[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR283.15]



[Page 965-968]

 

                          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



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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 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



[[Page 967]]



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 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



[[Page 968]]



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.