[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: 7CFR900.61]

[Page 22-23]
 
                          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.  900.61  Depositions.

    (a) Procedure in lieu of deposition. Before any party may have 
testimony taken by deposition, said party shall, if practicable, submit 
to the other party an affidavit which shall set forth the facts to which 
the witness would testify, if the deposition should be taken. If, after 
examination of such affidavit, the other party agrees, or (within 10 
days after submission of the affidavit) fails to object, that the 
affidavit may be used in lieu of the deposition, the judge shall admit 
the affidavit in evidence and shall not order the deposition to be 
taken.
    (b) Application for taking deposition. Upon the application of a 
party to the proceeding, the judge may, at any time after the filing of 
the moving paper, order, under the facsimile signature of the Secretary, 
the taking of testimony by deposition. The application shall be in 
writing and shall be filed with the hearing clerk and shall set forth: 
(1) The name and address of the proposed deponent; (2) the name and 
address of the person (referred to hereinafter in this section as the 
judge), qualified under the rules in this part to take depositions, 
before whom the proposed examination is to be made; (3) the proposed 
time and place of the examination, which shall be at least 15 days after 
the date of the mailing of the application; and (4) the reasons why such 
deposition should be taken.
    (c) Judge's order for taking deposition. If, after the examination 
of the application, the judge is of the opinion that the deposition 
should be taken, he shall order its taking. The order shall be filed 
with the hearing clerk and shall be served upon the parties and shall 
state: (1) The time and place of the examination (which shall not be 
less than 10 days after the filing of the order); (2) the name of the 
judge before whom the examination is to be made; (3) the name of the 
deponent. The judge and the time and place need not be the same as those 
suggested in the application.
    (d) Qualifications of judge. The deposition shall be taken before 
the judge, or before a judge authorized by the law of the United States 
or by the law of the place of the examination to administer oaths, or 
before a judge authorized by the Secretary to administer oaths.
    (e) Procedure on examination. (1) The deponent shall be examined 
under oath or affirmation and shall be subject to cross-examination. The 
testimony of the deponent shall be recorded by the judge or by some 
person under his direction and in his presence. In lieu of oral 
examination, parties may transmit written interrogatories to the judge 
prior to the examination and the judge shall propound such 
interrogatories to the deponent.
    (2) The applicant must arrange for the examination of the witness 
either by oral examination or by written interrogatories. If it is found 
by the judge, upon the protest of a party to the proceeding, that such 
party has his residence and his place of business more than 100 miles 
from the place of the examination and that it would constitute an undue 
hardship upon such party to be represented at the examination, the 
applicant will be required to conduct the examination by means of 
interrogatories. When the examination is conducted by means of 
interrogatories, copies of the interrogatories shall be served upon the 
other parties

[[Page 23]]

to the proceeding at least five days prior to the date set for the 
examination, and the other parties shall be afforded an opportunity to 
file with the judge cross-interrogatories at any time prior to the time 
of the examination.
    (f) Certification by judge. The judge shall certify on the 
deposition that the deponent was duly sworn by him and that the 
deposition is a true record of the deponent's testimony. He shall then 
securely seal the deposition, together with two copies thereof, in an 
envelope and mail the same by registered mail to the hearing clerk.
    (g) Use of depositions. A deposition ordered and taken in accord 
with the provisions of this section may be used in a proceeding under 
the act if the judge finds that the evidence is otherwise admissible and 
(1) that the witness is dead; or (2) that the witness is at a distance 
greater than 100 miles from the place of hearing, unless it appears that 
the absence of the witness was procured by the party offering the 
deposition; or (3) that the witness is unable to attend or testify 
because of age, sickness, infirmity, or imprisonment; or (4) that the 
party offering the deposition has endeavored to procure the attendance 
of the witness by subpena but has been unable to do so; or (5) that such 
exceptional circumstances exist as to make it desirable, in the 
interests of justice, to allow the deposition to be used. If a 
deposition has been taken, and the party upon whose application it was 
taken refuses to offer it in evidence, the other party may offer the 
deposition, or any part thereof, in evidence.