[Code of Federal Regulations]
[Title 7 Volume 4]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR283.15]

[Page 964-966]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 283--APPEALS OF QUALITY CONTROL (``QC'') CLAIMS--Table of Contents
 
           Subpart B--Appeals of QC Claims of $50,000 or More
 
Sec. 283.15  Procedure for hearing.

    (a) Request for hearing. A party may request a hearing on the facts 
by including such request in its Appeal Petition or Answer, whichever is 
appropriate. Failure to request a hearing within the time specified 
shall constitute a waiver of the opportunity for such a hearing, except 
as provided for under Sec. 283.4(i). In the event FNS denies any 
material facts and fails to request a hearing, the matter may be set 
down for hearing on motion of the State agency or upon the ALJ's own 
motion.
    (b) Time and place. If any material issue of fact is joined by the 
pleadings, the ALJ, upon motion of any party, stating that the matter is 
ready for hearing, shall set a time for the hearing, as soon as feasible 
thereafter, with due regard for the public interest and the convenience 
and necessity of the State agency and FNS. The hearing shall be held at 
the U.S. Department of Agriculture, Washington, DC. Upon a showing of 
unusual or extraordinary circumstances, the ALJ may order that the 
hearing be held at another location. The ALJ shall file a notice stating 
the time and place of the hearing. If any change in the time of the 
hearing is made, the ALJ shall file a notice of such change, which 
notice shall be served upon the parties, unless it is made during the 
course of an oral hearing and made a part of the transcript or actual 
notice given to the parties.
    (c) Appearances. The parties may appear in person or by attorney of 
record in the appeal or by any other designated representative. Any 
person who appears as attorney or as a party's designated representative 
must conform to the standards of ethical conduct required by 
practitioners before the courts of the United States.
    (d) Exchange of witness and rebuttal witness lists, statements and 
exhibits. (1) Witness and rebuttal witness lists, copies of prior 
statements of proposed witnesses, and copies of proposed hearing 
exhibits, including copies of any written statements or depositions that 
a party intends to offer in lieu of live testimony in accordance with 
Sec. 283.12(a)(7), shall be exchanged at least 15 days in advance of the 
hearing or at such other time as may be set by the ALJ.
    (2) A witness whose name does not appear on the witness list shall 
not be permitted to testify and exhibits which

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were not provided to the opposing party as provided above shall not be 
admitted into evidence at the hearing absent a showing of cause and as 
authorized by the ALJ.
    (e) Deparment of attorney or representative. (1) Whenever an ALJ 
finds that a person acting as attorney or designated representative for 
any party to the appeal is guilty of unethical or contumacious conduct 
in, or in connection with an appeal, the ALJ may order that such person 
be precluded from further acting as attorney or representative in the 
appeal. Review by the Judicial Officer may be taken on any such order, 
but no appeal of the QC claim shall be delayed or suspended pending 
disposition of the debarment review by the Judicial Officer. Provided, 
however, that the ALJ shall suspend the appeal of the QC claim for a 
reasonable time for the purpose of enabling the party to obtain another 
attorney or representative.
    (2) Whenever it is found, after notice and opportunity for hearing, 
that a person who is acting or who has acted as attorney or 
representative for another person in any proceeding before the U.S. 
Department of Agriculture, is unfit to act as such counsel because of 
such unethical or contumacious conduct, such person will be precluded 
from acting as the attorney or representative in any or all proceedings 
before the Department as found to be appropriate.
    (f) Failure to appear. (1) If FNS or the State agency, after being 
duly notified, fails to appear at the hearing without cause, that party 
shall be deemed to have waived the opportunity for an oral hearing and 
to have admitted any facts which may be presented at the hearing. Such 
failure by either party shall also constitute an admission of all the 
material allegations of fact contained in any pleadings submitted by the 
other party. The party who appears shall have the option of whether to 
follow the procedure under Sec. 283.7 or to present evidence, in whole 
or in part, in the form of declarations or by oral testimony before the 
ALJ.
    (2) Failure to appear at a hearing shall not be deemed to be a 
waiver of the right to be served with a copy of the ALJ's initial 
decision, to file a motion for reconsideration pursuant to 
Sec. 283.17(d) or to seek review by the Judicial Officer in accordance 
with Sec. 283.20.
    (g) Order of proceeding. Except as may be decided otherwise by the 
ALJ, FNS shall proceed first at the hearing. FNS has the burden of 
proving, by a preponderance of the evidence, the QC claim against the 
State agency for a QC error rate in excess of the tolerance level. The 
State agency will proceed second and must prove, by a preponderance of 
the evidence, the facts upon which it bases its appeal.
    (h) Evidence. (1) The testimony of witnesses at a hearing shall be 
on oath or affirmation and subject to cross-examination.
    (2) Upon a finding of cause, the ALJ may order that any witness be 
examined separately and apart from all other witnesses except those who 
may be parties to the appeal or whose presence is shown by a party to be 
essential to the presentation of the party's cause.
    (3) After a witness called by either party has testified on direct 
examination, any other party may request and obtain the production of 
any statement, or part thereof, of such witness in the possession of the 
opposing party which relates to the subject matter as to which the 
witness has testified. Such production shall be made according to the 
procedures and subject to the definitions and limitations prescribed in 
the Jencks Act (18 U.S.C. 3500).
    (4) Evidence which is immaterial, irrelevant, or unduly repetitious, 
or which is not of the sort upon which responsible persons are 
accustomed to rely, shall be excluded by order of the ALJ insofar as 
practicable.
    (i) Inclusion in the record. At the oral hearing or as ordered by 
the ALJ, depositions to the extent deemed admissible, written 
interrogatories, written requests for admission and respective responses 
may be offered in evidence by the party at whose instance they were 
taken. If not offered by such party, they may be offered in whole or in 
part by any other party. If only part of a deposition, written 
interrogatory, written request for admission or response thereto is 
offered in evidence by a party, any other party may require

[[Page 966]]

that all of it, which is relevant to the part introduced, be offered, 
and any party may introduce any other parts. Such depositions, written 
interrogatories, written requests for admission and respective responses 
thereto shall be admissible in evidence subject to such objections as to 
relevancy, materiality or competency of the testimony as were noted at 
the time of their taking or are made at the time they are offered in 
evidence.
    (j) Objections. (1) If a party objects to the admission of any 
evidence or to the limitation of the scope of any examination or cross 
examination or to any other ruling by the ALJ, the party shall state 
briefly the grounds of such objection, whereupon an automatic exception 
will follow if the objection is overruled by the ALJ.
    (2) Only objections made before the ALJ may be subsequently relied 
upon on review by the Judicial Officer.
    (k) Exhibits. Four copies of each exhibit shall be filed with the 
ALJ. However, where there are more than two parties in the appeal, an 
additional copy shall be filed for each additional party. A true copy of 
an exhibit may be substituted for the original.
    (l) Official records or documents. An official government record or 
document or entry therein, if admissible for any purpose, shall be 
admissible in evidence without the production of the person who made or 
prepared the same, and shall be prima facie evidence of the relevant 
facts stated therein. Such record or document shall be evidenced by an 
official publication thereof or by a copy certified by a person having 
legal authority to make such certification.
    (m) 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, scientific, or commercial fact of established 
character. Provided, that the parties shall be given adequate 
opportunity to show that such facts are erroneously noticed.
    (n) Offer of proof. Whenever evidence is excluded by the ALJ, the 
party offering such evidence may make an offer of proof, which shall be 
included in the transcript. The offer of proof shall consist of a brief 
statement describing the evidence excluded. If the evidence consists of 
a brief oral statement, it shall be included in the transcript in toto. 
If the evidence consists of a document or other exhibit, it shall be 
marked for identification and inserted in the hearing record. In either 
event, if the Judicial Officer, upon review, determines that the ALJ's 
ruling excluding the evidence was erroneous and prejudicial, the 
evidence shall be considered a part of the transcript and hearing 
record. If the Judicial Officer determines that the ALJ's ruling 
excluding the evidence was erroneous and prejudicial, and that it would 
inappropriate to have such evidence considered a part of the hearing 
record without reopening the hearing, the Judicial Officer may direct 
that the hearing be reopened to permit the taking of such evidence or 
for any other purpose in connection with the excluded evidence.
    (o) Transcript. Hearings shall be recorded and transcribed verbatim. 
The party requesting the hearing shall bear the transcription cost of 
producing the transcript and the duplication cost for one transcript 
provided to the ALJ and to the other parties to the appeal.