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be reimbursed at the average rate paid to employees engaged in supervision activities plus average related costs. The identity of the seed shall be maintained at all times to the satisfaction of the persons supervising the cleaning or processing. The refuse from such cleaning shall be placed in containers and securely sealed and identified. If upon analysis, test, or examination of a representative sample of the cleaned seed, it is found that the requirements of the act have been met, that portion of the seed may be admitted.

[5 F.R. 40, Jan. 4, 1940, as amended at 24 F.R. 2270, Mar. 24, 1959, 26 F.R. 10150, Oct. 31, 1961]

§ 201.226 Destruction of refuse.

The refuse from such cleaning shall be destroyed under the supervision of an employee or authorized agent of the U.S. Department of Agriculture. The destruction of refuse shall be at the expense of the owner or consignee who shall reimburse the Government for all expenses incurred in connection with such supervision, including travel, per diem or subsistence, and salaries of officers or employees of the United States. Travel and per diem or subsistence expenses shall be reimbursed at the rate allowed for employees of the United States in accordance with Standardized Government Travel Regulations. Salary shall be reimbursed at the average rate paid to employees engaged in supervision activities plus average related costs.

[5 F.R. 40, Jan. 4, 1940, as amended at 24 FR. 2270, Mar. 24, 1959, 26 FR. 10150, Oct. 31, 1961]

§ 201.227 Report to collector of cus

toms.

A report of the cleaning and processing and the destruction of the refuse, stating the amount by weight in each instance, shall be submitted to the collector of customs at the port of entry of such seed by the Agricultural Marketing Service.

[5 FR. 40, Jan. 4, 1940]

MISBRANDED SEED

§ 201.228 Correction of labeling.

See being imported or offered for importation, the labeling of which is false or misleading in any respect, shall be refused admission into the commerce of the United States until such labeling has been corrected to meet the require

ments of the act and the rules and regulations in this part. Any correction of the labeling upon the containers shall be done under the supervision of the U.S. Department of Agriculture at the cxpense of the owner or consignee, who shall reimburse the Government for all expenses incurred in connection with such supervision, including travel, per diem or subsistence, and salaries of offcers or employees of the United States. Travel and per diem or subsistence expenses shall be reimbursed at the rate allowed for employees of the United States in accordance with Standardized Government Travel Regulations. Salary shall be reimbursed at the average rate paid to employees engaged in supervision activities plus average related costs. When a representative of the Department of Agriculture finds upon examination of seed that it is incorrectly described on the invoice presented at the time of entry, a finding of "false labeling" under the Federal Seed Act of August 9, 1939, will be made. The seed will be refused admission until after the importer has given satisfactory assurance to the Department of Agriculture that he has taken appropriate steps to file with the collector of customs at the port of entry a corrected customs invoice describing the seed in terms which will not constitute "false labeling." Upon receipt of such assurance, the Department of Agriculture will notify the collector of the nature of the "false labeling" and that the seed may be granted admission under the Federal Seed Act. The importer will be liable for the payment of liquidated damages under the bond filed in connection with the entry unless a corrected customs invoice is produced within the time provided for by law or regulations.

[5 F.R. 40, Jan. 4, 1940, as amended at 10 FR. 9949, Aug. 11, 1945, 24 F.R. 2270, Mar. 24, 1959; 26 F.R. 10150, Oct. 31, 1961]

§ 201.228a Declaration of labeling.

For each importation of seed the importer shall submit with the entry papers a copy of the commercial invoice showing thereon or on a statement attached thereto, for each lot, under the heading "Declaration of Labeling," any information on or attached to the containers of the seed regarding the kind or kind and variety; distinguishing marks; origin; percentages of pure seed, weed seed, inert matter, other crop seed, pure live seed, germination, and hard seeds; the date of

test; the name and rate of occurrence of noxious-weed seeds; and the name of any substance or process used in treating the seed: Provided, That a declaration of labeling shall not be required for any kind of seed enumerated in § 201.222 that is imported for other than seeding purposes.

[28 F.R. 6871, July 4, 1963]

MIXING SEED

§ 201.229 Prohibition against and exception.

Mixing any seed or screenings with a lot or shipment of seed or screenings offered for entry which has been found to be in violation of the act or the regulations in this part is prohibited, except that in cases where it shall appear to the satisfaction of the Administrator of the Agricultural Marketing Service that two or more such lots or shipments of seed or screenings offered for entry are of substantially the same quality and origin, they may be mixed for the purpose of recleaning upon a written permit from the Administrator of the Agricultural Marketing Service.

[5 FR. 40, Jan. 4, 1949]

REJECTED SEED OR SCREENINGS

§ 201.230

employees of the United States. Travel and per diem or subsistence expenses shall be reimbursed at the rate allowed for employees of the United States in accordance with Standardized Government Travel Regulations. Salary shall be reimbursed at the average rate paid to employees engaged in supervision activities plus average related costs. The United States Department of Agriculture shall make a report of such destruction giving the amount by weight to the collector of customs at the port of entry of such seed or screenings.

[10 F.R. 9949, Aug. 11, 1945, as amended at 20 F.R. 7856, Oct. 19, 1955, 24 F.R. 2270, Mar. 24, 1959, 26 F.R. 10150, Oct. 31, 1961]

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Exportation or destruction.

(a) Seed or screenings refused admission into the commerce of the United States shall be exported under customs supervision by the owner or consignee within 12 months of the date of notice of such refusal or at the expiration of such 12-month period the rejected seed or screenings shall be destroyed under the supervision of an employee or authorized agent of the United States Department of Agriculture in such manner as may be determined by the United States Department of Agriculture.

(b) When seed or screenings which have been refused admission into the commerce of the United States are exported the collector of customs shall notify the office of the United States Department of Agriculture that issued the notice of rejection and shall also submit to said office a sample drawn from the seed at the time of exportation.

(c) The destruction of seed or screenings refused admission shall be at the expense of the owner or consignee who shall reimburse the Government for all expenses incurred in connection with such supervision, including travel, per diem or subsistence, and salaries of officers and

202.18

202.19

202.20

202.21

202.22

202.23

202.24

202.25

202.26 202.27

202.28

202.29

202.40

202.41

202.42

Examiners.

Prehearing conferences.

Motions and requests.

Procedure upon failure to request oral hearing or waiver of oral hearing.

Procedure upon admission of facts. Procedure upon request for an oral hearing.

Depositions.

Subpenas.

Fees of witnesses.

Argument before the Secretary.
Ex parte discussion.

Petitions for reopening hearing; for rehearing or reargument of proceeding; or for reconsiderations of order.

Filing documents.

Service.

Computation of time.

Extension of time.

Subpart C-Rules Applicable to Other

Proceedings

Proceedings prior to reporting for criminal prosecution.

Notice and hearing prior to promulgation of rules and regulations.

Publication of judgments, settlements, and orders.

Sec. 202.43

202.44

Proceedings under section 302 (a) to show cause why seed ог screenings should be admitted into the United States. Proceedings under section 305(b) to determine whether foreign alfalfa or red clover seed is not adapted for general agricultural use in the United States. AUTHORITY: The provisions of this Part 202 issued under secs. 302, 305, 402, 408, 409, 413, 414, 53 Stat. 1275, as amended; 7 U.S.C. 1582, 1585, 1592, 1598, 1599, 1603, 1604.

SOURCE: The provisions of this Part 202 appear at 36 F.R. 1314, Jan. 27, 1971, unless otherwise noted.

NOTE: Nomenclature changes in Part 202 appear at 37 F.R. 8059, Apr. 25, 1972.

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For the purposes of this part, the following terms shall be construed, respectively, to mean:

(a) The term "Act" means the Federal Seed Act, approved August 9, 1939 (53 Stat. 1275, 7 U.S.C. 1551 et seq.) and any legislation amendatory thereof.

(b) "Complaint" means any formal complaint and notice of hearing or other document by virtue of which a proceeding under the Act is instituted.

(c) "Complainant" means the party upon whose complaint the proceeding is instituted.

(d) "Decision and Order" includes the Secretary's findings, conclusions, order, and rulings on motions, exceptions, statements of objections, and proposed findings, conclusions and orders submitted by the parties not theretofore ruled upon.

(e) "Director" means the Director of the Grain Division, Agricultural Marketing Service, U.S. Department of Agriculture, or any officer or employee of the Department to whom authority is delegated to act in his stead.

(f) "Administrative Law Judge" means an Administrative Law Judge in the Office of Administrative Law Judge, U.S. Department of Agriculture.

(g) "Administrative Law Judge Recommended Decision" means the Administrative Law Judge's report to the Secretary consisting of the proposed: (1) Findings of facts and conclusions with

respect to all material issues of fact, law or discretion, as well as the reasons or basis for conclusions and (2) order.

(h) The term "hearing" means that part of a proceeding which involves the submission of evidence and means either an oral or written hearing.

(i) "Hearing Clerk" means the Hearing Clerk, U.S. Department of Agriculture, Washington, D.C. 20250.

(j) The term "person" includes any individual, partnership, corporation, company, society, association, receiver, or trustee.

(k) The term "regulations" means the regulations promulgated pursuant to the Act (7 CFR Part 201).

(1) "Respondent" means the party proceeded against.

(m) "Secretary" means the Secretary of Agriculture of the United States, or any officer or employee of the U.S. Department of Agriculture to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead, including the Judicial Officer.

§ 202.3 Institution of proceedings.

Any person having information of any violation of the Act or of any of the regulations promulgated thereunder may file with the Director an application requesting the institution of such proceedings as may be authorized under the Act. Such application shall be in writing, signed by or on behalf of the applicant, and shall contain a short and simple statement of the facts constituting the alleged violation and the name and address of the applicant and the party complained of. If, after investigation of the matters complained of in the application or after investigation made on his own motion, the Director has reason to believe that any person has violated or is violating any of the provisions of the Act or the regulations made and promulgated thereunder, he may institute such proceedings as may be authorized by the Act.

§ 202.4 Status of applicant.

The person filing an application shall not be a party to any proceeding which may be instituted under the Act, unless he be permitted by the Secretary or by the Administrative Law Judge to intervene therein. The Director shall not be required to divulge the name of the applicant and such person will have no legal status in the proceeding which may be instituted, except where allowed to inter

vene or as such person may be called as a witness. At any time after the institution of the proceeding, and before it has been submitted to the Secretary for final consideration, the Secretary or the Administrator, may upon petition in writing and upon good cause shown, permit any person to intervene.

Subpart B-Rules Applicable to Cease and Desist Proceedings

§ 202.10 Institution of proceedings; docket number.

(a) A cease and desist proceeding under section 409 of the Act (7 U.S.C. 1599) is instituted upon the issuance by the Director of a complaint and the filing of such document with the Hearing Clerk.

(b) Each such proceeding, immediately following its institution, shall be assigned a docket number by the Hearing Clerk and thereafter the proceeding shall be referred to by such number. § 202.11

Complaint.

(a) Filing and service. If the Director has reason to believe that any person has violated or is violating any of the provisions of the Act or the regulations issued or promulgated thereunder, a complaint may be filed with the Hearing Clerk, a copy of which shall be served upon each respondent as provided in § 202.27.

(b) Contents. The complaint shall set forth briefly the nature of the violation or violations, including allegations of fact which constitute a basis for the proceeding, and designate a time and place for a hearing in the matter which shall be at least 30 days after the date of the service of the complaint upon the respondent.

(c) Amendments. At any time prior to the close of the hearing, the complaint may be amended; but, in case of an amendment adding new provisions, the hearing shall, on the request of the respondent, be adjourned for a period not exceeding 15 days.

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of the complaint, unless the respondent is without knowledge, in which case the answer shall so state;

(2) State that the respondent admits all of the facts alleged in the complaint;

or

(3) State that the respondent admits the jurisdictional allegations of the complaint and neither admits nor denies the remaining allegations and consents to the issuance of a specified order without further procedure. The answer may, in addition, request an oral hearing or may contain an express waiver of hearing.

(c) Failure to file. Failure to file an answer to, or plead specifically to, any allegation of the complaint, except as provided in § 202.12(b) (3), shall constitute an admission of such allegation. § 202.13 Consent orders.

At any time after the institution of a proceeding, the respondent may file an answer or amended answer consenting to an order as set forth in § 202.12(b) (3). Within 15 days after service of such an answer, the complainant shall file its recommendation. If the complainant recommends that the order consented to by respondent be issued, the Secretary may, in his discretion, enter such order which shall have the same force and effect as other orders issued hereunder and shall be served upon the parties in the manner provided in § 202.27.

§ 202.14 Examiners.

(a) Assignment. No examiner shall serve in any proceeding if he: (1) Has any pecuniary interest in any matter or business involved in the proceeding; (2) is related within the third degree by blood or marriage to any party to the proceeding; or (3) has participated in the investigation preceding the institution of the proceeding or in the determination that it should be instituted or in the preparation of the complaint or in the development of the evidence to be introduced therein.

(b) Disqualification of Administrative Law Judge. (1) Any party may, by motion made to the Administrative Law Judge, request that the Administrative Law Judge disqualify himself and withdraw from the proceeding. The Administrative Law Judge may then either ruleupon or certify the motion to the Secretary, but not both.

(2) An Administrative Law Judge shall withdraw from any proceeding in which he deems himself disqualified for any reason.

(c) Conduct. The Administrative Law Judge shall conduct the proceeding in a fair and impartial manner, and save to the extent required for the disposition of ex parte matters as authorized by law, he shall not consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate.

(d) Powers. Subject to review by the Secretary as provided elsewhere in this part, the Administrative Law Judge, in any proceeding assigned to him, shall have power to:

(1) Rule upon motions and requests; (2) Set the time and place of hearing, adjourn the hearing from time to time, and change the time and place of hearing;

(3) Administer oaths and affirmations and take affidavits;

(4) Issue subpoena requiring the attendance and testimony of witnesses and the production of books, contracts, papers, and other documentary evidence;

(5) Summon and examine witnesses and receive evidence;

(6) Take or order the taking of depositions;

(7) Admit or exclude evidence;

(8) Hear oral argument on facts or law; and

(9) Do all acts and take all measures necessary for the maintenance of order at the hearing and for the efficient, fair and impartial conduct of the proceeding.

(e) Who may act in the absence of the Administrative Law Judge. In case of the absence of the Administrative Law Judge or his inability to act: (1) the powers and duties to be performed by him under this part in connection with a proceeding assigned to him may, without abatement of the proceeding unless otherwise directed by the Secretary, be assigned to any other Administrative Law Judge; and (2) the Chief Administrative Law Judge or the Acting Chief Administrative Law Judge may act on ancillary matters, such as requests for extensions of time and requests for continuances without the case being assigned to another Administrative Law Judge. § 202.15 Prehearing conferences.

In any proceeding in which it appears that such procedure will expedite the proceeding, the Administrative Law Judge may request the parties or their counsel to appear at a conference before him to consider: (a) the simplification of

issues; (b) the necessity or desirability of amendments to pleadings; (c) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (d) the limitation of the number of experts or other witnesses; and (e) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the Administrative Law Judge shall prepare and file for the record a written summary of the action taken at the conference, which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the Administrative Law Judge may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in this section. The Administrative Law Judge shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the Administrative Law Judge shall submit a written summary for the record if any action is taken. § 202.16 Motions and requests.

(a) General. All motions and requests shall be filed with the Hearing Clerk, unless made during the course of an oral hearing, in which case they may be stated orally and made a part of the transcript. The Administrative Law Judge is authorized to rule upon all motions and requests filed or made prior to the filing of his report with the Hearing Clerk as hereinafter provided. The Secretary will rule upon all motions and requests filed after that time.

(b) Motions entertained. Any motion will be entertained except a motion to dismiss a complaint on the pleadings. All motions and requests concerning the sufficiency of the complaint must be made within the time allowed for filing an

answer.

(c) Contents. All written motions and requests shall state the particular order, ruling, or action desired and the grounds therefor.

(d) Answers to motions and requests. Within 15 days after service of any written motion or request, or within any longer period fixed by the Secretary or Administrative Law Judge, the opposing

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