ed by the Agricultural Agreement Act of 1937 (50 as amended.

(b) The term "Departme the United States Departme culture.

(c) The term “Secretary" Secretary of Agriculture of States, or any officer or en the Department to whom has heretofore been delega whom authority may hereaf egated, to act in his stead.

(d) The terms Administra Judge or Judge means any ac tive law judge appointed purs U.S.C. 3105, and assigned to the proceeding.

(e) The term "Administrato the Administrator of the Ag Marketing Service, with powe legate, or any officer or emp the Department to whom a has been delegated or may h be delegated to act in his stead (f) [Reserved]

(g) The term "FEDERAL R means the publication provide the act of July 26, 1935 (49 S and acts supplementary ther amendatory thereof.

(h) The term "hearing" me part of the proceeding which the submission of evidence.

(i) The term "marketing agr means any marketing agree any amendment thereto which entered into pursuant to secti the act.

(j) The term "marketing means any order or any am thereto which may be issued p to section 8c of the act, a notice and hearing as required section.

(k) The term "proceeding" proceeding upon the basis of marketing agreement may be into or a marketing order issued.

(1) The term "hearing clerk the hearing clerk, United Sta partment of Agriculture, Was D.C.

[25 FR 5907, June 28, 1960, as am 26 FR 7796, Aug. 22, 1961; 28 FR 23, 1963; 37 FR 8059, Apr. 25, 197 29798, Oct. 29, 1973]

§ 900.3 Proposals.

(a) A marketing agreement or a marketing order may be proposed by the Secretary or by any other person. If any person other than the Secretary proposes a marketing agreement or marketing order, he shall file with the Administrator a written application, together with at least four copies of the proposal, requesting the Secretary to hold a hearing upon the proposal. Upon receipt of such proposal, the Administrator shall cause such investigation to be made and such consideration thereof to be given as, in his opinion, are warranted. If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will not tend to effectuate the declared policy of the act, or that for other proper reasons a hearing should not be held on the proposal, he shall deny the application, and promptly notify the applicant of such denial, which notice shall be accompanied by a brief statement of the grounds for the denial.

(b) If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will tend to effectuate the declared policy of the act, or if the Secretary desires to propose a marketing agreement or marketing order, he shall sign and cause to be served a notice of hearing, as provided in this subpart.

§ 900.4 Institution of proceeding.

(a) Filing and contents of the notice of hearing. The proceeding shall be instituted by filing the notice of hearing with the hearing clerk. The notice of hearing shall contain a reference to the authority under which the marketing agreement or marketing order is proposed; shall define the scope of the hearing as specifically as may be practicable; shall contain either the terms or substance of the proposed marketing agreement or marketing order or a description of the subjects and issues involved and shall state the industry, area, and class of persons to be regulated, the time and place of such hearing, and the place where copies of such proposed marketing agreement or marketing order may be

obtained or examined. The time of the hearing shall not be less than 15 days after the date of publication of the notice in the FEDERAL REGISTER, as provided in this subpart, unless the Administrator shall determine that an emergency exists which requires a shorter period of notice, in which case the period of notice shall be that which the Administrator may determine to be reasonable in the circumstances: Provided, That, in the case of hearings on amendments to marketing agreements or marketing orders, the time of the hearing may be less than 15 days but shall not be less than 3 days after the date of publication of the notice in the FEDERAL REGISTER.

(b) Giving notice of hearing and supplemental publicity. (1) The Administrator shall give or cause to be given notice of hearing in the following manner:

(i) By publication of the notice of hearing in the FEDERAL REGISTER;

(ii) By mailing a true copy of the notice of hearing to each of the persons known to the Administrator, to be interested therein;

(iii) By issuing a press release containing the complete text or a summary of the contents of the notice of hearing and making the same available to such newspapers in the area proposed to be subjected to regulation as reasonably will tend to bring the ntoice to the attention of the persons interested therein;

(iv) By forwarding copies of the notice of hearing addressed to the governors of such of the several States of the United States and to executive heads of such of the Territories and possessions of the United States as the Administrator, having due regard for the subject matter of the proposal and the public interest, shall determine, should be notified.

(2) Legal notice of the hearing shall be deemed to be given if notice is given in the manner provided by paragraph (b)(1)(1) of this section; and failure to give notice in the manner provided in paragraph (b)(1) (ii), (iii), and (iv) of this section shall not affect the legality of the notice.

(c) Record of notice and supplemental publicity. There shall be filed with the hearing clerk or submitted to the

judge at the hearing an affidavit or certificate of the person giving the notice provided in paragraph (b)(1) (iii) and (iv) of this section. In regard to the provisions relating to mailing in paragraph (b)(1)(ii) of this section, a determination by the Administrator that such provisions have been complied with shall be filed with the hearing clerk or submitted to the judge at the hearing. In the alternative, if notice is not given in the manner provided in paragraph (b)(1) (ii), (iii), and (iv) of this section there shall be filed with the hearing clerk or submitted to the judge at the hearing a determination by the Administrator that such notice is impracticable, unnecessary, or contrary to the public interest with a brief statement of the reasons for such determination. Determinations by the Administrator as herein provided shall be final.

§ 900.5 Docket number.

Each proceeding, immediately following its institution, shall be assigned a docket number by the hearing clerk and thereafter the proceeding may be referred to by such number.

§ 900.6 Judges.

(a) Assignment. No judge who has any pecuniary interest in the outcome of a proceeding shall serve as judge in such proceeding.

(b) Powers of judges. Subject to review by the Secretary, as provided elsewhere in this subpart, the judge, in any proceeding, shall have power to:

(1) Rule upon motions and requests; (2) Change the time and place of hearing, and adjourn the hearing from time to time or from place to place;

(3) Administer oaths and affirmations and take affidavits;

(4) Examine and cross-examine witnesses and receive evidence;

(5) Admit or exclude evidence;

(6) Hear oral argument on facts or law;

(7) Do all acts and take all measures necessary for the maintenance of order at the hearing and the efficient conduct of the proceeding.

(c) Who may act in absence of judge. In case of the absence of the judge or his inability to act, the powers and duties to be performed by him under

this part in connection wit ing may, without abatem proceeding unless otherw by the Secretary, be assig other judge.

(d) Disqualification of judge may at any time w judge in a proceeding if he self to be disqualified. Upor by an interested person in of a timely and sufficient a personal bias or disqualifica judge, the Secretary shall the matter as a part of the r decision in the proceedi making such investigation o such hearings, or both, as deem appropriate in the stances.

§ 900.7 Motions and requests.

(a) General. All motions quests shall be filed with the clerk, except that those mad the course of the hearing may with the judge or may be stat and made a part of the transc

Except as provided in § such motions and requests sh dressed to, and ruled on by, th ing officer if made prior to h cation of the transcript pur § 900.10 or by the Secretary thereafter.

(b) Certification to Secret judge may in his discretion s certify to the Secretary for any motion, request, objed other question addressed to t

§ 900.8 Conduct of the hearing.

(a) Time and place. The shall be held at the time a fixed in the notice of hearin the judge shall have changed or place, in which event th shall file with the hearing notice of such change, whic shall be given in the same m provided in § 900.4 (relating giving of notice of the heari vided, That, if the change in place of hearing is made les days prior to the date previou for the hearing, the judge, addition to or in lieu of cau notice of the change to be giv announce, or cause to be an

the change at the time and place previously fixed for the hearing.

(b) Appearances-(1) Right to appear. At the hearing, any interested person shall be given an opportunity to appear, either in person or through his authorized counsel or representative, and to be heard with respect to matters relevant and material to the proceeding. Any interested person who desires to be heard in person at any hearing under these rules shall, before proceeding to testify, state his name, address, and occupation. If any such person is appearing through a counsel or representative, such person or such counsel or representative shall, before proceeding to testify or otherwise to participate in the hearing, state for the record the authority to act as such counsel or representative, and the names and addresses and occupations of such person and such counsel or representative, Any such person or such counsel or representative shall give such other information respecting his appearance as the judge may request.

(2) Debarment of counsel or representative, Wherever, while a proceeding is pending before him, the judge finds that a person, acting as counsel or representative for any person participating in the proceeding, is guilty of unethical or unprofessional conduct, the judge may order that such person be precluded from further acting as counsel or representative in such proceeding. An appeal to the Secretary may be taken from any such order, but the proceeding shall not be delayed or suspended pending disposi tion of the appeal: Provided, That the judge may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or other representative, In case the judge has ordered that a person be precluded from further acting as counsel or representative in the proceeding, the presiding officer, within a reasonable time thereafter shall submit to the Secretary a report of the facts and circumstances surrounding such order and shall recom mend what action the Secretary should take respecting the appearance of such person as counsel or repre sentative in other proceedings before

the Secretary. Thereafter the Secretary may, after notice and an opportunity for hearing, issue such order, respecting the appearance of such person as counsel or representative in proceedings before the Secretary, as the Secretary finds to be appropriate.

(3) Failure to appear. If any interested person fails to appear at the hearing, he shall be deemed to have waived the right to be heard in the proceeding.

(c) Order of procedure. (1) The judge shall, at the opening of the hearing prior to the taking of testimony, have noted as part of the record the notice of hearing as filed with the Office of the Federal Register and the affidavit or certificate of the giving of notice or the determination provided for in § 900.4(c).

(2) Evidence shall then be received with respect to the matters specified in the notice of the hearing in such order as the judge shall announce.

(d) Evidence—(1) In general. The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.

(1) Every witness shall, before proceeding to testify, be sworn or make affirmation. Cross-examination shall be permitted to the extent required for a full and true disclosure of the facts.

(1) When necessary, in order to prevent undue prolongation of the hearing, the judge may limit the number of times any witness may testify to the same matter or the amount of corroborative or cumulative evidence.

(1) The judge shall, insofar as practicable, exclude evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.

(2) Objections. If a party objects to the admission or rejection of any evidence or to any other ruling of the Judge during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the judge. The transcript shall not include argument or debate thereon except as ordered by the Judge. The ruling of the judge on any objection shall be a part of the tran

script. Only objections made before the judge may subsequently be relied upon in the proceeding.

(3) Proof and authentication of official records or documents. An official record or document, when admissible for any purpose, shall be admissible as evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the judge, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.

(4) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon satisfactory showing of the authenticity, relevancy, and materiality of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Such exhibits shall be submitted in quadruplicate and in documentary form. In case the required number of copies is not made available, the judge shall exercise his discretion as to whether said exhibits shall, when practicable, be read in evidence or whether additional copies shall be required to be submitted within a time to be specified by the judge. If the testimony of a witness refers to a statute, or to a report or document (including the record of any previous hearing) the judge, after inquiry relating to the identification of such statute, report, or document, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report or document (including the record of any previous hearing) containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the presiding officer.

(5) Official notice. Official notice may be taken of such matters as are judicially noticed by the courts of the United States and of any other matter

of technical, scientific or fact of established chara vided, That interested perso given adequate notice, at t or subsequent thereto, of noticed and shall be given opportunity to show that are inaccurate or are erron ticed.

(6) Offer of proof. Whe dence is excluded from the r party offering such evide make an offer of proof, whic included in the transcript. of proof shall consist of a bi ment describing the evidence fered. If the evidence cons brief oral statement or of an e shall be inserted into the tra toto. In such event, it shall b ered a part of the transcript if retary decides that the judge in excluding the evidence was ous. The judge shall not allow sertion of such evidence in to taking of such evidence will co considerable length of time hearing. In the latter event, if retary decides that the judge excluding the evidence, and tl error was substantial, the shall be reopened to permit th of such evidence.

[25 FR 5907, June 28, 1960, as an 37 FR 1103, Jan. 25, 1972]

§ 900.9 Oral and written argumen

(a) Oral argument before jud argument before the judge sh the discretion of the judge. Su ment, when permitted, may be by the judge to any extent finds necessary for the expedit position of the proceeding and reduced to writing and made the transcript.

(b) Briefs, proposed findi conclusions. The judge shall a at the hearing a reasonable p time within which interested may file with the hearing cl posed findings and conclusio written arguments or briefs upon the evidence received hearing, citing, where practica page or pages of the transcrip testimony where such evide pears. Factual material oth