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8 202.119 Rule 19: Fees of witnesses.
Witnesses subpoenaed before the presiding officer, and witnesses whose depositions are taken, shall be entitled to the same fees and mileage as are paid for like services in the courts of the United States. Fees and mileage shall be paid by the party at whose instance the witness appears or the deposition is taken.
8202.120 Rule 20: Official notice.
Official notice shall be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical or scientific fact of established character: Provided, That the parties shall be given notice of matters so noticed, and shall be given adequate opportunity to show that such facts are erroneously noticed.
neys representatives have been served with notice and an opportunity to participate. A memorandum of any such discussion shall be included in the record.
(b) No party, or attorney or representative of a party, or other person not an employee of the Department, shall make or knowingly cause to be made to the presiding officer or judicial officer an ex parte communication relevant to the merits of the proceeding.
(c) If the presiding officer or judicial officer receives an ex parte communication in violation of this section, the one who receives the communication shall place in the public record of the proceeding: (1) Such communication if written,
a memorandum stating the substance of such communication if oral; and
(2) A copy of any written response or a memorandum stating the substance of any oral response thereto.
(d) Copies of all such items placed or included in the record, as provided in this section, shall be served on all parties.
(e) For purposes of this section “ex parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include a request for a status report on any matter or the proceeding. $ 202.123 Rule 23: Action by Secretary.
The Secretary may act in the place and stead of a presiding officer or the judicial officer in any proceeding hereunder, or any matter in connection therewith.
$ 202.121 Rule 21: Intervention.
At any time after docketing of a proceeding and before commencement of a hearing, oral or written, therein, the presiding officer may, upon petition, and for good cause shown, permit any person to intervene therein. The petition shall state with preciseness and particularity: (a) The petitioner's relationship to the matters involved in the proceeding; (b) the nature of the material the petitioner intends to present in evidence; (c) the nature of the argument the petitioner intends to make; and (d) the reasons why the petitioner should be allowed to intervene. Any such petition, and notice of the order thereon, shall be served on the parties and made a part of the record in the proceeding. 8 202.122 Rule 22: Ex parte commu.
nications. (a) At no stage of the proceeding between its docketing and the issuance of the final decision shall the presiding officer or judicial officer discuss ex parte the merits of the proceeding with any party, or attorney or representative of a party: Provided, That procedural matters shall not be included within this limitation; and Provided further, That the presiding officer or judicial officer may discuss the merits of the case with such a person if all parties to the proceeding or their attor
PART 203-STATEMENTS OF GEN
ERAL POLICY UNDER THE PACKERS AND STOCKYARDS ACT
Sec. 203.1 [Reserved] 203.2 Statement of general policy with re
spect to the giving by meat packers of meat and other gifts to Government em
ployees. 203.3 [Reserved] 203.4 Statement with respect to the disposi
tion of records by packers, live poultry
dealers, stockyard owners, market agen- state or foreign commerce any gift cies and dealers.
given with any intent or purpose what203.5 Statement with respect to market
soever (21 U.S.C. 90). Under the Federal agencies paying the expenses of livestock buyers.
meat grading regulations, the giving or 203.6 (Reserved]
attempting to give by a packer of any203.7 Statement with respect to meat pack- thing of value to any employee of the er sales and purchase contracts.
Department authorized to perform any 203.8–203.9 [Reserved)
function under such regulations is a 203.10 Statement with respect to insol- basis for the withdrawal of Federal vency; definition of current assets and
meat grading service (7 CFR 53.13). The current liabilities. 203.11 [Reserved]
receiving by an employee of the De203.12 Statement with respect to providing
partment of any gift from any person services and facilities at stockyards on a for whom grading, inspection, or other
reasonable and nondiscriminatory basis. service work is performed is specifi203.13 (Reserved]
cally prohibited by Departmental regu203.14 Statement with respect to adver- lations.
tising allowances and other merchandising payments and services.
(c) Upon the basis of paragraphs (a) 203.15 Trust benefits under sections 206 and
and (b) of this section, it is the view of 207 of the Act.
the Department that it is an unfair and 203.16 Mailing of checks in payment for deceptive practice in violation of sec
livestock purchased for slaughter, for tion 202(a) of the Packers and Stockcash and not on credit.
yards Act (7 U.S.C. 192(a)) for any per203.17 Statement of general policy with re
son subject to the provisions of Title II spect to rates and charges at posted
of said Act to give or offer to give stockyards. 203.18 Statement with respect to packers
meat, money, or anything of value to engaging in the business of custom feed- any Government employee who pering livestock.
forms inspection, grading, reporting, or 203.19 Statement with respect to packers regulatory duties directly relating to
engaging in the business of livestock the purchase or sale of livestock or the dealers or buying agencies.
preparation or distribution of meats, AUTHORITY: 7 CFR 2.22 and 2.81.
meat food products, livestock products
in unmanufactured form, poultry or $ 203.1 (Reserved)
poultry products. $ 203.2 Statement of general policy (Sec. 407, 42 Stat. 169; 7 U.S.C. 228; 9 CFR
with respect to the giving by meat 201.3) packers of meat and other gifts to Government employees.
[26 FR 710, Jan. 25, 1961; 29 FR 4081, Mar. 28,
1964) (a) In recent months, the Department has received information, confirmed by 8 203.3 [Reserved] investigation, that a number of packers subject to the Packers and Stock- $ 203.4 Statement with respect to the yards Act have made gifts of meat to disposition of records by packers, Government employees responsible for
live poultry dealers, stockyard ownconducting service activities of the De
ers, market agencies and dealers. partment. Such gifts have the implica- (a) Records to be kept. Section 401 of tions of fraud, even if not made specifi- the Packers and Stockyards Act (7 cally for the purpose of influencing U.S.C. 221) provides, in part, that every these employees in the performance of packer, live poultry dealer, stockyard their duties.
owner, market agency, and dealer shall (b) It is a violation of the Meat In- keep such accounts, records, and spection Act for any person, firm, or memoranda as fully and correctly discorporation to give to any employee of close all transactions involved in his the Department performing duties business, including the true ownership under such act anything of value with of such business by stockholding or intent to influence such employee in otherwise. In order to properly adminthe discharge of his duties, or for such ister the P&S Act, it is necessary that employee to receive from any person, records be retained for such periods of firm, or corporation engaged in inter- time as may be required to permit the
(d) Unauthorized disposal of records. If it is found that any person subject to the Act has disposed of accounts, records, and memoranda which are necessary to fully and correctly disclose all transactions in its business prior to the periods specified in this statement, consideration will be given to the issuance of a complaint charging a violation of section 401 of the Act and seeking an appropriate order. The administrative proceeding initiated will be conducted in accordance with the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary (7 CFR 1.130 et seq.). (Approved by the Office of Management and Budget under control number 0580_0015) (7 U.S.C. 228, 7 U.S.C. 222, and 15 U.S.C. 46) (49 FR 6085, Feb. 17, 1984, as amended at 54 FR 16357, Apr. 24, 1989; 68 FR 75388, Dec. 31, 2003]
Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs) a reasonable opportunity to examine such records. Section 401 of the Act does not, however, provide for the destruction or disposal of records. Therefore, the Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs) has formulated this policy statement to provide guidance as to the periods of time after which records may be disposed of or destroyed.
(b) Records may be disposed of after two years except as otherwise provided. Except as provided in paragraph (c) of this section, each packer, live poultry dealer, stockyard owner, market agency, and dealer may destroy or dispose of accounts, records, and memoranda which contain, explain, modify transactions in its business subject to the Act after such accounts, records, and memoranda have been retained for a period of two full years; Provided, That the following records made or kept by a packer may be disposed of after one year: cutting tests; departmental transfers; buyers' estimates; drive sheets; scale tickets received from others; inventory and products in storage; receiving records; trial balances; departmental overhead or expense recapitulations; bank statements, reconciliations and deposit slips; production or sale tonnage reports (including recapitulations and summaries of routes, branches, plants, etc.); buying or selling pricing instructions and price lists; correspondence; telegrams; teletype communications and memoranda relating to matters other than contracts, agreements, purchase or sales invoices, or claims or credit memoranda; and Provided further, That microfilm copies of records may be substituted for and retained in lieu of the actual records.
(c) Retention for longer periods may be required. The periods specified in paragraph (b) of this section shall be extended if the packer, live poultry dealer, stockyard owner, market agency, or dealer is notified in writing by the Administrator that specified records should be retained for a longer period pending the completion of any investigation or proceedings under the Act.
8 203.5 Statement with respect to mar.
ket agencies paying the expenses of
livestock buyers. It has become a practice in certain areas of the country for market agencies, engaged in the business of selling consigned livestock on a commission basis, to pay certain of the business or personal expenses incurred by buyers attending livestock sales conducted by such market agencies, such as, expenses for meals, lodging, travel, entertainment and long distance telephone calls. Investigation by the Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), discloses that this practice tends to become a method of competition between similarly engaged market agencies and results in undue and unreasonable cost burdens on such market agencies and the livestock producers who sell their livestock through such market agencies.
It is the view of the Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs) that it constitutes violations of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), for any market agency engaged in the business of selling consigned livestock on a commission basis, to pay, directly or indirectly, any personal or business expenses of livestock buyers attending
sales conducted by such market agen- (2) Quality and condition. (i) A seller cy. In the future, if any market agency has the responsibility of making cerengages in such practice, consideration tain that the meat and meat food prodwill be given by the Grain Inspection, ucts shipped are in accordance with the Packers and Stockyards Administra- terms of the contract specifications. tion (Packers and Stockyards Pro- (ii) When a buyer believes that the grams) to the issuance of a complaint shipment does not meet the terms of charging the market agency with vio- the contract, he should immediately lation of the Act. In the formal admin- contact the seller or the seller's agent istrative proceeding initiated by any and advise him of the nature of the such complaint, the Judicial Officer of complaint. This affords the seller an the Department will determine, after opportunity to renegotiate the confull hearing, whether the market agen- tract, to personally inspect the meat or cy has violated the Act and should be meat food products, or to have an imordered to cease and desist from con- partial party inspect or examine the tinuing such violation, and whether meat or meat food products. Inspection the registration of such market agency and examination service of this type is should be suspended for a reasonable available nationally through the USDA period of time.
meat grading service and locally
through various impartial persons or (Secs. 407, 4, 42 Stat. 169, 72 Stat. 1750; 7
agencies. U.S.C. 228. Interprets or applies secs. 304, 307,
(iii) All terms of a transaction should 312, 42 Stat. 164, 165, 167; 7 U.S.C. 205, 208, 213)
be made clear in the contract, whether [29 FR 311, Jan. 14, 1964; 29 FR 3304, Mar. 12, written or verbal. If there is any 1964, as amended at 32 FR 7700, May 26, 1967) chance of misunderstanding, a written
confirmation should be exchanged be$ 203.6 [Reserved]
tween the parties. In any case where a
contract dispute cannot be settled be$ 203.7 Statement with respect to meat packer sales and purchase con
tween the parties and either party intracts.
tends to file a complaint, such com
plaint should be brought to the atten(a) The Grain Inspection, Packers tion of the nearest Grain Inspection, and Stockyards Administration (Pack- Packers and Stockyards Administraers and Stockyards Programs) receives tion (Packers and Stockyards Pronumerous complaints concerning the
grams) area office as soon as possible. failure or refusal of buyers to pay the
However, a concerted effort on the part full purchase price for, or to accept de- of both buyer and seller to negotiate livery of, their purchases of meat and
clear and complete contracts will meat food products and sellers failing greatly reduce misunderstandings to meet contractual specifications. which can result in the filing of comMost such complaints arise out of dis- plaints with the Administration. putes concerning condition, grade,
(c) If the Grain Inspection, Packers weight, or shipping instructions.
and Stockyards Administration (Pack(b) It is believed that both seller and ers and Stockyards Programs) has reabuyer should take the following points son to believe that any packer into consideration when selling and unjustifiably (1) has refused to pay the buying meat and meat food products: contractual price for meat or meat
(1) Terms of shipment and time of ar- food products purchased, (2) has refused rival. Terms and conditions of shipment to accept a shipment of meat or meat and delivery should be specified in the food products, or (3) has failed to ship contract and both parties should un- meat or meat food products in accordderstand fully all terms and conditions ance with the terms of the contract of the contract. Any deviation from specifications, consideration will be normal practices, such as a guaranty given to the issuance of a complaint by the shipper as to the date of arrival charging the packer with violation of at destination, or a deviation from the section 202 of the Act. In the formal adnormal meaning of terms, should also ministrative proceeding initiated by be fully understood and made a part of any such complaint, the Judicial Offithe contract.
cer of the Department will determine,
upon the basis of the record in the proceeding, whether the packer has violated the Act and should be ordered to cease and desist from continuing such violation.
(Secs. 407(a), 4, 42 Stat. 169, 72 Stat. 1750; 7 U.S.C. 228(a). Interprets or applies sec. 202, 42 Stat. 161 et seq., as amended; 7 U.S.C. 192) (30 FR 14966, Dec. 3, 1965, as amended at 32 FR 7701, May 26, 1967)
$8 203.8–203.9 [Reserved)
$ 203.10 Statement with respect to in.
solvency; definition of current as
sets and current liabilities. (a) Under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), the principal test of insolvency is to determine whether a person's current liabilities exceed his current assets. This current ratio test of insolvency under the Act has been reviewed and affirmed by a United States Court of Appeals. Bowman v. United States Department of Agriculture, 363 F. 2d 81 (5th Cir. 1966).
(b) For the purposes of the administration of the Packers and Stockyards Act, 1921, the following terms shall be construed, respectively, to mean:
(1) Current assets' means cash and other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business, which is considered to be one year.
(2) Current liabilities means obligations whose liquidation is reasonably expected to require the use of existing resources principally classifiable current assets or the creation of other current liabilities during the one year operating cycle of the business.
(c) The term current assets generally includes: (1) Cash in bank or on hand; (2) sums due a market agency from a custodial account for shippers' proceeds; (3) accounts receivable, if collectable; (4) notes receivable and portions of long-term notes receivable within one year from date of balance sheet, if collectable; (5) inventories of livestock acquired for purposes of resale or for purposes of market support; (6) feed inventories and other inventories which are intended to be sold or consumed in the normal operating
cycle of the business; (7) accounts due from employees, if collectable; (8) accounts due from officers of a corporation, if collectable; (9) accounts due from affiliates and subsidiaries of corporations if the financial position of such subsidiaries and affiliates justifies such classification; (10) marketable securities representing cash available for current operations and not otherwise pledged as security; (11) accured interest receivable; and (12) prepaid expenses.
(d) The term current assets generally excludes: (1) Cash and claims to cash which are restricted as to withdrawal, such as custodial funds for shippers' proceeds and current proceeds receivable from the sale of livestock sold on a commission basis; (2) investments in securities (whether marketable or not) or advances which have been made for the purposes of control, affiliation, or other continuing business advantage; (3) receivables which are not expected to be collected within 12 months; (4) cash surrender value of life insurance policies; (5) land and other natural resources; and (6) depreciable assets.
(e) The term current liabilities generally includes: (1) Bank overdrafts (per books); (2) amounts due a custodial account for shippers' proceeds; (3) accounts payable within one year from date of balance sheet; (4) notes payable or portions thereof due and payable within one year from date of balance sheet; (5) accruals such as taxes, wages, social security, unemployment compensation, etc., due and payabl
as of the date of the balance sheet; and (6) all other liabilities whose regular and ordinary liquidation is expected to occur within one year. (Sec. 407(a), 42 Stat. 169, 72 Stat. 1750; 7 U.S.C. 228(a). Interprets or applies secs. 202, 307, 312, 502, 505; 42 Stat. 161 et seq., as amended; 7 U.S.C. 192, 208, 213, 218a, 218d) (32 FR 6901, May 5, 1967)