good reason why an answer was not filed as required.

(b) Brief or memorandum of law. If such a petitioner wishes to file a brief or memorandum of law in support of such a petition, it must be filed with such petition.

(c) Procedure. A presiding officer shall be assigned upon the filing of any such petition, or upon notice to the hearing clerk (which may be written or oral, or by telephone) that any party intends to file any such petition. The party filing any such petition shall be referred to as the complainant or respondent, depending on the original designation of such party in the proceeding; such party shall have the ! burden of establishing that such petition should be granted. If a petition to reopen is timely filed, the order shall not be issued pending decision whether to grant or deny the petition. If a petition to rehear or reargue or reconsider, or to set aside a default order, is timely filed, operation of the order shall be stayed automatically pending decision whether to grant or deny it; if such a petition is not timely filed, operation of the order shall not be stayed unless the Judicial Officer shaïl determine otherwise.

et

(d) Service; answer. No such petition shall be granted unless it, with the brief or memorandum of law in support of it, if any, is first served on each party to the proceeding other than the one filing it. Each such other party, within 20 days after such service on such party, may file an answer to such petition. If any such party wishes to file a brief or memorandum of law in support of such an answer, it must be filed with such answer. Any #such answer, with the brief or memo

randum of law in support of it, if any, shall be served on each party to the proceeding other than the one filing #it. Any such petition may be denied without such service.

(e) Submission for decision; service of order. The presiding officer shall prepare a recommendation with respect to the petition, and submit it to the judicial officer for decision. Such a recommendation shall be prepared in the form of a final order for signature by the judicial officer. It shall not be served on the parties unless and until

it is signed by the judicial officer. The order of the judicial officer shall be served on the parties.

(f) Practice upon decision. If the judicial officer decides to reopen a hearing, or to rehear or permit reargument of a proceeding, or to set aside a default order, a presiding officer shall be assigned and the rules of practice shall be followed thereafter as applicable.

§ 202.118 Rule 18: Presiding officer.

(a) Powers. Subject to review as provided elsewhere in these rules, the presiding officer assigned to any proceeding shall have power to:

(1) Set the time and place of a prehearing conference and an oral hearing, adjourn the oral hearing from time to time, and change the time and place of oral hearing;

(2) Administer oaths and affirmations;

(3) Issue subpenas requiring the attendance and testimony of witnesses and the production of documentary evidence at an oral hearing;

(4) Summon and examine witnesses and receive evidence at an oral hearing;

(5) Take or order the taking of depositions;

(6) Admit or exclude evidence;

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

(8) Do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the proceeding, including the exclusion of contumacious counsel or other per

sons.

(b) Motions and requests. The presiding officer is authorized to rule on all motions and requests filed in the proceeding prior to submission of the presiding officer's report to the judicial officer, Provided, That a presiding officer is not authorized to dismiss a complaint. Submission or certification of any question to the judicial officer, prior to submission of the report, shall be in the discretion of the presiding officer.

(c) Reassignment. For any good reason, including absence, illness, resignation, death, or inability to act, of the attorney assigned to act as a presiding officer in any proceeding under

these rules, the powers and duties of such attorney in the proceeding may be assigned to any other attorney who is employed in the Office of the General Counsel of the Department, without abatement of the proceeding.

(d) Disqualification. No person shall be assigned to act as a presiding officer in any proceeding who (1) has any material 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 any conflict of interest which might impair such person's objectivity in the proceeding. A person assigned to act as a presiding officer shall ask to be replaced, in any proceeding in which such person believes that reason exists for disqualification of such person.

(e) Procedure on petition for disqualification. Any party may file a petition for disqualification of the presiding officer, which shall set forth with particularity the grounds of alleged disqualification. Any such petition shall be filed with the hearing clerk, who shall immediately transmit it to the judicial officer and inform the presiding officer. The record of the proceeding also shall immediately be transmitted to the judicial officer. After such investigation or hearing as the judicial officer deems necessary, the judicial officer shall either deny the petition or direct that another presiding officer be assigned to the proceeding. The petition, and notice of the order of the judicial officer, shall be made a part of the record and served on the parties; if any record is made on such a petition, it shall be a part of the record of the proceeding.

8 202.119 Rule 19: Fees of witnesses.

Witnesses subpenaed before the presiding officer, and witnesses whose depositions are taken, shall be entitled to the same fees and mileage as are paid for like services in the courts of the United States. Fees and mileage shall be paid by the party at whose instance the witness appears or the deposition is taken.

§ 202.120 Rule 20: 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 or scientific fact of established character: Provided, That the parties shall be given notice of matters so noticed, and shall be given adequate opportunity to show that such facts are erroneously noticed.

§ 202.121 Rule 21: Intervention.

At any time after docketing of a proceeding and before commencement of a hearing, oral or written, therein, the presiding officer may, upon petition, and for good cause shown, permit any person to intervene therein. The petition shall state with preciseness and particularity: (a) The petitioner's relationship to the matters involved in the proceeding; (b) the nature of the material the petitioner intends to present in evidence; (c) the nature of the argument the petitioner intends to make; and (d) the reasons why the petitioner should be allowed to intervene. Any such petition, and notice of the order thereon, shall be served on the parties and made a part of the record in the proceeding.

§ 202.122 Rule 22: Ex parte communica tions.

(a) At no stage of the proceeding between its docketing and the issuance of the final decision shall the presiding officer or judicial officer discuss ex parte the merits of the proceeding with any party, or attorney or representative of a party: Provided, That procedural matters shall not be included within this limitation; and Provided further, That the presiding officer or judicial officer may discuss the merits of the case with such a person if all parties to the proceeding or their attorneys or representatives have been served with notice and an opportunity to participate. A memorandum of any such discussion shall be included in the record.

(b) No party, or attorney or representative of a party, or other person not an employee of the Department, shall make or knowingly cause to be made to the presiding officer or judicial officer an ex parte communication relevant to the merits of the proceeding.

§ 203.2 Statement of general policy with respect to the giving by meat packers of meat and other gifts to Government employees.

(a) In recent months, the Department has received information, confirmed by investigation, that a number of packers subject to the Packers and Stockyards Act have made gifts of meat to Government employees responsible for conducting service activities of the Department. Such gifts have the implications of fraud, even if not made specifically for the purpose of influencing these employees in the performance of their duties.

(b) It is a violation of the Meat Inspection Act for any person, firm, or corporation to give to any employee of the Department performing duties under such act anything of value with intent to influence such employee in the discharge of his duties, or for such employee to receive from any person, firm, or corporation engaged in interstate or foreign commerce any gift given with any intent or purpose whatsoever (21 U.S.C. 90). Under the Federal meat grading regulations, the giving or attempting to give by a packer of anything of value to any employee of the Department authorized to perform any function under such regulations is a basis for the withdrawal of Federal meat grading service (7 CFR 53.13). The receiving by an employee of the Department of any gift from any person for whom grading, inspection, or other service work is performed is specifically prohibited by Departmental regulations.

(c) Upon the basis of paragraphs (a) and (b) of this section, it is the view of the Department that it is an unfair and deceptive practice in violation of section 202(a) of the Packers and Stockyards Act (7 U.S.C. 192(a)) for any person subject to the provisions of Title II of said Act to give or offer to give meat, money, or anything of value to any Government employee who performs inspection, grading, reporting, or regulatory duties directly relating to the purchase or sale of livestock or the preparation or distribution of meats, meat food products, livestock products in unmanufactured form, poultry or poultry products.

(Sec. 407, 42 Stat. 169; 7 U.S.C. 228; 9 CFR 201.3)

[26 FR 710, Jan. 25, 1961; 29 FR 4081, Mar. 28, 1964]

§ 203.3 [Reserved]

§ 203.4 Statement with respect to the disposition of certain records made or kept by packers.

(a) Section 401 of the Packers and Stockyards Act (7 U.S.C. 221) provides, in part, that every packer shall keep such accounts, records, and memoranda as fully and correctly disclose all transactions involved in his business, including the true ownership of such business by stockholding or otherwise. This section contains no provision as to the period of time such records are to be retained. Apparently, it is contemplated that records which are made or kept by a packer to disclose transactions involved in his business should be retained for such periods of time as may be necessary to permit the Packers and Stockyards Administration a reasonable opportunity to examine such records in connection with its administration of the Act.

(b) In the course of conducting investigations under the Act, the Packers and Stockyards Division has found that the practice varies among packers with respect to the retention period for records made or kept to disclose transactions involved in their business; some packers retain such records for extended periods of time, while other packers dispose of their records after much shorter periods of time. For this reason the Packers and Stockyards

Administration has formulated and adopted for the guidance of all packers the following statement concerning its views as to periods of time after which certain specified records relating to the purchase or sale of livestock, meat, meat food products, livestock products in unmanufactured form, poultry or poultry products may be disposed of.

(c) It is the view of the Packers and Stockyards Administration that set forth in paragraphs (c) (1), (2), and (3) of this section, are reasonable periods of time after which packers subject to the provisions of the Packers and Stockyards Act, may dispose of the records specified in said subparagraphs. The Packers and Stockyards Administration recognizes that many packers do not find it necessary to make or keep all such records in order to comply with the provisions of section 401 of the Act. On the other hand, the Packers and Stockyards Administration makes no attempt to cover in this statement many other business records which packers may maintain. Questions pertaining to the disposition of records not referred to herein, and requests for special dispositions of records named herein, may be addressed to the Administrator, Packers and Stockyards Administration, United States Department of Agriculture, Washington 25, D.C. Micro-¦ film copies of records may be substi- | tuted for the actual records and duplicate copies of records may be disposed of without notification to the Adminis trator of the Packers and Stockyards Administration. The periods specified in paragraphs (c) (1), (2), and (3) of this section should be extended if necessary to comply with any Federal, State, or local law, or if the packer is notified in writing by the Administrator of the Packers and Stockyards Administration that specified records should be retained pending the completion of any investigation or proceeding under the Act.

(1) The following records made or kept by a packer may be disposed of after one year: Cutting tests; departmental transfers; buyers' estimates; drive sheets; scale tickets received from others: inventory and products in storage; receiving records; trial bal

ances; departmental overhead or expense recapitulations; bank statements, reconciliations and deposit slips; production or sale tonnage reports (including recapitulations and summaries of routes, branches, plants, etc.); buying or selling pricing instructions and price lists; correspondence, telegrams, teletype communications and memoranda relating to matters other than contracts, agreements, purchase or sales invoices, or claims or credit memoranda.

(2) The following records made or kept by a packer may be disposed of after two years: Kill sheets, lot sheets or carcass graded cost sheets; carcass hot weight sheets and carcass test cost sheets by lots for purchases of livestock on a grade and yield or grade or yield basis; contracts and agreements; purchase invoices; sales invoices; freight bills, bills of lading or shipping tickets; scale tickets and weight records issued or prepared by the packer; cash sales receipts and memoranda; claims and credit memoranda; canceled checks and drafts; check stubs or vouchers; correspondence, telegrams, teletype communications, and memoranda relating to contracts, agreements, purchase or sales invoices, or claims or credit memoranda.

(3) The following records made or kept by a packer may be disposed of after three years: Departmental statements and summaries; balance sheets and profit and loss or operating statements.

If it is found that a packer subject to the Act has disposed of the records referred to above prior to the periods specified herein, consideration will be given by the Agricultural Marketing Service to the issuance of a complaint charging the packer with violation of section 401 of the Act. In the formal administrative proceeding initiated by any such complaint, the Judicial Officer of the Department will determine, after full hearing, whether the packer has kept accounts, records, and memoranda which fully and correctly disclose all transactions involved in his business and will issue an appropriate order.

The periods specified herein after which records may be disposed of have been approved by the Bureau of the

33-024 0-84--7

Budget in accordance with the Federal Reports Act of 1942 (56 Stat. 1078; 5 U.S.C. 139 et seq.).

OMB CONTROL No. 0581-0024. (47 FR 746, Jan. 7, 1982)

(Secs. 401, 407, 42 Stat. 169; 7 U.S.C. 221, 228; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[27 FR 11757, Nov. 29, 1962, as amended at 32 FR 7700, May 26, 1967; 47 FR 746, Jan. 7, 1982]

8 203.5 Statement with respect to market agencies paying the expenses of livestock buyers.

It has become a practice in certain areas of the country for market agencies, engaged in the business of selling consigned livestock on a commission basis, to pay certain of the business or personal expenses incurred by buyers attending livestock sales conducted by such market agencies, such as, expenses for meals, lodging, travel, entertainment and long distance telephone calls. Investigation by the Packers and Stockyards Administration, discloses that this practice tends to become a method of competition between similarly engaged market agencies and results in undue and unreasonable cost burdens on such market agencies and the livestock producers who sell their livestock through such market agencies.

It is the view of the Packers and Stockyards Administration that it constitutes violations of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), for any market agency engaged in the business of selling consigned livestock on a commission basis, to pay, directly or indirectly, any personal or business expenses of livestock buyers attending sales conducted by such market agency. In the future, if any market agency engages in such practice, consideration will be given by the Packers and Stockyards Administration to the issuance of a complaint charging the market agency with violation of the Act. In the formal administrative proceeding initiated by any such complaint, the Judicial Officer of the Department will determine, after full hearing, whether the market agency has violated the Act and should be or