[Code of Federal Regulations]
[Title 7, Volume 8]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR900.52]

[Page 17-18]
 
                          TITLE 7--AGRICULTURE
 
  CHAPTER IX--AGRICULTURAL MARKETING SERVICE (Marketing Agreements and 
      Orders; Fruits, Vegetables, Nuts), DEPARTMENT OF AGRICULTURE
 
PART 900_GENERAL REGULATIONS--Table of Contents
 
 Subpart_Rules of Practice Governing Proceedings on Petitions To Modify 
                 or To Be Exempted From Marketing Orders
 
Sec.  900.52  Institution of proceeding.

    (a) Filing and service of petition. Any handler desiring to complain 
that any marketing order or any provision of any such order or any 
obligation imposed in connection therewith is not in accordance with 
law, shall file with the hearing clerk, in quadruplicate, a petition in 
writing addressed to the Secretary. Promptly upon receipt of the 
petition, the hearing clerk shall transmit a true copy thereof to the 
Administrator and the General Counsel, respectively.
    (b) Contents of petition. A petition shall contain:
    (1) The correct name, address, and principal place of business of 
the petitioner. If 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; 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 marketing 
order, or the interpretation or application thereof, 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 
marketing 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 marketing order, or the interpretation or application thereof, which 
are complained of, are challenged as not in accordance with law;
    (5) Prayers for the specific relief which the petitioner desires the 
Secretary to grant;
    (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) Motion to dismiss petition--(1) Filing, contents, and responses 
thereto. If the Administrator is of the opinion that the petition, or 
any portion thereof, does not substantially comply, in form or content, 
with the act or with the requirements of paragraph (b) of this section, 
or is not filed in good faith, or is filed for purposes of delay, the 
Administrator may, within thirty

[[Page 18]]

days after the service of the petition, file with the Hearing Clerk a 
motion to dismiss the petition, or any portion thereof, on one or more 
of the grounds stated in this paragraph. Such motion shall specify the 
grounds of objection to the petition and if based, in whole or in part, 
on an allegation of fact not appearing on the face of the petition, 
shall be accompanied by appropriate affidavits or documentary evidence 
substantiating such allegations of fact. The motion may be accompanied 
by a memorandum of law. Upon receipt of such motion, the Hearing Clerk 
shall cause a copy thereof to be served upon the petitioner, together 
with a notice stating that all papers to be submitted in opposition to 
such motion including any memorandum of law, must be filed by the 
petitioner with the hearing clerk not later than 20 days after the 
service of such notice upon the petitioner. Upon the expiration of the 
time specified in such notice, or upon receipt of such papers from the 
petitioner, the hearing clerk shall transmit all papers which have been 
filed in connection with the motion to the Judge for consideration.
    (2) Decision by the Judge. The Judge, after due consideration, shall 
render a decision upon the motion stating the reasons for his action. 
Such decision shall be in the form of an order and shall be filed with 
the hearing clerk who shall cause a copy thereof to be served upon the 
petitioner and a copy thereof to be transmitted to the Administrator. 
Any such order shall be final unless appealed pursuant to Sec.  900.65: 
Provided, That within 20 days following the service upon the petitioner 
of a copy of the order of the Judge dismissing the petition, or any 
portion thereof, on the ground that it does not substantially comply in 
form and content with the act or with paragraph (b) of this section, the 
petitioner shall be permitted to file an amended petition.
    (3) Oral argument. Unless a written application for oral argument is 
filed by a party with the hearing clerk not later than the time fixed 
for filing papers in opposition to the motion, it shall be considered 
that the party does not desire oral argument. The granting of a request 
to make oral argument shall rest in the discretion of the Judge.

[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973; 67 
FR 10829, Mar. 11, 2002]