[Code of Federal Regulations]
[Title 7, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR1.145]

[Page 46-47]
 
                          TITLE 7--AGRICULTURE
 
PART 1_ADMINISTRATIVE REGULATIONS--Table of Contents
 
 Subpart H_Rules of Practice Governing Formal Adjudicatory Proceedings 
           Instituted by the Secretary Under Various Statutes
 
Sec. 1.145  Appeal to Judicial Officer.

    (a) Filing of petition. Within 30 days after receiving service of 
the Judge's decision, if the decision is a written decision, or within 
30 days after issuance of the Judge's decision, if the decision is an 
oral decision, a party who disagrees with the decision, any part of the 
decision, or any ruling by the Judge or who alleges any deprivation of 
rights, may appeal the decision to the Judicial Officer by filing an 
appeal petition with the Hearing Clerk. As provided in Sec. 
1.141(h)(2), objections regarding evidence or a limitation regarding 
examination or cross-examination or other ruling made before the Judge 
may be relied upon in an appeal. Each issue set forth in the appeal 
petition and the arguments regarding each issue shall be separately 
numbered; shall be plainly and concisely stated; and shall contain 
detailed citations to the record, statutes, regulations, or authorities 
being relied upon in support of each argument. A brief may be filed in 
support of the appeal simultaneously with the appeal petition.
    (b) Response to appeal petition. Within 20 days after the service of 
a copy of an appeal petition and any brief in support thereof, filed by 
a party to the proceeding, any other party may file with the Hearing 
Clerk a response in support of or in opposition to the appeal and in 
such response any relevant issue, not presented in the appeal petition, 
may be raised.
    (c) Transmittal of record. Whenever an appeal of a Judge's decision 
is filed and a response thereto has been filed or time for filing a 
response has expired, the Hearing Clerk shall transmit to the Judicial 
Officer the record of the proceeding. Such record shall include: the 
pleadings; motions and requests filed and rulings thereon; the 
transcript or recording of the testimony taken at the hearing, together 
with the exhibits filed in connection therewith; any documents or papers 
filed in connection with a prehearing conference; such proposed findings 
of fact, conclusions, and orders, and briefs in support thereof, as may 
have been filed in connection with the proceeding; the Judge's decision; 
such exceptions, statements of objections and briefs in support thereof 
as may have been filed in the proceeding; and the appeal petition, and 
such briefs in support thereof and responses thereto as may have been 
filed in the proceeding.
    (d) Oral argument. A party bringing an appeal may request, within 
the prescribed time for filing such appeal, an opportunity for oral 
argument before the Judicial Officer. Within the time allowed for filing 
a response, appellee may file a request in writing for opportunity for 
such an oral argument. Failure to make such request in writing, within 
the prescribed time period, shall be deemed a waiver of oral argument. 
The Judicial Officer may grant, refuse, or limit any request for oral 
argument. Oral argument shall not be transcribed

[[Page 47]]

unless so ordered in advance by the Judicial Officer for good cause 
shown upon request of a party or upon the Judicial Officer's own motion.
    (e) Scope of argument. Argument to be heard on appeal, whether oral 
or on brief, shall be limited to the issues raised in the appeal or in 
the response to the appeal, except that if the Judicial Officer 
determines that additional issues should be argued, the parties shall be 
given reasonable notice of such determination, so as to permit 
preparation of adequate arguments on all issues to be argued.
    (f) Notice of argument; postponement. The Hearing Clerk shall advise 
all parties of the time and place at which oral argument will be heard. 
A request for postponement of the argument must be made by motion filed 
a reasonable amount of time in advance of the date fixed for argument.
    (g) Order of argument. The appellant is entitled to open and 
conclude the argument.
    (h) Submission on briefs. By agreement of the parties, an appeal may 
be submitted for decision on the briefs, but the Judicial Officer may 
direct that the appeal be argued orally.
    (i) Decision of the judicial officer on appeal. As soon as 
practicable after the receipt of the record from the Hearing Clerk, or, 
in case oral argument was had, as soon as practicable thereafter, the 
Judicial Officer, upon the basis of and after due consideration of the 
record and any matter of which official notice is taken, shall rule on 
the appeal. If the Judicial Officer decides that no change or 
modification of the Judge's decision is warranted, the Judicial Officer 
may adopt the Judge's decision as the final order in the proceeding, 
preserving any right of the party bringing the appeal to seek judicial 
review of such decision in the proper forum. A final order issued by the 
Judicial Officer shall be filed with the Hearing Clerk. Such order may 
be regarded by the respondent as final for purposes of judicial review 
without filing a petition for rehearing, reargument, or reconsideration 
of the decision of the Judicial Officer.

[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8456, Feb. 14, 1995; 68 FR 
6341, Feb. 7, 2003]