording'' would be added 
immediately after the word ``transcript''.
    b. Paragraph (e) would be revised to read as follows:


Sec. 1.172  Motions and requests.

 * * * * *
    (e) Certification or appeal to the Judicial Officer. (1) Except as 
provided in paragraph (e)(2) of this section, the submission or 
certification of any motion, request, objection, or other question to 
the Judicial Officer prior to the time when the Judge's certification 
of the transcript or recording is filed with the Hearing Clerk, shall 
be made by and in the discretion of the Judge. The Judge may either 
rule upon or certify the motion, request, objection, or other question 
to the Judicial Officer, but not both.
    (2) Any party may appeal to the Judicial Officer a Judge's order 
issued under Sec. 1.167(b) to conduct a conference by audio-visual 
telecommunication or personally attend a conference, or a Judge's order 
issued under Sec. 1.168(b) to conduct a hearing by audio-visual 
telecommunication or personally attend a hearing.


Sec. 1.173  [Amended]

    26. Section 1.173 would be amended as follows:
    a. In paragraph (b)(1), the words ``or herself'' would be added 
immediately after the word ``himself''.
    b. In paragraph (b)(2), the word ``he'' would be removed and the 
words ``the Judge'' added in its place.
    c. In paragraph (b)(2), the words ``or herself'' would be added 
immediately after the word ``himself''.
    d. In paragraph (d), in the introductory language, the words ``or 
her,'' would be added immediately after the word ``him''.
    e. Paragraph (d)(2) would be revised to read as set forth below.
    f. Paragraph (d)(7) would be redesignated as paragraph (d)(9).
    g. New paragraphs (d)(7) and (d)(8) would be added to read as set 
forth below.
    h. In paragraph (e), the word ``his '' would be removed and the 
words ``the Judge's'' added in its place.
    i. In paragraph (e), the word ``him'' would be removed and the 
words ``the Judge'' would be added in its place both times the word 
``him'' appears.


Sec. 1.173  Judges.

 * * * * *
    (d) * * *
    (2) Set the time, place and manner of any conference, set the 
manner of the hearing, adjourn the hearing, and change the time, place 
and manner of the hearing;
 * * * * *
    (7) Require each party to provide all other parties and the Judge 
with a copy of any exhibit that the party intends to introduce into 
evidence prior to any hearing to be conducted by telephone or audio-
visual telecommunication;
    (8) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties 
and the Judge are able to transmit documents during the hearing;
 * * * * *


Sec. 1.174  [Amended]

    27. In Sec. 1.174, paragraph (c) would be amended by adding the 
words ``or recording'' after the word ``transcript''.

PART 47--RULES OF PRACTICE UNDER THE PERISHABLE AGRICULTURAL 
COMMODITIES ACT

    28. The authority citation for part 47 would be revised to read as 
follows:

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


Sec. 47.2  [Amended]

    29. Section 47.2 would be amended as follows:
    a. In paragraph (c), the words ``or her'' would be added 
immediately after the word ``his''.
    b. In paragraph (e), the words ``or her'' would be added 
immediately after the word ``his''.
    c. In paragraph (f), the words ``or her'' would be added 
immediately after the word ``his''.
    d. In paragraph (h), the words ``or her'' would be added 
immediately after the word ``his''.


Sec. 47.3  [Amended]

    30. Section 47.3 would be amended as follows:
    a. In paragraph (b)(1), in the first sentence, the word ``his'' 
would be removed and the words ``the Director's'' added in its place.
    b. Paragraph (c) would be revised to read as follows:


Sec. 47.3  Institution of proceedings.

* * * * *
    (c) Status of person filing informal complaint. The person filing 
an informal reparation complaint shall not be a party to any 
disciplinary proceeding which may be instituted as a result of the 
informal reparation complaint. The person filing an informal reparation 
complaint shall have no legal status in the reparation proceeding, 
except as he or she may be subpoenaed as a witness or deposed without 
expense to him or her.


Sec. 47.4  [Amended]

    31. In section 47.4, paragraph (b)(2) would be amended by removing 
the words ``of this part''.


Sec. 47.5  [Amended]

    32. Section 47.5 would be amended by removing the words ``of these 
regulations in this part'' both times the words appear and revising the 
last sentence to read as follows: ``In addition, except to the extent 
that they are inconsistent with Secs. 1.130 through 1.151 of this 
chapter, Secs. 47.1 through 47.5 and 47.46 are also applicable to 
procedures governing the filing and disposition of formal complaints 
and other moving papers relating to administrative proceedings to 
enforce the Act pursuant to Secs. 1.130 through 1.151 of this chapter.


Sec. 47.11  [Amended]

    33. Section 47.11 would be amended as follows:
    a. In paragraph (b), in the second sentence, the word ``he'' would 
be removed and the words ``the Secretary'' would be added in its place.
    b. In paragraph (c), in the introductory language, the words 
``elsewhere in the regulations'' would be removed.
    c. In paragraph (c), in the introductory language, the words ``or 
her'' would be added immediately after the word ``him''.
    d. Paragraph (c)(2) would be revised to read as set forth below.
    e. Paragraph (c)(9) would be redesignated as (c)(13).
    f. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) would be 
added to read as set forth below.
    g. In paragraph (d), the word ``him'' would be removed and the 
words ``the examiner'' added in its place.


Sec. 47.11  Examiners.

* * * * *
    (c) * * *
    (2) Set the time, place, and manner of the hearing, adjourn the 
hearing, and change the time, place, and manner of the hearing;
* * * * *
    (9) Require each party to provide all other parties and the 
examiner with a copy of any exhibit that the party intends to introduce 
into evidence prior to any hearing to be conducted by telephone or 
audio-visual telecommunication;
    (10) Require each party to provide all other parties with a copy of 
any document that the party intends to use to examine a deponent prior 
to any deposition to be conducted by telephone or audio-visual 
telecommunication;
    (11) Require that any hearing to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties and the examiner are able to transmit documents during the 
hearing;
    (12) Require that any deposition to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties are able to transmit documents during the deposition;
* * * * *


Sec. 47.12  [Amended]

    34. Section 47.12 (b), (c), and (d) would be amended by removing 
the word ``he'' and adding the words ``the petitioner''.


Sec. 47.13  [Amended]

    35. Section 47.13 would be amended as follows:
    a. In paragraph (a)(1), the words ``or recording'' would be added 
immediately after the word ``transcript''.
    b. Paragraph (b) would be revised to read as follows:


Sec. 47.13  Motions and requests.

* * * * *
    (b) Certification or appeal to the Secretary. (1) Except as 
provided in paragraph (b)(2) of this section, the submission or 
certification of any motion, request, objection, or other question to 
the Secretary prior to transmittal of the record to the Secretary as 
provided in this part shall be made by and in the discretion of the 
examiner. The examiner may either rule upon or certify the motion, 
request, objection, or other question to the Secretary, but not both.
    (2) Any party may appeal to the Secretary an examiner's order 
issued:
    (i) Under Sec. 47.14(c) to conduct a conference by audio-visual 
telecommunication or personally attend a conference;
    (ii) Under Sec. 47.15(c) to conduct a hearing by audio-visual 
telecommunication or personally attend a hearing; or
    (iii) Under Sec. 47.16(b) to conduct a deposition by audio-visual 
telecommunication or personally attend a deposition.
    36. Section 47.14 would be revised to read as follows:


Sec. 47.14  Conferences.

    (a) In any proceeding in which it appears that a conference will 
expedite the proceeding, the examiner, at any time prior to or during 
the course of the oral hearing, may request the parties or their 
counsel to appear at a conference before the examiner to consider:
    (1) The simplification of the issues;
    (2) The necessity or the desirability of amendments to the 
pleadings;
    (3) The possibility of obtaining stipulations of fact and of 
documents which will avoid unnecessary proof;
    (4) The limitation of the number of expert or other witnesses; or
    (5) Such other matters as may expedite and aid in the disposition 
of the proceeding.
    (b) No transcript or recording of the conference shall be made. If 
the conference is conducted by correspondence, the examiner shall 
forward copies of letters and documents to the parties as circumstances 
require. The correspondence in connection with a conference shall not 
be part of the record. The examiner shall prepare and file for the 
record a written summary of the action agreed upon or taken at the 
conference, which shall incorporate any written stipulations or 
agreements made by the parties at the conference or as a result of the 
conference.
    (c) Manner of the Conference. (1) The conference shall be conducted 
by telephone or correspondence unless the examiner determines that 
conducting the conference by audio-visual telecommunication:
    (i) Would cost less than conducting the conference by telephone or 
correspondence;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the conference.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the examiner determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Would cost less than conducting the conference by audio-visual 
telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the conference.
    (3) Any determination by the examiner that conducting the 
conference by audio-visual telecommunication or personal attendance of 
any individual expected to participate in the conference is necessary 
and the basis for the examiner's determination as provided in paragraph 
(c)(1) or (c)(2) of this section must be reduced to a written order and 
filed with the Hearing Clerk, unless the examiner orders the conference 
to be conducted by audio-visual telecommunication during a hearing that 
is being conducted by audio-visual telecommunication or the personal 
attendance of an individual at a conference to be held during a hearing 
and that individual is personally attending the hearing.
    (4) A party may appeal to the Secretary the examiner's order issued 
under this paragraph requiring a conference to be conducted by audio-
visual telecommunication or personal attendance of any individual 
expected to participate in the conference by filing an interlocutory 
appeal petition with the Hearing Clerk. No party may file an 
interlocutory appeal petition within 5 days of the scheduled date of 
the conference and any interlocutory appeal petition must be filed 
within 10 days after service of an examiner's order on the party filing 
the interlocutory appeal petition.
    (5) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the Hearing 
Clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (6) The examiner's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 5 days after the 
Secretary's ruling on the interlocutory appeal petition is served on 
all of the parties to the proceeding.


Sec. 47.15  [Amended]

    37. Section 47.15 would be amended as follows:
    a. Paragraph (c) would be revised to read as set forth below.
    b. In paragraph (d)(2), the word ``he'' would be removed and the 
words ``the party'' would be added in its place.
    c. In paragraph (d)(2), the words ``or her'' would be added 
immediately after the word ``his''.
    d. In paragraph (d)(3)(i), the words ``or her'' would be added 
immediately after the word ``him''.
    e. In paragraphs (f)(2)(i), the words ``or recording'' would be 
added immediately after the word ``transcript'' both times the word 
``transcript'' appears.
    f. In paragraph (f)(6)(ii), ``recording,'' would be added 
immediately after ``document,'' both times ``document,'' appears.
    g. In paragraph (f)(8), the words ``or recording'' would be added 
immediately after the word ``transcript'' the three times the word 
``transcript'' appears.
    h. In paragraph (g), in the first sentence, the words ``hereinafter 
provided'' would be removed and the words ``provided in this part'' 
would be added in their place.
    i. In paragraph (g), in the second sentence, the word ``he'' would 
be removed and the words ``the examiner'' would be added in its place.
    j. In paragraph (h), the paragraph heading would be revised to read 
``Transcript or recording.''
    k. In paragraph (h), the words ``or recording'' would be added 
immediately after the word ``transcript'' both times the word 
``transcript'' appears.
    l. Paragraphs (f), (g), and (h) would be redesignated as (g), (h), 
and (i) respectively.
    m. A new paragraph (f) would be added to read as set forth below.


Sec. 47.15  Oral hearing before examiner.

* * * * *
    (c) Time, place, and manner. (1) if and when the proceeding has 
reached the stage of oral hearing, the examiner, giving careful 
consideration to the convenience of the parties, shall set a time for 
hearing and shall file with the hearing clerk a notice stating the time 
and place of hearing. Unless the parties otherwise agree, the place of 
the hearing shall be the place in which the respondent is engaged in 
business. This notice shall state whether the hearing will be conducted 
by telephone, audio-visual telecommunication, or personal attendance of 
any individual expected to participate in the hearing and the 
examiner's determination regarding the manner of the hearing shall be 
made in accordance with paragraphs (c)(3) and (c)(4) of this section. 
If any change in the time, place, or manner of the hearing is made, the 
examiner shall file with the hearing clerk a notice of the change. The 
notice of any change in the time, place, or manner of the hearing shall 
be served on the parties, unless it is made during the course of an 
oral hearing and made part of the transcript or recording, or actual 
notice is given to the parties.
    (2)(i) If and when the proceeding has reached the stage of oral 
hearing, any party may move that the hearing be conducted by audio-
visual telecommunication or personal attendance of any individual 
expected to attend the hearing rather than by telephone. Any motion 
that the hearing be conducted by audio-visual telecommunication or 
personal attendance of any individual expected to attend the hearing 
must be accompanied by a memorandum in support of the motion stating 
the basis for the motion and the circumstances that require the hearing 
to be conducted other than telephonically.
    (ii) Within 10 days after the examiner issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the examiner reconsider the manner in which the hearing is to be 
conducted. Any motion for reconsideration must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than in accordance with the examiner's notice.
    (3) The hearing shall be conducted by telephone unless the examiner 
determines that conducting the hearing by audio-visual 
telecommunication:
    (i) Would cost less than conducting the hearing by telephone;
    (ii) Is necessary to prevent prejudice to a party;
    (iii) Is necessary because of the importance of observing the 
demeanor of any individual who is expected to testify at the hearing; 
or
    (iv) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (4) If the hearing is not conducted by telephone, it shall be 
conducted by audio-visual telecommunication unless the examiner 
determines that conducting the hearing by personal attendance of any 
individual who is expected to participate in the hearing:
    (i) Would cost less than conducting the hearing by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (5) Any determination by the examiner that conducting the hearing 
by audio-visual telecommunication or personal attendance of any 
individual expected to participate in the hearing is necessary and the 
basis for the examiner's determination as provided in paragraphs (c)(3) 
or (c)(4) of this section must be reduced to a written order which 
shall be filed with the hearing clerk.
    (6) A party may appeal to the Secretary the examiner's order issued 
under this paragraph requiring a hearing to be conducted by audio-
visual telecommunication or personal attendance of any individual 
expected to participate in the hearing by filing an interlocutory 
appeal petition with the hearing clerk. No party may file an 
interlocutory appeal petition within 10 days of the scheduled date of 
the hearing and any interlocutory appeal petition must be filed within 
10 days after service of an examiner's order on the party filing the 
interlocutory appeal petition.
    (7) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the hearing 
clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (8) The examiner's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the 
Secretary's ruling on the interlocutory appeal petition is served on 
all of the parties to the proceeding.
* * * * *
    (f) Written statements of direct testimony. Unless the hearing is 
scheduled to begin less than 20 days after the examiner's notice 
stating the time of the hearing, each party must exchange, in writing, 
with all other parties, the direct testimony of each witness that the 
party will call to provide oral direct testimony at the hearing. The 
written direct testimony must be in narrative form and must be 
verified. The written direct testimony of witnesses shall be exchanged 
by the parties at least 10 days prior to the hearing. The oral direct 
testimony provided by a witness at the hearing will be limited to the 
presentation of the written direct testimony, unless the examiner finds 
that oral direct testimony which is supplemental to the written direct 
testimony would expedite the proceeding and would not constitute 
surprise.
* * * * *


Sec. 47.16  [Amended]

    38. Section 47.16 would be amended as follows:
    a. Paragraphs (a)(3) and (a)(4) would be revised and paragraphs 
(a)(5) and (a)(6) would be added to read as set forth below.
    b. Paragraph (b) would be revised to read as set forth below.
    c. Paragraph (d)(1) would be revised to read as set forth below.
    d. In paragraph (e), in the first sentence, the word ``him'' would 
be removed and the words ``the officer'' added in its place.
    e. In paragraph (e), in the second sentence, the word ``He'' would 
be removed and the words ``The officer'' added in its place.


Sec. 47.16  Depositions.

    (a) * * *
    (3) the proposed time of the deposition which, unless otherwise 
agreed, shall be at least 30 days after the date of the mailing of the 
application; (4) the proposed place of the deposition; (5) the proposed 
manner in which the deposition is to be conducted (telephone, audio-
visual telecommunication, or by personal attendance of the individuals 
who are expected to participate in the deposition); and (6) the reasons 
for taking the deposition.
    (b) Examiner's order for taking deposition. (1) If, after 
examination of the application, the examiner is of the opinion that the 
deposition should be taken, the examiner shall order the taking of the 
deposition. The order shall be filed with the hearing clerk and shall 
be served by the hearing clerk upon the parties in accordance with 
Sec. 47.4.
    (2) The order shall state:
    (i) The time of the deposition (which unless otherwise agreed shall 
not be less than 20 days after the filing of the order);
    (ii) The place of the deposition;
    (iii) The manner of the deposition (telephone, audio-visual 
telecommunication, or personal attendance of those who are to 
participate in the deposition);
    (iv) The name of the officer before whom the deposition is to be 
made; and
    (v) The name of the deponent.
    (3) The deposition shall be conducted by telephone unless the 
examiner determines that conducting the deposition by audio-visual 
telecommunication:
    (i) Would cost less than conducting the deposition by telephone;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the disposition.
    (4) If the deposition is not conducted by telephone, the deposition 
shall be conducted by audio-visual telecommunication unless the 
examiner determines that conducting the deposition by personal 
attendance of any individual who is expected to participate in the 
hearing:
    (i) Would cost less than conducting the deposition by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the deposition.
    (5) Any determination by the examiner that conducting the 
deposition by audio-visual telecommunication or personal attendance of 
any individual expected to participate in the deposition is necessary 
and the basis for the examiner's determination as provided in paragraph 
(b)(3) or (b)(4) of this section must be reduced to a written order 
which shall be filed with the hearing clerk.
    (6) A party may appeal to the Secretary the examiner's order issued 
under this paragraph requiring a deposition to be conducted by audio-
visual telecommunication or personal attendance of any individual 
expected to participate in the deposition by filing an interlocutory 
appeal petition with the hearing clerk. No party may file an 
interlocutory appeal petition within 10 days of the scheduled date of 
the deposition and any interlocutory appeal petition must be filed 
within 10 days after service of an examiner's order on the party filing 
the interlocutory appeal petition.
    (7) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the hearing 
clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (8) The examiner's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the 
Secretary's ruling on the interlocutory appeal petition is served on 
all of the parties to the proceeding.
* * * * *
    (d) Procedure on examination. (1) The deponent shall be examined 
under oath or affirmation and shall be subject to cross-examination. 
The testimony of the deponent shall be recorded by the officer or some 
person under the officer's direction. In lieu of oral examination, 
parties may transmit written questions to the officer prior to 
examination and the officer shall propound the written questions to the 
deponent.
* * * * *


Sec. 47.17  [Amended]

    39. In Sec. 47.17, paragraph (c), the last sentence would be 
amended by removing the words ``of this part''.


Sec. 47.19  [Amended]

    40. Section 47.19 would be amended as follows:
    a. In paragraph (a), the heading would be revised to read 
``Certifiation of transcript or recording.''.
    b. In paragraph (a), the words ``or recording'' would be added 
immediately after the word ``transcript'' each of the five times the 
word ``transcript'' appears.
    c. In paragraph (a), the words ``or her'' would be added 
immediately after the word ``his'' both times time the word ``his'' 
appears.
    d. In paragraph (a) of the word ``he'' would be removed and the 
words ``the examiner'' added in its place both times the word ``he'' 
appears.
    e. In paragraph (b), in the second sentence, the words ``or she'' 
would be added immediately after the word ``he''.
    f. In paragraph (d)(3), the word ``his'' would be removed and the 
words ``the party's'' would be added in its place.
    g. In paragraph (d)(6), in the first sentence, the words ``or her'' 
would be added immediately after the word ``his''.
    h. In paragraph (e) the words ``or her'' would be added immediately 
after the word ``his''.


Sec. 47.20  [Amended]

    41. Section 47.20 would be amended as follows:
    a. In paragraph (b)(2) the words ``or she'' would be added 
immediately after the word ``he'' both times the word ``he'' appears.
    b. In paragraph (h) the words ``(or she)'' would be added 
immediately after the word ``he'' both times the word ``he'' appears.
    c. In paragraph (k) the words ``or her'' would be added immediately 
after the word ``his''.
    d. In paragraph (l) the words ``or her'' would be added immediately 
after the word ``his''.


Sec. 47.21  [Amended]

    42. Section 47.21 would be amended by adding the words ``or 
recording'' immediately after the word ``transcript'' and by removing 
the word ``prehearing''.


Sec. 47.22  [Amended]

    43. In Sec. 47.22, paragraph (a) would be amended by removing the 
reference to ``Sec. 47.15(g)'' and adding ``Sec. 47.15(h)'' in its 
place.


Sec. 47.23  [Amended]

    44. Section 47.23 would be amended by removing the word ``he'' and 
adding the words ``the Secretary'' in its place each of the three times 
the word ``he'' appears; and by adding the words ``or her'' immediately 
after the word ``his'' each of the three times the word ``his'' 
appears.


Sec. 47.24  [Amended]

    45. In Sec. 47.24, paragraph (a) would be amended by removing the 
word ``he'' and adding the words ``the Secretary'' in its place both 
times the word ``he'' appears.


Sec. 47.25  [Amended]

    46. In Sec. 47.25, paragraph (e) would be amended by removing the 
words ``the regulations in'', and by adding the words ``or her'' 
immediately after the word ``him''.


Sec. 47.46  [Amended]

    47. Section 47.46 would be amended by removing the word ``he'' and 
adding the words ``the Secretary'' both times the word ``he'' appears; 
and adding the words ``or her'' immediately after the word ``his''.


Sec. 47.47  [Amended]

    48. Section 47.47 would be amended as follows:
    a. In the introductory language, the reference to ``7 CFR 47.2 (a) 
through (h)'' would be removed and ``Secs. 47.2 (a) through (h)'' added 
in its place.
    b. In the introductory language, the reference to ``7 CFR 47.47 
through 47.68'' would be removed and ``Secs. 47.47 through 47.68'' 
added in its place.
    c. Section 47.47 would be amended by removing all paragraph 
designations and placing the definitions in alphabetical order.


Sec. 47.49  [Amended]

    49. In section 47.49, paragraph (f) would be revised to read as 
follows:


Sec. 47.49  Determinations

* * * * *
    (f)(1) The presiding officer will order that an oral hearing be 
held if one is requested by the petitioner, or if the presiding officer 
determines that an oral hearing is necessary. A verbatim record shall 
be made of the hearing. In the event that an oral hearing is neither 
requested by the petitioner, nor ordered by the presiding officer, the 
presiding officer shall provide the petitioner a copy of the official 
file, and give the parties an opportunity to submit documents and other 
evidence to support their positions, as well as written arguments 
pertaining to their positions.
    (2) The hearing shall be conducted by telephone unless the 
presiding officer determines that conducting the hearing by audio-
visual telecommunication:
    (i) Would cost less than conducting the hearing by telephone;
    (ii) Is necessary to prevent prejudice to a party;
    (iii) Is necessary because of the importance of observing the 
demeanor of any individual who is expected to testify at the hearing; 
or
    (iv) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (3) If the hearing is not conducted by telephone, the hearing shall 
be conducted by audio-visual telecommunication unless the presiding 
officer determines that conducting the hearing by personal attendance 
of any individual who is expected to participate in the hearing:
    (i) Would cost less than conducting the hearing by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the hearing.
    (4) Any determination by the presiding officer that conducting the 
hearing by audio-visual telecommunication or personal attendance of any 
individual expected to participate in the hearing is necessary and the 
basis for the presiding officer's determination as provided in 
paragraph (f)(2) or (f)(3) of this section must be reduced to a written 
order which shall be filed with the Administrator.
    (5) A party may appeal to the Administrator the presiding officer's 
order issued under this paragraph requiring a hearing to be conducted 
by audio-visual telecommunication or personal attendance of any 
individual expected to participate in the hearing by filing an 
interlocutory appeal petition with the Administrator. No party may file 
an interlocutory appeal petition within 10 days of the scheduled date 
of the hearing and any interlocutory appeal petition be filed within 10 
days after service of a presiding officer's order on the party filing 
the interlocutory appeal petition.
    (6) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the 
Administrator a response in support of or in opposition to the 
interlocutory appeal petition.
    (7) The presiding officer's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the 
Administrator's ruling on the interlocutory appeal petition is served 
on all of the parties to the proceeding.
    50. Section 47.53 would be revised to read as follows:


Sec. 47.53  Notice of time, place, and manner of hearing and provision 
of the official file.

    (a) Upon assignment of the matter for oral hearing, the presiding 
officer shall notify the parties by serving them with copies of the 
notice of hearing, stating the time and place of the hearing. The 
notice shall state whether the oral hearing will be conducted by 
telephone, audio-visual telecommunication, or personal attendance of 
any individual expected to attend the hearing, and the presiding 
officer's determination regarding the manner of the hearing shall be 
made in accordance with Sec. 47.49(f)(2) through Sec. 47.49(f)(4). The 
parties will be notified as soon as possible of any change in the time, 
place, or manner of the hearing.
    (b) If the presiding officer orders an oral hearing, any party may 
move that the hearing be conducted by audio-visual telecommunication or 
personal attendance of any individual expected to attend the hearing 
rather than by telephone. Any motion that the hearing be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to attend the hearing must be accompanied by a memorandum in 
support of the motion stating the basis for the motion and the 
circumstances that require the hearing to be conducted other than 
telephonically.
    (c) Within 10 days after the presiding officer issues a notice 
stating the manner in which the hearing is to be conducted, any party 
may move that the presiding officer reconsider the manner in which the 
hearing is to be conducted. Any motion for reconsideration must be 
accompanied by a memorandum in support of the motion stating the basis 
for the motion and the circumstances that require the hearing to be 
conducted other than in accordance with the presiding officer's notice.
    (d) Upon assignment of the matter for oral hearing, the presiding 
officer shall make the official file a part of the records of the 
proceeding and shall provide the petitioner with a copy of the official 
file.


Sec. 47.56  [Amended]

    51. Section 47.56 would be amended as follows:
    a. Paragraph (b) would be revised to read as set forth below.
    b. Paragraphs (g) and (h) would be redesignated as paragraphs (i) 
and (j) respectively.
    c. New paragraphs (g) and (h) would be added to read as set forth 
below.


Sec. 47.56  Powers of presiding officer.

* * * * *
    (b) Set the time, place, and manner of the hearing, adjourn the 
hearing, and change the time, place, and manner of the hearing;
* * * * *
    (g) Require each party to provide all other parties and the 
presiding office with a copy of any exhibit that the party intends to 
introduce into evidence prior to any hearing to be conducted by 
telephone or audio-visual telecommunication;
    (h) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties 
and the presiding officer are able to transmit documents during the 
hearing;
* * * * *


Sec. 47.58  [Amended]

    52. Section 47.58 would be amended as follows:
    a. In paragraph (b), the words ``or recording'' would be added 
immediately after the word ``transcript'' both times the word 
``transcript'' appears.
    b. In paragraph (f), the words ``or recording'' would be added 
immediately after the word ``transcript'' both times the word 
``transcript'' appears.
    c. Paragraphs (a), (b), (c), (d), (e), and (f) would be 
redesignated as (b), (c), (d), (e), (f), and (g) respectively.
    d. A new paragraph (a) would be added to read as follows:


Sec. 47.58  Evidence.

    (a) Written statements of direct testimony. Unless the hearing is 
scheduled to begin less than 20 days after the presiding officer's 
notice stating the time of the hearing, each party must exchange, in 
writing, with all other parties, the direct testimony of each witness 
that the party will call to provide oral direct testimony at the 
hearing. The written direct testimony must be in narrative form and 
must be verified. The written direct testimony of witnesses shall be 
exchanged by the parties at least 10 days prior to the hearing. The 
oral direct testimony provided by a witness at the hearing will be 
limited to the presentation of the written direct testimony, unless the 
presiding officer finds that oral direct testimony which is 
supplemental to the written direct testimony would expedite the 
proceeding and would not constitute surprise.
* * * * *


Sec. 47.59  [Amended]

    53. Section 47.59 would be amended as follows:
    a. The section heading would be revised to read ``Filing 
transcripts or recordings and exhibits.''
    b. In section 47.59, the words ``or recording'' would be added 
immediately after the word ``transcript'' each of the five times the 
word ``transcript'' appears.
    54. Section 47.60 would be revised to read as follows:


Sec. 47.60  Transcript or recording.

    Hearings shall be recorded verbatim by electronic recording device. 
If a party requests the transcript of a hearing or part of a hearing 
and the presiding officer determines that the disposition of the 
proceeding would be expedited by a transcript of the hearing or part of 
a hearing, the presiding officer shall order the verbatim transcription 
of the recording as requested by the party. The presiding officer's 
order to transcribe a hearing or part of a hearing and the basis for 
the order, as provided in this paragraph, must be reduced to a written 
order and filed with the Hearing Clerk. The recordings or transcripts 
of hearings shall be made available to any person at actual cost of 
duplication.


Sec. 47.62  [Amended]

    55. In Sec. 47.62, the last sentence would be amended by removing 
the words ``of this part''.

PART 50--RULES OF PRACTICE GOVERNING WITHDRAWAL OF INSPECTION AND 
GRADING SERVICES

    56. The authority citation for part 50 would be revised to read as 
follows:

    Authority: 7 U.S.C. 1621 et seq.; 7 CFR 2.35, 2.41.

    57. Part 50 would be revised to read as follows:

Subpart A--General

Sec.
50.1  Scope and applicability of rules of practice.

Subpart B--Supplemental Rules of Practice

50.10  Definitions.
50.11  Conditional withdrawal of service.
50.12  Summary suspension of service.

Subpart A--General


Sec. 50.1  Scope and applicability of rules of practice.

    (a) The rules of practice governing formal adjudicatory proceedings 
instituted by the Secretary under various statutes promulgated in 
Secs. 1.130 through 1.151 of this title are rules of practice 
applicable to adjudicatory proceedings under the regulations 
promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of 
inspection, certification, or grading service. In addition, the 
supplemental rules of practice in subpart B of this part shall be 
applicable to adjudicatory proceedings under the regulations 
promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of 
inspection, certification, or grading service.
    (b) Neither the rules of practice in Secs. 1.130 through 1.151 of 
this title nor the supplemental rules of practice in subpart B of this 
part modify existing procedures for refusing to inspect, grade, or 
certify a specific lot a product because of adulteration, improper 
preparation of the lot for grading, improper presentation of the lot 
for grading, or because of failure to comply with any similar 
requirements set forth in applicable regulations.

Subpart B--Supplemental Rules of Practice


Sec. 50.10  Definitions.

    Director. The Director of the Division or any employee of the 
Division to whom authority to act in his or her stead is delegated.
    Division. The Division of the Agricultural Marketing Service, 
United States Department of Agriculture, initiating the withdrawal of 
inspection, certification, or grading service.
    Mailing. Depositing an item in the United States Mail with postage 
affixed and addressed as necessary to cause the item to be delivered to 
the address shown by ordinary mail, certified mail, or registered mail.


Sec. 50.11  Conditional withdrawal of service.

    (a) The Director may withdraw grading or inspection service from a 
person for correctable cause. The grading or inspection service 
withdrawn, after appropriate corrective action is taken, will be 
restored immediately, or as soon thereafter as a grader or inspector 
can be made available.
    (b) Written notice of withdrawal of grading or inspection service 
under this section shall be given to the person from whom grading or 
inspection services will be withdrawn in advance of withdrawal, 
whenever it is feasible to provide such an advance written notice. If 
advance written notice is not given, the withdrawal action and the 
reasons for the withdrawal shall be confirmed as promptly as 
circumstances permit, except where the deficiency which is the basis 
for the withdrawal has already been corrected.


Sec. 50.12  Summary suspension of service.

    (a) General. In any situation in which the integrity of grading or 
inspection service would be jeopardized if such service were continued 
pending a decision in a proceeding to withdraw grading or inspection 
service, such service to the respondent may be suspended effective on 
the third day after mailing of a written notice of the suspension of 
service to the respondent's last known address or designated address or 
upon actual receipt of the written notice, whichever is earlier.
    (b) Actual or threatened physical violence. In any case of actual 
or threatened physical violence to an inspector or grader, grading and 
inspection services to the respondent may be suspended prior to the 
transmittal of the written notice of suspension to the respondent. A 
written notice shall be given as promptly as circumstances permit.

PART 51--FRESH FRUITS, VEGETABLES AND OTHER PRODUCTS (INSPECTION, 
CERTIFICATION, AND STANDARDS)

    58. The1,2 authority citation for part 51 would be revised to 
read as follows:

    \1\Among such other products are the following: Raw nuts; 
Christmas trees and evergreens; flowers and flower bulbs; and onion 
sets.
    \2\None of the requirements in this part shall excuse failure to 
comply with any federal, State, county, or municipal laws applicable 
to products covered in this part.
---------------------------------------------------------------------------

    Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50; unless 
otherwise noted.


Sec. 51.46  [Amended]

    59. Section 51.46(d) would be amended by revising the last sentence 
to read ``The Rules of Practice Governing Formal Adjudicatory 
Proceedings Instituted by the Secretary Under Various Statutes set 
forth in Secs. 1.130 through 1.151 of this title and the Supplemental 
Rules of Practice in part 50 of this chapter shall govern proceedings 
conducted pursuant to this section.''

PART 52--PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS 
THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS

    60. The\3\ authority citation for part 52 would be revised to read 
as follows:

    \3\Among such other processed food products are the following: 
Honey; molasses, except for stockfeed; nuts and nut products, except 
oil; sugar (cane, beet, and maple); sirups (blended), sirups except 
from grain; tea; cocoa; coffee; spices; condiments.
---------------------------------------------------------------------------

    Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.


Sec. 52.54  [Amended]

    61. In Sec. 52.54, paragraph (a) introductory text, would be 
amended by revising the last sentence to read ``The Rules of Practice 
Governing Formal Adjudicatory Proceedings Instituted by the Secretary 
Under Various Statutes set forth in Secs. 1.130 through 1.151 of this 
title and the Supplemental Rules of Practice in part 50 of this chapter 
shall be applicable to such debarment action.''

PART 53--LIVESTOCK (GRADING, CERTIFICATION, AND STANDARDS)

    62. The authority citation for part 53 would be revised to read as 
follows:


    Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.


    63. In Sec. 53.13, paragraph (a)(2) would be revised to read as 
follows:


Sec. 53.13  Denial or withdrawal of service.

    (a) * * *
    (2) Procedure. All cases arising under this paragraph shall be 
conducted in accordance with the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth in Secs. 1.130 through 1.151 of this title and the 
Supplemental Rules of Practice in part 50 of this chapter.
* * * * *

PART 54--MEATS, PREPARED MEATS, AND MEAT PRODUCTS (GRADING, 
CERTIFICATION, AND STANDARDS)

    64. The authority citation for part 54 would be revised to read as 
follows:

    Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.

    65. In Sec. 54.11, paragraph (a)(2) would be revised to read as 
follows:


Sec. 54.11  Denial or withdrawal of service.

    (a) * * *
    (2) Procedure. All cases arising under this paragraph shall be 
conducted in accordance with the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth in Secs. 1.130 through 1.151 of this title and the 
Supplemental Rules of Practice in part 50 of this chapter.
* * * * *

PART 180--REGULATIONS AND RULES OF PRACTICE UNDER THE PLANT VARIETY 
PROTECTION ACT

    66. The authority citation for part 180 would be revised to read as 
follows:

    Authority: 7 U.S.C. 2326, 2352, 2353, 2356, 2371, 2402(b), 2403, 
2426, 2427, 2501(c); 7 CFR 2.17, 2.50.


Sec. 180.300  [Amended]

    67. In Sec. 180.300, paragraph (d), the last sentence would be 
revised to read ``If a formal hearing is requested, the proceeding 
shall be conducted in accordance with the Rules of Practice Governing 
Formal Adjudicatory Proceedings Instituted by the Secretary Under 
Various Statutes set forth in Secs. 1.130 through 1.151 of this 
title.''

Title 9--[Amended]

PART 202--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS 
AND STOCKYARDS ACT

    68. The authority citation for part 202 would be revised to read as 
follows:

    Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e), 2.56.


Sec. 202.102  [Amended]

    69. Section 202.102 would be amended by removing all paragraph 
designations and placing the definitions in alphabetical order.


Sec. 202.103  [Amended]

    70. In Sec. 202.103, paragraph (a), the second sentence would be 
amended by removing the words ``the provisions of''.


Sec. 202.105   [Amended]

    71. In Sec. 202.105, paragraph (f)(2) would be amended by removing 
the words ``of this part''.


Sec. 202.109  [Amended]

    72. Section 202.109 would be amended as follows:
    a. Paragraph (a)(5) would be revised to read as set forth below.
    b. In paragraph (c)(2), in the second sentence, the word ``pace'' 
would be removed and the word ``place'' would be added in its place.
    c. Paragraph (d) would be revised to read as set forth below.
    d. In paragraph (g), the words ``or recording'' would be added 
immediately after the word ``transcript'' each of the four times the 
word ``transcript'' appears.
    e. In paragraph (h), the words ``or recording'' would be added 
immediately after the word ``transcript'' each of the four times the 
word ``transcript'' appears.
    f. In paragraphs (i)(3), (i)(4), and the concluding text, the words 
``or recording'' would be added immediately after the word 
``transcript'' each of the six times the word ``transcript'' appears 
and, in the first sentence, the words ``the provisions of'' would be 
removed.
    g. In paragraph (j), the word ``therein'' would be removed and the 
words ``in the deposition'' added in its place.
    h. In paragraph (l), the words ``or recording'' would be added 
immediately after the word ``transcript'' both times the word 
``transcript'' appears.


Sec. 202.109  Rule 9: Depositions.

    (a) * * *
    (5) if oral, a suggested time and place where the proposed 
deposition is to be made and a suggested manner in which the proposed 
deposition is to be conducted (telephone, audio-visual 
telecommunication, or by personal attendance of the individuals who are 
expected to participate in the deposition). The application for an 
order for the taking of testimony by deposition shall be made in 
writing, unless it is made orally on the record at an oral hearing.
* * * * *
    (d) Order. (1) The presiding officer, if satisfied that good cause 
for taking the deposition is present, may order the taking of the 
deposition.
    (2) The order shall be served on the parties and shall include:
    (i) The name and address of the officer before whom the deposition 
is to be made;
    (ii) The name of the deponent;
    (iii) Whether the deposition will be oral or on written questions;
    (iv) If the deposition is oral, the manner of the deposition 
(telephone, audio-visual telecommunication, or personal attendance of 
those who are to participate in the deposition); and
    (v) The time, which shall not be less than 20 days after the 
issuance of the order, and place.
    (3) The officer, time, place, and manner of the deposition as 
stated in the presiding officer's order need not be the same as the 
officer, time, place, and manner suggested in the application.
    (4) The deposition shall be conducted by telephone unless the 
presiding officer determines that conducting the deposition by audio-
visual telecommunication:
    (i) Would cost less than conducting the deposition by telephone;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the deposition.
    (5) If the deposition is not conducted by telephone, the deposition 
shall be conducted by audio-visual telecommunication, unless the 
presiding officer determines that conducting the deposition by personal 
attendance of any individual who is expected to participate in the 
hearing:
    (i) Would cost less than conducting the deposition by telephone or 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the deposition.
    (6) Any determination by the presiding officer that conducting the 
deposition by audio-visual telecommunication or personal attendance of 
any individual expected to participate in the deposition is necessary 
and the basis for the presiding officer's determination as provided in 
paragraph (d)(4) or (d)(5) of this section must be reduced to a written 
order which shall be filed with the hearing clerk.
    (7) A party may appeal to the Judicial Officer the presiding 
officer's order requiring a deposition to be conducted by audio-visual 
telecommunication or personal attendance of any individual expected to 
participate in the deposition by filing an interlocutory appeal 
petition with the hearing clerk. No party may file an interlocutory 
appeal petition within 10 days of the scheduled date of the deposition 
and any interlocutory appeal petition must be filed within 10 days 
after service of a presiding officer's order on the party filing the 
interlocutory appeal petition.
    (8) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the hearing 
clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (9) The presiding officer's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.
* * * * *


Sec. 202.110  [Amended]

    73. Section 202.110 would be amended as follows:
    a. In paragraph (a), in the concluding text, the words ``or 
recording'' would be added immediately after the word ``transcript''.
    b. Paragraph (b) would be revised to read as set forth below.


Sec. 202.110  Rule 10: Prehearing Conference.

* * * * *
    (b) Manner of the prehearing conference. (1) prehearing conference 
shall be conducted by telephone or correspondence unless the presiding 
officer determines that conducting the prehearing conference by audio-
visual telecommunication:
    (i) Would cost less than conducting the prehearing conference by 
telephone or correspondence;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the prehearing conference.
    (2) If the prehearing conference is not conducted by telephone or 
correspondence, the prehearing conference shall be conducted by audio-
visual telecommunication unless the presiding officer determines that 
conducting the prehearing conference by personal attendance of any 
individual who is expected to participate in the prehearing conference:
    (i) Would cost less than conducting the prehearing conference by 
audio-visual telecommunication;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the prehearing conference.
    (3) Any determination by the presiding officer that conducting the 
prehearing conference by audio-visual telecommunication or personal 
attendance of any individual expected to participate in the prehearing 
conference is necessary and the basis for the presiding officer's 
determination as provided in paragraph (b)(1) or (b)(2) of this section 
must be reduced to a written order and filed with the hearing clerk.
    (4) A party may appeal to the Judicial officer the presiding 
officer's order issued under this paragraph requiring a prehearing 
conference to be conducted by audio-visual telecommunication or 
personal attendance of any individual expected to participate in the 
conference by filing an interlocutory appeal petition with the hearing 
clerk. No party may file an interlocutory appeal petition within 5 days 
of the scheduled date of the conference and any interlocutory appeal 
petition must be filed within 10 days after service of a presiding 
officer's order on the party filing the interlocutory appeal petition.
    (5) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the hearing 
clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (6) The presiding officer's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 5 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.


Sec. 202.112  [Amended]

    74. Section 202.112 would be amended as follows:
    a. Paragraph (a) would be revised to read as set forth below.
    b. Paragraph (b) would be revised to read as set forth below.
    c. In paragraph (e)(2), the second sentence, the words ``or 
recording'' would be added immediately after the word ``transcript'', 
and the word ``thereon'' would be removed.
    (d) In paragraph (e)(3), the words ``or recording'' would be added 
immediately after the word ``transcript'' both times the word 
``transcript'' appears.
    e. In paragraph (e)(5), the word ``thereof'' would be removed and 
the words ``of the Department'' added in its place, and the word 
``therein'' would be removed and the words ``in the record of the 
Department'' added in its place.
    f. Paragraphs (e), (f), (g), (h), (i), and (j) would be 
redesignated as (f), (g), (h), (i), (j), and (k) respectively.
    g. New paragraph (e) would be added to read as set forth below.
    h. Redesignated paragraph (i) would be revised to read as set forth 
below.
    i. In redesignated (j), the heading would be revised to read 
``Filing, and presiding officer's certificate, of the transcript or 
recording.''; the words ``or recording'' would be added immediately 
after the word ``transcript'' each of the 10 times the word 
``transcript'' appears; and the words ``or recorded'' would be added 
immediately after the word ``transcribed''.
    j. In redesignated paragraph (k), the heading would be revised to 
read ``Keeping of copies of the transcript or recording.''; and the 
words ``or recording'' would be added immediately after the word 
``transcript'' each of the three times the word ``transcript'' appears.


Sec. 202.112  Rule 12: Oral hearing.

    (a) Time, place, and manner. (1) If and when the proceeding has 
reached the stage where an oral hearing is to be held, the presiding 
officer shall set a time, place, and manner for oral hearing. The time 
shall be set based upon careful consideration to the convenience of the 
parties. The place shall be set in accordance with paragraph (a)(2) of 
this section and careful consideration to the convenience of the 
parties. The manner shall be set in accordance with paragraphs (a)(3) 
through (a)(5) of this section.
    (2) The place shall be set in accordance with paragraphs (e) and 
(f) of section 407 of the Act, if applicable. In essence, under 
paragraphs (e) and (f) of section 407 of the Act, if the complainant 
and the respondent, or all of the parties, if there are more than two, 
have their principal places of business or residence within a single 
unit of local government, a single geographical area within a State, or 
a single State, the oral hearing is to be held as near as possible to 
such places of business or residence, depending on the availability of 
an appropriate location for conducting the hearing. If the parties have 
such places of business or residence distant from each other, then 
paragraphs (e) and (f) of section 407 of the Act are not applicable.
    (3) The oral hearing shall be conducted by telephone unless the 
presiding officer determines that conducting the oral hearing by audio-
visual telecommunication:
    (i) Would cost less than conducting the oral hearing by telephone;
    (ii) Is necessary to prevent prejudice to a party;
    (iii) Is necessary because of the importance of observing the 
demeanor of any individual who is expected to testify at the oral 
hearing; or
    (iv) Is necessary because of a disability of any individual 
expected to participate in the oral hearing.
    (4) If the oral hearing is not conducted by telephone, it shall be 
conducted by audio-visual telecommunication unless the presiding 
officer determines that conducting the oral hearing by personal 
attendance of any individual who is expected to participate in the 
hearing:
    (i) Would cost less than conducting the oral hearing by telephone 
or audio-visual telecommunications;
    (ii) Is necessary to prevent prejudice to a party; or
    (iii) Is necessary because of a disability of any individual 
expected to participate in the oral hearing.
    (5) Any determination by the presiding officer that conducting the 
oral hearing by audio-visual telecommunication or personal attendance 
of any individual expected to participate in the oral hearing is 
necessary and the basis for the presiding officer's determination as 
provided in paragraph (a)(3) or (a)(4) of this section must be reduced 
to a written order which shall be filed with the hearing clerk.
    (6) A party may appeal to the Judicial Officer the presiding 
officer's order issued under this paragraph requiring an oral hearing 
to be conducted by audio-visual telecommunication or personal 
attendance of any individual expected to participate in the oral 
hearing by filing an interlocutory appeal petition with the hearing 
clerk. No party may file an interlocutory appeal petition within 10 
days of the scheduled date of the oral hearing and any interlocutory 
appeal petition must be filed within 10 days after service of a 
presiding officer's order on the party filing the interlocutory appeal 
petition.
    (7) Within 10 days after the service of a copy of an interlocutory 
appeal petition, any party to the proceeding, other than the party who 
filed the interlocutory appeal petition, may file with the hearing 
clerk a response in support of or in opposition to the interlocutory 
appeal petition.
    (8) The presiding officer's order which is the subject of a party's 
interlocutory appeal petition shall be stayed from the time the 
interlocutory appeal petition is filed until 10 days after the Judicial 
Officer's ruling on the interlocutory appeal petition is served on all 
of the parties to the proceeding.
    (b) Notice. A notice stating the time, place, and manner or oral 
hearing shall be served on each party prior to the time of the oral 
hearing. The notice shall state whether the oral hearing will be 
conducted by telephone, audio-visual telecommunication, or personal 
attendance of any individual expected to participate in the hearing. If 
any change is made in the time, place, or manner of the oral hearing, a 
notice of the change shall be served on each party prior to the time of 
the oral hearing as changed, unless the change is made during the 
course of an oral hearing and shown in the transcript or on the 
recording. Any party may waive such notice, in writing, or orally on 
the record at an oral hearing and shown in the transcript or on the 
recording.
    (2) If the presiding officer orders an oral hearing, any party may 
move that the hearing be conducted by audio-visual telecommunication or 
personal attendance of any individual expected to attend the hearing 
rather than by telephone. Any motion that the hearing be conducted by 
audio-visual telecommunication or personal attendance of any individual 
expected to attend the hearing must be accompanied by a memorandum in 
support of the motion stating the basis for the motion and the 
circumstances that require the hearing to be conducted other than 
telephonically.
    (3) Within 10 days after the presiding officer issues a notice 
stating the manner in which the hearing is to be conducted, any party 
may move that the presiding officer reconsider the manner in which the 
hearing is to be conducted. Any motion for reconsideration must be 
accompanied by a memorandum in support of the motion stating the basis 
for the motion and the circumstances that require the hearing to be 
conducted other than in accordance with the presiding officer's notice.
* * * * *
    (e) Written statements of direct testimony. Unless the hearing is 
scheduled to begin less than 20 days after the presiding officer's 
notice stating the time of the hearing, each party must exchange, in 
writing, with all other parties, the direct testimony of each witness 
that the party will call to provide oral direct testimony at the 
hearing. The written direct testimony must be in narrative form and 
must be verified. The written direct testimony of witnesses shall be 
exchanged by the parties at least 10 days prior to the hearing. The 
oral direct testimony provided by a witness at the hearing will be 
limited to the presentation of the written direct testimony, unless the 
presiding officer finds that oral direct testimony which is 
supplemental to the written direct testimony would expedite the 
proceeding and would not constitute surprise.
* * * * *
    (i) Transcript or recording. (1) Oral hearings shall be recorded 
verbatim by electronic recording device. If a party requests the 
transcript of an oral hearing or part of an oral hearing and the 
presiding officer determines that the disposition of the proceeding 
would be expedited by a transcript of the oral hearing or part of an 
oral hearing, the presiding officer shall order the verbatim 
transcription of the recording as requested by the party. The presiding 
officer's order to transcribe an oral hearing or part of an oral 
hearing and the basis for the order, as provided in this paragraph, 
must be reduced to a written order and filed with the hearing clerk.
    (2) Copies of transcripts or recordings of oral hearings shall be 
made available to any person at actual cost of duplication.
* * * * *


Sec. 202.115  [Amended]

    75. Section 202.115 would be amended as follows:
    a. Paragraph (b), the second sentence would be amended by adding 
the words ``or recording'' immediately after the word ``transcript''.
    b. Paragraph (d) would be revised to read as set forth below.


Sec. 202.115  Rule 15: Submission for final consideration.

* * * * *
    (d) Oral argument. There shall be no right to oral argument other 
than that provided in rule 12(h), Sec. 202.112(h).


Sec. 202.118  [Amended]

    76. Section 202.118 would be amended as follows:
    a. Paragraph (a)(1) would be revised to read as set forth below.
    b. Paragraph (a)(8) would be redesignated as paragraph (a)(12).
    c. New paragraphs (a)(8), (a)(9), (a)(10), and (a)(11) would be 
added to read as set forth below.
    d. Paragraph (b) would be revised to read as set forth below.


Sec. 202.118  Rule 18: Presiding officer.

    (a) * * *
    (1) Set the time, place, and manner of a prehearing conference and 
an oral hearing, adjourn the oral hearing from time to time, and change 
the time, place, and manner of oral hearing;
* * * * *
    (8) Require each party to provide all other parties and the 
presiding officer with a copy of any exhibit that the party intends to 
introduce into evidence prior to any oral hearing to be conducted by 
telephone or audio-visual telecommunication;
    (9) Require each party to provide all other parties with a copy of 
any document that the party intends to use to examine a deponent prior 
to any deposition to be conducted by telephone or audio-visual 
telecommunication;
    (10) Require that any hearing to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties and the presiding officer are able to transmit documents during 
the hearing;
    (11) Require that any deposition to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties are able to transmit documents during the deposition;
* * * * *
    (b) Motions and requests. (1) Except as provided in paragraph 
(b)(2) of this section, the presiding officer is authorized to rule on 
all motions and requests filed in the proceeding prior to the 
submission of the presiding officer's report to the Judicial Officer, 
Provided, That a presiding officer is not authorized to dismiss a 
complaint. Except as provided in paragraph (b)(2) of this section, the 
submission or certification of any question to the Judicial Officer, 
prior to the submission of the presiding officer's report to the 
Judicial Officer, shall be in the discretion of the presiding officer.
    (2) Any party may appeal to the Judicial Officer a presiding 
officer's order issued under:
    (i) Rule 9(d), Sec. 202.109(d), to conduct a deposition by audio-
visual telecommunication or personally attend a deposition;
    (ii) Rule 10(b), Sec. 202.110(b), to conduct a prehearing 
conference by audio-visual telecommunication or personally attend a 
prehearing conference; or
    (iii) Rule 12(a), Sec. 202.112(a), to conduct an oral hearing by 
audio-visual telecommunication or personally attend an oral hearing.
* * * * *
    Done in Washington, DC, this 11th day of February, 1994.
Mike Espy,
Secretary of Agriculture.
[FR Doc. 94-3824 Filed 2-24-94; 8:45 am]
BILLING CODE 3410-01-M