[Federal Register Volume 64, Number 135 (Thursday, July 15, 1999)]
[Rules and Regulations]
[Pages 38103-38108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18047]



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  Federal Register / Vol. 64, No. 135 / Thursday, July 15, 1999 / Rules 
and Regulations  

[[Page 38103]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 47

[Docket Number FV98-358]


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The Department of Agriculture (USDA) is amending the Rules of 
Practice under the Perishable Agricultural Commodities Act (other than 
formal disciplinary proceedings). In addition to bringing several 
sections of the Rules of Practice into compliance with the PACA 
Amendments of 1995, USDA is making other changes to enhance customer 
service.

EFFECTIVE DATE: August 16, 1999.

FOR FURTHER INFORMATION CONTACT: Charles W. Parrott, Assistant Chief, 
PACA Branch, Room 2095-So. Bldg., Fruit and Vegetable Division, AMS, 
USDA, Washington, D.C. 20250, Phone (202) 720-4180, Email_
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Perishable Agricultural Commodities Act (PACA or Act) 
establishes a code of fair trading practices for the marketing of fresh 
and frozen fruits and vegetables in interstate and foreign commerce. 
The Act requires that parties fulfill their contractual obligations, 
and provides a forum where firms that buy and sell fruits and 
vegetables can settle commercial disputes outside of the civil court 
system. Under the PACA, these disputes, or reparation complaints, are 
handled first on an informal basis in an attempt to achieve an amicable 
settlement between the disputing parties. About 75 percent of all 
reparation complaints are resolved informally, generally within eight 
weeks. However, if an informal settlement is not reached, there is a 
formal complaint procedure available under which USDA's Judicial 
Officer issues a binding decision in the case. The Rules of Practice 
applicable to reparation proceedings inform the industry of USDA's 
procedures and requirements for the handling of informal and formal 
complaints under the PACA.
    A proposed rule to amend the regulations was published in the 
Federal Register on January 28, 1999 (64 FR 4342). The proposal amended 
several sections of the Rules of Practice to comply with the PACA 
Amendments of 1995, and made numerous other changes to enhance customer 
service. Comments on the proposed rule were to be submitted by March 1, 
1999. The Agricultural Marketing Service (AMS) received two comments.
    We received comments from JSG Trading Corp. (JSG), Tinton Falls, 
New Jersey and McCarron & Associates (McCarron), Washington, D.C. JSG 
objected to the Department of Agriculture's (USDA) handling of 
reparation cases in general. McCarron suggested some additional 
revisions to further enhance customer service.
    In its comment, JSG objected to the preparation of draft reparation 
decisions by PACA Branch personnel (Sec. 47.2(i)). The commentor 
questioned whether PACA personnel could be impartial in the preparation 
of such drafts. We believe that the commentor's concern is misplaced 
because the knowledge and expertise of PACA personnel have always been 
utilized in resolving disputes involving perishable agricultural 
commodities. These services are routinely sought by the parties 
involved. USDA, of course, has no vested interest in the outcome of any 
complaints. PACA Branch personnel have a widely recognized history of 
professional impartiality. Moreover, we believe that the commentor's 
concern is more than adequately addressed by the provision which 
requires that all draft decisions prepared by PACA Branch personnel be 
reviewed by an attorney employed by the Office of the General Counsel. 
Therefore, AMS is making no change based on this comment.
    McCarron's comments touched on several points. With regard to 
Sec. 47.6(a), he suggested that the appropriate period of time to 
elapse before a file is permanently closed be left to the judgment of 
the Deputy Administrator, and that it not exceed 20 days. The proposed 
amendment to Sec. 47.6(a) allowed a complainant nine months to file a 
formal complaint after informal handling had been completed. After 
further consideration, we agree that a 9-month period allows more time 
than is needed for a complainant to decide to proceed with a formal 
complaint. However, the suggested 20-day period is considered too 
short. Therefore, the final rule provides a complainant with 90 days to 
file a formal complaint after the informal handling by the PACA Branch 
has been completed. McCarron further suggested that the wording of this 
section clarify that the waiver of further proceedings applies only to 
actions before the Secretary of Agriculture. The Rules of Practice 
under the Perishable Agricultural Commodities Act (other than formal 
disciplinary proceedings) apply, however, only to reparation 
proceedings filed before the Secretary of Agriculture. Therefore, with 
the exception of the change discussed above, Sec. 47.6(a) will remain 
as proposed.
    With regard to Sec. 47.9, McCarron addressed the proposed 
requirement that complainant in a reparation complaint respond to a 
counterclaim or be held to have admitted the respondent's allegations 
contained in the counterclaim. McCarron stated that this alteration is 
overly legalistic, adds nothing to assist the decision-maker, and 
unduly delays resolution of the matter. We are making no change to the 
rule based on this comment because a counterclaim has the same weight 
in the formal complaint process as does a complaint, and it is a matter 
of equity that both parties be treated equally and be required to 
answer any positive charges against them. No changes to the final rule 
are necessary.
    With regard to Secs. 47.15(a)(1) and 47.16(a), McCarron stated that 
it is not clear that the examiner who may grant a hearing or authorize 
taking depositions in connection with an oral hearing, is the presiding 
officer or an agency employee. This was addressed in the change to 
Sec. 47.2(i), where it is made clear that agency employees are to act 
as

[[Page 38104]]

examiners solely in cases handled through the documentary procedure. No 
change in the final rule is necessary.
    With regard to Sec. 47.20, McCarron suggested the addition of 
language to clarify that the $30,000 figure for determining whether a 
complaint may be handled through oral hearing, should be the principal 
amount of the claim only, and should not include interests and/or costs 
associated with the claim. We agree with his suggestion. Therefore, we 
have changed the final rule to reflect that the $30,000 threshold 
amount for an oral hearing not include accrued interest.
    Finally, McCarron suggested that a time limit be placed on USDA for 
the resolution of informal complaints and for the issuance of decision 
and orders, from the time the case is ready for decision. Such 
restricted deadlines could, however, run afoul of conditions outside 
the control of the agency. In fact, most informal complaints are at 
present being resolved within 90 days of their opening, and the great 
majority of documentary procedure decisions are being issued within 90 
days from the time the case is ready for decision.
    Agricultural Marketing Service (AMS) believes that the amendments 
to the Rules of Practice will enhance customer service by allowing 
certain documents in formal PACA reparation proceedings to be served 
via private or commercial mail delivery, in addition to service by 
certified or registered mail.
    The amendments clarify certain regulations and definitions. 
Throughout the Rules of Practice, the term ``shortened procedure'' was 
replaced with ``documentary procedure'' to reflect more accurately a 
formal reparation process that does not involve an oral hearing.
    Due to the reorganization of AMS, the definition of the ``Fruit and 
Vegetable Programs'' was substituted for the definition of 
``Division,'' the definition of ``Associate Administrator'' was 
substituted for the definition of ``Deputy Administrator,'' and the 
definition of ``Deputy Administrator'' was substituted for the 
definition of ``Director.'' Additionally, the words ``Program'' and 
``Deputy Administrator'' were substituted for ``Division'' and 
``Director'' respectively, wherever they appeared in Part 47. The term 
``examiner'', Sec. 47.2(i)(1) was expanded to indicate that senior 
marketing specialists may also prepare decisions in shortened or 
``documentary procedure'' cases subject the review of USDA's Office of 
the General Counsel (OGC). The definition of ``examiner's report'' in 
Sec. 47.2(j) was shortened to eliminate the references to 
Administrative Law Judges because they do not participate in reparation 
cases and do not write examiner's reports. The definitions of ``mail'' 
and ``re-mail'' were expanded to allow for additional methods of 
service to include commercial or private mail delivery services. The 
section regarding informal complaints, Sec. 47.3, was revised to 
require that the complaint be in writing and allow for the filing of an 
informal complaint by facsimile transmission. In addition, the 
information required in an informal complaint was revised for 
clarification purposes. The revision changed ``car initial and number, 
if carlot;'' to read ``carrier identification;'' and corrected a 
typographical error in Sec. 47.3(a) (2) (vii) by inserting the word 
``and'' between the words ``gross net.'' A statement regarding the 
required filing fee of $60.00 was added to the text. Additionally, 
paragraph (c) of that section regarding the ``Status of person filing 
informal complaint'' was eliminated because it is not pertinent to 
these regulations.
    Section 47.4, which addresses service matters, was revised to 
permit the commercial or the private delivery of certain documents and 
now describes when service is perfected under the various mailing 
options. Additionally, the reference to the service of the Chief's 
determination that a person was responsibly connected with a licensee 
was deleted from paragraph (b)(1) because this issue is addressed in 
Sec. 47.49 of the regulations (7 CFR 47.49).
    The section that delineates formal complaints in the Rules of 
Practice was changed to include the requirement that a formal complaint 
be filed within ninety days of notification that complainant may 
proceed formally, or the complainant loses the opportunity to proceed 
with a formal complaint. Additionally, the rules were revised to 
require that a $300.00 handling fee must accompany the filing of a 
formal complaint or counterclaim before AMS will serve the complaint on 
the respondent(s). The handling fee for formal complaints was included 
in the Rules of Practice to comform with the PACA Amendments of 1995.
    Significant changes were made to Sec. 47.9, which addresses the 
reply to a counterclaim or set-off. The counterclaim or set-off will 
now be treated as a formal complaint filed by the respondent, and 
therefore, failure to reply will be a default on complainant's part as 
to the counterclaim or the set-off. In the previous rules, a failure to 
file a reply was treated as a denial of the allegations of the 
counterclaim or set-off, whereas the revised rules have created a 
parallel between the filing of a complaint and the filing of a 
counterclaim or set-off.
    With the new expanded definition of examiner in Sec. 47.2(i), 
Sec. 47.11 was amended to clarify that only OGC attorneys, and not 
other USDA employees, are granted certain powers under this section of 
the regulations because only OGC attorneys conduct oral hearings. The 
examiner's powers now include the ability to require parties to provide 
copies of exhibits prior to hearings and depositions in any type of 
hearing.
    The Rules of Practice were amended to comply with the 1995 PACA 
Amendments which raised the minimum claim for damages required for an 
oral hearing from $15,000 to $30,000. Sections 47.11 and 47.16 were 
amended to clarify that subpoenas or orders for depositions are made 
over the facsimile signature of the Secretary. In addition, the 
regulations regarding oral hearings no longer permit a complainant to 
submit evidence in the form of depositions in lieu of appearing in 
person or by counsel. Instead, all parties are now required to appear 
in person or through a representative at oral hearings.
    The section which discusses the deposition process was expanded to 
include references to the possibility of depositions in a case that is 
converted from an oral hearing case to a documentary procedure case.
    In order to ensure sufficient opportunity for review by the 
examiner and sufficient notice to the individual who is subpoenaed, 
Sec. 47.17 was amended to require that applications for subpoena be 
received at least thirty days prior to the hearing or deposition date, 
and that the subpoena be issued at least twenty days before the date of 
appearance. An exception may be made for good cause shown.
    All filings with regard to claims for fees and expenses in oral 
hearing cases and the resultant objections will now be filed with the 
Hearing Clerk instead of the examiner in order to ensure that the 
documents are properly filed into the official record kept by the 
Hearing Clerk. The Hearing Clerk's Office is now the appropriate place 
to file petitions for rehearing, reargument, reconsideration of orders, 
reopening of hearings and reopening after a default. The regulations 
were revised by replacing the words ``hearing clerk'' with the words 
``Hearing Clerk'.
    As previously stated, the term ``shortened procedure'' was changed 
to ``documentary procedure''. In the documentary procedure section, the 
rule regarding verification of pleadings or statements was expanded to 
note that

[[Page 38105]]

certification by a notary public alone is not sufficient; rather, a 
signed verifying statement must be appended to the document.
    Procedures for requesting a reopening after a default were removed 
from the provision that covers filing, extensions of time, effective 
date of filing, computations of time, and official notice and were 
moved to the more appropriate section that deals with rehearing, 
reargument, reconsideration of orders, and reopening of hearings. In 
addition, the provision for reopening after a default was revised to 
permit a petition to reopen the proceedings to be filed before the 
expiration of 30 days from the date of issuance of the default order. 
This revision eliminates any confusion that existed in the previous 
regulation because it did not provide a time certain for filing. The 
amendment clarified that the filing must be made before the Default 
Order becomes final. For all filings, the provision for computation of 
time was revised to include Saturdays as well as Sundays and holidays.

Executive Orders 12866 and 12988

    This final rule, issued under the Perishable Agricultural 
Commodities Act (7 U.S.C. 499 et seq.), as amended, has been determined 
to be not significant for the purposes of Executive Order 12866, and 
therefore, has not been reviewed by the Office of Management and Budget 
(OMB).
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform, and is not intended to have retroactive effect. 
This final rule will not preempt any State or local laws, regulations, 
or policies, unless they present an irreconcilable conflict with this 
rule. There are no administrative procedures which must be exhausted 
prior to any judicial challenge to the provisions of this rule.

Effects on Small Businesses

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA) (5 U.S.C. 601 et seq.), USDA has considered the economic 
impact of this final rule on small entities. The purpose of the RFA is 
to fit regulatory actions to the scale of businesses subject to such 
actions in order that small businesses will not be unduly or 
disproportionately burdened. Small agricultural service firms have been 
defined by the Small Business Administration (13 CFR part 121) as those 
whose with less than 500 employees. The PACA requires all businesses 
that operate subject to its provisions maintain a license issued by 
USDA. There are approximately 15,700 PACA licensees, a majority of 
which may be classified as small entities.
    The revisions to the PACA Rules of Practice streamline USDA 
procedures and requirements for handling of informal and formal 
complaints under the PACA. In Fiscal Year 1998, there were 2198 
informal reparation claims, 21 counterclaims, and 563 formal reparation 
cases filed with USDA under the PACA. The revisions to the reparation 
Rules of Practice apply only to firms that utilize USDA's service for 
resolving commercial disputes under the PACA. AMS believes that these 
revisions to the Rules of Practice will enhance customer service to the 
industry by expediting the handling of documents in PACA reparation 
proceedings. Most of the revisions provide notice to claimants of the 
procedure that AMS will now follow in adjudicating claims. For example, 
the proposed revision that provides for additional methods of service 
of formal documents by AMS will not produce any economic effect on 
licensees initially. But, if the use of commercial and/or express 
delivery services take the place of certified mail, licensees may be 
required to absorb the additional costs through marginally higher user 
fees.
    There are some revisions, however, that will affect the rights and 
obligations of claimants. For example, claimants must be certain to 
adhere to the filing requirements for both informal and formal 
complaints, which require the payment of statutorily mandated filing 
and handling fees, respectively. If the required fees do not accompany 
a filing, a claimant may lose access to the reparation forum. These 
revisions, and others, may affect a claimant's due process rights, 
which are difficult to quantify. However, since the reparation forum is 
but one available means to resolve contract disputes concerning 
perishable agricultural products in interstate commerce, AMS has 
determined that the provisions of this final rule will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 does not apply to this final 
rule since it does not seek answers to identical questions or reporting 
or recordkeeping requirements imposed on ten or more persons, and the 
information collected is not used for general statistical purposes.

List of Subjects in 7 CFR Part 47

    Administrative practice and procedure, Agricultural commodities, 
Brokers.

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

PART 47--[AMENDED]

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

    Authority: 7 U.S.C. 499o; 7 CFR 2.22(a)(1)(viii)(L), 
2.79(a)(8)(xiii).

    2. Section 47.2 is amended by removing paragraph (j)(2) and 
redesignating paragraph (j)(1) as paragraph (j) and revising paragraphs 
(e), (g), (h), (i), (s), and (t) to read as follows:


Sec. 47.2  Definitions.

* * * * *
    (e) Associate Administrator means the Associate Administrator of 
the Service, or any officer or employee of the Service to whom 
authority has heretofore lawfully been delegated, or to whom authority 
may hereafter lawfully be delegated, to act in his or her stead.
* * * * *
    (g) Fruit and Vegetable Programs means the Fruit and Vegetable 
Programs of the Agricultural Marketing Service.
    (h) Deputy Administrator means the Deputy Administrator of the 
Fruit and Vegetable Programs or any officer or employee of the Fruit 
and Vegetable Programs to whom authority has heretofore lawfully been 
delegated, or to whom authority may hereafter lawfully be delegated by 
the Deputy Administrator, to act in his stead.
    (i) Examiner. In connection with reparation proceedings, the term 
``examiner'' is synonymous with ``presiding officer'' and means any 
attorney employed in the Office of the General Counsel of the 
Department, or in connection with reparation proceedings conducted 
pursuant to the documentary procedure in Sec. 47.20, the term 
``examiner'' may mean any other employee of the PACA Branch whose work 
is reviewed by an attorney employed in the Office of the General 
Counsel of the Department.
* * * * *
    (s) Mail means to deposit an item in the United States Mail with 
postage affixed and addressed as necessary to cause it to be delivered 
to the address shown by ordinary mail, or by certified mail or 
registered mail if specified, or to cause a properly addressed item to 
be delivered by a commercial or private mail delivery service to the 
address shown.
    (t) Re-mail means to mail by ordinary mail to an address an item 
that has been returned after being sent to the same address by 
certified or registered mail or

[[Page 38106]]

by a commercial or private mail delivery service.
    5. In Sec. 47.3, the first sentence in paragraph (a)(2) and 
paragraph (a)(2)(iv) are revised, in paragraph (a)(2)(vii) the word 
``and'' is added between the words ``gross'' and ``net'', paragraph (c) 
is removed, and a new paragraph (a)(4) is added to read as follows:


Sec. 47.3  Institution of proceedings.

    (a) * * *
    (1) * * *
    (2) Informal complaints may be made in writing by telegram, by 
letter, or by facsimile transmission, setting forth the essential 
details of the transaction complained of. * * *
* * * * *
    (iv) Carrier identification;
* * * * *
    (4) The informal complaint shall be accompanied by a filing fee of 
$60 as required by the Act.
* * * * *
    7. Section 47.4 is amended by revising the section heading and 
paragraphs (b)(1), (b)(3), (c)(1), and (d)(1) to read as follows:


Sec. 47.4  Service and proof of service.

* * * * *
    (b) Service on Party. (1) Any complaint or other document initially 
served on a person to make that person a party respondent in a 
proceeding, a final order, or other document specifically ordered by 
the presiding officer or Judicial Officer to be served by certified or 
registered mail, or commercial or private mail delivery service, shall 
be deemed to be received by any party to a proceeding on the date of 
delivery by certified or registered mail, or commercial or private mail 
delivery service to the last known principal place of business of such 
party, last known principal place of business of the attorney or 
representative of record of such party, last known residence of such 
party if an individual: Provided, That, if any such document or paper 
is sent by certified, registered, commercial, or private mail, but is 
returned, it shall be deemed to be received by such party on the date 
of the re-mailing by ordinary mail to the same address.
* * * * *
    (3) Any document or paper served other than by certified, 
registered, commercial, or private mail on any party to a proceeding 
shall be deemed to be received by such party on the date of:
* * * * *
    (c) * * *
    (1) Delivery by certified, registered, commercial, private or mail 
to the last known principal address of such person, last know principal 
place of business of the attorney or representative of record of such 
person, or last known residence of such person if an individual;
* * * * *
    (d) * * *
    (1) A certified or registered mail receipt returned by the postal 
service with a signature, or a signed receipt returned by a private or 
commercial mail delivery service;
* * * * *
    8. In Sec. 47.6, paragraphs (a) and (c) are revised to read as 
follows:


Sec. 47.6  Formal complaints.

    (a) Filing; contents; number of copies. (1) If the procedure 
provided in Sec. 47.3(b) fails to effect an amicable or informal 
settlement, the person who filed the informal complaint may, if further 
proceedings are desired, file a formal complaint with the Fruit and 
Vegetable Programs. The formal complaint shall be filed within ninety 
days of notification of the opportunity to proceed formally. Failure to 
file a formal reparation complaint within the time prescribed shall 
result in the waiver of further proceedings on the claim alleged in the 
informal complaint.
    (2) The formal complaint shall set forth the information and be 
accompanied by the papers indicated in Sec. 47.3(a)(2) and (3), 
including a statement of the amount of damages claimed, with the basis 
therefor, and the method of determination. The original and three 
copies shall be furnished for filing, and service on the respondent. If 
there is more than one respondent, a further copy shall be furnished 
for each additional respondent.
* * * * *
    (c) Service upon respondent; proof of service. Upon receipt by the 
Fruit and Vegetable Programs of the formal complaint, the accompanying 
papers and the $300 handling fee required by the Act, a copy thereof 
shall be served by the Fruit and Vegetable Programs upon the respondent 
in accordance with Sec. 47.4. If the complaint is not in the proper 
form, the Fruit and Vegetable Programs shall return it and inform the 
complainant of the deficiencies therein.
* * * * *
    9. In Sec. 47.8, paragraph (a) is amended by adding a sentence at 
the end of the section to read as follows:


Sec. 47.8  The answer.

    (a) * * * If the answer includes a counterclaim, the answer shall 
be accompanied by the $300 handling fee required by the Act for formal 
complaints.
* * * * *
    10. In Sec. 47.9, paragraphs (b) and (c) are revised to read as 
follows:


Sec. 47.9  The reply.

* * * * *
    (b) Contents. The reply shall be confined strictly to the matters 
alleged in the counterclaim or set-off in the answer. It shall contain 
a precise statement of the facts which constitute the grounds of 
defense to the counterclaim or set-off, and shall specifically admit, 
deny, or explain each of the allegations of the counterclaim or set-
off, unless the complainant is without knowledge, in which case the 
reply shall so state; or a statement that the complainant admits all of 
the allegations of the counterclaim or set-off; or a statement 
containing an admission of liability in an amount less than that 
alleged in the counterclaim or set-off and a denial of liability for 
the remaining amount.
    (c) Failure to file reply. Failure to file a reply shall be deemed 
a waiver of hearing on the counterclaim or set-off and an admission of 
the allegations contained in the counterclaim or set-off. If no reply 
is filed, the allegations of the counterclaim or set-off shall be 
deemed admitted.
    11. In Sec. 47.11, the introductory text of paragraph (c), and 
paragraphs (c)(4), (c)(9), (c)(10) and (c)(13) are revised to read as 
follows:


Sec. 47.11  Examiners.

* * * * *
    (c) Powers. Subject to review by the Secretary, as provided in this 
Part, the examiner who is an attorney employed in the Office of the 
General Counsel of the Department, in any proceeding assigned to him or 
her, shall have power to:
* * * * *
    (4) Issue subpoenas over the facsimile signature of the Secretary 
requiring the attendance and testimony of witnesses and the production 
of books, contracts, papers, and other documentary evidence;
* * * * *
    (9) Require each party, prior to any hearing, to provide all other 
parties and the examiner with a copy of any exhibit that the party 
intends to introduce into evidence;
    (10) Require each party, prior to any deposition, to provide all 
other parties and the examiner with a copy of any document that the 
party intends to use to examine a deponent;
* * * * *

[[Page 38107]]

    (13) Do all acts and take all measures necessary for the 
maintenance of order and for the efficient conduct of the proceeding.
* * * * *
    12. In Sec. 47.12, the introductory text is revised to read as 
follows:


Sec. 47.12  Intervention.

    At any time after the institution of a proceeding and before it has 
been submitted to the Secretary for final consideration, the Secretary 
or the examiner as defined in Sec. 47.2(i)(1) may, upon petition in 
writing and for good cause show, permit any person to intervene 
therein. The petition shall state with preciseness and particularity:
* * * * *
    13. In Sec. 47.15, paragraphs (a)(1), (a)(2), (b) and (d)(1) are 
revised to read as follows:


Sec. 47.15  Oral hearing before the examiner.

    (a) When permissible. (1) Where the amount of the damages claimed, 
either in the complaint or in the counterclaim, does not exceed $30,000 
(excluding interest), an oral hearing shall not be held, unless deemed 
necessary or desirable by the Fruit and Vegetable Programs or unless 
granted by the examiner as defined in Sec. 47.2(i)(1), upon application 
of complainant or respondent setting forth the peculiar circumstances 
making an oral hearing necessary for a proper presentation of the case.
    (2) Where the amount of damages claimed, either in the complaint or 
in the counterclaim, is in excess of $30,000 (excluding interest), the 
procedure provided in this section (except as provided in 
Sec. 47.20(b)(2)) shall be applicable.
    (b) Request for hearing. Any party may request an oral hearing on 
the facts by including such request in the complaint. Failure to 
request an oral hearing within the time allowed for filing of the 
reply, or within 10 days after the expiration of the time allowed for 
filing an answer, shall constitute a waiver of such hearing, and any 
party so failing to request an oral hearing will be deemed to have 
agreed that the proceeding may be decided upon a record formed under 
the documentary procedure provided in Sec. 47.20.
* * * * *
    (d) Appearances--(1) Representation. In any proceeding under the 
Act, the parties may appear in person or by counsel or other 
representative.
* * * * *
    14. In Sec. 47.16, the introductory text of paragraph (a), and 
paragraph (b)(1) are revised to read as follows:


Sec. 47.16  Depositions:

    (a) Application for taking deposition. Upon the application of a 
party to the proceeding, the examiner as defined in Sec. 47.2(i)(1) 
may, except as provided in paragraph (b) of this section, at any time 
after the filing of the moving papers, order, over the facsimile 
signature of the Secretary, the taking of testimony by deposition. The 
application shall be in writing, shall be filed with the Hearing Clerk, 
and shall set forth:
* * * * *
    (b) Examiner's order for taking deposition. (1) If, after 
examination of the application, the examiner is of the opinion that the 
deposition should be taken, or if the parties are using depositions in 
lieu of affidavits pursuant to Sec. 47.20(b)(2), the examiner shall 
order the taking of the deposition. In no case, except for good cause 
shown, may the examiner order the taking of a deposition less than 10 
days prior to the designated date of deposition. The order shall be 
filed with the Hearing Clerk upon the parties in accordance with 
Sec. 47.4.
* * * * *
    15. In Sec. 47.17, a sentence is added at the end of paragraph (a) 
to read as follows:


Sec. 47.17  Subpoenas.

    (a) Issuance of subpoenas. * * * Except for good cause shown, 
applications for subpoenas shall be filed with the Hearing Clerk at 
least 30 days prior to the designated date of hearing or deposition. 
Except for good cause shown, the examiner shall not issue subpoenas 
less than 20 days prior to the designated date of hearing or 
deposition.
* * * * *
    16. In Sec. 47.19, paragraphs (d)(1), (d)(4), (d)(5) and (d)(6) are 
revised to read as follows:


Sec. 47.19  Post-hearing procedure before the examiner.

* * * * *
    (d) Claim for award of fees and expenses--(1) Filing. Prior to the 
close of the hearing, or within 20 days thereafter, each party may file 
with the Hearing Clerk a claim for the award of the fees and expenses 
which he incurred in connection with the oral hearing. No award of fees 
and expenses to the prevailing party and against the losing party shall 
be made unless a claim therefor has been filed, and failure to file a 
claim within the time allowed shall constitute a waiver thereof.
* * * * *
    (4) Service of claim. A copy of each such claim filed shall be 
served by the Hearing Clerk on the other party or parties to the 
proceeding.
    (5) Objections to claim. Within 20 days after being served with a 
copy of a claim for fees and expenses, the party so served may file 
with the Hearing Clerk written objections to the allowance of any or 
all of the items claimed. If evidence is offered in support of an 
objection, it must be in affidavit form. A copy of any such objections 
shall be served by the Hearing Clerk on the other party or parties.
    (6) Reply to objections to claim. A claimant who is served with a 
copy of objections to his or her claim may, within 20 days after such 
service, file with the Hearing Clerk a reply to such objection. If 
evidence is offered in support of a reply, it must be in affidavit 
form. A copy of any such reply shall be served by the Hearing Clerk on 
the other party or parties.
* * * * *
    17. In Sec. 47.20, the section heading, the first sentence in 
paragraph (a), paragraphs (b)(1), (b)(2), and the introductory text of 
paragraph (h) are revised to read as follows:


Sec. 47.20  Documentary procedure.

    (a) In general. The documentary procedure described in this section 
shall, whenever it is applicable as provided in paragraph (b) of this 
section, take the place and serve in lieu of the oral hearing procedure 
hereinbefore provided. Under the documentary procedure, the pleadings 
of the parties, if verified in accordance with paragraph (h) of this 
section, and any report of investigation filed with the hearing clerk 
pursuant to Sec. 47.7 will be considered as evidence in the proceeding. 
* * *
    (b) When applicable--(1) Where damages claimed do not exceed 
$30,000. The documentary procedure provided for in this section shall 
(except as provided in Sec. 47.15(a)) be used in all reparation 
proceedings in which the amount of damages claimed, either in the 
complaint or in the counterclaim, does not exceed $30,000 (excluding 
interest).
    (2) Where damages claimed exceed $30,000. In any proceeding in 
which the amount of damages claimed, either in the complaint or in the 
counterclaim, is greater than $30,000 (excluding interest), the 
examiner, whenever he or she is of the opinion that proof may be fairly 
and adequately presented by use of the documentary procedure provided 
for in this section, shall suggest to the parties that they consent to 
the use of such procedure. Parties are free to consent to such 
procedure if they

[[Page 38108]]

choose, and declination of consent will not affect or prejudice the 
rights or interests of any party. A party, if he or she has not waived 
oral hearing, may consent to the use of the documentary procedure on 
the condition that depositions rather than affidavits be used. In such 
case, if the other party agrees, depositions shall be required to be 
filed in lieu of verified statements. If any party who has not waived 
oral hearing does not consent to the use of the documentary procedure, 
the proceeding will be set for oral hearing. The suggestion that the 
documentary procedure be used need not originate with the examiner. Any 
party may address a request to the examiner asking that the documentary 
procedure be used.
* * * * *
    (h) Verification. Verification shall be made under oath of any 
facts set forth in the pleading or statement, by the person who signs 
the pleading or statement. Certification by a notary public is 
insufficient. The form of verification may be as follows:
* * * * *
    18. Section 47.21 is revised to read as follows:


Sec. 47.21  Transmittal of record.

    The Hearing Clerk, immediately after the filing of the examiners' 
report, shall transmit to the Secretary the record of the proceeding. 
Such record shall include: The pleadings; motions and requests filed, 
and rulings thereon; the report of investigation conducted by the Fruit 
and Vegetable Programs; the transcript or record of the testimony taken 
at the hearing, together with the exhibits filed therein; any 
statements or stipulations filed under the documentary procedure; any 
documents or papers filed in connection with conferences; such proposed 
findings of fact, conclusions, and orders and briefs as may have been 
permitted to be filed in connection with the hearing as provided in 
Sec. 47.19(b) and (c); such statements of objections, and briefs in 
support thereof, as may have been filed in the proceeding; and the 
examiner's report.
* * * * *
    19. In Sec. 47.24, the section heading and paragraph (a) are 
revised and a new paragraph (d) is added to read as follows:


Sec. 47.24  Rehearing, reargument, reconsideration of orders, reopening 
of hearings , reopening after default.

    (a) Petitions to rehear, reargue, and reconsider. A petition for 
rehearing or reargument of the proceeding, or for reconsideration of 
the order, shall be made by petition to the Secretary filed with the 
Hearing Clerk within 20 days after the date of service of the order. 
Every such petition shall state specifically the matters claimed to 
have been erroneously decided and the alleged errors. If the Secretary 
concludes that the questions raised by the petition have been 
sufficiently considered in the issuance of the order, the Secretary 
shall dismiss the petition without service on the other party. 
Otherwise, the Secretary shall direct that a copy of the petition be 
served upon such party by the Hearing Clerk. The filing of a petition 
to rehear or reargue a proceeding, or to reconsider an order, shall 
automatically operate to set aside the order pending final action on 
the petition. Only one petition to rehear, reargue, or reconsider will 
be accepted from each party, except when a mathematical or 
typographical error appears in either the original decision and order 
or in the decision on reconsideration.
* * * * *
    (d) Reopening after default. The party in default in the filing of 
an answer or reply required or authorized under this part may petition 
to reopen the proceeding at any time prior to the expiration of 30 days 
from the date of service of the default order. If, in the judgment of 
the examiner, after notice to and consideration of the views of the 
other party(ies), there is good reason for granting such relief, the 
party in default will be allowed 20 days from the date of the order 
reopening the proceeding to file an answer.
    20. In Sec. 47.25, the section heading and paragraph (d) are 
revised, paragraph (e) is removed and paragraph (f) is redesignated as 
paragraph (e) to read as follows:


Sec. 47.25  Filing; extensions of time; effective date of filing; 
computations of time; official notice.

* * * * *
    (d) Computations of time. Saturdays, Sundays and holidays shall be 
included in computing the time allowed for the filing of any document 
or paper: Provided, That, when such time expires on a Saturday, Sunday 
or Federal holiday, such period shall be extended to include the next 
following business day.
* * * * *
    21. Part 47 is amended by removing the words ``hearing clerk'' and 
adding in their place the words ``Hearing Clerk'', everywhere they 
appear.
    22. Part 47 is amended by removing the word ``Division'' and adding 
in its place the words ``Fruit and Vegetable Programs'', everywhere 
they appear.
    23. Part 47 is amended by removing the words ``Director'' and 
``Director's'', and adding in their place the words ``Deputy 
Administrator'' and ``Deputy Administrator's'' respectively, everywhere 
they appear.

    Dated: July 12, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-18047 Filed 7-14-99; 8:45 am]
BILLING CODE 3410-02-P