[Federal Register Volume 60, Number 30 (Tuesday, February 14, 1995)]
[Rules and Regulations]
[Pages 8446-8467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3464]




[[Page 8445]]

_______________________________________________________________________

Part II





Department of Agriculture





_______________________________________________________________________



Agricultural Marketing Service



Grain Inspection, Packers and Stockyards Administration



Office of the Secretary



_______________________________________________________________________



7 CFR Parts 0 and 1



7 CFR Part 47, et al.



9 CFR Chapter II et al.



Rules of Practice; Final Rule

  Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / 
Rules and Regulations   
[[Page 8446]] 

DEPARTMENT OF AGRICULTURE

Office of the Secretary of Agriculture

7 CFR Parts 0 and 1

Agricultural Marketing Service

7 CFR Parts 47, 50, 51, 52, 53, 54, and 97

Grain Inspection, Packers and Stockyards Administration

9 CFR Chapter II and Part 202


Rules of Practice

AGENCY: Office of the Secretary of Agriculture, USDA.

ACTION: Final rule.

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SUMMARY: We are amending the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes, the Rules of Practice Governing Cease and Desist Proceedings 
Under Section 2 of the Capper-Volstead Act, the Rules of Practice Under 
the Perishable Agricultural Commodities Act, and the Rules of Practice 
Applicable to Reparation Proceedings Under the Packers and Stockyards 
Act. This final rule provides that conferences shall be conducted by 
telephone or correspondence, hearings shall be conducted by audio-
visual telecommunication, and depositions shall be conducted either in 
the manner agreed to by the parties or by telephone, unless the person 
conducting the proceeding determines that the conference, hearing, or 
deposition may be conducted by some other means. The final rule also 
provides for the use of recordings of hearings and depositions and the 
exchange of written narrative statements of the direct testimony prior 
to hearings to be conducted by telephone. These amendments will save 
the government and those who participate in the proceedings time and 
money.
    In addition, this rule amends 9 CFR chapter II to reflect the 
abolishment of the Packers and Stockyards Administration and the 
establishment of the Grain Inspection, Packers and Stockyards 
Administration in the recent Department of Agriculture reorganization.

EFFECTIVE DATE: This final rule is effective March 16, 1995, except for 
the amendments to the chapter heading of 9 CFR chapter II and the 
references to the agency name in the chapter which are effective upon 
publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: William Jenson, Senior Counsel, 
Regulatory Division, Office of the General Counsel, USDA, room 2422, 
South Building, 14th Street and Independence Avenue SW., Washington, DC 
20250, (202) 720-2453.

SUPPLEMENTARY INFORMATION:

Background

    The Department conducts a number of adjudicatory proceedings in 
which conferences, depositions, and hearings are held. Many of these 
conferences, depositions, and hearings are conducted by personal 
attendance which necessitates travel by those who participate in the 
conferences, depositions, and hearings.
    Generally, conferences at which personal attendance is required are 
attended by the person conducting the proceeding (an administrative law 
judge, hearing officer, examiner, or presiding officer), the parties to 
the proceeding, and counsel for the parties to the proceeding. 
Depositions are attended by an officer authorized to administer oaths, 
a court reporter, the parties, counsel for the parties, and the 
deponent. Hearings are attended by the person conducting the 
proceeding, the parties to the proceeding, counsel for the parties to 
the proceeding, a court reporter, and witnesses called by the parties.
    The costs associated with travel to conferences, depositions, and 
hearings (meals, lodging, and actual travel expense) are often 
substantial. These travel costs burden all taxpayers and particularly 
burden the individuals who attend these proceedings. In addition to 
expenditure of money, individuals personally attending the proceedings 
often must spend valuable time traveling to and from these conferences, 
depositions, and hearings.

Proposed Rule

    Therefore, on February 25, 1994, we published a document in the 
Federal Register (59 FR 9114-9136) proposing to amend the Rules of 
Practice Governing Formal Adjudicatory Proceedings Instituted by the 
Secretary Under Various Statutes (7 CFR 1.130 through 1.151) (referred 
to as the ``Uniform Rules'' below), the Rules of Practice Governing 
Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act 
(7 CFR 1.160 through 1.175) (referred to as the ``Capper-Volstead 
Rules'' below), the Rules of Practice Under the Perishable Agricultural 
Commodities Act Applicable to Reparation Proceedings (7 CFR 47.1 
through 47.25 and 47.46) (referred to as the ``PACA Reparation Rules'' 
below), the Rules of Practice Under the Perishable Agricultural 
Commodities Act Applicable to Determinations as to Whether a Person is 
Responsibly Connected With A Licensee Under the Perishable Agricultural 
Commodities Act (7 CFR 47.1, 47.2(a) through 47.2(h), and 47.47 through 
47.68) (referred to as the ``PACA Responsibly Connected Rules'' below), 
and the Rules of Practice Applicable to Reparation Proceedings Under 
the Packers and Stockyards Act (9 CFR 202.101 through 202.123) 
(referred to as the ``P&S Reparation Rules'' below). Specifically, we 
proposed to provide that: (1) Conferences may be conducted by 
telephone, correspondence, audio-visual telecommunication, or by 
personal attendance of the participants; (2) depositions and hearings 
may be conducted by telephone, audio-visual telecommunication, or 
personal attendance of the participants; (3) hearings and depositions 
may be recorded rather than transcribed; and (4) prior to a hearing, 
parties exchange written narrative statements of the direct testimony 
they intend to introduce at the hearing.

Comments on the Proposed Rule

    We solicited comments concerning the proposal for a 60-day comment 
period ending April 26, 1994. We received 12 comments by that date. One 
of the commenters requested that we reopen and extend the comment 
period. In response to that request, on June 22, 1994, we published a 
document in the Federal Register (59 FR 32138) reopening and extending 
the comment period until July 22, 1994. We received two additional 
comments by the close of the reopening and extension of the comment 
period. The fourteen comments were from the following organizations and 
individual: (1) The Administrative Law Section of the American Bar 
Association; (2) the Agriculture Law Committee, Administrative Law 
Section of the American Bar Association; (3) the American Meat 
Institute; (4) the Eastern Meat Packers Association; (5) the Federal 
Administrative Law Judges Conference; (6) the Forum of United States 
Administrative Law Judges; (7) Janet L. Heins; (8) Holland & Knight; 
(9) the Livestock Marketing Association; (10) the National Association 
of Perishable Agricultural Receivers; (11) Olsson, Frank and Weeda, 
P.C.; (12) the Society for Animal Protective Legislation; (13) the 
United Fresh Fruit & Vegetable Association; and (14) the Western States 
Meat Association. [[Page 8447]] 
    All of the commenters generally opposed the proposed rule. However, 
many of these commenters supported some aspects of the proposal. Seven 
of the commenters stated that the Department should experiment with 
adjudicatory proceedings conducted by telecommunication, two commenters 
praised the Department's effort to save money expended on adjudicatory 
proceedings, and two of the commenters supported the elimination of 
gender specific references.
    The comments and our responses to those comments are as follows.

1. Constitutional Due Process

    Ten commenters stated that a hearing conducted by telecommunication 
would violate the constitutional right to due process.
    We disagree with these comments. Prior to drafting the proposed 
rule, we carefully examined whether hearings conducted by 
telecommunication provide a full and fair evidentiary hearing that 
comports with due process. We concluded that the due process clause 
does not preclude the use of telecommunication in adjudicatory 
proceedings.
    The memorandum containing our analysis and findings was placed in 
the rulemaking record upon publication of the proposed rule. As we 
stated in that memorandum, due process is flexible and calls for such 
procedural protections as the particular situation demands. Morrissey 
v. Brewer, 408 U.S. 471 (1972). The courts have applied a balancing 
test that examines: (1) The private interest that will be affected by 
the official action; (2) the risk of an erroneous deprivation of such 
interest through the procedures used, and the probable value, if any, 
of additional or substitute procedural safeguards; and (3) the 
government's interest, including the function involved and the fiscal 
and administrative burdens that the additional or substitute procedural 
requirement would entail. Mathews v. Eldridge, 424 U.S. 319 (1976).
    The question of what process is due requires flexibility rather 
than an either/or analysis which assumes that either face-to-face oral 
hearings are always required or that face-to-face oral hearings are 
never required. The proposed rule provides such flexibility. Hearings 
would be conducted by telephone, audio-visual telecommunication, or by 
the personal attendance of any individual who is expected to 
participate in the hearing. Under the proposal, the person conducting 
the proceeding would determine which method of conducting the hearing 
is to be used in a particular instance based, in part, on the need to 
conduct the hearing in a manner that would not prejudice any of the 
parties to the proceeding. (See proposed 7 CFR 1.141(b) (3) and (4), 
1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2) and (3) 
and 9 CFR 202.112(a) (3) and (4).)
    Despite our view that the proposal provides the person conducting 
the proceeding with sufficient flexibility to tailor the manner in 
which a hearing is conducted so that due process is provided, we have 
made changes that address the due process concerns raised by the 
commenters.
    Specifically, the final rule provides that the hearings held under 
the Uniform Rules, the Capper-Volstead Rules, the PACA Reparation 
Rules, the PACA Responsibly Connected Rules, and the P&S Reparation 
Rules shall be conducted by audio-visual telecommunication unless the 
person conducting the proceeding determines that conducting the hearing 
by personal attendance of any individual who is expected to participate 
in the hearing: (1) Is necessary to prevent prejudice to a party; (2) 
is necessary because of a disability of any individual expected to 
participate in the hearing; or (3) would cost less than conducting the 
hearing by audio-visual telecommunication.
    The person conducting the proceeding may, in his or her sole 
discretion or in response to a motion by a party to the proceeding, 
conduct the hearing by telephone only if the person conducting the 
proceeding finds that a hearing conducted by telephone: (1) Would 
provide a full and fair evidentiary hearing; (2) would not prejudice 
any party; and (3) would cost less than conducting the hearing by 
audio-visual telecommunication or personal attendance of any individual 
who is expected to participate in the hearing. (See 7 CFR 1.141(b) (3) 
and (4), 1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2) 
and (3) and 9 CFR 202.112(a) (3) and (4) in this final rule.)

2. Compliance with the Administrative Procedure Act

    Four commenters stated that a hearing conducted by 
telecommunication would violate the Administrative Procedure Act. All 
four commenters stated that a hearing conducted by telecommunication 
would deprive the parties of their right to cross-examine witnesses in 
violation of 5 U.S.C. 556(d). Two commenters stated that a hearing 
conducted by telecommunication would deprive the judge of the ability 
to control the proceeding to ensure that only reliable evidence is 
received. One commenter stated that a hearing conducted by 
telecommunication would deprive the parties of the right to participate 
in the hearing in violation of 5 U.S.C. 554(c) and the right to present 
oral or documentary evidence in violation of 5 U.S.C. 556(d).
    We disagree with these comments. Prior to drafting the proposed 
rule, we carefully examined whether hearings conducted by 
telecommunication would violate the Administrative Procedure Act. We 
concluded that the Administrative Procedure Act does not preclude the 
use of telecommunication in adjudicatory proceedings. The memorandum 
containing our analysis and findings was placed in the rulemaking 
record upon publication of the proposed rule.
    There is no provision in the Administrative Procedure Act that 
explicitly requires face-to-face adjudicatory hearings and we found 
nothing to indicate that Congress intended to exclude the use of 
telecommunication in adjudicatory proceedings conducted pursuant to the 
Administrative Procedure Act. As previously discussed in this 
rulemaking document, this final rule amends the Uniform Rules, the 
Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly 
Connected Rules, and the P&S Reparation Rules to provide that the 
hearings shall be conducted by audio-visual telecommunication unless 
the person conducting the proceeding determines that conducting the 
hearing by personal attendance of any individual who is expected to 
participate in the hearing: (1) Is necessary to prevent prejudice to a 
party; (2) is necessary because of a disability of any individual 
expected to participate in the hearing; or (3) would cost less than 
conducting the hearing by audio-visual telecommunication. A hearing 
conducted by audio-visual telecommunication allows full cross-
examination with an ability to observe the demeanor of the witness; 
provides an opportunity to transmit and receive documents by the use of 
facsimile; provides for a prior exchange of exhibits; and allows the 
person conducting the proceeding full control of the course of the 
hearing. If a hearing conducted by telecommunication would not 
constitute a full and fair hearing, the person conducting the hearing 
may require a face-to-face hearing.
    Further, the final rule provides that the person conducting the 
proceeding may, in his or her sole discretion or in response to a 
motion by a party to the proceeding, conduct the hearing by telephone 
only if the person conducting the proceeding finds that a hearing 
conducted by telephone: (1) Would [[Page 8448]] provide a full and fair 
evidentiary hearing; (2) would not prejudice any party; and (3) would 
cost less than conducting the hearing by audio-visual telecommunication 
or personal attendance of any individual who is expected to participate 
in the hearing.
    Toward this end, we proposed to amend the Uniform Rules, the 
Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly 
Connected Rules, and the P&S Reparation Rules to authorize the person 
conducting a proceeding to: (1) Require each party to provide all other 
parties and the person conducting the proceeding with a copy of any 
exhibit that the party intends to introduce into evidence prior to any 
hearing to be conducted by telephone or audio-visual telecommunication; 
and (2) require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties 
and the person conducting the proceeding are able to transmit documents 
during the hearing. These proposed provisions (see proposed 7 CFR 
1.144(c) (9) and (11), 1.173(d) (7) and (8), 47.11(c) (9) and (11), and 
47.56 (g) and (h) and 9 CFR 202.118(a) (8) and (10)) regarding the 
exchange of exhibits prior to a hearing conducted by telecommunication 
and the ability to transmit documents during a hearing conducted by 
telecommunication are designed to ensure that all parties have a full 
opportunity to participate in the hearing, present oral or documentary 
evidence, and cross-examine witnesses.
    We have retained these provisions in the final rule with one minor 
modification to correct an oversight in the proposed rule. As stated 
above, proposed 7 CFR 1.144(c)(11), 1.173(d)(8), 47.11(c)(11), and 
47.56(h) and 9 CFR 202.118(a)(10) would authorize a person conducting a 
proceeding to require that any hearing to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties and the person conducting the proceeding are able to transmit 
documents during the hearing. We have amended 7 CFR 1.144(c)(11), 
1.173(d)(8), 47.11(c)(11), and 47.56(h) and 9 CFR 202.118(a)(10) to 
authorize a person conducting a proceeding to require that any hearing 
to be conducted by telephone or audio-visual telecommunication be 
conducted at locations at which the parties and the person conducting 
the proceeding are able to transmit and receive documents during the 
hearing.

3. Statutory Requirements

    One commenter stated that the plain meaning of statutes that 
require hearings to be held ``before the Secretary'' is that face-to-
face hearings are required. Therefore, any hearings under those 
statutes which are conducted by telecommunication would be inconsistent 
with those statutes.
    Numerous hearings conducted under the rules of practice which this 
final rule amends are conducted pursuant to statutes that require 
hearings ``before the Secretary.'' We fully examined whether hearings 
conducted by telecommunication in which some or all of the evidence is 
introduced at locations other than the location at which the person 
conducting the proceeding is situated would violate statutes that 
require hearings to be conducted ``before the Secretary.'' We concluded 
that such hearings would not violate these statutes. The memorandum 
containing our analysis and findings was placed in the rulemaking 
record upon publication of the proposed rule.
    A few courts have found that telephone hearings were insufficient 
due to language of the statute under which the hearings were conducted. 
For example, in Purba v. Immigration & Naturalization Service, 884 F. 
2d 516 (9th Cir. 1989), the court held that a deportation hearing must 
be conducted in the physical presence of the immigration judge, absent 
the consent of the parties, because the statute under which the hearing 
was held required the hearing to be ``before'' the judge. The court 
found the plain meaning of the word ``before'' is ``in the presence 
of,'' ``in sight of,'' or ``face-to-face with'' a person and that 
conducting the hearing by telephone was not a hearing ``before'' the 
judge. However, the Supreme Court has recently held that where Congress 
has not decided, any alternative dictionary definition of a word that 
has a rational effect under a statute is a possibility for agency 
choice, and the courts are to defer to the agency's choice of the 
interpretation of the word, if it is reasonable. National Railroad 
Passenger Corp. v. Boston and Maine Corp., ____ U.S. ____, 112 S. Ct. 
1394 (1992).
    The eleventh circuit, applying the rationale in National Railroad 
Passenger Corp., found that a hearing conducted by telephone did not 
violate the Immigration and Nationality Act that provides that a 
``[d]etermination of deportability * * * shall be made only on the 
record in a proceeding before a special inquiry officer.'' Bigby v. 
United States Immigration and Naturalization Service, 21 F. 3d 1059 
(11th Cir. 1994). (Emphasis added.) The eleventh circuit explicitly 
rejected the argument that ``before'' was susceptible of only one 
meaning. The court found that the word ``before'' did not of necessity 
mean ``in front of'' or ``in the presence of,'' thereby mandating that 
the special inquiry officer be physically present at a hearing required 
to be held ``before'' the special inquiry officer. The court found that 
``before'' could be used in a jurisdictional sense and mean ``to be 
judged or acted on by'' or ``under the official or formal consideration 
of.'' The court, citing Chevron, U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837 (1984), held that ``[i]n the 
absence of unambiguous congressional intent, we defer to an agency's 
reasonable interpretation of a statute it is charged with 
administering.
    None of the statutes that require proceedings to be conducted 
``before the Secretary'' under which hearings are conducted pursuant to 
the rules of practice amended by this final rule define the word 
``before'' nor do these statutes provide any clear indication of 
congressional intent with respect to the meaning of the word ``before'' 
as used in these statutes. Therefore, it is reasonable for the 
Department to find that the word ``before,'' as used in these statutes, 
is jurisdictional and means ``to be judged or acted on by,'' ``under 
the official or formal consideration of,'' or ``under the cognizance or 
jurisdiction of.''

4. Credibility Determinations

    Seven commenters stated that hearings conducted by 
telecommunication negatively impact credibility determinations. Five 
commenters focused exclusively on the need for the judge to observe 
demeanor to determine credibility. One commenter stated that it is 
important for all participants to assess credibility of other 
participants. Four commenters raised the specter of witnesses reading 
prepared statements without the knowledge of all participants.
    Hearings conducted by audio-visual telecommunication do not impact 
credibility determinations because the fact finder is able to see and 
hear witnesses in a hearing conducted by audio-visual telecommunication 
in much the same manner and to the same extent as the fact finder would 
see and hear witnesses in a face-to-face hearing. Hearings conducted by 
telephone may, but do not necessarily, negatively impact credibility 
determinations.
    While we believe that the proposal provides the person conducting 
the proceeding with sufficient flexibility to tailor the manner in 
which a hearing is conducted so that credibility 
[[Page 8449]] determinations are not negatively impacted, in the final 
rule we made substantial changes to these proposed provisions which 
address the concerns regarding credibility raised by the commenters. 
The final rule provides that hearings conducted under the Uniform 
Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA 
Responsibly Connected Rules, and the P&S Reparation Rules shall be 
conducted by audio-visual telecommunication unless the person 
conducting the proceeding determines that conducting the hearing by 
personal attendance of any individual who is expected to participate in 
the hearing: (1) Is necessary to prevent prejudice to a party; (2) is 
necessary because of a disability of any individual expected to 
participate in the hearing; or (3) would cost less than conducting the 
hearing by audio-visual telecommunication.
    The person conducting the proceeding may, in his or her sole 
discretion or in response to a motion by a party to the proceeding, 
conduct the hearing by telephone only if the person conducting the 
proceeding finds that a hearing conducted by telephone: (1) Would 
provide a full and fair evidentiary hearing; (2) would not prejudice 
any party; and (3) would cost less than conducting the hearing by 
audio-visual telecommunication or personal attendance of any individual 
who is expected to participate in the hearing. (See 7 CFR 1.141(b) (3) 
and (4), 1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2) 
and (3) and 9 CFR 202.112(a) (3) and (4) in this final rule.)
    We do expect that, after the effective date of this final rule, a 
number of hearings will be conducted by telephone based upon a finding 
by the person conducting the proceeding that a hearing conducted by 
telephone will provide a full and fair evidentiary hearing; will not 
prejudice any party; and will cost less than conducting the hearing by 
audio-visual telecommunication or personal attendance of any individual 
who is expected to participate in the hearing.
    Numerous courts have found that hearings conducted by telephone do 
not increase the risk of error because witness demeanor cannot be 
viewed. In Casey v. O'Bannon, 536 F. Supp. 350 (E.D. Pa. 1982), the 
court determined that plaintiffs failed to prove that the constitution 
compels face-to-face hearings and that there is a risk of an erroneous 
deprivation by virtue of the telephone procedures as they currently 
exist. The court was influenced by testimony at trial showing that 
``hearing examiners can effectively judge credibility over the phone by 
noting voice responses, pauses, levels of irritation and other 
factors'' and a survey showing that 82% of examiners who have presided 
over telephone hearings believe they can judge credibility in hearings 
conducted by telephone. Id., at 353-54, citing Attitudes Towards the 
Use of the Telephone in Administrative Fair Hearings, The California 
Experience, 31 Admin. L. Rev. 247 (1979).
    Further, in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 131 
(2nd Cir. 1967), the Second Circuit stated, ``Utica finds in the due 
process clause of the Fifth Amendment a requirement that when there are 
issues of credibility, as was assumed to be true here, no determination 
of fact may be made unless the decider has either seen the witnesses 
himself or has been furnished with a report as to the credibility by 
another who has * * *. We discern no such absolute in the history laden 
words of the Fifth Amendment; Utica would freeze what is usually a 
sensible rule of judicial administration into a constitutional 
imperative.'' The court further noted that when the Constitution was 
adopted the settled practice in the English chancery courts was to take 
evidence almost wholly by deposition. Id., at 131 n. 3. Utica was cited 
as support in at least two other federal cases involving the fact 
finder's inability to observe demeanor. See Moore v. Ross, 687 F.2d 
604, 609-10 (2nd Cir. 1982), cert. denied, 459 U.S. 1115 (1983); Blake 
v. Ambach, 691 F.Supp. 651, 655-56 (S.D.N.Y. 1988).
    Numerous state courts have also upheld the use of telephone 
hearings under circumstances in which the issue of demeanor and 
credibility was raised. In Babcock v. Employment Division, 696 P.2d 19, 
21 (Or. App 1985), the court considered credibility the most difficult 
issue for unemployment compensation telephone hearings, yet stated that 
while ``[p]hysical appearance can be a clue to credibility, * * * of 
equal or greater importance is what a witness says and how she says 
it.'' The Oregon appellate court was satisfied ``that the audible 
indicia of a witness' demeanor are sufficient for a referee to make an 
adequate judgment as to believability.'' Id.
    In State, ex. rel. Human Services Department v. Gomez, 657 P.2d 
117, 124 (N.M. 1983), the court rejected Gomez's contention that the 
telephonic hearing was not meaningful because his efforts to remain on 
welfare depended upon his credibility and the hearing officer could not 
judge credibility without seeing him. The court did state that 
credibility may be a minimal factor in disability determination, but 
``a requirement that the hearing officer also see Gomez testify * * * 
would impose the rigidities of judicial procedure on what is supposed 
to be an informal proceeding.'' Id., at 124-25.

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

    We proposed to amend the Uniform Rules, the Capper-Volstead Rules, 
the PACA Reparation Rules, the PACA Responsibly Connected Rules, and 
the P&S Reparation Rules to provide that unless the hearing is 
scheduled to begin less than 20 days after the person conducting the 
proceeding issues a notice stating the time of the hearing, each party 
must exchange, in writing, with all other parties, a verified narrative 
statement of the direct testimony of each witness that the party will 
call to provide oral direct testimony at the hearing. (See proposed 7 
CFR 1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 202.112(e).)
    One commenter objected to the exchange of direct testimony of each 
witness. Two commenters stated that they had no objection to the 
exchange of direct testimony as long as each witness is required ``to 
appear in court for cross-examination.''
    The requirement that parties exchange the written narrative 
statements of the direct testimony of witnesses the parties intend to 
call at a hearing may, in some instances, necessitate a significant 
expenditure of time and resources. Based on our past experience, many 
administrative proceedings conducted under the rules of practice which 
we are amending are settled just prior to the scheduled date of 
hearing. In these circumstances, the preparation and exchange of a 
written verified narrative statement of the oral direct testimony of 
each witness the parties intend to call would constitute an unnecessary 
expenditure of time and resources. One of the purposes of this final 
rule is to make adjudicatory proceedings conducted by the Department as 
efficient as possible. Therefore, this final rule limits the provisions 
regarding the exchange of written verified narrative statements of the 
oral direct testimony of witnesses the parties intend to call to 
hearings to be conducted by telephone. Except as discussed below, we 
have retained the provision regarding the exchange of written verified 
narrative statements of oral direct testimony prior to hearings 
conducted by telephone to expedite these hearings, prevent surprise, 
ensure that all parties have a full opportunity to participate in the 
hearing and cross-examine witnesses, and assist the 
[[Page 8450]] person conducting the hearing with credibility 
determinations.
    Proposed 7 CFR 1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 
202.112(e) would have required each party to obtain written verified 
narrative statements of oral direct testimony of all witnesses the 
party intends to call to provide oral direct testimony. Under the 
proposal, testimony would be limited to the written direct testimony. 
Occasionally parties call hostile witnesses or witnesses over whom they 
have no control to provide oral direct testimony at hearings in 
proceedings conducted under the Uniform Rules, the Capper-Volstead 
Rules, the PACA Reparation Rules, the PACA Responsibly Connected Rules, 
and the P&S Reparation Rules. Requiring a party to obtain and exchange 
written verified narrative statements from hostile witnesses and 
witnesses over whom a party has no control could result in a party's 
inability to introduce relevant and material evidence at a hearing. 
Therefore, this final rule provides that each party need only obtain 
and exchange written verified narrative statements of the oral direct 
testimony of the following witnesses that the party intends to call at 
hearings to be conducted by telephone: (1) The party; (2) the employees 
and agents of the party; and (3) the party's expert witnesses. The oral 
direct testimony provided by a witness at a hearing conducted by 
telephone will be limited to the presentation of the written direct 
testimony, unless the person conducting the hearing finds that oral 
direct testimony which is supplemental to the written direct testimony 
would further the public interest and would not constitute surprise.

6. Verbatim Recordings in Lieu of Transcripts

    We proposed to amend the Uniform Rules, the Capper-Volstead Rules, 
the PACA Reparation Rules, the PACA Responsibly Connected Rules, and 
the P&S Reparation Rules to provide for the use of recordings of 
hearings, and, where applicable, depositions. Four commenters opposed 
the use of recordings. One commenter objected to the use of recordings 
of hearings and depositions rather than transcripts, but did not state 
the basis for the objection. Three commenters stated that the review of 
a recording is more time-consuming than the review of a transcript of 
the same proceeding and the citation of relevant portions of a 
recording more difficult than the citation of relevant portions of a 
transcript. Two commenters stated that transcripts of prehearing 
conferences are necessary at a hearing in order to refer to evidentiary 
rulings made in prehearing conferences and transcripts of depositions 
are necessary for the proper cross-examination of witnesses. One 
commenter noted that the Department would have to purchase equipment to 
enable its counsel to review recordings.
    We made changes based on these comments. The final rule requires 
that hearings to be conducted by telephone shall be recorded verbatim 
by electronic recording device. Hearings conducted by audio-visual 
telecommunication or the personal attendance of any individual who is 
expected to participate in the hearing shall be transcribed, unless the 
person conducting the hearing finds that recording the hearing verbatim 
would expedite the proceeding and the person conducting the hearing 
orders the hearing to be recorded verbatim. The person conducting the 
hearing shall certify that to the best of his or her knowledge and 
belief the recording with exhibits that were accepted into evidence is 
the record of the hearing. The final rule provides that if a party 
requests the transcript of a hearing or part of a hearing and the 
person conducting the hearing determines that the disposition of the 
proceeding would be expedited by a transcript of the hearing or part of 
a hearing, the person conducting the hearing shall order the verbatim 
transcription of the recording as requested by the party. (See 7 CFR 
1.141(i), 1.168(h), 47.15(i), and 47.60 and 9 CFR 202.112(i) in this 
final rule.) The final rule provides that transcripts and recordings of 
hearings conducted under the Uniform Rules and the Capper-Volstead 
Rules shall be made available to any person at actual cost of 
duplication. (See 7 CFR 1.141(i) and 1.168(h) in this final rule.) We 
have retained the provisions regarding the cost and availability of 
transcripts that are currently in the PACA Reparation Rules, the PACA 
Responsibly Connected Rules, and the P&S Reparation Rules (see current 
7 CFR 47.15(g) and 47.60 and 9 CFR 202.112(h)) and have applied these 
cost and availability provisions to recordings. (See 7 CFR 47.15(i) and 
47.60 and 9 CFR 202.112 (i) in this final rule.)
    The discretion provided to the person conducting the hearing to 
order that a transcript be provided to a party rather than a recording 
will ensure that transcripts are available when a party does not have 
access to equipment that enables that party to use recordings. Further, 
we believe that parties will be able to review recordings as quickly as 
they review transcripts by using the fast forward and reverse modes 
that are available on most recording devices. In addition, relevant 
portions of recordings can be referenced by time, revolution, or some 
other method, as determined by the person conducting the proceeding.
    Prior to this rulemaking proceeding, none of the rules of practice 
which are the subject of this rulemaking proceeding required that 
prehearing conferences be recorded and we did not propose to require 
the transcription of prehearing conferences. Therefore, the comment 
regarding the transcription of prehearing conferences in order to refer 
to evidentiary rulings made in prehearing conferences is beyond the 
scope of this rulemaking proceeding.

7. ``Practical'' Problems

    Four commenters stated that hearings conducted by telecommunication 
would result in what the commenters characterized as ``practical 
problems.''
    (a) One commenter stated that hearings conducted by 
telecommunication would impair the ability of the parties to observe 
documents and call witnesses.
    We proposed to amend the Uniform Rules, the Capper-Volstead Rules, 
the PACA Reparation Rules, the PACA Responsibly Connected Rules, and 
the P&S Reparation Rules to authorize the person conducting a 
proceeding to: (1) Require each party to provide all other parties and 
the person conducting the proceeding with a copy of any exhibit that 
the party intends to introduce into evidence prior to any hearing to be 
conducted by telephone or audio-visual telecommunication; and (2) 
require that any hearing to be conducted by telephone or audio-visual 
telecommunication be conducted at locations at which the parties and 
the person conducting the proceeding are able to transmit documents 
during the hearing. These proposed provisions (see proposed 7 CFR 
1.144(c) (9) and (11), 1.173(d) (7) and (8), 47.11(c) (9) and (11), and 
47.56 (g) and (h) and 9 CFR 202.118(a) (8) and (10)) regarding the 
exchange of exhibits prior to a hearing conducted by telecommunication 
and the ability to transmit documents during a hearing conducted by 
telecommunication are designed to ensure that all parties have a full 
opportunity to participate in the hearing, present oral or documentary 
evidence, and cross-examine witnesses.
    As we stated above, we have retained these provisions in the final 
rule with one minor modification to correct an oversight in the 
proposed rule.
    Further, we proposed to amend the Uniform Rules, the Capper-
Volstead [[Page 8451]] Rules, the PACA Reparation Rules, the PACA 
Responsibly Connected Rules, and the P&S Reparation Rules to provide 
that unless the hearing is scheduled to begin less than 20 days after 
the person conducting the proceeding issues a notice stating the time 
of the hearing, each party must exchange, in writing, with all other 
parties, the direct testimony of each witness that the party will call 
to provide oral direct testimony at the hearing. (See proposed 7 CFR 
1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 202.112(e).) The 
written direct testimony must be in narrative form and must be 
verified. The written direct testimony of witnesses shall be exchanged 
by the parties at least 10 days prior to the hearing. The oral direct 
testimony provided by a witness at the hearing will be limited to the 
presentation of the written direct testimony, unless the person 
conducting the proceeding finds that oral direct testimony which is 
supplemental to the written direct testimony would expedite the 
proceeding and would not constitute surprise. These provisions 
regarding exchange of direct testimony are designed to ensure that all 
parties have a full opportunity to participate in the hearing, and 
cross-examine witnesses. As discussed above, we have limited the 
provisions regarding the exchange of written verified narrative 
statements of oral direct testimony to hearings to be conducted by 
telephone and to certain specified witnesses.
    These provisions will ensure that parties to adjudicatory 
proceedings conducted under the rules of practice which we are amending 
will have ample opportunity to observe documents.
    We do not agree with the comment that parties will have any more 
difficulty calling witnesses in a hearing conducted by 
telecommunication than parties will have when calling witnesses in a 
face-to-face hearing. The commenter did not provide any basis for this 
concern.
    (b) One commenter stated that no provision can be made in hearings 
conducted by telecommunication for--the introduction of real evidence, 
the examination of a witness regarding documents that the witness has 
in his or her possession on entering the courtroom, the examination of 
a witness regarding his or her ability to read at a distance, the 
request that a witness draw a picture; or any ``other unexpected 
events.''
    We have not made any change based on this comment. Very few of the 
hearings conducted under the rules of practice which this final rule 
amends necessitate the introduction of real evidence, the examination 
of a witness regarding documents that the witness has in his or her 
possession on entering the courtroom, the examination of a witness 
regarding his or her ability to read at a distance, or the request that 
a witness draw a picture.
    As discussed previously in this rulemaking document, the final rule 
provides that the person conducting the proceeding may require hearings 
conducted by telecommunication to be held at locations at which the 
parties and the person conducting the proceeding are able to transmit 
and receive documents during the hearing. This requirement will enable 
parties to examine witnesses regarding documents that the witness has 
in his or her possession on entering the courtroom and the ability to 
read at a distance, and to request witnesses to draw pictures or 
diagrams in hearings conducted by telecommunication.
    If real evidence is to be introduced in a hearing, the hearing or 
that part of the hearing in which the real evidence is to be introduced 
can be conducted by the personal attendance of those who are to 
participate in the hearing. As stated above, the person conducting the 
proceeding can require the hearing to be conducted by personal 
attendance of any individual who is expected to participate in the 
hearing if personal attendance is necessary to prevent prejudice to a 
party. The inability of a party to introduce admissible evidence 
because a hearing is conducted by telecommunication may prejudice a 
party, and, in such circumstances, a face-to-face hearing will be 
conducted.
    (c) Two commenters stated that hearings conducted by 
telecommunication would reduce the appearance of justice.
    We disagree with the comment and have not made any change based on 
this comment. The quality of justice will not be affected by this final 
rule. If any party will be prejudiced by a hearing conducted by 
telecommunication, the person conducting the proceeding will require 
the hearing to be conducted by personal attendance of any individual 
who is expected to participate in the hearing. The use of audio-visual 
technology preserves due process, promotes ease of participation by 
those for whom travel is difficult, and allows each party and the 
person conducting the proceeding to participate fully and with the 
effect of face-to-face confrontation. Therefore, we believe that this 
final rule will in fact heighten the appearance and fact of justice 
done.
    (d) Two commenters stated that hearings conducted by 
telecommunication would make sequestration difficult.
    A person conducting a hearing by telecommunication could order 
sequestration in the same manner in which it is ordered in a face-to-
face hearing. We agree that, in most situations, the person conducting 
a hearing by telecommunication will not be in a position to determine 
whether a sequestration order has been followed. We expect that all 
parties in adjudicatory proceedings conducted by the Department and 
counsel to those parties will make every effort to comply with lawful 
orders issued by the person conducting the proceeding.
    (e) Two commenters stated that hearings conducted by 
telecommunication would make recesses impractical.
    We disagree and have made no change based on these comments. 
Recesses can be called as easily in a hearing conducted by 
telecommunication as in a hearing conducted by personal attendance of 
those involved with the hearing.
    (f) Four commenters stated that prompting witnesses at hearings 
conducted by telecommunication would be difficult to control.
    Prompting of witnesses can occur in face-to-face hearings, but we 
do agree that, in some situations, it may be more difficult for a 
person conducting a hearing to detect witness prompting at a hearing 
conducted by telecommunication than to detect witness prompting at a 
hearing conducted by personal attendance of participants. However, 
prompting of witnesses in hearings conducted by audio-visual 
telecommunication will be far more difficult to conceal from other 
parties and the person conducting a hearing than in hearings conducted 
by telephone. In fact, current audio-visual technology can provide the 
person conducting the proceeding and the parties with virtually 
unlimited vision in the room in which a hearing is being conducted. We 
believe that the potential prompting problem is minimized by making 
audio-visual hearings the prevalent method of hearing.
    (g) Two commenters stated that hearings conducted by 
telecommunication could be negated by a signal or power failure or 
electronic interference.
    We disagree. If a signal or power failure were to occur, the 
hearing would be adjourned until such time as the hearing could be 
resumed. That portion of the hearing which is completed prior to the 
signal or power failure would not be negated. A signal or power failure 
which causes the adjournment of a [[Page 8452]] hearing conducted by 
telecommunication is not different than an event, such as a power 
failure or fire in the building in which a hearing is being conducted, 
that may cause the person conducting a face-to-face hearing to 
temporarily adjourn a hearing.
    (h) One commenter stated that the rules of practice would be 
subject to challenge which would add to uncertainty and cost money to 
defend.
    While proceedings conducted by telecommunication could be 
challenged, we believe that these challenges can be easily defended. 
Above, we cited a number of cases in which adjudicatory proceedings 
conducted by telecommunication have been challenged, and the state and 
federal agencies conducting proceedings by telecommunication have 
prevailed.
    (i) Two commenters stated that hearings conducted by 
telecommunication would often necessitate the employment of multiple 
counsel by each party to observe witness demeanor at each location at 
which a hearing is being held.
    The final rule does not require counsel to be present at the 
location at which a witness is testifying in a proceeding conducted by 
telecommunication. While we do not believe that the presence of counsel 
at each location at which witnesses testify is necessary, a party may 
chose to have counsel present at some or all of the locations at which 
witnesses testify in hearings conducted by telecommunication. Such an 
expenditure would be at the option of each party to the proceeding.

8. The Rulemaking Record

    Six commenters stated that the rulemaking record is deficient.
    (a) Four commenters stated that the cost-benefit analysis is 
inadequate or nonexistent.
    We have not made any change based upon these comments. In 
accordance with Executive Order 12866, we prepared an assessment in 
connection with the preparation of the notice of proposed rulemaking 
which preceded this final rule. The assessment, which was included in 
the rulemaking record, contains a discussion of the costs and benefits 
associated with the proposed rule. Again, in accordance with Executive 
Order 12866, we prepared an assessment in connection with the 
preparation of this final rule. The assessment, which was included in 
the rulemaking record, contains a discussion of the costs and benefits 
associated with the final rule.
    (b) Two commenters stated that there was no ``justification of the 
technical feasibility of conducting cross-examination via audio-visual 
devices.''
    We have not made any change based upon these comments. Prior to 
preparing the proposed rule, we thoroughly examined the range of 
equipment available to conduct adjudicatory proceedings by 
telecommunication. We found that both the telephone and audio-visual 
telecommunication equipment are generally adequate to conduct cross-
examinations. Again, the final rule amends the Uniform Rules, the 
Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly 
Connected Rules, and the P&S Reparation Rules, to provide that hearings 
will be conducted by the personal attendance of any individual who is 
expected to participate in the hearing if the person conducting the 
proceeding finds that personal attendance: (1) Is necessary to prevent 
prejudice to a party; (2) is necessary because of a disability of any 
individual expected to participate in the hearing; or (3) would cost 
less than conducting the hearing by audio-visual telecommunication. The 
person conducting the proceeding may, in his or her sole discretion or 
in response to a motion by a party to the proceeding, conduct the 
hearing by telephone only if the person conducting the proceeding finds 
that a hearing conducted by telephone: (1) would provide a full and 
fair evidentiary hearing; (2) would not prejudice any party; and (3) 
would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
    (c) One commenter stated that it did not have adequate notice of 
the proposed rule, and, therefore, the comment period should be 
extended.
    On June 22, 1994, in response to this comment, we published a 
document in the Federal Register (59 FR 32138) reopening and extending 
the comment period until July 22, 1994.

9. Suggestions

    (a) Five commenters stated that the Department should experiment 
with proceedings conducted by telecommunication on a limited basis.
    We have not made any change based on these comments. The use of 
telecommunication in adjudicatory proceedings is not new. Numerous 
state and federal agencies have conducted adjudicatory proceedings by 
telecommunication in the past. We believe that experience of other 
state and federal agencies is sufficient to enable the Department to 
forego the implementation of telecommunication on an experimental 
basis.
    (b) Five commenters stated that hearings should only be conducted 
by telecommunication when the parties agree.
    We have not made any change based on this comment. The final rule 
provides the parties with ample opportunity to make the person 
conducting the proceeding aware of the parties' preferences regarding 
the manner in which the hearing should be conducted and to persuade the 
person conducting the proceeding to conduct the hearing in a manner 
other than that ordered by the person conducting the proceeding. 
Specifically, the final rule amends the Uniform Rules, the Capper-
Volstead Rules, the PACA Reparation Rules, the PACA Responsibly 
Connected Rules, and the P&S Reparation Rules to provide that any party 
may move that the hearing be conducted by telephone or personal 
attendance of any individual expected to attend the hearing rather than 
by audio-visual telecommunication. Further, within 10 days after the 
person conducting the proceeding issues a notice stating the manner in 
which the hearing is to be conducted, any party may move that the 
person conducting the proceeding reconsider the manner in which the 
hearing is to be conducted. (See 7 CFR 1.141(b)(2), 1.168(b)(2), 
47.15(c)(2), and 47.53 (b) and (c) and 9 CFR 202.112(b) (2) and (3) in 
this final rule.)
    (c) Two commenters stated that the parties should elect the manner 
in which depositions are to be held and judges should only be involved 
if the parties cannot agree.
    We agree with the commenters with respect to the PACA Reparation 
Rules and the P&S Reparation Rules. We proposed to amend the Uniform 
Rules, the PACA Reparation Rules, and the P&S Reparation Rules to 
provide that a deposition shall be conducted by telephone unless the 
person conducting the proceeding determines that conducting the 
deposition by audio-visual telecommunication: (1) Would cost less than 
conducting the deposition by telephone; (2) is necessary to prevent 
prejudice to a party; or (3) is necessary because of a disability of 
any individual expected to participate in the deposition. If the 
deposition is not conducted by telephone, the deposition shall be 
conducted by audio-visual telecommunication unless the person 
conducting the proceeding determines that conducting the deposition by 
personal attendance of any individual who is expected to participate in 
the deposition: (1) Would cost less than [[Page 8453]] conducting the 
deposition by telephone or audio-visual telecommunication; (2) is 
necessary to prevent prejudice to a party; or (3) is necessary because 
of a disability of any individual expected to participate in the 
deposition.
    However, the government is never a party in proceedings conducted 
under the PACA Reparation Rules and the P&S Reparation Rules and incurs 
very little cost associated with depositions taken in PACA and P&S 
reparation proceedings. Therefore, the final rule provides that in 
proceedings conducted under the PACA Reparation Rules and the P&S 
Reparation Rules the parties may agree upon the manner in which the 
depositions are to be conducted and the person conducting the 
proceeding will only determine the manner in which a deposition is to 
be conducted when the parties cannot agree. (See 7 CFR 47.16(b) (3) and 
(4) and 9 CFR 202.109(d) (4) and (5) in this final rule.)
    (d) One commenter opposed the proposal, but urged the Department to 
modernize its rules and to form an ad hoc committee to review the 
rules.
    We welcome any comments or petitions for rulemaking which any 
interested member of the public may wish to make regarding any of the 
Department's rules of practice, but we do not believe that it is 
necessary to form a committee to review the Department's rules or 
practice. The Department regulation regarding petitions for issuance, 
amendment, or repeal of a rule is set forth in 7 CFR 1.28.
    (e) Two commenters supported conducting conferences by telephone 
when the judge decides that the use of the telephone is appropriate.
    We did not make any change based on these comments. The proposed 
rule provided that conferences are to be held either by telephone or by 
correspondence unless certain findings are made by the person 
conducting the proceeding. The final rule retains those provisions.

Conclusion

    Based on the rationale in the proposed rule and this rulemaking 
document, we are adopting the provisions of the proposal as a final 
rule except as previously discussed in this rulemaking document and 
except for minor editorial changes for clarity. In addition, since the 
preparation of the notice of proposed rulemaking 7 CFR 180.300 has been 
redesignated as 7 CFR 97.300. Therefore, we have removed the amendment 
of 7 CFR 180.300 in this final rule and, instead, amended 7 CFR 97.300.
    Further, based upon the general need to allow the person conducting 
the proceeding to tailor the manner in which the proceeding is 
conducted to prevent prejudice to any party and to ensure that any 
hearing is a full and fair evidentiary hearing, we have eliminated all 
of the provisions which appeared in the proposal concerning 
interlocutory appeal. Specifically, we proposed to amend 7 CFR 1.143(e) 
to allow any party to appeal to the Judicial Officer a Judge's order: 
(1) To conduct a conference by audio-visual telecommunication or 
personally attend a conference; (2) to conduct a hearing by audio-
visual telecommunication or personally attend a hearing; or (3) to 
conduct a deposition by audio-visual telecommunication or personally 
attend a deposition. Further, we proposed to amend 7 CFR 47.13(b) to 
allow any party to appeal to the Secretary an examiner's order: (1) To 
conduct a conference by audio-visual telecommunication or personally 
attend a conference; (2) to conduct a hearing by audio-visual 
telecommunication or personally attend a hearing; or (3) to conduct a 
deposition by audio-visual telecommunication or personally attend a 
deposition. Further still, we proposed to amend 7 CFR 1.172(e) to allow 
any party to appeal to the Judicial Officer a Judge's order: (1) To 
conduct a conference by audio-visual telecommunication or personally 
attend a conference; or (2) to conduct a hearing by audio-visual 
telecommunication or personally attend a hearing. Finally, we proposed 
to amend 9 CFR 202.118(b) to allow any party to appeal to the Judicial 
Officer a presiding officer's order: (1) To conduct a conference by 
audio-visual telecommunication or personally attend a prehearing 
conference; (2) to conduct an oral hearing by audio-visual 
telecommunication or personally attend an oral hearing; or (3) to 
conduct a deposition by audio-visual telecommunication or personally 
attend a deposition. None of these proposed amendments concerning 
interlocutory appeal have been adopted in this final rule.
    Further, the proposed rule amended the Uniform Rules, the PACA 
Responsibly Connected Rules, and the P&S Reparation Rules to require 
hearings to be recorded verbatim by an electronic recording device. 
Only if a party to the proceeding requests a transcript of the hearing 
or a part of the hearing and the person conducting the proceeding 
determines that the disposition of the proceeding would be expedited by 
a transcript of the hearing could the person conducting the proceeding 
order the verbatim transcription of the recording as requested by the 
party. We proposed to require that any presiding person's order to 
transcribe a hearing and the basis for the order be reduced to a 
written order and filed with the Hearing Clerk. We have eliminated the 
requirement that the order of the person conducting the proceeding and 
the basis of that order be reduced to a written order and filed with 
the Hearing Clerk. (See 7 CFR 1.141(i) and 47.60 and 9 CFR 202.112(i) 
in this final rule.) We do not believe that an order regarding 
transcription of a hearing must be handled in a manner different than 
any other order issued by the person conducting the proceeding.
    Finally, the Department will bear the entire cost of audio-visual 
transmission and only some of the travel costs related to face-to-face 
hearings, conferences, and depositions. Therefore, there could be rare 
circumstances in which the overall cost of conducting a conference, 
hearing, or deposition by audio-visual telecommunication may be cheaper 
than conducting the same conference, hearing, or deposition in some 
other manner and at the same time the Department's cost of conducting 
the conference, hearing, or deposition by audio-visual 
telecommunication could be higher than conducting that conference, 
hearing, or deposition in some other manner. In order to avoid a 
measurable increase in costs to the Department, this final rule 
provides that if the person conducting the proceeding finds that a 
hearing or deposition conducted by audio-visual telecommunication would 
measurably increase costs to the Department, the hearing or deposition 
shall be conducted by personal attendance or by telephone. If the 
person conducting the proceeding finds that a conference conducted by 
audio-visual telecommunication would measurably increase costs to the 
Department, the conference shall be conducted by personal attendance, 
by telephone, or by correspondence. (See 7 CFR 1.140(c), 1.141(b), 
1.148(b), 1.167(b), 1.168(b), 47.14(c), and 47.15(c), and 9 CFR 
202.110(b) and 202.112(a) in this final rule.) We did not make this 
change with respect to depositions conducted under the PACA Reparation 
Rules or the P&S Reparation Rules because the government is never a 
party in proceedings conducted under those rules and incurs very little 
cost associated with depositions taken in PACA and P&S reparation 
proceedings. [[Page 8454]] 

Establishment of the Grain Inspection, Packers and Stockyards 
Administration

    Pursuant to Public Law 103-354, the Federal Crop Insurance Reform 
and Department of Agriculture Reorganization Act of 1994, the Secretary 
of Agriculture published a notice of the Department's reorganization 
establishing the Grain Inspection, Packers and Stockyards 
Administration (59 FR 66517). This rule includes amendments to 9 CFR 
chapter II which are necessary to bring agency regulations in alignment 
with the departmental reorganization.

Executive Order 12866 and Regulatory Flexibility Act

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

Executive Order 12778

    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. This rule: (1) Preempts all State and local laws and 
regulations that are inconsistent with this rule; (2) has no 
retroactive effect; and (3) does not require administrative proceedings 
before parties may file suit in court challenging this rule.

Paperwork Reduction Act

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

List of Subjects

7 CFR Part 0

    Conflict of interest.

7 CFR Part 1

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

7 CFR Part 47

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

7 CFR Part 50

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

7 CFR Part 51

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

7 CFR Part 52

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

7 CFR Part 53

    Cattle, Hogs, Livestock, Sheep.

7 CFR Part 54

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

7 CFR Part 97

    Administrative practice and procedure, Labeling, Plants.

9 CFR Part 202

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

    Accordingly, 7 CFR part 0, part 1, subpart H and subpart I, part 
47, part 50, part 51, part 52, part 53, part 54, and part 97 and 9 CFR 
part 202 are amended as follows:

TITLE 7--[AMENDED]

SUBTITLE A--OFFICE OF THE SECRETARY OF AGRICULTURE

PART 0--EMPLOYEE RESPONSIBILITIES AND CONDUCT

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

    Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Comp., page 306; 
5 CFR 735.104; 18 U.S.C. 207(j), unless otherwise noted.


Sec. 0.735-11  [Amended]

    2. Section 0.735-11 is amended as follows:
    a. In paragraph (b)(6), by adding the words ``or such monitoring or 
recording occurs in the course of a Department of Agriculture 
proceeding conducted by telephone or audio-visual telecommunication and 
the person conducting the proceeding is an administrative law judge, 
hearing officer, examiner, or presiding officer'' immediately before 
the semicolon. [[Page 8455]] 
    b. In paragraph (b)(7), by adding the words ``or such monitoring or 
recording occurs in the course of a Department of Agriculture 
proceeding conducted by telephone or audio-visual telecommunication and 
the person conducting the proceeding is an administrative law judge, 
hearing officer, examiner, or presiding officer'' immediately before 
the semicolon.

PART 1--ADMINISTRATIVE REGULATIONS

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

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


Sec. 1.131  [Amended]

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


Sec. 1.132  [Amended]

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


Sec. 1.133  [Amended]

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


Sec. 1.140  [Amended]

    7. In Sec. 1.140, the section heading is revised to read as set 
forth below; paragraph (a)(1) introductory text is amended by removing 
the word ``prehearing'' and revising the second sentence to read 
``Reasonable notice of the time, place, and manner of the conference 
shall be given.''; paragraph (b) is amended by removing the word 
``prehearing''; and paragraph (c) is revised to read as follows:


Sec. 1.140  Conferences and procedure.

* * * * *
    (c) Manner of Conference. (1) The conference shall be conducted by 
telephone or correspondence unless the Judge determines that conducting 
the conference by audio-visual telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the conference; or
    (iii) Would cost less than conducting the conference by telephone 
or correspondence. If the Judge determines that a conference conducted 
by audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the conference, 
the conference shall be conducted by personal attendance of any 
individual who is expected to participate in the conference, by 
telephone, or by correspondence.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the conference; or
    (iii) Would cost less than conducting the conference by audio-
visual telecommunication.
* * * * *


Sec. 1.141  [Amended]

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


Sec. 1.141  Procedure for hearing.

* * * * *
    (b) Time, place, and manner. (1) If any material issue of fact is 
joined by the pleadings, the Judge, upon motion of any party stating 
that the matter is at issue and is ready for hearing, shall set a time, 
place, and manner for hearing as soon as feasible after the motion is 
filed, with due regard for the public interest and the convenience and 
necessity of the parties. The Judge shall file with the Hearing Clerk a 
notice stating the time and place of the hearing.3 This notice 
shall state whether the hearing will be conducted by telephone, audio-
visual telecommunication, or personal attendance of any individual 
expected to participate in the hearing. The Judge's determination 
regarding the manner of the hearing shall be made in accordance with 
paragraphs (b)(3) and (b)(4) of this section. If any change in the 
time, place, or manner of the hearing is made, the Judge shall file 
with the Hearing Clerk a notice of such change, which notice shall be 
served upon the parties, unless it is made during the course of an oral 
hearing and made part of the transcript or recording, or actual notice 
is given to the parties.

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

    (2) (i) If any material issue of fact is joined by the pleadings 
and the matter is at issue and is ready for hearing, any party may move 
that the hearing be conducted by telephone or personal attendance of 
any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by 
telephone or personal attendance of any individual expected to attend 
the hearing must be accompanied by a memorandum in support of the 
motion stating the basis for the motion and the circumstances that 
require the hearing to be conducted other than by audio-visual 
telecommunication.
    (ii) Within 10 days after the Judge issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the Judge reconsider the manner in which the hearing is to be 
conducted. Any motion for reconsideration must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than in accordance with the Judges's notice. [[Page 8456]] 
    (3) The hearing shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
hearing by personal attendance of any individual who is expected to 
participate in the hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the Judge determines that a hearing conducted by 
audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the hearing, the 
hearing shall be conducted by personal attendance of any individual who 
is expected to participate in the hearing or by telephone.
    (4) The Judge may, in his or her sole discretion or in response to 
a motion by a party to the proceeding, conduct the hearing by telephone 
if the Judge finds that a hearing conducted by telephone:
    (i) Would provide a full and fair evidentiary hearing;
    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
* * * * *
    (g) Written statements of direct testimony. (1) Except as provided 
in paragraph (g)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone; and the direct testimony of each 
expert witness that the party will call to provide oral direct 
testimony at any hearing to be conducted by telephone. The written 
direct testimony of witnesses shall be exchanged by the parties at 
least 10 days prior to the hearing. The oral direct testimony provided 
by a witness at a hearing conducted by telephone will be limited to the 
presentation of the written direct testimony, unless the Judge finds 
that oral direct testimony which is supplemental to the written direct 
testimony would further the public interest and would not constitute 
surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin 
less than 20 days after the Judge's notice stating the time of the 
hearing.
* * * * *
    (i) Transcript or recording. (1) Hearings to be conducted by 
telephone shall be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or the personal 
attendance of any individual who is expected to participate in the 
hearing shall be transcribed, unless the Judge finds that recording the 
hearing verbatim would expedite the proceeding and the Judge orders the 
hearing to be recorded verbatim. The Judge shall certify that to the 
best of his or her knowledge and belief any recording made pursuant to 
this paragraph with exhibits that were accepted into evidence is the 
record of the hearing.
    (2) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the Judge determines 
that the disposition of the proceeding would be expedited by a 
transcript of the hearing or part of a hearing, the Judge shall order 
the verbatim transcription of the recording as requested by the party.
    (3) Recordings or transcripts of hearings shall be made available 
to any person at actual cost of duplication.


Sec. 1.142  [Amended]

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


Sec. 1.144  [Amended]

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


Sec. 1.144  Judges.

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


Sec. 1.145  [Amended]

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


Sec. 1.147  [Amended]

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


Sec. 1.148  [Amended]

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


Sec. 1.148  Depositions.

* * * * * [[Page 8457]] 
    (b) Judge's order for taking deposition. (1) If the Judge finds 
that the testimony may not be otherwise available at the hearing, the 
taking of the deposition may be ordered. The order shall be filed with 
the Hearing Clerk and shall state:
    (i) The time of the deposition;
    (ii) The place of the deposition;
    (iii) The manner of the deposition (telephone, audio-visual 
telecommunication, or personal attendance of those who are to 
participate in the deposition);
    (iv) The name of the officer before whom the deposition is to be 
made; and
    (v) The name of the deponent. The officer and the time, place, and 
manner need not be the same as those suggested in the motion for the 
deposition.
    (2) The deposition shall be conducted by telephone unless the Judge 
determines that conducting the deposition by audio-visual 
telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the deposition; or
    (iii) Would cost less than conducting the deposition by telephone. 
If the Judge determines that a deposition conducted by audio-visual 
telecommunication would measurably increase the United States 
Department of Agriculture's cost of conducting the deposition, the 
deposition shall be conducted by personal attendance of any individual 
who is expected to participate in the deposition or by telephone.
    (3) If the deposition is not conducted by telephone, the deposition 
shall be conducted by audio-visual telecommunication unless the Judge 
determines that conducting the deposition by personal attendance of any 
individual who is expected to participate in the deposition:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the deposition; or
    (iii) Would cost less than conducting the deposition by telephone 
or audio-visual telecommunication.
* * * * *


Sec. 1.149  [Amended]

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

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


Sec. 1.161  [Amended]

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


Sec. 1.162  [Amended]

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


Sec. 1.164  [Amended]

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


Sec. 1.167  [Amended]

    19. Section 1.167 is revised to read as follows:


Sec. 1.167  Conference

    (a) Purpose. Upon motion of a party or upon the Judge's own motion, 
the Judge may direct the parties to attend a conference when the Judge 
finds that the proceeding would be expedited by discussions on matters 
of procedure and/or possible stipulations. The conference may include 
discussions regarding:
    (1) Simplification of the issues;
    (2) Limitation of expert or other witnesses;
    (3) The orderly presentation of evidence; and
    (4) Any other matters that may expedite and aid in the disposition 
of the proceeding.
    (b) Manner of the Conference. (1) The conference shall be conducted 
by telephone or correspondence unless the Judge determines that 
conducting the conference by audio-visual telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the conference; or
    (iii) Would cost less than conducting the conference by telephone 
or correspondence. If the Judge determines that a conference conducted 
by audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the conference, 
the conference shall be conducted by personal attendance of any 
individual who is expected to participate in the conference, by 
telephone, or by correspondence.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the conference; or
    (iii) Would cost less than conducting the conference by audio-
visual telecommunication.


Sec. 1.168  [Amended]

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


Sec. 1.168  Procedure for hearing.

* * * * *
    (b) Manner of hearing. (1) The Judge shall file with the Hearing 
Clerk a notice stating whether the hearing will be conducted by 
telephone, audio-visual telecommunication, or personal attendance of 
any individual expected to attend the hearing and the Judge's 
determination regarding the manner of [[Page 8458]] hearing shall be 
made in accordance with paragraphs (b)(3) and (b)(4) of this section. 
If any change in the manner of the hearing is made, the Judge shall 
file with the Hearing Clerk a notice of the change, which notice shall 
be served on the parties, unless it is made during the course of an 
oral hearing and made part of the transcript or recording, or actual 
notice is given to the parties.
    (2)(i) Any party may move that the hearing be conducted by 
telephone or personal attendance of any individual expected to attend 
the hearing rather than by audio-visual telecommunication. Any motion 
that the hearing be conducted by telephone or personal attendance of 
any individual expected to attend the hearing must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than by audio-visual telecommunication.
    (ii) Within 10 days after the Judge issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the Judge reconsider the manner in which the hearing is to be 
conducted. Any motion for reconsideration must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than in accordance with the Judges's notice.
    (3) The hearing shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
hearing by personal attendance of any individual who is expected to 
participate in the hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the Judge determines that a hearing conducted by 
audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the hearing, the 
hearing shall be conducted by personal attendance of any individual who 
is expected to participate in the hearing or by telephone.
    (4) The Judge may, in his or her sole discretion or in response to 
a motion by a party to the proceeding, conduct the hearing by telephone 
if the Judge finds that a hearing conducted by telephone:
    (i) Would provide a full and fair evidentiary hearing;
    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
* * * * *
    (f) Written statements of direct testimony. (1) Except as provided 
in paragraph (f)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone; and the direct testimony of each 
expert witness that the party will call to provide oral direct 
testimony at any hearing to be conducted by telephone. The written 
direct testimony of witnesses shall be exchanged by the parties at 
least 10 days prior to the hearing. The oral direct testimony provided 
by a witness at a hearing conducted by telephone will be limited to the 
presentation of the written direct testimony, unless the Judge finds 
that oral direct testimony which is supplemental to the written direct 
testimony would further the public interest and would not constitute 
surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin 
less than 20 days after the Judge's notice stating the time of the 
hearing.
* * * * *
    (h) Transcript or recording. (1) Hearings to be conducted by 
telephone shall be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or the personal 
attendance of any individual who is expected to participate in the 
hearing shall be transcribed, unless the Judge finds that recording the 
hearing verbatim would expedite the proceeding and the Judge orders the 
hearing to be recorded verbatim. The Judge shall certify that to the 
best of his or her knowledge and belief any recording made pursuant to 
this paragraph with exhibits that were accepted into evidence is the 
record of the hearing.
    (2) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the Judge determines 
that the disposition of the proceeding would be expedited by a 
transcript of the hearing or part of a hearing, the Judge shall order 
the verbatim transcription of the recording as requested by the party.
    (3) Recordings or transcripts of hearings shall be made available 
to any person at actual cost of duplication.
* * * * *


Sec. 1.169  [Amended]

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


Sec. 1.170  [Amended]

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


Sec. 1.171  [Amended]

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


Sec. 1.172  [Amended]

    24. In Sec. 1.172, paragraph (a) is amended by adding the words 
``or recording'' immediately after the word ``transcript''.


Sec. 1.173  [Amended]

    25. Section 1.173 is amended as follows:
    a. In paragraph (b)(1), the words ``or herself'' are added 
immediately after the word ``himself''.
    b. In paragraph (b)(2), the word ``he'' is removed and the words 
``the Judge'' added in its place.
    c. In paragraph (b)(2), the words ``or herself'' are added 
immediately after the word ``himself''.
    d. In paragraph (d), in the introductory language, the words ``or 
her,'' are added immediately after the word ``him''.
    e. Paragraph (d)(2) is revised to read as set forth below. 
[[Page 8459]] 
    f. Paragraph (d)(7) is redesignated as paragraph (d)(9).
    g. New paragraphs (d)(7) and (d)(8) are added to read as set forth 
below.
    h. In paragraph (e), the word ``his'' is removed and the words 
``the Judge's'' added in its place.
    i. In paragraph (e), the word ``him'' is removed and the words 
``the Judge'' are added in its place both times the word ``him'' 
appears.


Sec. 1.173  Judges.

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


Sec. 1.174  [Amended]

    26. In Sec. 1.174, paragraph (c) is amended by adding the words 
``or recording'' immediately after the word ``transcript''.

SUBTITLE B--REGULATIONS OF THE DEPARTMENT OF AGRICULTURE

CHAPTER I--AGRICULTURAL MARKETING SERVICE

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

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

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


Sec. 47.2  [Amended]

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


Sec. 47.3  [Amended]

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


Sec. 47.3  Institution of proceedings.

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


Sec. 47.4  [Amended]

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


Sec. 47.5  [Amended]

    31. Section 47.5 is amended by removing the words ``of these 
regulations in this part'' and ``of the regulations in this part'' and 
revising the last sentence to read as follows:


Sec. 47.5  Scope and applicability of rules of practice.

    * * * In addition, except to the extent that they are inconsistent 
with Secs. 1.130 through 1.151 of this chapter, Secs. 47.1 through 47.5 
and 47.46 are also applicable to procedures governing the filing and 
disposition of formal complaints and other moving papers relating to 
administrative proceedings to enforce the Act pursuant to Secs. 1.130 
through 1.151 of this chapter.


Sec. 47.11  [Amended]

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


Sec. 47.11  Examiners.

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


Sec. 47.12  [Amended]

    33. Section 47.12 is amended by removing the word ``he'' and adding 
the words ``the petitioner'' each of the three times the word ``he'' 
appears.


Sec. 47.13  [Amended]

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


Sec. 47.13  Motions and requests.

* * * * *
    (b) Certification to the Secretary. The submission or certification 
of any motion, request, objection, or other question to the Secretary 
prior to transmittal of the record to the Secretary as provided in this 
part shall be made by and in the discretion of the examiner. The 
examiner may either rule upon or certify the motion, request, 
objection, or other question to the Secretary, but not both. 
[[Page 8460]] 


Sec. 47.14  [Amended]

    35. Section 47.14 is revised to read as follows:
    (a) In any proceeding in which it appears that a conference will 
expedite the proceeding, the examiner, at any time prior to or during 
the course of the oral hearing, may request the parties or their 
counsel to appear at a conference before the examiner to consider:
    (1) The simplification of the issues;
    (2) The necessity or the desirability of amendments to the 
pleadings;
    (3) The possibility of obtaining stipulations of fact and of 
documents which will avoid unnecessary proof;
    (4) The limitation of the number of expert or other witnesses; or
    (5) Such other matters as may expedite and aid in the disposition 
of the proceeding.
    (b) No transcript or recording of the conference shall be made. If 
the conference is conducted by correspondence, the examiner shall 
forward copies of letters and documents to the parties as circumstances 
require. The correspondence in connection with a conference shall not 
be part of the record. The examiner shall prepare and file for the 
record a written summary of the action agreed upon or taken at the 
conference, which shall incorporate any written stipulations or 
agreements made by the parties at the conference or as a result of the 
conference.
    (c) Manner of the Conference. (1) The conference shall be conducted 
by telephone or correspondence unless the examiner determines that 
conducting the conference by audio-visual telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the conference; or
    (iii) Would cost less than conducting the conference by telephone 
or correspondence. If the examiner determines that a conference 
conducted by audio-visual telecommunication would measurably increase 
the United States Department of Agriculture's cost of conducting the 
conference, the conference shall be conducted by personal attendance of 
any individual who is expected to participate in the conference, by 
telephone, or by correspondence.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the examiner determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the conference; or
    (iii) Would cost less than conducting the conference by audio-
visual telecommunication.


Sec. 47.15  [Amended]

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


Sec. 47.15  Oral hearing before examiner.

* * * * *
    (c) Time, place, and manner. (1) If and when the proceeding has 
reached the stage of oral hearing, the examiner, giving careful 
consideration to the convenience of the parties, shall set a time for 
hearing and shall file with the hearing clerk a notice stating the time 
and place of hearing. Unless the parties otherwise agree, the place of 
the hearing shall be the place in which the respondent is engaged in 
business. This notice shall state whether the hearing will be conducted 
by telephone, audio-visual telecommunication, or personal attendance of 
any individual expected to participate in the hearing and the 
examiner's determination regarding the manner of the hearing shall be 
made in accordance with paragraphs (c)(3) and (c)(4) of this section. 
If any change in the time, place, or manner of the hearing is made, the 
examiner shall file with the hearing clerk a notice of the change. The 
notice of any change in the time, place, or manner of the hearing shall 
be served on the parties, unless it is made during the course of an 
oral hearing and made part of the transcript or recording, or actual 
notice is given to the parties.
    (2)(i) If and when the proceeding has reached the stage of oral 
hearing, any party may move that the hearing be conducted by telephone 
or personal attendance of any individual expected to attend the hearing 
rather than by audio-visual telecommunication. Any motion that the 
hearing be conducted by telephone or personal attendance of any 
individual expected to attend the hearing must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than by audio-visual telecommunication.
    (ii) Within 10 days after the examiner issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the examiner reconsider the manner in which the hearing is to be 
conducted. Any motion for reconsideration must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than in accordance with the examiner's notice.
    (3) The hearing shall be conducted by audio-visual 
telecommunication unless the examiner determines that conducting the 
hearing by personal attendance of any individual expected to attend the 
hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the examiner determines that a hearing conducted 
by audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the hearing, the 
hearing shall be conducted by personal attendance of any individual who 
is expected to participate in the hearing or by telephone. 
[[Page 8461]] 
    (4) The examiner may, in his or her sole discretion or in response 
to a motion by a party to the proceeding, conduct the hearing by 
telephone if the examiner finds that a hearing conducted by telephone:
    (i) Would provide a full and fair evidentiary hearing;
    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
* * * * *
    (f) Written statements of direct testimony. (1) Except as provided 
in paragraph (f)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone; and the direct testimony of each 
expert witness that the party will call to provide oral direct 
testimony at any hearing to be conducted by telephone. The written 
direct testimony of witnesses shall be exchanged by the parties at 
least 10 days prior to the hearing. The oral direct testimony provided 
by a witness at a hearing conducted by telephone will be limited to the 
presentation of the written direct testimony, unless the examiner finds 
that oral direct testimony which is supplemental to the written direct 
testimony would further the public interest and would not constitute 
surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin 
less than 20 days after the examiner's notice stating the time of the 
hearing.
* * * * *
    (i) Transcript or recording. (1) Hearings to be conducted by 
telephone shall be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or the personal 
attendance of any individual who is expected to participate in the 
hearing shall be transcribed, unless the examiner finds that recording 
the hearing verbatim would expedite the proceeding and the examiner 
orders the hearing to be recorded verbatim.
    (2) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the examiner 
determines that the disposition of the proceeding would be expedited by 
a transcript of the hearing or part of a hearing, the examiner shall 
order the verbatim transcription of the recording as requested by the 
party.
    (3) If a reporter transcribes or records the testimony at a 
hearing, the reporter shall deliver the original transcript or 
recording, with exhibits thereto attached, to the examiner, who will 
retain such copy for the official file and for use in preparing his or 
her report. The reporter will also deliver to the examiner such other 
copy or copies as may be ordered by the Department, which copy or 
copies the examiner will forward to the hearing clerk.
    (4) Parties to the proceeding, or others, who desire a copy of the 
transcript or recording of the hearing may place orders at the hearing 
with the reporter, who will furnish and deliver such copies direct to 
the purchaser upon payment of the applicable rate.
* * * * *


Sec. 47.16  [Amended]

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


Sec. 47.16  Depositions.

    (a) * * *
    (3) the proposed time of the deposition which, unless otherwise 
agreed, shall be at least 30 days after the date of the mailing of the 
application; (4) the proposed place of the deposition; (5) the proposed 
manner in which the deposition is to be conducted (telephone, audio-
visual telecommunication, or by personal attendance of the individuals 
who are expected to participate in the deposition); and (6) the reasons 
for taking the deposition.
    (b) Examiner's order for taking deposition. (1) If, after 
examination of the application, the examiner is of the opinion that the 
deposition should be taken, the examiner shall order the taking of the 
deposition. The order shall be filed with the hearing clerk and shall 
be served by the hearing clerk upon the parties in accordance with 
Sec. 47.4.
    (2) The order shall state:
    (i) The time of the deposition (which unless otherwise agreed shall 
not be less than 20 days after the filing of the order);
    (ii) The place of the deposition;
    (iii) The manner of the deposition (telephone, audio-visual 
telecommunication, or personal attendance of those who are to 
participate in the deposition);
    (iv) The name of the officer before whom the deposition is to be 
made; and
    (v) The name of the deponent.
    (3) The deposition shall be conducted in the manner (telephone, 
audio-visual telecommunication, or personal attendance of those who are 
to participate in the deposition) agreed to by the parties.
    (4) If the parties cannot agree on the manner in which the 
deposition is to be conducted:
    (i) The deposition shall be conducted by telephone unless the 
examiner determines that conducting the deposition by audio-visual 
telecommunication:
    (A) Is necessary to prevent prejudice to a party;
    (B) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (C) Would cost less than conducting the deposition by telephone.
    (ii) If the deposition is not conducted by telephone, the 
deposition shall be conducted by audio-visual telecommunication unless 
the examiner determines that conducting the deposition by personal 
attendance of any individual who is expected to participate in the 
deposition:
    (A) Is necessary to prevent prejudice to a party;
    (B) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (C) Would cost less than conducting the deposition by telephone or 
audio-visual telecommunication.
* * * * *
    (d) Procedure on examination. (1) The deponent shall be examined 
under oath or affirmation and shall be subject to cross-examination. 
The testimony of the deponent shall be recorded by the officer or some 
person under the officer's direction. In lieu of oral examination, 
parties may transmit written questions to the officer prior to 
examination and the officer shall propound the written questions to the 
deponent.
* * * * * [[Page 8462]] 


Sec. 47.17  [Amended]

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


Sec. 47.19  [Amended]

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


Sec. 47.20  [Amended]

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


Sec. 47.21  [Amended]

    41. Section 47.21 is amended by adding the words ``or recording'' 
immediately after the word ``transcript'' and by removing the word 
``prehearing''.


Sec. 47.22  [Amended]

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


Sec. 47.23  [Amended]

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


Sec. 47.24  [Amended]

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


Sec. 47.25  [Amended]

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


Sec. 47.46  [Amended]

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


Sec. 47.47  [Amended]

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


Sec. 47.49  [Amended]

    48. In section 47.49, paragraph (f) is revised to read as follows:


Sec. 47.49  Determinations.

* * * * *
    (f)(1) The presiding officer will order that an oral hearing be 
held if one is requested by the petitioner, or if the presiding officer 
determines that an oral hearing is necessary. A verbatim record shall 
be made of the hearing. In the event that an oral hearing is neither 
requested by the petitioner, nor ordered by the presiding officer, the 
presiding officer shall provide the petitioner a copy of the official 
file, and give the parties an opportunity to submit documents and other 
evidence to support their positions, as well as written arguments 
pertaining to their positions.
    (2) If an oral hearing is held, it shall be conducted by audio-
visual telecommunication unless the presiding officer determines that 
conducting the hearing by the personal attendance of any individual 
expected to attend the hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the presiding officer determines that a hearing 
conducted by audio-visual telecommunication would measurably increase 
the United States Department of Agriculture's cost of conducting the 
hearing, the hearing shall be conducted by personal attendance of any 
individual who is expected to participate in the hearing or by 
telephone.
    (3) The presiding officer may, in his or her sole discretion or in 
response to a motion by a party to the proceeding, conduct the hearing 
by telephone if the presiding officer finds that a hearing conducted by 
telephone:
    (i) Would provide a full and fair evidentiary hearing;
    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.


Sec. 47.53  [Amended]

    49. Section 47.53 is revised to read as follows:
    Sec. 47.53 Notice of time, place, and manner of hearing and 
provision of the official file.
    (a) Upon assignment of the matter for oral hearing, the presiding 
officer shall notify the parties by serving them with copies of the 
notice of hearing, stating the time and place of the hearing. The 
notice shall state whether the oral hearing will be conducted by 
telephone, audio-visual telecommunication, or personal attendance of 
any individual expected to attend the hearing, and the presiding 
officer's determination regarding the manner of the hearing shall be 
made in accordance with Sec. 47.49(f)(2) and Sec. 47.49(f)(3). The 
parties will be notified as soon as possible of any change in the time, 
place, or manner of the hearing.
    (b) If the presiding officer orders an oral hearing, any party may 
move that the hearing be conducted by telephone or personal attendance 
of any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by 
telephone or personal attendance of any individual 
[[Page 8463]] expected to attend the hearing must be accompanied by a 
memorandum in support of the motion stating the basis for the motion 
and the circumstances that require the hearing to be conducted other 
than by audio-visual telecommunication.
    (c) Within 10 days after the presiding officer issues a notice 
stating the manner in which the hearing is to be conducted, any party 
may move that the presiding officer reconsider the manner in which the 
hearing is to be conducted. Any motion for reconsideration must be 
accompanied by a memorandum in support of the motion stating the basis 
for the motion and the circumstances that require the hearing to be 
conducted other than in accordance with the presiding officer's notice.
    (d) Upon assignment of the matter for oral hearing, the presiding 
officer shall make the official file a part of the records of the 
proceeding and shall provide the petitioner with a copy of the official 
file.


Sec. 47.56  [Amended]

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


Sec. 47.56  Powers of presiding officer.

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


Sec. 47.58  [Amended]

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


Sec. 47.58  Evidence.

    (a) Written statements of direct testimony. (1) Except as provided 
in paragraph (a)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone; and the direct testimony of each 
expert witness that the party will call to provide oral direct 
testimony at any hearing to be conducted by telephone. The written 
direct testimony of witnesses shall be exchanged by the parties at 
least 10 days prior to the hearing. The oral direct testimony provided 
by a witness at a hearing conducted by telephone will be limited to the 
presentation of the written direct testimony, unless the presiding 
officer finds that oral direct testimony which is supplemental to the 
written direct testimony would further the public interest and would 
not constitute surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin 
less than 20 days after the presiding officer's notice stating the time 
of the hearing.
* * * * *


Sec. 47.59  [Amended]

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


Sec. 47.60  [Amended]

    53. Section 47.60 is revised to read as follows:


Sec. 47.60  Transcript or recording.

    (a) Hearings to be conducted by telephone shall be recorded 
verbatim by electronic recording device. Hearings conducted by audio-
visual telecommunication or the personal attendance of any individual 
who is expected to participate in the hearing shall be transcribed, 
unless the presiding officer finds that recording the hearing verbatim 
would expedite the proceeding and the presiding officer orders the 
hearing to be recorded verbatim. The presiding officer shall certify 
that to the best of his or her knowledge and belief any recording made 
pursuant to this paragraph with exhibits that were accepted into 
evidence is the record of the hearing.
    (b) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the presiding officer 
determines that the disposition of the proceeding would be expedited by 
a transcript of the hearing or part of a hearing, the presiding officer 
shall order the verbatim transcription of the recording as requested by 
the party.
    (c) Parties to the proceeding who desire a copy of the transcript 
or recording of the hearing may place orders at the hearing with the 
reporter who will furnish and deliver such copies direct to the 
purchaser upon payment therefore at the rate provided by the contract 
between the reporter and the Department for such reporting services.


Sec. 47.62  [Amended]

    54. In Sec. 47.62, the last sentence is amended by removing the 
words ``of this part''.

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

    55. The authority citation for part 50 is revised to read as 
follows:

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

    56. Part 50 is revised to read as follows:

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

Subpart A--General

Sec.
50.1 Scope and applicability of rules of practice.

Subpart B--Supplemental Rules of Practice

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

Subpart A--General


Sec. 50.1  Scope and applicability of rules of practice.

    (a) The Rules of Practice Governing Formal Adjudicatory Proceedings 
Instituted by the Secretary Under Various Statutes set forth in 
Secs. 1.130 [[Page 8464]] through 1.151 of this title are rules of 
practice applicable to adjudicatory proceedings under the regulations 
promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of 
inspection, certification, or grading service. In addition, the 
supplemental rules of practice in subpart B of this part shall be 
applicable to adjudicatory proceedings under the regulations 
promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of 
inspection, certification, or grading service.
    (b) Neither the rules of practice in Secs. 1.130 through 1.151 of 
this title nor the supplemental rules of practice in subpart B of this 
part modify existing procedures for refusing to inspect, grade, or 
certify a specific lot of a product because of adulteration, improper 
preparation of the lot for grading, improper presentation of the lot 
for grading, or because of failure to comply with any similar 
requirements set forth in applicable regulations.

Subpart B--Supplemental Rules of Practice


Sec. 50.10  Definitions.

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


Sec. 50.11  Conditional withdrawal of service.

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


Sec. 50.12  Summary suspension of service.

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

PART 51 [AMENDED]

    57. The authority citation for part 51 is revised to read as 
follows:

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


Sec. 51.46  [Amended]

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

PART 52 [AMENDED]

    59. The authority citation for part 52 is revised to read as 
follows:

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


Sec. 52.54  [Amended]

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

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

    61. The authority citation for part 53 is revised to read as 
follows:

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


Sec. 53.13  [Amended]

    62. In Sec. 53.13, paragraph (a)(2) is revised to read as follows:


Sec. 53.13  Denial or withdrawal of service.

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

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

    63. The authority citation for part 54 is revised to read as 
follows:

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


Sec. 54.11  [Amended]

    64. In Sec. 54.11, paragraph (a)(2) is revised to read as follows:


Sec. 54.11  Denial or withdrawal of service.

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

PART 97--PLANT VARIETY PROTECTION

    65. The authority citation for part 97 is revised to read as 
follows:

    Authority: 7 U.S.C. 2321, 2326, 2352, 2353, 2356, 2371, 2402(b), 
2403, 2426, 2427, 2501(c); 7 CFR 2.17, 2.50.


Sec. 97.300  [Amended]

    66. In Sec. 97.300, paragraph (d), the last sentence is revised to 
read ``If a formal hearing is requested, the proceeding shall be 
conducted in accordance with the Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes set forth in Secs. 1.130 through 1.151 of this title.'' 
[[Page 8465]] 

TITLE 9--[AMENDED]

Chapter II--Grain Inspection, Packers and Stockyards Administration 
(Packers and Stockyards Programs), Department of Agriculture

    67. The heading of 9 CFR chapter II is revised to read as set forth 
above.
    68. In 9 CFR chapter II, consisting of parts 200 to 205, all 
references to ``Packers and Stockyards Administration'' are revised to 
read ``Grain Inspection, Packers and Stockyards Administration (Packers 
and Stockyards Programs)'' and all references to ``P&SA'' are revised 
to read ``GIPSA''.

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

    69. The authority citation for part 202 is revised to read as 
follows:

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


Sec. 202.102  [Amended]

    70. Section 202.102 is amended by removing all paragraph 
designations and placing the definitions in alphabetical order.


Sec. 202.103  [Amended]

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


Sec. 202.105  [Amended]

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


Sec. 202.109  [Amended]

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


Sec. 202.109  Rule 9: Depositions.

    (a) * * *
    (5) if oral, a suggested time and place where the proposed 
deposition is to be made and a suggested manner in which the proposed 
deposition is to be conducted (telephone, audio-visual 
telecommunication, or by personal attendance of the individuals who are 
expected to participate in the deposition). The application for an 
order for the taking of testimony by deposition shall be made in 
writing, unless it is made orally on the record at an oral hearing.
* * * * *
    (d) Order. (1) The presiding officer, if satisfied that good cause 
for taking the deposition is present, may order the taking of the 
deposition.
    (2) The order shall be served on the parties and shall include:
    (i) The name and address of the officer before whom the deposition 
is to be made;
    (ii) The name of the deponent;
    (iii) Whether the deposition will be oral or on written questions;
    (iv) If the deposition is oral, the manner in which the deposition 
is to be conducted (telephone, audio-visual telecommunication, or 
personal attendance of those who are to participate in the deposition); 
and
    (v) The time, which shall not be less than 20 days after the 
issuance of the order, and place.
    (3) The officer, time, place, and manner of the deposition as 
stated in the presiding officer's order need not be the same as the 
officer, time, place, and manner suggested in the application.
    (4) The deposition shall be conducted in the manner (telephone, 
audio-visual telecommunication, or personal attendance of those who are 
to participate in the deposition) agreed to by the parties.
    (5) If the parties cannot agree on the manner in which the 
deposition is to be conducted:
    (i) The deposition shall be conducted by telephone unless the 
presiding officer determines that conducting the deposition by audio-
visual telecommunication:
    (A) Is necessary to prevent prejudice to a party;
    (B) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (C) Would cost less than conducting the deposition by telephone.
    (ii) If the deposition is not conducted by telephone, the 
deposition shall be conducted by audio-visual telecommunication unless 
the presiding officer determines that conducting the deposition by 
personal attendance of any individual who is expected to participate in 
the deposition:
    (A) Is necessary to prevent prejudice to a party;
    (B) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (C) Would cost less than conducting the deposition by telephone or 
audio-visual telecommunication.
* * * * *


Sec. 202.110  [Amended]

    74. Section 202.110 is amended as follows:
    a. In paragraph (a), the last sentence, the words ``or recording'' 
are added immediately after the word ``transcript''.
    b. Paragraph (b) is revised to read as set forth below.


Sec. 202.110  Rule 10: Prehearing Conference.

* * * * *
    (b) Manner of the prehearing conference. (1) The prehearing 
conference shall be conducted by telephone or correspondence unless the 
presiding officer determines that conducting the prehearing conference 
by audio-visual telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the prehearing conference; or
    (iii) Would cost less than conducting the prehearing conference by 
telephone or correspondence. If the presiding officer determines that a 
prehearing conference conducted by audio-visual telecommunication would 
measurably increase the United States Department of Agriculture's cost 
of conducting the prehearing conference, the prehearing conference 
shall be conducted by personal attendance of any individual who is 
expected to participate in the prehearing conference, by telephone, or 
by correspondence.
    (2) If the prehearing conference is not conducted by telephone or 
correspondence, the prehearing conference shall be conducted by audio-
visual telecommunication unless the presiding officer determines that 
conducting the prehearing conference by personal attendance of any 
individual who is expected to participate in the prehearing conference:
    (i) Is necessary to prevent prejudice to a party; [[Page 8466]] 
    (ii) Is necessary because of a disability of any individual 
expected to participate in the prehearing conference; or
    (iii) Would cost less than conducting the prehearing conference by 
audio-visual telecommunication.


Sec. 202.112  [Amended]

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


Sec. 202.112  Rule 12: Oral hearing.

    (a) Time, place, and manner. (1) If and when the proceeding has 
reached the stage where an oral hearing is to be held, the presiding 
officer shall set a time, place, and manner for oral hearing. The time 
shall be set based upon careful consideration to the convenience of the 
parties. The place shall be set in accordance with paragraph (a)(2) of 
this section and careful consideration to the convenience of the 
parties. The manner in which the hearing is to be conducted shall be 
determined in accordance with paragraphs (a)(3) and (a)(4) of this 
section.
    (2) The place shall be set in accordance with paragraphs (e) and 
(f) of section 407 of the Act, if applicable. In essence, under 
paragraphs (e) and (f) of section 407 of the Act, if the complainant 
and the respondent, or all of the parties, if there are more than two, 
have their principal places of business or residence within a single 
unit of local government, a single geographical area within a State, or 
a single State, the oral hearing is to be held as near as possible to 
such places of business or residence, depending on the availability of 
an appropriate location for conducting the hearing. If the parties have 
such places of business or residence distant from each other, then 
paragraphs (e) and (f) of section 407 of the Act are not applicable.
    (3) The oral hearing shall be conducted by audio-visual 
telecommunication unless the presiding officer determines that 
conducting the oral hearing by personal attendance of any individual 
who is expected to participate in the hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual 
expected to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the presiding officer determines that a hearing 
conducted by audio-visual telecommunication would measurably increase 
the United States Department of Agriculture's cost of conducting the 
hearing, the hearing shall be conducted by personal attendance of any 
individual who is expected to participate in the hearing or by 
telephone.
    (4) The presiding officer may, in his or her sole discretion or in 
response to a motion by a party to the proceeding, conduct the hearing 
by telephone if the presiding officer finds that a hearing conducted by 
telephone:
    (i) Would provide a full and fair evidentiary hearing;
    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
    (b) Notice. (1) A notice stating the time, place, and manner of 
oral hearing shall be served on each party prior to the time of the 
oral hearing. The notice shall state whether the oral hearing will be 
conducted by telephone, audio-visual telecommunication, or personal 
attendance of any individual expected to participate in the hearing. If 
any change is made in the time, place, or manner of the oral hearing, a 
notice of the change shall be served on each party prior to the time of 
the oral hearing as changed, unless the change is made during the 
course of an oral hearing and shown in the transcript or on the 
recording. Any party may waive such notice, in writing, or orally on 
the record at an oral hearing and shown in the transcript or on the 
recording.
    (2) If the presiding officer orders an oral hearing, any party may 
move that the hearing be conducted by telephone or personal attendance 
of any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by 
telephone or personal attendance of any individual expected to attend 
the hearing must be accompanied by a memorandum in support of the 
motion stating the basis for the motion and the circumstances that 
require the hearing to be conducted other than by audio-visual 
telecommunication.
    (3) Within 10 days after the presiding officer issues a notice 
stating the manner in which the hearing is to be conducted, any party 
may move that the presiding officer reconsider the manner in which the 
hearing is to be conducted. Any motion for reconsideration must be 
accompanied by a memorandum in support of the motion stating the basis 
for the motion and the circumstances that require the hearing to be 
conducted other than in accordance with the presiding officer's notice.
* * * * *
    (e) Written statements of direct testimony. (1) Except as provided 
in paragraph (e)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone; and the direct testimony of each 
expert witness that the party will call to provide oral direct 
testimony at any hearing to be conducted by telephone. The written 
direct testimony of witnesses shall be exchanged by the parties at 
least 10 days prior to the hearing. The oral direct testimony provided 
by a witness at a hearing conducted by telephone will be limited to the 
presentation of the written direct [[Page 8467]] testimony, unless the 
presiding officer finds that oral direct testimony which is 
supplemental to the written direct testimony would further the public 
interest and would not constitute surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin 
less than 20 days after the presiding officer's notice stating the time 
of the hearing.
* * * * *
    (i) Transcript or recording. (1) Hearings to be conducted by 
telephone shall be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or the personal 
attendance of any individual who is expected to participate in the 
hearing shall be transcribed, unless the presiding officer finds that 
recording the hearing verbatim would expedite the proceeding and the 
presiding officer orders the hearing to be recorded verbatim. The 
presiding officer shall certify that to the best of his or her 
knowledge and belief any recording made pursuant to this paragraph with 
exhibits that were accepted into evidence is the record of the hearing.
    (2) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the presiding officer 
determines that the disposition of the proceeding would be expedited by 
a transcript of the hearing or part of a hearing, the presiding officer 
shall order the verbatim transcription of the recording as requested by 
the party.
    (3) Parties to the proceeding who desire copies of the transcript 
or recording of the oral hearing may make arrangements with the 
reporter, who will furnish and deliver such copies direct to such 
parties, upon receipt from such parties of payment for the transcript 
or recording, at the rate provided by the contract between the reporter 
and the Department for such reporting service.
* * * * *


Sec. 202.115  [Amended]

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


Sec. 202.115  Rule 15: Submission for final consideration.

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


Sec. 202.118  [Amended]

    77. Section 202.118 is amended as follows:
    a. Paragraph (a)(1) is revised to read as set forth below.
    b. In paragraph (a)(7), the word ``and'' is removed.
    b. Paragraph (a)(8) is redesignated as paragraph (a)(12).
    c. New paragraphs (a)(8), (a)(9), (a)(10), and (a)(11) are added to 
read as set forth below.


202.118  Rule 18: Presiding officer.

    (a) * * *
    (1) Set the time, place, and manner of a prehearing conference and 
an oral hearing, adjourn the oral hearing from time to time, and change 
the time, place, and manner of oral hearing;
* * * * *
    (8) Require each party to provide all other parties and the 
presiding officer with a copy of any exhibit that the party intends to 
introduce into evidence prior to any oral hearing to be conducted by 
telephone or audio-visual telecommunication;
    (9) Require each party to provide all other parties with a copy of 
any document that the party intends to use to examine a deponent prior 
to any deposition to be conducted by telephone or audio-visual 
telecommunication;
    (10) Require that any hearing to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties and the presiding officer are able to transmit and receive 
documents during the hearing;
    (11) Require that any deposition to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties are able to transmit and receive documents during the 
deposition; and
* * * * *
    Done in Washington, D.C., this 31st day of January, 1995.
Richard E. Rominger,
Acting Secretary of Agriculture.
[FR Doc. 95-3464 Filed 2-13-95; 8:45 am]
BILLING CODE 3410-01-P