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§ 105.75

Procedure in hearings.

For the purpose of hearings under the act or the regulations in this part, except those relating to appeals or arbitrations, the licensee involved shall be allowed a reasonable time within which affidavits and other proper evidence may be submitted. If requested by the licensee within such time, an oral hearing, of which reasonable notice shall be given, shall be held before, and at a time and place fixed by an official authorized by the Secretary. The testimony of the witnesses at such oral hearing shall be upon oath or affirmation administered by the official before whom the hearing is held, when required by him. Such oral hearing may be adjourned by such official from time to time. After reasonable notice to all parties concerned, the deposition of any witness may be taken at a time and place and before a person designated for the purpose by the official before whom the hearing is held. Every written entry in the records of the Department made by an officer or employee thereof in the course of his official duty, which is relevant to the issue involved in a hearing, shall be admissible as prima facie evidence of the facts stated

therein without the production of such officer or employee. Copies of all papers and all the evidence submitted or considered in such hearing shall be made a part of the records of the Department. At the end of the oral hearing, the parties shall be afforded an opportunity to file proposed findings of fact, conclusions of law, and orders, after which the official before whom the hearing is held shall prepare his report including his recommended findings of fact, conclusions of law, and order, which shall be served upon the parties, who may file exceptions thereto within a time specified by such official. After the expiration of such time, such report together with any proposed findings of fact, conclusions of law, and orders, and exceptions filed by the parties shall be transmitted to the Secretary for consideration. Each party shall pay all expenses contracted by him in connection with any hearing under this section.

[18 F. R. 8730, Dec. 80, 1948]

§ 105.76 One document and one license to cover several products.

A license may be issued for the storage of two or more agricultural products in a single warehouse or in one or more compartments in the same warehouse Where such a license is desired, a single application, inspection, bond, record, report or other paper, document, or proceeding relating to such warehouse, shall be sufficient unless otherwise directed by the Administrator.

§ 105.77 Amount of assets and bond

needed for combination warehouses. Where such license is desired, the amount of the bond, net assets, and inspection and license fees shall be determined by the Administrator in accordance with the regulations applicable to the particular agricultural product which would require the largest bond and the greatest amount of net assets and of fees applicable to the particular compartment or compartments to be licensed.

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When used in the regulations in this part, unless otherwise distinctly expressed or manifestly incompatible with the intent thereof:

(a) "Beans" means only dry edible beans used for human consumption.

(b) "The act" means the United States Warehouse Act, approved August 11, 1916 (39 Stat. 486; 7 U. S. C. 241-273), as amended.

(c) "Person" means an individual, corporation, partnership, or two or more person having a joint or common interest.

(d) "Department" means the United States Department of Agriculture.

(e) "Secretary" means the Secretary of Agriculture of the United States or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.

(f) "Administrator" means the Administrator of the Service or any other officer or employee of the Service to whom authority has heretofore lawfully been delegated, or may hereafter lawfully be delegated, to act in his stead. (g) "Designated representative" means the Administrator.

(h) "Service" means the Consumer and Marketing Service of the Department.

(1) "Regulations" means rules and regulations made under the act by the Secretary.

(j) "Warehouse" means, unless otherwise clearly indicated by the context, any building, structure, or other protected inclosure in which beans are or may be stored for interstate or foreign commerce, or, if located within any place under the exclusive jurisdiction of the United States, in which beans are or may be stored and for which a license has been issued under the act.

(k) "Warehouseman" means, unless otherwise clearly indicated by the context, any person lawfully engaged in the business of storing beans and holding a warehouse license.

(1) "License" means a license issued under the act by the Secretary.

(m) "Licensed warehouseman's bond" means a bond required to be given under the act by a licensed warehouseman.

(n) "Licensed inspector" means a person licensed under the act by the Secretary to sample, to inspect, and to grade and to certificate the condition for stor. age and the grade of beans.

(o) "Licensed weigher" means a person licensed under the act by the Secretary to weigh and to certificate the weight of beans stored or to be stored under the act.

(p) "Receipt" means a warehouse receipt as prescribed by the act and regulations.

(q) "Dockage." See "Pick."

(r) "Pick" includes any material other than beans, together with undeveloped, shriveled, discolored, damaged, split, and small pieces of beans which are picked by hand or eliminated by mechanical means from the lot. The pick shall be calculated in terms of percentage based on the total weight of the beans including the material to be eliminated.

[10 F. R. 4964, May 4, 1945, as amended at 13 F. R. 8729, Dec. 30, 1948; 14 F. R. 681, Feb. 16, 1949]

WAREHOUSE LICENSES

§ 106.3 Application forms.

Applications for licenses under sections 4 and 9 of the act and for amendments thereto shall be made to the Secretary upon forms prescribed for the purpose and furnished by the Service, shall be in English, shall truly state the information therein contained, and shall be signed by the applicant. The applicant shall at any time furnish such additional information as the Secretary or his designated representative shall find to be necessary to the consideration of his application.

§ 106.4 Grounds for not issuing license.

A license for the conduct of a warehouse shall not be issued if it be found by the Secretary, or his designated representative, that the warehouse is not suitable for the proper storage of beans, that the warehouseman is incompetent to conduct such warehouse in accordance with the act and the regulations in this part, or that there is any other sufficient reason within the intent of the act for not issuing such license. § 106.5 Net assets required.

Any warehouseman conducting a warehouse licensed, or for which application for license has been made, under the act shall have and maintain, above all exemptions and liabilities, net assets liable

for the payment of any indebtedness arising from the conduct of the warehouse, to the extent of at least 40 cents per hundredweight for the maximum number of hundredweight that the warehouse will accommodate, when stored in the manner customary to the warehouse, as determined by the Administrator, except that the amount of such assets shall not be less than $10,000. If such warehouseman has applied for licenses to conduct two or more warehouses in the same State, the assets applicable to all of which shall be subject to the liabilities of each, such warehouses shall be deemed to be one warehouse for the purposes of the assets required under this section. For the purposes of this section only, paid-in capital stock, as such, shall not be considered a liability. Any deficiency in the required net assets may be supplied by an increase in the amount of the warehouseman's bond in accordance with § 106.12(b).

[39 FR 41825, Dec. 3, 1974]

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Pending investigation, the Secretary, or his designated representative, whenever he deems it necessary, may suspend a warehouseman's license temporarily without hearing. Upon written request and a satisfactory statement of reasons therefor submitted by a warehouseman, the Secretary, or his designated representative, may, without hearing suspend or revoke the license issued to such warehouseman. The Secretary, or his designated representative, may, after opportunity for hearing has been afforded in the manner prescribed in this section, cancel a license issued to a warehouseman when such warehouseman (a) is bankrupt or insolvent, (b) has parted in whole or in part with his control over the licensed warehouse, (c) is in process of dissolution or has been dissolved, (d) has ceased to conduct such licensed ware

house, or (e) has in any other manner become nonexistent or incompetent or incapacitated to conduct the business of the warehouse. Whenever any of the conditions mentioned in paragraphs (a) to (e) of this section shall come into existence it shall be the duty of the warehouseman to notify the Administrator immediately of the existing condition. Before a license is revoked for any violation of, or failure to comply with, any provision of the act or of the regulations in this part, or upon the ground that unreasonable or exorbitant charges have been made for services rendered, the warehouseman involved shall be furnished by the Secretary, or his designated representative, a written statement specifying the charges and shall be allowed a reasonable time within which he may answer the same in writing and apply for a hearing, an opportunity for which shall be afforded in accordance with § 106.80.

[13 F. R. 8729, Dec. 30, 1948]

§ 106.8 Return of suspended or revoked warehouse licenses.

When a license issued to a warehouseman terminates, or is suspended, or revoked by the Secretary or his designated representative, it shall be returned to the Secretary. At the expiration of any period of suspension of such license, unless it be in the meantime revoked, the dates of the beginning and termination of the suspension shall be indorsed thereon, it shall be returned to the licensed warehouseman to whom it was originally issued, and it shall be posted as prescribed in § 106.6. § 106.9

Lost licenses.

or destroyed warehouse

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WAREHOUSE Bonds

§ 106.11 Bond required; time of filing. Each warehouseman applying for a warehouse license under the act shall, before such license is granted, file with the Secretary or his designated representative a bond containing the following conditions and such other terms as the Secretary or his designated representative may prescribe in the approved bond forms, with such changes as may be necessary to adapt the forms to the type of legal entity involved:

Now, therefore, if the said license (s) or any amendments thereto be granted and said principal, and its successors and assigns operating sald warehouse(s), shall:

Faithfully perform during the period of one year commencing or until the termination of said license(s) in the event of termination prior to the end of the one year period, all obligations of a licensed warehouseman under the terms of the act and regulations thereunder relating to the above-named products; and

Faithfully perform during said one year period and thereafter, whether or not said warehouse (s) remain (s) licensed under the act, such delivery obligations and further obligations as a warehouseman as exist at the beginning of said one year period or are assumed during said period and prior to termination of said license(s) under contracts with the respective depositors of such products in the warehouse(s);

Then this obligation shall be null and void and of no effect, otherwise to remain in full force. For purposes of this bond, the aforesaid obligations under the act and regulations and contracts shall include obligations under any and all modifications of the act, the regulations, and the contracts that may hereafter be made, notice of which modifications to the surety being hereby waived. [28 F.R. 5637, June 8, 1963]

§ 106.12 Basis of amount of bond; additional amounts.

(a) Exclusive of any amount which may be added in accordance with paragraphs (b) and (c) of this section, the amount of such bond shall be at the rate of 40 cents per hundredweight for the maximum number of hundredweight that the warehouse will accommodate, when stored in the manner customary to the warehouse for which such bond is required, as determined by the Administrator, but not less than $20,000 nor more than $200,000. If such warehouseman has applied for licenses to conduct two or more warehouses in the same State, the assets applicable to all of which shall be subject to the liabilities of each, and shall

desire to give a single bond meeting the requirements of the act and the regulations in this part for said warehouses, such warehouses shall be deemed to be one warehouse for the purposes of the bond required under this section.

(b) In case of a deficiency in net assets under § 106.5 there shall be added to the amount of the bond, fixed in accordance with paragraph (a) of this section, an amount equal to such deficiency.

(c) If the Secretary, or his designated representative, finds the existence of conditions warranting such action, there shall be added to the amount fixed in accordance with paragraphs (a) and (b) of this section a further amount, fixed by him, to meet such conditions.

[10 F.R. 4964, May 4, 1945, as amended at 24 F.R. 3692, May 7, 1959; 39 FR 41825, Dec. 3, 1974]

§ 106.13

Amendment to license.

If application is made under § 106.3 for an amendment to a license and no bond previously filed by the warehouseman under the regulations in this part covers obligations arising during the period of such amendment, the warehouseman shall, when notive has been given by the Secretary, or his designated representative, that his application for such amendment will be granted upon compliance by such warehouseman with the act, file with the Secretary, within a time, if any, fixed in such notice, a bond complying with the act, unless bond in sufficient amount has been filed since the filing of such application. In the discretion of the Secretary, a properly executed instrument in form approved by him, amending, extending or continuing in force and effect the obligations of a valid bond previously filled by the warehouseman and otherwise complying with the act and these regulations may be filed in lieu of a new bond.

§ 106.14 New bond required each year.

A continuous form of license shall not remain in force for more than one year from its effective date, or any subsequent extension thereof, unless each year not more than 30 days before the date on which the license would expire, the warehouseman files a bond in the required amount with the Secretary and such bond has been approved by him or his designated representative.

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