PART 1200—RULES OF PRACTICE AND PROCEDURE GOVERNING PROCEEDINGS UNDER RESEARCH, PROMOTION, AND INFORMATION PROGRAMS Authority: 7 U.S.C. 2101-2119, 2611-2627, 2701-2718, 2901-2911, 4501-4514, 4801-4819, 4901-4916, 6101-6112, 6301-6311, 6401-6417, 7411-7425, 7481-7491, and 7801-7813. Subpart A—Rules of Practice and Procedure Governing Proceedings To Formulate and Amend an Order Authority: 7 U.S.C. 2103, 2614, 2704, and 4804. Source: 47 FR 44684, Oct. 8, 1982, unless otherwise noted. § 1200.1 Words in the singular form. Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand. § 1200.2 Definitions. (a) The term Act (b) Administrator (b) Board (c) Department (d) Federal Register Federal Register (e) Hearing (f) Judge (g) Hearing (h) Hearing clerk (i) Order order (j) Proceeding (k) Secretary [67 FR 44350, July 2, 2002, as amended at 82 FR 58098, Dec. 11, 2017] § 1200.3 Proposals. (a) An order may be proposed by any organization certified pursuant to the Act or any interested person affected by the Act, including the Secretary. Any person or organization other than the Secretary proposing an order shall file with the Administrator a written application, together with a copy 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 to be given as, in the Administrator's opinion, are warranted. If the investigation and consideration lead the Administrator to conclude that the proposed 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, the Administrator 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 order will tend to effectuate the declared policy of the Act, or if the Secretary desires to propose an order, the Administrator shall sign and cause to be served a notice of hearing, as provided herein. § 1200.4 Reimbursement of Secretary's expenses. If provided for in the Act or any amendment thereto, expenses incurred by the Secretary in preparing or amending the order, administering the order, and conducting the referendum shall be reimbursed. § 1200.5 Institution of proceedings. (a) Filing and contents of the notice of hearing. Federal Register, Federal Register. (b) Giving notice of hearing and supplemental publicity. (i) By publication of the notice of hearing in the Federal Register (ii) By mailing a copy of the notice of hearing to each organization known by 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 as, in the Administrator's discretion, are best calculated to bring the notice to the attention of the persons interested therein; and (iv) By forwarding copies of the notice of hearing addressed to those Governors of the States and executive heads of territories and possessions of the United States and the mayor of the District of Columbia that are directly affected by such order. (2) Legal notice of the hearing shall be deemed to be given if notice is given in the manner provided by paragraph (b)(1)(i) of this section; failure to give notice in the manner provided in paragraphs (b)(2) (ii), (iii), and (iv) of this section shall not affect the legality of the notice. (c) Record of notice and supplemental publicity. § 1200.6 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. § 1200.7 Judge. (a) Assignment. (b) Power of judge. (1) Rule upon motions and requests; (2) Change the time and place of hearings, 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; and (7) Do all acts and take all measures necessary for the maintenance of order at the hearings and the efficient conduct of the proceeding. (c) Who may act in absence of judge. (d) Disqualification of judge. § 1200.8 Motions and requests. (a) General. (2) Except as provided in § 1200.17(b) such motions and requests shall be addressed to, and ruled on by, the judge if made prior to certification of the transcript pursuant to § 1200.11 or by the Secretary if made thereafter. (b) Certification to Secretary. § 1200.9 Conduct of the hearing. (a) Time and place. (b) Appearances Right to appear. (2) Debarment of counsel or representative. (ii) In case the judge has ordered that a person be precluded from further action as counsel or representative in the proceeding, the judge within a reasonable time thereafter shall submit to the Secretary a report of the facts and circumstances surrounding such order and shall recommend what action the Secretary should take respecting the appearance of such person as counsel or representative 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. (c) Order of procedure. (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 General. (i) 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. (ii) 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. (iii) 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. (3) Proof and authentication of official records or documents. (4) Exhibits. (5) Official notice. (6) Offer of proof. § 1200.10 Oral and written arguments. (a) Oral argument before the judge. (b) Briefs, proposed findings, and conclusions. § 1200.11 Certification of the transcript. The judge shall notify the hearing clerk of the close of a hearing as soon as possible thereafter and of the time for filing written arguments, briefs, proposed findings, and proposed conclusions and shall furnish the hearing clerk with such other information as may be necessary. As soon as possible after the hearing, the judge shall transmit to the hearing clerk an original and three copies of the transcript of the testimony and the original and all copies of the exhibits not already on file in the office of the hearing clerk. The judge shall attach to the original transcript of the testimony a certificate stating that, to the best of the judge's knowledge and belief, the transcript is a true transcript of the testimony given at the hearing, except in such particulars as the judge shall specify, and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as the judge shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of testimony. In accordance with such certificate the hearing clerk shall note upon the official record copy, and cause to be noted on other copies of the transcript, each correction detailed therein by adding or crossing out (but without obscuring the text as originally transcribed) at the appropriate place any words necessary to make the same conform to the correct meaning, as certified by the judge. The hearing clerk shall obtain and file certifications to the effect that such corrections have been effectuated in copies other than the official record copy. § 1200.12 Copies of the transcript. (a) During the period in which the proceeding has an active status in the Department, a copy of the transcript and exhibits shall be kept on file in the office of the hearing clerk where it shall be available for examination during official hours of business. Thereafter said transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk. (b) Transcripts of hearings shall be made available to any person at actual cost of duplication. [47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002] § 1200.13 Administrator's recommended decision. (a) Preparation. (b) Contents. (c) Exceptions to recommended decision. Federal Register. (d) Omission of recommended decision. § 1200.14 Submission to Secretary. Upon the expiration of the period allowed for filing exceptions or upon request of the Secretary, the hearing clerk shall transmit to the Secretary the record of the proceeding. Such record shall include: All motions and requests filed with the hearing clerk and rulings thereon; the certified transcript; any proposed findings or conclusions or written arguments or briefs that may have been filed; the Administrator's recommended decision, if any; and such exceptions as may have been filed. § 1200.15 Decision by the Secretary. After due consideration of the record, the Secretary shall render a decision. Such decision shall become a part of the record and shall include: (a) a statement of findings and conclusions, including the reasons or basis for such findings, upon all the material issues of fact, law, or discretion presented on the record, (b) a ruling upon each proposed finding and proposed conclusion not previously ruled upon in the record, (c) a ruling upon each exception filed by interested persons, and (d) either (1) denial of the proposal to issue an order, or (2) if the findings upon the record so warrant, an order, the provisions of which shall be set forth and such order shall be complete except for its effective date and any determinations to be made under § 1200.16: Except that § 1200.16 Execution of the order. (a) Issuance of the order. (b) Effective date of order. Federal Register, (c) Notice of issuance. Federal Register. § 1200.17 Filing, extension of time, effective date of filing, and computation of time. (a) Number of copies. (b) Extension of time. (c) Effective date of filing. (d) Computation of time. Provided, [47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002] § 1200.18 Ex parte communications. (a) At no stage of the proceeding following the issuance of a notice of hearing and prior to the issuance of the Secretary's decision thereon shall an employee of the Department who is or may reasonably be expected to be involved in the decision process of the proceeding discuss ex parte the merits of the proceeding with any person having an interest in the proceeding or with any representative of such person: Except that procedural matters and status reports shall not be included within the limitation: And except further that an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding may discuss the merits of the proceeding with such a person if all parties known to be interested in the proceeding have been given notice and an opportunity to participate. A memorandum of any such discussion shall be included in the record of the proceeding. (b) No person interested in the proceeding shall make or knowingly cause to be made to an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding an ex parte communication relevant to the merits of the proceeding except as provided in paragraph (a) of this section. (c) If an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding receives or makes a communication prohibited by this section, the Department shall place on the public record of the proceeding: (1) All such written communications; (2) Memoranda stating the substance of all such oral communications; and (3) All written responses, and memoranda, stating the substance of all oral responses thereto. (d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section, the Department may, to the extent consistent with the interest of justice and the policy of the underlying statute, take whatever steps are deemed necessary to nullify the effect of such communication. (e) For the purposes of this section, ex parte communication § 1200.19 Additional documents to be filed with hearing clerk. In addition to the documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk, the hearing clerk shall receive for filing and shall have custody of all papers, reports, records, orders, and other documents which relate to the administration of any order and which the Secretary is required to issue or to approve. § 1200.20 Hearing before Secretary. The Secretary may act in the place and stead of a judge in any proceeding herein. When the Secretary so acts, the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions, and orders, and the Secretary shall then, after due consideration of the record, issue the final decision in the proceeding: Except the Secretary may issue a tentative decision in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final decision. Subpart B—Rules of Practice Governing Proceedings on Petitions to Modify or To Be Exempted from Research, Promotion and Information Programs Authority: 7 U.S.C. 2111, 2620, 2713, 4509, 4609, 4814, 4909, 6008, 6106, 6306, 6410, 6807, 7106, 7418, 7486, and 7806. Source: 60 FR 37326, July 20, 1995, unless otherwise noted. § 1200.50 Words in the singular form. Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, § 1200.51 Definitions. As used in this subpart, the terms as defined in the Act shall apply with equal force and effect. In addition, unless the context otherwise requires: (a) The term Act (b) Administrator (c) Decision (1) Findings of fact and conclusions with respect to all material issues of fact, law or discretion, as well as the reasons or basis thereof; (2) Order; and (3) Rulings on findings, conclusions and orders submitted by the parties. (d) Department (e) Hearing means that part of the proceedings which involves the submission of evidence. (f) Hearing clerk (g) Judge (h) Order (i) Party (j) Person (k) Petition (l) Proceeding (m) Secretary [67 FR 44350, July 2, 2002, as amended at 82 FR 58098, Dec. 11, 2017] § 1200.52 Institution of proceeding. (a) Filing and service of petitions. (b) Contents of petitions. (1) The correct name, address, and principal place of business of the petitioner. If the petitioner is a corporation, such fact shall be stated, together with the name of the State of incorporation, the date of incorporation, and the names, addresses, and respective positions held by its officers and directors; if an unincorporated association, the names and addresses of its officers, and the respective positions held by them; if a partnership, the name and address of each partner; (2) Reference to the specific terms or provisions of the order, or the interpretation or application of such terms or provisions, which are complained of; (3) A full statement of the facts, avoiding a mere repetition of detailed evidence, upon which the petition is based, and which it is desired that the Secretary consider, setting forth clearly and concisely the nature of the petitioner's business and the manner in which petitioner claims to be affected by the terms or provisions of the order or the interpretation or application thereof, which are complained of; (4) A statement of the grounds on which the terms or provisions of the order, or the interpretation or application thereof, which are complained of, are challenged as not in accordance with law; (5) Requests for the specific relief which the petitioner desires the Secretary to grant; and (6) An affidavit by the petitioner, or, if the petitioner is not an individual, by an officer of the petitioner having knowledge of the facts stated in the petition, verifying the petition and stating that it is filed in good faith and not for purposes of delay. (c) A motion to dismiss a petition: filing, contents, and responses to a petition. (d) Further proceedings. marketing order order. [47 FR 44684, Oct. 8, 1982, as amended at 67 FR 10830, Mar. 11, 2002] Subpart C—General Definitions Authority: 7 U.S.C. 2114, 2616, 2716, 2904, 4503, 4803, 4905, 6112, 6311, 6406, 7490, 7424 and 7812. Source: 83 FR 27682, June 14, 2018, unless otherwise noted. § 1200.100 General. The terms defined/specified in this subpart shall apply to all research and promotion programs authorized under the Act. § 1200.101 Definitions. (a) Act (b) Mail e.g., Subpart D—Administrative Procedures Governing Formulation of a Research and Promotion Order Source: 85 FR 45305, July 28, 2020, unless otherwise noted. § 1200.200 General. The terms defined/specified in this subpart shall apply to all research and promotion programs authorized under the Act. § 1200.201 Definitions. Act Administrator Cost of the Referendum Order Secretary § 1200.202 Proposals. (a) An order may be proposed by any association of producers of an agricultural commodity, by any person that may be affected by the issuance of an order with respect to an agricultural commodity, or by the Secretary. Any person or organization other than the Secretary proposing an order shall file with the Administrator a written proposal. (b) Upon receipt of a proposal, the Administrator shall investigate and evaluate the proposal. (c) If the proposal is submitted by an association of producers of the agricultural commodity or by any person that may be affected by the issuance of an order, and the investigation and consideration lead the Administrator to conclude that the proposed order will not tend to effectuate the declared policy of the Act, the Administrator shall deny the proposal. The Administrator will promptly notify the proponent(s) of such denial, which will be accompanied by a brief statement of the grounds for the denial. (d) If the proposal was submitted by an association of producers of the agricultural commodity or by any person that may be affected by the issuance of an order and the investigation and consideration lead the Administrator to conclude that an order will tend to effectuate the declared policy of the Act, the Administrator will promptly notify the proponent(s) of such conclusion, and the proponent(s) will be required to post a bond or other collateral in accordance with § 1200.204. (e) If the Administrator concludes that an order will tend to effectuate the declared policy of the Act, the Administrator shall publish the proposed order in the Federal Register § 1200.203 Initial referendum. For the purpose of ascertaining whether the persons to be covered by an order favor the order going into effect, the Administrator may conduct an initial referendum among persons to be subject to an assessment under the order who, during a representative period determined by the Administrator, engaged in the production or handling of the agricultural commodity or the importation of the agricultural commodity. § 1200.204 Reimbursement of Secretary's expenses. The Administrator may require any person or organization proposing an order to post a bond or other collateral to cover the cost of the referendum as defined in § 1200.201. § 1200.205 Termination of proceedings. If at any time during development of a new program the Administrator concludes, based on public comments, referendum votes, or other available information, that an order will not tend to effectuate the declared policy of the Act, the Administrator shall terminate the proceedings and collect reimbursements from the bond or other collateral posted pursuant to § 1200.204 for any expenses incurred in development of the proposed program. § 1200.206 Execution of the order. (a) Issuance of the order. (b) Effective date of order. Federal Register, (c) Notice of issuance. Federal Register