[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2006 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          7


          Parts 1 to 26

                         Revised as of January 1, 2006


          Agriculture
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2006
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Printing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Printing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P R I N T I N G O F F I C E

          ------------------------------------------------------------------

          U.S. Superintendent of Documents  Washington, DC 
              20402-0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 7:
          Subtitle A--Office of the Secretary of Agriculture         3
  Finding Aids:
      Material Approved for Incorporation by Reference........     529
      Table of CFR Titles and Chapters........................     531
      Alphabetical List of Agencies Appearing in the CFR......     549
      List of CFR Sections Affected...........................     559

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 7 CFR 1.1 refers to 
                       title 7, part 1, section 
                       1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, January 1, 2006), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of textual material 
appearing in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
write to the Superintendent of Documents, Attn: New Orders, P.O. Box 
371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.gpoaccess.gov/nara (``GPO Access''). For more information, 
contact Electronic Information Dissemination Services, U.S. Government 
Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-
mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

January 1, 2006.

[[Page ix]]



                               THIS TITLE

    Title 7--Agriculture is composed of fifteen volumes. The parts in 
these volumes are arranged in the following order: parts 1-26, 27-52, 
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of January 1, 2006.

    The Food and Nutrition Service current regulations in the volume 
containing parts 210-299, include the Child Nutrition Programs and the 
Food Stamp Program. The regulations of the Federal Crop Insurance 
Corporation are found in the volume containing parts 400-699.

    All marketing agreements and orders for fruits, vegetables and nuts 
appear in the one volume containing parts 900-999. All marketing 
agreements and orders for milk appear in the volume containing parts 
1000-1199.

    For this volume, Elmer Barksdale was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



                          TITLE 7--AGRICULTURE




                   (This book contains parts 1 to 26)

  --------------------------------------------------------------------
                                                                    Part

SUBTITLE A--Office of the Secretary of Agriculture..........           1

[[Page 3]]

           Subtitle A--Office of the Secretary of Agriculture

  --------------------------------------------------------------------

Part                                                                Page
1               Administrative regulations..................           5
1a              Law enforcement authorities.................         118
1b              National Environmental Policy Act...........         119
1c              Protection of human subjects................         121
2               Delegations of authority by the Secretary of 
                    Agriculture and general officers of the 
                    Department..............................         132
3               Debt management.............................         279
4               [Reserved]
5               Determination of parity prices..............         300
6               Import quotas and fees......................         305
7               Selection and functions of Agricultural 
                    Stabilization and Conservation State, 
                    county and community committees.........         324
8               4-H Club name and emblem....................         337
9-10            [Reserved]
11              National Appeals Division...................         340
12              Highly erodible land and wetland 
                    conservation............................         351
13              [Reserved]
14              Determining the primary purpose of certain 
                    payments for Federal tax purposes.......         374
15              Nondiscrimination...........................         377
15a             Education programs or activities receiving 
                    or benefitting from Federal financial 
                    assistance..............................         403
15b             Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............         419
15d             Nondiscrimination in programs or activities 
                    conducted by the United States 
                    Department of Agriculture...............         442
15e             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the United 
                    States Department of Agriculture........         443
15f             Adjudications under section 741.............         449

[[Page 4]]

16              Equal opportunity for religious 
                    organizations...........................         458
17              Sales of agricultural commodities made 
                    available under Title 1 of the 
                    Agricultural Trade Development and 
                    Assistance Act of 1954, as amended......         460
18              Equal employment opportunity in the State 
                    Cooperative Extension Services..........         477
19              [Reserved]
20              Export sales reporting requirements.........         479
21              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         487
22              Rural development coordination..............         487
23              State and regional annual plans of work.....         492
24              Board of Contract Appeals, Department of 
                    Agriculture.............................         497
25              Rural empowerment zones and enterprise 
                    communities.............................         508
26              [Reserved]

[[Page 5]]



PART 1_ADMINISTRATIVE REGULATIONS--Table of Contents




                       Subpart A_Official Records

Sec.
1.1 Purpose and scope.
1.2 Policy.
1.3 Agency implementing regulations.
1.4 Public access to certain materials.
1.5 Requests for records.
1.6 Aggregating requests.
1.7 Agency response to requests for records.
1.8 Multitrack processing.
1.9 Expedited processing.
1.10 Search services.
1.11 Review services.
1.12 Handling information from a private business.
1.13 Date of receipt of requests or appeals.
1.14 Appeals.
1.15 General provisions respecting release of records.
1.16 Extension of administrative deadlines.
1.17 Failure to meet administrative deadlines.
1.18 Fee schedule.
1.19 Exemptions and discretionary release.
1.20 Annual report.
1.21 Compilation of new records.
1.22 Authentication.
1.23 Records in formal adjudication proceedings.
1.24 Preservation of records.
1.25 Implementing regulations for the Office of the Secretary and the 
          Office of Communications.

Appendix A to Subpart A--Fee Schedule

                   Subpart B_Departmental Proceedings

1.26 Representation before the Department of Agriculture.
1.27 Rulemaking and other notice procedures.
1.28 Petitions.
1.29 Subpoenas relating to investigations under statutes administered by 
          the Secretary of Agriculture.

                     Subpart C_Judicial Proceedings

1.41 Service of process.

                            Subpart D_Claims

1.51 Claims based on negligence, wrongful act or omission.

          Subpart E_Cooperative Production of Television Films

1.71 Purpose.
1.72 Policy.
1.73 Responsibility.
1.74 Basis for special working relationships.
1.75 General stipulations.
1.76 Department cooperation.
1.77 Assignment of priorities.
1.78 Development of special working relationships.
1.79 Credits.

                    Subpart G_Privacy Act Regulations

1.110 Purpose and scope.
1.111 Definitions.
1.112 Procedures for requests pertaining to individual records in a 
          record system.
1.113 Times, places, and requirements for identification of individuals 
          making requests.
1.114 Disclosure of requested information to individuals.
1.115 Special procedures: Medical records.
1.116 Request for correction or amendment to record.
1.117 Agency review of request for correction or amendment of record.
1.118 Appeal of initial adverse agency determination on correction or 
          amendment.
1.119 Disclosure of record to person other than the individual to whom 
          it pertains.
1.120 Fees.
1.121 Penalties.
1.122 General exemptions.
1.123 Specific exemptions.

Appendix A to Subpart G--Internal Directives

 Subpart H_Rules of Practice Governing Formal Adjudicatory Proceedings 
           Instituted by the Secretary Under Various Statutes

1.130 Meaning of words.
1.131 Scope and applicability of this subpart.
1.132 Definitions.
1.133 Institution of proceedings.
1.134 Docket number.
1.135 Contents of complaint or petition for review.
1.136 Answer.
1.137 Amendment of complaint, petition for review, or answer; joinder of 
          related matters.
1.138 Consent decision.
1.139 Procedure upon failure to file an answer or admission of facts.
1.140 Conferences and procedure.
1.141 Procedure for hearing.
1.142 Post-hearing procedure.
1.143 Motions and requests.
1.144 Judges.
1.145 Appeal to Judicial Officer.
1.146 Petitions for reopening hearing; for rehearing or reargument of 
          proceeding; or for reconsideration of the decision of the 
          Judicial Officer.
1.147 Filing; service; extensions of time; and computation of time.
1.148 Depositions.
1.149 Subpoenas.

[[Page 6]]

1.150 Fees of witnesses.
1.151 Ex parte communications.

Subpart I_Rules of Practice Governing Cease and Desist Proceedings Under 
                  Section 2 of the Capper-Volstead Act

1.160 Scope and applicability of rules in this part.
1.161 Definitions.
1.162 Institution of proceedings.
1.163 The complaint.
1.164 Answer.
1.165 Amendments.
1.166 Consent order.
1.167 Conference.
1.168 Procedure for hearing.
1.169 Post-hearing procedure and decision.
1.170 Appeal to the Judicial Officer.
1.171 Intervention.
1.172 Motions and requests.
1.173 Judges.
1.174 Filing; service; extensions of time; and computation of time.
1.175 Procedure following entry of cease and desist order.

   Subpart J_Procedures Relating to Awards Under the Equal Access to 
            Justice Act in Proceedings Before the Department

                           General Provisions

1.180 Definitions.
1.181 Purpose of these rules.
1.182 When EAJA applies.
1.183 Proceedings covered.
1.184 Eligibility of applicants.
1.185 Standards for awards.
1.186 Allowable fees and expenses.
1.187 Rulemaking on maximum rates for attorney fees.
1.188 Awards against other agencies.
1.189 Delegations of authority.

                  Information Required From Applicants

1.190 Contents of application.
1.191 Net worth exhibit.
1.192 Documentation of fees and expenses.
1.193 Time for filing application.

                 Procedures for Considering Applications

1.194 Filing and service of documents.
1.195 Answer to application.
1.196 Reply.
1.197 Comments by other parties.
1.198 Settlement.
1.199 Further proceedings.
1.200 Decision.
1.201 Department review.
1.202 Judicial review.
1.203 Payment of award.

   Subpart K_Appearance of USDA Employees as Witnesses in Judicial or 
                       Administrative Proceedings

1.210 Purpose.
1.211 Definitions.
1.212 General.
1.213 Appearance as a witness on behalf of the United States.
1.214 Appearance as a witness on behalf of a party other than the United 
          States where the United States is not a party.
1.215 Subpoenas duces tecum for USDA records in judicial or 
          administrative proceedings in which the United States is not a 
          party.
1.216 Appearance as a witness or production of documents on behalf of a 
          party other than the United States where the United States is 
          a party.
1.217 Witness fees and travel expenses.
1.218 Penalty.
1.219 Delegations.

   Subpart L_Procedures Related to Administrative Hearings Under the 
                Program Fraud Civil Remedies Act of 1986

1.301 Basis, purpose and scope.
1.302 Definitions.
1.303 Basis for civil penalties and assessments.
1.304 Investigation.
1.305 Review by the reviewing official.
1.306 Prerequisites for issuing a complaint.
1.307 Complaint.
1.308 Service of complaint and notice of hearing.
1.309 Answer and request for hearing.
1.310 Default upon failure to file an answer.
1.311 Referral of complaint and answer to the ALJ.
1.312 Procedure where respondent does not request a hearing.
1.313 Procedure where respondent requests a hearing; notice of hearing.
1.314 Parties to the hearing.
1.315 Separation of functions.
1.316 Ex parte contacts.
1.317 Disqualification of reviewing official or ALJ.
1.318 Rights of parties.
1.319 Authority of the ALJ.
1.320 Prehearing conferences.
1.321 Disclosure of documents.
1.322 Discovery.
1.323 Subpoenas for attendance at hearing.
1.324 Fees.
1.325 Form, filing and service of papers.
1.326 Computation of time.
1.327 Motions.
1.328 Sanctions.
1.329 The hearing and burden of proof.
1.330 Location of hearing.
1.331 Witnesses.

[[Page 7]]

1.332 Evidence.
1.333 The record.
1.334 Post-hearing briefs.
1.335 Determining the amount of penalties and assessments.
1.336 Initial decision of the ALJ.
1.337 Reconsideration of initial decision.
1.338 Appeal to the judicial officer.
1.339 Stays ordered by the Department of Justice.
1.340 Stay pending appeal.
1.341 Judicial review.
1.342 Collection of civil penalties and assessments.
1.343 Right to administrative offset.
1.344 Deposit to Treasury of the United States.
1.345 Settlement.
1.346 Limitation.

  Subpart M_Rules of Practice Governing Adjudication of Sourcing Area 
Applications and Formal Review of Sourcing Areas Pursuant to the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620 et 
                                  seq.)

1.410 Meaning of words.
1.411 Definitions.
1.412 Institution of proceedings.
1.413 Submission of a sourcing area application.
1.414 Docket number.
1.415 Notification of proceedings.
1.416 Comment period.
1.417 Review period.
1.418 Procedure upon no request for hearing.
1.419 Amendment of a sourcing area application.
1.420 Consent recommendation.
1.421 Prehearing conferences and procedures.
1.422 Conduct of the hearing.
1.423 Post-hearing procedure.
1.424 Motions and requests.
1.425 Judges.
1.426 Appeal to Judicial Officer.
1.427 Filing; identification of parties of record; service; and 
          computation of time.
1.428 Depositions.
1.429 Ex parte communications.

    Subpart N_Policy With Regard to Indemnification of Department of 
                          Agriculture Employees

1.501 Policy on employee indemnification.

            Subpart O_Conditions in FERC Hydropower Licenses

                           General Provisions

Sec.
1.601 What is the purpose of this subpart, and to what license 
          proceedings does it apply?
1.602 What terms are used in this subpart?
1.603 How are time periods computed?
1.604 What deadlines apply to pending applications?

                             Hearing Process

                             Representatives

1.610 Who may represent a party, and what requirements apply to a 
          representative?

                       Document Filing and Service

1.611 What are the form and content requirements for documents under 
          Sec. Sec. 1.611 through 1.660?
1.612 Where and how must documents be filed?
1.613 What are the requirements for service of documents?

                      Initiation of Hearing Process

1.620 What supporting information must the Forest Service provide with 
          its preliminary conditions?
1.621 How do I request a hearing?
1.622 How do I file a notice of intervention and response?
1.623 When will hearing requests be consolidated?
1.624 How will the Forest Service respond to any hearing requests?
1.625 What will the Forest Service do with any hearing requests?
1.626 What regulations apply to a case referred for a hearing?

                 General Provisions Related to Hearings

1.630 What will OALJ do with a case referral?
1.631 What are the powers of the ALJ?
1.632 What happens if the ALJ becomes unavailable?
1.633 Under what circumstances may the ALJ be disqualified?
1.634 What is the law governing ex parte communications?
1.635 What are the requirements for motions?

                  Prehearing Conferences and Discovery

1.640 What are the requirements for prehearing conferences?
1.641 How may parties obtain discovery of information needed for the 
          case?
1.642 When must a party supplement or amend information it has 
          previously provided?
1.643 What are the requirements for written interrogatories?
1.644 What are the requirements for depositions?
1.645 What are the requirements for requests for documents or tangible 
          things or entry on land?
1.646 What sanctions may the ALJ impose for failure to comply with 
          discovery?

[[Page 8]]

1.647 What are the requirements for subpoenas and witness fees?

                     Hearing, Briefing, and Decision

1.650 When and where will the hearing be held?
1.651 What are the parties' rights during the hearing?
1.652 What are the requirements for presenting testimony?
1.653 How may a party use a deposition in the hearing?
1.654 What are the requirements for exhibits, official notice, and 
          stipulations?
1.655 What evidence is admissible at the hearing?
1.656 What are the requirements for transcription of the hearing?
1.657 What is the standard of proof?
1.658 When will the hearing record close?
1.659 What are the requirements for post-hearing briefs?
1.660 What are the requirements for the ALJ's decision?

                          Alternatives Process

1.670 How must documents be filed and served under Sec. Sec. 1.670 
          through 1.673?
1.671 How do I propose an alternative?
1.672 What will the Forest Service do with a proposed alternative?
1.673 How will the Forest Service analyze a proposed alternative and 
          formulate its modified conditions?
1.674 Has OMB approved the information collection provisions of 
          Sec. Sec. 1.670 through 1.673?

    Authority: 5 U.S.C. 301, unless otherwise noted.



                       Subpart A_Official Records

    Authority: 5 U.S.C. 301, 552; 7 U.S.C. 3125a; 31 U.S.C. 9701; and 7 
CFR 2.28(b)(7)(viii).



Sec. 1.1  Purpose and scope.

    This subpart establishes policy, procedures, requirements, and 
responsibilities for administration and coordination of the Freedom of 
Information Act (``FOIA''), 5 U.S.C. 552, pursuant to which any person 
may obtain official records. It also provides rules pertaining to the 
disclosure of records pursuant to compulsory process. This subpart also 
serves as the implementing regulations (referred to in Sec. 1.3, 
``Agency implementing regulations'') for the Office of the Secretary 
(the immediate offices of the Secretary, Deputy Secretary, Under 
Secretaries and Assistant Secretaries) and for the Office of 
Communications. The Office of Communications has the primary 
responsibility for implementation of the FOIA in the Department of 
Agriculture (``USDA'' or ``Department''). The term ``agency'' or 
``agencies'' is used throughout this subpart to include both USDA 
program agencies and staff offices.

[65 FR 46336, July 28, 2000]



Sec. 1.2  Policy.

    (a) Agencies of USDA shall comply with the time limits set forth in 
the FOIA and in this subpart for responding to and processing requests 
and appeals for agency records, unless there are unusual circumstances 
within the meaning of 5 U.S.C. 552(a)(6)(B) and Sec. 1.16(b). An agency 
shall notify a requester in writing whenever it is unable to respond to 
or process a request or appeal within the time limits established by the 
FOIA.
    (b) All agencies of the Department shall comply with the fee 
schedule provided as appendix A to this subpart, with regard to the 
charging of fees for providing copies of records and related services to 
requesters.

[65 FR 46337, July 28, 2000]



Sec. 1.3  Agency implementing regulations.

    Each agency of the Department shall promulgate regulations setting 
forth the following:
    (a) The location and hours of operation of the agency office or 
offices where members of the public may gain access to those materials 
required by 5 U.S.C. 552(a)(2) and Sec. 1.4 to be made available for 
public inspection and copying.
    (b) Information regarding the publication and distribution (by sale 
or otherwise) of indexes and supplements to indexes that are maintained 
in accordance with the requirements of 5 U.S.C. 552(a)(2) and Sec. 
1.4(c);
    (c) The title and mailing address of the official or officials of 
the agency authorized to receive requests for records submitted in 
accordance with Sec. 1.5(a), and to make determinations regarding 
whether to grant or deny such requests. Authority to make such 
determinations includes authority to:

[[Page 9]]

    (1) Extend the 20 working day administrative deadline for reply 
pursuant to Sec. 1.16;
    (2) Make discretionary releases pursuant to Sec. 1.19(b);
    (3) Make determinations regarding the charging of fees pursuant to 
appendix A to this subpart;
    (d) The title and mailing address of the agency official who is 
authorized to receive appeals submitted in accordance with Sec. 1.14 
and to make determinations regarding whether to grant or deny such 
appeals. Authority to determine appeals includes authority to:
    (1) Extend the 20 working day administrative deadline for reply 
pursuant to Sec. 1.16 (to the extent the maximum extension authorized 
by Sec. 1.16(c) was not used with regard to the initial request;
    (2) Make discretionary releases pursuant to Sec. 1.19(b);
    (3) Make determinations regarding the charging of fees pursuant to 
appendix A to this subpart; and
    (e) Other information which would be of concern to a person wishing 
to request records from that agency in accordance with this subpart.

[65 FR 46337, July 28, 2000]



Sec. 1.4  Public access to certain materials.

    (a) In accordance with 5 U.S.C. 552(a)(2), each agency within the 
Department shall make the following materials available for public 
inspection and copying (unless they are promptly published and copies 
offered for sale):
    (1) Final opinions, including concurring and dissenting opinions, as 
well as orders, made in the adjudication of cases;
    (2) Those statements of policy and interpretation which have been 
adopted by the agency and are not published in the Federal Register;
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (4) Copies of all records, regardless of form or format, which have 
been released pursuant to a FOIA request under 5 U.S.C. 552(a)(3), and 
which because of the nature of their subject matter, have become or are 
likely to become the subject of subsequent requests for substantially 
the same records. Agencies shall decide on a case by case basis whether 
records fall into this category, based on the following factors:
    (i) Previous experience with similar records;
    (ii) The particular characteristics of the records involved, 
including their nature and the type of information contained in them; 
and
    (iii) The identity and number of requesters and whether there is 
widespread media, historical, academic, or commercial interest in the 
records.
    (5) A general index of the records referred to in paragraph (a)(4) 
of this section.
    (b) Records encompassed within paragraphs (a)(1) through (a)(5) of 
this section created on or after November 1, 1996, shall be made 
available to the public by computer telecommunications or, if computer 
telecommunications means have not been established by the agency, by 
other electronic means.
    (c) Each agency of the Department shall maintain and make available 
for public inspection and copying current indexes providing identifying 
information regarding any matter issued, adopted or promulgated after 
July 4, 1967, and required by paragraph (a) of this section to be make 
available or published. Each agency shall publish and make available for 
distribution copies of such indexes and supplements to such indexes at 
least quarterly, unless it determines by notice published in the Federal 
Register that publication would be unnecessary and impracticable. After 
issuance of such notice, each agency shall provide copies of any index 
upon request at a cost not to exceed the direct cost of duplication.
    (d) Each agency is responsible for preparing reference material or a 
guide for requesting records or information from that agency. This guide 
shall also include an index of all major information systems, and a 
description of major information and record locator systems.
    (e) Each agency shall also prepare a handbook for obtaining 
information from that agency. The handbook should be a short, simple 
explanation to the public of what the FOIA is designed to do, and how a 
member of the public can use it to access government

[[Page 10]]

records. The handbook should be available on paper and through 
electronic means, and it should identify how a requester can access 
agency Freedom of Information Act annual reports. Similarly, the annual 
reports should refer to the handbook and how to obtain it.
    (f) It is appropriate to make frequently requested records available 
in accordance with paragraph (a)(4) of this section in situations where 
public access in a timely manner is important, and it is not intended to 
apply where there may be a limited number of requests over a short 
period of time from a few requesters. Agencies may remove a record from 
this access medium when the appropriate official determines that it is 
unlikely there will be substantial further requests for that document.

[65 FR 46337, July 28, 2000]



Sec. 1.5  Requests for records.

    (a) Any person who wishes to inspect or obtain copies of any record 
of any agency of the Department shall submit a request in writing and 
address the request to the official designated in regulations 
promulgated by that agency. The requester may ask for a fee waiver. All 
such requests for records shall be deemed to have been made pursuant to 
the Freedom of Information Act, regardless of whether the request 
specifically mentions the Freedom of Information Act. To facilitate 
processing of a request, the requester should place the phrase ``FOIA 
REQUEST'' in capital letters on the front of the envelope or on the 
cover sheet of the facsimile transmittal.
    (b) A request must reasonably describe the records to enable agency 
personnel to locate them with reasonable effort. Where possible, a 
requester should supply specific information regarding dates, titles, 
names of individuals, names of offices, and names of agencies or other 
organizations that may help identify the records. If the request relates 
to a matter in pending litigation, the requester should identify the 
court and its location.
    (c) If an agency determines that a request does not reasonably 
describe the records, the agency shall inform the requester of this fact 
and extend the requester an opportunity to clarify the request or to 
confer promptly with knowledgeable agency personnel to attempt to 
identify the records the requester is seeking. The ``date of receipt'' 
in such instances, for purposes of Sec. 1.13, shall be the date of 
receipt of the amended or clarified request.
    (d) If a request for records or a fee waiver made under this subpart 
is denied, the requester shall have the right to appeal the denial. 
Requesters also may appeal agency determinations of a requester's status 
for purposes of fee levels under sec. 5 of appendix A to this subpart. 
All appeals must be in writing and addressed to the official designated 
in regulations promulgated by the agency which denied the request. To 
facilitate processing of an appeal, the requester should place the 
phrase ``FOIA APPEAL'' in capital letters on the front of the envelope 
or on the cover sheet of the fax transmittal.
    (e) Requests that are not addressed to a specific agency in USDA, or 
which pertain to more than one USDA agency, or which are sent to the 
wrong agency of USDA, should be forwarded to the Department's FOIA 
Officer in the Office of Communications, U.S. Department of Agriculture, 
Washington, DC 20250.
    (f) The Department FOIA Officer will determine which agency or 
agencies should process the request, and, where necessary, refer the 
request to the appropriate agency or agencies. The Department FOIA 
Officer will also notify the requester of the referral and of the name 
of each agency to which the request has been referred.
    (g) A request will be properly received when it is in the possession 
of the component agency that has responsibility for maintaining the 
requested records.
    (h) Each agency shall develop and maintain a record of all written 
requests and appeals received in that agency. The record shall include 
the names of the requester; a brief summary of the information 
requested; whether the request or appeal was granted, denied, or 
partially denied; the exemption from mandatory disclosure under 5 U.S.C. 
552(b) upon which any denial was based; and the amount

[[Page 11]]

of any fees associated with the request or appeal.

[65 FR 46337, July 28, 2000]



Sec. 1.6  Aggregating requests.

    When an agency reasonably believes that a requester, or a group of 
requesters acting in concert, is attempting to break a request down into 
a series of requests for the purpose of evading the assessment of fees, 
the agency may aggregate any such requests and charge accordingly. One 
element that may be considered in determining whether such a belief 
would be reasonable is the brevity of the time period during which the 
requests have been made.

[65 FR 46338, July 28, 2000]



Sec. 1.7  Agency response to requests for records.

    (a) 5 U.S.C. 552(a)(6)(A)(i) provides that each agency of the 
Department to which a request for records is submitted in accordance 
with Sec. 1.5(a) shall inform the requester of its determination 
concerning that request within 20 working days of its date of receipt 
(excepting Saturdays, Sundays, and legal public holidays), plus any 
extension authorized under Sec. 1.16. If the agency determines to grant 
the request, it shall inform the requester of any conditions surrounding 
the granting of the request (e.g., payment of fees) and the approximate 
date upon which the agency will provide the requested records. If the 
agency grants only a portion of the request, it shall treat the portion 
not granted as a denial, and make a reasonable effort to estimate the 
volume of the records denied and provide this estimate to the requester, 
unless providing such an estimate would harm an interest protected by an 
exemption of the FOIA. If the agency determines to deny the request in 
part or in whole, it shall immediately inform the requester of that 
decision and provide the following:
    (1) The reasons for the denial;
    (2) The name and title or position of each person responsible for 
denial of the request;
    (3) The requester's right to appeal such denial and the title and 
address of the official to whom such appeal is to be addressed; and
    (4) The requirement that such appeal be made within 45 days of the 
date of the denial.
    (b) If the reason for not fulfilling a request is that the records 
requested are in the custody of another agency outside USDA, other than 
in the permanent custody of the National Archives and Records 
Administration (``NARA''), the agency shall inform the requester of this 
fact and shall forward the request to that agency or Department for 
processing in accordance with its regulations. If the records are in the 
permanent custody of NARA, the agency shall so inform the requester. 
Information about obtaining access to records at NARA may be obtained 
through the NARA Archival Information Locator (NAIL) Database at http://
www/nara.gov/nara.nail.html, or by calling NARA at (301) 713-6800. If 
the agency has no knowledge of requested records or if no records exist, 
the agency shall notify the requester of that fact.

[65 FR 46338, July 28, 2000]



Sec. 1.8  Multitrack processing.

    (a) When an agency has a significant number of requests, the nature 
of which precludes a determination within 20 working days, the requests 
may be processed in a multitrack processing system, based on the date of 
receipt, the amount of work and time involved in processing the request, 
and whether the request qualifies for expedited processing.
    (b) Agencies may establish as many processing tracks as appropriate; 
processing within each track shall be based on a first-in, first-out 
concept, and rank-ordered by the date of receipt of the request.
    (c) Agencies may provide a requester whose request does not qualify 
for the fastest track an opportunity to limit the scope of the request 
in order to qualify for a faster track. This multitrack processing 
system does not lessen agency responsibility to exercise due diligence 
in processing requests in the most expeditious manner possible.
    (d) Agencies shall process requests in each track on a ``first-in, 
first-out'' basis, unless there are unusual circumstances as set forth 
in Sec. 1.16, or the

[[Page 12]]

requester is entitled to expedited processing as set forth in Sec. 1.9.

[65 FR 46338, July 28, 2000]



Sec. 1.9  Expedited processing.

    (a) A requester may apply for expedited processing at the time of 
the initial request for records. Within ten calendar days of its receipt 
of a request for expedited processing, an agency shall decide whether to 
grant it, and shall notify the requester of the decision. Once the 
determination has been made to grant expedited processing, an agency 
shall process the request as soon as practicable. If a request for 
expedited processing is denied, the agency shall act expeditiously on 
any appeal of that decision.
    (b) A request or appeal will be taken out of order and given 
expedited treatment whenever the agency determines that the requester 
has established either of the following criteria:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (2) An urgency to inform the public about an actual or alleged 
federal government activity, if made by an individual primarily engaged 
in disseminating information. Representatives of the news media would 
normally qualify as individuals primarily engaged in disseminating 
information; however, other requesters must demonstrate that their 
primary activity involves publishing or otherwise disseminating 
information to the public as a whole, and not just a particular segment 
or group. ``Urgency'' contemplates that the information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. Information of 
historical interest only or information sought for litigation or 
commercial activities would not meet the test of urgency, nor would a 
news media publication or broadcast deadline unrelated to the news 
breaking nature of the information.
    (c) A requester who seeks expedited processing must provide a 
written statement that the requester has certified to be true and 
correct to the best of the requester's knowledge, explaining in detail 
the basis for requesting expedited processing. The agency will not 
consider the request to have been received unless accompanied by a 
written, certified statement, and will be under no obligation to 
consider the request for expedited processing until it receives such a 
written, certified statement.
    (d) the same procedures apply to requests for expedited processing 
of administrative appeals.

[65 FR 46338, July 28, 2000]



Sec. 1.10  Search services.

    Search services are services of agency personnel--clerical or 
professional--used in trying to find the records, that are responsive to 
a request. Search services includes both manual and electronic searches 
and time spent examining records for the purpose of finding information 
that is within the scope of the request. Search services also include 
services to transport personnel to places of record storage, or records 
to the location of personnel for the purpose of the search, if such 
services are reasonably necessary.

[65 FR 46339, July 28, 2000]



Sec. 1.11  Review services.

    (a) Review services are services of agency personnel--clerical or 
professional--in examining records, both paper and electronic, located 
in response to a request that is for a commercial use (as specified in 
sec. 6 of appendix A to this subpart) to determine whether any portion 
of any record located is exempt from mandatory disclosure.
    (b) Review services include processing any records for disclosure 
e.g., doing all that is necessary to redact exempt portions and 
otherwise prepare records for release.
    (c) Review services do not include the time spent resolving general 
legal or policy issues regarding the application of exemptions.

[65 FR 46339, July 28, 2000]



Sec. 1.12  Handling information from a private business.

    Each USDA agency is responsible for making the final determination 
with

[[Page 13]]

regard to the disclosure or nondisclosure of information in agency 
records that has been submitted by a business. When, in the course of 
responding to an FOIA request, an agency cannot readily determine 
whether the information obtained from a person is privileged or 
confidential business information, the policy of USDA is to obtain and 
consider the views of the submitter of the information and to provide 
the submitter an opportunity to object to any decision to disclose the 
information. If a request (including a subpoena duces tecum as described 
in Sec. 1.215) is received in USDA for information that has been 
submitted by a business, the agency shall:
    (a) Provide the business information submitter with prompt 
notification of a request for that information (unless it is readily 
determined by the agency that the information requested should not be 
disclosed or, on the other hand, that the information is not exempt by 
law from disclosure). Afford business information submitter reasonable 
time in which to object to the disclosure of any specified portion of 
the information. The submitter must explain fully all grounds upon which 
disclosure is opposed. For example, if the submitter maintains that 
disclosure is likely to cause substantial harm to it competitive 
position, the submitter must explain item-by-item why disclosure would 
cause such harm. Information provided by a business submitter pursuant 
to this paragraph may itself be subject to disclosure under FOIA;
    (b) Notify the requester of the need to inform the submitter of a 
request for submitted business information;
    (c) Determine whether the requested records are exempt from 
disclosure or must be released;
    (d) Provide business information submitters with notice of any 
determination to disclose such records prior to the disclosure date, in 
order that the matter may be considered for possible judicial 
intervention; and
    (e) Notify business information submitters promptly of all instances 
in which FOIA requesters bring suit seeking to compel disclosure of 
submitted information.

[65 FR 46339, July 28, 2000]



Sec. 1.13  Date of receipt of requests or appeals.

    The date of receipt of a request or appeal shall be the date it is 
received in the agency and office responsible for the administrative 
processing of FOIA requests or appeals.

[65 FR 46339, July 28, 2000]



Sec. 1.14  Appeals.

    (a) Requesters seeking administrative appeal of a denial of a 
request for records or denial of a fee waiver must ensure that the 
appeal is received by the agency within 45 days of the date of the 
denial letter.
    (b) Each agency shall provide for review of appeals by an official 
different from the official or officials designated to make initial 
denials.
    (c) 5 U.S.C. 552(a)(6)(A)(ii) provides that each agency in the 
Department to which an appeal of a denial is submitted shall inform the 
requester of its determination concerning that appeal within 20 working 
days (excepting Saturdays, Sundays, and legal public holidays), plus any 
extension authorized by Sec. 1.16, of its date of receipt. If the 
agency determines to grant the appeal, it shall inform the requester of 
any conditions surrounding the granting of the request (e.g., payment of 
fees) and the approximate date upon which compliance will be effected. 
If the agency grants only a portion of the appeal, it shall treat the 
portion not granted as a denial. If it determines to deny the appeal 
either in part or in whole, it shall inform the requester of that 
decision and of the following:
    (1) The reasons for denial;
    (2) The name and title or position of each person responsible for 
denial of the appeal; and
    (3) The right to judicial review of the denial in accordance with 5 
U.S.C. 552(a)(4).
    (d) Each agency, upon a determination that it wishes to deny an 
appeal, shall send a copy of the records requested and of all 
correspondence relating to the request to the Assistant General Counsel, 
General Law Division, Office of the General Counsel (``Assistant General 
Counsel''). When the volume of records is so large as to make sending a 
copy impracticable,

[[Page 14]]

the agency shall enclose an informative summary of those records. The 
agency shall not deny an appeal until it receives concurrence from the 
Assistant General Counsel
    (e) The Assistant General Counsel shall promptly review the matter 
(including necessary coordination with the agency) and render all 
necessary assistance to enable the agency to respond to the appeal 
within the administrative deadline or any extension of the 
administrative deadline.

[65 FR 46339, July 28, 2000]



Sec. 1.15  General provisions respecting release of records.

    (a) When releasing documents, agencies shall provide the record in 
any form or format the requester specifies, if the record is readily 
reproducible in that form of format. Agencies shall make reasonable 
efforts to maintain their records in forms or formats that are 
reproducible. In responding to requests for records, agencies shall make 
reasonable efforts to search for records in electronic form or format, 
except when such efforts would significantly interfere with the 
operation of an agency's automated information system. Such 
determinations shall be made on a case-by-case basis.
    (b) In the event a requested record contains some portions that are 
exempt from mandatory disclosure and others that are not, the official 
responding to the request shall ensure that all reasonably segregable 
nonexempt portions are disclosed, and that all exempt portions are 
identified according to the specific exemption or exemptions which are 
applicable. The amount of deleted information shall be indicated on the 
released portion of paper records. Deletions may be marked by use of 
brackets or darkened areas indicating removal of information, or by any 
other method that would reasonable demonstrate the extent of the 
deletion. In the case of electronic deletion, or deletion in audiovisual 
or microfiche records, if technically feasible, the amount of redacted 
information shall be indicated at the place in the records, if 
technically feasible, the amount of redacted information shall be 
indicated at the place in the record where such deletion was made. This 
may be done by use of brackets, shaded areas, or some other identifiable 
technique which will clearly show the limits of the deleted information.
    (c) If, in connection with a request or an appeal, a charge is to be 
made in accordance with sec. 8 of appendix A to this subpart, agencies 
shall inform the requester of the fee amount and of the basis for the 
charge. Each agency, in accordance with sec. 8 of appendix A to this 
subpart, may require payment of the entire fee, or a portion of the fee, 
before it provides the requested records. An agency shall require full 
payment of any delinquent fee owed by the requester plus any applicable 
interest prior to releasing records on a subsequent request or appeal. 
If a requester refuses to remit payment in advance, an agency may refuse 
to process the request or appeal with written notice to that effect 
forwarded to the requester. The ``date of receipt'' appeal for which 
advance payment has been required shall be the date that payment is 
received.
    (d) In the event compliance with the request or appeal involves 
inspection of records by the requester rather than providing copies of 
the records, the agency response shall include the name, mailing 
address, and telephone number of the person to be contacted to arrange a 
mutually convenient time for such inspection.
    (e) Whenever duplication fees, or search fees for unsuccessful 
searches (see sec. 4(f) of appendix A to this subpart), are anticipated 
to exceed $25.00, and the requester has not indicated, in advance, a 
willingness to pay fees as high as those anticipated, agencies shall 
notify the requester of the amount of the anticipated fee. If an 
extensive and therefore costly successful search is anticipated, 
agencies also should notify requesters of the anticipated fees. The 
notification shall offer the requester the opportunity to confer with 
agency personnel to reform the request to meet the requester's needs at 
a lower fee. In appropriate cases, an advance deposit in accordance with 
sec. 8 of appendix A to this subpart may be required.

[65 FR 46340, July 28, 2000]

[[Page 15]]



Sec. 1.16  Extension of administrative deadlines.

    (a) In unusual circumstances as specified in this section, when 
additional time is needed to respond to the initial request or to an 
appeal, agencies shall acknowledge the request or the appeal in writing 
within the 20 working day time period, describe the unusual 
circumstances requiring the delay, and indicate the anticipated date for 
a substantive response that may not exceed 10 additional working days, 
except as provided in the following:
    (1) In instances in which the agency, with respect to a particular 
request, has extended the response date by 10 additional working days, 
if the agency finds that it cannot make a response determination within 
the additional 10 working day period, the agency shall notify the 
requester and provide the requester an opportunity to limit the scope of 
the request to allow the agency to process the request within the 
extended time limit, or an alternative time frame for processing the 
request or a modified request.
    (2) If the requester refuses to reasonably modify the request or 
arrange for an alternative time frame for processing the request, the 
FOIA provides that such refusal shall be considered as a factor in 
determining whether there are exceptional circumstances that warrant 
granting additional time for the agency to complete its review of the 
records, as set forth in 5 U.S.C. 552(a)(6)(C)(iii). The term 
``exceptional circumstances'' does not include a delay that results from 
a predictable agency backlog, unless the agency demonstrates reasonable 
progress in reducing its backlog of pending requests.
    (b) As used in this section, ``unusual circumstances'' that may 
justify delay are:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another Department or agency having a 
substantial interest in the determination of the request or among two or 
more components of agency having substantial subject-matter interest in 
the request.

    Note to paragraph (b): Consultation regarding policy or legal issues 
between an agency and the Office of the General Counsel, Office of 
Communications, or the Department of Justice is not a basis for 
extension under this section.

    (c) The 10-day extension authorized by this section may be divided 
between the initial and appellate reviews, but in no event shall the 
total extension exceed 10 working days.
    (d) Nothing in this section shall preclude the agency and the 
requester from agreeing to an extension of time. Any such agreement 
should be confirmed in writing and should specify clearly the total time 
agreed upon.

[65 FR 46340, July 28, 2000]



Sec. 1.17  Failure to meet administrative deadlines.

    In the event an agency fails to meet the administrative deadlines 
set forth in Sec. Sec. 1.7 or 1.14, plus any extension authorized by 
Sec. 1.16, it shall notify the requester, state the reasons for the 
delay, and the date by which it expects to dispatch a determination. 
Although the requester may be deemed to have exhausted his or her 
administrative remedies under 5 U.S.C. 552(a)(6)(C), the agency shall 
continue processing the request as expeditiously as possible and 
dispatch the determination when it is reached in the same manner and 
form as if it had been reached within the applicable deadline.

[65 FR 46341, July 28, 2000]



Sec. 1.18  Fee schedule.

    Pursuant to Sec. 2.28 of this title, the Chief Financial Officer is 
delegated authority to promulgate regulations providing for a uniform 
fee schedule applicable to all agencies of the Department regarding 
requests for records under this subpart. The regulations providing

[[Page 16]]

for a uniform fee schedule are found in appendix A to this subpart.

[65 FR 46341, July 28, 2000]



Sec. 1.19  Exemptions and discretionary release.

    (a) All agency records, except those specifically exempted from 
mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), shall 
be made promptly available to any person submitting a request under this 
subpart.
    (b) Agencies are authorized, in their sole discretion, to make 
discretionary releases when such release is not otherwise specifically 
prohibited by Executive Order, statute, or regulation.

[65 FR 46341, July 28, 2000]



Sec. 1.20  Annual report.

    (a) Each agency of the Department shall compile the following 
Freedom of Information Act statistics on a fiscal year basis beginning 
October 1, 1997, and report the following information to the Office of 
Communications no later than November 30 following the fiscal year's 
close:
    (1) The number of requests for records received and the number of 
requests which were processed;
    (2) The number of determinations made not to comply with initial 
requests for records made to it under Sec. 1.5(a), and the reasons for 
each such determinations;
    (3) The number of appeals made by persons under Sec. 1.14(b), the 
result of such appeals, and the reason for the action upon each appeal 
that results in a denial of information.
    (4) A complete list of all statutes that the agency relies upon to 
authorize the agency to withhold information under 5 U.S.C. 552(b)(3), a 
description of whether a court has upheld the decision of the agency to 
withhold information under each such statute, and a concise description 
of the scope of any information withheld;
    (5) The number of requests for records pending before the agency as 
of September 30 of the preceding year, and the median number of days 
that such requests had been pending before the agency as of that date:
    (6) The median number of days taken by the agency to process 
different types of requests;
    (7) The total amount of fees collected by the agency for processing 
requests;
    (8) The number of full-time staff of the agency devoted to 
processing requests for records under this section, and the total amount 
expended by the agency for processing such requests.
    (b) Each agency shall compile the information required by paragraph 
(a) of this section for the preceding fiscal year into a report and 
submit this report to the Director of Communications, Office of 
Communications, no later than November 30 following the fiscal year's 
close.
    (c) The Director of Communications, Office of Communications, shall 
combine the reports from all the agencies within USDA into a 
Departmental report, and shall submit to the Attorney General on or 
before February 1 of each year in accordance with 5 U.S.C. 552(e).
    (d) Each agency shall make the report available to the public 
including by computer telecommunications, or if computer 
telecommunications means have not been established by the agency, by 
other electronic means.

[65 FR 46341, July 28, 2000]



Sec. 1.21  Compilation of new records.

    Nothing in 5 U.S.C. 552 or this subpart requires that any agency 
create a new record in order to fulfill a request for records. However, 
an agency is required to provide a record in a form or format specified 
by a requester, if the record is readily reproducible by the agency in 
the form or format requested. Creation of records may be undertaken 
voluntarily if the agency determines this action to be in the public 
interest or the interest of USDA.

[65 FR 46341, July 28, 2000]



Sec. 1.22  Authentication.

    When a request is received for an authenticated copy of a document 
which the agency determines to make available to the requesting party, 
the agency shall cause a correct copy to be prepared and sent to the 
Office of the General Counsel which shall certify the same and cause the 
seal of the Department to be affixed, except that the

[[Page 17]]

Hearing Clerk in the Office of Administrative Law Judges may 
authenticate copies of documents in the records of the Hearing Clerk and 
that the Director of the National Appeals Division may authenticate 
copies of documents in the records of the National Appeals Division.

[65 FR 46341, July 28, 2000]



Sec. 1.23  Records in formal adjudication proceedings.

    Records in formal adjudication proceedings are on file in the 
Hearing Clerk's office, Office of Administrative Law Judges, U.S. 
Department of Agriculture, Washington, DC 20250, and shall be made 
available to the public.

[65 FR 46341, July 28, 2000]



Sec. 1.24  Preservation of records.

    Agencies shall preserve all correspondence relating to the requests 
it receives under this subpart, and all records processed pursuant to 
such requests, until such time as the destruction of such correspondence 
and records is authorized pursuant to Title 44 of the United States 
Code, and appropriate records disposition authority granted by NARA. 
Under no circumstances shall records be sent to a Federal Records 
Center, transferred to the permanent custody of NARA, or destroyed while 
they are the subject of a pending request, appeal, or civil action under 
the FOIA.

[65 FR 46341, July 28, 2000]



Sec. 1.25  Implementing regulations for the Office of the Secretary 
and the Office of Communications.

    (a) For the Office of the Secretary and for the Office of 
Communications, the regulations required by Sec. 1.3 are as follows:
    (1) Records available for public inspection and copying may be 
obtained in Room 536-A, Jamie L. Whitten Federal Building, USDA, 
Washington, DC 20250 during the hours of 9 a.m. to 5 p.m. by prior 
appointment;
    (2) Any indexes and supplements which are maintained in accordance 
with the requirements of 5 U.S.C. 552(a)(2) and Sec. 1.5(b) will also 
be available in Room 536-A, Jamie L. Whitten Federal Building, USDA, 
Washington, DC 20250 during the hours of 9 a.m. to 5 p.m.;
    (3) The person authorized to receive Freedom of Information Act 
requests and to determine whether to grant or deny such requests is the 
FOIA Officer, Office of Communications, USDA, Washington, DC 20250;
    (4) The official authorized to receive appeals from denial of FOIA 
requests and to determine whether to grant or deny such appeals is the 
Director of Communications, Office of Communications, USDA, Washington, 
DC 20250.
    (b) The organization and functions of the Office of the Secretary 
and the Office of Communications is as follows:
    (1) The Office of the Secretary provides the overall policy guidance 
and direction of the activities of the Department of Agriculture. 
Department-wide policy statements and announcements are made from this 
office.
    (2) The Office of the Secretary consists of the Secretary, Deputy 
Secretary, Under Secretaries, Assistant Secretaries, and other staff 
members.
    (3) In the absence of the Secretary and the Deputy Secretary, 
responsibility for the operation of the Department of Agriculture is as 
delegated at part 2, subpart A, of this title.
    (4) The Office of Communications provides policy direction, review, 
and coordination of public information programs of the Department of 
Agriculture. The Office of Communications has responsibility for 
maintaining the flow of information to the mass communications media, 
various constituency groups, and the general public.
    (5) The Office of Communications is headed by the Director of 
Communications. In the Director's absence, the Office of Communications 
is headed by the Deputy Director.

[65 FR 46341, July 28, 2000]

             Appendix A to Subpart A of Part 1--Fee Schedule

                           Section 1. General.

    This schedule sets forth fees to be charged for providing copies of 
records--including photographic reproductions, microfilm, maps and 
mosaics, and related services--under the Freedom of Information Act 
(FOIA). Records and related services are available at the locations 
specified by agencies in their FOIA

[[Page 18]]

implementing regulations. The fees set forth in this schedule are 
applicable to all agencies of the Department of Agriculture, and are 
based upon guidelines prescribed by the Office of Management and Budget 
(OMB) issued at 52 FR 10012 (March 27, 1987). No higher fees or charges 
in addition to those provided for in this schedule may be charged a 
party requesting services under the Freedom of Information Act.

       Section 2. Types of services for which fees may be charged.

    Subject to the criteria set forth in section 5 of this appendix, 
fees may be assessed under the Freedom of Information Act on all 
requests involving such services as record search, duplication, and 
review. Fees may also be charged in situations involving special service 
to a request, such as certifying that records requested are true copies, 
or sending records by special methods such as express mail, etc. For 
services not covered by the FOIA or by this appendix, agencies may set 
their own fees in accordance with applicable law, or costs incurred will 
be assessed the requester at the actual cost to the Government. For 
example, where records are required to be shipped from one office to 
another by commercial carrier in order to timely answer a request, the 
actual freight charge will be assessed the requester.

         Section 3. Instances in which fees will not be charged.

    (a) Except for requests seeking records for a commercial use (as 
specified in section 5 of this appendix), no charge shall be made for 
either: (1) The first 100 pages of duplicated records (8\1/
2\x14 or smaller-size paper); or (2) The first two 
hours of manual search time, or the equivalent value of computer search 
time as defined in section 4(e) of this appendix.
    (b) No charge shall be made--even to commercial use requesters--if 
the cost of collecting a fee would be equal to or greater than the fee 
itself. For USDA, this figure has been calculated to be $25.00.
    (c) Fees may not be charged for time spent by an agency employee in 
resolving legal or policy issues, or in monitoring a requester's 
inspection of agency records. No charge shall be made for normal postage 
costs.
    (d) Records shall also be furnished without charge under the 
following conditions:
    (1) When filling requests from other Departments or Government 
agencies for official use, provided quantities requested are reasonable 
in number;
    (2) When members of the public provide their own copying equipment, 
in which case no copying fee will be charged (although search and review 
fees may still be assessed); or
    (3) When any notices, decisions, orders, or other materials are 
required by law to be served on a party in any proceeding or matter 
before any Department agency.

            Section 4. Fees for records and related services.

    (a) The fee for photocopies of pages 8\1/2\x14 
or smaller shall be $0.20 per page (per individual side of sheet).
    (b) The fee for photocopies larger than 8\1/
2\x14 shall be $0.50 per linear foot of the 
longest side of the copy.
    (c) The fee for other forms of duplicated records, such as 
microform, audio-visual materials, or machine-readable documentation 
(i.e., magnetic tape or disk), shall be the actual direct cost of 
producing the records.
    (d) Manual searches shall be charged for in one of the two following 
manners in the given order:
    (1) When feasible, at the salary rate of the employee conducting the 
search, plus 16 percent of the employee's basic pay; or
    (2) Where a homogeneous class of personnel is used exclusively, at 
the rate of $10.00 per hour for clerical time, and $20.00 per hour for 
supervisory or professional time. Charges should be computed to the 
nearest quarter hour required for the search. A homogeneous class of 
personnel, for purposes of conducting manual searches and where more 
than one individual is involved, is a group of employees of like rank, 
grade, pay or position. A heterogeneous class of personnel is a group of 
employees of unlike rank, grade, pay, or position. If a heterogeneous 
class of personnel is involved in a search then the search shall be 
charged for at the salary rate of the individuals.
    (e) Mainframe computer searches and services shall be charged for at 
the rates established in the Users Manual or Handbook published by the 
computer center at which the work will be performed. Where the rate has 
not been established, the rate shall be $27.00 per minute. Searches 
using computers other than mainframes shall be charged for at the manual 
search rate.
    (1) Other rates are published and may be examined at the following 
places:

Fort Collins Computer Center Users Manual
    Fort Collins Computer Center, U.S. Department of Agriculture, 3825 
East Mulberry Street (P.O. Box 1206), Fort Collins, Colo. 80521.
National Finance Center, Cost, Productivity & Analysis Section, U.S. 
          Department of Agriculture, 13800 Old Gentilly Road, New 
          Orleans, La. 70129.
Kansas City Computer Center Users Manual Kansas City Computer Center, 
          U.S. Department of Agriculture, 8930 Ward Parkway (P.O. Box 
          205), Kansas City, MO. 64141.
Washington Computer Center Users Handbook: Washington Computer Center, 
          U.S.

[[Page 19]]

          Department of Agriculture, Room S-100, South Building, 12th 
          Street and Independence Avenue, SW., Washington, DC 20250.
St. Louis Computer Center, U.S. Department of Agriculture, 1520 Market 
          Street, St. Louis, MO. 63103.

    (f) Charges for unsuccessful searches, or searches which fail to 
locate records or which locate records which are exempt from disclosure, 
shall be assessed at the same fee rate as searches which result in 
disclosure of records.
    (g) The fee for providing review services shall be the hourly salary 
rate (i.e., basic pay plus 16 percent) of the employee conducting the 
review to determine whether any information is exempt from mandatory 
disclosure.
    (h) The fee for Certifications shall be $5.00 each; Authentications 
under Department Seal (including aerial photographs), $10.00 each.
    (i) All other costs incurred by USDA agencies will be assessed the 
requester at the actual cost to the Government.
    (j) The fees specified in paragraphs (a) through (g) of this section 
apply to all requests for services under the FOIA, unless no fee is to 
be charged, or the agency has determined to waive or reduce those fees 
pursuant to section 6 of this appendix. No higher fees or charges in 
addition to those provided for in this appendix may be charged for 
services under the FOIA.
    (k) The fees specified in paragraphs (h) and (i) of this section and 
in section 17 of this appendix apply to requests for services other than 
those subject to the FOIA. The authority for establishment of these fees 
is at 31 U.S.C. 9701 and other applicable laws.
    (l) Except as provided in section 11 of this appendix, for services 
not subject to the FOIA, and not covered by paragraph (h) of this 
section, agencies may set their own fees in accordance with applicable 
law.

       Section 5. Levels of fees for each category of requesters.

    Under the FOIA, there are four categories of FOIA requesters: 
Commercial use requesters, educational and non-commercial scientific 
institutions; representatives of the news media; and all other 
requesters. FOIA prescribes specific levels of fees for each category:
    (a) Commercial use requesters--For commercial use requesters, 
agencies shall assess charges which recover the full direct costs of 
searching for, reviewing for release, and duplicating the records 
sought. Commercial use requesters are not entitled to the free search 
time or duplication referenced in section 3(a) of this appendix. 
Agencies may recover the cost of searching for and reviewing records for 
commercial use requesters even if there is ultimately no disclosure of 
records.
    (1) A commercial use requester is defined as one who seeks 
information for a use or purpose that furthers the commercial, trade, or 
profit interests of the requester or the person on whose behalf the 
request is made.
    (2) In determining whether a requester properly belongs in this 
category, agencies must determine whether the requester will put the 
records to a commercial use. Where an agency has reasonable cause to 
doubt the use to which a requester will put the records sought, or where 
that use is not clear from the request itself, the agency may seek 
additional clarification from the requester.
    (b) Educational and non-commercial scientific institution 
requesters--Fees for this category of requesters shall be limited to the 
cost of providing duplication service alone, minus the charge for the 
first 100 reproduced pages. No charge shall be made for search or review 
services. To qualify for this category, requesters must show that the 
request is being made as authorized by and under the auspices of an 
eligible institution and that the records are not sought for a 
commercial use, but are sought in furtherance of scholarly research (if 
the request is from an educational institution) or scientific research 
(if the request is from a non-commercial scientific institution).
    (1) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (2) The term non-commercial scientific institution refers to 
institution that is not operated on a ``commercial'' (see section 
5(a)(1)) of this appendix basis, and which is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    (c) Requesters who are representatives of the news media--Fees for 
this category of requesters shall also be limited to the cost of 
providing duplication service alone, minus the charge for the first 100 
reproduced pages. No charge shall be made for providing search or review 
services. Requests in this category must not be made for a commercial 
use.
    (1) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public.
    (2) The term news means information that is about current events or 
that would be of current interest to the public.
    (3) Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals which disseminate news and

[[Page 20]]

who make their products available for purchase or subscription by the 
general public.
    (4) Freelance journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually employed 
by it.
    (d) All other requesters--Fees for requesters who do not fit into 
the categories described in paragraphs (a), (b), or (c) of this section 
shall be assessed for the full reasonable direct cost of searching for 
and duplicating records that are responsive to a request. No charge, 
however, shall be made to requesters in this category for: (1) The first 
100 duplicated pages; or (2) the first two hours of manual search time, 
or the equivalent value of computer search time as defined in section 
4(e) of this appendix.

                 Section 6. Fee waivers and reductions.

    (a) Agencies shall waive or reduce fees on request for records if 
disclosure of the information in the records is deemed to be in the 
public interest. A request is in the public interest if it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government, and is not primarily in the commercial 
interest of the requester.
    (1) In determining when fees shall be waived or reduced, agencies 
should consider the following six factors:
    (i) The subject of the request, i.e., whether the subject of the 
requested records concerns ``the operations or activities of the 
government'';
    (ii) The informative value of the information to be disclosed, i.e., 
whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure, i.e., whether 
disclosure of the requested information will contribute to ``public 
understanding'';
    (iv) The significance of the contribution to public understanding, 
i.e., whether the disclosure is likely to contribute ``significantly'' 
to public understanding of government operations or activities;
    (v) The existence and magnitude of a commercial interest, i.e., 
whether the requester has a commercial interest that would be furthered 
by the requested disclosure; and,
    (vi) The primary interest in disclosure, i.e., whether the magnitude 
of the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.''
    (2) An agency may, in its discretion, waive or reduce fees 
associated with a request for disclosure, regardless of whether a waiver 
or reduction has been requested, if the agency determines that 
disclosure will primarily benefit the general public.
    (3) Agencies may also waive or reduce fees under the following 
conditions:
    (i) Where the furnishings of records or a service without charge or 
at a reduced rate is an appropriate courtesy to a foreign country or 
international organization, or where comparable fees are set on a 
reciprocal basis with a foreign country or an international 
organization;
    (ii) Where the requester is engaged in a nonprofit activity designed 
for the public safety, health, or welfare; or
    (iii) Where it is determined that payment of the full fee by a State 
or local government or nonprofit group would not be in the interest of 
the program involved.
    (4) Fees shall be waived, however, without discretion in all 
circumstances where the amount of the fee is $25.00 or less.

                Section 7. Restrictions regarding copies.

    (a) Agencies may restrict numbers of photocopies and directives 
furnished the public to one copy of each page. Copies of forms provided 
the public shall also be held to the minimum practical. Persons 
requiring any large quantities should be encouraged to take single 
copies to commercial sources for further appropriate reproduction.
    (b) Single or multiple copies of transcripts, provided to the 
Department under a reporting service contract, may be obtained by the 
public from the contractor at a cost not to exceed the cost per page 
charged to the Department for extra copies. The contractor may add a 
postage charge when mailing orders to the public, but no other charge 
may be added.

                Section 8. Payments of fees and charges.

    (a) Payments should be billed for to the fullest extent possible at 
the time the requested materials are furnished. Payments should be made 
by requesters within 30 days of the date of the billing.
    (b) Payments shall be made by check, draft, or money order made 
payable to the Treasury of the United States, although payments may be 
made in cash, particularly where services are performed in response to a 
visit to a Department office. All payments should be sent to the address 
indicated by the agency responding to the request.
    (c) Where the estimated fees to be charged exceed $250.00, agencies 
may require an advance payment of an amount up to the full estimated 
charges (but not less than 50 percent) from the requester before any of 
the requested materials are reproduced.
    (d) In instances where a requester has previously failed to pay a 
fee, an agency may require the requester to pay the full amount owed, 
plus any applicable interest as provided in section 9 of this appendix, 
as well as

[[Page 21]]

the full estimated fee associated with any new request before the agency 
begins to process that new or subsequent request.

                      Section 9. Interest charges.

    On requests that result in fees being assessed, agencies may begin 
levying interest charges on an upaid bill starting on the 31st day 
following the day on which the billing was sent. Interest will be at the 
rate prescribed in 31 U.S.C. 3717, and will accrue from the date of the 
billing.

         Section 10. Effect of the Debt Collection Act on fees.

    In attempting to collect fees levied under the FOIA, agencies shall 
abide by the provisions of 31 U.S.C. 3701, 3711-3720A, in disclosing 
information to consumer reporting agencies and in the use of collection 
agencies, where appropriate, to encourage payment.

Section 11. Photographic and digital reproductions of microfilm, aerial 
                           imagery, and maps.

    Microfilm, aerial imagery, and maps that have been obtained in 
connection with the authorized work of this Department may be sold at 
the estimated cost of furnishing reproductions of these records, using 
photographic, digital, or other methods of reproduction as prescribed in 
this appendix.

     Section 12. Agencies which furnish photographic reproductions.

    (a) Aerial Photographic reproductions. The following agency of the 
Department furnishes aerial photographic reproductions:
    Farm Service Agency (FSA), Aerial Photography Field Office (APFO), 
USDA, 2222 West 2300 South, Salt Lake City, Utah 84119-2020.
    (b) Other photographic reproductions. Other types of reproductions 
may be obtained from the following agency of the Department:
    National Agricultural Library, Agricultural Research Service, USDA, 
Office of the Deputy Director, Technical Information Systems, Room 200, 
NAL Building, Beltsville, MD 20705.

  Section 13. Circumstances under which reproductions may be provided 
                                  free.

    Reproductions may be furnished free at the discretion of the agency, 
if it determines that furnishing free reproductions is in the public 
interest, to:
    (a) Representatives of the news media for dissemination to the 
general public.
    (b) Agencies of State and local governments carrying on a function 
related to that of the Department when it will help to accomplish an 
objective of the Department.
    (c) Cooperators and others furthering agricultural programs. 
Generally, only one print of each photograph should be provided free.

                           Section 14. Loans.

    Aerial photographic film negatives or reproductions may not be 
loaned outside the Federal Government.

    Section 15. Sales of positive prints under government contracts.

    The annual contract for furnishing single and double frame slide 
film negatives and positive prints to agencies of the Department, County 
Extension Agents, and others cooperating with the Department, carries a 
stipulation that the successful bidder must agree to furnish slide film 
positive prints to such persons, organizations, and associations as may 
be authorized by the Department to purchase them.

               Section 16. Procedure for handling orders.

    In order to expedite handling, all orders should contain adequate 
identifying information. Agencies furnishing aerial photographic 
reproductions require that all such orders identify the photographs. 
Each agency has its own procedure and order forms.

                    Section 17. Reproduction prices.

    The prices for reproductions listed in this section are for the most 
generally requested items.
    (a) National Agricultural Library. The following prices are 
applicable to National Agricultural Library items only: Reproduction of 
electrostatic, microfilm, and microfiche copy--$5.00 for the first 10 
pages or fraction thereof, and $3.00 for each additional 10 pages or 
fraction thereof. Duplication of NAL-owned microfilm--$10.00 per reel. 
Duplication of NAL-owned microfiche--$5.00 for the first fiche, and 
$0.50 for each additional fiche. Charges for manual and automated data 
base searches for bibliographic or other research information will be 
made in accordance with section 4, paragraphs (c)-(e) of this appendix. 
The contract rate charged by the commercial source to the National 
Agricultrual Library for computer services is available at the National 
Agricultural Library, Agricultural Research Service, USDA, Document 
Delivery Services Branch, 10301 Baltimore Boulevard, Beltsville, 
Maryland 20705-2351 (301-504-6503).
    (b) General photographic reproductions. Minimum charge $1 per order. 
An extra charge may be necessary for excessive laboratory time caused by 
any special instructions from the purchaser.

------------------------------------------------------------------------
                     Class of work and unit                        Price
------------------------------------------------------------------------
1. Black and white line negatives:
    4 by 5 (each................................................   $6.00
    8 by 10 (each)..............................................    8.50

[[Page 22]]

 
    11 by 14 (each).............................................   11.00
2. Black and white continuous tone negatives:
    4 by 5 (each)...............................................    8.50
    8 by 10 (each)..............................................   11.00
3. Black and white enlargements: 8 by 10 and smaller (each).....    6.50
    11 by 14 (each).............................................   11.00
    Larger sizes and quantities.................................   (\1\)
4. Black and white slides:
    2x2 cardboard mounted (from copy negative) (each)...........    4.00
    Blue ozalid slides (each)...................................    5.00
5. Color slides: (2x2 cardboard mounted):
    Duplicate color slides:
        Display quality (each) (Display color slides are slides      .65
         copied from 35mm color slides only)....................
        Repro quality (each)....................................   (\1\)
        Original color slides (from flat copy) (each)...........    6.50
6. Color enlargements and transparencies: 4 by 5 and larger.....   (\1\)
7. Slide sets:
    1 to 50 frames..............................................   14.50
    51 to 60 frames.............................................   16.50
    61 to 75 frames.............................................   18.50
    76 to 95 frames.............................................   21.50
    96 to 105 frames............................................   23.00
    106 to 130 frames (Prices include printed narrative guide)..   26.50
8. Cassettes: (for the corresponding slide sets above)..........    3.00
------------------------------------------------------------------------
\1\ By quotation.

    (c) General aerial photographic reproductions. The prices for 
various types of aerial photographic reproductions are set forth in this 
paragraph. Size measurements refer to the approximate size in inches of 
the paper required to produce the reproduction.

------------------------------------------------------------------------
                             Size                                 Price
------------------------------------------------------------------------
                 Black and White Reproductions
---------------------------------------------------------------
10x10 Paper...................................................     $5.00
10x10 Film Positive...........................................     10.00
10x10 Film Positive AT........................................     10.00
10x10 Film Positive Scan......................................     15.00
10x10 Film Duplicate Negative.................................      3.00
10x10 Film Internegative......................................      4.50
12x12 Paper...................................................     12.00
17x17 Paper...................................................     13.00
17x17 Film Positive...........................................     25.00
24x24 Paper...................................................     16.00
24x24 Film Positive...........................................     40.00
38x38 Paper...................................................     50.00
38x38 Film Positive...........................................     55.00
20x24 Paper Photo Index.......................................     20.00
Paper Line Index..............................................     15.00
Mylar Line Index..............................................     35.00
Microfilm (Photo Indexes): Aperture Cards.....................     10.00
 
Microfilm (Photo Indexes): Microfiche.........................     10.00
---------------------------------------------------------------
                      Color Negative Reproductions
------------------------------------------------------------------------
10x10 Paper Quantities:
    1-50......................................................     $7.00
    51-1000...................................................      5.00
    1001 & Over...............................................      2.50
10x10 Film Positive...........................................     33.00
20x20 Paper...................................................     40.00
24x24 Paper...................................................     55.00
 
38x38 Paper...................................................     70.00
---------------------------------------------------------------
                  Color Infrared Positive Reproductions
------------------------------------------------------------------------
10x10 Paper...................................................    $12.00
10x10 Film Positive...........................................     15.00
10x10 Film Positive AT........................................     15.00
10x10 Film Positive Scan......................................     20.00
20x20 Paper...................................................     32.00
24x24 Paper...................................................     40.00
38x38 Paper...................................................     70.00
------------------------------------------------------------------------

    (d) [Reserved]
    (e) Special needs. For special needs not covered elsewhere in this 
section, persons desiring aerial photographic reproductions should 
contact the aerial photography coordinator, Farm Service Agency (FSA), 
Aerial Photography Field Office, USDA-FSA, 2222 West 2300 South, P.O. 
Box 30010, Salt Lake City, Utah 84125.
    (f) Audio and videotape reproductions. For reproductions of audio-
videotapes, requesters must supply their own recording tape, and will be 
assessed a fee of $25.00 an hour for copying work requested. There is a 
one-hour minimum charge. Payment is required at the time video or 
audiotapes are accepted by the requester.

[52 FR 49386, Dec. 31, 1987, as amended at 62 FR 33980, June 24, 1997; 
64 FR 3395, Jan. 22, 1999]



                   Subpart B_Departmental Proceedings



Sec. 1.26  Representation before the Department of Agriculture.

    (a) Applicability. This section applies to all hearings and other 
proceedings before the Department of Agriculture, except to the extent 
that any other regulation of the Department may specifically make this 
section, or any part of this section, inapplicable as to particular 
hearings or other proceedings.
    (b) Administrative provisions. (1) In any hearing or other 
proceeding before the Department of Agriculture, the parties may appear 
in person or by counsel or other representative. Persons who appear as 
counsel or in a representative capacity in any hearing or proceeding 
must conform to the standards of ethical conduct required of 
practitioners before the U.S. District Court for the District of 
Columbia, and to any applicable standards of ethical conduct established 
by statutes, executive orders and regulations.

[[Page 23]]

    (2) Whenever the Secretary finds, after notice and opportunity for 
hearing, that a person who is acting or has acted as counsel or 
representative in any hearing or other proceeding before the Department 
has not conformed to any such standards of ethical conduct, the 
Secretary may order that such person be precluded from acting as counsel 
or representative in any hearing or other proceeding before the 
Department for such period of time as the Secretary deems warranted. 
Whenever the Secretary has probable cause to believe that any person who 
is acting or has acted as counsel or representative in any such hearing 
or other proceeding has not conformed to any such standards of ethical 
conduct, the Secretary may, by written notice to such person, suspend 
the person from acting as such a counsel or representative pending 
completion of the procedures specified in the preceding sentence.
    (3) No employee or former employee of the Department shall be 
permitted to represent any person before the Department in connection 
with any particular matter as to which by reason of employment with the 
Department the employee or former employee acquired personal knowledge 
of such a nature that it would be improper, unethical, or contrary to 
the public interest for the employee or former employee so to act.
    (4) This section shall not be construed to prevent an employee or 
former employee of the Department from appearing as a witness in any 
hearing or other proceeding before the Department.

(18 U.S.C. 203, 205, 207)

[32 FR 5458, Apr. 1, 1967, as amended at 60 FR 66480, Dec. 22, 1995]



Sec. 1.27  Rulemaking and other notice procedures.

    (a) This section shall apply to:
    (1) Notices of proposed rulemaking;
    (2) Interim final rules;
    (3) Advance notices of proposed rulemaking; and
    (4) Any other published notice that solicits, or affords interested 
members of the public an opportunity to submit, written views with 
respect to any proposed action relating to any program administered in 
the Department regardless of the fact that the issuance of a rule may 
not be contemplated.
    (b) Each notice identified in paragraph (a) of this section shall 
indicate the procedure to be followed with respect to the notice, unless 
the procedure is prescribed by statute or by published rule of the 
Department. Each notice shall contain a statement that advises the 
public of the policy regarding the availability of written submissions 
by indicating whether paragraph (c), (d), or (e) of this section is 
applicable to written submissions made pursuant to the notice.
    (c) All written submissions made pursuant to the notice shall be 
made available for public inspection at times and places and in a manner 
convenient to the public business.
    (d)(1) Any written submission, pursuant to a notice, may be held 
confidential if the person making the submission requests that the 
submission be held confidential, the person making the submission has 
shown that the written submission may be withheld under the Freedom of 
Information Act, and the Department official authorized to issue the 
notice determines that the submission may be withheld under the Freedom 
of Information Act.
    (2) If a request is made in accordance with paragraph (d)(1) of this 
section for confidential treatment of a written submission, the person 
making the request shall be informed promptly in the event the request 
is denied and afforded an opportunity to withdraw the submission.
    (3) If a determination is made to grant a request for confidential 
treatment under paragraph (d)(1) of this section, a statement of the 
specific basis for the determination that will not be susceptible of 
identifying the person making the request will be made available for 
public inspection.
    (e) If the subject of the notice is such that meaningful submissions 
cannot be expected unless they disclose information that may be withheld 
under the Freedom of Information Act, the notice shall so indicate and 
contain a statement that written submissions pursuant to the notice will 
be treated as confidential and withheld under the Freedom of Information 
Act. Provided, That the policy regarding availability of

[[Page 24]]

written submissions set forth in this paragraph may only be used with 
the prior approval of the Secretary, or the Under Secretary or Assistant 
Secretary that administers the program that is the subject of the 
notice.

[60 FR 66480, Dec. 22, 1995]



Sec. 1.28  Petitions.

    Petitions by interested persons in accordance with 5 U.S.C. 553(e) 
for the issuance, amendment or repeal of a rule may be filed with the 
official that issued or is authorized to issue the rule. All such 
petitions will be given prompt consideration and petitioners will be 
notified promptly of the disposition made of their petitions.

[11 FR 177A-233, Sept. 11, 1946. Redesignated at 13 FR 6703, Nov. 16, 
1948, as amended at 60 FR 66481, Dec. 22, 1995]



Sec. 1.29  Subpoenas relating to investigations under statutes 
administered by the Secretary of Agriculture.

    (a) Issuance of subpoena. (1) When the Secretary is authorized by 
statute to issue a subpoena in connection with an investigation being 
conducted by the Department, the attendance of a witness and the 
production of evidence relating to the investigation may be required by 
subpoena at any designated place, including the witness' place of 
business. Upon request of any representative of the Secretary involved 
in connection with the investigation, the subpoena may be issued by the 
Secretary, the Inspector General, or any Department official authorized 
pursuant to part 2 of this title to administer the program to which the 
subpoena relates, if the official who is to issue the subpoena is 
satisfied as to the reasonableness of the grounds, necessity, and scope 
of the subpoena. Except as provided in paragraph (a)(2) of this section, 
the authority to issue subpoenas may not be delegated or redelegated by 
the head of an agency.
    (2) The Administrator, Grain Inspection, Packers and Stockyards 
Administration, may delegate the authority to issue subpoenas in 
connection with investigations being conducted under the Packers and 
Stockyards Act (7 U.S.C. 181-229), to the Deputy Administrator, Packers 
and Stockyards Programs.
    (3) In the case of a subpoena issued under the Animal Health 
Protection Act (7 U.S.C. 8301-8317), Plant Protection Act (7 U.S.C. 
7701-7772), or Title V of the Agricultural Risk Protection Act of 2000 
(7 U.S.C. 2279e-2279f), the subpoena will be reviewed for legal 
sufficiency by the Office of the General Counsel, USDA.
    (b) Service of subpoena. (1) A subpoena issued pursuant to this 
section may be served by:
    (i) A U.S. Marshal or Deputy Marshal,
    (ii) Any other person who is not less than 18 years of age, or
    (iii) Certified or registered mailing of a copy of the subpoena 
addressed to the person to be served at his, her, or its last known 
residence or principal place of business or residence.
    (2) Proof of service may be made by the return of service on the 
subpoena by the U.S. Marshal, or Deputy Marshal; or, if served by an 
individual other than a U.S. Marshal or Deputy Marshal, by an affidavit 
or certification of such person stating that he or she personally served 
a copy of the subpoena upon the person named in the subpoena; or, if 
service was by certified or registered mail, by the signed Postal 
Service receipt.
    (3) In making personal service, the person making service shall 
leave a copy of the subpoena with the person subpoenaed; and the 
original, bearing or accompanied by the required proof of service, shall 
be returned to the official who issued the subpoena.

[39 FR 15277, May 2, 1974, as amended at 40 FR 58281, Dec. 16, 1975; 42 
FR 65131, Dec. 30, 1977; 43 FR 12673, Mar. 27, 1978; 60 FR 66481, Dec. 
22, 1995; 66 FR 36907, July 16, 2001; 67 FR 70674, Nov. 26, 2002]



                     Subpart C_Judicial Proceedings



Sec. 1.41  Service of process.

    Process in any suit brought in Washington, District of Columbia, 
against the United States or any officer of the U.S. Department of 
Agriculture in any matter involving the activities of this Department, 
shall be served on the General Counsel of the Department. A U.S. Marshal 
or other process server attempting to serve process in such a suit on 
any officer of the Department

[[Page 25]]

shall be referred to the Office of the General Counsel, in order that 
service of process may be made. In the event an officer of the 
Department of Agriculture is served with process in such a suit, the 
officer shall immediately notify the General Counsel. Any subpoena, 
summons, or other compulsory process requiring an officer or employee to 
give testimony, or to produce or disclose any record or material of the 
U.S. Department of Agriculture, shall be served on the officer or 
employee of the U.S. Department of Agriculture named in the subpoena, 
summons, or other compulsory process.

[19 FR 4052, July 3, 1954, as amended at 33 FR 10273, July 18, 1968; 43 
FR 6202, Feb. 14, 1978; 60 FR 66481, Dec. 22, 1995]



                            Subpart D_Claims



Sec. 1.51  Claims based on negligence, wrongful act or omission.

    (a) Authority of the Department. Under the provisions of the Federal 
Tort Claims Act (FTCA), as amended, 28 U.S.C. 2671-2680, and the 
regulations issued by the Department of Justice (DOJ) contained in 28 
CFR part 14, the United States Department of Agriculture (USDA) may, 
subject to the provisions of the FTCA and DOJ regulations, consider, 
ascertain, adjust, determine, compromise, and settle claims for money 
damages against the United States for personal injury, death, or 
property loss or damage caused by the negligent or wrongful act or 
omission of any employee of USDA while acting within the scope of his or 
her office or employment, under circumstances where the United States, 
if it were a private person, would be liable, in accordance with the law 
of the place where the act or omission occurred.
    (b) Procedure for filing claims. Claims must be presented by the 
claimant, or by his or her duly authorized agent or legal representative 
as specified in 28 CFR 14.3. Standard Form 95, Claim for Damage or 
Injury, may be obtained from the agency within USDA that employs the 
employee who allegedly committed the negligent or wrongful act or 
omission. The completed claim form, together with appropriate evidence 
and information, as specified in 28 CFR 14.4, shall be filed with the 
agency from which it was obtained.
    (c) Determination of claims--(1) Delegation of authority to 
determine claims. The General Counsel, and such employees of the Office 
of the General Counsel as may be designated by the General Counsel, are 
hereby authorized to consider, ascertain, adjust, determine, compromise, 
and settle claims pursuant to the FTCA, as amended, and the regulations 
contained in 28 CFR part 14 and in this section.
    (2) Disallowance of claims. If a claim is denied, the General 
Counsel, or his or her designee, shall notify the claimant, or his or 
her duly authorized agent or legal representative.

[61 FR 57577, Nov. 7, 1996]



          Subpart E_Cooperative Production of Television Films

    Source: 22 FR 2904, Apr. 25, 1957, unless otherwise noted.



Sec. 1.71  Purpose.

    This subpart establishes procedures for developing special working 
relationships with the Department of Agriculture requested by producers 
of films for television use. These procedures are designed to guide 
Department employees and producers of commercial television pictures in 
entering into such arrangements.



Sec. 1.72  Policy.

    (a) General. It is a basic policy of the Department of Agriculture 
to make information freely available to the public.
    (b) Cooperation with television film producers. The Department 
recognizes that its people and programs constitute a rich source of 
materials on public services, often dramatic and interesting for their 
human values, which are suitable for production of films for television 
showings. The Department welcomes the interest of television film 
producers in its activities and maintains an ``open door'' policy with 
respect to the availability of factual information to such producers, as 
it does to representatives of other media. As its resources will permit, 
the Department

[[Page 26]]

will work with producers at their request, to assure technical accuracy 
of scripts and story treatments.
    (c) Special working relationships. In those instances where a 
producer of films for television seeks special Department participation 
such as the use of official insignia of the Department, or who request 
special assistance such as the services of technical advisors, use of 
Government equipment and similar aids which require a material 
expenditure of public funds, and where the proposed film will further 
the public service of the Department, the Department will consider 
entering into a special working relationship with such producer.
    (d) News film reporting exempted. Television and news film reporting 
of Department activities is not covered by this subpart.



Sec. 1.73  Responsibility.

    The Director of Information or his designee will be the authority 
for the approval of special working relationships on the part of the 
Department of Agriculture and its agencies. The Director or his designee 
shall not commit the Department to such special arrangements without 
proper concurrence and coordination with interested agencies and 
approval by the appropriate Assistant Secretary or Group Director.



Sec. 1.74  Basis for special working relationships.

    The Department and its agencies may lend special assistance on 
television films when it is clearly evident that public interests are 
served. Where special assistance is sought, an individual cooperative 
agreement will be drawn up between the Department with the Director of 
Information as its agent, and the producer. Details on such assistance 
as reviewing stories and scripts, loan of material, arrangements for 
locations, use of official motion picture footage, assignment of 
technical advisors and similar aids will be covered in the agreement, 
which shall delineate the general stipulations listed in Sec. 1.75.



Sec. 1.75  General stipulations.

    In requesting special working arrangements the producer must agree 
to the following stipulations:
    (a) The producer must show that he has legal authority to the 
literary property concerned.
    (b) The producer must show access to a distribution channel 
recognized by the motion picture or television industry. In lieu of 
complete distribution plans for a television series, a producer must 
produce satisfactory evidence of financial responsibility (showing 
financial resources adequate for the defrayment of costs for the 
proposed undertaking).
    (c) The commercial advertising of any show produced, using oral or 
written rights granted to the producer, shall not indicate any 
endorsement, either direct or implied, by the U.S. Department of 
Agriculture or its agencies, of the sponsor's product.
    (d) Commercial sponsorship shall be only by a person, firm, or 
corporation acceptable under the terms of the 1954 Television Code of 
the National Association of Radio and Television Broadcasters, and all 
subsequent amendments thereto. Political sponsorship shall not be 
permitted.
    (e) That no production costs shall be chargeable to the U.S. 
Department of Agriculture.
    (f) That such cooperation will not interfere with the conduct of 
Department programs.
    (g) All damages, losses and personal liability incurred by producer 
will be his responsibility.
    (h) That mutual understanding and agreement will be reached upon 
story, script and film treatment with the Department before film 
production is begun.



Sec. 1.76  Department cooperation.

    When the producer agrees to meet the above stipulations to the 
satisfaction of the Director of Information, the U.S. Department of 
Agriculture and its agencies will be available for consultation on story 
ideas and give guidance through the services of a technical advisor to 
insure technical authenticity. Equipment, locations, and personnel will 
be available to the extent that such availability is concurrent with

[[Page 27]]

normal and usual conduct of the operations of the Department. The 
Department will check and work with the cooperators to arrange shooting 
schedules in order to avoid interferences with working schedules.



Sec. 1.77  Assignment of priorities.

    (a) Authority. (1) The Director of Information or his designee will 
make assignment of priorities for the U.S. Department of Agriculture for 
a television film company's and/or individual producer's story treatment 
of the subject matter, but no such priority shall limit use of the 
subject matter itself.
    (2) A priority will be given in writing upon acceptance in writing 
by the producer of the stipulations in Sec. 1.75(b). The U.S. 
Department of Agriculture will hold the producer's treatment of the 
story material in confidence until the producer has made a public 
release pertaining to the subject.
    (b) Time and scope. A priority will be given on the producer's story 
treatment for an agreed upon period of time. Requests for cooperation 
with similar or conflicting ideas and backgrounds will be considered 
only after holder of the first priority has used the agreed upon time to 
develop the materials.
    (1) Details on priorities will be written into the agreements.
    (2) The Director of Information will retain the right to cancel 
priorities when the producer at any stage violates the provisions of the 
regulations or of a particular agreement, or when public interest is no 
longer served.
    (3) No priority will be canceled until the producer has had an 
opportunity to appear before the Secretary of Agriculture or his 
designee.



Sec. 1.78  Development of special working relationships.

    (a) Preliminary. Prior to the submittal of a script or the rendering 
of an agreement, assistance may be given by the Department or one of its 
agencies in outlining story plans, visits to field points, and other 
incidentals that will assist the producer in determining his course of 
action.
    (b) Request for special working arrangements. Once the decision is 
made to go ahead with an agreement, either the interested agency or the 
producer will make a written submission to the Director of Information, 
requesting that special working arrangements be established.
    (1) In submitting scripts prior or subsequent to executing a written 
agreement under a special working relationship four (4) copies of the 
completed script shall be submitted to the Director of Information or 
his designee, along with a statement of specific requirements and the 
anticipated production schedule.
    (2) No script will be used under a special working relationship 
without the specific approval of the Director of Information.
    (3) Upon approval of the script, the agency of the Department 
concerned with subject matter will endeavor to arrange for the desired 
assistance with the stipulations of this policy.



Sec. 1.79  Credits.

    On films on which the Department or one of its agencies provides 
special assistance it shall be mutually agreed by the producer and the 
Director of Information what credits shall be given to the Department, 
and the form these credits will take.



                    Subpart G_Privacy Act Regulations

    Authority: 5 U.S.C. 301 and 552a; 31 U.S.C. 9701.

    Source: 40 FR 39519, Aug. 28, 1975, unless otherwise noted.



Sec. 1.110  Purpose and scope.

    This subpart contains the regulations of the U.S. Department of 
Agriculture (USDA) implementing the Privacy Act of 1974 (5 U.S.C. 552a). 
This subpart sets forth the basic responsibilities of each agency of 
USDA with regard to USDA's compliance with the requirements of the 
Privacy Act, and offers guidance to members of the public who wish to 
exercise any of the rights established by the Privacy Act with regard to 
records maintained by an agency of USDA.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]

[[Page 28]]



Sec. 1.111  Definitions.

    For purposes of this subpart the terms individual, maintain, record, 
system of records, statistical record, and routine use shall have the 
meanings set forth in 5 U.S.C. 552a(a). The term agency shall mean an 
agency of USDA, unless otherwise indicated.



Sec. 1.112  Procedures for requests pertaining to individual records 
in a record system.

    (a) Any individual who wishes to be notified if a system of records 
maintained by an agency contains any record pertaining to him or her, or 
to request access to such records, shall submit a written request in 
accordance with the instructions set forth in the system notice for that 
system of records. This request shall include:
    (1) The name of the individual making the request;
    (2) The name of the system of records (as set forth in the system 
notice to which the request relates);
    (3) Any other information specified in the system notice; and
    (4) When the request is one for access, a statement as to whether 
the requester desires to make a personal inspection of the records, or 
be supplied with copies by mail.
    (b) Any individual whose request under paragraph (a) of this section 
is denied may appeal that denial to the head of the agency which 
maintains the system of records to which the request relates.
    (c) In the event that an appeal under paragraph (b) of this section 
is denied, the requester may bring a civil action in federal district 
court to seek review of the denial.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]



Sec. 1.113  Times, places, and requirements for identification of 
individuals making requests.

    (a) If an individual submitting a request for access under Sec. 
1.112 has asked that an agency authorize a personal inspection of 
records pertaining to him or her, and the agency has granted that 
request, the requester shall present himself or herself at the time and 
place specified in the agency's response or arrange another, mutually 
convenient, time with the appropriate agency official.
    (b) Prior to inspection of the records, the requester shall present 
sufficient identification (e.g., driver's license, employee 
identification card, social security card, credit cards) to establish 
that the requester is the individual to whom the records pertain. If the 
requester is unable to provide such identification, the requester shall 
complete and sign in the presence of an agency official a signed 
statement asserting the requester's identity and stipulating that the 
requester understands that knowingly or willfully seeking or obtaining 
access to records about another individual under false pretenses is a 
misdemeanor punishable by fine up to $5,000. No identification shall be 
required, however, if the records are required by 5 U.S.C. 552 to be 
released.
    (c) Any individual who has requested access to records about himself 
or herself by personal inspection, and who wishes to have another person 
or persons accompany the requester during this inspection, shall submit 
a written statement authorizing disclosure of the record in the presence 
of such other person or persons.
    (d) Any individual having made a personal inspection of records 
pertaining to the requester may request the agency to provide the 
requester copies of those records or any portion of those records. Each 
agency shall grant such requests but may charge fees in accordance with 
Sec. 1.120.
    (e) If an individual submitting a request for access under Sec. 
1.112 wishes to be supplied with copies of the records by mail, the 
requester shall include with his or her request sufficient data for the 
agency to verify the requester's identity. If the sensitivity of the 
records warrant it, however, the agency to which the request is directed 
may require the requester to submit a signed, notarized statement 
indicating that the requester is the individual to whom the records 
pertain and stipulating the requester understands that knowingly or 
willfully seeking or obtaining access to records about another 
individual under false pretenses is a misdemeanor punishable by fine up 
to

[[Page 29]]

$5,000. No identification shall be required, however, if the records are 
required by 5 U.S.C. 552 to be released. If the agency to which this 
request is directed determines to grant the requested access, it may 
charge fees in accordance with Sec. 1.120 before making the necessary 
copies.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]



Sec. 1.114  Disclosure of requested information to individuals.

    (a) Any agency which receives a request or appeal under Sec. 1.112 
should acknowledge the request or appeal within 10 days of its receipt 
(excluding Saturdays, Sundays, and legal public holidays). Wherever 
practicable, the acknowledgment should indicate whether or not access 
will be granted and, if so, when and where. When access is to be 
granted, the agency should provide the access within 30 days of receipt 
of the request or appeal (excluding Saturdays, Sundays and legal public 
holidays) unless, for good cause shown, it is unable to do so. If the 
agency is unable to meet this deadline, it shall inform the requester of 
this fact, the reasons for its inability to do so, and an estimate of 
the date on which access will be granted.
    (b) Nothing in 5 U.S.C. 552a or this subpart shall be interpreted to 
require that an individual making a request under Sec. 1.112 be granted 
access to the physical record itself. The form in which a record is kept 
(e.g., on magnetic tape), or the content of the record (e.g., a record 
indexed under the name of the requester may contain records which are 
not about the requester) may require that the record be edited or 
translated in some manner. Neither of these procedures may be utilized, 
however, to withhold information in a record about the requester.
    (c) No agency shall deny any request under Sec. 1.112 for 
information concerning the existence of records about the requester in 
any system of records it maintains, or deny any request for access to 
records about the requester in any system of records it maintains, 
unless that system is exempted from the requirements of 5 U.S.C. 552a(d) 
in Sec. 1.123.
    (d) If any agency receives a request pursuant to Sec. 1.112(a) for 
access to records in a system of records it maintains which is so 
exempted, the system manager shall determine if the exemption is to be 
asserted. If the system manager determines to deny the request, the 
system manager shall inform the requester of that determination, the 
reason for the determination, and the title and address of the agency 
head to whom the denial can be appealed.
    (e) If the head of an agency determines that an appeal pursuant to 
Sec. 1.112(b) is to be denied, the head of the agency shall inform the 
requester of that determination, the reason for the determination, and 
the requester's right under 5 U.S.C. 552a(g) to seek judicial review of 
the denial in Federal district court.
    (f) Nothing in 5 U.S.C. 552a or this subpart shall allow an 
individual access to any information compiled in reasonable anticipation 
of a civil action or proceeding.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]



Sec. 1.115  Special procedures: Medical records.

    In the event an agency receives a request pursuant to Sec. 1.112 
for access to medical records (including psychological records) whose 
disclosure it determines would be harmful to the individual to whom they 
relate, it may refuse to disclose the records directly to the requester 
but shall transmit them to a doctor designated by that individual.



Sec. 1.116  Request for correction or amendment to record.

    (a) Any individual who wishes to request correction or amendment of 
any record pertaining to him or her contained in a system of records 
maintained by an agency shall submit that request in writing in 
accordance with the instructions set forth in the system notice for that 
system of records. This request shall include:
    (1) The name of the individual making the request;
    (2) The name of the system of records (as set forth in the system 
notice to which the request relates);

[[Page 30]]

    (3) A description of the nature (e.g., modification, addition or 
deletion) and substance of the correction or amendment requested; and
    (4) Any other information specified in the system notice.
    (b) Any individual submitting a request pursuant to paragraph (a) of 
this section shall include sufficient information in support of that 
request to allow the agency to which it is addressed to apply the 
standards set forth in 5 U.S.C. 552a(e) (1) and (5).
    (c) Any individual whose request under paragraph (a) of this section 
is denied may appeal that denial to the head of the agency which 
maintains the system of records to which the request relates.
    (d) In the event that an appeal under paragraph (c) of this section 
is denied, the requester may bring a civil action in federal district 
court to seek review of the denial.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]



Sec. 1.117  Agency review of request for correction or amendment of 
record.

    (a) Any agency which receives a request for amendment or correction 
under Sec. 1.116 shall acknowledge that request within 10 days of its 
receipt (excluding Saturdays, Sundays and legal public holidays). The 
agency shall also promptly, either:
    (1) Make any correction, deletion or addition with regard to any 
portion of a record which the requester believes is not accurate, 
relevant, timely or complete; or
    (2) Inform the requester of its refusal to amend the record in 
accordance with the request; the reason for the refusal; the procedures 
whereby the requester can appeal the refusal to the head of the agency; 
and the title and business address of that official. If the agency 
informs the requester of its determination within the 10-day deadline, a 
separate acknowledgement is not required.
    (b) If an agency is unable to comply with either paragraphs (a)(1) 
or (2) of this section within 30 days of its receipt of a request for 
correction or amendment, (excluding Saturdays, Sundays and legal public 
holidays), it should inform the requester of that fact, the reasons for 
the inability to comply with paragraphs (a)(1) or (a)(2) of this section 
within 30 days, and the approximate date on which a determination will 
be reached.
    (c) In conducting its review of a request for correction or 
amendment, each agency shall be guided by the requirements of 5 U.S.C. 
552a(e)(1) and (5).
    (d) If an agency determines to grant all or any portion of a request 
for correction or amendment, it shall:
    (1) Advise the individual of that determination;
    (2) Make the requested correction or amendment; and
    (3) Inform any person or agency outside USDA to whom the record has 
been disclosed, if an accounting of that disclosure is maintained in 
accordance with 5 U.S.C. 552a(c), of the occurrence and substance of the 
correction or amendments.
    (e) If an agency determines not to grant all or any portion of a 
request for correction or amendment, it shall:
    (1) Comply with paragraph (d) of this section with regard to any 
correction or amendment which is made;
    (2) Advise the requester of its determination and the reasons for 
the determination not to grant all or a portion of the request for a 
correction or amendment;
    (3) Inform the requester that he or she may appeal this 
determination to the head of the agency which maintains the system of 
records; and
    (4) Describe the procedures for making such an appeal, including the 
title and business address of the official to whom the appeal is to be 
addressed.
    (f) In the event that an agency receives a notice of correction or 
amendment to information in a record contained in a system of records 
which it maintains, it shall comply with paragraphs (d)(2) and (3) of 
this section in the same manner as if it had made the correction or 
amendment itself.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]



Sec. 1.118  Appeal of initial adverse agency determination on correction 
or amendment.

    (a) Any individual whose request for correction or amendment under 
Sec. 1.116 is denied, and who wishes to appeal

[[Page 31]]

that denial, shall address such appeal to the head of the agency which 
maintains the system of records to which the request relates, in 
accordance with the procedures set forth in the agency's initial denial 
of the request.
    (b) The head of each agency shall make a final determination with 
regard to an appeal submitted under paragraph (a) of this section not 
later than 30 days (excluding Saturdays, Sundays, and legal public 
holidays) from the date on which the individual requests a review, 
unless, for good cause shown, the head of the agency extends this 30-day 
period and so notifies the requester, together with an estimate of the 
date on which a final determination will be made. Such extension should 
be utilized only in exceptional circumstances and should not normally 
exceed 30 days. The delegation of authority set forth in this paragraph 
may not be redelegated.
    (c) In conducting a review of an appeal submitted under paragraph 
(a) of this section, the head of an agency shall be guided by the 
requirements of 5 U.S.C. 552a(e)(1) and (5).
    (d) If the head of an agency determines to grant all or any portion 
of an appeal submitted under paragraph (a) of this section, the head of 
the agency shall inform the requester and the agency shall comply with 
the procedures set forth in Sec. 1.117(d)(2) and (d)(3).
    (e) If the head of an agency determines in accordance with paragraph 
(c) of this section not to grant all or any portion of an appeal 
submitted under paragraph (a) of this section, the head of the agency 
shall inform the requester:
    (1) Of this determination and the reasons for the determination;
    (2) Of the requester's right to file a concise statement of the 
requester's reasons for disagreeing with the agency's decision;
    (3) Of the procedures for filing such a statement of disagreement;
    (4) That such statements of disagreements will be made available to 
anyone to whom the record is subsequently disclosed, together with (if 
the agency deems it appropriate) a brief statement by the agency 
summarizing its reasons for refusing to amend the record;
    (5) That prior recipients of the disputed record will be provided 
with a copy of the statement of disagreement, together with (if the 
agency deems it appropriate) a brief statement of the agency's reasons 
for refusing to amend the record, to the extent that an accounting of 
disclosures is maintained under 5 U.S.C. 552a(c); and
    (6) Of the requester's right to seek judicial review of the agency's 
determination in accordance with 5 U.S.C. 552a(g). The agency shall 
insure that any statements of disagreement submitted by a requester are 
handled in accordance with paragraphs (e)(4) and (5) of this section.

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]



Sec. 1.119  Disclosure of record to person other than the individual 
to whom it pertains.

    No agency shall disclose any record which is contained in a system 
of records it maintains, by any means of communication to any person, or 
to another agency outside USDA, except pursuant to a written request by, 
or with the prior written consent of, the individual to whom the record 
pertains, unless the disclosure is authorized by one or more provisions 
of 5 U.S.C. 552a(b).



Sec. 1.120  Fees.

    Any agency which provides copies of records pursuant to a request 
under this subpart may charge fees for the direct costs of producing 
such copies in accordance with appendix A to subpart A of this part. No 
agency, however, shall charge any fee for searches necessary to locate 
records. Nor shall an agency charge any fees for copies or searches, 
when the requester sought to make a personal inspection but was provided 
copies instead at the discretion of the agency.



Sec. 1.121  Penalties.

    The criminal penalties which have been established for violations of 
the Privacy Act of 1974 are set forth in 5 U.S.C. 552a(i). These 
penalties are applicable to any officer or employee of an agency who 
commits any of the acts enumerated in 5 U.S.C. 552a(i). These penalties 
also apply to contractors and

[[Page 32]]

employees of such contractors who enter into contracts with an agency of 
USDA and who are considered to be employees of the agency within the 
meaning of 5 U.S.C. 552a(m)(1).

[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33982, June 24, 1997]



Sec. 1.122  General exemptions.

    Pursuant to 5 U.S.C. 552a(j), and for the reasons set forth in 54 FR 
11204-11206 (March 17, 1989), the systems of records (or portions of 
systems of records) maintained by agencies of USDA identified in this 
section are exempted from the provisions of 5 U.S.C. 552a, except 
subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), 
(9), (10), and (11), and (i).

                       Office of Inspector General

Informant and Undercover Agent Records, USDA/OIG-2.
Investigative Files and Automated Investigative Indices System, USDA/
OIG-3.
OIG Hotline Complaint Records, USDA/OIG-4.
Consolidated Assignments, Personnel Tracking, and Administrative 
Information Network (CAPTAIN), USDA/OIG-5.

[54 FR 39517, Sept. 27, 1989, as amended at 62 FR 33982, June 24, 1997; 
62 FR 61209, Nov. 17, 1997]



Sec. 1.123  Specific exemptions.

    Pursuant to 5 U.S.C. 552a(k), the systems of records (or portions 
thereof) maintained by agencies of USDA identified below are exempted 
from the provisions of 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (H) 
and (I), and (f). The reasons for exempting each system are set out in 
the notice for that system published in the Federal Register.

                     Agricultural Marketing Service

AMS Office of Compliance Review Cases, USDA/AMS-11.

           Agricultural Stabilization and Conservation Service

EEO Complaints and Discrimination Investigation Reports, USDA/ASCS-12.
Investigation and Audit Reports, USDA/ASCS-18.
Producer Appeals, USDA/ASCS-21.

               Animal and Plant Health Inspection Service

Plant Protection and Quarantine Program--Regulatory Actions, USDA/APHIS-
1.
Veterinary Services Programs--Records of Accredited Veterinarians, USDA/
APHIS-2.
Veterinary Services Programs--Animal Quarantine Regulatory Actions, 
USDA/APHIS-3.
Veterinary Services Programs--Animal Welfare and Horse Protection 
Regulatory Actions, USDA/APHIS-4.

                       Farmers Home Administration

Credit Report File, USDA/FmHA-3.

                   Federal Crop Insurance Corporation

FCIC Compliance Review Cases, USDA/FCIC-2.

                    Federal Grain Inspection Service

Investigations Undertaken by the Government Pursuant to the United 
States Grain Standards Act of 1976, as amended, or the Agricultural 
Marketing Act of 1946, as amended, USDA/FGIS-2.

                       Food and Nutrition Service

Civil Rights Complaints and Investigations, USDA/FNS-1.
Claims Against Food Stamp Recipients, USDA/FNS-3.
Investigations of Fraud, Theft, or Other Unlawful Activities of 
Individuals Involving Food Stamps, USDA/FNS-5.

                   Food Safety and Inspection Service

Meat and Poultry Inspection Program--Slaughter, Processing and Allied 
Industries Compliance Records System, USDA/FSIS-1.

                             Forest Service

Law Enforcement Investigation Records, USDA/FS-33.

                      Office of the General Counsel

                           Regulatory Division

Cases by the Department under the Federal Meat Inspection Act, the 
Poultry Products Inspection Act, and the voluntary inspection and 
certification provisions of the Agricultural Marketing Act of 1946, 
USDA/OGC-6.
Cases by the Department under the Humane Methods of Livestock Slaughter 
Law (i.e., the Act of August 27, 1958), USDA/OGC-7.
Cases by the Department under the 28 Hour Law, as amended, USDA/OGC-8.
Cases by the Department under the various Animal Quarantine and related 
laws, USDA/OGC-9.
Cases by the Department under the various Plant Protection Quarantine 
and related laws, USDA/OGC-10.
Cases by the Department under Horse Protection Act of 1970, USDA/OGC-41.

[[Page 33]]

Cases by the Department under the Laboratory Animal Welfare Act, USDA/
OGC-42.

                     Community Development Division

Community Development Division Litigation, USDA/OGC-11.
Farmers Home Administration (FmHA) General Case Files, USDA/OGC-12.

                       Food and Nutrition Division

Claims by and against USDA under the Food Assistance Legislation, USDA/
OGC-13.
Perishable Agricultural Commodities, USDA/OGC-14.

        Foreign Agriculture and Commodity Stabilization Division

Agricultural Stabilization and Conservation Service (ASCS), Foreign 
Agricultural Service (FAS), and Commodity Credit Corporation Cases, 
USDA/OGC-15.
Federal Crop Insurance Corporation (FCIC) Cases, USDA/OGC-16.
Administrative proceedings brought by the Department, court cases in 
which the government is plaintiff and court cases in which the 
government is a defendant brought pursuant to the United States 
Warehouse Act, USDA/OGC-43.

                           Marketing Division

Administrative proceedings brought by the Department pursuant to the 
Plant Variety Protection Act, the Federal Seed Act, or the Agricultural 
Marketing Act of 1946, USDA/OGC-18.
Cases brought by the Government pursuant to the Cotton Futures 
provisions of the Internal Revenue Code of 1954, USDA/OGC-22.
Court cases brought by the Government pursuant to either the 
Agricultural Marketing Act of 1946 or the Tobacco Inspection Act, USDA/
OGC-24.
Court cases brought by the Government pursuant to either the 
Agricultural Marketing Agreement Act of 1937, as amended, or the Anti-
Hog-Cholera Serum and Hog Cholera Virus Act, USDA/OGC-25.
Court cases brought by the Government pursuant to either the Cotton 
Research and Promotion Act, Potato Research and Promotion Act, the Egg 
Research and Consumer Information Act, USDA/OGC-26.
Court cases brought by the Government pursuant to either the Export 
Apple and Pear Act or the Export Grape and Plum Act, USDA/OGC-27.
Court cases brought by the Government pursuant to either the Cotton 
Statistics and Estimates Act of 1927 or the United States Cotton 
Standards Act, USDA/OGC-28.
Court cases brought by the Government pursuant to either the Naval 
Stores Act, or the Tobacco Seed and Plant Exportation Act, USDA/OGC-29.
Court cases brought by the Government pursuant to either the Peanut 
Statistics Act or the Tobacco Statistics Act, USDA/OGC-30.
Court cases brought by the Government pursuant to either the Plant 
Variety Protection Act or the Egg Products Inspection Act, USDA/OGC-31.
Court cases brought by the Government pursuant to either the Produce 
Agency Act, or the Process of Renovated Butter Provisions of the 
Internal Revenue Code of 1954, USDA/OGC-32.
Court cases brought by the Government pursuant to either the United 
States Grain Standards Act or the Federal Seed Act, USDA/OGC-33.
Court cases brought by the Government pursuant to the Agricultural Fair 
Practices Act, USDA/OGC-34.
Cases by and against the Department under the Virus-Serum Toxin Act, 
USDA/OGC-44.

                       Office of Inspector General

Informant and Undercover Agent Records, USDA/OIG-2.
Investigative Files and Automated Investigative Indices System, USDA/
OIG-3.
OIG Hotline Complaint Records, USDA/OIG-4.
Consolidated Assignments, Personnel Tracking, and Administrative 
Information Network (CAPTAIN), USDA/OIG-5.

                     Packers and Stockyards Division

Packers and Stockyards Act, Administrative Cases, USDA/OGC-69.
Packers and Stockyards Act, Civil and Criminal Cases, USDA/OGC-70.

                    Research and Operations Division

Personnel Irregularities, USDA/OGC-75.

                         Office of the Secretary

Non-Career Applicant File, USDA/SEC-1.

[40 FR 45103, Sept. 30, 1975, as amended at 41 FR 22333, June 3, 1976; 
53 FR 5969, Feb. 29, 1988; 54 FR 5073, Feb. 1, 1989; 55 FR 41179, Oct. 
10, 1990; 62 FR 61209, Nov. 17, 1997]

         Appendix A to Subpart G of Part 1--Internal Directives

    Section 1 General requirements. Each agency that maintains a system 
of records subject to 5 U.S.C. 552a and the regulations of this subpart 
shall:
    (a) Maintain in its records only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
agency required to be accomplished by statute or by executive order of 
the President;
    (b) Collect information to the greatest extent practicable directly 
from the subject individual when the information may result in

[[Page 34]]

adverse determinations about an individual's rights, benefits, and 
privileges under Federal programs;
    (c) Inform each individual whom it asks to supply information, on 
the form which it uses to collect the information, or on a separate form 
that can be retained by the individual, of:
    (1) The authority (whether granted by statute, or by executive order 
of the President) which authorizes the solicitation of the information 
and whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses which may be made of the information, as 
published pursuant to paragraph (d)(4) of this section; and
    (4) The effects on the individual, if any, of not providing all or 
any part of the requested information;
    (d) Subject to the provisions of section 2 of this appendix, prepare 
for publication in the Federal Register at least annually a notice of 
the existence and character of each system it maintains, which notice 
shall include:
    (1) The name and location(s) of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;
    (4) Each routine use of the records contained in the system, 
including the categories of uses and the purpose of such use;
    (5) The policies and practices of the agency regarding storage, 
retrievability, access controls, retention, and disposal of the records;
    (6) The title and business address of the agency official who is 
responsible for the system of records;
    (7) The agency procedures whereby an individual can be notified at 
his or her request if the system of records contains a record pertaining 
to the individual;
    (8) The agency procedures whereby an individual can be notified at 
his or her request how the individual can gain access to any record 
pertaining to him or her contained in the system of records, and how he 
can contest its content; and
    (9) The categories of sources of records in the system;
    (e) Maintain all records which are used by the agency in making any 
determination about any individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to assure 
fairness to the individual in the determination;
    (f) Prior to disseminating any record about an individual to any 
person other than an agency, unless the dissemination is made pursuant 
to 5 U.S.C. 552a(b)(2), make reasonable efforts to assure that such 
records are accurate, complete, timely, and relevant for agency 
purposes;
    (g) Maintain no record describing how any individual exercises 
rights guaranteed by the First Amendment unless expressly authorized by 
statute or by the individual about whom the record is maintained, or 
unless pertinent to and within the scope of an authorized law 
enforcement activity;
    (h) Make reasonable efforts to serve notice on an individual when 
any record on such individual is made available to any person under 
compulsory legal process when such process becomes a matter of public 
record;
    (i) Establish rules of conduct for persons involved in the design, 
development, operation, or maintenance of any system of records, or in 
maintaining any record, and instruct each such person with respect to 
such rules and the requirements of this section, including any other 
rules and procedures adopted pursuant to this section and the penalties 
for noncompliance;
    (j) Establish appropriate administrative, technical, and physical 
safeguards to insure the security and confidentiality of records and to 
protect against any anticipated threats or hazards to their security or 
integrity which could result in substantial harm, embarrassment, 
inconvenience, or unfairness to any individual on whom information is 
maintained.
    Sec. 2 Amendment of routine uses for an existing system of records, 
or establishment of a new system of records.
    (a) Any agency which intends to add a routine use, or amend an 
existing one, in a system of records it maintains, shall, in accordance 
with 5 U.S.C. 552a(e)(11), ensure that at least 30 days advance notice 
of such action is given by publication in the Federal Register and an 
opportunity provided for interested persons to submit written data, 
views or arguments to the agency.
    (b) Any agency which intends to establish a new system of records, 
or to alter any existing system of records, shall insure that adequate 
advance notice is provided to Congress and the Office of Management and 
Budget to permit an evaluation of the probable or potential effect of 
such action on the privacy and other personal or property rights of 
individuals or the disclosure of information relating to such 
individuals, and its effect on the preservation of the constitutional 
principles of federalism and separation of powers. Such notice is 
required for any new system of records and for any alteration in an 
existing one which will:
    (1) Increase the number or types of individuals on whom records are 
maintained;
    (2) Expand the type or amount of information maintained;
    (3) Increase the number or categories of agencies or other persons 
who may have access to those records;
    (4) Alter the manner in which the records are organized so as to 
change the nature or scope of those records (e.g., the combining of two 
or more existing systems);

[[Page 35]]

    (5) Modify the way the system operates at its location(s) in such a 
manner as to alter the procedures by which individuals can exercise 
their rights under this subpart; or
    (6) Change the equipment configuration on which the system is 
operated so as to create the potential for greater access (e.g., adding 
a telecommunications capability).
    Sec. 3 Accounting of certain disclosures. Each agency, with respect 
to each system of records under its control, shall:
    (a) Except for disclosures made under 5 U.S.C. 552a(b)(1) and (2), 
keep an accurate account of:
    (1) The date, nature, and purpose of each disclosure of a record to 
any person or agency outside the Department; and
    (2) The name and address of the person or agency to whom the 
disclosure is made;
    (b) Retain the accounting made under paragraph (a) of this section 
for the longer of a period of five years, after the date of the 
disclosure for which the accounting is made, or the life of the record 
disclosed;
    (c) Except for disclosures made under 5 U.S.C. 552a(b)(7), make the 
accounting required under paragraph (a) of this section available to the 
individual named in the record at his or her request.
    Sec. 4 Government contractors. When an agency within the Department 
provides by a contract for the operation by or on behalf of the agency 
of a system of records to accomplish an agency function, the agency 
shall, consistent with its authority, cause the requirements of this 
subpart to be applied to such system. For purposes of 5 U.S.C. 552a(i) 
any such contractor or any employee of such contractor shall be 
considered to be an employee of an agency and therefore subject to the 
criminal penalties set forth in 5 U.S.C. 552a(i).
    Sec. 5 Mailing lists. No agency within the Department shall sell or 
rent any individual's name and address unless such action is 
specifically authorized by law. This section shall not be construed to 
require, or to authorize, the withholding of names and addresses whose 
disclosure is required by 5 U.S.C. 552.
    Sec. 6 Social security account numbers. (a) No agency shall deny, or 
permit any State or local government with whom it is involved in a 
cooperative venture to deny, to any individual any right, benefit, or 
privilege provided by law because of such individual's refusal to 
disclose his or her social security account number.
    (b) Paragraph (a) of this section shall not apply with respect to:
    (1) Any disclosure required by Federal statute; or
    (2) Any disclosure to any agency relating to a system of records it 
maintained prior to January 1, 1975, if such disclosure was required 
under statute or regulation adopted prior to that date, to verify the 
identity of an individual.
    (c) Any agency in the Department which requests an individual to 
disclose his or her social security account number shall inform that 
individual whether the disclosure is mandatory or voluntary, by what 
statutory or other authority the number is solicited, and what uses will 
be made of it. The agency shall also insure that this information is 
provided by a State or local government with whom it is involved in a 
cooperative agreement.
    Sec. 7. Annual report. Each agency in the Department shall submit to 
the Office of the General Counsel prior to March 30 of each year a 
report containing the following information related to implementation of 
5 U.S.C. 552a:
    (a) A summary of major accomplishments;
    (b) A summary of major plans for activities in the upcoming year;
    (c) A list of the systems which were exempted during the year from 
any of the operative provisions of this subpart pursuant to 5 U.S.C. 
552a (j) and (k), whether or not the exemption was effected during that 
year, the number of instances with respect to each system exempted in 
which the exemption was invoked to deny access, and the reasons for 
invoking the exemption;
    (d) A brief summary of changes to the total inventory of personal 
data system subject to this subpart including reasons for major changes; 
and
    (e) A general description of operational experiences including 
estimates of the number of individuals (in relation to the total number 
of records in the system):
    (1) Requesting information on the existence of records pertaining to 
them;
    (2) Refusing to provide information;
    (3) Requesting access to their records;
    (4) Appealing initial refusals to amend records; and
    (5) Seeking redress through the courts.
    Sec. 8. Effect of 5 U.S.C. 552. No agency in the Department shall 
rely on any exemption in 5 U.S.C. 552 to withhold from an individual any 
record which is otherwise accessible to such individual under 5 U.S.C. 
552a and this subpart.

[40 FR 44480, Sept. 26, 1975, as amended at 62 FR 33982, June 24, 1997]



 Subpart H_Rules of Practice Governing Formal Adjudicatory Proceedings 
           Instituted by the Secretary Under Various Statutes

    Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, 228, 268, 499o, 608c(14), 
1592, 1624(b), 2151, 2279e, 2621, 2714, 2908, 3812, 4610, 4815, 4910, 
6009, 6107,

[[Page 36]]

6207, 6307, 6411, 6808, 7107, 7734, 8313; 15 U.S.C. 1828; 16 U.S.C. 
620d, 1540(f), 3373; 21 U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f, 
135a, 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR 2.35, 2.41.

    Source: 42 FR 743, Jan. 4, 1977, unless otherwise noted.



Sec. 1.130  Meaning of words.

    As used in this subpart, words in the singular form shall be deemed 
to import the plural, and vice versa, as the case may require.



Sec. 1.131  Scope and applicability of this subpart.

    (a) The rules of practice in this subpart shall be applicable to all 
adjudicatory proceedings under the statutory provisions listed below as 
those provisions have been or may be amended from time to time,\1\ 
except that those rules shall not be applicable to reparation 
proceedings under section 6(c) of the Perishable Agricultural 
Commodities Act, 1930. Section 1.26 shall be inapplicable to the 
proceedings covered by this subpart.
---------------------------------------------------------------------------

    \1\ See also the regulations promulgated under these statutes for 
any supplemental rules relating to particular circumstances arising 
thereunder.

Act of May 29, 1884, commonly known as the Animal Industry Act, section 
7, as amended (21 U.S.C. 117).
Act of August 30, 1890, section 6, as amended (21 U.S.C. 104).
Act of February 2, 1903, commonly known as the Cattle Contagious 
Diseases Act of 1903, section 3, as amended (21 U.S.C. 122).
Act of March 3, 1905, section 6, as amended (21 U.S.C. 127).
Act of July 2, 1962, section 6(a), as amended (21 U.S.C. 134e).
Act of May 6, 1970, section 2, as amended (21 U.S.C. 135a).
Agricultural Marketing Agreement Act of 1937, as amended, section 
8c(14), 7 U.S.C. 608c(14).
Animal Health Protection Act, section 10414 (7 U.S.C. 8313).
Animal Welfare Act, section 19 (7 U.S.C. 2149).
Beef Promotion and Research Act of 1985, section 9 (7 U.S.C. 2908).
Egg Products Inspection Act, section 18 (21 U.S.C. 1047).
Endangered Species Act of 1973, as amended, section 11(a) (16 U.S.C. 
1540(a)).
Egg Research and Consumer Information Act, as amended, 7 U.S.C. 2714, 
Pub. L. 96-276, 94 Stat. 541.
Federal Land Policy and Management Act of 1976, section 506 (43 U.S.C. 
1766).
Federal Meat Inspection Act, sections 4, 6, 7(e), 8, and 401 (21 U.S.C. 
604, 606, 607(e), 608, 671).
Federal Seed Act, section 409 (7 U.S.C. 1599).
Fluid Milk Promotion Act of 1990, section 1999L [7 U.S.C. 6411].
Forest Resources Conversation and Shortage Relief Act of 1990, section 
492 (16 U.S.C. 620d)
Fresh Cut Flowers and Fresh Cut Greens Promotion and Consumer 
Information Act of 1993, section 9 [7 U.S.C. 6808].
Honey Research, Promotion, and Consumer Information Act, section 11 (7 
U.S.C. 4610).
Horse Protection Act of 1970, sections 4(c) and 6 (15 U.S.C. 1823(c), 
1825).
Lacey Act Amendments of 1981, section 4 (a) and (b) (16 U.S.C. 3373 (a) 
and (b)).
Lime Research, Promotion, and Consumer Information Act of 1990, as 
amended, section 1958 [7 U.S.C. 6207]
Mushroom Promotion, Research, and Consumer Information Act of 1990, 
section 1928 [7 U.S.C. 6107]
Packers and Stockyards Act, 1921, as supplemented, sections 203, 312, 
and 401 of the Act, and section 1, 57 Stat. 422, as amended by section 
4, 90 Stat. 1249 (7 U.S.C. 193, 204, 213, 221)
Pecan Promotion and Research Act of 1990, section 1914 [7 U.S.C. 6009]
Perishable Agricultural Commodities Act, 1930, sections 1(b)(9), 3(c), 
4(d), 6(c), 8(a), 8(b), 8(c), 8(e), 9, and 13(a) (7 U.S.C. 499a(b)(9), 
499c(c), 499d(d), 499f(c), 499h(a), 499h(b), 499h(c), 499h(e), 499i, 
499m(a))
Plant Protection Act, section 424 (7 U.S.C. 7734).
Pork Promotion, Research, and Consumer Information Act of 1985, section 
1626 (7 U.S.C. 4815).
Potato Research and Promotion Act, as amended, 7 U.S.C. 2621, Pub. L. 
97-244, 96 Stat. 310.
Poultry Products Inspection Act, sections 6, 7, 8(d), and 18 (21 U.S.C. 
455, 456, 457(d), 467).
Sheep Promotion, Research, and Information Act of 1994 [7 U.S.C. 7107].
Soybean Promotion, Research, and Consumer Information Act, section 1972 
[7 U.S.C. 6307].
Swine Health Protection Act, sections 5 and 6 (7 U.S.C. 3804, 3805).
Title V of the Agricultural Risk Protection Act of 2000, section 501(a) 
(7 U.S.C. 2279e).
United States Cotton Standards Act, as supplemented, section 3 of the 
Act and section 2 of 47 Stat. 1621 (7 U.S.C. 51b, 53).
United States Grain Standards Act, sections 7(g)(3), 9, 10, and 17A(d) 
(7 U.S.C. 79(g)(3), 85, 86, 87f-1(d)).
United States Warehouse Act, sections 12 and 25 (7 U.S.C. 246, 253).
Virus-Serum-Toxin Act (21 U.S.C. 156).

[[Page 37]]

Watermelon Research and Promotion Act, section 1651 (7 U.S.C. 4910).

    (b) These rules of practice shall also be applicable to:
    (1) Adjudicatory proceedings under the regulations promulgated under 
the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 et seq.) for the 
denial or withdrawal of inspection, certification, or grading service; 
\1\
    (2) Adjudicatory proceedings under the regulations promulgated under 
the Animal Quarantine and Related Laws (21 U.S.C. 111 et seq.) for the 
suspension or revocation of accreditation of veterinarians (9 CFR parts 
160, 161);
    (3) Proceedings for debarment of counsel under Sec. 1.141(d) of 
this subpart;
    (4) Adjudicatory proceedings under the regulations promulgated under 
the Animal Welfare Act (7 U.S.C. 2131 et seq.) for the denial of an 
initial license application (9 CFR 2.11) or the termination of a license 
during the license renewal process or at any other time (9 CFR 2.12);
    (5) Adjudicatory proceedings under the regulations promulgated under 
sections 901-905 of the Federal Agriculture Improvement and Reform Act 
of 1996 (7 U.S.C. 1901 note) pertaining to the commercial transportation 
of equines to slaughtering facilities (9 CFR part 88); and
    (6) Other adjudicatory proceedings in which the complaint 
instituting the proceeding so provides with the concurrence of the 
Assistant Secretary for Administration.

[42 FR 743, Jan. 4, 1977, as amended at 42 FR 15406, Mar. 22, 1977; 45 
FR 68381, Oct. 15, 1980; 47 FR 15559, Apr. 12, 1982; 47 FR 30451, July 
14, 1982; 48 FR 28189, June 21, 1983; 49 FR 21293, May 21, 1984; 49 FR 
37727, Sept. 26, 1984; 53 FR 1001, Jan. 15, 1988; 53 FR 35296, Sept. 13, 
1988; 56 FR 22106, May 14, 1991; 60 FR 8455, Feb. 14, 1995; 60 FR 33329, 
June 28, 1995; 61 FR 11503, Mar. 21, 1996; 66 FR 36908, July 16, 2001; 
67 FR 70674, Nov. 26, 2002; 68 FR 6340, Feb. 7, 2003; 70 FR 24936, May 
12, 2005; 70 FR 47077, Aug. 12, 2005]



Sec. 1.132  Definitions.

    As used in this subpart, the terms as defined in the statute under 
which the proceeding is conducted and in the regulations, standards, 
instructions, or orders issued thereunder, shall apply with equal force 
and effect. In addition and except as may be provided otherwise in this 
subpart:
    Administrator means the Administrator of the Agency administering 
the statute involved, or any officer or employee of the Agency to whom 
authority has heretofore been delegated, or to whom authority may 
hereafter be delegated, to act for the Administrator.
    Complainant means the party instituting the proceeding.
    Complaint means the formal complaint, order to show cause, or other 
document by virtue of which a proceeding is instituted.
    Decision means: (1) The Judge's initial decision made in accordance 
with the provisions of 5 U.S.C. 556 and 557, and includes the Judge's 
(i) findings and conclusions and the reasons or basis therefor on all 
material issues of fact, law or discretion, (ii) order, and (iii) 
rulings on proposed findings, conclusions and orders submitted by the 
parties; and
    (2) The decision and order by the Judicial Officer upon appeal of 
the Judge's decision.
    Hearing means that part of the proceeding which involves the 
submission of evidence before the Judge for the record in the 
proceeding.
    Hearing Clerk means the Hearing Clerk, United States Department of 
Agriculture, Washington, DC 20250.
    Judge means any Administrative Law Judge appointed pursuant to 5 
U.S.C. 3105 and assigned to the proceeding involved.
    Judicial Officer means an official of the United States Department 
of Agriculture delegated authority by the Secretary of Agriculture, 
pursuant to the Act of April 4, 1940 (7 U.S.C. 450c-450g) and 
Reorganization Plan No. 2 of 1953 (5 U.S.C. App. (1988)), to perform the 
function involved (Sec. 2.35(a) of this chapter), or the Secretary of 
Agriculture if the authority so delegated is exercised by the Secretary.
    Mail means to deposit an item in the United States Mail with postage 
affixed and addressed as necessary to cause it to be delivered to the 
address shown by ordinary mail, or by certified or registered mail if 
specified.

[[Page 38]]

    Petitioner means an individual who has filed a petition for review 
of a determination that the individual is responsibly connected to a 
licensee within the meaning of 7 U.S.C. 499a(b)(9).
    Re-mail means to mail by ordinary mail to an address an item that 
has been returned after being sent to the same address by certified or 
registered mail.
    Respondent means the party proceeded against.

[42 FR 743, Jan. 4, 1977, as amended at 55 FR 30673, July 27, 1990; 60 
FR 8455, Feb. 14, 1995; 61 FR 11503, Mar. 21, 1996; 68 FR 6340, Feb. 7, 
2003]



Sec. 1.133  Institution of proceedings.

    (a) Submission of information concerning apparent violations. (1) 
Any interested person desiring to submit information regarding an 
apparent violation of any provision of a statute listed in Sec. 1.131 
or of any regulation, standard, instruction, or order issued pursuant 
thereto, may file the information with the Administrator of the agency 
administering the statute involved in accordance with this section and 
any applicable statutory or regulation provisions. Such information may 
be made the basis of any appropriate proceeding covered by the rules in 
this subpart, or any other appropriate proceeding authorized by the 
particular statute or the regulations promulgated thereunder.
    (2) The information may be submitted by telegram, by letter, or by a 
preliminary statement of facts, setting forth the essential details of 
the transaction complained of. So far as practicable, the information 
shall include such of the following items as may be applicable:
    (i) The name and address of each person and of the agent, if any, 
representing such person in the transaction involved;
    (ii) Place where the alleged violation occurred;
    (iii) Quantity and quality or grade of each kind of product or 
article involved;
    (iv) Date of alleged violation;
    (v) Car initial and number, if carlot;
    (vi) Shipping and destination points;
    (vii) If a sale, the date, sale price, and amount actually received;
    (viii) If a consignment, the date, reported proceeds, gross, net;
    (ix) Amount of damage claimed, if any;
    (x) Statement of other material facts, including terms of contract; 
and
    (xi) So far as practicable, true copies of all available papers 
relating to the transaction complained about, including shipping 
documents, letters, telegrams, invoices, manifests, inspection 
certificates, accounts of sales and any special contracts or agreements.
    (3) Upon receipt of the information and supporting evidence, the 
Administrator shall cause such investigation to be made as, in the 
opinion of the Administrator, is justified by the facts. If such 
investigation discloses that no violation of the Act or of the 
regulations, standards, instructions, or orders issued pursuant thereto, 
has occurred, no further action shall be taken and the person submitting 
the information shall be so informed.
    (4) The person submitting the information shall not be a party to 
any proceeding which may be instituted as a result thereof and such 
person shall have no legal status in the proceeding, except as a 
subpoenaed witness or as a deponent in a deposition taken without 
expense to such person.
    (b) Filing of complaint or petition for review. (1) If there is 
reason to believe that a person has violated or is violating any 
provision of a statute listed in Sec. 1.131 or of any regulation, 
standard, instruction or order issued pursuant thereto, whether based 
upon information furnished under paragraph (a) of this section or other 
information, a complaint may be filed with the Hearing Clerk pursuant to 
these rules.
    (2) Any person determined by the Chief, PACA Branch, pursuant to 
Sec. Sec. 47.47--47.49 of this title to have been responsibly connected 
within the meaning of 7 U.S.C. 499a(b)(9) to a licensee who is subject 
or potentially subject to license suspension or revocation as the result 
of an alleged violation of 7 U.S.C. 499b or 499h(b) or as provided in 7 
U.S.C. 499g(d) shall be entitled to institute a proceeding under this 
section and to have determined the facts with respect to such 
responsibly connected status by filing with

[[Page 39]]

the Hearing Clerk a petition for review of such determination.
    (3) As provided in 5 U.S.C. 558, in any case, except one of 
willfulness or one in which public health, interest, or safety otherwise 
requires, prior to the institution of a formal proceeding which may 
result in the withdrawal, suspension, or revocation of a ``license'' as 
that term is defined in 5 U.S.C. 551(8), the Administrator, in an effort 
to effect an amicable or informal settlement of the matter, shall give 
written notice to the person involved of the facts or conduct concerned 
and shall afford such person an opportunity, within a reasonable time 
fixed by the Administrator, to demonstrate or achieve compliance with 
the applicable requirements of the statute, or the regulation, standard, 
instruction or order promulgated thereunder.

[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8455, Feb. 14, 1995; 61 FR 
11503, Mar. 21, 1996; 68 FR 6340, Feb. 7, 2003]



Sec. 1.134  Docket number.

    Each 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.



Sec. 1.135  Contents of complaint or petition for review.

    (a) Complaint. A complaint filed pursuant to Sec. 1.133(b) shall 
state briefly and clearly the nature of the proceeding, the 
identification of the complainant and the respondent, the legal 
authority and jurisdiction under which the proceeding is instituted, the 
allegations of fact and provisions of law which constitute a basis for 
the proceeding, and the nature of the relief sought.
    (b) Petition for review. The Petition for Review of responsibly 
connected status shall describe briefly and clearly the determination 
sought to be reviewed and shall include a brief statement of the factual 
and legal matters that the petitioner believes warrant the reversal of 
the determination.

[42 FR 743, Jan. 4, 1977, as amended at 61 FR 11503, Mar. 21, 1996]



Sec. 1.136  Answer.

    (a) Filing and service. Within 20 days after the service of the 
complaint (within 10 days in a proceeding under section 4(d) of the 
Perishable Agricultural Commodities Act, 1930), or such other time as 
may be specified therein, the respondent shall file with the Hearing 
Clerk an answer signed by the respondent or the attorney of record in 
the proceeding. The attorney may file an appearance of record prior to 
or simultaneously with the filing of the answer. The answer shall be 
served upon the complainant, and any other party of record, by the 
Hearing Clerk. As response to a petition for review of responsibly 
connected status, the Chief, PACA Branch, shall within ten days after 
being served by the Hearing Clerk with a petition for review, file with 
the Hearing Clerk a certified copy of the agency record upon which the 
Chief, PACA Branch, made the determination that the individual was 
responsibly connected to a licensee under the Perishable Agricultural 
Commodities Act, 7 U.S.C. 499a et seq., and such agency record shall 
become part of the record in the review proceeding.
    (b) Contents. The answer shall:
    (1) Clearly admit, deny, or explain each of the allegations of the 
Complaint and shall clearly set forth any defense asserted by the 
respondent; or
    (2) State that the respondent admits all 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 an order without further procedure.
    (c) Default. Failure to file an answer within the time provided 
under paragraph (a) of this section shall be deemed, for purposes of the 
proceeding, an admission of the allegations in the Complaint, and 
failure to deny or otherwise respond to an allegation of the Complaint 
shall be deemed, for purposes of the proceeding, an admission of said 
allegation, unless the parties have agreed to a consent decision 
pursuant to Sec. 1.138.

[42 FR 743, Jan. 4, 1977, as amended at 61 FR 11504, Mar. 21, 1996; 68 
FR 6340, Feb. 7, 2003]

[[Page 40]]



Sec. 1.137  Amendment of complaint, petition for review, or answer; 
joinder of related matters.

    (a) Amendment. At any time prior to the filing of a motion for a 
hearing, the complaint, petition for review, answer, or response to 
petition for review may be amended. Thereafter, such an amendment may be 
made with consent of the parties, or as authorized by the Judge upon a 
showing of good cause.
    (b) Joinder. The Judge shall consolidate for hearing with any 
proceeding alleging a violation of the Perishable Agricultural 
Commodities Act, 7 U.S.C. 499a et seq., any petitions for review of 
determination of status by the Chief, PACA Branch, that individuals are 
responsibly connected, within the meaning of 7 U.S.C. 499a(b)(9), to the 
licensee during the period of the alleged violations. In any case in 
which there is no pending proceeding alleging a violation of the 
Perishable Agricultural Commodities Act, 7 U.S.C. 499a et seq., but 
there have been filed more than one petition for review of determination 
of responsible connection to the same licensee, such petitions for 
review shall be consolidated for hearing.

[61 FR 11504, Mar. 21, 1996, as amended at 68 FR 6340, Feb. 7, 2003]



Sec. 1.138  Consent decision.

    At any time before the Judge files the decision, the parties may 
agree to the entry of a consent decision. Such agreement shall be filed 
with the Hearing Clerk in the form of a decision signed by the parties 
with appropriate space for signature by the Judge, and shall contain an 
admission of at least the jurisdictional facts, consent to the issuance 
of the agreed decision without further procedure and such other 
admissions or statements as may be agreed between the parties. The Judge 
shall enter such decision without further procedure, unless an error is 
apparent on the face of the document. Such decision shall have the same 
force and effect as a decision issued after full hearing, and shall 
become final upon issuance to become effective in accordance with the 
terms of the decision.



Sec. 1.139  Procedure upon failure to file an answer or admission of 
facts.

    The failure to file an answer, or the admission by the answer of all 
the material allegations of fact contained in the complaint, shall 
constitute a waiver of hearing. Upon such admission or failure to file, 
complainant shall file a proposed decision, along with a motion for the 
adoption thereof, both of which shall be served upon the respondent by 
the Hearing Clerk. Within 20 days after service of such motion and 
proposed decision, the respondent may file with the Hearing Clerk 
objections thereto. If the Judge finds that meritorious objections have 
been filed, complainant's Motion shall be denied with supporting 
reasons. If meritorious objections are not filed, the Judge shall issue 
a decision without further procedure or hearing. Copies of the decision 
or denial of complainant's Motion shall be served by the Hearing Clerk 
upon each of the parties and may be appealed pursuant to Sec. 1.145. 
Where the decision as proposed by complainant is entered, such decision 
shall become final and effective without further proceedings 35 days 
after the date of service thereof upon the respondent, unless there is 
an appeal to the Judicial Officer by a party to the proceeding pursuant 
to Sec. 1.145: Provided, however, That no decision shall be final for 
purposes of judicial review except a final decision of the Judicial 
Officer upon appeal.



Sec. 1.140  Conferences and procedure.

    (a) Purpose and scope. (1) Upon motion of a party or upon the 
Judge's own motion, the Judge may direct the parties or their counsel to 
attend a conference at any reasonable time, prior to or during the 
course of the hearing, when the Judge finds that the proceeding would be 
expedited by a conference. Reasonable notice of the time, place, and 
manner of the conference shall be given. The Judge may order each of the 
parties to furnish at or subsequent to the conference any or all of the 
following:
    (i) An outline of the case or defense;
    (ii) The legal theories upon which the party will rely;
    (iii) Copies of or a list of documents which the party anticipates 
introducing at the hearing; and

[[Page 41]]

    (iv) A list of anticipated witnesses who will testify on behalf of 
the party. At the discretion of the party furnishing such list of 
witnesses, the names of the witnesses need not be furnished if they are 
otherwise identified in some meaningful way such as a short statement of 
the type of evidence they will offer.
    (2) The Judge shall not order any of the foregoing procedures that a 
party can show is inappropriate or unwarranted under the circumstances 
of the particular case.
    (3) At the conference, the following matters shall be considered:
    (i) The simplification of issues;
    (ii) The necessity of amendments to pleadings;
    (iii) The possibility of obtaining stipulations of facts and of the 
authenticity, accuracy, and admissibility of documents, which will avoid 
unnecessary proof;
    (iv) The limitation of the number of expert or other witnesses;
    (v) Negotiation, compromise, or settlement of issues;
    (vi) The exchange of copies of proposed exhibits;
    (vii) The identification of documents or matters of which official 
notice may be requested;
    (viii) A schedule to be followed by the parties for completion of 
the actions decided at the conference; and
    (ix) Such other matters as may expedite and aid in the disposition 
of the proceeding.
    (b) Reporting. A conference will not be stenographically reported 
unless so directed by the Judge.
    (c) Manner of Conference. (1) The conference shall be conducted by 
telephone or correspondence unless the Judge determines that conducting 
the conference by audio-visual telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the conference; or
    (iii) Would cost less than conducting the conference by telephone or 
correspondence. If the Judge determines that a conference conducted by 
audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the conference, 
the conference shall be conducted by personal attendance of any 
individual who is expected to participate in the conference, by 
telephone, or by correspondence.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by audio-visual 
telecommunication unless the Judge determines that conducting the 
conference by personal attendance of any individual who is expected to 
participate in the conference:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the conference; or
    (iii) Would cost less than conducting the conference by audio-visual 
telecommunication.
    (d) Order. Actions taken as a result of a conference shall be 
reduced to a written appropriate order, unless the Judge concludes that 
a stenographic report shall suffice, or, if the conference takes place 
within 7 days of the beginning of the hearing, the Judge elects to make 
a statement on the record at the hearing summarizing the actions taken.
    (e) Related matters. Upon motion of a respondent, the Judge may 
order the attorney for the complainant to produce and permit the 
respondent to inspect and copy or photograph any relevant written or 
recorded statements or confessions made by such respondent within the 
possession, custody or control of the complainant.

[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8455, Feb. 14, 1995]



Sec. 1.141  Procedure for hearing.

    (a) Request for hearing. Any party may request a hearing on the 
facts by including such request in the complaint or answer, or by a 
separate request, in writing, filed with the Hearing Clerk within the 
time in which an answer may be filed. A petition for review shall be 
deemed a request for a hearing. Failure to request a hearing within the 
time allowed for the filing of the answer shall constitute a waiver of 
such hearing. Waiver of hearing shall not be deemed to be a waiver of 
the right to request oral argument before the Judicial Officer upon 
appeal of

[[Page 42]]

the Judge's decision. In the event the respondent denies any material 
fact and fails to file a timely request for a hearing, the matter may be 
set down for hearing on motion of the complainant or upon the Judge's 
own motion.
    (b) Time, place, and manner. (1) If any material issue of fact is 
joined by the pleadings, the Judge, upon motion of any party stating 
that the matter is at issue and is ready for hearing, shall set a time, 
place, and manner for hearing as soon as feasible after the motion is 
filed, with due regard for the public interest and the convenience and 
necessity of the parties. The Judge shall file with the Hearing Clerk a 
notice stating the time and place of the hearing.\2\ This notice shall 
state whether the hearing will be conducted by telephone, audio-visual 
telecommunication, or personal attendance of any individual expected to 
participate in the hearing. The Judge's determination regarding the 
manner of the hearing shall be made in accordance with paragraphs (b)(3) 
and (b)(4) of this section. If any change in the time, place, or manner 
of the hearing is made, the Judge shall file with the Hearing Clerk a 
notice of such change, which notice shall be served upon the parties, 
unless it is made during the course of an oral hearing and made part of 
the transcript or recording, or actual notice is given to the parties.
---------------------------------------------------------------------------

    \2\ The place of hearing in a proceeding under the Packers and 
Stockyards Act shall be set in accordance with the Packers and 
Stockyards Act (7 U.S.C. 228(e) and (f)). In essence, if there is only 
one respondent, the hearing is to be held as near as possible to the 
respondent's place of business or residence depending on the 
availability of an appropriate location for conducting the hearing. If 
there is more than one respondent and they have their places of business 
or residence within a single unit of local government, a single 
geographical area within a State, or a single State, the hearing is to 
be held as near as possible to their places of business or residence 
depending on the availability of an appropriate location for conducting 
the hearing. If there is more than one respondent, and they have their 
places of business or residence distant from each other, 7 U.S.C. 228(e) 
and (f) have no applicability.
---------------------------------------------------------------------------

    (2)(i) If any material issue of fact is joined by the pleadings and 
the matter is at issue and is ready for hearing, any party may move that 
the hearing be conducted by telephone or personal attendance of any 
individual expected to attend the hearing rather than by audio-visual 
telecommunication. Any motion that the hearing be conducted by telephone 
or personal attendance of any individual expected to attend the hearing 
must be accompanied by a memorandum in support of the motion stating the 
basis for the motion and the circumstances that require the hearing to 
be conducted other than by audio-visual telecommunication.
    (ii) Within 10 days after the Judge issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the Judge reconsider the manner in which the hearing is to be conducted. 
Any motion for reconsideration must be accompanied by a memorandum in 
support of the motion stating the basis for the motion and the 
circumstances that require the hearing to be conducted other than in 
accordance with the Judges's notice.
    (3) The hearing shall be conducted by audio-visual telecommunication 
unless the Judge determines that conducting the hearing by personal 
attendance of any individual who is expected to participate in the 
hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the Judge determines that a hearing conducted by 
audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the hearing, the 
hearing shall be conducted by personal attendance of any individual who 
is expected to participate in the hearing or by telephone.
    (4) The Judge may, in his or her sole discretion or in response to a 
motion by a party to the proceeding, conduct the hearing by telephone if 
the Judge finds that a hearing conducted by telephone:
    (i) Would provide a full and fair evidentiary hearing;

[[Page 43]]

    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
    (c) Appearances. The parties may appear in person or by attorney of 
record in the proceeding. Any person who appears as attorney must 
conform to the standards of ethical conduct required of practitioners 
before the courts of the United States.
    (d) Debarment of attorney. (1) Whenever a Judge finds that a person 
acting as attorney for any party to the proceeding is guilty of 
unethical or contumacious conduct, in or in connection with a proceeding 
, the Judge may order that such person be precluded from further acting 
as attorney in the proceeding. An appeal to the Judicial Officer may be 
taken from any such order, but no proceeding shall be delayed or 
suspended pending disposition of the appeal: Provided, That the Judge 
shall suspend the proceeding for a reasonable time for the purpose of 
enabling the party to obtain another attorney.
    (2) Whenever it is found, after notice and opportunity for hearing, 
that a person, who is acting or has acted as attorney for another person 
in any proceeding before the United States Department of Agriculture, is 
unfit to act as such counsel because of such unethical or contumacious 
conduct, such person will be precluded from acting as counsel in any or 
all proceedings before the Department as found to be appropriate.
    (e) Failure to appear. (1) A respondent who, after being duly 
notified, fails to appear at the hearing without good cause, shall be 
deemed to have waived the right to an oral hearing in the proceeding and 
to have admitted any facts which may be presented at the hearing. Such 
failure by the respondent shall also constitute an admission of all the 
material allegations of fact contained in the complaint. Complainant 
shall have an election whether to follow the procedure set forth in 
Sec. 1.139 or whether to present evidence, in whole or in part, in the 
form of affidavits or by oral testimony before the Judge. Failure to 
appear at a hearing shall not be deemed to be a waiver of the right to 
be served with a copy of the Judge's decision and to appeal and request 
oral argument before the Judicial Officer with respect thereto in the 
manner provided in Sec. 1.145.
    (2) If the petitioner in the case of a Petition for Review of a 
determination of responsibly connected status within the meaning of 7 
U.S.C. 499a(b)(9), having been duly notified, fails to appear at the 
hearing without good cause, such petitioner shall be deemed to have 
waived the right to a hearing and to have voluntarily withdrawn the 
petition for review.
    (f) Order of proceeding. Except as may be determined otherwise by 
the Judge, the complainant shall proceed first at the hearing.
    (g) Written statements of direct testimony. (1) Except as provided 
in paragraph (g)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any hearing 
to be conducted by telephone; and the direct testimony of each expert 
witness that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone. The written direct testimony of 
witnesses shall be exchanged by the parties at least 10 days prior to 
the hearing. The oral direct testimony provided by a witness at a 
hearing conducted by telephone will be limited to the presentation of 
the written direct testimony, unless the Judge finds that oral direct 
testimony which is supplemental to the written direct testimony would 
further the public interest and would not constitute surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin less 
than 20 days after the Judge's notice stating the time of the hearing.
    (h) Evidence--(1) In general. (i) The testimony of witnesses at a 
hearing shall be on oath or affirmation and subject to cross-
examination.

[[Page 44]]

    (ii) Upon a finding of good cause, the Judge may order that any 
witness be examined separately and apart from all other witnesses except 
those who may be parties to the proceeding.
    (iii) After a witness called by the complainant has testified on 
direct examination, any other party may request and obtain the 
production of any statement, or part thereof, of such witness in the 
possession of the complainant which relates to the subject matter as to 
which the witness has testified. Such production shall be made according 
to the procedures and subject to the definitions and limitations 
prescribed in the Jencks Act (18 U.S.C. 3500).
    (iv) Evidence which is immaterial, irrelevant, or unduly 
repetitious, or which is not of the sort upon which responsible persons 
are accustomed to rely, shall be excluded insofar as practicable.
    (2) Objections. (i) If a party objects to the admission of any 
evidence or to the limitation of the scope of any examination or cross-
examination or to any other ruling of the Judge, the party shall state 
briefly the grounds of such objection, whereupon an automatic exception 
will follow if the objection is overruled by the Judge.
    (ii) Only objections made before the Judge may subsequently be 
relied upon in the proceeding.
    (3) Depositions. The deposition of any witness shall be admitted in 
the manner provided in and subject to the provisions of Sec. 1.148.
    (4) Exhibits. Unless the Judge finds that the furnishing of copies 
is impracticable, four copies of each exhibit shall be filed with the 
Judge: Provided, That, where there are more than two parties in the 
proceeding, an additional copy shall be filed for each additional party. 
A true copy of an exhibit may be substituted for the original.
    (5) Official records or documents. An official government record or 
document or entry therein, if admissible for any purpose, shall be 
admissible in evidence without the production of the person who made or 
prepared the same, and shall be prima facie evidence of the relevant 
facts stated therein. Such record or document shall be evidenced by an 
official publication thereof or by a copy certified by a person having 
legal authority to make such certification.
    (6) 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, scientific, or commercial fact of established 
character: Provided, That the parties shall be given adequate notice of 
matters so noticed, and shall be given adequate opportunity to show that 
such facts are erroneously noticed.
    (7) Offer of proof. Whenever evidence is excluded by the Judge, the 
party offering such evidence may make an offer of proof, which shall be 
included in the transcript or recording. The offer of proof shall 
consist of a brief statement describing the evidence excluded. If the 
evidence consists of a brief oral statement, it shall be included in the 
transcript or recording in toto. If the evidence consists of an exhibit, 
it shall be marked for identification and inserted in the hearing 
record. In either event, the evidence shall be considered a part of the 
transcript or recording and hearing record if the Judicial Officer, upon 
appeal, decides the Judge's ruling excluding the evidence was erroneous 
and prejudicial. If the Judicial Officer decides the Judge's ruling 
excluding the evidence was erroneous and prejudicial and that it would 
be inappropriate to have such evidence considered a part of the hearing 
record, the Judicial Officer may direct that the hearing be reopened to 
permit the taking of such evidence or for any other purpose in 
connection with the excluded evidence.
    (i) Transcript or recording. (1) Hearings to be conducted by 
telephone shall be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or the personal 
attendance of any individual who is expected to participate in the 
hearing shall be transcribed, unless the Judge finds that recording the 
hearing verbatim would expedite the proceeding and the Judge orders the 
hearing to be recorded verbatim. The Judge shall certify that to the 
best of his or her knowledge and belief any recording made pursuant to 
this paragraph with

[[Page 45]]

exhibits that were accepted into evidence is the record of the hearing.
    (2) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the Judge determines 
that the disposition of the proceeding would be expedited by a 
transcript of the hearing or part of a hearing, the Judge shall order 
the verbatim transcription of the recording as requested by the party.
    (3) Recordings or transcripts of hearings shall be made available to 
any person at actual cost of duplication.

[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8455, Feb. 14, 1995; 61 FR 
11504, Mar. 21, 1996; 68 FR 6340, Feb. 7, 2003]



Sec. 1.142  Post-hearing procedure.

    (a) Corrections to transcript or recording. (1) Within the period of 
time fixed by the Judge, any party may file a motion proposing 
corrections to the transcript or recording.
    (2) Unless a party files such a motion in the manner prescribed, the 
transcript or recording shall be presumed, except for obvious 
typographical errors, to be a true, correct, and complete transcript or 
recording of the testimony given at the hearing and to contain an 
accurate description or reference to all exhibits received in evidence 
and made part of the hearing record, and shall be deemed to be certified 
without further action by the Judge.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any timely objections filed as to the transcript or 
recording, the Judge shall issue an order making any corrections to the 
transcript or recording which the Judge finds are warranted, which 
corrections shall be entered onto the original transcript or recording 
by the Hearing Clerk (without obscuring the original text).
    (b) Proposed findings of fact, conclusions, orders, and briefs. 
Prior to the Judge's decision, each party shall be afforded a reasonable 
opportunity to submit for consideration proposed findings of fact, 
conclusions, order, and brief in support thereof. A copy of each such 
document filed by a party shall be served upon each of the other 
parties.
    (c) Judge's decision. (1) The Judge may, upon motion of any party or 
in his or her own discretion, issue a decision orally at the close of 
the hearing, or within a reasonable time after the closing of the 
hearing.
    (2) If the decision is announced orally, a copy thereof, excerpted 
from the transcript or recording, shall be furnished to the parties by 
the Hearing Clerk. Irrespective of the date such copy is mailed, the 
issuance date of the decision shall be the date the oral decision was 
announced.
    (3) If the decision is in writing, it shall be filed with the 
Hearing Clerk and served upon the parties as provided in Sec. 1.147.
    (4) The Judge's decision shall become final and effective without 
further proceedings 35 days after the issuance of the decision, if 
announced orally at the hearing, or if the decision is in writing, 35 
days after the date of service thereof upon the respondent, unless there 
is an appeal to the Judicial Officer by a party to the proceeding 
pursuant to Sec. 1.145; Provided, however, that no decision shall be 
final for purposes of judicial review except a final decision of the 
Judicial Officer upon appeal.

[42 FR 743, Jan. 4, 1977, as amended at 53 FR 7177, Mar. 7, 1988; 60 FR 
8456, Feb. 14, 1995; 68 FR 6340, Feb. 7, 2003]



Sec. 1.143  Motions and requests.

    (a) General. All motions and requests shall be filed with the 
Hearing Clerk, and served upon all the parties, except (1) requests for 
extensions of time pursuant to Sec. 1.147, (2) requests for subpoenas 
pursuant to Sec. 1.149, and (3) motions and requests made on the record 
during the oral hearing. The Judge shall rule upon all motions and 
requests filed or made prior to the filing of an appeal of the Judge's 
decision pursuant to Sec. 1.145, except motions directly relating to 
the appeal. Thereafter, the Judicial Officer will rule on any motions 
and requests, as well as the motions directly relating to the appeal.
    (b) Motions entertained. (1) Any motion will be entertained other 
than a motion to dismiss on the pleading.
    (2) All motions and request concerning the complaint must be made 
within the time allowed for filing an answer.

[[Page 46]]

    (c) Contents. All written motions and requests shall state the 
particular order, ruling, or action desired and the grounds therefor.
    (d) Response to motions and requests. Within 20 days after service 
of any written motion or request, or within such shorter or longer 
period as may be fixed by the Judge or the Judicial Officer, an opposing 
party may file a response to the motion or request. The other party 
shall have no right to reply to the response; however, the Judge or the 
Judicial Officer, in the Judge's or the Judicial Officer's discretion, 
may order that a reply be filed.
    (e) Certification to the judicial officer. The submission or 
certification of any motion, request, objection, or other question to 
the Judicial Officer prior to the filing of an appeal pursuant to Sec. 
1.145 shall be made by and in the discretion of the Judge. The Judge may 
either rule upon or certify the motion, request, objection, or other 
question to the Judicial Officer, but not both.

[42 FR 743, Jan. 4, 1977, as amended at 55 FR 30673, July 27, 1990; 68 
FR 6340, Feb. 7, 2003]



Sec. 1.144  Judges.

    (a) Assignment. No Judge shall be assigned to serve in any 
proceeding who (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 any 
conflict of interest which might impair the Judge's objectivity in the 
proceeding.
    (b) Disqualification of Judge. (1) Any party to the proceeding may, 
by motion made to the Judge, request that the Judge withdraw from the 
proceeding because of an alleged disqualifying reason. Such motion shall 
set forth with particularity the grounds of alleged disqualification. 
The Judge may then either rule upon or certify the motion to the 
Secretary, but not both.
    (2) A Judge shall withdraw from any proceeding for any reason deemed 
by the Judge to be disqualifying.
    (c) Powers. Subject to review as provided in this subpart, the 
Judge, in any assigned proceeding, shall have power to:
    (1) Rule upon motions and requests;
    (2) Set the time, place, and manner of a conference and the hearing, 
adjourn the hearing, and change the time, place, and manner of the 
hearing;
    (3) Administer oaths and affirmations;
    (4) Issue subpoenas as authorized by the statute under which the 
proceeding is conducted, requiring the attendance and testimony of 
witnesses and the production of books, contracts, papers, and other 
documentary evidence at the hearing;
    (5) Summon and examine witnesses and receive evidence at the 
hearing;
    (6) Take or order the taking of depositions as authorized under 
these rules;
    (7) Admit or exclude evidence;
    (8) Hear oral argument on facts or law;
    (9) Require each party to provide all other parties and the Judge 
with a copy of any exhibit that the party intends to introduce into 
evidence prior to any hearing to be conducted by telephone or audio-
visual telecommunication;
    (10) Require each party to provide all other parties with a copy of 
any document that the party intends to use to examine a deponent prior 
to any deposition to be conducted by telephone or audio-visual 
telecommunication;
    (11) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties 
and the Judge are able to transmit and receive documents during the 
hearing;
    (12) Require that any deposition to be conducted by telephone or 
audio-visual telecommunication be conducted at locations at which the 
parties are able to transmit and receive documents during the 
deposition;
    (13) Do all acts and take all measures necessary for the maintenance 
of order, including the exclusion of contumacious counsel or other 
persons; and
    (14) Take all other actions authorized under these rules.
    (d) Who may act in the absence of the Judge. In case of the absence 
of the Judge or the Judge's inability to act, the powers and duties to 
be performed by the Judge under these rules of practice in connection 
with any assigned proceeding may, without abatement of

[[Page 47]]

the proceeding unless otherwise directed by the Chief Judge, be assigned 
to any other Judge.

[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8456, Feb. 14, 1995; 68 FR 
6340, Feb. 7, 2003]



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 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

[[Page 48]]

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]



Sec. 1.146  Petitions for reopening hearing; for rehearing or reargument 
of proceeding; or for reconsideration of the decision of the Judicial 
Officer.

    (a) Petition requisite--(1) Filing; service; ruling. A petition for 
reopening the hearing to take further evidence, or for rehearing or 
reargument of the proceeding, or for reconsideration of the decision of 
the Judicial Officer, must be made by petition filed with the Hearing 
Clerk. Every such petition must state specifically the grounds relied 
upon. Any such petition filed prior to the filing of an appeal of the 
Judge's decision pursuant to Sec. 1.145 shall be ruled upon by the 
Judge, and any such petition filed thereafter shall be ruled upon by the 
Judicial Officer.
    (2) Petition to reopen hearing. A petition to reopen a hearing to 
take further evidence may be filed at any time prior to the issuance of 
the decision of the Judicial Officer. Every such petition shall state 
briefly the nature and purpose of the evidence to be adduced, shall show 
that such evidence is not merely cumulative, and shall set forth a good 
reason why such evidence was not adduced at the hearing.
    (3) Petition to rehear or reargue proceeding, or to reconsider the 
decision of the Judicial Officer. A petition to rehear or reargue the 
proceeding or to reconsider the decision of the Judicial Officer shall 
be filed within 10 days after the date of service of such decision upon 
the party filing the petition. Every petition must state specifically 
the matters claimed to have been erroneously decided and alleged errors 
must be briefly stated.
    (b) Procedure for disposition of petitions. Within 20 days following 
the service of any petition provided for in this section, any party to 
the proceeding may file with the Hearing Clerk a reply thereto. As soon 
as practicable thereafter, the Judge or the Judicial Officer, as the 
case may be, shall announce the determination whether to grant or deny 
the petition. The decision of the Judicial Officer shall automatically 
be stayed pending the determination to grant or deny a timely petition. 
Such decision shall not be final for purposes of judicial review until 
the petition is denied or the decision is affirmed or modified pursuant 
to the petition and the time for judicial review shall begin to run upon 
the filing of such final action on the petition. In the event that any 
such petition is granted, the applicable rules of practice, as set out 
elsewhere herein, shall be followed. A person filing a petition under 
this section shall be regarded as the moving party, although such person 
shall be referred to as the complainant or respondent, depending upon 
the designation in the original proceeding.



Sec. 1.147  Filing; service; extensions of time; and computation of time.

    (a) Filing; number of copies. Except as otherwise provided in this 
section, all documents or papers required or authorized by the rules in 
this part to be filed with the Hearing Clerk shall be filed in 
quadruplicate: Provided, That where there are more than two parties in 
the proceeding, an additional copy shall be filed for each additional 
party. Any document or paper required or authorized under the rules in 
this part to be filed with the Hearing Clerk shall, during the course of 
an oral hearing, be filed with the Judge.
    (b) Who shall make service. Copies of all such documents or papers 
required or authorized by the rules in this part to be filed with the 
Hearing Clerk shall

[[Page 49]]

be served upon the parties by the Hearing Clerk, or by some other 
employee of the Department, or by a U.S. Marshal or deputy marshal.
    (c) Service on party other than the Secretary. (1) Any complaint or 
other document initially served on a person to make that person a party 
respondent in a proceeding, proposed decision and motion for adoption 
thereof upon failure to file an answer or other admission of all 
material allegations of fact contained in a complaint, initial decision, 
final decision, appeal petition filed by the Department, or other 
document specifically ordered by the Judge to be served by certified or 
registered mail, shall be deemed to be received by any party to a 
proceeding, other than the Secretary or agent thereof, on the date of 
delivery by certified or registered mail to the last known principal 
place of business of such party, last known principal place of business 
of the attorney or representative of record of such party, or last known 
residence of such party if an individual, Provided that, if any such 
document or paper is sent by certified or registered mail but is 
returned marked by the postal service as unclaimed or refused, it shall 
be deemed to be received by such party on the date of remailing by 
ordinary mail to the same address.
    (2) Any document or paper, other than one specified in paragraph 
(c)(1) of this section or written questions for a deposition as provided 
in Sec. 1.148(d)(2), shall be deemed to be received by any party to a 
proceeding, other than the Secretary or agent thereof, on the date of 
mailing by ordinary mail to the last known principal place of business 
of such party, last known principal place of business of the attorney or 
representative of record of such party, or last known residence of such 
party if an individual.
    (3) Any document or paper served other than by mail, on any party to 
a proceeding, other than the Secretary or agent thereof, shall be deemed 
to be received by such party on the date of:
    (i) Delivery to any responsible individual at, or leaving in a 
conspicuous place at, the last known principal place of business of such 
party, last known principal place of business of the attorney or 
representative of record of such party, or last known residence of such 
party if an individual, or
    (ii) Delivery to such party if an individual, to an officer or 
director of such party if a corporation, or to a member of such party if 
a partnership, at any location.
    (d) Service on another. Any subpoena, written questions for a 
deposition under Sec. 1.148(d)(2), or other document or paper, served 
on any person other than a party to a proceeding, the Secretary or agent 
thereof, shall be deemed to be received by such person on the date of:
    (1) Delivery by certified mail or registered mail to the last known 
principal place of business of such person, last known principal place 
of business of the attorney or representative of record of such person, 
or last known residence of such person if an individual;
    (2) Delivery other than by mail to any responsible individual at, or 
leaving in a conspicuous place at, any such location; or
    (3) Delivery to such party if an individual, to an officer or 
director of such party if a corporation, or to a member of such party if 
a partnership, at any location.
    (e) Proof of service. Any of the following, in the possession of the 
Department, showing such service, shall be deemed to be accurate:
    (1) A certified or registered mail receipt returned by the postal 
service with a signature;
    (2) An official record of the postal service;
    (3) An entry on a docket record or a copy placed in a docket file by 
the Hearing Clerk of the Department or by an employee of the Hearing 
Clerk in the ordinary course of business;
    (4) A certificate of service, which need not be separate from and 
may be incorporated in the document or paper of which it certifies 
service, showing the method, place and date of service in writing and 
signed by an individual with personal knowledge thereof, Provided that 
such certificate must be verified by oath or declaration under penalty 
of perjury if the individual certifying service is not a party to the 
proceeding in which such document or paper is served, an attorney or 
representative of record for such a party,

[[Page 50]]

or an official or employee of the United States or of a State or 
political subdivision thereof.
    (f) Extensions of time. The time for the filing of any document or 
paper required or authorized under the rules in this part to be filed 
may be extended by the Judge or the Judicial Officer as provided in 
Sec. 1.143, if, in the judgment of the Judge or the Judicial Officer, 
as the case may be, there is good reason for the extension. In all 
instances in which time permits, notice of the request for extension of 
the time shall be given to the other party with opportunity to submit 
views concerning the request.
    (g) Effective date of filing. Any document or paper required or 
authorized under the rules in this part to be filed shall be deemed to 
be filed at the time when it reaches the Hearing Clerk; or, if 
authorized to be filed with another officer or employee of the 
Department it shall be deemed to be filed at the time when it reaches 
such officer or employee.
    (h) Computation of time. Saturdays, Sundays and Federal holidays 
shall be included in computing the time allowed for the filing of any 
document or paper: Provided, That, when such time expires on a Saturday, 
Sunday, or Federal holiday, such period shall be extended to include the 
next following business day.

[42 FR 743, Jan. 4, 1977, as amended at 55 FR 30674, July 27, 1990; 60 
FR 8456, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003]



Sec. 1.148  Depositions.

    (a) Motion for taking deposition. Upon the motion of a party to the 
proceeding, the Judge may, at any time after the filing of the 
complaint, order the taking of testimony by deposition. The Motion shall 
be in writing, 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 hereafter in 
this section as the ``officer'') qualified under the regulations 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 motion; and
    (4) The reasons why such deposition should be taken, which shall be 
solely for the purpose of eliciting testimony which otherwise might not 
be available at the time of hearing, for uses as provided in paragraph 
(g) of this section.
    (b) Judge's order for taking deposition. (1) If the Judge finds that 
the testimony may not be otherwise available at the hearing, the taking 
of the deposition may be ordered. The order shall be filed with the 
Hearing Clerk and shall state:
    (i) The time of the deposition;
    (ii) The place of the deposition;
    (iii) The manner of the deposition (telephone, audio-visual 
telecommunication, or personal attendance of those who are to 
participate in the deposition);
    (iv) The name of the officer before whom the deposition is to be 
made; and
    (v) The name of the deponent. The officer and the time, place, and 
manner need not be the same as those suggested in the motion for the 
deposition.
    (2) The deposition shall be conducted by telephone unless the Judge 
determines that conducting the deposition by audio-visual 
telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (iii) Would cost less than conducting the deposition by telephone. 
If the Judge determines that a deposition conducted by audio-visual 
telecommunication would measurably increase the United States Department 
of Agriculture's cost of conducting the deposition, the deposition shall 
be conducted by personal attendance of any individual who is expected to 
participate in the deposition or by telephone.
    (3) If the deposition is not conducted by telephone, the deposition 
shall be conducted by audio-visual telecommunication unless the Judge 
determines that conducting the deposition by personal attendance of any 
individual who is expected to participate in the deposition:
    (i) Is necessary to prevent prejudice to a party;

[[Page 51]]

    (ii) Is necessary because of a disability of any individual expected 
to participate in the deposition; or
    (iii) Would cost less than conducting the deposition by telephone or 
audio-visual telecommunication.
    (c) Qualifications of officer. The deposition shall be made before 
the Judge or before an officer authorized by the law of the United 
States or by the law of the place of the examination to administer 
oaths, or before an officer authorized by the Secretary to administer 
oaths.
    (d) Procedure on examination. (1) The deponent shall be examined 
under oath or affirmation and shall be subject to cross-examination. 
Objections to questions or documents shall be in short form, stating the 
grounds of objections relied upon. The questions proponded, together 
with all objections made (but not including argument or debate), shall 
be recorded verbatim. In lieu of oral examination, parties may transmit 
written questions to the officer prior to the examination and the 
officer shall propound such questions to the deponent.
    (2) The applicant shall arrange for the examination of the witness 
either by oral examination, or by written questions upon agreement of 
the parties or as directed by the Judge. If the examination is conducted 
by means of written questions, copies of the applicant's questions must 
be received by the other party to the proceeding and the officer at 
least 10 days prior to the date set for the examination unless otherwise 
agreed, and any cross questions of a party other than the applicant must 
be received by the applicant and the officer at any time prior to the 
time of the examination.
    (e) Certification by officer. The officer shall certify on the 
deposition that the deponent was duly sworn and that the deposition is a 
true record of the deponent's testimony. The officer shall then securely 
seal the deposition, together with one copy thereof (unless there are 
more than two parties in the proceeding, in which case there should be 
another copy for each additional party), in an envelope and mail the 
same by registered or certified mail to the Hearing Clerk.
    (f) Corrections to the transcript or recording. (1) At any time 
prior to the hearing, any party may file a motion proposing corrections 
to the transcript or recording of the deposition.
    (2) Unless a party files such a motion in the manner prescribed, the 
transcript or recording shall be presumed, except for obvious 
typographical errors, to be a true, correct, and complete transcript or 
recording of the testimony given in the deposition proceeding and to 
contain an accurate description or reference to all exhibits in 
connection therewith, and shall be deemed to be certified correct 
without further procedure.
    (3) At any time prior to use of the deposition in accordance with 
paragraph (g) of this section and after consideration of any objections 
filed thereto, the Judge may issue an order making any corrections in 
the transcript or recording which the Judge finds are warranted, which 
corrections shall be entered onto the original transcript or recording 
by the Hearing Clerk (without obscuring the original text).
    (g) Use of deposition. A deposition ordered and taken in accordance 
with the provisions of this section may be used in a proceeding under 
these rules if the Judge finds that the evidence is otherwise admissible 
and (1) that the witness is dead; (2) that the witness is unable to 
attend or testify because of age, sickness, infirmity, or imprisonment; 
(3) that the party offering the deposition has endeavored to procure the 
attendance of the witness by subpoena, but has been unable to do so; or 
(4) that such exceptional circumstances exist as to make it desirable, 
in the interests of justice, to allow the deposition to be used. If the 
party upon whose motion the deposition was taken refuses to offer it in 
evidence, any other party may offer the deposition or any part thereof 
in evidence. If only part of a deposition is offered in evidence by a 
party, an adverse party may require the introduction of any other part 
which ought in fairness to be considered with the part introduced, and 
any party may introduce any other parts.

[42 FR 743, Jan. 4, 1977, as amended at 55 FR 30674, July 27, 1990; 60 
FR 8456, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003]

[[Page 52]]



Sec. 1.149  Subpoenas.\3\
---------------------------------------------------------------------------

    \3\ This section relates only to subpoenas for the stated purpose 
and has no relevance with respect to investigatory subpoenas.
---------------------------------------------------------------------------

    (a) Issuance of subpoenas. The attendance and testimony of witnesses 
and the production of documentary evidence from any place in the United 
States on behalf of any party to the proceeding may be required by 
subpoena at any designated place of hearing if authorized by the statute 
under which the proceeding is conducted. Subpoenas shall be issued by 
the Judge upon a reasonable showing by the applicant of the grounds and 
necessity thereof; and with respect to subpoenas for the production of 
documents, the request shall also show their competency, relevancy, and 
materiality. All requests for subpoenas shall be in writing, unless 
waived by the Judge for good cause shown. Except for good cause shown, 
requests for subpoenas shall be received by the Judge at least 10 days 
prior to the date set for the hearing.
    (b) Service of subpoenas. Subpoenas may be served by any person not 
less than 18 years of age. The party at whose instance a subpoena is 
issued shall be responsible for service thereof. Subpoenas shall be 
served as provided in Sec. 1.147.

[42 FR 743, Jan. 4, 1977, as amended at 55 FR 30674, July 27, 1990; 60 
FR 8457, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003]



Sec. 1.150  Fees of witnesses.

    Witnesses summoned under these rules of practice shall be paid the 
same fees and mileage that are paid witnesses in the courts of the 
United States, and witnesses whose depositions are taken, and the 
officer taking the same, shall be entitled to the same fees as are paid 
for like services in the courts of the United States. Fees shall be paid 
by the party at whose instance the witness appears or the deposition is 
taken.



Sec. 1.151  Ex parte communications.

    (a) At no stage of the proceeding between its institution and the 
issuance of the final decision shall the Judge or Judicial Officer 
discuss ex parte the merits of the proceeding with any person who is 
connected with the proceeding in an advocative or in an investigative 
capacity, or with any representative of such person: Provided, That 
procedural matters shall not be included within this limitation; and 
Provided further, That the Judge or Judicial Officer may discuss the 
merits of the case with such a person if all parties to the proceeding, 
or their attorneys have been given notice and an opportunity to 
participate. A memorandum of any such discussion shall be included in 
the record.
    (b) No interested person shall make or knowingly cause to be made to 
the Judge or Judicial Officer an ex parte communication relevant to the 
merits of the proceeding.
    (c) If the Judge or the Judicial Officer receives an ex parte 
communication in violation of this section, the one who receives the 
communication shall place in the public record of the proceeding:
    (1) All such written communications;
    (2) Memoranda stating the substance of all such oral communications; 
and
    (3) All written responses, and memoranda stating the substance of 
all oral responses thereto.
    (d) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section, the Judge or 
Judicial Officer may, to the extent consistent with the interests of 
justice and the policy of the underlying statute, require the party to 
show cause why his claim or interest in the proceeding should not be 
dismissed, denied, disregarded, or otherwise adversely affected on 
account of such violation.
    (e) To the extent consistent with the interests of justice and the 
policy of the underlying statute, a violation of this section shall be 
sufficient grounds for a decision adverse to the party who knowingly 
commits a violation of this section or who knowingly causes such a 
violation to occur.
    (f) For purposes of this section ex parte communication means an 
oral or written communication not on the public record with respect to 
which reasonable prior notice to all parties is not given, but it shall 
not include requests

[[Page 53]]

for status reports on any matter or the proceeding.



Subpart I_Rules of Practice Governing Cease and Desist Proceedings Under 
                  Section 2 of the Capper-Volstead Act

    Authority: 7 U.S.C. 291, 292; 7 CFR 2.35, 2.41.

    Source: 45 FR 6587, Jan. 29, 1980, unless otherwise noted.



Sec. 1.160  Scope and applicability of rules in this part.

    The rules of practice in this part shall be applicable to cease and 
desist proceedings, initiated upon complaint by the Secretary of 
Agriculture, pursuant to section 2 of the Capper-Volstead Act.



Sec. 1.161  Definitions.

    As used in this part, words in the single form shall be deemed to 
import the plural, and vice versa, as the case may require. The 
following terms shall be construed, respectively, to mean:
    Act means the Capper-Volstead Act, approved February 18, 1922, 42 
Stat. 388, 7 U.S.C. 291, 292.
    Association means a cooperative association, a federation of 
cooperatives, or other association of agricultural producers, as defined 
in section 1 of the Act.
    Complainant or Secretary means the Secretary of Agriculture, United 
States Department of Agriculture, or any officer(s) or employee(s) to 
whom authority has heretofore been delegated, or whom authority may 
hereafter be delegated, to act in his or her stead.
    Complaint means a formal complaint instituted by the Secretary of 
Agriculture requiring respondent to show cause why an order should not 
be made directing it to cease and desist from acts of monopolization or 
restraint of trade, which result in undue price enhancement.
    Decision means: (1) the Judge's decision, and includes (i) findings 
and conclusions and the reasons or basis therefor on all material issues 
of fact, law, or discretion, (ii) order, and (iii) rulings on proposed 
findings, conclusions and order submitted by the parties, and (2) the 
decision and order by the Judicial Officer upon an appeal of the Judge's 
decision.
    Hearing means that part of the proceeding which involves the 
submission of evidence before the Judge for the record in the 
proceeding.
    Hearing Clerk means the Hearing Clerk, United States Department of 
Agriculture, Washington, DC 20250.
    Judge means any Administrative Law Judge appointed pursuant to 5 
U.S.C. 3105 (the Administrative Procedure Act) and assigned to the 
proceeding involved.
    Judicial Officer means an official of the United States Department 
of Agriculture delegated authority by the Secretary, pursuant to the Act 
of April 4, 1940 (7 U.S.C. 450c-450g) and Reorganization Plan No. 2 of 
1953 (5 U.S.C. App. (1988)), to perform the function involved (Sec. 
2.35(a) of this chapter), or the Secretary if he or she exercises the 
authority so delegated.
    Respondent means the cooperative associations, or association, 
against whom a complaint has been issued.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]



Sec. 1.162  Institution of proceedings.

    (a) Filing of information. Any person having information that any 
agricultural association, as defined in the Capper-Volstead Act, is 
engaged in any practice which monopolizes or restrains trade in 
interstate or foreign commerce to such an extent that the price of any 
agricultural product is unduly enhanced by reason thereof, may submit 
such information to the Secretary. Such information shall be in writing 
and shall contain a complete statement of facts detailing the price 
enhancement and the practices alleged.
    (b) Consideration of information. The Secretary shall consider all 
information filed under paragraph (a) of this section, and any other 
information which the Secretary may obtain relating to a violation of 
section 2 of the Act. If the Secretary finds that there is reason to 
believe that any association monopolizes or restrains trade in 
interstate or foreign commerce to such an extent that the price of any 
agricultural product is unduly enhanced

[[Page 54]]

thereby the Secretary shall cause a complaint to be filed, requiring the 
association to show cause why an order should not be made directing the 
association to cease and desist from such monopolization or restraint of 
trade. The complaint shall be filed with the Hearing Clerk, who shall 
assign to the proceeding a docket number and effect service upon 
respondent.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]



Sec. 1.163  The complaint.

    The complaint shall state briefly all allegations of fact which 
constitute a basis for the proceeding, and shall designate a time and 
place for the hearing in the matter, which shall be at least 30 days 
after the service of the complaint upon the respondent.



Sec. 1.164  Answer.

    (a) Filing and service. Within 20 days after service of the 
complaint, or such other time as may be specified therein, the 
respondent shall file with the Hearing Clerk, an answer, signed by the 
respondent or the respondent's attorney. The answer shall be served upon 
the complainant by the Hearing Clerk.
    (b) Contents. The answer shall clearly admit, deny, or offer an 
explanation in response to each of the allegations of the complaint, and 
shall clearly set forth any affirmative defense.
    (c) Default. Failure to file an answer shall constitute an admission 
of the allegations in the complaint, and may be the basis for a decision 
upon the presentation of a prima facie case by the complainant.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]



Sec. 1.165  Amendments.

    Amendments to the complaint may be made prior to the filing of an 
answer in which case the time for filing the answer shall be extended 20 
days or for other time agreed to by the parties. After the answer is 
filed, amendments to the complaint, or to the answer or other pleading, 
may be made by agreement of the parties or allowed at the discretion of 
the Judge. In case of an amendment which significantly changes the 
issues, the hearing shall, on the request of a party, be postponed or 
adjourned for a reasonable period, if the Judge determines that such 
action is necessary to avoid prejudice to the party.



Sec. 1.166  Consent order.

    At any time, complainant and respondent may agree to the entry of a 
consent order. Such order shall be entered by the Judge (prior to a 
decision) or the Judicial Officer (after a decision by the Judge), and 
become effective on the date specified therein.



Sec. 1.167  Conference.

    (a) Purpose. Upon motion of a party or upon the Judge's own motion, 
the Judge may direct the parties to attend a conference when the Judge 
finds that the proceeding would be expedited by discussions on matters 
of procedure and/or possible stipulations. The conference may include 
discussions regarding:
    (1) Simplification of the issues;
    (2) Limitation of expert or other witnesses;
    (3) The orderly presentation of evidence; and
    (4) Any other matters that may expedite and aid in the disposition 
of the proceeding.
    (b) Manner of the Conference. (1) The conference shall be conducted 
by telephone or correspondence unless the Judge determines that 
conducting the conference by audio-visual telecommunication:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the conference; or
    (iii) Would cost less than conducting the conference by telephone or 
correspondence. If the Judge determines that a conference conducted by 
audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the conference, 
the conference shall be conducted by personal attendance of any 
individual who is expected to participate in the conference, by 
telephone, or by correspondence.
    (2) If the conference is not conducted by telephone or 
correspondence, the conference shall be conducted by

[[Page 55]]

audio-visual telecommunication unless the Judge determines that 
conducting the conference by personal attendance of any individual who 
is expected to participate in the conference:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the conference; or
    (iii) Would cost less than conducting the conference by audio-visual 
telecommunication.

[60 FR 8457, Feb. 14, 1995]



Sec. 1.168  Procedure for hearing.

    (a) Time and place. The oral hearing shall be held at such time and 
place as specified in the complaint, and not less than 30 days after 
service thereof. The time and place of the hearing may be changed for 
good cause, by the Judge, upon motion of either complainant or 
respondent.
    (b) Manner of hearing. (1) The Judge shall file with the Hearing 
Clerk a notice stating whether the hearing will be conducted by 
telephone, audio-visual telecommunication, or personal attendance of any 
individual expected to attend the hearing and the Judge's determination 
regarding the manner of hearing shall be made in accordance with 
paragraphs (b)(3) and (b)(4) of this section. If any change in the 
manner of the hearing is made, the Judge shall file with the Hearing 
Clerk a notice of the change, which notice shall be served on the 
parties, unless it is made during the course of an oral hearing and made 
part of the transcript or recording, or actual notice is given to the 
parties.
    (2)(i) Any party may move that the hearing be conducted by telephone 
or personal attendance of any individual expected to attend the hearing 
rather than by audio-visual telecommunication. Any motion that the 
hearing be conducted by telephone or personal attendance of any 
individual expected to attend the hearing must be accompanied by a 
memorandum in support of the motion stating the basis for the motion and 
the circumstances that require the hearing to be conducted other than by 
audio-visual telecommunication.
    (ii) Within 10 days after the Judge issues a notice stating the 
manner in which the hearing is to be conducted, any party may move that 
the Judge reconsider the manner in which the hearing is to be conducted. 
Any motion for reconsideration must be accompanied by a memorandum in 
support of the motion stating the basis for the motion and the 
circumstances that require the hearing to be conducted other than in 
accordance with the Judges's notice.
    (3) The hearing shall be conducted by audio-visual telecommunication 
unless the Judge determines that conducting the hearing by personal 
attendance of any individual who is expected to participate in the 
hearing:
    (i) Is necessary to prevent prejudice to a party;
    (ii) Is necessary because of a disability of any individual expected 
to participate in the hearing; or
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication. If the Judge determines that a hearing conducted by 
audio-visual telecommunication would measurably increase the United 
States Department of Agriculture's cost of conducting the hearing, the 
hearing shall be conducted by personal attendance of any individual who 
is expected to participate in the hearing or by telephone.
    (4) The Judge may, in his or her sole discretion or in response to a 
motion by a party to the proceeding, conduct the hearing by telephone if 
the Judge finds that a hearing conducted by telephone:
    (i) Would provide a full and fair evidentiary hearing;
    (ii) Would not prejudice any party; and
    (iii) Would cost less than conducting the hearing by audio-visual 
telecommunication or personal attendance of any individual who is 
expected to participate in the hearing.
    (c) Appearances. The parties may appear in person or by counsel or 
by other representative. Persons who appear as counsel or in a 
representative capacity must conform to the standards of ethical conduct 
required of practitioners before the courts of the United States.

[[Page 56]]

    (d) Order of proceeding. Except as otherwise may be agreed by the 
parties and approved by the Judge, the complainant shall proceed first 
at the hearing.
    (e) Failure to appear. If respondent, after being duly notified, 
fails to appear at the hearing, and no good cause for such failure is 
established, complainant shall present a prime facie case on the matters 
denied in the answer.
    (f) Written statements of direct testimony. (1) Except as provided 
in paragraph (f)(2) of this section, each party must exchange with all 
other parties a written narrative verified statement of the oral direct 
testimony that the party will provide at any hearing to be conducted by 
telephone; the direct testimony of each employee or agent of the party 
that the party will call to provide oral direct testimony at any hearing 
to be conducted by telephone; and the direct testimony of each expert 
witness that the party will call to provide oral direct testimony at any 
hearing to be conducted by telephone. The written direct testimony of 
witnesses shall be exchanged by the parties at least 10 days prior to 
the hearing. The oral direct testimony provided by a witness at a 
hearing conducted by telephone will be limited to the presentation of 
the written direct testimony, unless the Judge finds that oral direct 
testimony which is supplemental to the written direct testimony would 
further the public interest and would not constitute surprise.
    (2) The parties shall not be required to exchange testimony in 
accordance with this paragraph if the hearing is scheduled to begin less 
than 20 days after the Judge's notice stating the time of the hearing.
    (g) Evidence. (1) The testimony of witnesses at the hearing shall be 
upon oath or affirmation, transcribed or recorded verbatim, and subject 
to cross-examination. Evidence which is immaterial, irrelevant, or 
unduly repetitious, or which is not of the sort upon which responsible 
persons are accustomed to rely, shall be excluded insofar as 
practicable.
    (2) Objections. If a party objects to the admission of any evidence 
or to the limitation of the scope of any examination or cross-
examination, the party shall briefly state the grounds of such 
objections, whereupon an automatic exception will follow if the 
objection is overruled by the Judge. The ruling of the Judge on any 
objection shall be part of the transcript or recording. Only objections 
made before the Judge may subsequently be relied upon in the proceeding.
    (3) Official records or documents. An official record or document, 
if admissible for any purpose, shall be admissible in evidence without 
the production of the person who made or prepared the same, and shall be 
prima facie evidence of the relevant facts stated therein. Such record 
or document shall be evidenced by an official publication thereof, or by 
a copy certified by a person having legal authority to make such 
certification.
    (4) Exhibits. Unless the Judge finds that the furnishing of multiple 
copies is impracticable, four copies of each exhibit shall be filed with 
the Judge unless the Judge finds that a greater or lesser number is 
desirable. A true copy of an exhibit may be substituted for the 
original.
    (5) 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, scientific, or commercial fact of established 
character: Provided, That the opposing party shall be given adequate 
opportunity to show that such facts are erroneously noticed.
    (6) Offer of proof. Whenever evidence is deleted from the record, 
the party offering such evidence may make an offer of proof, which shall 
be included in the transcript or recording. The offer of proof shall 
consist of a brief statement describing the evidence excluded. If the 
evidence consists of a brief oral statement or of an exhibit, it shall 
be inserted into the transcript or recording in toto. In such event, it 
shall be considered a part of the transcript or recording and record if 
the Judicial Officer decides that the Judge's ruling in excluding the 
evidence was erroneous and prejudicial. The Judge shall not allow the 
insertion of such excluded evidence in toto if the taking of such 
evidence will consume considerable time at the hearing. In the latter 
event, if the Judicial Officer

[[Page 57]]

decides that the Judge's ruling excluding the evidence was both 
prejudicial and erroneous, the hearing may be reopened to permit the 
taking of such evidence.
    (7) Affidavits. Affidavits may be submitted into evidence, in lieu 
of witness testimony, only to the extent, and in the manner agreed upon 
by the parties.
    (h) Transcript or recording. (1) Hearings to be conducted by 
telephone shall be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or the personal 
attendance of any individual who is expected to participate in the 
hearing shall be transcribed, unless the Judge finds that recording the 
hearing verbatim would expedite the proceeding and the Judge orders the 
hearing to be recorded verbatim. The Judge shall certify that to the 
best of his or her knowledge and belief any recording made pursuant to 
this paragraph with exhibits that were accepted into evidence is the 
record of the hearing.
    (2) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the Judge determines 
that the disposition of the proceeding would be expedited by a 
transcript of the hearing or part of a hearing, the Judge shall order 
the verbatim transcription of the recording as requested by the party.
    (3) Recordings or transcripts of hearings shall be made available to 
any person at actual cost of duplication.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]



Sec. 1.169  Post-hearing procedure and decision.

    (a) Corrections to transcript or recording. (1) At any time, but not 
later than the time fixed for filing proposed findings of fact, 
conclusions and order, or briefs, as the case may be, any party may file 
a motion proposing corrections to the transcript or recording.
    (2) Unless a party files such a motion in the manner prescribed, the 
transcript or recording shall be presumed, except for obvious 
typographical errors, to be a true, correct, and complete transcript or 
recording of the testimony given at the hearing and to contain an 
accurate description or reference to all exhibits received in evidence 
and made part of the hearing record.
    (3) At any time prior to the filing of the Judge's decision and 
after consideration of any objections filed as to the transcript or 
recording, the Judge may issue an order making any corrections in the 
transcript or recording which the Judge finds are warranted, which 
corrections shall be entered onto the original transcript or recording 
by the Hearing Clerk (without obscurring the original text).
    (b) Proposed findings of fact, conclusions, order and briefs. The 
parties may file with the Hearing Clerk proposed findings of fact, 
conclusions and orders based solely upon the record and on matters 
subject to official notice, and briefs in support thereof. The Judge 
shall announce at the hearing a definite period of time within which 
these documents may be filed.
    (c) Judge's decision. The Judge, within a reasonable time after the 
termination of the period allowed for the filing of proposed findings of 
fact, conclusions and order, and briefs in support thereof, shall 
prepare, upon the basis of the record and matters officially noticed, 
and shall file with the Hearing Clerk, the Judge's decision, a copy of 
which shall be served by the Hearing Clerk upon each of the parties. 
Such decision shall become final and effective without further 
proceedings 35 days after the date of service thereof upon the 
respondent, unless there is an appeal to the Judicial Officer by a party 
to the proceeding pursuant to Sec. 1.170: Provided, That no decision 
shall be final for purposes of a request for Judicial Review, as 
provided in Sec. 1.175(a), except a final decision of the Judicial 
Officer on appeal.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]



Sec. 1.170  Appeal to the Judicial Officer.

    (a) Filing of petition. Within 30 days after receiving service of 
the Judge's decision, a party who disagrees with the decision, or any 
part thereof, or any ruling by the Judge or any alleged deprivation of 
rights, may appeal such decision to the Judicial Officer by filing an 
appeal petition with the Hearing

[[Page 58]]

Clerk. As provided in Sec. 1.168(g)(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 petition, and the arguments thereon, 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 thereof. A brief may be filed 
in support of the appeal simultaneously with the 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 
arguments 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 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

[[Page 59]]

purposes of a request for judicial review as provided in Sec. 1.175(a).

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]



Sec. 1.171  Intervention.

    Intervention under these rules shall not be allowed, except that, in 
the discretion of the Judicial Officer, or the Judge, any person showing 
a substantial interest in the outcome of the proceeding shall be 
permitted to participate in oral or written argument pursuant to 
Sec. Sec. 1.169 and 1.170.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]



Sec. 1.172  Motions and requests.

    (a) General. All motions and requests shall be filed with the 
Hearing Clerk, and shall be served upon the parties, except those made 
on record during the oral hearing. The Judge shall rule upon all motions 
and requests filed or made prior to the filing of the certification of 
the transcript or recording. Thereafter, the Judicial Officer will rule 
on any motions or requests.
    (b) Motions entertained. Any motion will be entertained except a 
motion to dismiss on the pleadings. All motions and requests concerning 
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) Response to motions in request. Within ten days after service of 
any written motion or request, or within such shorter or longer period 
as may be fixed by the Judge or the Judicial Officer the opposing party 
may file a response to the motion or request.
    (e) Certification to the judicial officer. The submission or 
certification of any motion, request, objection, or other question to 
the Judicial Officer prior to the time when the Judge's certification of 
the transcript is filed with the Hearing Clerk, shall be made by and in 
the discretion of the Judge. The Judge may either rule upon or certify 
the motion, request, objection, or other question to the Judicial 
Officer, but not both.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]



Sec. 1.173  Judges.

    (a) Assignment. No Judge shall be assigned to serve in any 
proceeding who (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 determination that it should be instituted or in the 
preparation of the moving paper or in the development of the evidence to 
be introduced therein.
    (b) Disqualification of Judge. (1) Any party to the proceeding may, 
by motion made to the Judge, request that the Judge disqualify himself 
or herself and withdraw from the proceeding. Such motion shall set forth 
with particularity the alleged disqualification. The Judge may then 
either rule upon or certify the motion to the Judicial Officer, but not 
both.
    (2) A Judge will withdraw from any proceeding in which the Judge 
deems himself or herself disqualified for any reason.
    (c) Conduct. At no stage of the proceeding between its institution 
and the issuance of the final decision shall the Judicial Officer or the 
Judge discuss ex parte the merits of the proceeding with any person who 
is connected with the proceeding as an advocate or in an investigative 
capacity, or with any representative of such person: Provided, That 
procedural matters shall not be included within the limitation: and 
Provided further, That the Judicial Officer of Judge may discuss the 
merits of the case with such a person if all parties to the proceeding, 
or their representatives, have been given an opportunity to be present. 
Any memorandum or other communication addressed to the Judicial Officer 
or a Judge, during the pendency of the proceeding, and relating to the 
merits thereof, by or on behalf of any party or any interested person, 
shall be filed with the Hearing Clerk. A copy thereof shall be served 
upon the parties to the proceeding, and, in the discretion of the Judge 
or the Judicial Officer, opportunity may be given to file a reply 
thereto within a specified period.

[[Page 60]]

    (d) Powers. Subject to review by the Judicial Officer as provided 
elsewhere in this part, the Judge, in any proceeding assigned to him or 
her shall have power to:
    (1) Rule upon motions and requests;
    (2) Set the time, place, and manner of any conference, set the 
manner of the hearing, adjourn the hearing, and change the time, place, 
and manner of the hearing;
    (3) Administer oaths and affirmations;
    (4) Examine witnesses and receive relevant evidence;
    (5) Admit or exclude evidence;
    (6) Hear oral argument on facts or law;
    (7) Require each party to provide all other parties and the Judge 
with a copy of any exhibit that the party intends to introduce into 
evidence prior to any hearing to be conducted by telephone or audio-
visual telecommunication;
    (8) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties 
and the Judge are able to transmit and receive documents during the 
hearing;
    (9) Do all acts and take all measures necessary for the orderly 
presentation of evidence, maintenance of order, and the efficient 
conduct of the proceeding.
    (e) Who may act in the absence of the Judge. In case of the absence 
of the Judge or upon the Judge's inability to act, the powers and duties 
to be performed by the Judge under these Rules of Practice in connection 
with a proceeding assigned to the Judge may, without abatement of the 
proceeding, be assigned to any other Judge.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]



Sec. 1.174  Filing; service; extensions of time; and computation of time.

    (a) Filing; Number of Copies. Except as otherwise provided by the 
Judge or the Secretary, all documents or papers required or authorized 
by the rules in this part to be filed with the Hearing Clerk shall be 
filed in quadruplicate: Provided, That, where there are parties to the 
proceeding in addition to complainant and respondent, an additional copy 
shall be filed for each such additional party. Any document or paper, 
required or authorized under the rules in this part to be filed with the 
Hearing Clerk, shall, during the course of an oral hearing, be filed 
with the Judge.
    (b) Service; proof of service. Copies of all such documents or 
papers required or authorized by the rules in this part to be filed with 
the Hearing Clerk, shall be served upon the parties by the Hearing 
Clerk, or by some other employee of the Department, or by a U.S. Marshal 
or his Deputy. Service shall be made either (1) by delivering a copy of 
the document or paper to the individual to be served or to a member of 
the partnership to be served, or to the president, secretary, or other 
executive officer or any director of the corporation or association to 
be served, or to the attorney or agent of record of such individual, 
partnership, corporation, organization, or association; or (2) by 
leaving a copy of the document or paper at the principal office or place 
of business or residence of such individual, partnership, corporation, 
organization, or association, or of his or its attorney or agent of 
record and mailing by regular mail another copy to each person at such 
address; or (3) by registering or certifying and mailing a copy of the 
document or paper, addressed to such individual, partnership, 
corporation, organization, or association, or to his or its attorney or 
agent of record, at his or its last known residence or principal office 
or place of business: Provided, That if the registered or certified 
document or paper is returned undelivered because the addressee refused 
or failed to accept delivery, the document or paper shall be served by 
remailing it by regular mail. Proof of service hereunder shall be made 
by the certification of the person who actually made the service: 
Provided, That if the service be made by mail, as outlined in paragraph 
(b)(3) of this section proof of service shall be made by the return post 
office receipt, in the case of registered or certified mail, or by the 
certificate of the person who mailed the matter by regular mail. The 
certificate and post office receipt contemplated herein shall be filed 
with the Hearing Clerk, and the fact of filing thereof shall be noted in 
the record of the proceeding.

[[Page 61]]

    (c) Extension of time. The time for the filing of any document or 
paper required or authorized under the rules in this part to be filed 
may be extended by the Judge prior to the filing of the certification of 
the transcript or recording if there is good reason for the extension. 
In all instances in which time permits, notice of the request for 
extension of the time shall be given to the other party with opportunity 
to submit views concerning the request.
    (d) Effective date of filing. Any document or paper required or 
authorized under the rules in this part to be filed shall be deemed to 
be filed at the time when it reaches the Department of Agriculture in 
Washington, D.C.; or, if authorized to be filed with an officer or 
employee of the Department at any place outside the District of 
Columbia, it shall be deemed to be filed at the time when it reaches the 
office of such officer or employee.
    (e) Computation of time. Saturdays, Sundays and Federal holidays 
shall be included in computing the time allowed for the filing of any 
document or paper: Provided, That when such time expires on a Saturday, 
Sunday or Federal holiday, such period shall be extended to include the 
next following business day.

[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8459, Feb. 14, 1995]



Sec. 1.175  Procedure following entry of cease and desist order.

    (a) Request for judicial review. An association subject to a cease 
and desist order may, within thirty days following the date of the 
order, request the Secretary to institute proceedings for judicial 
review of the order. Such request shall, to the extent practicable, 
identify findings of fact, conclusions of law, and any part of the order 
which the association claims are in error. The Secretary shall, 
thereupon, file in the district in the judicial district in which such 
association has its principal place of business, a certified copy of the 
order and of all records in the proceeding, including the request of the 
association, together with a petition asking that the order be affirmed 
and enforced.
    (b) Enforcement. If an association subject to a cease and desist 
order fails or neglects, within thirty days of the date of the order, or 
at any time thereafter, to obey such order, and has not made a request 
for judicial review as provided above, the Secretary shall file in the 
district court in the judicial district in which such association has 
its principal place of business a certified copy of the order and of all 
records in the proceeding, together with a petition asking that the 
order be enforced.
    (c) Notice. The Secretary shall give notice of the filing of a 
petition for enforcement or review to the Attorney General, and to the 
association, by service of a copy of the petition.



   Subpart J_Procedures Relating to Awards Under the Equal Access to 
            Justice Act in Proceedings Before the Department

    Source: 67 FR 63237, Oct. 11, 2002, unless otherwise noted.

                           General Provisions



Sec. 1.180  Definitions.

    (a) The definitions contained in Sec. 1.132 of this part are 
incorporated into and made applicable to this subpart.
    (b) Adjudicative Officer means an administrative law judge, 
administrative judge, or other person assigned to conduct a proceeding 
covered by EAJA.
    (c) Agency means an organizational unit of the Department whose head 
reports to an official in the Office of the Secretary.
    (d) Agency counsel means the attorney from the Office of the General 
Counsel representing the agency of the Department administering the 
statute involved in the proceeding.
    (e) Days means calendar days.
    (f) Department means the United States Department of Agriculture.



Sec. 1.181  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``EAJA'' in 
this subpart), provides for the award of attorney fees and other 
expenses to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
the Department. An eligible party

[[Page 62]]

may receive an award when it prevails over the Department unless the 
position of the Department was substantially justified or special 
circumstances make an award unjust. Alternatively, an eligible party may 
receive an award in connection with an adversary adjudication arising 
from an agency action to enforce the party's compliance with a statutory 
or regulatory requirement where the demand by the agency is 
substantially in excess of the decision of the adjudicative officer and 
is unreasonable when compared with such decision under the facts and 
circumstances of the case. The rules in this subpart describe the 
parties eligible for awards and the proceedings that are covered. They 
also explain how to apply for awards, and the procedures and standards 
that the Department will use to make awards.



Sec. 1.182  When EAJA applies.

    EAJA applies to any adversary adjudication pending or commenced 
before the Department on or after August 5, 1985, except with respect to 
a proceeding covered under Sec. 1.183(a)(1)(iii) of this part, which is 
effective on or after October 21, 1986. In addition, the provisions of 
Sec. 1.185(b) relating to award for excessive demand apply only to 
adversary adjudications commenced on or after March 29, 1996. Changes in 
maximum rates for attorney fees are effective as of October 11, 2002.



Sec. 1.183  Proceedings covered.

    (a)(1) The rules in this subpart apply to adversary adjudications. 
These are:
    (i) Adjudications required by statute to be conducted by the 
Department under 5 U.S.C. 554 in which the position of the Department or 
any other agency of the United States, or any component of an agency, is 
presented by an attorney or other representative who enters an 
appearance and participates in the proceeding,
    (ii) Appeals of decisions of contracting officers made pursuant to 
section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before 
the Agriculture Board of Contract Appeals as provided in section 8 of 
that Act (41 U.S.C. 607), and
    (iii) Any hearing conducted under chapter 38 of title 31, United 
States Code.
    (2) Any proceeding in which the Department may prescribe a lawful 
present or future rate is not covered by EAJA. Proceedings to grant or 
renew licenses also are excluded, but proceedings to modify, suspend, or 
revoke licenses are covered if they are otherwise ``adversary 
adjudications.'' The proceedings covered include adversary adjudications 
under the following statutory provisions.

Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 608c(15)(A))
Animal Health Protection Act, sections 10414 and 10415 (7 U.S.C. 8313 
and 8314).
Animal Quarantine Laws (21 U.S.C. 104, 117, 122, 127, 134e, and 135a)
Animal Welfare Act (7 U.S.C. 2149)
Archaeological Resources Protection Act (16 U.S.C. 470ff)
Beef Research and Information Act (7 U.S.C. 2912)
Capper-Volstead Act (7 U.S.C. 292)
Cotton Research and Promotion Act (7 U.S.C. 2111)
Egg Products Inspection Act (21 U.S.C. 1047)
Egg Research and Consumer Information Act (7 U.S.C. 2713, 2714(b))
Endangered Species Act (16 U.S.C. 1540(a))
Federal Land Policy and Management Act (43 U.S.C. 1766)
Federal Meat Inspection Act (21 U.S.C. 604, 606, 607(e), 608, 671)
Federal Seed Act (7 U.S.C. 1599)
Horse Protection Act (15 U.S.C. 1823(c), 1825)
Packers and Stockyards Act (7 U.S.C. 193, 204, 213, 218d, 221)
Perishable Agricultural Commodities Act (7 U.S.C. 499c(c), 499d(d), 
499f(c), 499h(a), 499h(b), 499h(c), 499i, 499m(a))
Plant Protection Act (7 U.S.C. 7734, 7735, and 7736)
Potato Research and Promotion Act (7 U.S.C. 2620)
Poultry Products Inspection Act (21 U.S.C. 455, 456, 457(d), 467)
Swine Health Protection Act (7 U.S.C. 3804(b), 3805(a))
Title V of the Agricultural Risk Protection Act of 2000, section 501(a) 
(7 U.S.C. 2279e).
U.S. Cotton Standards Act (7 U.S.C. 51b, 53)
U.S. Grain Standards Act (7 U.S.C. 79(g)(3), 85, 86)
U.S. Warehouse Act (7 U.S.C. 246, 253)
Virus-Serum-Toxin Act (21 U.S.C. 156)
Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 
3409)

    (b) The failure of the Department to identify a type of proceeding 
as an adversary adjudication shall not preclude the filing of an 
application by a party

[[Page 63]]

who believes the proceeding is covered by EAJA; whether the proceeding 
is covered will then be an issue for resolution in proceedings on the 
application.
    (c) If a proceeding includes both matters covered by EAJA and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

[67 FR 63237, Oct. 11, 2002, as amended at 67 FR 70674, Nov. 26, 2002]



Sec. 1.184  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under EAJA, the applicant must meet one of the following conditions:
    (1) The applicant must be a prevailing party to the adversary 
adjudication for which it seeks an award; or
    (2) The applicant must be a party to an adversary adjudication 
arising from an agency action to enforce the party's compliance with a 
statutory or regulatory requirement in which the demand by the agency 
was substantially in excess of the decision of the adjudicative officer 
and the demand is unreasonable when compared with such decision under 
the facts and circumstances of the case.
    (b) In addition to the criteria set out in paragraph (a) of this 
section, a party seeking an award must be one of the following:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (2 U.S.C. 1141j(a)) with not more than 500 
employees;
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and nor more than 500 employees;
    (6) For purposes only of paragraph (a)(2) of this section, a small 
entity as defined in 5 U.S.C. 601.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated: Provided, that for purposes of 
eligibility in proceedings covered by Sec. 1.183(a)(1)(ii) of this 
part, the net worth and number of employees of an applicant shall be 
determined as of the date the applicant filed its appeal under 41 U.S.C. 
606.
    (d) In interpreting the criteria set forth in paragraph (b) of this 
section, the following apply:
    (1) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (2) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (3) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation, or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
subpart, unless the adjudicative officer determines such treatment would 
be unjust and contrary to the purposes of EAJA in light of the actual 
relationship between the affiliated entities. In addition, the 
adjudicative officer may determine that financial relationships of the 
applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (4) An applicant that participates in a proceeding primarily on 
behalf of one or more other person or entity that would be ineligible is 
not itself eligible for an award.

[[Page 64]]



Sec. 1.185  Standards for awards.

    (a) Prevailing party. (1) A prevailing applicant may receive an 
award for fees and expenses incurred in connection with a proceeding, or 
in a significant and discrete substantive portion of the proceeding, 
unless the position of the Department was substantially justified. The 
position of the Department includes, in addition to the position taken 
by the Department in the adversary adjudication, the action or failure 
to act by the Department upon which the adversary adjudication is based. 
The burden of proof that an award should not be made to an eligible 
prevailing applicant because the position of the Department was 
substantially justified is on the agency.
    (2) An award to a prevailing applicant will be reduced or denied if 
the applicant has unduly or unreasonably protracted the proceeding or if 
special circumstances make the award sought unjust.
    (b) Excessive demand. (1) If, in an adversary adjudication arising 
from an agency action to enforce a party's compliance with a statutory 
or regulatory requirement, the demand by the agency is substantially in 
excess of the decision of the adjudicative officer and is unreasonable 
when compared with such decision under the facts and circumstances of 
the case, the adjudicative officer shall award to the party the fees and 
other expenses related to defending against the excessive demand, unless 
the party has committed a willful violation of law or otherwise acted in 
bad faith, or special circumstances make an award unjust. Fees and 
expenses awarded under this paragraph shall be paid only as a 
consequence of appropriations provided in advance.
    (2) ``Demand'' means the express demand of the agency which led to 
the adversary adjudication, but does not include a recitation by the 
agency of the maximum statutory penalty:
    (i) In the administrative complaint, or
    (ii) Elsewhere when accompanied by an express demand for a lesser 
amount.



Sec. 1.186  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents, and expert 
witnesses, even if the services were made available without charge or at 
reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under the rules in 
this subpart may exceed $125.00 per hour. No award to compensate an 
expert witness may exceed the highest rate at which the Department pays 
expert witnesses, which is set out at Sec. 1.150 of this part. However, 
an award also may include the reasonable expenses of the attorney, 
agent, or witness as a separate item, if the attorney, agent, or witness 
ordinarily charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent, or expert witness, the adjudicative officer shall 
consider the following:
    (1) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent, or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.



Sec. 1.187  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Department may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than $125 per

[[Page 65]]

hour in some or all of the types of proceedings covered by this part. 
The Department will conduct any rulemaking proceedings for this purpose 
under the informal rulemaking procedures of the Administrative Procedure 
Act.
    (b) Any person may file with the Department a petition for 
rulemaking to increase the maximum rate for attorney fees in accordance 
with Sec. 1.28 of this part. The petition should identify the rate the 
petitioner believes the Department should establish and the types of 
proceedings in which the rate should be used. It also should explain 
fully the reasons why the higher rate is warranted. The Department will 
respond to the petition within 60 days after it is filed, by initiating 
a rulemaking proceeding, denying the petition, or taking other 
appropriate action.



Sec. 1.188  Awards against other agencies.

    If an applicant is entitled to an award because it prevails over 
another agency of the United States that participates in a proceeding 
before the Department and takes a position that is not substantially 
justified, the award or an appropriate portion of the award shall be 
made against that agency.



Sec. 1.189  Delegations of authority.

    (a) Except as provided in paragraph (b) of this section, the 
Secretary of Agriculture delegates to the Judicial Officer authority to 
take final action on matters pertaining to the Act in proceedings 
covered by these rules. The Secretary by order may delegate authority to 
take final action on matters pertaining to the Act in particular cases 
to other subordinate officials or bodies.
    (b)(1) The Secretary of Agriculture delegates to the Director of the 
National Appeals Division authority to take final actions on matters 
pertaining to the Act for proceedings under 7 CFR part 11.
    (2) With respect to proceedings covered under Sec. 1.183(b)(1)(ii) 
of this part, the Board of Contract Appeals is authorized by statute (41 
U.S.C. 607) to take final action.

[68 FR 27435, May 20, 2003]

                  Information Required From Applicants



Sec. 1.190  Contents of application.

    (a) An application for an award of fees and expenses under EAJA 
shall identify the applicant and the proceeding for which an award is 
sought. Unless the applicant is an individual, the application shall 
state the number of employees of the applicant and describe briefly the 
type and purpose of its organization or business. The application shall 
also:
    (1) Show that the applicant has prevailed and identify the position 
of the Department that the applicant alleges was not substantially 
justified and shall briefly state the basis for such allegation; or
    (2) Show that the demand by the Department in the proceeding was 
substantially in excess of, and was unreasonable when compared with, the 
decision in the proceeding.
    (b) The application also shall, as appropriate, include a 
declaration that the applicant is a small entity as defined in 5 U.S.C. 
601 or a statement that the applicant's net worth does not exceed $2 
million (if an individual) or $7 million (for all other applicants, 
including their affiliates). However, an applicant may omit this 
statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application also may include any other matters that the 
applicant wishes the Department to consider in determining whether, and 
in what amount, an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer

[[Page 66]]

or attorney of the applicant. It also shall contain or be accompanied by 
a written verification under oath or affirmation under penalty of 
perjury that the information provided in the application and all 
accompanying material is true and complete to the best of the signer's 
information and belief.



Sec. 1.191  Net worth exhibit.

    (a) An applicant, except a qualified tax-exempt organization or 
cooperative association, must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 1.184 of this part) when the proceeding was initiated. 
The exhibit may be in any form convenient to the applicant that provides 
full disclosure of the applicant's and its affiliates' assets and 
liabilities and is sufficient to determine whether the applicant 
qualifies under the standards in this subpart. The adjudicative officer 
may require an applicant to file additional information to determine its 
eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the adjudicative officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b) (1) through (9). The material in 
question shall be served on counsel representing the agency against 
which the applicant seeks an award, but need not be served on any other 
party to the proceeding. If the adjudicative officer finds that the 
information should not be withheld from disclosure, it shall be placed 
in the public record of the proceeding. Otherwise, any request to 
inspect or copy the exhibit shall be disposed of in accordance with the 
established procedures of the Department under the Freedom of 
Information Act (Sec. Sec. 1.1 through 1.23 of this part).



Sec. 1.192  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, project, or similar matter, for which an award 
is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing on behalf of the 
party, stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall state the services performed. In order to 
establish the hourly rate, the affidavit shall state the hourly rate 
which is billed and paid by the majority of clients during the relevant 
time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide information about 
two attorneys or agents with similar experience, who perform similar 
work, stating their hourly rate.
    (c) The documentation also shall include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any fees or expenses 
claimed, pursuant to Sec. 1.199 of this part.



Sec. 1.193  Time for filing application.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding or in a significant and discrete substantive portion 
of the proceeding, but in no case later than 30 days after final 
disposition of the proceeding by the Department.
    (b) For the purposes of this subpart, final disposition means the 
date on which a decision or order disposing of the merits of the 
proceeding or any

[[Page 67]]

other complete resolution of the proceeding, such as a settlement or 
voluntary dismissal, become final and unappealable, both within the 
Department and to the courts.
    (c) If review or reconsideration is sought or taken of a decision as 
to which an applicant believes it has prevailed, proceedings for the 
award of fees shall be stayed pending final disposition of the 
underlying controversy. When the United States appeals the underlying 
merits of an adversary adjudication to a court, no decision on an 
application for fees and other expenses in connection with that 
adversary adjudication shall be made until a final and unreviewable 
decision is rendered by the court on the appeal or until the underlying 
merits of the case have been finally determined pursuant to the appeal.

                 Procedures for Considering Applications



Sec. 1.194  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
proceeding in the same manner as other pleadings in the proceeding 
except as provided in Sec. 1.191 of this part for confidential 
financial information. The provisions relating to filing, service, 
extensions of time, and computation of time contained in Sec. 1.147 of 
this part are incorporated into and made applicable to this subpart, 
except that the statutory 30 day time limit on filing the application as 
set out in Sec. 1.193 of this part may not be extended.



Sec. 1.195  Answer to application.

    (a) Within 30 days after service of an application, agency counsel 
may file an answer. If agency counsel fails to timely answer or settle 
the application, the adjudicative officer, upon a satisfactory showing 
of entitlement by the applicant, may make an award for the applicant's 
allowable fees and expenses.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement of 
intent to negotiate a settlement. The filing of this statement shall 
extend the time for filing an answer for an additional 30 days, and 
further extensions may be granted by the adjudicative officer upon 
request by agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec. 1.199 of this part.



Sec. 1.196  Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the proceeding, the applicant shall include with the reply 
either supporting affidavits or a request for further proceedings under 
Sec. 1.199 of this part.



Sec. 1.197  Comments by other parties.

    Any party to a proceeding other than the applicant and agency 
counsel may file comments on an application within 30 days after it is 
served or on an answer within 15 days after it is served. A commenting 
party may not participate further in proceedings on the application, 
unless the adjudicative officer determines that the public interest 
requires such participation in order to permit full exploration of 
matters raised in the comments.



Sec. 1.198  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding, or after the 
underlying proceeding has been concluded. If a prevailing party and 
agency counsel agree on a proposed settlement of an award before an 
application has been filed, the application shall be filed with the 
proposed settlement.



Sec. 1.199  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of

[[Page 68]]

the written record. However, on request of either the applicant or 
agency counsel, or on his or her own initiative, the adjudicative 
officer may order further proceedings, such as an informal conference, 
oral argument, additional written submissions or, as to issues other 
than substantial justification (such as the applicant's eligibility or 
substantiation of fees and expenses), pertinent discovery or an 
evidentiary hearing. Such further proceedings shall be held only when 
necessary for full and fair resolution of the issues arising from the 
application, and shall be conducted as promptly as possible. Whether the 
position of the Department was substantially justified shall be 
determined on the basis of the administrative record, as a whole, which 
is made in the adversary adjudication for which fees and other expenses 
are sought.
    (b) A request that the adjudicative officer order further 
proceedings under this section shall identify specifically the 
information sought or the disputed issues, and shall explain 
specifically why the additional proceedings are necessary to resolve the 
issues.
    (c) In the event that an evidentiary hearing is held, it shall be 
conducted pursuant to Sec. Sec. 1.130 through 1.151 of this part, 
except that any hearing in a proceeding covered by Sec. 1.183(a)(1)(ii) 
of this part shall be conducted pursuant to Rules 17 through 25 of the 
Board of Contract Appeals contained in Sec. 24.21 of this title.



Sec. 1.200  Decision.

    The adjudicative officer or Board of Contract Appeals shall issue an 
initial decision on the application as expeditiously as possible after 
completion of proceedings on the application. Whenever possible, the 
decision shall be made by the same administrative judge or panel that 
decided the contract appeal for which fees are sought. The decision 
shall include written findings and conclusions on the applicant's 
eligibility and status as a prevailing party, and an explanation of the 
reasons for any difference between the amount requested and the amount 
awarded. This decision also shall include, if at issue, findings on 
whether the position of the Department was substantially justified, 
whether the applicant unduly protracted the proceedings, or whether 
special circumstances make an award unjust. If the applicant has sought 
an award against more than one agency, the decision shall allocate 
responsibility for payment of any award made among the agencies, and 
shall explain the reasons for the allocation made.



Sec. 1.201  Department review.

    (a) Except with respect to a proceeding covered by Sec. 
1.183(a)(1)(ii) of this part either the applicant or agency counsel may 
seek review of the initial decision on the fee application, in 
accordance with the provisions of Sec. Sec. 1.145(a) and 1.146(a) of 
this part or in accordance with any delegation made pursuant to Sec. 
1.189 of this part. If neither the applicant nor agency counsel seeks 
review, the initial decision on the fee application shall become a final 
decision of the Department 35 days after it is served upon the 
applicant. If review is taken, it will be in accord with the provisions 
of Sec. Sec. 1.145(b) through (i) and 1.146(b) of this part, or
    (b) With respect to a proceeding covered by Sec. 1.183(a)(1)(ii) of 
this part, either party may seek reconsideration of the decision on the 
fee application in accordance with Rule 29 of the Board of Contract 
Appeals contained in Sec. 24.21 of this title. In addition, either 
party may appeal a decision of the Board of Contract Appeals to the 
Court of Appeals for the Federal Circuit in accordance with 41 U.S.C. 
607.



Sec. 1.202  Judicial review.

    Judicial review of final agency decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).



Sec. 1.203  Payment of award.

    An applicant seeking payment of an award shall submit to the head of 
the agency administering the statute involved in the proceeding a copy 
of the final decision of the Department granting the award, accompanied 
by a statement that the applicant will not seek review of the decision 
in the United States courts. The agency will pay the amount awarded to 
the applicant within 60 days, unless judicial review of the award or of 
the underlying decision of the adversary adjudication has been

[[Page 69]]

sought by the applicant or any other party to the proceeding.



   Subpart K_Appearance of USDA Employees as Witnesses in Judicial or 
                       Administrative Proceedings

    Source: 55 FR 42347, Oct. 19, 1990, unless otherwise noted.



Sec. 1.210  Purpose.

    This subpart sets forth procedures governing the appearance of USDA 
employees as witnesses in order to testify or produce official documents 
in judicial or administrative proceedings when such appearance is in 
their official capacity or arises out of or is related to their 
employment with USDA. These regulations do not apply to appearances by 
USDA employees as witnesses in judicial or administrative proceedings 
which are purely personal or do not arise out of or relate to their 
employment with USDA. This subpart also does not apply to Congressional 
requests or subpoenas for testimony or documents.



Sec. 1.211  Definitions.

    (a) Administrative proceeding means any proceeding pending before 
any federal, state, or local agency and undertaken for the purpose of 
the issuance of any regulations, orders, licenses, permits, or other 
rulings, or the adjudication of any matter, dispute, or controversy.
    (b) Appearance means testimony or production of documents the 
request for which arises out of an employee's official duties with USDA 
or relates to his or her employment with USDA. For the purpose of this 
subpart, an appearance also includes an affidavit, deposition, 
interrogatory, or other required written submission.
    (c) Judicial proceeding means any case or controversy pending before 
any federal, state, or local court.
    (d) Travel expenses means the amount of money paid to a witness for 
reimbursement for transportation, lodging, meals, and other 
miscellaneous expenses in connection with attendance at a judicial or 
administrative proceeding.
    (e) USDA means the United States Department of Agriculture.
    (f) USDA agency means an organizational unit of USDA whose head 
reports to an official within the Office of the Secretary of 
Agriculture.
    (g) Valid summons, subpoena, or other compulsory process means an 
order that is served properly and within the legal authority and the 
jurisdictional boundaries of the court or administrative agency or 
official that has issued it.
    (h) Witness fees means the amount of money paid to a witness as 
compensation for attendance at a judicial or administrative proceeding.



Sec. 1.212  General.

    No USDA employee may provide testimony or produce documents in a 
judicial or administrative proceeding unless authorized in accordance 
with this subpart.



Sec. 1.213  Appearance as a witness on behalf of the United States.

    An employee of USDA may appear as a witness on behalf of the United 
States in any judicial or administrative proceeding without the issuance 
of a summons, subpoena, or other compulsory process. Employees should 
obtain permission for such an appearance from their immediate supervisor 
unless the USDA agency or General Counsel has issued instructions 
providing otherwise.



Sec. 1.214  Appearance as a witness on behalf of a party other than the 
United States where the United States is not a party.

    (a) An employee of USDA served with a valid summons, subpoena, or 
other compulsory process demanding his or her appearance, or otherwise 
requested to appear on behalf of a party other than the United States in 
a judicial or administrative proceeding in which the United States is 
not a party, shall promptly notify the head of his or her USDA agency of 
the existence and nature of the order compelling his or her appearance, 
or of the document requesting his or her attendance. He or she shall 
also specify, if that is known, the nature of the judicial or 
administrative proceeding and the nature of the testimony or documents 
requested.

[[Page 70]]

    (b)(1) An employee of USDA served with a valid summons, subpoena, or 
other compulsory process, or requested to appear as a witness on behalf 
of a party other than the United States in a judicial or administrative 
proceeding in which the United States is not a party, may appear only if 
such appearance has been authorized by the head of his or her USDA 
agency, with the concurrence of the General Counsel, based upon a 
determination that such an appearance is in the interest of USDA.
    (2) An employee of USDA requested to appear as a witness on behalf 
of a party other than the United States in a judicial or administrative 
proceeding in which the United States is not a party, without the 
service of a valid summons, subpoena, or other compulsory process, may 
appear only if such appearance has been authorized by the head of his or 
her USDA agency and approved by the appropriate Assistant Secretary, 
Under Secretary or other general officer, and by the General Counsel, 
based upon a determination that such an appearance is in the interest of 
USDA.
    (c) Unless an appearance is authorized as provided in paragraphs 
(b)(1) or (b)(2) of this section, the employee shall appear at the 
stated time and place (unless advised by the General Counsel or his or 
her designee that the summons, subpoena, or other process was not 
validly issued or served), produce a copy of these regulations and 
respectfully decline to provide any testimony. As appropriate, the 
General Counsel or his or her designee will request the assistance of 
the Department of Justice or of a United States Attorney, in the case of 
a judicial proceeding; or of the official or attorney representing the 
United States, in the case of an administrative proceeding, to represent 
the interests of the employee and USDA.
    (d) If there is any question regarding the validity of a summons, 
subpoena, or other compulsory process, an employee shall contact the 
Office of the General Counsel for advice.
    (e)(1) In determining whether the employee's appearance is in the 
interest of USDA, authorizing officials should consider the following:
    (i) what interest of USDA would be promoted by the employee's 
testimony;
    (ii) whether an appearance would result in an unnecessary 
interference with the duties of the USDA employee;
    (iii) whether an employee's testimony would result in the appearance 
of improperly favoring one litigant over another.
    (2) The considerations listed in paragraph (e)(1) of this section 
are illustrative and not exhaustive.



Sec. 1.215  Subpoenas duces tecum for USDA records in judicial or 
administrative proceedings in which the United States is not a party.

    (a) Subpoenas duces tecum for USDA records in judicial or 
administrative proceedings in which the United States is not a party 
shall be deemed to be requests for records under the Freedom of 
Information Act and shall be handled pursuant to the rules governing 
public disclosure under subpart A of this part.
    (b) Whenever a subpoena duces tecum compelling the production of 
records is served on a USDA employee in a judicial or administrative 
proceeding in which the United States is not a party, the employee, 
after consultation with the General Counsel or his or her designee, 
shall appear in response thereto, respectfully decline to produce the 
records on the grounds that it is prohibited by this section and state 
that the production of the records involved will be handled in 
accordance with subpart A of this part.



Sec. 1.216  Appearance as a witness or production of documents on behalf 
of a party other than the United States where the United States is a party.

    (a) An employee of USDA served with a valid summons, subpoena, or 
other compulsory process demanding his or her appearance, or otherwise 
requested to appear or produce documents on behalf of a party other than 
the United States in a judicial or administrative proceeding in which 
the United States is a party, shall promptly notify the head of his or 
her USDA agency and the General Counsel or his or her designee of the 
existence and nature of the order compelling his or her appearance, or 
of the document requesting his or

[[Page 71]]

her appearance. He or she shall also specify, if that is known, the 
nature of the judicial or administrative proceeding and the nature of 
the testimony or documents requested.
    (b)(1) Except as provided in paragraph (b)(2) of this section, an 
employee of USDA only may appear as a witness or produce records on 
behalf of a party other than the United States in a judicial or 
administrative proceeding in which the United States is a party if such 
appearance or production has been ordered by the service on the employee 
of a valid summons, subpoena, or other compulsory process issued by a 
court, administrative agency, or other official authorized to compel his 
or her appearance.
    (2) An employee requested to appear as a witness or produce records 
on behalf of a party other than the United States in a judicial or 
administrative proceeding in which the United States is a party, without 
being served a valid summons, subpoena, or other compulsory process, may 
appear or produce records only if such appearance or production has been 
authorized by a representative of the Department of Justice, the United 
States Attorney, or other counsel who is representing the United States 
in the case of a judicial proceeding; or by the official or attorney 
representing the United States, in the case of an administrative 
proceeding.
    (c) The head of the USDA agency shall consult with the General 
Counsel or his or her designee as to whether there are grounds to oppose 
the employee's attendance or production of documents and, if so, whether 
to seek to quash the summons, subpoena, compulsory process, or to deny 
authorization under paragraph (b)(2) of this section.
    (d) As appropriate, the General Counsel or his or her designee will 
request the assistance of the Department of Justice, a United States 
Attorney, or other counsel representing the United States, in the case 
of a judicial proceeding; or of the official or attorney representing 
the United States, in the case of an administrative proceeding, to 
represent the interest of the employee and USDA.
    (e) If there is any question regarding the validity of a summons, 
subpoena, or other compulsory process, an employee shall contact the 
Office of the General Counsel for advice.



Sec. 1.217  Witness fees and travel expenses.

    (a) Any employee of USDA who attends a judicial or administrative 
proceeding as a witness in order to testify or produce official 
documents on behalf of the United States is entitled to travel expenses 
in connection with such appearance in accordance with the Agriculture 
Travel Regulations.
    (b) An employee of USDA who attends a judicial or administrative 
proceeding on behalf of the United States is not entitled to receive 
fees for such attendance.
    (c) An employee of USDA who attends a judicial or administrative 
proceeding on behalf of a party other than the United States when such 
appearance is in his or her official capacity or arises out of or 
relates to his or her employment with USDA is entitled to travel 
expenses in accordance with the Agriculture Travel Regulations to the 
extent that such expenses are not paid for by the court, agency, or 
official compelling his or her appearance or by the party on whose 
behalf he or she appears.
    (d) An employee of USDA who attends a judicial or administrative 
proceeding on behalf of a party other than the United States when such 
appearance is in his or her official capacity or arises out of or 
relates to his or her employment with USDA is required to collect the 
authorized fees for such service and remit such fees to his or her USDA 
agency.



Sec. 1.218  Penalty.

    An employee who testifies or produces records in a judicial or 
administrative proceeding in violation of the provisions of this 
regulation shall be subject to disciplinary action.



Sec. 1.219  Delegations.

    (a) Except as provided in paragraphs (b), (c), or (d) of this 
section, the head of a USDA agency may delegate his or her 
responsibilities under this subpart,

[[Page 72]]

including the requirement to be notified of the receipt of a subpoena as 
provided in Sec. Sec. 1.214(a) and 1.216(a) of this part, to employees 
of his or her agency as follows:
    (1) In the National office of the agency, to a level no lower than 
two levels below the agency head;
    (2) In a field component of an agency, to a level no lower than the 
official who heads a state office.
    (b) Notwithstanding paragraph (a) of this section, the Chief of the 
Forest Service may delegate his responsibilities under this subpart as 
follows:
    (1) In the National office of the Forest Service, to a level no 
lower than a Deputy Chief of the Forest Service;
    (2) In a field component of the Forest Service, to a level no lower 
than a Regional Forester or Station Director.
    (c) Notwithstanding paragraph (a) of this section, the General 
Counsel may delegate his responsibilities under this subpart as follows:
    (1) In the National office of the Office of the General Counsel, to 
a level no lower than an Assistant General Counsel;
    (2) In the field component of the Office of the General Counsel, to 
Regional Attorneys who may redelegate their responsibilities to 
Associate Regional Attorneys and Assistant Regional Attorneys who report 
to them.
    (d) The responsibilities assigned to heads of agencies and to 
Assistant and Under Secretaries in Sec. 1.214(b)(2) of this part may 
not be redelegated.

[58 FR 62495, Nov. 29, 1993; 58 FR 64353, Dec. 6, 1993]



   Subpart L_Procedures Related to Administrative Hearings Under the 
                Program Fraud Civil Remedies Act of 1986

    Authority: 31 U.S.C. 3801-3812.

    Source: 56 FR 9582, Mar. 7, 1991, unless otherwise noted. Correctly 
designated at 57 FR 3909, Feb. 3, 1992.



Sec. 1.301  Basis, purpose and scope.

    (a) Basis. This subpart implements the Program Fraud Civil Remedies 
Act of 1986, Public Law No. 99-509, Sections 6101-6104, 100 Stat. 1874 
(1986). This statute added 31 U.S.C. 3801-3812. Section 3809 of Title 
31, United States Code, requires the Secretary to promulgate regulations 
necessary to implement the provisions of the statute.
    (b) Purpose. This subpart--
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against persons who make, submit, or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents, and
    (2) Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.
    (c) Scope. The procedures for imposing civil penalties and 
assessments established by this subpart are intended to enhance existing 
administrative enforcement efforts against fraud and to provide an 
additional remedy against false, fictitious, and fraudulent claims and 
statements in the programs administered by this Department.



Sec. 1.302  Definitions.

    (a) Agency means a constituent organizational unit of the USDA.
    (b) Agency Fraud Claims Officer--(AFCO) means an officer or employee 
of an agency who is designated by the head of that agency to receive the 
reports of the investigating official, evaluate evidence, and make a 
recommendation to the reviewing official with respect to the 
determination required under Sec. 1.305 of this part.
    (c) ALJ means an Administrative Law Judge in USDA appointed pursuant 
to 5 U.S.C. 3105 or detailed to the USDA pursuant to 5 U.S.C. 3344.
    (d) Authority means the USDA.
    (e) Benefits means, except as otherwise defined in this subpart, 
anything of value, including but not limited to any advantage, 
preference, privilege, license, permit, favorable decision, ruling, 
status, or loan guarantee.
    (f) Claim means any request, demand, or submission--
    (1) Made to USDA for property, services, or money (including money 
representing grants, loans, insurance, or benefits);
    (2) Made to a recipient of property, services, or money from USDA or 
to a party to a contract with USDA--

[[Page 73]]

    (i) For property or services if the United States--
    (A) Provided such property or services; or
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to USDA which has the effect of decreasing an obligation to 
pay or account for property, services, or money.
    (g) Complaint means the written notice served by the reviewing 
official on the respondent under Sec. 1.307 of this part.
    (h) Days means business days for all periods referred to in these 
regulations of 10 days or less and calendar days for all periods 
referred to in these regulations in excess of 10 days.
    (i) Family means the individual's parents, spouse, siblings, 
children, and grandchildren with respect to an individual making a claim 
or statement for benefits.
    (j) Government means the United States Government.
    (k) Household means a family or one or more individuals occupying a 
single residence.
    (l) Individual means a natural person.
    (m) Investigating official means the Inspector General of USDA or an 
officer or employee of the Office of Inspector General designated by the 
Inspector General and serving in a position for which the rate of basic 
pay is not less than the minimum rate of basic pay for grade GS-16 under 
the General Schedule.
    (n) Judicial officer means an official of USDA delegated authority 
by the Secretary, pursuant to the Act of April 4, 1940 (7 U.S.C. 450c-
450g) and Reorganization Plan No. 2 of 1953, 67 Stat. 633, as amended by 
Public Law No. 97-325 (7 U.S.C. 2201n.), to perform the adjudicating 
function for the Department under Sec. 2.35 of this title, or the 
Secretary if he exercises the authority so delegated.
    (o) Knows or has reason to know means that a person, with respect to 
a claim or statement--
    (1)(i) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (ii) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (iii) Acts in reckless disregard of the truth or falsity of the 
claim or statement; and
    (2) No proof of specific intent to defraud is required.
    (p) Makes means presents, submits, or causes to be made, presented, 
or submitted. As the context requires, ``making'' or ``made'' shall 
likewise include the corresponding forms of such terms.
    (q) Person means any individual, partnership, corporation, 
association, or private organization, and includes the plural of that 
term.
    (r) Representative means an attorney who is a member in good 
standing of the bar of any State, Territory, or possession of the United 
States or of the District of Columbia or the Commonwealth of Puerto 
Rico. This definition is not intended to foreclose pro se appearances. 
An individual may appear for himself or herself, and a corporation or 
other entity may appear by an owner, officer, or employee of the 
corporation or entity.
    (s) Respondent means any person alleged in a complaint issued under 
Sec. 1.308 of this part to be liable for a civil penalty or assessment 
under Sec. 1.303 of this part.
    (t) Reviewing official means an officer or employee of USDA--
    (1) Who is designated by the Secretary to make the determination 
required under Sec. 1.305 of this part;
    (2) Who is serving in a position for which the rate of basic pay is 
not less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule; and
    (3) Who is--
    (i) Not subject to supervision by, or required to report to, the 
investigating official; and

[[Page 74]]

    (ii) Not employed in the organizational unit of USDA in which the 
investigating official is employed.
    (u) Secretary means the Secretary of Agriculture.
    (v) Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan, or benefit from, USDA, or any State, political 
subdivision of a State, or other party, if the United States Government 
provides any portion of the money or property under such contract or for 
such grant, loan, or benefit, or if the Government will reimburse such 
State, political subdivision, or party for any portion of the money or 
property under such contract or for such grant, loan, or benefit.
    (w) USDA means the U.S. Department of Agriculture.



Sec. 1.303  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed,

shall be subject, in addition to any other remedy that may be prescribed 
by law, to a civil penalty of not more than $5,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, food coupons, or money constitutes a 
separate claim.
    (3) A claim shall be considered made to the USDA, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of the USDA, recipient, or party.
    (4) Each claim for property, services, food coupons, or money is 
subject to a civil penalty regardless of whether such property, 
services, food coupons, or money is actually delivered or paid.
    (5) If the Government has made payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement had a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.

[[Page 75]]

    (3) A statement shall be considered made to the USDA when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of the USDA.
    (c) Benefits. (1) In the case of any claim or statement made by any 
individual relating to any of the benefits listed in paragraph (c)(2) of 
this section received by such individual, such individual may be held 
liable for penalties and assessments under this section only if such 
claim or statement is made by such individual in making application for 
such benefits with respect to such individual's eligibility to receive 
such benefits.
    (2) For purposes of this paragraph, the term benefits means--
    (i) Benefits under the food stamp program established under the Food 
Stamp Act of 1977 which are intended as food assistance for the personal 
use of the individual who receives the benefits or for a member of the 
individual's family or household (as defined in section 3(h) of the Food 
Stamp Act of 1977);
    (ii) Benefits under the National School Lunch Act;
    (iii) Benefits under any housing assistance program for lower income 
families or elderly or handicapped persons which is administered by the 
Secretary or USDA;
    (iv) Benefits under the special supplemental food program for women, 
infants, and children established under section 17 of the Child 
Nutrition Act of 1966 which are intended for the personal use of the 
individual who receives the benefits or for a member of the individual's 
family or household.
    (d) Intent. No proof of specific intent to defraud is required to 
establish liability under this section.
    (e) More than one person liable. In any case in which it is 
determined that more than one person is liable for making a claim or 
statement under this section, each person may be held liable for a civil 
penalty under this section.
    (f) Joint and several liability. In any case in which it is 
determined that more than one person is liable for making a claim under 
this section on which the government has made payment (including 
transferred property or provided services), an assessment may be imposed 
against any such person or jointly and severally against any combination 
of such persons. The aggregate amount of the assessments collected with 
respect to such claim shall not exceed twice the portion of such claim 
determined to be in violation of paragraph (a)(1) of this section.



Sec. 1.304  Investigation.

    (a) The investigating official may investigate allegations that a 
person is liable under Sec. 1.303 of this part.
    (b) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted, the 
investigating officer may issue a subpoena, which shall notify the 
person to whom it is addressed of the authority under which it is issued 
and shall identify the information, documents, reports, answers, 
records, accounts, papers, or data sought.
    (c) The investigating official may designate a person to act on his 
behalf to receive the documents or other materials sought by a subpoena 
issued under paragraph (b) of this section.
    (d) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents or other materials sought 
have been produced, or that such documents or other materials are not 
available and the reasons therefore, or that such documents or other 
materials, suitably identified, have been withheld based upon the 
assertion of an identified privilege.
    (e) Each agency shall develop criteria for determining which 
allegations that a person is liable under Sec. 1.303 of this part are 
to be referred to the investigating official.
    (f) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing findings and conclusions of 
such investigation to the reviewing official.
    (g) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for

[[Page 76]]

suit under the False Claims Act or other civil relief, nor preclude or 
limit such official's discretion to defer or postpone a report or 
referral to the reviewing official in order to avoid interference with a 
criminal investigation or prosecution.
    (h) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 1.305  Review by the reviewing official.

    (a) Upon receipt of the report of the investigating official, the 
reviewing official may refer the report to the appropriate agency fraud 
claims officer (AFCO) for a recommendation with respect to the 
determination required under this section.
    (b) The AFCO shall evaluate the evidence and make a recommendation 
to the reviewing officer within 45 days of receipt of the report of the 
investigating official.
    (c) The reviewing official is not bound by the recommendation of the 
AFCO, and may accept or reject it.
    (d) If, based on the report of the investigating official under 
Sec. 1.304(f) of this part, the reviewing official determines that 
there is adequate evidence to believe that a person is liable under 
Sec. 1.303 of this part, the reviewing official shall transmit to the 
Attorney General a written notice of the reviewing official's intention 
to issue a complaint under Sec. 1.307 of this part.
    (e) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement of the evidence that supports the allegations of 
liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec. 
1.303 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements;
    (6) A statement that there is a reasonable prospect of collecting 
the amount specified in Sec. 1.307(b)(2) of this part and the reasons 
supporting such statement.



Sec. 1.306  Prerequisites for issuing a complaint.

    The reviewing official may issue a complaint under Sec. 1.307 of 
this part only if:
    (a) The Attorney General or an Assistant Attorney General designated 
by the Attorney General approves the issuance of a complaint in a 
written statement as provided in 31 U.S.C. 3803(b)(1);
    (b) In the case of allegations of liability under Sec. 1.303(a) of 
this part with respect to a claim, the reviewing official determines 
with respect to such claim, or a group of related claims submitted at 
the same time, that the amount of money or the value of property or 
services demanded or requested in violation of Sec. 1.303(a) of this 
part does not exceed $150,000; and
    (c) For the purposes of this section, a group of related claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., a single grant, loan, application, or 
contract) that are submitted simultaneously as part of a single request, 
demand, or submission, regardless of the amount of money or the value of 
property or services demanded or requested.
    (d) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money or the value of property or services 
demanded or requested.



Sec. 1.307  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the respondent, as provided 
in Sec. 1.308 of this part.
    (b) The complaint shall state--
    (1) The allegations of liability, including the statutory basis for 
liability, an identification of the claims or statements that are the 
basis for the alleged liability, and the reasons that liability 
allegedly arises from such claims or statements;

[[Page 77]]

    (2) The maximum amount of penalties and assessments for which the 
respondent may be held liable;
    (3) Instructions for requesting a hearing, including a specific 
advice of the respondent's right to request a hearing and to be 
represented by a representative; and
    (4) That failure to file an answer within 30 days of service of the 
complaint may result in the imposition of the penalty and assessment 
sought in the complaint without right to appeal.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the respondent with a copy of these regulations.



Sec. 1.308  Service of complaint and notice of hearing.

    (a) Service of a complaint or notice of hearing shall be made by 
certified or registered mail or by delivery in any manner authorized by 
Rule 4(d) of the Federal Rules of Civil Procedure.
    (b) Proof of service, stating the name and address of the person on 
whom the notice was served, and the manner and date of service, shall be 
made by:
    (1) Affidavit of the individual making service;
    (2) An acknowledged United States Postal Service return receipt 
card; or
    (3) Written acknowledgment by the respondent or his representative.



Sec. 1.309  Answer and request for hearing.

    (a) Within 30 days of the date of receipt or refusal to accept 
service of the complaint, the respondent may file an answer with the 
reviewing official.
    (b) In the answer, the respondent--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense upon which the respondent intends to 
rely;
    (3) Shall state the name, address, and telephone number of the 
person authorized to act as the respondent's representative, if any;
    (4) May state any reasons why the respondent contends the penalty 
and assessment should be reduced or modified; and
    (5) May request a hearing.



Sec. 1.310  Default upon failure to file an answer.

    (a) If the respondent does not file an answer within the time 
prescribed in Sec. 1.309(a) of this part, the reviewing official may 
refer the complaint together with proof of service to the ALJ and 
request that the ALJ issue an order of default imposing the penalties 
and assessments sought in the complaint. An answer must comply in all 
material respects with Sec. 1.309(b) of this part in order to be 
considered filed within the time prescribed in Sec. 1.310(a) of this 
part.
    (b) Upon the referral of the complaint under paragraph (a) of this 
section, the ALJ shall promptly serve on the respondent, in the manner 
prescribed in Sec. 1.308 of this part, a notice that a decision will be 
issued under this section.
    (c) If the respondent fails to answer, the ALJ shall assume the 
facts alleged in the complaint to be true and, if such facts establish 
liability under Sec. 1.303 of this part, the ALJ shall issue a decision 
imposing the penalties and assessments sought in the complaint, not to 
exceed the maximum amount allowed under the statute.
    (d) A respondent who fails to file a timely answer waives any right 
to a review of the penalty and assessment, unless he can demonstrate 
extraordinary circumstances justifying the failure to file an answer.



Sec. 1.311  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall send to the 
ALJ copies of the complaint, proof of service, and the answer.



Sec. 1.312  Procedure where respondent does not request a hearing.

    (a) If the respondent files an answer with the reviewing official 
within the time period prescribed in Sec. 1.309(a) of this part but 
does not request a hearing, the ALJ, upon receipt of the complaint, 
proof of service, and answer, shall notify the respondent that a 
decision will be issued under this section and shall afford the parties 
30 days in which to submit documentary evidence or other relevant 
written information, including briefs or other written arguments. At the 
end of that period, the ALJ shall issue a decision based upon

[[Page 78]]

the pleadings and the evidence submitted, or if no evidence has been 
submitted, upon the pleadings. The burden of proof shall be as set forth 
in Sec. 1.329 of this part.
    (b) When a decision is to be issued under this section, the ALJ 
shall have discretion to permit, allow, limit, or otherwise control 
discovery to the extent set forth under Sec. Sec. 1.322 thru 1.324 of 
this part.



Sec. 1.313  Procedure where respondent requests a hearing; notice of 
hearing.

    (a) When the ALJ receives the complaint, proof of service, and an 
answer requesting a hearing, the ALJ shall promptly serve, in accordance 
with Sec. 1.308 of this part, a notice of hearing on all parties.
    (b) Such notice shall include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative 
for the USDA and the representative for the respondent, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 1.314  Parties to the hearing.

    (a) The parties to the hearing shall be the respondent and USDA. The 
proceeding shall be brought in the name of the Secretary.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private party plaintiff 
under the False Claims Act may participate in proceedings under this 
subpart to the extent authorized by the provisions of that Act.



Sec. 1.315  Separation of functions.

    (a) Neither the investigating official, the reviewing official, nor 
any employee or agent of the USDA who takes part in investigating, 
preparing, or presenting a particular case may, in such case or in a 
factually related case--
    (1) Conduct the hearing in such case;
    (2) Participate in or advise the ALJ in the decision in such case, 
or participate in or advise in the review of the decision in such case 
by the judicial officer, except as a witness or representative in public 
proceedings; or
    (3) Make the collection of penalties and assessments under Sec. 
1.341 of this part.
    (b) The ALJ shall not be responsible to or subject to the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except to the extent limited by paragraph (a) of this section, 
the representative for USDA may be employed in any constituent agency of 
USDA, including the offices of either the investigating official or the 
reviewing official.



Sec. 1.316  Ex parte contacts.

    Except to the extent required for the disposition of ex parte 
matters as authorized by law, the ALJ shall not consult or be consulted 
by any person or party (except employees of the ALJ's office) on any 
matter in issue, unless on notice and opportunity for all parties to 
participate.



Sec. 1.317  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no

[[Page 79]]

further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f).
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 1.318  Rights of parties.

    All parties may:
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any prehearing or post-hearing conference held by 
the ALJ;
    (c) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (d) Conduct discovery;
    (e) Make opening and closing statements at the hearing;
    (f) Present evidence relevant to the issues at the hearing;
    (g) Cross examine witnesses;
    (h) Present oral arguments at the hearings; and
    (i) Submit written briefs, proposed findings of fact, and proposed 
conclusions of law after the hearing.



Sec. 1.319  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceedings is made.
    (b) The ALJ may:
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or part for a reasonable 
period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of attorneys 
and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this subpart.
    (c) The ALJ does not have the authority to decide upon the validity 
of Federal statutes, regulations, or legal opinions.



Sec. 1.320  Prehearing conferences.

    (a) The ALJ may schedule a prehearing conference at a reasonable 
time in advance of the hearing and may schedule additional prehearing 
conferences as appropriate.
    (b) The ALJ may conduct any prehearing conference in person or by 
telephone.
    (c) The ALJ may use prehearing conferences to discuss the following 
matters:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations, admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument.

[[Page 80]]

    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ shall issue an order containing all matters agreed upon 
by the parties or ordered by the ALJ at a prehearing conference.



Sec. 1.321  Disclosure of documents.

    (a) Upon written request to the reviewing official, the respondent 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 1.304(f) of this part are based 
unless such documents are privileged under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the respondent 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 1.305 of this part is not discoverable 
under any circumstances.
    (d) The respondent may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
be filed with the ALJ following the filing of the answer pursuant to 
Sec. 1.309 of this part.



Sec. 1.322  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production, inspection and photocopying of 
documents;
    (2) Requests for admission of the authenticity of any relevant 
document or the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) The ALJ shall set the schedule for discovery.
    (c) Requests for production of documents and requests for admission.
    (1) A party may serve requests for production of documents or 
requests for admission on another party.
    (2) If a party served with such requests fails to respond timely, 
the requesting party may file a motion to compel production or deem 
admissions, as appropriate.
    (3) A party served with such a request may file a motion for a 
protective order before the date on which a response to the discovery 
request is due, stating reasons why discovery should be limited or 
should not be required.
    (4) Within 15 days of service of a motion to compel or to deem 
matter admitted or a motion for a protective order, the opposing party 
may file a response.
    (5) The ALJ may grant a motion to compel production or deem matter 
admitted or may deny a motion for a protective order only if he finds 
that--
    (i) The discovery sought is necessary for the expeditious, fair, and 
reasonable consideration of the issues;
    (ii) It is not unduly costly or burdensome;
    (iii) It will not unduly delay the proceeding; and
    (iv) The information sought is not privileged.
    (d) Depositions and written interrogatories. Depositions and written 
interrogatories are permitted only on the order of the ALJ.
    (1) A party seeking to use depositions or written interrogatories 
may file a motion with the ALJ.
    (2) A party and/or the potential deponent may file an opposition to 
the motion or a motion for a protective order within 10 days of service 
of the motion.
    (3) The ALJ may grant a motion allowing the taking of a deposition 
or the use of interrogatories or may deny a motion for a protective 
order only if he finds that the moving party has satisfied the standards 
set forth in paragraph (c)(5) of this section and has

[[Page 81]]

shown that the information sought cannot be obtained by any other means.
    (4) If the ALJ grants a motion permitting a deposition, he shall 
issue a subpoena, which may also require the witness to produce 
documents. The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 1.308 of this part.
    (5) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (e) Costs. The costs of discovery shall be borne by the party 
seeking discovery.
    (f) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.
    (g) Exchange of witness lists, statements, and exhibits. Witness 
lists, copies of prior statements of proposed witnesses, and copies of 
proposed hearing exhibits, including copies of any written statements or 
depositions that a party intends to offer in lieu of live testimony in 
accordance with Sec. 1.331(b) of this part, shall be exchanged at least 
15 days in advance of the hearing, or at such other time as may be set 
by the ALJ. A witness whose name does not appear on the witness list 
shall not be permitted to testify and no exhibit not provided to the 
opposing party as provided above shall be admitted into evidence at the 
hearing absent a showing of good cause.



Sec. 1.323  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony at the 
hearing of any individual may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at such 
hearing.
    (c) A party who desires the issuance of a subpoena shall file with 
the ALJ a written request not less than 15 days before the date fixed 
for the hearing unless otherwise allowed by the ALJ for good cause 
shown. Such request shall specify any documents to be produced and shall 
designate the witnesses whose attendance is sought to be required and 
describe their addresses and locations with sufficient particularity to 
permit such witnesses to be found. The subpoena shall specify the time 
and place at which the witness is to appear and any documents the 
witness is to produce. Such a request may be made ex parte.
    (d) When the ALJ issues a subpoena under this section, the party who 
requested such subpoena shall serve all other parties with notice of the 
names and addresses of the individuals subpoenaed and specify any 
documents required to be produced.
    (e) A subpoena shall be served by delivery, or by registered mail or 
by certified mail in the manner prescribed in Sec. 1.308 of this part. 
A subpoena upon a party or upon an individual under the control of a 
party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file a motion to quash the subpoena within five days of service or on or 
before the time

[[Page 82]]

specified in the subpoena for compliance if it is less than five days 
after service.



Sec. 1.324  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of USDA, a check for 
witness fees and mileage need not accompany the subpoena.



Sec. 1.325  Form, filing and service of papers.

    (a) Form. (1) The original and two copies of all papers in a 
proceeding conducted under this subpart shall be filed with the ALJ 
assigned to the case.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena).
    (3) Every pleading and paper shall be signed by and shall contain 
the address and telephone number of the representative for the party or 
the person on whose behalf the paper was filed.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or his 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than the complaint or 
notice of hearing shall be made by delivering or mailing a copy to the 
party's last known address. When a party is represented by a 
representative, service shall be made upon such representative in lieu 
of the actual party.
    (c) Proof of service. A certificate of the person serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 1.326  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is ten or fewer calendar days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government shall be excluded from the computation.
    (c) When a document has been served by mail, an additional five days 
will be added to the time permitted for any response.



Sec. 1.327  Motions.

    (a) Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) The ALJ may require written motions to be accompanied by 
supporting memorandums.
    (d) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (e) The ALJ may not grant a written motion prior to expiration of 
the time for filing responses thereto, except upon consent of the 
parties or following a hearing, but may overrule or deny such motion 
without awaiting a response.
    (f) The ALJ shall make every reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 1.328  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative for:
    (1) Failing to comply with a lawful order, subpoena, or procedure;
    (2) Failing to prosecute or defend an action; or

[[Page 83]]

    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with a subpoena or an order, 
including an order for taking a deposition, the production of evidence 
within the party's control, or a request for admission, the ALJ may:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem admitted each item 
as to which an admission is requested;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon testimony 
relating to the information sought;
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request; or
    (5) Request that the Attorney General petition an appropriate 
district court for an order to enforce a subpoena.
    (d) If a party fails to prosecute or defend an action under this 
subpart commenced by service of a complaint, the ALJ may dismiss the 
action or enter an initial decision imposing penalties and assessments.
    (e) The ALJ may refuse to consider any motion or other action which 
is not filed in a timely fashion.



Sec. 1.329  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the respondent is liable for a civil penalty or 
assessment under Sec. 1.303 of this part, and if so, the appropriate 
amount of any such civil penalty or assessment considering any 
aggravating or mitigating factors.
    (b) The USDA shall prove respondent's liability and any aggravating 
factors by a preponderance of the evidence.
    (c) The respondent shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 1.330  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
respondent resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the respondent and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The ALJ shall issue an order to the parties designating the time 
and the place of the hearing.



Sec. 1.331  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 
1.322(g) of this part.
    (c) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (d) A witness may be cross-examined on any matter relevant to the 
proceeding without regard to the scope of his or her direct examination.
    (e) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of

[[Page 84]]

the party designated by the representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
USDA engaged in assisting the representative for USDA.



Sec. 1.332  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided herein, the Federal Rules of Evidence are not 
applicable to the hearing, except that the ALJ may in his discretion 
apply the Federal Rules of Evidence in order to assure production of 
credible evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties unless otherwise ordered by 
the ALJ pursuant to Sec. 1.322 of this part.



Sec. 1.333  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained from the reporter by anyone at a cost not to exceed the actual 
cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
judicial officer.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone unless otherwise ordered by the ALJ.



Sec. 1.334  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 1.335  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the judicial officer, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the judicial officer in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the respondent's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense,

[[Page 85]]

public health or safety, or public confidence in the management of 
Government programs and operations, including particularly the impact on 
the intended beneficiaries of such programs;
    (8) Whether the respondent has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the respondent attempted to conceal the misconduct;
    (10) The degree to which the respondent has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
respondent, the extent to which the respondent's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the respondent cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the respondent assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the respondent's sophistication with respect to it, including the extent 
of the respondent's prior participation in the program or in similar 
transactions;
    (15) Whether the respondent has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the respondent and others from any engaging 
in the same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the judicial officer from considering any other factors that in any 
given case may mitigate or aggravate the acts for which penalties and 
assessments are imposed.



Sec. 1.336  Initial decision of the ALJ.

    (a) The ALJ shall issue an initial decision, which shall contain 
findings of fact, conclusions of law, and the amount of any penalties 
and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues for every claim or statement with respect to which a 
penalty or assessment was proposed:
    (1) Whether any claim or statement identified in the complaint 
violates Sec. 1.303 of this part;
    (2) If the respondent is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors described in Sec. 1.335 of this part.
    (c) The ALJ shall serve the initial decision on all parties within 
90 days after the time for submission of post-hearing briefs and reply 
briefs (if permitted) has expired. The ALJ shall include with the 
initial decision a statement describing the right of any respondent 
determined to be liable for a civil penalty or assessment to file notice 
of appeal with the judicial officer. The ALJ may extend the time period 
for serving the initial decision on the parties.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
judicial officer, or a motion for reconsideration of the initial 
decision is timely filed, the initial decision shall constitute the 
final decision of the Secretary and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 1.337  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall

[[Page 86]]

constitute the final decision of the authority head and shall be final 
and binding on the parties 30 days after the ALJ denies the motion, 
unless the initial decision is timely appealed to the judicial officer 
in accordance with Sec. 1.338 of this part.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the judicial officer in accordance with Sec. 
1.338 of this part.



Sec. 1.338  Appeal to the judicial officer.

    (a) Any respondent who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the Secretary by filing a notice 
of appeal with the judicial officer in accordance with this section. The 
judicial officer of USDA shall consider all appeals to the Secretary 
under this subpart and render a decision on behalf of the Secretary.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 1.337 of this part, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (c) The judicial officer may extend the initial 30-day period during 
which a notice of appeal may be filed for an additional 30 days if the 
respondent files a request for an extension within the initial 30-day 
period and shows good cause.
    (d) If the respondent timely files a notice of appeal with the 
judicial officer and the time for filing motions for reconsideration 
under Sec. 1.337 of this part has expired, the ALJ will forward the 
record of the proceeding to the judicial officer.
    (e) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (f) The representative for USDA may file a brief in opposition to 
exceptions within 30 days of receiving the brief proposing exceptions.
    (g) There is no right to appear personally before the judicial 
officer.
    (h) There is no right to interlocutory appeal of rulings by the ALJ.
    (i) The judicial officer, in reviewing the decision, shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made that extraordinary circumstances caused the 
failure to raise the objection.
    (j) If any party demonstrates to the satisfaction of the judicial 
officer that additional evidence not presented to the ALJ is material 
and that there were reasonable grounds for the failure to present such 
evidence to the ALJ, the judicial officer shall remand the matter to the 
ALJ for consideration of such additional evidence.
    (k) The judicial officer may affirm, reduce, reverse, compromise, 
remand or settle any penalty or assessment determined by the ALJ.
    (l) The judicial officer shall promptly serve each party to the 
appeal with a copy of the decision of the judicial officer and a 
statement describing the respondent's right to seek judicial review.
    (m) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a respondent has exhausted all administrative remedies under 
this part and within 60 days after the date on which the judicial 
officer serves the respondent with a copy of the judicial officer's 
decision, a determination that a respondent is liable under Sec. 1.303 
of this part is final and is not subject to judicial review.



Sec. 1.339  Stays ordered by the Department of Justice.

    (a) If at any time the Attorney General or an Assistant Attorney 
General designated by the Attorney General transmits to the Secretary a 
written finding that continuation of the administrative process 
described in this subpart with respect to a claim or statement may 
adversely affect any pending

[[Page 87]]

or potential criminal or civil action related to such claim or 
statement, the judicial officer shall stay the process immediately.
    (b) If the judicial officer stays the administrative process in 
accordance with paragraph (a) of this section, the judicial officer may 
order the process resumed only upon receipt of the written authorization 
of the Attorney General.



Sec. 1.340  Stay pending appeal.

    (a) A decision is stayed automatically pending disposition of a 
motion for reconsideration or of an appeal to the judicial officer.
    (b) The respondent may file with the ALJ a request for stay of the 
effective date of a decision of the judicial officer pending judicial 
review. Such request shall state the grounds upon which respondent 
relies in requesting the stay, together with a copy of the notice(s) of 
appeal filed by respondent seeking review of a decision of the judicial 
officer. The filing of such a request shall automatically stay the 
effective date of the decision of the judicial officer until the ALJ 
rules upon the request.
    (c) The representative for the USDA may file an opposition to 
respondent's request for a stay within 10 days of receipt of the 
request. If the representative for the USDA fails to file such an 
opposition within the allotted time, or indicates that the USDA has no 
objection to the request, the ALJ may grant the stay without requiring 
respondent to give a bond or other security.
    (d) The ALJ may grant a contested request where justice so requires 
and to the extent necessary to prevent irreparable harm but only upon 
the respondent's giving of a bond or other adequate security. The ALJ 
shall rule promptly on a contested request for stay.
    (e) A decision of the ALJ denying respondent's request for a stay 
shall constitute final agency action.



Sec. 1.341  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the judicial officer imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 1.342  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this subpart and specify the procedures for such actions.



Sec. 1.343  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 1.341 or Sec. 1.342 
of this part, or any amount agreed upon in a settlement under Sec. 
1.345 of this part, may be collected by administrative offset under 31 
U.S.C. 3716, except that an administrative offset may not be made under 
this subsection against a refund of an overpayment of Federal taxes then 
or later owing by the United States to the respondent.



Sec. 1.344  Deposit to Treasury of the United States.

    All amounts collected pursuant to this subpart shall be deposited as 
miscellaneous receipts in the Treasury of the United States.



Sec. 1.345  Settlement.

    (a) A respondent may make offers of compromise of settlement at any 
time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this subpart at any time after the date on which 
the reviewing official is permitted to issue a complaint and before the 
date on which the ALJ issues a decision.
    (c) The judicial officer has exclusive authority to compromise or 
settle a case under this subpart at any time after the date on which the 
ALJ issues a decision, except during the pendency of any appeal under 
Sec. 1.341 of this part or during the pendency of any action to collect 
penalties and assessments under Sec. 1.342 of this part.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this subpart during the pendency of any appeal under 
Sec. 1.341 of

[[Page 88]]

this part, or any action to recover penalties and assessments under 
Sec. 1.342 of this part.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the judicial officer, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the judicial officer, or the Attorney General, as appropriate.
    (f) Any settlement must be in writing.



Sec. 1.346  Limitation.

    The complaint referred to in Sec. 1.307 of this part with respect 
to a claim or statement must be served in the manner specified in Sec. 
1.308 of this part within 6 years after the date on which such claim or 
statement is made.



  Subpart M_Rules of Practice Governing Adjudication of Sourcing Area 
Applications and Formal Review of Sourcing Areas Pursuant to the Forest 
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620 et 
                                  seq.)

    Authority: 5 U.S.C. 556 and 16 U.S.C. 620 et seq.

    Source: 59 FR 8824, Feb. 24, 1994, unless otherwise noted.



Sec. 1.410  Meaning of words.

    As used in these procedures, words in the singular form shall be 
deemed to import the plural, and vice versa, as the circumstance may 
require.



Sec. 1.411  Definitions.

    As used in these procedures, the terms as defined in the Forest 
Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. 620 et 
seq. (Act) and in the regulations issued thereunder, shall apply with 
equal force and effect. In addition and except as may be provided 
otherwise in these procedures:
    (a) Applicant or Sourcing area applicant means a person who submits 
a sourcing area application pursuant to these rules, or a person who 
sourcing area is subject to formal review pursuant to 36 CFR 223.191(e).
    (b) Decision means:
    (1) The Judge's initial decision made in accordance with the 
provisions of 5 U.S.C. 554, 556, 557, and 16 U.S.C. 620 et seq. and 36 
CFR 223.190 and 223.191(e), which includes the Judge's findings and 
conclusions and the reasons or basis therefore on all material issues of 
fact, law or discretion, orders and rulings on proposed findings, 
conclusions and orders submitted by the parties; and
    (2) The decision and order by the Judicial officer upon appeal of 
the Judge's decision.
    (c) Determination is synonymous with decision.
    (d) Hearing means that part of the proceeding which may be requested 
by a party of record, and which involves the submission of additional 
evidence before the Administrative Law Judge for the record in the 
proceeding.
    (e) Hearing Clerk means the Office of the Hearing Clerk, United 
States Department of Agriculture, Washington, D.C. 20250.
    (f) Judge means any Administrative Law Judge Appointed pursuant to 5 
U.S.C. 3105 and assigned to the proceeding involved.
    (g) Judicial Officer means an official of the United States 
Department of Agriculture delegated authority by the Secretary of 
Agriculture, pursuant to the Act of April 4, 1940 (7 U.S.C. 450c-459g) 
and Reorganization Plan No. 2 of 1953 (5 U.S.C. 1988 ed., appendix, p. 
1280), to perform the function involved (7 CFR 235(a)), or the Secretary 
of Agriculture, if the authority so delegated is exercised by the 
Secretary.
    (h) Party of record or Party is a party to the proceeding to 
determine approval or disapproval of a sourcing area application, 
including the proceeding for formal review of a sourcing area. The 
sourcing area applicant and persons who submit written comments on the 
sourcing area application at issue during the 30 calendar day comment 
period, including the Regional Forester, are the parties of record. For 
purposes of a formal review of a sourcing area, the holder of the 
sourcing area that is the subject of the review and persons who submit 
written

[[Page 89]]

comments on the sourcing area application at issue during the 30 
calendar day comment period after institution of the formal review, 
including the Regional Forester, are the parties of record.
    (i) Sourcing Area Application means the application by which a 
person applies for a sourcing area or the application by which a 
sourcing area holder applies for a formal review of a sourcing area.



Sec. 1.412  Institution of proceedings.

    (a) Sourcing area applications. The proceeding for determining 
sourcing areas shall be instituted by receipt of a sourcing area 
application by the Office of Administrative Law Judges, pursuant to 36 
CFR 223.190.
    (b) Review of sourcing areas. Informal review of a sourcing area 
precedes institution of a formal review as follows:
    (1) Request by Sourcing area holder. A sourcing area holder who 
wishes to begin a review of a sourcing area shall send a written request 
for a review to the Regional Forester of the region in which the 
manufacturing facility being sourced is located. The request shall state 
the reason for the request.
    (i) Informal review. The Regional Forester shall begin an informal 
review, pursuant to 36 CFR 223.191(e), based on the written request. If 
no agreement is reached in the informal review process, the Regional 
Forester of the region in which the manufacturing facility being sourced 
is located shall transmit to the Office of Administrative Law Judges any 
submissions received during the informal review process, within 5 
working days of the meeting convened during the informal review (36 CFR 
223.191)e)). Agreement is reached when all persons attending the meeting 
convened by the Regional Forester to resolve differences as to the 
proper sourcing area, including the Regional Forester, sign the document 
describing the sourcing area.
    (ii) Formal review. Institution by a sourcing area holder of a 
formal review of the sourcing area occurs if the informal review process 
does not result in agreement among the parties, and the sourcing area 
holder submits a sourcing area application to the Office of the 
Administrative Law Judges, pursuant to 36 CFR 223.190, within 10 working 
days after the meeting convened by the Regional Forester as part of the 
informal process.
    (2) Initiation of review by agency. If the Forest Service wishes to 
begin a review of a sourcing area, the Regional Forester of the region 
in which the manufacturing facility being sourced is located shall begin 
an informal review, pursuant to 36 CFR 223.191(e). If no agreement is 
reached in the informal review process, the Regional Forester of the 
region in which the manufacturing facility being sourced is located 
shall transmit to the Office of Administrative Law Judges any 
submissions received during the informal review process, within 5 
working days of the meeting convened during the informal review (36 CFR 
223.191(e)). Agreement is reached when all persons attending the meeting 
convened by the Regional Forester to resolve differences as to the 
proper sourcing area, including the Regional Forester, sign the document 
describing the sourcing area. Institution by the Forest Service of a 
formal review of a sourcing area occurs when the Office of 
Administrative Law Judges receives the papers and documents submitted 
during the informal review process.



Sec. 1.413  Submission of a sourcing area application.

    A sourcing area applicant shall send the application to the Office 
of Administrative Law Judges and shall, simultaneously, send a copy of 
the sourcing area application to the Forest Service Regional Forester of 
the region in which the manufacturing facility being sourced is located. 
Where the sourcing area application will cover purchases from more than 
one agency, application is to be made to the agency from which the 
applicant expects to purchase the preponderance of its Federal timber. 
The sourcing area applicant must also send a complete copy of the 
application to each agency concerned. The lead agency shall make the 
decision in consultation with, and upon co-signature of, the other 
agency(ies) concerned. Sourcing area applications must be signed by the 
persons making the request, or in the case of a corporation, by its 
chief executive officer, and

[[Page 90]]

must be notarized. The application shall be on company letterhead.



Sec. 1.414  Docket number.

    Each proceeding, following its institution, shall be assigned a 
docket number by the Hearing Clerk, and thereafter the proceeding shall 
be referred to by such number. The Hearing Clerk shall notify the 
sourcing area applicant and the Regional Forester to whom the applicant 
submitted a copy of the application of the docket number and the name of 
the Judge to whom the case has been assigned. In a formal review of a 
sourcing area instituted by the Forest Service, the Hearing Clerk shall 
inform the sourcing area holder whose sourcing area is subject to the 
review and the Regional Forester who submitted the comments instituting 
the formal review of the docket number and the name of the Judge to whom 
the case has been assigned.



Sec. 1.415  Notification of proceedings.

    The Regional Forester of the region in which the manufacturing 
facility being sourced is located shall notify prospective parties of 
the sourcing area application and/or the formal review of a sourcing 
area after receipt of the docket number and the name of the Judge to 
whom the proceeding has been assigned, pursuant to Sec. 1.414 of these 
rules. Notification will consist of publication of a notice in 
newspapers of general circulation in the area included in the sourcing 
area application. The Regional Forester shall promptly notify the 
Hearing Clerk of the date of the publication and the notice. Additional 
notification will be made through agency mailing lists. Notification 
shall include the docket number, the name of the Judge to whom the case 
has been assigned and the mailing address of the Judge. In the case of a 
sourcing area review, notification will also state the reason for the 
review.



Sec. 1.416  Comment period.

    Written comments on a sourcing area application or on a formal 
review of a sourcing area shall include the docket number and may be 
submitted to the Judge for 30 calendar days following publication of the 
notice. Persons submitting comments shall send a copy of the comments to 
the Regional Forester of the region in which the manufacturing facility 
being sourced is located. All comments must be received by the Judge and 
by the Regional Forester by the 30th day of the comment period.



Sec. 1.417  Review period.

    (a) Review of comments. The sourcing area applicant, the sourcing 
area holder whose sourcing area is the subject of a formal review and 
other parties who submitted written comments will be allowed 10 working 
days from the close of the comment period to review the written comments 
at the Regional Forester's office during regular business hours.
    (b) Recommendation to Judge to approve or disapprove a sourcing area 
application. During the 10 working day review period, parties who have 
submitted written comments on an application or on a formal review of a 
sourcing area may submit a written recommendation to the Judge, 
including an analysis of the facts and law as to why the Judge should 
approve or disapprove that application. A sourcing area applicant whose 
sourcing area application is the subject of the proceeding, and a 
sourcing area holder whose sourcing area is the subject of a formal 
review, may also submit a written recommendation to the Judge. The 
recommendation must be postmarked no later than the 10th working day of 
the review period.
    (c) Request for a hearing. The sourcing area applicant, the sourcing 
area holder whose sourcing area is the subject of a formal review and 
persons who submitted written comments, or the attorney of record for a 
party in the proceeding, may review the comments and request a hearing 
within 10 working days after the comment period, pursuant to 36 CFR 
233.190(h)(2). The request must be postmarked no later than the 10th 
working day of the review period. An attorney may file an appearance of 
record prior to the scheduled hearing. The request for a hearing shall 
be filed with the Judge. The hearing is for the purpose of supplementing 
the written record submitted prior to the hearing. The written record 
submitted prior to

[[Page 91]]

the hearing consists of papers and documents submitted during the 30 
calendar day comment period, the 10 working day review period, and any 
motions submitted before the hearing. For purposes of a formal review of 
a sourcing area, the written record also consists of the papers and 
documents submitted during the informal review.
    (1) Contents of the notice of hearing. The Judge shall issue a 
notice of hearing regarding a particular sourcing area application or 
regarding formal review of a sourcing area application or regarding 
formal review of a sourcing area to all parties of record for that 
application or formal review. The notice of hearing shall contain a 
reference to the authority under which the sourcing area is proposed or 
formally reviewed; shall define the scope of the hearing; shall contain 
a reference to the sourcing area that is the subject of the hearing; and 
shall state the date, time and place of such hearing; and shall state 
the date, time and place of such hearing; which shall be set with due 
regard for the necessity and convenience of the parties of record or 
their representatives. The Judge shall schedule a hearing no later than 
21 calendar days after the 10 working day period for reviewing written 
comments ends. The Judge may consolidate requests for a hearing 
regarding the same application.
    (2) Giving notice of hearing. The notice of hearing shall be served 
upon the parties of record for the sourcing area application at issue by 
the Hearing Clerk.



Sec. 1.418  Procedure upon no request for hearing.

    If no hearing is requested by a party of record, the Judge shall 
issue an initial decision based on the written record and without 
further procedure or hearing. If no hearing is requested, the written 
record consists of papers and documents submitted during the 30-day 
comment period, the 10-day review period, and includes motions submitted 
before the Judge issues an initial decision. For purposes of a formal 
review of a sourcing area, the written record also consists of the 
papers and documents submitted during the informal review. Copies of the 
decision shall be served by the Hearing Clerk upon each of the parties 
of record.



Sec. 1.419  Amendment of a sourcing area application.

    The sourcing area applicant may move to amend the sourcing area 
application with clarifying and technical amendments at any time prior 
to the Judge's initial determination if there is no hearing, or prior to 
the close of the hearing if there is a hearing.



Sec. 1.420  Consent recommendation.

    Any time before the Judge files the decision, the parties of record 
may enter a consent recommendation. Such consent recommendation shall be 
filed with the Hearing Clerk, signed by the parties with appropriate 
space for signature by the Judge. The consent recommendation shall 
contain an admission of the jurisdictional facts, the factual and legal 
basis for the recommended sourcing area, the consent to the issuance of 
the recommended decision as the final decision of the agency without 
further procedure and such other admissions or statements as may be 
recommended by the parties. The Judge shall review the recommendation to 
determine whether such recommendation conforms with the Forest Resources 
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.), 
36 CFR 223.190, 36 CFR 223.191(e) and these procedures. If the 
recommendation conforms to the aforementioned Act, regulations, and 
procedures, the Judge may enter such decision without further procedure, 
unless an error is apparent on the face of the document. If the Judge 
enters the decision, such decision shall have the same force and effect 
as a decision issued after full hearing and shall become final upon 
issuance to become effective in accordance with the terms of the 
decision.



Sec. 1.421  Prehearing conferences and procedures.

    (a) Purpose and scope. (1) Upon motion of a party of record or upon 
the Judge's own motion, the Judge may direct the parties or their 
counsel to attend a conference at any reasonable time, prior to or 
during the course of the hearing, when the Judge finds that

[[Page 92]]

the proceeding would be expedited by a prehearing conference. Reasonable 
notice of the time and place of the conference shall be given. The Judge 
may order each of the parties to furnish at or subsequent to the 
conference any or all of the following:
    (i) An outline of a party's position;
    (ii) The facts upon which the party will rely;
    (iii) The legal theories upon which the party will rely;
    (iv) Copies of or a list of documents which the party anticipates 
introducing at the hearing; and
    (v) A list of anticipated witnesses who will testify on behalf of 
the party. At the discretion of the party furnishing such list of 
witnesses, the names of the witnesses need not be furnished if they are 
otherwise identified in some meaningful way such as a short statement of 
the type of evidence they will offer.
    (2) The Judge shall not order any of the foregoing procedures that a 
party can show is inappropriate or unwarranted under the circumstances 
of the particular determination.
    (3) At the conference, the following matters shall be considered:
    (i) The simplification of issues;
    (ii) The possibility of obtaining stipulations of facts and of the 
authenticity, accuracy, and admissibility of documents, which will avoid 
unnecessary proof;
    (iii) The limitation of the number of expert or other witnesses;
    (iv) Negotiation, compromise, or settlement of issues;
    (v) The exchange of copies of proposed exhibits;
    (vi) The identification of documents or matters of which official 
notice may be requested;
    (vii) A schedule to be followed by the parties for completion of the 
actions decided at the conference; and
    (viii) Such other matters as may expedite and aid in the disposition 
of the proceeding.
    (b) Reporting. A prehearing conference will not be stenographically 
reported unless so directed by the Judge.
    (c) Action in lieu of personal attendance at a conference. In the 
event the Judge concludes that personal attendance by the Judge and the 
parties or counsel at a prehearing conference is unwarranted or 
impracticable, but determines that a conference would expedite the 
proceeding, the Judge may conduct such conference by telephone or 
correspondence.
    (d) Order. Actions taken as a result of a conference shall be 
reduced to an appropriate written order, unless the Judge concludes that 
a stenographic report shall suffice, or if the Judge elects to make a 
statement on the record at the hearing summarizing the actions taken.



Sec. 1.422  Conduct of the hearing.

    (a) Time and place. The hearing shall be held at the time and place 
fixed in the notice of hearing. If any change in the time or place of 
the hearing is made, the Judge shall file with the Hearing Clerk a 
notice of such change, which notice shall be served upon the parties, 
unless it is made during the course of an oral script, or actual notice 
is given to the parties.
    (b) Appearances. The parties may appear in person or by attorney of 
record in the proceeding. Any party who desires to be heard in person 
shall, before proceeding to testify, state his name, address, and 
occupation. If any such person is appearing through counsel, such person 
or such counsel shall, before proceeding to testify or otherwise to 
participate in the hearing, state for the record the authority to act as 
such counsel or representative, and the names, addresses, and 
occupations of such person and such counsel. Any such person or such 
counsel shall give such other information respecting his appearance as 
the Judge may request. Any person who appears as counsel must conform to 
the standards of ethical conduct required of practitioners before the 
courts of the United States.
    (c) Failure to appear. A party of record who, after being duly 
notified, fails to appear at the hearing without good cause, shall be 
deemed to have waived the right to an oral hearing in the proceeding. 
Failure to appear at a hearing shall not be deemed to be a waiver of the 
right to be served with a copy of the Judge's decision.
    (d) Order of proceeding. The Judge shall determine the order in 
which the parties shall proceed.

[[Page 93]]

    (e) Evidence--(1) In general. (i) The testimony of witnesses at a 
hearing shall be on oath or affirmation and shall be subject to cross-
examination. Cross-examination shall be permitted to the extent required 
for a full and true disclosure of the facts. The Judge may require that 
testimony on one issue raised by numerous parties be heard at one time.
    (ii) Upon a finding of good cause, the Judge may order that any 
witness be examined separately and apart from all other witnesses except 
those who may be parties to the proceeding.
    (iii) After a witness has testified on direct examination, any other 
party may request and obtain the production of any statement, or part 
thereof, of such witness in the possession of the party who called the 
witness, which relates to the subject matter as to which the witness has 
testified. Such production shall be made according to the procedures and 
subject to the definitions and limitations prescribed in the Jencks Act 
(18 U.S.C. 3500).
    (iv) Evidence which is immaterial, or unduly repetitious, or which 
is not of the sort upon which responsible persons are accustomed to 
rely, shall be excluded insofar as practicable.
    (2) Objections. (i) If a party objects to the admission of any 
evidence or to the limitation of the scope of any examination or cross-
examination or to any other ruling of the Judge, the party shall state 
briefly the grounds of such objection, whereupon an automatic exception 
will follow if the objection is overruled by the Judge.
    (ii) Only objections made before the Judge may subsequently be 
relied upon in the proceeding.
    (3) Depositions. The deposition of any witness shall be admitted in 
the manner provided in and subject to the provisions of Sec. 1.228 of 
these procedures.
    (4) Exhibits. Unless the Judge finds that the furnishing of copies 
is impracticable, two copies of each exhibit shall be filed with the 
Judge. The party submitting the exhibit shall serve on every other party 
of record a copy of the exhibit, pursuant to Sec. 1.427(c) of these 
procedures. A true copy of an exhibit may be substituted for the 
original.
    (5) Official records or documents. An official government record or 
document or entry therein, if admissible for any purpose, shall be 
admissible in evidence without the production of the person who made or 
prepared the same, and shall be prima facie evidence of the relevant 
facts stated therein. Such record or document shall be evidenced by an 
official publication thereof or a copy certified by a person having 
legal authority to make such certification.
    (6) Official notice. Official notice shall be taken of such matters 
as are judicially noted by the courts of the United States and of any 
other matter of technical, scientific, or commercial fact of established 
character: Provided, That the parties shall be given adequate notice of 
matters so noticed, and shall be given adequate opportunity to show that 
such facts are erroneously noticed.
    (7) Offer of proof. Whenever evidence is excluded by the Judge, the 
party offering such evidence may make an offer of proof, which shall be 
included in the transcript. The offer of proof shall consist of a brief 
statement describing the evidence excluded. If the evidence consists of 
a brief oral statement, it shall be included in the transcript in toto. 
If the evidence consists of an exhibit, it shall be marked for 
identification and inserted in the hearing record.
    (f) Transcript. Hearings shall be recorded and transcribed verbatim. 
Transcripts thereof shall be made available to any person, at actual 
cost of duplication (5 U.S.C. App. 2, section 11).



Sec. 1.423  Post-hearing procedure.

    (a) Corrections to transcript. (1) Within the period of time fixed 
by the Judge, any party may file a motion proposing corrections to the 
transcript.
    (2) Unless a party files such motion in the manner prescribed, the 
transcript shall be presumed, except for obvious typographical errors, 
to be complete.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any timely objections filed as to the transcript, the 
Judge shall issue an order making any corrections to the transcript 
which the Judge finds are warranted, which corrections shall be

[[Page 94]]

entered onto the original transcript by the Hearing Clerk (without 
obscuring the origianl text).
    (b) Proposed findings of fact, conclusions, order, and brief. Prior 
to the close of the hearing, each party may submit for consideration 
proposed findings of fact, conclusions, order, and brief in support 
thereof. A copy of each such document filed by a party shall be served 
upon each of the other parties.
    (c) Judge's decision. (1) The Judge may, upon motion of any party or 
in his or her own discretion, issue a decision orally at the close of 
the hearing, or within 10 calendar days after the close of the hearing, 
or within 10 calendar days after submission of the record, if no hearing 
is requested.
    (2) If the decision is announced orally, a copy thereof, excerpted 
from the transcript of the record, shall be furnished to the parties by 
the Hearing Clerk. Irrespective of the date such copy is mailed, the 
issuance date of the decision shall be the date the oral decision was 
announced.
    (3) If the decision is in writing, it shall be filed with the 
Hearing Clerk and served upon the parties as provided in Sec. 1.427.
    (4) The Judge's decision shall become effective without further 
proceedings 21 calendar days after the issuance of the decision, if 
announced orally at the hearing, or if the decision is in writing, 21 
calendar days after the date of service thereof upon the respondent, 
unless there is an appeal to the Judicial Officer by a party to the 
proceeding pursuant to Sec. 1.426; Provided, however, that no decision 
shall be final for purposes of judicial review except a final decision 
of the Judicial Officer upon appeal.
    (5) The Judicial Officer shall issue a decision within 10 calendar 
days of the receipt of the response to the appeal.



Sec. 1.424  Motions and requests.

    (a) General. All motions and requests shall be filed with the 
Hearing Clerk, and served upon all the parties except motions and 
requests made on the record during the oral hearing.
    (b) Motions entertained. No dispositive motions, including motions 
to dismiss on the pleadings and motions for summary judgment, shall be 
entertained unless specifically mentioned herein or allowed in the 
discretion of the Judge.
    (c) Contents. All written motions and requests shall state the 
particular order, ruling, or action desired and the grounds therefore.
    (d) Response to motions and requests. Within 5 days after service of 
any written motion or request, or within such shorter or longer period 
as may be fixed by the Judge, an opposing party may file a response to 
the motion or request. The other party shall have no right to reply to 
the response.



Sec. 1.425  Judges.

    (a) Assignment. No Judge shall be assigned to serve in any 
proceeding who:
    (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 any conflict of interest which might impair the Judge's 
objectivity in the proceeding.
    (b) Disqualification of Judge. (1) Any party to the proceeding may, 
by motion made to the Judge, request that the Judge withdraw from the 
proceeding because of an alleged disqualifying reason. Such motion shall 
set forth with particularity the grounds of alleged disqualification. 
The Judge may then either rule upon or certify the motion to the 
Secretary, but not both.
    (2) A Judge shall withdraw from any proceeding for any reason deemed 
by the Judge to be disqualifying.
    (c) Powers. Subject to review as provided elsewhere in this part, 
the Judge, in any assigned proceeding shall have power to:
    (1) Rule upon motions and requests;
    (2) Set the time and place of a pre-hearing conference and the 
hearing, adjourn the hearing from time to time, and change the time and 
place of hearing;
    (3) Administer oaths and affirmations;
    (4) Request the presence of and examine witnesses and receive 
relevant evidence at the hearing;
    (5) Take or order the taking of depositions as authorized under 
these rules;
    (6) Admit or exclude evidence;

[[Page 95]]

    (7) Hear oral argument on facts or law,
    (8) Do all acts and take all measures necessary for the maintenance 
of order, including the exclusion of contumacious counsel or other 
persons;
    (9) Request additional information from any party to aid in the 
Judge's determination; and
    (10) Take all other actions authorized under these procedures.
    (d) Who may act in the absence of the Judge. In case of the absence 
of the Judge or the Judge's inability to act, the powers and duties to 
be performed by the Judge under these rules of practice in connection 
with any assigned proceeding may, without abatement of the proceeding 
unless otherwise directed by the Chief Judge, be assigned to any other 
Judge.



Sec. 1.426  Appeal to Judicial Officer.

    (a) Filing of petition. Within 10 calendar days after receiving 
service of the Judge's decision, a party who disagrees with the 
decision, or any part thereof, or any ruling by the Judge or any alleged 
deprivation of rights, may appeal such decision to the Judicial Officer 
by filing an appeal petition with the Hearing Clerk. As provided in 
Sec. 1.422(e)(2), objections regarding evidence or a limitation 
regarding examination or cross-examination or other rulings made before 
the Judge may be relied upon in an appeal. Each issue set forth in the 
petition, and the arguments thereon, shall be separately numbered; shall 
be plainly and concisely stated; and shall contain detailed citations of 
the record, statutes, regulations or authorities being relied upon in 
support thereof. A brief may be filed in support of the appeal 
simultaneously with the petition. A party filing a petition of appeal to 
the Judicial Officer, and any brief in support thereof, shall serve the 
other parties to the proceeding with a copy of the petition and 
supporting brief. The copies of the petition and supporting brief shall 
be served on the parties to the proceeding with a copy of the petition 
and supporting brief. The copies of the petition and supporting brief 
shall be served on the parties to the proceeding on the same day as the 
petition and supporting brief are filed with the Judicial Officer.
    (b) Response to appeal petition. Within 10 calendar 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. A party filing a response to a petition 
of appeal to the Judicial Officer shall serve the other parties to the 
proceeding with a copy of the response. The copies of the response shall 
be served on the parties to the proceeding on the same day as the 
response is filed with the Judicial Officer.
    (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 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) Decision of the Judicial Officer on appeal. 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 
within 4 months after the institution of the proceeding, pursuant to 16 
U.S.C. 620b(c)(3). 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

[[Page 96]]

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 a party as final for purposes of judicial 
review.



Sec. 1.427  Filing; identification of parties of record; service; and 
computation of time.

    (a) Filing; number of copies. Except as otherwise provided in this 
section, all documents or papers required or authorized by the rules in 
this part to be filed with the Hearing Clerk shall be filed in 
duplicate. Any document or paper required or authorized under the rules 
in this part to be filed with the Hearing Clerk shall, during the course 
of an oral hearing, be filed with the Judge.
    (b) Parties of record shall receive a list from the Hearing Clerk of 
the names and addresses of all parties of record immediately after the 
close of the comment period.
    (c) Service; proof of service. (1) Each party of record is 
responsible for serving on every other party and to the Judge all papers 
and documents submitted after the comment period. Service shall be made 
either:
    (i) By delivering a copy of the document or paper to the individual 
to be served or to a member of the partnership to be served, or to the 
president, secretary, or other executive officer or a director of the 
corporation or association to be served, or to the attorney of record 
representing such individual, partnership, corporation, organization, or 
association; or
    (ii) By leaving a copy of the document or paper at the principal 
office or place of business or residence of such individual, 
partnership, corporation, organization, or association, or of the 
attorney or agent of record and mailing by regular mail another copy to 
such person at such address; or
    (iii) By registering or certifying and mailing a copy of the 
document or paper, addressed to such individual, partnership, 
corporation, organization, or association, or to the attorney or agent 
of record, at the last known residence or principal office or place of 
business of such person: Provided, That if the registered or certified 
document or paper is returned undelivered because the addressee refused 
or failed to accept delivery, the document or paper shall be served by 
remailing it by regular mail; or
    (iv) By mailing the document or paper by regular mail.
    (2) Proof of service hereunder shall be made by the certificate of 
the person who actually made the service: Provided, that if the service 
is made by mail, as outlined in paragraph (b)(3) of this section, proof 
of service shall be made by the return post-office receipt, in the case 
of registered or certified mail, and if that service is made by regular 
mail, as outlined in paragraphs (b)(3) and (b)(4) of this section, proof 
of service shall be made by the certificate of the person who mailed the 
matter by regular mail. The certificate and post-office receipt 
contemplated herein shall be filed with the Hearing Clerk, and made a 
part of the record of the proceeding. The Judge and the Hearing Clerk 
shall follow the procedures outlined in (c) for service of papers or 
documents signed by the Judge and/or the Hearing Clerk.
    (d) Effective date of filing. Any document or paper required or 
authorized under the rules in this part to be filed shall be deemed to 
be filed at the time when it reaches the Hearing Clerk; or, if 
authorized to be filed with another officer or employee of the 
Department it shall be deemed to be filed at the time when it reaches 
such officer or employee.
    (e) Computations of time. Saturdays, Sundays and Federal holidays 
shall be included in computing the time allowed for the filing of any 
document or paper except as provided in these rules; Provided, that, 
when such time expires on a Saturday, Sunday, or Federal holiday, such 
period shall be extended to include the next following business day.



Sec. 1.428  Depositions.

    (a) Motion for taking deposition. Upon the motion of a party to the 
proceeding, the Judge may, at any time after the filing of the 
submission, order the taking of testimony by deposition. The Motion 
shall be in writing, shall be filed with the Hearing Clerk, and shall 
set forth:

[[Page 97]]

    (1) The name and address of the proposed deponent;
    (2) The name and address of the person (referred to hereafter in 
this section as the ``officer'') qualified under the regulations in this 
part to take depositions, before whom the proposed examination is to be 
made;
    (3) The proposed time and place of the examination; and
    (4) The reasons why such deposition should be taken, which shall be 
solely for the purpose of eliciting testimony which otherwise might not 
be available at the time of the hearing, for uses as provided in 
paragraph (g) of this section.
    (b) Judge's order for taking deposition. (1) If the Judge finds that 
testimony may not be otherwise available at the hearing, the taking of 
the deposition may be ordered. The order shall be served upon the 
parties, and shall state:
    (i) The time and place of the examination;
    (ii) The name of the officer before whom the examination is to be 
made; and
    (iii) The name of the deponent.
    (2) The officer and the time and place need not be the same as those 
suggested in the motion.
    (c) Qualifications of officer. The deposition shall be made before 
the Judge or before an officer authorized by the law of the United 
States or by the law of the place of the examination to administer 
oaths, or before an officer authorized by the Secretary to administer 
oaths.
    (d) Procedure on examinations. (1) The deponent shall be subject to 
cross-examination. Objections to questions or documents shall be in 
short form, stating the grounds of objections relied upon. The questions 
propounded, together with all objections made (but not including 
argument or debate), shall be recorded verbatim. In lieu of oral 
examination, parties may transmit written questions to the officer prior 
to the examination and the officer shall propound such questions to the 
deponent.
    (2) The applicant shall arrange for the examination of the witness 
either by oral examination, or by written questions upon agreement of 
the parties or as directed by the Judge. If the examination is conducted 
by means of written questions, copies of the questions shall be served 
upon the other party to the proceeding and filed with the officer and 
the other party may serve cross questions and file them with the officer 
at any time prior to the time of the examination.
    (e) Certification by officer. The officer shall certify on the 
deposition that the deponent was duly sworn and that the deposition is a 
true record of the deponent's testimony. The officer shall then securely 
seal the deposition, together with one copy thereof (unless there are 
more than two parties in the proceeding, in which case there should be 
another copy for each additional party), in an envelope and mail the 
same by registered or certified mail to the Hearing Clerk.
    (f) Corrections to the transcript. (1) At any time prior to the 
hearing any party may file a motion proposing corrections to the 
transcript of the deposition.
    (2) Unless a party files such a motion in the manner prescribed, the 
transcript shall be presumed, except for obvious typographical errors, 
to be a true, correct, and complete transcript of the testimony given in 
the deposition proceeding and to contain an accurate description or 
reference to all exhibits in connection therewith, and shall be deemed 
to be certified correct without further procedure.
    (3) At any time prior to use of the deposition in accordance with 
paragraph (g) of this section and after consideration of any objections 
filed thereto, the Judge may issue an order making any corrections in 
the transcript which the Judge finds are warranted, which corrections 
shall be entered onto the original transcript by the Hearing Clerk 
(without obscuring the original text).
    (g) Use of deposition. A deposition ordered and taken in accordance 
with the provisions of this section may be used in a proceeding under 
these rules if the Judge finds that the evidence is otherwise admissible 
and that the witness is dead; that the witness is unable to attend or 
testify because of age, sickness, infirmity, or imprisonment; or that 
such exceptional circumstances exist

[[Page 98]]

as to make it desirable, in the interests of justice, to allow the 
deposition to be used. If the party upon whose motion the deposition was 
taken refuses to offer it in evidence, any other party may offer the 
deposition or any thereof in evidence. If only part of a deposition is 
offered in evidence by a party, an adverse party may require the 
introduction of any other part which ought in fairness to be considered 
with the part introduced and any party may introduce any other parts.



Sec. 1.429  Ex parte communications.

    (a) At no stage of the proceeding between its institution and 
issuance of the final decision shall an employee of the Department who 
is or may reasonably be expected to be involved in the decisional 
process of the proceeding discuss ex parte the merits of the proceeding 
with any person having an interest in the proceeding, or with any 
representative of such person: Provided, That, procedural matters and 
status reports shall not be included within this limitation; and 
Provided further, That an employee of the Department who is or may be 
involved in the decisional process of the proceeding may discuss the 
merits of the proceeding if all parties of record have been given notice 
and an opportunity to participate. A memorandum of any such discussion 
shall be included in the record.
    (b) No interested person shall make or knowingly cause to be made to 
the Judge an ex parte communication relevant to the merits of the 
proceeding.
    (c) If the Judge reviews an ex parte communication in violation of 
this section, the one who receives the communication shall place in the 
public record of the proceeding:
    (1) All such written communication;
    (2) Memoranda stating the substance of all such oral communications; 
and
    (3) All written responses, and memoranda stating the substance of 
all oral responses thereto.
    (d) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section, the Judge 
may, to the extent consistent with the interests of justice and the 
policy of the underlying statute, require the party to show cause why 
his claim or interest in the proceeding should not be dismissed, denied, 
disregarded, or otherwise adversely affected on account of such 
violation.
    (e) To the extent consistent with the interests of justice and the 
policy of the underlying statute, a violation of this section shall be 
sufficient grounds for a decision adverse to the party who knowingly 
commits a violation of this section or who knowingly causes such a 
violation to occur.
    (f) For purposes of this section ex parte communication means an 
oral or written communication not on the public record with respect to 
which reasonable prior notice to all parties is not given, but it shall 
not include requests for status reports on any matter or the proceeding.



    Subpart N_Policy With Regard to Indemnification of Department of 
                          Agriculture Employees

    Authority: 5 U.S.C. 301.

    Source: At 69 FR 28042, May 18, 2004, unless otherwise noted.



Sec. 1.501  Policy on employee indemnification.

    (a) Indemnification, under the context of this section, shall be the 
policy whereby the Department of Agriculture compensates an employee for 
the legal consequences of conduct, taken within the scope of his or her 
employment, giving rise to a verdict, judgment, or other monetary award 
rendered against the employee.
    (b) The Department of Agriculture may indemnify a Department 
employee (which for the purposes of this regulation shall include a 
former employee) for any verdict, judgment, or other monetary award 
rendered against such employee, provided the Secretary or the 
Secretary's designee determines, in his or her discretion, that the 
conduct giving rise to such verdict, judgment, or award was taken within 
the scope of his or her employment with the Department, and such 
indemnification is in the interest of the United States.

[[Page 99]]

    (c) The Department of Agriculture may pay for the settlement or 
compromise of a personal damage claim against a Department employee by 
the payment of available funds, at any time, provided that the Secretary 
or the Secretary's designee determines, in his or her discretion, that 
the alleged conduct giving rise to the personal damage claim was taken 
within the scope of the employee's employment, and such settlement or 
compromise is in the interest of the United States.
    (d) Absent exceptional circumstances, as determined by the Secretary 
or his or her designee, the Department will not entertain a request to 
agree to indemnify or pay for a settlement of a personal damage claim 
before entry of an adverse judgment, verdict, or other monetary award.
    (e) When a Department employee becomes aware that an action has been 
filed against the employee in his or her individual capacity as a result 
of conduct taken within the scope of his or her employment, the employee 
should immediately notify his or her supervisor that such an action is 
pending. The supervisor shall promptly thereafter notify the Office of 
the General Counsel.
    (f) A Department employee may request indemnification to satisfy a 
verdict, judgment, or monetary award entered against the employee or to 
satisfy the requirements of a settlement proposal. The employee shall 
submit a written request, with appropriate documentation that includes a 
copy of the verdict, judgment, award or settlement proposal, as 
appropriate, to the head of his or her employing component, who shall 
thereupon submit it to the General Counsel, in a timely manner, a 
recommended disposition of the request. The Office of the General 
Counsel shall seek the views of the Department of Justice. The Office of 
the General Counsel shall forward the employee's request, the employing 
component's recommendation, and the General Counsel's recommendation, 
along with the time frame in which a decision is needed, to the 
Secretary or his or her designee for decision. The Secretary or his or 
her designee will decide promptly whether to indemnify or pay for a 
settlement of a personal damage claim.
    (g) Any payment under this section to indemnify a Department 
employee for a personal damage verdict, judgment, or award or to settle 
a personal damage claim shall be contingent upon the availability of 
appropriated funds of the employing component of the United States 
Department of Agriculture.



            Subpart O_Conditions in FERC Hydropower Licenses

    Authority: 16 U.S.C. 797(e), 811, 823d.

    Source: 70 FR 69817, Nov. 17, 2005, unless otherwise noted.

                           General Provisions



Sec. 1.601  What is the purpose of this subpart, and to what license 
proceedings does it apply?

    (a) Hearing process. (1) The regulations in Sec. Sec. 1.601 through 
1.660 contain rules of practice and procedure applicable to hearings on 
disputed issues of material fact with respect to mandatory conditions 
that the Department of Agriculture, Forest Service (Forest Service) may 
develop for inclusion in a hydropower license issued under subchapter I 
of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The authority to 
develop these conditions is granted by FPA section 4(e), 16 U.S.C. 
797(e), which authorizes the Secretary of Agriculture to condition 
hydropower licenses issued by the Federal Energy Regulatory Commission 
(FERC).
    (2) The hearing process under this subpart does not apply to 
recommendations that the Forest Service may submit to FERC under FPA 
section 10(a), 16 U.S.C. 803(a).
    (3) The FPA also grants the Department of the Interior the authority 
to develop mandatory conditions and prescriptions, and the Department of 
Commerce the authority to develop mandatory prescriptions, for inclusion 
in a hydropower license. Where the Forest Service USDA and either or 
both of these other Departments develop conditions or prescriptions to 
be included in the same hydropower license and where the Departments 
agree to consolidate the hearings under Sec. 1.623:

[[Page 100]]

    (i) A hearing conducted under this subpart will also address 
disputed issues of material fact with respect to any condition or 
prescription developed by one of the other Departments; or
    (ii) A hearing requested under this subpart will be conducted by one 
of the other Departments, pursuant to 43 CFR 45.1 et seq. or 50 CFR 
221.1 et seq., as applicable.
    (4) The regulations in Sec. Sec. 1.601 through 1.660 will be 
construed and applied to each hearing process to achieve a just and 
speedy determination, consistent with adequate consideration of the 
issues involved and the provisions of Sec. 1.660(a).
    (b) Alternatives process. The regulations in Sec. Sec. 1.670 
through 1.673 contain rules of procedure applicable to the submission 
and consideration of alternative conditions under FPA section 33, 16 
U.S.C. 823d. That section allows any party to the license proceeding to 
propose an alternative to a condition deemed necessary by the Forest 
Service under section 4(e).
    (c) Reservation of authority. Where the Forest Service notifies FERC 
that it is reserving its authority to develop one or more conditions 
during the term of the license, the hearing and alternatives processes 
under this subpart for such conditions will be available if and when the 
Forest Service exercises its reserved authority. The Forest Service will 
consult with FERC and notify the license parties regarding how to 
initiate the hearing process and alternatives process at that time.
    (d) Applicability. (1) This subpart applies to any hydropower 
license proceeding for which the license has not been issued as of 
November 17, 2005 and for which one or more preliminary conditions or 
conditions have been or are filed with FERC.
    (2) If the Forest Service has already filed one or more preliminary 
conditions or conditions as of November 17, 2005, the special 
applicability provisions of Sec. 1.604 also apply.



Sec. 1.602  What terms are used in this subpart?

    As used in this subpart:
    ALJ means an administrative law judge appointed under 5 U.S.C. 3105 
and assigned to preside over the hearing process under this subpart.
    Alternative means a condition that a license party other than the 
Forest Service or another Department develops as an alternative to a 
preliminary condition from the Forest Service or another Department, 
under FPA sec. 33, 16 U.S.C. 823d.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    Ex parte communication means an oral or written communication to the 
ALJ that is made without providing all parties reasonable notice and an 
opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    Forest Service means the USDA Forest Service.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Hearing Clerk means the Hearing Clerk, USDA, 1400 Independence Ave., 
SW., Washington, DC 20250; phone: 202-720-4443, facsimile: 202-720-9776.
    Intervention means a process by which a person who did not request a 
hearing under Sec. 1.621 can participate as a party to the hearing 
under Sec. 1.622.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document means an environmental assessment or environmental 
impact statement issued to comply with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.

[[Page 101]]

    NFS means Deputy Chief, National Forest Systems, Forest Service. The 
service and mailing address under this subpart is NFS, Washington Office 
(WO) Lands Staff, Mail Stop 1124, 1400 Independence Avenue, SW., 
Washington, DC 20250-0003, telephone 202-205-1248, facsimile number 202-
205-1604.
    Office of Administrative Law Judges (OALJ) is the office within USDA 
in which ALJs conduct hearings under the regulations in this subpart.
    Party means, with respect to USDA's hearing process:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 1.621; or
    (ii) Either 43 CFR 45.21 or 50 CFR 221.21, with respect to a hearing 
process consolidated under Sec. 1.623;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 1.622; or
    (ii) Either 43 CFR 45.22 or 50 CFR 221.22, with respect to a hearing 
process consolidated under Sec. 1.623;
    (3) The Forest Service, if it has filed a preliminary condition; and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under Sec. 
1.623.
    Person means an individual; a partnership, corporation, association, 
or other legal entity; an unincorporated organization; and any federal, 
state, tribal, county, district, territorial, or local government or 
agency.
    Preliminary condition or prescription means a preliminary condition 
or prescription filed by a Department with FERC under 18 CFR 4.34(b), 
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
    Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 
811, to provide for the safe, timely, and effective passage of fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec. 1.610.
    Reservation has the same meaning as the term ``reservations'' in FPA 
sec. 3(2), 16 U.S.C. 796(2).
    Secretary means the Secretary of Agriculture or his or her designee.
    Senior Department employee has the same meaning as the term ``senior 
employee'' in 5 CFR 2637.211(a).
    USDA means the United States Department of Agriculture.
    You refers to a party other than a Department.



Sec. 1.603  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.
    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec. 1.621, a notice of intervention 
and response under Sec. 1.622, an answer under Sec. 1.624, or any 
document under Sec. Sec. 1.670 through 1.673.
    (2) An extension of time to file any other document under this 
subpart may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec. 1.635 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec. 1.660.



Sec. 1.604  What deadlines apply to pending applications?

    (a) Applicability. (1) This section applies to any case in which the 
Forest

[[Page 102]]

Service has filed a preliminary condition or condition with FERC before 
November 17, 2005 and FERC has not issued a license as of that date.
    (2) The deadlines in this section will apply in such a case, in lieu 
of any inconsistent deadline in other sections of this subpart.
    (b) Hearing process. (1) Any request for a hearing under Sec. 1.621 
must be filed with NFS by December 19, 2005.
    (2) Any notice of intervention and response under Sec. 1.622 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of this 
section, the Forest Service must do the following by March 17, 2006:
    (i) Comply with the requirements of Sec. 1.623;
    (ii) Determine jointly with any other Department that has received a 
hearing request, after consultation with FERC, a time frame for the 
hearing process and a corresponding deadline for the Forest Service to 
file an answer under Sec. 1.624; and
    (iii) Issue a notice to each party specifying the time frame for the 
hearing process, including the deadline for the Forest Service to file 
an answer.
    (c) Alternatives process. (1) Any alternative under Sec. 1.671 must 
be filed with NFS by December 19, 2005.
    (2) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if no hearing request is filed under paragraph (b)(1) of this 
section, the Forest Service must do the following by February 15, 2006:
    (i) Determine jointly with any other Department that has received a 
related alternative, after consultation with FERC, a time frame for the 
filing of a modified condition under Sec. 1.672(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
condition.
    (3) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if a hearing request is also filed under paragraph (b)(1) of 
this section, the Forest Service will follow the provisions of paragraph 
(b)(3) of this section.

                             Hearing Process

                             Representatives



Sec. 1.610  Who may represent a party, and what requirements apply to 
a representative?

    (a) Individuals. A party who is an individual may either represent 
himself or herself in the hearing process under this subpart or 
authorize an attorney to represent him or her.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under Sec. 
1.611;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney, include a statement that 
he or she is a member in good standing of the bar of the highest court 
of a state, the District of Columbia, or any territory or commonwealth 
of the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

                       Document Filing and Service



Sec. 1.611  What are the form and content requirements for documents 
under Sec. Sec. 1.610 through 1.660?

    (a) Form. Each document filed in a case under Sec. Sec. 1.610 
through 1.660 must:

[[Page 103]]

    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, which 
may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under Sec. Sec. 1.610 through 
1.660 must begin with a caption that sets forth:
    (1) The name of the case under Sec. Sec. 1.610 through 1.660 and 
the docket number, if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under Sec. Sec. 1.610 through 1.660 relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under Sec. Sec. 
1.610 through 1.660 must be signed by the representative of the person 
for whom the document is filed. The signature constitutes a 
certification by the representative that he or she has read the 
document; that to the best of his or her knowledge, information, and 
belief, the statements made in the document are true; and that the 
document is not being filed for the purpose of causing delay.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, street 
address (if different), telephone number, facsimile number (if any), and 
electronic mail address (if any).



Sec. 1.612  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under 
Sec. Sec. 1.610 through 1.660 must be filed with the appropriate 
office, as follows:
    (1) Before NFS refers a case for docketing under Sec. 1.625, any 
documents must be filed with NFS. NFS's address, telephone number, and 
facsimile number are set forth in Sec. 1.602.
    (2) NFS will notify the parties of the date on which it refers a 
case for docketing under Sec. 1.625. After that date, any documents 
must be filed with:
    (i) The Hearing Clerk, if USDA will be conducting the hearing. The 
Hearing Clerk's address, telephone number, and facsimile number are set 
forth in Sec. 1.602; or
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec. 1.625. The 
name, address, telephone number, and facsimile number of the appropriate 
hearings component will be provided in the referral notice from the 
Forest Service.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission was 
successful; and
    (C) The original of the document is sent by regular mail on the same 
day.
    (2) Parties are encouraged, but not required, to supplement any 
filing by providing the appropriate office with an electronic copy of 
the document on diskette or compact disc.
    (c) Date of filing. A document under Sec. Sec. 1.610 through 1.660 
is considered filed on the date it is received. However, any document 
received after 5 p.m. at the place where the filing is due is considered 
filed on the next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under Sec. Sec. 1.610 through 1.660 does not comply with the 
requirements of Sec. Sec. 1.610 through 1.660 or any applicable order, 
it may be rejected. If the defect is

[[Page 104]]

minor, the party may be notified of the defect and given a chance to 
correct it.



Sec. 1.613  What are the requirements for service of documents?

    (a) Filed documents. Any document related to a case under Sec. Sec. 
1.610 through 1.660 must be served at the same time the document is 
delivered or sent for filing. Copies must be served as follows:
    (1) A complete copy of any request for a hearing under Sec. 1.621 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response under 
Sec. 1.622 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec. 1.621, and the Forest Service, using 
one of the methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (3) A complete copy of any other filed document must be served on 
each party, using one of the methods of service in paragraph (c) of this 
section.
    (b) Documents issued by the Hearing Clerk or ALJ. A complete copy of 
any notice, order, decision, or other document issued by the Hearing 
Clerk or the ALJ under Sec. Sec. 1.610 through 1.660 must be served on 
each party, using one of the methods of service in paragraph (c) of this 
section.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day;
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day; or
    (4) By sending the document, including all attachments, by 
electronic mail if:
    (i) A copy of the document is sent by regular mail on the same day; 
and
    (ii) The party acknowledges receipt of the document by close of the 
next business day.
    (d) Acknowledgment of service. Any party who receives a document 
under Sec. Sec. 1.610 through 1.660 by electronic mail must promptly 
send a reply electronic mail message acknowledging receipt.
    (e) Certificate of service. A certificate of service must be 
attached to each document filed under Sec. Sec. 1.610 through 1.660. 
The certificate must be signed by the party's representative and include 
the following information:
    (1) The name, address, and other contact information of each party's 
representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and
    (3) The date of service.

                      Initiation of Hearing Process



Sec. 1.620  What supporting information must the Forest Service provide 
with its preliminary conditions?

    (a) Supporting information. (1) When the Forest Service files 
preliminary conditions with FERC, it must include a rationale for the 
conditions and an index to the Forest Service's administrative record 
that identifies all documents relied upon.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, the Forest Service must:
    (i) File them with FERC at the time it files the preliminary 
conditions; and
    (ii) Provide paper or electronic copies to the license applicant.
    (b) Service. In addition to serving a copy of its preliminary 
conditions on each license party, the Forest Service must provide a copy 
to the Hearing Clerk if and when a request for a hearing is filed with 
respect to the preliminary conditions.



Sec. 1.621  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any condition filed by the Forest Service, you 
must:
    (1) Be a license party; and
    (2) File with NFS a written request for a hearing within 30 days 
after the

[[Page 105]]

deadline for the Departments to file preliminary conditions with FERC.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by the 
Forest Service under Sec. 1.620(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (iv) With respect to any scientific studies, literature, and other 
documented information supporting your opinions under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the 
information relied upon. If any such document is not already in the 
license proceeding record, you must provide a copy with the request.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 1.622  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, you 
must:
    (i) Be a license party; and
    (ii) File with NFS a notice of intervention and a written response 
to any request for a hearing within 15 days after the date of service of 
the request for a hearing.
    (2) A license party filing a notice of intervention and response may 
not raise issues of material fact beyond those raised in the hearing 
request.
    (b) Content. In your notice of intervention and response you must 
explain your position with respect to the issues of material fact raised 
in the hearing request under Sec. 1.621(b).
    (1) If you agree with the information provided by the Forest Service 
under Sec. 1.620(a) or by the requester under Sec. 1.621(b), your 
response may refer to the Forest Service's explanation or the 
requester's hearing request for support.
    (2) If you wish to rely on additional information or analysis, your 
response must provide the same level of detail with respect to the 
additional information or analysis as required under Sec. 1.621(b).
    (c) Witnesses and exhibits. Your response and notice must also list 
the witnesses and exhibits that you intend to present at the hearing, 
other than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 1.623  When will hearing requests be consolidated?

    (a) Initial Department coordination. If the Forest Service has 
received a copy of a hearing request, it must contact the other 
Departments within 10 days after the deadline for filing hearing 
requests under Sec. 1.621 and determine:
    (1) Whether any of the other Departments has also filed a 
preliminary condition or prescription relating to the license with FERC; 
and

[[Page 106]]

    (2) If so, whether the other Department has also received a hearing 
request with respect to the preliminary condition or prescription.
    (b) Decision on consolidation. Within 25 days after the deadline for 
filing hearing requests under Sec. 1.621, if the Forest Service has 
received a hearing request, it must:
    (1) Consult with any other Department that has also received a 
hearing request; and
    (2) Decide jointly with the other Department:
    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any conditions from the 
same Department will be consolidated for hearing.
    (2) All hearing requests with respect to any prescriptions from the 
same Department will be consolidated for hearing.
    (3) Any or all of the following may be consolidated for hearing, if 
the Departments involved determine that there are common issues of 
material fact or that consolidation is otherwise appropriate:
    (i) Two or more hearing requests with respect to any condition and 
any prescription from the same Department;
    (ii) Two or more hearing requests with respect to conditions from 
different Departments;
    (iii) Two or more hearing requests with respect to prescriptions 
from different Departments; or
    (iv) Two or more hearing requests with respect to any condition from 
one Department and any prescription from another Department.



Sec. 1.624  How will the Forest Service respond to any hearing requests?

    (a) General. Within 45 days after the deadline in Sec. 1.621(a)(2), 
the Forest Service may file with the Hearing Clerk an answer to any 
hearing request under Sec. 1.621.
    (b) Content. If the Forest Service files an answer:
    (1) For each of the numbered factual issues listed under Sec. 
1.621(b)(1), the answer must explain the Forest Service's position with 
respect to the issues of material fact raised by the requester, 
including one or more of the following statements as appropriate:
    (i) That the Forest Service is willing to stipulate to the facts as 
alleged by the requester;
    (ii) That the Forest Service believes the issue listed by the 
requester is not a factual issue, explaining the basis for such belief;
    (iii) That the Forest Service believes the issue listed by the 
requester is not material, explaining the basis for such belief; or
    (iv) That the Forest Service agrees that the issue is factual, 
material, and in dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec. 
1.623 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. The Forest Service's answer must also 
list the witnesses and exhibits that it intends to present at the 
hearing, other than solely for impeachment purposes.
    (1) For each witness listed, the Forest Service must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, the Forest Service must specify whether 
it is in the license proceeding record
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If the Forest Service elects not to 
file an answer to a hearing request:

[[Page 107]]

    (1) The Forest Service is deemed to agree that the issues listed by 
the requester are factual, material, and in dispute;
    (2) The Forest Service may file a list of witnesses and exhibits 
with respect to the request only as provided in Sec. 1.642(b); and
    (3) The Forest Service must file a notice containing the information 
required by paragraph (b)(2) of this section, if the hearing request 
will be consolidated with one or more other hearing requests under Sec. 
1.623.



Sec. 1.625  What will the Forest Service do with any hearing requests?

    (a) Case referral. Within 5 days after receipt of the Forest 
Service's answer, NFS will refer the case for a hearing as follows:
    (1) If the hearing is to be conducted by USDA, NFS will refer the 
case to the OALJ.
    (2) If the hearing is to be conducted by another Department, NFS 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary condition under Sec. 1.620;
    (2) The original of any hearing request under Sec. 1.621;
    (3) The original of any notice of intervention and response under 
Sec. 1.622;
    (4) The original of any answer under Sec. 1.624; and
    (5) An original referral notice under paragraph (c) of this section.
    (c) Notice. At the time NFS refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of the 
Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and
    (4) The date on which NFS is referring the case for docketing.
    (d) Delivery and service. (1) NFS must refer the case to the 
appropriate Department hearings component by one of the methods 
identified in Sec. 1.612(b)(1)(i) and (b)(1)(ii).
    (2) NFS must serve a copy of the referral notice on FERC and each 
party to the hearing by one of the methods identified in Sec. 
1.613(c)(1) and (c)(2).



Sec. 1.626  What regulations apply to a case referred for a hearing?

    (a) If NFS refers the case to OALJ, these regulations will continue 
to apply to the hearing process.
    (b) If NFS refers the case to the Department of the Interior's 
Office of Hearing and Appeals, the regulations at 43 CFR 45.1 et seq. 
will apply from that point.
    (c) If NFS refers the case to the Department of Commerce's 
designated ALJ office, the regulations at 50 CFR 221.1 et seq. will 
apply from that point.

                 General Provisions Related to Hearings



Sec. 1.630  What will OALJ do with a case referral?

    Within 5 days after issuance of the referral notice under Sec. 
1.625(c), 43 CFR 45.25(c), or 50 CFR 221.25(c):
    (a) The Hearing Clerk must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec. 1.640. This 
notice may be combined with the docketing notice under paragraph (a)(3) 
of this section.



Sec. 1.631  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec. 1.660(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in Sec. Sec. 1.641 through 
1.647;
    (e) Hold hearings and conferences;

[[Page 108]]

    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec. 1.660(b) regarding any 
disputed issues of material fact relating to the Forest Service's or 
other Department's condition or prescription that has been referred to 
the ALJ for hearing; and
    (j) Take any other action authorized by law.



Sec. 1.632  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec. 1.631, the OALJ shall designate a 
successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, a 
successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and who 
is available to testify again without undue burden. The successor ALJ 
may, within his or her discretion, recall any other witness.



Sec. 1.633  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's decision, any party may 
move that the ALJ disqualify himself or herself for personal bias or 
other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the case.
    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a decision.



Sec. 1.634  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.



Sec. 1.635  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the ALJ. 
A motion may be presented any time after the Hearing Clerk issues a 
docketing notice under Sec. 1.630.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of Sec. Sec. 1.610 through 1.613 
with respect to form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this subpart or by 
order of the ALJ, any other party may file a response to a written 
motion within 10 days after service of the motion. When a party presents 
a motion at a hearing, any other party may present a response orally on 
the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing of 
a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as practicable, 
either orally on the record or in writing. He

[[Page 109]]

or she may summarily deny any dilatory, repetitive, or frivolous motion.

                  Prehearing Conferences and Discovery



Sec. 1.640  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec. 1.630, on or about the 20th day after 
issuance of the referral notice under Sec. 1.625(c).
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of material 
fact and exclude issues that do not qualify for review as factual, 
material, and disputed;
    (ii) To consider the parties' motions for discovery under Sec. 
1.641 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely at 
the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec. 1.652; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and
    (v) To consider any other matters that may aid in the disposition of 
the case.
    (b) Other conferences. The ALJ may in his or her discretion direct 
the parties to attend one or more other prehearing conferences, if 
consistent with the need to complete the hearing process within 90 days. 
Any party may by motion request a conference.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (1) Each party's representative must be fully 
prepared for a discussion of all issues properly before the conference, 
both procedural and substantive. The representative must be authorized 
to commit the party that he or she represents respecting those issues.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. Unless the ALJ orders otherwise, a party that 
fails to attend or participate in a conference, after being served with 
reasonable notice of its time and place, waives all objections to any 
agreements reached in the conference and to any consequent orders or 
rulings.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. Within 2 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.



Sec. 1.641  How may parties obtain discovery of information needed 
for the case?

    (a) General. By agreement of the parties or with the permission of 
the ALJ, a party may obtain discovery of information to assist the party 
in preparing or presenting its case. Available methods of discovery are:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other purposes.
    (b) Criteria. Discovery may occur only as agreed to by the parties 
or as authorized by the ALJ in a written order or during a prehearing 
conference. The ALJ may authorize discovery only if

[[Page 110]]

the party requesting discovery demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (iii) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec. 1.625(c).
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 7 
days after service of the motion.
    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraphs (b)(1) 
through (b)(6) of this section.
    (f) Materials prepared for hearing. A party generally may not obtain 
discovery of documents and tangible things otherwise discoverable under 
paragraph (b) of this section if they were prepared in anticipation of 
or for the hearing by or for another party's representative (including 
the party's attorney, expert, or consultant).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (2) In ordering discovery of such materials when the required 
showing has been made, the ALJ must protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney.
    (g) Experts. Unless restricted by the ALJ, a party may discover any 
facts known or opinions held by an expert concerning any relevant 
matters that are not privileged. Such discovery will be permitted only 
if:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and
    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, or 
other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by subpoena.
    (2) Paragraph (h)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is

[[Page 111]]

not available from any other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.



Sec. 1.642  When must a party supplement or amend information it has 
previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (1) Within 5 days after the date set for 
completion of discovery, each party must file an updated version of the 
list of witnesses and exhibits required under Sec. Sec. 1.621(c), 
1.622(c), or 1.624(c).
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 
Sec. Sec. 1.621(c), 1.622(c), or 1.624(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec. 1.621(c), 1.622(c), or 1.624(c), 
or paragraphs (a) or (b) of this section, will not be permitted to 
introduce as evidence at the hearing testimony from a witness or other 
information that it failed to disclose.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would disrupt 
the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.



Sec. 1.643  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
propound interrogatories must file a motion under Sec. 1.641(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 1.641(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. Except upon agreement of the 
parties, the party to whom the proposed interrogatories are directed 
must file its answers to any interrogatories approved by the ALJ within 
15 days after issuance of the order under paragraph (b) of this section.
    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (3) The answering party specifically identifies the individual 
records from which the requesting party may obtain the information and 
where the records are located; and
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and

[[Page 112]]

make a copy, compilation, abstract, or summary.



Sec. 1.644  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a party 
wishing to take a deposition must file a motion under Sec. 1.641(c). 
Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition is 
to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 1.641(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. If the parties agree to or the ALJ approves the 
taking of the deposition, the party requesting the deposition must make 
appropriate arrangements for necessary facilities and personnel.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.
    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (3) Any party that objects to the taking of a deposition because of 
the disqualification of the person before whom it is to be taken must do 
so:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.
    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. Except as provided in paragraph (g) of 
this section, the deposition must be stenographically recorded and 
transcribed at the expense of the party that requested the deposition.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (3) The person before whom the deposition was taken must certify the 
transcript following receipt of the signed transcript from the deponent 
or expiration of the 3-day review period, whichever occurs first.
    (g) Video recording. The testimony at a deposition may be recorded 
on videotape, subject to any conditions or restrictions that the parties 
may agree to or the ALJ may impose, at the expense of the party 
requesting the recording.
    (1) The video recording may be in conjunction with an oral 
examination by telephone conference held under paragraph (c)(3) of this 
section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec. 1.653.



Sec. 1.645  What are the requirements for requests for documents or 
tangible things or entry on land?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
request the production of designated documents or tangible things or 
entry on designated land must file a motion

[[Page 113]]

under Sec. 1.641(c). A request may include any of the following that 
are in the possession, custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license proceeding 
record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (3) Entry on designated land or other property for inspection and 
measuring, surveying, photographing, testing, or sampling either the 
property or any designated object or operation on the property.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 1.641(b) with 
respect to any discovery motion requesting the production of documents 
or tangible things or entry on land for inspection, copying, or other 
purposes. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. Except upon agreement of the parties, the 
party to whom any approved request for production is directed must 
permit the approved inspection and other activities within 15 days after 
issuance of the order under paragraph (a) of this section.



Sec. 1.646  What sanctions may the ALJ impose for failure to comply 
with discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under Sec. 
1.642(a).
    (b) The ALJ may impose one or more of the following sanctions:
    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.



Sec. 1.647  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph (a)(2) 
of this section, any party may file a motion requesting the ALJ to issue 
a subpoena to the extent authorized by law for the attendance of a 
person, the giving of testimony, or the production of documents or other 
relevant evidence during discovery or for the hearing.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not a 
party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and

[[Page 114]]

mileage expenses that are paid witnesses in the district courts of the 
United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to do 
so is entitled to the same fees and mileage expenses as if he or she had 
been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by the Forest Service or another 
Department.
    (d) Motion to quash. (1) A person to whom a subpoena is directed may 
request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for compliance, 
if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

                     Hearing, Briefing, and Decision



Sec. 1.650  When and where will the hearing be held?

    (a) Except as provided in paragraph (b) of this section, the hearing 
will be held at the time and place set at the initial prehearing 
conference under Sec. 1.640, generally within 15 days after the date 
set for completion of discovery.
    (b) On motion by a party or on the ALJ's initiative, the ALJ may 
change the date, time, or place of the hearing if he or she finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.



Sec. 1.651  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, each party has the 
following rights during the hearing, as necessary to assure full and 
accurate disclosure of the facts:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-cross 
examination as permitted by the ALJ.



Sec. 1.652  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct hearing testimony must be prepared and submitted in written 
form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each page;
    (ii) Be authenticated by an affidavit or declaration of the witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. Oral examination of a witness in a hearing, 
including on cross-examination or redirect, must be conducted under oath 
and in the presence of the ALJ, with an opportunity for all parties to 
question the witness.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (1) The arrangements for the call must let each party listen to and 
speak to the witness and each other within the hearing of the ALJ.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec. 1.647 directing a 
witness to testify by telephonic conference call.



Sec. 1.653  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use

[[Page 115]]

in the hearing any part or all of a deposition taken under Sec. 1.644 
against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. If the deposition was recorded on 
videotape and is admitted into evidence, relevant portions will be 
played during the hearing and transcribed into the record by the 
reporter.



Sec. 1.654  What are the requirements for exhibits, official notice, 
and stipulations?

    (a) General. (1) Except as provided in paragraphs (b) through (e) of 
this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (c) Official notice. (1) At the request of any party at the hearing, 
the ALJ may take official notice of any matter of which the courts of 
the United States may take judicial notice, including the public records 
of any Department party.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is binding 
on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.



Sec. 1.655  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec. 1.642(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (2) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the risk of undue prejudice, confusion of 
the issues, or delay.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (4) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.

[[Page 116]]

    (b) Objections. Any party objecting to the admission or exclusion of 
evidence shall concisely state the grounds. A ruling on every objection 
must appear in the record.



Sec. 1.656  What are the requirements for transcription of the hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (1) The Forest Service will secure the services of a reporter and 
pay the reporter's fees to provide an original transcript to the Forest 
Service on an expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed within 
5 days after receipt of the transcript, unless the ALJ sets a different 
deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.



Sec. 1.657  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.



Sec. 1.658  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the transcript may be corrected under Sec. 1.656 (b).



Sec. 1.659  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 10 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. The 
deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with page 
references.



Sec. 1.660  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec. 1.658; or
    (2) 90 days after issuance of the referral notice under Sec. 
1.625(c), 43 CFR 45.25(c), or 50 CFR 221.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact (such 
as rulings on materiality and on the admissibility of evidence); and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one or 
more of the parties.

[[Page 117]]

    (3) The decision will not contain conclusions as to whether any 
preliminary condition or prescription should be adopted, modified, or 
rejected, or whether any proposed alternative should be adopted or 
rejected.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. The ALJ's decision under this section will be final, 
with respect to the disputed issues of material fact, for any Department 
involved in the hearing. To the extent the ALJ's decision forms the 
basis for any condition or prescription subsequently included in the 
license, it may be subject to judicial review under 16 U.S.C. 825l(b).

                          Alternatives Process



Sec. 1.670  How must documents be filed and served under Sec. Sec. 1.670 
through 1.673?

    (a) Filing. (1) For the alternatives process, documents must be 
filed using one of the methods set forth in Sec. 1.612(b).
    (2) A document is considered filed on the date it is received. 
However, any document received after 5 p.m. at the place where the 
filing is due is considered filed on the next regular business day.
    (b) Service. (1) Any document filed under this section must be 
served at the same time the document is delivered or sent for filing. A 
complete copy of the document must be served on each license party and 
FERC, using:
    (i) One of the methods of service in Sec. 1.613(c); or
    (ii) Regular mail.
    (2) The provisions of Sec. 1.613 (d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
section.



Sec. 1.671  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (2) File a written proposal with NFS within 30 days after the 
deadline for the Forest Service to file preliminary conditions with 
FERC.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to the Forest Service's preliminary condition;
    (2) An explanation of how the alternative will provide for the 
adequate protection and utilization of the reservation;
    (3) An explanation of how the alternative, as compared to the 
preliminary condition, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (5) Specific citations to any scientific studies, literature, and 
other documented information relied on to support your proposal, 
including any assumptions you are making (e.g., regarding the cost of 
energy or the rate of inflation). If any such document is not already in 
the license proceeding record, you must provide a copy with the 
proposal.



Sec. 1.672  What will the Forest Service do with a proposed alternative?

    If any license party proposes an alternative to a preliminary 
condition under Sec. 1.671(a)(1), the Forest Service must do the 
following within 60 days after the deadline for filing comments to 
FERC's NEPA document under 18 CFR 5.25(c):
    (a) Analyze the alternative under Sec. 1.673; and
    (b) File with FERC:
    (1) Any condition that the Forest Service adopts as its modified 
condition; and
    (2) Its analysis of the modified condition and any proposed 
alternatives under Sec. 1.673(c).

[[Page 118]]



Sec. 1.673  How will the Forest Service analyze a proposed alternative 
and formulate its modified condition?

    (a) In deciding whether to adopt a proposed alternative, the Forest 
Service must consider evidence and supporting material provided by any 
license party or otherwise available to the Forest Service, including:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on the Forest Service's preliminary 
condition;
    (3) Any ALJ decision on disputed issues of material fact issued 
under Sec. 1.660 with respect to the preliminary condition;
    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec. 1.671.
    (b) The Forest Service must adopt a proposed alternative if the 
Forest Service determines, based on substantial evidence provided by any 
license party or otherwise available to the Forest Service, that the 
alternative:
    (1) Will, as compared to the Forest Service's preliminary condition:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production; and
    (2) Will provide for the adequate protection and utilization of the 
reservation.
    (c) When the Forest Service files with FERC the condition that the 
Forest Service adopts as its modified condition under Sec. Sec. 
1.672(b), it must also file:
    (1) A written statement explaining:
    (i) The basis for the adopted condition; and
    (ii) If the Forest Service is not adopting any alternative, its 
reasons for not doing so; and
    (2) Any study, data, and other factual information relied on that is 
not already part of the licensing proceeding record.
    (d) The written statement under paragraph (c)(1) of this section 
must demonstrate that the Forest Service gave equal consideration to the 
effects of the condition adopted and any alternative not adopted on:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.



Sec. 1.674  Has OMB approved the information collection provisions of 
Sec. Sec. 1.670 through 1.673?

    Yes. This rule contains provisions that would collect information 
from the public. It therefore requires approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq. (PRA). According to the PRA, a Federal agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number that indicates OMB approval. OMB has reviewed the 
information collection in this rule and approved it under OMB control 
number 1094-0001.



PART 1a_LAW ENFORCEMENT AUTHORITIES--Table of Contents




Sec.
1a.1 General statement.
1a.2 Authorization.
1a.3 Persons authorized.
1a.4 Limitations.
1a.5 Responsibility of the Inspector General.

    Authority: Sec. 1337, Pub. L. 97-98; 5 U.S.C. 301; 5 U.S.C. App. I.

    Source: 47 FR 2073, Jan. 14, 1982, unless otherwise noted.



Sec. 1a.1  General statement.

    This part sets forth the rules issued by the Secretary of 
Agriculture to implement section 1337 of Public Law 97-98 relating to:
    (a) Arrests without warrant for certain criminal felony violations;
    (b) Execution of warrants for arrests, searches of premises and 
seizures of evidence; and
    (c) The carrying of firearms by designated officials of the Office 
of Inspector General.

[[Page 119]]



Sec. 1a.2  Authorization.

    Any official of the Office of Inspector General who is designated by 
the Inspector General according to Sec. Sec. 1a.3 and 1a.5 of this part 
and who is engaged in the performance of his/her official duties under 
the authority provided in section 6, or described in section 9, of the 
Inspector General Act of 1978 (5 U.S.C. App.), is authorized to--
    (a) Make an arrest without a warrant for any criminal felony 
violation subject to Sec. 1a.4, if such violation is committed, or if 
the official has probable cause to believe that such violation is being 
committed, in his/her presence;
    (b) Execute and serve a warrant for an arrest, for the search of 
premises, or the seizure of evidence if such warrant is issued under 
authority of the United States upon probable cause to believe that any 
criminal felony violation, subject to Sec. 1a.4, has been committed; 
and
    (c) Carry a firearm.

[50 FR 13759, Apr. 8, 1985]



Sec. 1a.3  Persons authorized.

    Any person who is employed in the Office of Inspector General and 
who is designated by the Inspector General in accordance with and 
subject to Sec. 1a. and who conducts investigations of alleged or 
suspected felony criminal violations of statutes administered by the 
Secretary of Agriculture or any agency of the Department of Agriculture 
may exercise the authorities listed in and pursuant to Sec. 1a.2.



Sec. 1a.4  Limitations.

    The powers granted by Sec. Sec. 1a.2(a) and 1a.2(b) shall be 
exercised only when a designated official is engaged in an investigation 
of alleged or suspected felony violations of statutes administered by 
the Secretary of Agriculture or any agency of the Department.

[50 FR 13759, Apr. 8, 1985]



Sec. 1a.5  Responsibility of the Inspector General.

    The Inspector General shall:
    (a) Issue directives conforming to this part governing the exercise 
of the authorities granted by this part. These directives should contain 
the policies and procedures by which the authorities will be exercised 
by designated officials of the Office of Inspector General;
    (b) Establish criteria for qualification by officials of the Office 
of Inspector General who are designated to exercise the authorities 
granted in this part;
    (c) Monitor the implementation and exercise of the authorities 
granted by this part;
    (d) Designate, pursuant to Sec. Sec. 1a.2, 1a.3 and 1a.4, and the 
directives issued under paragraph (a) of this section, and the criteria 
established under paragraph (b) of this section, employees who have 
satisfied all the qualifications set by the Inspector General to 
exercise the authorities granted by Sec. 1a.2; and
    (e) Submit to the Attorney General of the United States the name of 
any employee of the Office of Inspector General designated pursuant to 
paragraph (d) of this section. Any designation not specifically 
disapproved by the Attorney General within 30 days after the date of 
submission shall be deemed approved.



PART 1b_NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents




Sec.
1b.1 Purpose.
1b.2 Policy.
1b.3 Categorical exclusions.
1b.4 Exclusion of agencies.

    Authority: 5 U.S.C. 301; 42 U.S.C. 4321 et seq.; E.O. 11514, 3 CFR, 
1966-1970 Comp., p. 902, as amended by E.O. 11991, 3 CFR, 1978 Comp., p. 
123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40 CFR 1507.3.

    Source: 48 FR 11403, Mar. 18, 1983, unless otherwise noted.



Sec. 1b.1  Purpose.

    (a) This part supplements the regulations for implementation of the 
National Environmental Policy Act (NEPA), for which regulations were 
published by the Council on Environmental Quality (CEQ) in 40 CFR parts 
1500 through 1508. This part incorporates and adopts those regulations.
    (b) This part sets forth Departmental policy concerning NEPA, 
establishes categorical exclusions of actions carried out by the 
Department and its

[[Page 120]]

agencies, and sets forth those USDA agencies which are excluded from the 
requirement to prepare procedures implementing NEPA.

[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]



Sec. 1b.2  Policy.

    (a) All policies and programs of the various USDA agencies shall be 
planned, developed, and implemented so as to achieve the goals and to 
follow the procedures declared by NEPA in order to assure responsible 
stewardship of the environment for present and future generations.
    (b) Each USDA agency is responsible for compliance with this part, 
the regulations of CEQ, and NEPA. Compliance will include the 
preparation and implementation of specific procedures and processes 
relating to the programs and activities of the individual agency, as 
necessary.
    (c) The Under Secretary, Natural Resources and Environment (NR&E), 
is responsible for ensuring that agency implementing procedures are 
consistent with CEQ's NEPA regulations and for coordinating NEPA 
compliance for the Department. The Under Secretary, NR&E, through the 
Agricultural Council on Environmental Quality, will develop the 
necessary processes to be used by the Office of the Secretary in 
reviewing, implementing, and planning its NEPA activities, 
determinations, and policies.
    (d) In connection with the policies and requirements set forth in 
this part, all USDA agencies are responsible for compliance with 
Executive Order 12114, ``Environmental Effects Abroad of Major Federal 
Actions.'' Compliance will include the preparation and implementation of 
specific procedures and processes relative to the programs and 
activities of the individual agencies, as necessary. Agencies shall 
consult with the Department of State; the Council on Environmental 
Quality; and the Under Secretary, NR&E, prior to placing procedures and 
processes in effect.

[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]



Sec. 1b.3  Categorical exclusions.

    (a) The following are categories of activities which have been 
determined not to have a significant individual or cumulative effect on 
the human environment and are excluded from the preparation of 
environmental assessment (EA's) or environmental impact statement 
(EIS's), unless individual agency procedures prescribed otherwise.
    (1) Policy development, planning and implementation which relate to 
routine activities, such as personnel, organizational changes, or 
similar administrative functions;
    (2) Activities which deal solely with the funding of programs, such 
as program budget proposals, disbursements, and transfer or 
reprogramming of funds;
    (3) Inventories, research activities, and studies, such as resource 
inventories and routine data collection when such actions are clearly 
limited in context and intensity;
    (4) Educational and informational programs and activities;
    (5) Civil and criminal law enforcement and investigative activities;
    (6) Activities which are advisory and consultative to other agencies 
and public and private entities, such as legal counselling and 
representation;
    (7) Activities related to trade representation and market 
development activities abroad.
    (b) Agencies will identify in their own procedures the activities 
which normally would not require an environmental assessment or 
environmental impact statement.
    (c) Notwithstanding the exclusions listed in paragraphs (a) of this 
section and Sec. 1b.4, or identified in agency procedures, agency heads 
may determine that circumstances dictate the need for preparation of an 
EA or EIS for a particular action. Agencies shall continue to scrutinize 
their activities to determine continued eligibility for categorical 
exclusion.

[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]

[[Page 121]]



Sec. 1b.4  Exclusion of agencies.

    (a) The USDA agencies and agency units listed in paragraph (b) of 
this section conduct programs and activities that have been found to 
have no individual or cumulative effect on the human environment. The 
USDA agencies and agency units listed in paragraph (b) of this section 
are excluded from the requirements of preparing procedures to implement 
NEPA. Actions of USDA agencies and agency units listed in paragraph (b) 
of this section are categorically excluded from the preparation of an EA 
or EIS unless the agency head determines that an action may have a 
significant environmental effect.
    (b)(1) Agricultural Marketing Service
    (2) Economic Research Service
    (3) Extension Service
    (4) Federal Corp Insurance Corporation
    (5) Food and Consumer Service
    (6) Food Safety and Inspection Service
    (7) Foreign Agricultural Service
    (8) Grain Inspection, Packers and Stockyards Administration
    (9) National Agricultural Library
    (10) National Agricultural Statistics Service
    (11) Office of the General Counsel
    (12) Office of the Inspector General

[60 FR 66481, Dec. 22, 1995]



PART 1c_PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
1c.101 To what does this policy apply?
1c.102 Definitions.
1c.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
1c.104-1c.106 [Reserved]
1c.107 IRB membership.
1c.108 IRB functions and operations.
1c.109 IRB review of research.
1c.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
1c.111 Criteria for IRB approval of research.
1c.112 Review by institution.
1c.113 Suspension or termination of IRB approval of research.
1c.114 Cooperative research.
1c.115 IRB records.
1c.116 General requirements for informed consent.
1c.117 Documentation of informed consent.
1c.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
1c.119 Research undertaken without the intention of involving human 
          subjects.
1c.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
1c.121 [Reserved]
1c.122 Use of Federal funds.
1c.123 Early termination of research support: Evaluation of applications 
          and proposals.
1c.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28018, June 18, 1991, unless otherwise noted.



Sec. 1c.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a Federal department 
or agency, whether or not it is regulated as defined in Sec. 1c.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a Federal 
department or agency but is subject to regulation as defined in Sec. 
1c.102(e) must be reviewed and approved, in compliance with Sec. 
1c.101, Sec. 1c.102, and Sec. 1c.107 through Sec. 1c.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:

[[Page 122]]

    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) Research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and
    (ii) Any disclosure of the human subjects' responses outside the 
research could reasonably place the subjects at risk of criminal or 
civil liability or be damaging to the subjects' financial standing, 
employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or
    (ii) Federal statute(s) require(s) without exception that the 
confidentiality of the personally identifiable information will be 
maintained throughout the research and thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection 
Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the

[[Page 123]]

protection of human research subjects is internationally recognized.] In 
these circumstances, if a department or agency head determines that the 
procedures prescribed by the institution afford protections that are at 
least equivalent to those provided in this policy, the department or 
agency head may approve the substitution of the foreign procedures in 
lieu of the procedural requirements provided in this policy. Except when 
otherwise required by statute, Executive Order, or the department or 
agency head, notices of these actions as they occur will be published in 
the Federal Register or will be otherwise published as provided in 
department or agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in such other manner as provided in department or agency procedures.\1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. 1c.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains:
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject.

[[Page 124]]

``Private information'' includes information about behavior that occurs 
in a context in which an individual can reasonably expect that no 
observation or recording is taking place, and information which has been 
provided for specific purposes by an individual and which the individual 
can reasonably expect will not be made public (for example, a medical 
record). Private information must be individually identifiable (i.e., 
the identity of the subject is or may readily be ascertained by the 
investigator or associated with the information) in order for obtaining 
the information to constitute research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 1c.103  Assuring compliance with this policy--research conducted 
or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for federalwide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the Office for 
Human Research Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 1c.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to

[[Page 125]]

IRB deliberations; and any employment or other relationship between each 
member and the institution; for example: full-time employee, part-time 
employee, member of governing panel or board, stockholder, paid or 
unpaid consultant. Changes in IRB membership shall be reported to the 
department or agency head, unless in accord with Sec. 1c.103(a) of this 
policy, the existence of an HHS-approved assurance is accepted. In this 
case, change in IRB membership shall be reported to the Office for Human 
Research Protections, HHS, or any successor office.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 1c.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 1c.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 1c.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]

[[Page 126]]



Sec. Sec. 1c.104-1c.106  [Reserved]



Sec. 1c.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who are 
knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, at its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 1c.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 1c.103(b)(4) and, to the extent required by, Sec. 1c.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
1c.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 1c.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 1c.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 1c.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 1c.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its

[[Page 127]]

decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 1c.110  Expedited review procedures for certain kinds of research 
involving no more than minimal risk, and for minor changes in approved 
research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Human Research Protections, HHS, or any successor office.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.

Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 1c.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 1c.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the

[[Page 128]]

subject's legally authorized representative, in accordance with, and to 
the extent required by Sec. 1c.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 1c.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 1c.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 1c.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 1c.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 1c.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is Sec. 
1c.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 1c.103(b)(4) and Sec. 1c.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 1c.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of

[[Page 129]]

the research. All records shall be accessible for inspection and copying 
by authorized representatives of the department or agency at reasonable 
times and in a reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 1c.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and

[[Page 130]]

    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) Public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 1c.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 1c.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 1c.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each

[[Page 131]]

subject will be asked whether the subject wants documentation linking 
the subject with the research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 1c.118  Applications and proposals lacking definite plans for 
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 1c.101 (b) or (i), no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the department or 
agency.



Sec. 1c.119  Research undertaken without the intention of involving 
human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 1c.120  Evaluation and disposition of applications and proposals 
for research to be conducted or supported by a Federal Department or Agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 1c.121  [Reserved]



Sec. 1c.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 1c.123  Early termination of research support: Evaluation of 
applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program

[[Page 132]]

criteria, factors such as whether the applicant has been subject to a 
termination or suspension under paragarph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 1c.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 2_DELEGATIONS OF AUTHORITY BY THE SECRETARY OF AGRICULTURE AND 
GENERAL OFFICERS OF THE DEPARTMENT--Table of Contents




                            Subpart A_General

Sec.
2.1 Establishment of the Department.
2.2 Authority of the Secretary to prescribe regulations.
2.3 Authority of the Secretary to delegate authority.
2.4 General officers.
2.5 Order in which officers of the Department shall act as Secretary.

     Subpart B_General Delegations of Authority by the Secretary of 
                               Agriculture

2.7 Authority to supervise and direct.
2.8 Delegations of authority to agency heads to order that the United 
          States flag be flown at half-staff.
2.9 Additional delegations.
2.10 Limitations.
2.11 New principles and periodic reviews.
2.12 Secretary and general officers not precluded from exercising 
          delegated powers.
2.13 Status of prior delegations.

 Subpart C_Delegations of Authority to the Deputy Secretary, the Under 
                  Secretaries and Assistant Secretaries

2.15 Deputy Secretary.
2.16 Under Secretary for Farm and Foreign Agricultural Services.
2.17 Under Secretary for Rural Development.
2.18 Under Secretary for Food Safety.
2.19 Under Secretary for Food, Nutrition, and Consumer Services.
2.20 Under Secretary for Natural Resources and Environment.
2.21 Under Secretary for Research, Education, and Economics.
2.22 Under Secretary for Marketing and Regulatory Programs.
2.23 Assistant Secretary for Congressional Relations.
2.24 Assistant Secretary for Administration.
2.25 Assistant Secretary for Civil Rights.

Subpart D_Delegations of Authority to Other General Officers and Agency 
                                  Heads

2.26 Director, Office of the Executive Secretariat.
2.27 Office of Administrative Law Judges.
2.28 Chief Financial Officer.
2.29 Chief Economist.
2.30 Director, Office of Budget and Program Analysis.
2.31 General Counsel.
2.32 Director, Homeland Security Staff.
2.33 Inspector General.
2.34 Director, National Appeals Division.
2.35 Judicial Officer.
2.36 Director, Office of Communications.
2.37 Chief Information Officer.

Subpart E [Reserved]

 Subpart F_Delegations of Authority by the Under Secretary for Farm and 
                      Foreign Agricultural Services

2.40 Deputy Under Secretary for Farm and Foreign Agricultural Services.
2.42 Administrator, Farm Service Agency.
2.43 Administrator, Foreign Agricultural Service.
2.44 Administrator, Risk Management Agency and Manager, Federal Crop 
          Insurance Corporation.

  Subpart G_Delegations of Authority by the Under Secretary for Rural 
                               Development

2.45 Deputy Under Secretary for Rural Economic and Community 
          Development.
2.47 Administrator, Rural Utilities Service.
2.48 Administrator, Rural Business-Cooperative Service.
2.49 Administrator, Rural Housing Service.

   Subpart H_Delegations of Authority by the Under Secretary for Food 
                                 Safety

2.51 Deputy Under Secretary for Food Safety.

[[Page 133]]

2.53 Administrator, Food Safety and Inspection Service.

  Subpart I_Delegations of Authority by the Under Secretary for Food, 
                    Nutrition, and Consumer Services

2.55 Deputy Under Secretary for Food, Nutrition, and Consumer Services.
2.57 Administrator, Food and Nutrition Service.

 Subpart J_Delegations of Authority by the Under Secretary for Natural 
                        Resources and Environment

2.59 Deputy Under Secretaries for Natural Resources and Environment.
2.60 Chief, Forest Service.
2.61 Chief, Natural Resources Conservation Service.

Subpart K_Delegations of Authority by the Under Secretary for Research, 
                        Education, and Economics

2.63 Deputy Under Secretary for Research, Education, and Economics.
2.65 Administrator, Agricultural Research Service.
2.66 Administrator, Cooperative State Research, Education, and Extension 
          Service.
2.67 Administrator, Economic Research Service.
2.68 Administrator, National Agricultural Statistics Service.

        Subpart L_Delegations of Authority by the Chief Economist

2.70 Deputy Chief Economist.
2.71 Director, Office of Risk Assessment and Cost-Benefit Analysis.
2.72 Chairman, World Agricultural Outlook Board.
2.73 Director, Office of Energy Policy and New Uses.

    Subpart M_Delegations of Authority by the Chief Financial Officer

2.75 Deputy Chief Financial Officer.

Subpart N_Delegations of Authority by the Under Secretary for Marketing 
                         and Regulatory Programs

2.77 Deputy Under Secretary for Marketing and Regulatory Programs.
2.79 Administrator, Agricultural Marketing Service.
2.80 Administrator, Animal and Plant Health Inspection Service.
2.81 Administrator, Grain Inspection, Packers and Stockyards 
          Administration.

   Subpart O_Delegations of Authority by the Assistant Secretary for 
                         Congressional Relations

2.83 Deputy Assistant Secretary for Congressional Relations.
2.85 Director, Office of Intergovernmental Affairs.

   Subpart P_Delegations of Authority by the Assistant Secretary for 
                             Administration

2.87 Deputy Assistant Secretary for Administration.
2.88 Director, Office of Small and Disadvantaged Business Utilization.
2.90 [Reserved]
2.91 Director, Office of Operations.
2.92 Director, Office of Human Resources Management.
2.93 Director, Office of Procurement and Property Management.
2.94 Director, Office of Planning and Coorination.
2.95 Director, Office of Ethics.

   Subpart Q_Delegations of Authority by the Chief Information Officer

2.200 Deputy Chief Information Officer.

Subpart R_Delegations of Authority by the Assistant Secretary for Civil 
                                 Rights

2.300 Director, Office of Civil Rights

    Authority: 7 U.S.C. 6912(a)(1); 5 U.S.C. 301; Reorganization Plan 
No. 2 of 1953, 3 CFR 1949-1953 Comp., p. 1024.

    Source: 60 FR 56393, Nov. 8, 1995, unless otherwise noted.



                            Subpart A_General



Sec. 2.1  Establishment of the Department.

    The Department of Agriculture was created by the Act of May 15, 
1862, and by the Act of February 9, 1889, it was made an executive 
department in the Federal Government under the supervision and control 
of the Secretary of Agriculture (7 U.S.C. 2201, 2202, 2204).



Sec. 2.2  Authority of the Secretary to prescribe regulations.

    The general authority of the Secretary to prescribe regulations 
governing the work of the Department is based on 5 U.S.C. 301 which 
provides that the head of an Executive department may prescribe 
regulations for the

[[Page 134]]

government of his department, the conduct of its employees, the 
distribution and performance of its business, and the custody, use and 
preservation of its records, papers, and property.



Sec. 2.3  Authority of the Secretary to delegate authority.

    (a) The general authority of the Secretary to make delegations of 
his authority is based on:
    (1) Section 4(a) of Reorganization Plan No. 2 of 1953 (5 U.S.C. 
App.), which provides that the Secretary of Agriculture may from time to 
time make such provisions as he shall deem appropriate authorizing the 
performance by any other officer, or by an agency or employee, of the 
Department of Agriculture of any function of the Secretary, including 
any function transferred to the Secretary by the provisions of this 
reorganization plan; and
    (2) Section 212(a)(1) of the Department of Agriculture 
Reorganization Act of 1994, Pub. L. No. 103-354, 7 U.S.C. 6912(a)(1), 
which provides that the Secretary may delegate to any agency, office, 
officer, or employee of the Department the authority to perform any 
function transferred to the Secretary under 7 U.S.C. 6912(a) or any 
other function vested in the Secretary as of the date of the enactment 
of the Act.
    (b) [Reserved]



Sec. 2.4  General officers.

    The work of the Department is under the supervision and control of 
the Secretary who is assisted by the following general officers: the 
Deputy Secretary, the Under Secretary for Farm and Foreign Agricultural 
Services; the Under Secretary for Rural Economic and Community 
Development; the Under Secretary for Food Safety; the Under Secretary 
for Food, Nutrition, and Consumer Services; the Under Secretary for 
Natural Resources and Environment; the Under Secretary for Research, 
Education, and Economics; the Under Secretary for Marketing and 
Regulatory Programs; the Assistant Secretary for Congressional 
Relations; the Assistant Secretary for Administration; the Assistant 
Secretary for Civil Rights; the General Counsel; the Inspector General; 
the Chief Financial Officer; the Chief Information Officer; the Judicial 
Officer; the Director, Office of Budget and Program Analysis; the Chief 
Economist; the Director, National Appeals Division; and the Director of 
Communications.

[68 FR 27435, May 20, 2003]



Sec. 2.5  Order in which officers of the Department shall act as 
Secretary.

    (a) Pursuant to Executive Order 13241 (66 FR 66258), as amended by 
Executive Order 13261 (67 FR 13243), during any period when both the 
Secretary and the Deputy Secretary have died, resigned, or are otherwise 
unable to perform the functions and duties of the office of the 
Secretary, the officials designated in paragraphs (a)(1) through (a)(10) 
of this section shall act as Secretary in the order in which they are 
listed. Each official shall act only in the event of the death, 
resignation, or inability to perform the duties of Secretary of the 
immediately preceding official:
    (1) The Under Secretary for Farm and Foreign Agricultural Services.
    (2) The Under Secretary for Marketing and Regulatory Programs.
    (3) The Under Secretary for Rural Development.
    (4) The Under Secretary for Food, Nutrition, and Consumer Services.
    (5) The Under Secretary for Natural Resources and Environment.
    (6) The Under Secretary for Research, Education, and Economics.
    (7) The Under Secretary for Food Safety.
    (8) The General Counsel.
    (9) The Assistant Secretary for Administration.
    (10) The Assistant Secretary for Congressional Relations.
    (b) No official who is serving in an office listed in paragraphs 
(a)(1) through (a)(10) of this section in an acting capacity shall, by 
virtue of so serving, act as Secretary pursuant to this section.
    (c) Notwithstanding the provisions of this section and Executive 
Orders 13241 and 13262, the President retains the discretion, to the 
extent permitted by Subchapter III of Chapter 33 of title 5 of the 
United States Code, to depart

[[Page 135]]

from the order of succession in paragraph (a) of this section in 
designating an acting Secretary.

[69 FR 34252, June 21, 2004]



     Subpart B_General Delegations of Authority by the Secretary of 
                               Agriculture



Sec. 2.7  Authority to supervise and direct.

    Unless specifically reserved, or otherwise delegated, the 
delegations of authority to each general officer of the Department and 
each agency head contained in this part includes the authority to direct 
and supervise the employees engaged in the conduct of activities under 
such official's jurisdiction, and the authority to take any action, 
execute any document, authorize any expenditure, promulgate any rule, 
regulation, order, or instruction required by or authorized by law and 
deemed by the general officer or agency head to be necessary and proper 
to the discharge of his or her responsibilities. This authority will be 
exercised subject to applicable administrative directives. Unless 
otherwise provided, a general officer or agency head may, subject to his 
or her continuing responsibility for the proper discharge of delegations 
made to him, in this part, delegate and provide for the redelegation of 
his or her authority to appropriate officers and employees. Subject to 
the general supervision of the Secretary, agency heads who are delegated 
authority from a general officer, in this part, report to and are under 
the supervision of that general officer.



Sec. 2.8  Delegations of authority to agency heads to order that the 
United States flag be flown at half-staff.

    Pursuant to section 5 of Proclamation 3044, 3 CFR, 1954-1958 Comp., 
p. 4, each general officer and agency head is delegated authority to 
order that the United States flag shall be flown at half-staff on 
buildings and grounds under his or her jurisdiction or control. This 
authority shall be exercised in accordance with directives promulgated 
by the Director, Office of Operations.



Sec. 2.9  Additional delegations.

    The authority granted to a general officer may be exercised in the 
discharge of any additional functions which the Secretary may assign.



Sec. 2.10  Limitations.

    The delegations made in this part shall not be construed to confer 
upon any general officer or agency head the authority of the Secretary 
to prescribe regulations which by law require approval of the President.



Sec. 2.11  New principles and periodic reviews.

    In the exercise of authority delegated by the Secretary, the 
application of new principles of major importance or a departure from 
principles established by the Secretary should be brought to the 
attention of the Secretary. General officers are responsible for 
assuring that periodic reviews are conducted of the activities of the 
agencies assigned to their direction and supervision, as required by 5 
U.S.C. 305.



Sec. 2.12  Secretary and general officers not precluded from exercising 
delegated powers.

    No delegation of authority by the Secretary or a general officer 
contained in this part shall preclude the Secretary or general officer 
from exercising any of the authority so delegated.



Sec. 2.13  Status of prior delegations.

    Nothing in this part shall affect the bylaws of the Commodity Credit 
Corporation, the Federal Crop Insurance Corporation, or the Rural 
Telephone Bank. All delegations previously made which are inconsistent 
with delegations made in this part are superseded; however, any 
regulation, order, authorization, expenditure, or other instrument, 
heretofore issued or made pursuant to any delegation of authority shall 
continue in full force and effect unless and until withdrawn or 
superseded pursuant to authority granted in this part.

[[Page 136]]



 Subpart C_Delegations of Authority to the Deputy Secretary, the Under 
                  Secretaries and Assistant Secretaries

    Editorial Note: Nomenclature changes to subpart C appear at 60 FR 
66713, Dec. 26, 1995.



Sec. 2.15  Deputy Secretary.

    The following delegation of authority is made by the Secretary of 
Agriculture to the Deputy Secretary: Perform all of the duties and 
exercise all of the powers and functions which are now or which may 
hereafter be, vested in the Secretary of Agriculture. This delegation is 
subject to the limitation in Sec. 2.10.



Sec. 2.16  Under Secretary for Farm and Foreign Agricultural Services.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Under Secretary for Farm and Foreign Agricultural 
Services:
    (1) Related to consolidated farm service. (i) Formulate policies and 
administer programs authorized by the Agricultural Adjustment Act of 
1938, as amended (7 U.S.C. 1282 et seq.).
    (ii) Formulate policies and administer programs authorized by the 
Agricultural Act of 1949, as amended (7 U.S.C. 1441 et seq.).
    (iii) Coordinate and prevent duplication of aerial photographic work 
of the Department, including:
    (A) Clearing photography projects;
    (B) Assigning symbols for new aerial photography, maintaining symbol 
records, and furnishing symbol books;
    (C) Recording departmental aerial photography flow and coordinating 
the issuance of aerial photography status maps of latest coverage;
    (D) Promoting interchange of technical information and techniques to 
develop lower costs and better quality;
    (E) Representing the Department on committees, task forces, work 
groups, and other similar groups concerned with aerial photography 
acquisition and reproduction, and serving as liaison with other 
governmental agencies on aerial photography but excluding mapping;
    (F) Providing a Chairperson for the Photography Sales Committee of 
the Department;
    (G) Coordinating development, preparation, and issuance of 
specifications for aerial photography for the Department;
    (H) Coordinating and performing procurement, inspection, and 
application of specifications for USDA aerial photography;
    (I) Providing for liaison with EROS Data Center to support USDA 
programs and research with satellite imagery reproductions; and
    (J) Maintaining library and files of USDA aerial film and retrieving 
and supplying reproductions on request.
    (iv) Administer the Agricultural Conservation Program under title X 
of the Agricultural Act of 1970, as amended (16 U.S.C. 1501 et seq.), 
and under the Soil Conservation and Domestic Allotment Act, as amended 
(16 U.S.C. 590g et seq.).
    (v) Administer the Emergency Conservation Program under the 
Agricultural Credit Act of 1978, as amended (16 U.S.C. 2201 et seq.).
    (vi) Conduct fiscal, accounting and claims functions relating to 
Commodity Credit Corporation (CCC) programs for which the Under 
Secretary for Farm and Foreign Agricultural Services has been delegated 
authority under paragraph (a)(3) of this section and, in conjunction 
with other agencies of the U.S. Government, develop and formulate 
agreements to reschedule amounts due from foreign countries.
    (vii) Conduct assigned activities under the Strategic and Critical 
Materials Stockpiling Act, as amended (50 U.S.C. 98 et seq.).
    (viii) Supervise and direct Farm Service Agency State and county 
offices and delegate functions to be performed by Farm Service Agency 
State and county committees.
    (ix) Administer the dairy indemnity program under the Act of August 
13, 1968, as amended (7 U.S.C. 450j et seq.).
    (x) Administer procurement, processing, handling, distribution, 
disposition, transportation, payment, and related services with respect 
to surplus removal and supply operations which are carried out under 
section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859),

[[Page 137]]

the Act of August 19, 1958, as amended (7 U.S.C. 1431 note), and section 
709 of the Food and Agricultural Act of 1965, as amended (7 U.S.C. 
1446a-1), except as delegated in paragraph (a)(3) of this section and to 
the Under Secretary for Food, Nutrition, and Consumer Services in Sec. 
2.19, and assist the Under Secretary for Food, Nutrition, and Consumer 
Services and the Assistant Secretary for Marketing and Regulatory 
Programs in the procurement, handling, payment, and related services 
under section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 
612c), the Act of June 28, 1937, as amended (7 U.S.C. 713c), the 
National School Lunch Act, as amended (42 U.S.C. 1751, et seq.), section 
8 of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1777), 
section 311 of the Older Americans Act of 1965, as amended (42 U.S.C. 
3030a), section 4(a) of the Agriculture and Consumer Protection Act of 
1973, as amended (7 U.S.C. 612c note), and section 1114 of the 
Agriculture and Food Act of 1981 (7 U.S.C. 1431e).
    (xi) [Reserved]
    (xii) Administer the Agricultural Foreign Investment Disclosure Act 
of 1978 (7 U.S.C. 3501 et seq.), except those functions delegated in 
Sec. 2.21(a)(8)(xi).
    (xiii) Administer energy management activities as assigned.
    (xiv) Conduct producer referenda of commodity promotion programs 
under the Beef Research and Information Act, as amended (7 U.S.C. 2901 
et seq.), and the Agricultural Promotion Programs Act of 1990, as 
amended (7 U.S.C. 6001 et seq.).
    (xv) Conduct field operations of diversion programs for fresh fruits 
and vegetables under section 32 of the Act of August 29, 1935.
    (xvi) Administer the U.S. Warehouse Act, as amended (7 U.S.C. 241-
273), and perform compliance examinations for Farm Service Agency 
programs.
    (xvii) Administer the provisions of the Soil Conservation and 
Domestic Allotment Act relating to assignment of payments (16 U.S.C. 
590h(g)).
    (xviii) Formulate and carry out the Conservation Reserve Program 
under the Food Security Act of 1985, as amended (16 U.S.C. 1231 et 
seq.).
    (xix) Carry out functions relating to highly erodible land and 
wetland conservation under sections 1211-1213 and 1221-1223 of the Food 
Security Act of 1985, as amended (16 U.S.C. 3811-3813 and 3821-3823).
    (xx) Administer the Integrated Farm Management Program under the 
Food, Agriculture, Conservation, and Trade Act of 1990, as amended (7 
U.S.C. 5822).
    (xxi) Administer the provisions of section 326 of the Food and 
Agricultural Act of 1962, as amended (7 U.S.C. 1339c), as they relate to 
any Farm Service Agency administered program.
    (xxii) Conduct an Options Pilot Program pursuant to sections 1151-
1156 of the Food, Agriculture, Conservation, and Trade Act of 1990, as 
amended (7 U.S.C. 1421 note).
    (xxiii) Formulate and administer regulations regarding program 
ineligibility resulting from convictions under Federal or State law of 
planting, cultivating, growing, producing, harvesting, or storing a 
controlled substance, as required under section 1764 of the Food 
Security Act of 1985 (21 U.S.C. 881a).
    (xxiv) Formulate policies and administer programs authorized by 
Title I of the Federal Agriculture Improvement and Reform Act of 1996.
    (xxv) Administer all programs of the Commodity Credit Corporation 
that provide assistance with respect to the production of agricultural 
commodities, including disaster assistance and the domestic marketing of 
such commodities, except as may otherwise be reserved by the Secretary 
of Agriculture.
    (xxvi) Administer the following provisions of the Farm Security and 
Rural Investment Act of 2002 with respect to functions otherwise 
delegated to the Under Secretary for Farm and Foreign Agricultural 
Services:
    (A) The equitable relief provisions of section 1613 (7 U.S.C. 7996).
    (B) The tracking of benefits under section 1614 (7 U.S.C. 7997).
    (C) The development of a plan and related report to coordinate land 
retirement and agricultural working land conservation programs under 
section 2005 (16 U.S.C. 3801 note).
    (2) Related to farm credit. (i) Administer the Consolidated Farm and 
Rural Development Act (7 U.S.C. 1921 et seq.), except for the authority 
contained in the following sections:

[[Page 138]]

    (A) The authority in section 304(b) (7 U.S.C. 1924(b)), relating to 
small business enterprise loans;
    (B) Section 306 (7 U.S.C. 1926), relating to all programs in that 
section;
    (C) Section 306A (7 U.S.C. 1926a) and section 306B (7 U.S.C. 1926b), 
relating to the emergency community water assistance grant programs;
    (D) Section 306C (7 U.S.C. 1926c) to administer the water and waste 
facility loans and grants to alleviate health risks;
    (E) Sections 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), 
regarding assets and programs related to rural development;
    (F) Section 310A (7 U.S.C. 1931), relating to watershed and resource 
conservation and development loans;
    (G) Section 310B (7 U.S.C. 1932), regarding rural industrialization 
assistance;
    (H) Section 312(b) (7 U.S.C. 1942(b)), relating to small business 
enterprises;
    (I) Section 342 (7 U.S.C. 1013a);
    (J) Section 364 (7 U.S.C. 2006f), section 365 (7 U.S.C. 2008), 
section 366 (7 U.S.C. 2008a), section 367 (7 U.S.C. 2008b), and section 
368 (7 U.S.C. 2008c), regarding assets and programs related to rural 
development; and
    (K) Administrative provisions of subtitle D of the Consolidated Farm 
and Rural Development Act related to Rural Utilities Service, Rural 
Business-Cooperative Service, and Rural Housing Service activities.
    (ii) Collect, service, and liquidate loans made or insured by the 
Farm Service Agency, or its predecessor agencies.
    (iii) Administer the Rural Rehabilitation Corporation Trust 
Liquidation Act (40 U.S.C. 440 et seq.), and trust, liquidation, and 
other agreements entered into pursuant thereto.
    (iv) [Reserved]
    (v) Administer Farmers Home Administration or any successor agency 
assets conveyed in trust under the Participation Sales Act of 1966 (12 
U.S.C. 1717).
    (vi) Administer the Emergency Loan and Guarantee Programs under 
sections 232, 234, 237, and 253 of the Disaster Relief Act of 1970 (Pub. 
L. No. 91-606), the Disaster Relief Act of 1969 (Pub. L. No. 91-79), 
Pub. L. No. 92-385, approved August 16, 1972, and the Emergency 
Livestock Credit Act of 1974 (Pub. L. No. 93-357), as amended.
    (vii) Administer loans to homestead or desertland entrymen and 
purchasers of land in reclamation projects or to an entryman under the 
desertland law (7 U.S.C. 1006a and 1006b).
    (viii) Administer the Federal Claims Collection Act of 1966, as 
amended (31 U.S.C. 3711 et seq.), and joint regulations issued pursuant 
thereto by the Attorney General and the Comptroller General (4 CFR 
chapter II), with respect to claims of the Farm Service Agency.
    (ix) Service, collect, settle, and liquidate:
    (A) Deferred land purchase obligations of individuals under the 
Wheeler-Case Act of August 11, 1939, as amended (16 U.S.C. 590y), and 
under the item, ``Water Conservation and Utilization projects'' in the 
Department of the Interior Appropriation Act, 1940 (53 Stat. 719), as 
amended;
    (B) Puerto Rican Hurricane Relief loans under the Act of July 11, 
1956 (70 Stat. 525); and
    (C) Loans made in conformance with section 4 of the Southeast 
Hurricane Disaster Relief Act of 1965 (79 Stat. 1301).
    (x) Administer loans to Indian tribes and tribal corporations (25 
U.S.C. 488-492).
    (xi) Administer the State Agricultural Loan Mediation Program under 
title 5 of the Agricultural Credit Act of 1987 (7 U.S.C. 5101 et seq.)
    (xii) Administer financial assistance programs relating to Economic 
Opportunity Loans to Cooperatives under part A of title III and part D 
of title I and the necessarily related functions in title VI of the 
Economic Opportunity Act of 1964, as amended (42 U.S.C. 2763-2768, 2841-
2855, 2942, 2943(b), 2961), delegated by the Director of the Office of 
Economic Opportunity to the Secretary of Agriculture by documents dated 
October 23, 1964 (29 FR 14764), and June 17, 1968 (33 FR 9850), 
respectively.
    (xiii) Exercise all authority and discretion vested in the Secretary 
by section 331(c) of the Consolidated Farm and Rural Development Act, as 
amended by section 2 of the Farmers Home Administration Improvement Act 
of

[[Page 139]]

1994, Pub. L. 103-248 (7 U.S.C. 1981(c)), including the following:
    (A) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the Department of Justice for the conduct 
of litigation, and refer such actions to the Department of Justice 
through the General Counsel;
    (B) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the General Counsel, for the conduct of 
litigation and refer such actions; and
    (C) Enter into contracts with private sector attorneys for the 
conduct of litigation, with the concurrence of the General Counsel, 
after determining that the attorneys will provide competent and cost 
effective representation for the Farm Service Agency.
    (xiv) Administer programs for Apple Loans and Emergency Loans for 
Seed Producers under sections 203(f) and 253, respectively, of the 
Agricultural Risk Protection Act of 2000 (7 U.S.C. 1421 note, Pub. L. 
106-224).
    (xv) Administer evaluations of direct and guaranteed loan programs 
under section 5301 of the Farm security and Rural Investment Act of 2002 
(7 U.S.C. 1922 note).
    (3) Related to foreign agriculture. (i) Coordinate the carrying out 
by Department agencies of their functions involving foreign agricultural 
policies and programs and their operations and activities in foreign 
areas. Act as liaison on these matters and functions relating to foreign 
agriculture between the Department of Agriculture and the Department of 
State, the United States Trade Representative, the Trade Policy 
Committee, the Agency for International Development, and other 
departments, agencies, and committees of the U.S. Government, foreign 
governments, the Organization for Economic Cooperation and Development, 
the European Union, the Food and Agriculture Organization of the United 
Nations, the International Bank for Reconstruction and Development, the 
Inter-American Development Bank, the Organization of American States, 
and other public and private U.S. and international organizations, and 
the contracting parties to the General Agreement on Tariffs and Trade 
(GATT) and the World Trade Organization (WTO).
    (ii) Administer Departmental programs concerned with development of 
foreign markets for agricultural products of the United States except 
functions relating to export marketing operations under section 32 of 
the Act of August 23, 1935, as amended (7 U.S.C. 612c), delegated to the 
Assistant Secretary for Marketing and Regulatory Programs, and 
utilization research delegated to the Under Secretary for Research, 
Education, and Economics.
    (iii) Conduct studies of worldwide production, trade, marketing, 
prices, consumption, and other factors affecting exports and imports of 
U.S. agricultural commodities; obtain information on methods used by 
other countries to move farm commodities in world trade on a competitive 
basis for use in the development of programs of this Department; provide 
information to domestic producers, the agricultural trade, the public 
and other interests; and promote normal commercial markets abroad. This 
delegation excludes basic and long-range analyses of world conditions 
and developments affecting supply, demand, and trade in farm products 
and general economic analyses of the international financial and 
monetary aspects of agricultural affairs as assigned to the Under 
Secretary for Research, Education, and Economics.
    (iv) Conduct functions of the Department relating to GATT, WTO, the 
Trade Expansion Act of 1962 (19 U.S.C. 1801 et seq.), the Trade Act of 
1974 (19 U.S.C. 2101 et seq.), the Trade Agreements Act of 1979 (19 
U.S.C. 2501 et seq.), the Omnibus Trade and Competition Act of 1988 (19 
U.S.C. 2901 et seq.), the provisions of subtitle B of title III of the 
North American Free Trade Agreement Implementation Act, and other 
legislation affecting international agricultural trade including the 
programs designed to reduce foreign tariffs and other trade barriers.
    (v) Maintain a worldwide agricultural intelligence and reporting 
system, including provision for foreign agricultural representation 
abroad to protect and promote U.S. agricultural interests, and to 
acquire information on demand, competition, marketing, and

[[Page 140]]

distribution of U.S. agricultural commodities abroad pursuant to title 
VI of the Agricultural Act of 1954, as amended (7 U.S.C. 1761-1768).
    (vi) Conduct Department activities to carry out the provisions of 
the International Coffee Agreement Act of 1968 (19 U.S.C. 1356f).
    (vii) Administer functions of the Department relating to import 
controls, except those functions reserved to the Secretary in paragraph 
(b) of this section and those relating to section 8e of the Agricultural 
Act of 1938 (7 U.S.C. 608e-1), as assigned to the Assistant Secretary 
for Marketing and Regulatory Programs. These include:
    (A) Functions under section 22 of the Agricultural Adjustment Act of 
1933, as amended (7 U.S.C. 624);
    (B) General note 15(c) to the Harmonized Tariff Schedule of the 
United States (19 U.S.C. 1202);
    (C) Requests for emergency relief from duty-free imports of 
perishable products filed with the Department of Agriculture under 
section 213(f) of the Caribbean Basin Recovery Act of 1983 (19 U.S.C. 
2703(f));
    (D) Section 404 of the Trade and Tariff Act of 1984 (19 U.S.C. 2112 
note);
    (E) Section 204(e) of the Andean Trade Preference Act (19 U.S.C. 
3203(e));
    (F) Functions under sections 309 and 316 of the North American Free 
Trade Agreement Implementation Act (19 U.S.C. 3358 and 3381);
    (G) Section 301(a) of the United States-Canada Free Trade Agreement 
Implementation Act (19 U.S.C. 2112 note); and
    (H) Section 204 of the Agricultural Act of 1956, as amended (7 
U.S.C. 1854).
    (viii) Represent the Department on the Interdepartmental Committee 
for Export Control and to conduct departmental activities to carry out 
the provisions of the Export Administration Act of 1969, as amended (50 
U.S.C. App. 2401 et seq.), except as reserved to the Secretary under 
paragraph (b)(2) of this section.
    (ix) Exercise the Department's responsibilities in connection with 
international negotiations of the International Wheat Agreement and in 
the administration of such Agreement.
    (x) Plan and carry out programs and activities under the foreign 
market promotion authority of: the Wheat Research and Promotion Act (7 
U.S.C. 1292 note); the Cotton Research and Promotion Act (7 U.S.C. 2101-
2118); the Potato Research and Promotion Act (7 U.S.C. 2611-2627); the 
Egg Research and Consumer Information Act of 1974 (7 U.S.C. 2701-2718); 
the Beef Research and Information Act, as amended (7 U.S.C. 2901-2918); 
the Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 
3401-3417); the Floral Research and Consumer Information Act of 1981 (7 
U.S.C. 4301-4319); subtitle B of title I of the Dairy and Tobacco 
Adjustment Act of 1983 (7 U.S.C. 4501-4513); the Honey Research, 
Promotion, and Consumer Information Act of 1984, as amended (7 U.S.C. 
4601-4612); the Pork Promotion, Research, and Consumer Information Act 
of 1985 (7 U.S.C. 4801-4819); the Watermelon Research and Promotion Act, 
as amended (7 U.S.C. 4901-4916); the Pecan Promotion and Research Act of 
1990 (7 U.S.C. 6001-6013); the Mushroom Promotion, Research, and 
Consumer Information Act of 1990 (7 U.S.C. 6101-6112); the Lime 
Research, Promotion, and Consumer Information Act of 1990 (7 U.S.C. 
6201-6212); the Soybean Promotion, Research, and Consumer Information 
Act of 1990 (7 U.S.C. 6301-6311); the Fluid Milk Promotion Act of 1990 
(7 U.S.C. 6401-6417); the Fresh Cut Flowers and Fresh Cut Greens 
Promotion and Consumer Information Act (7 U.S.C. 6801-6814); the Sheep 
Promotion, Research, and Information Act of 1994 (7 U.S.C. 7101-7111); 
the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 
7411-7425); the Canola and Rapeseed Research, Promotion, and Consumer 
Information Act (7 U.S.C. 7441-7452); the National Kiwifruit Research, 
Promotion, and Consumer Information Act (7 U.S.C. 7461-7473); and, the 
Popcorn Promotion, Research, and Consumer Information Act (7 U.S.C. 
7481-7491). This authority includes determining the programs and 
activities to be undertaken and assuring that they are coordinated with 
the overall departmental programs to develop foreign markets for U.S. 
agricultural products.

[[Page 141]]

    (xi) Formulate policies and administer barter programs under which 
agricultural commodities are exported.
    (xii) Perform functions of the Department in connection with the 
development and implementation of agreements to finance the sale and 
exportation of agricultural commodities under Public Law 480, 83rd 
Congress, hereafter referred to as ``Public Law 480'' (7 U.S.C. 1691, 
1701 et seq.).
    (xiii) Administer commodity procurement and supply, transportation 
(other than from point of export, except for movement to trust 
territories or possessions), handling, payment, and related services in 
connection with programs under titles II and III of Public Law 480 (7 
U.S.C. 1691, 1701 et seq.), and payment and related services with 
respect to export programs and barter operations.
    (xiv) Coordinate within the Department activities arising under 
Public Law 480 (except as delegated to the Under Secretary for Research, 
Education, and Economics in Sec. 2.21(a)(8)), and represent the 
Department in its relationships in such matters with the Department of 
State, any interagency committee on Public Law 480, and other 
departments, agencies and committees of the Government.
    (xv) Formulate policies and implement programs to promote the export 
of dairy products, as authorized under section 153 of the Food Security 
Act of 1985, as amended (15 U.S.C. 713a-14), and of sunflowerseed oil 
and cottonseed oil, as authorized under section 301(b)(2)(A) of the 
Disaster Assistance Act of 1988, as amended (7 U.S.C. 1464 note).
    (xvi) Formulate policies and implement a program for the export 
sales of dairy products, as authorized by section 1163 of the Food 
Security Act of 1985 (7 U.S.C. 1731 note).
    (xvii) Carry out activities relating to the sale, reduction, or 
cancellation of debt, as authorized by title VI of the Agricultural 
Trade and Development Act of 1954, as amended (7 U.S.C. 1738 et seq.).
    (xviii) Carry out debt-for-health-and-protection swaps, as 
authorized by section 1517 of the Food, Agriculture, Conservation, and 
Trade Act of 1990 (7 U.S.C. 1706).
    (xix) Determine the agricultural commodities acquired under price 
support programs which are available for export and allocate such 
commodities among the various export programs.
    (xx) Conduct economic analyses pertaining to the foreign sugar 
situation.
    (xxi) Exercise the Department's functions with respect to the 
International Sugar Agreement or any such future agreements.
    (xxii) Exercise the Department's responsibilities with respect to 
tariff-rate quotes for dairy products under chapter 4 of the Harmonized 
Tariff Schedule of the United States (19 U.S.C. 1202).
    (xxiii) Serve as a focal point for handling quality or weight 
discrepancy inquiries from foreign buyers of U.S. agricultural 
commodities to insure that they are investigated and receive a timely 
response and that reports thereof are made to appropriate parties and 
government officials in order that corrective action may be taken.
    (xxiv) Establish and administer regulations relating to foreign 
travel by employees of the Department. Regulations will include, but not 
be limited to, obtaining and controlling passports, obtaining visas, 
coordinating Department of State medical clearances and imposing 
requirements for itineraries and contacting the Foreign Agricultural 
Affairs Officers upon arrival in the Officers' country(ies) of 
responsibility.
    (xxv) Formulate policies and administer programs and activities 
authorized by the Agricultural Trade Act of 1978, as amended (7 U.S.C. 
5601 et seq.).
    (xxvi) Administer the Foreign Service personnel system for the 
Department in accordance with 22 U.S.C. 3922, except as otherwise 
delegated to the Assistant Secretary for Marketing and Regulatory 
Programs in Sec. 2.22(a)(2)(i), but including authority to approve 
joint regulations issued by the Department of State and authority to 
represent the Department of Agriculture in all interagency consultations 
and negotiations with the other foreign affairs agencies with respect to 
joint regulations.
    (xxvii) Establish and maintain U.S. Agricultural Trade Offices, to 
develop, maintain and expand international

[[Page 142]]

markets for U.S. agricultural commodities in accordance with title IV of 
Pub. L. No. 95-501 (7 U.S.C. 1765a-g).
    (xxviii) Administer the programs under section 416(b) of the 
Agricultural Act of 1949, as amended (7 U.S.C. 1431(b)), relating to the 
foreign donation of CCC stocks of agricultural commodities.
    (xxix)-(xxx) [Reserved]
    (xxxi) Administer programs under the Food for Progress Act of 1985 
(7 U.S.C. 1736o).
    (xxxii) Serve as Department adviser on policies, organizational 
arrangements, budgets, and actions to accomplish international 
scientific and technical cooperation in food and agriculture.
    (xxxiii) Administer and direct the Department's programs in 
international development, technical assistance, and training carried 
out under the Foreign Assistance Act, as amended, as requested under 
such act (22 U.S.C. 2151 et seq.).
    (xxxiv) Administer and coordinate assigned Departmental programs in 
international research and scientific and technical cooperation with 
other governmental agencies, land grant universities, international 
organizations, international agricultural research centers, and other 
institutions (7 U.S.C. 1624, 3291).
    (xxxv) Direct and coordinate the Department's participation in 
scientific and technical matters and exchange agreements between the 
United States and other countries.
    (xxxvi) Direct and coordinate the Department's work in international 
organizations and interagency committees concerned with food and 
agricultural development programs (7 U.S.C. 2201-2202).
    (xxxvii) Coordinate policy formulation for USDA international 
science and technology programs concerning international agricultural 
research centers, international organizations, and international 
agricultural research and extension activities (7 U.S.C. 3291).
    (xxxviii) Disseminate, upon request, information on subjects 
connected with agriculture which has been acquired by USDA agencies that 
may be useful to the U.S. private sector in expanding foreign markets 
and investment opportunities through the operation of a Department 
information center, pursuant to 7 U.S.C. 2201.
    (xxxix) Enter into contracts, grants, cooperative agreements, and 
cost reimbursable agreements relating to agricultural research, 
extension, or teaching activities (7 U.S.C. 3318, 3319a).
    (xl) Determine amounts reimbursable for indirect costs under 
international agricultural programs and agreements (7 U.S.C. 3319).
    (xli) Administer the Cochran Fellowship Program (7 U.S.C. 3293).
    (xlii) Determine quantity trigger levels and impose additional 
duties under the special safeguard measures in accordance with U.S. note 
2 to subchapter IV of chapter 99 of the Harmonized Tariff Schedule of 
the United States (19 U.S.C. 1202).
    (xliii) Implement provisions of the Trade Act of 1974 regarding 
adjustment assistance for farmers (19 U.S.C. 2401-2401g).
    (xliv) Implement section 3107 of the Farm Security and Rural 
Investment Act of 2002 (7 U.S.C. 173o-1), expect for the authority to 
designate Federal agencies under section 3107(d) that is reserved to the 
President.
    (4) Related to risk management. (i) Exercise general supervision of 
the Federal Crop Insurance Corporation.
    (ii) Appoint such officers and employees as may be necessary for the 
transaction of the business of the Federal Crop Insurance Corporation 
and the Risk Management Agency.
    (iii) Conduct pilot programs involving revenue insurance, risk 
management savings accounts, or the use of futures markets to manage 
risk and support farm income.
    (iv) Provide education in management of the financial risks inherent 
in the production and marketing of agricultural commodities.
    (5) Related to committee management. Establish and reestablish 
regional, state, and local advisory committees for activities under his 
or her authority. This authority may not be redelegated.
    (6) Related to defense and emergency preparedness. Administer 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.),

[[Page 143]]

and title VI of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5195 et seq.), concerning agricultural 
production; food processing, storage, and distribution; distribution of 
farm equipment and fertilizer; rehabilitation and use of food, 
agricultural and related agribusiness facilities; CCC resources; farm 
credit and financial assistance; and foreign agricultural intelligence 
and other foreign agricultural matters.
    (7) Related to environmental response. With respect to land and 
facilities under his or her authority, exercise the functions delegated 
to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, 
under the following provisions of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (``the Act''), as 
amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petition for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (8) Related to compliance with environmental laws. With respect to 
facilities and activities under his or her authority, to exercise the 
authority of the Secretary of Agriculture pursuant to section 1-102 
related to compliance with applicable pollution control standards and 
section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to 
enter into an inter-agency agreement with the United States 
Environmental Protection Agency, or an administrative consent order or a 
consent judgment in an appropriate State, interstate, or local agency, 
containing a plan and schedule to achieve and maintain compliance with 
applicable

[[Page 144]]

pollution control standards established pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (9) Related to hazardous materials management. (i) Serve on the USDA 
Hazardous Materials Policy Council.
    (ii) Recommend actions and policies that enable USDA agencies under 
his or her authority to comply with the intent, purposes, and standards 
of environmental laws for pollution prevention, control, and abatement.
    (iii) Consult with the United States Environmental Protection Agency 
and other appropriate Federal agencies in developing pollution 
prevention, control, and abatement policies and programs relating to 
agencies under his or her authority.
    (iv) Recommend actions and policies of the loan and grant programs 
under his or her authority concerning compliance with the Asset 
Conservation, Lender Liability, and Deposit Insurance Protection Act of 
1996, Subtitle E of Public Law No. 104-208.
    (b) The following authorities are reserved to the Secretary of 
Agriculture:
    (1) Related to farm service. (i) Appointment of Farm Service Agency 
State committeemen.
    (ii) Final approval of regulations relating to the selection and 
exercise of the functions of committees promulgated under section 8(b) 
of the Soil Conservation and Domestic Allotment Act, as amended (16 
U.S.C. 590h(b)).
    (2) Related to foreign agriculture. (i) Approving export controls 
with respect to any agricultural commodity, including fats and oils or 
animal hides or skins as provided for in the Export Administration Act 
of 1969, as amended (50 U.S.C. App. 2401 et seq.).
    (ii) Advising the President that imports are having the effect on 
programs or operations of this Department required as a prerequisite for 
the imposition of import controls under section 22 of the Agricultural 
Adjustment Act of 1933, as amended (7 U.S.C. 624a), recommending that 
the President cause an investigation to be made by the Tariff Commission 
of the facts so that a determination can be made whether import 
restrictions should be imposed under that Act, and determining under 
section 204(e) of the Andean Trade Preference Act (19 U.S.C. 3203(e)) 
that there exists a serious injury, or threat thereof and recommending 
to the President whether or not to take action.
    (iii) Determining the agricultural commodities and the quantities 
thereof available for disposition under Public Law 480 (7 U.S.C. 1731).
    (3) Related to risk management. (i) Appointment of those members of 
the Board of Directors of the Federal Crop Insurance Corporation who are 
not already otherwise employed by the Department of Agriculture, and as 
authorized in 7 U.S.C. 1505(a) designating an Under Secretary of 
Agriculture to be a member of the Board in addition to the Under 
Secretary responsible for the Federal crop insurance program who is a 
Board member pursuant to 7 U.S.C. 1505(a).
    (ii) Appointment of the Administrator of the Risk Management Agency 
who also shall serve as the Manager of the Federal Crop Insurance 
Corporation.

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25775, May 23, 1996; 61 
FR 37552, July 18, 1996; 62 FR 1031, Jan. 8, 1997; 62 FR 19900, Apr. 24, 
1997; 62 FR 40253, July 28, 1997; 65 FR 12427, Mar. 9, 2000; 68 FR 
27435, May 20, 2003]

[[Page 145]]



Sec. 2.17  Under Secretary for Rural Development.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Under Secretary for Rural Economic and Community 
Development:
    (1) Provide leadership and coordination within the executive branch 
of a Nationwide Rural Development Program utilizing the services of 
executive branch departments and agencies and the agencies, bureaus, 
offices, and services of the Department of Agriculture in coordination 
with rural development programs of State and local governments (7 U.S.C. 
2204).
    (2) Coordinate activities relative to rural development among 
agencies reporting to the Under Secretary for Rural Economic and 
Community Development and, through appropriate channels, serve as the 
coordinating official for other departmental agencies having primary 
responsibilities for specific titles of the Rural Development Act of 
1972, and allied legislation.
    (3) Administer a national program of economic, social, and 
environmental research and analysis, statistical programs, and 
associated service work related to rural people and the communities in 
which they live including rural industrialization; rural population and 
manpower; local government finance; income development strategies; 
housing; social services and utilization; adjustments to changing 
economic and technical forces; and other related matters.
    (4) Work with Federal agencies in encouraging the creation of rural 
community development organizations.
    (5) Assist other Federal agencies in making rural community 
development organizations aware of the Federal programs available to 
them.
    (6) Advise rural community development organizations of the 
availability of Federal assistance programs.
    (7) Advise other Federal agencies of the need for particular Federal 
programs.
    (8) Assist rural community development organizations in making 
contact with Federal agencies whose assistance may be of benefit to 
them.
    (9) Assist other Federal agencies and national organizations in 
developing means for extending their services effectively to rural 
areas.
    (10) Assist other Federal agencies in designating pilot projects in 
rural areas.
    (11) Conduct studies to determine how programs of the Department can 
be brought to bear on the economic development problems of the country 
and assure that local groups are receiving adequate technical assistance 
from Federal agencies or from local and State governments in formulating 
development programs and in carrying out planned development activities.
    (12) Assist other Federal agencies in formulating manpower 
development and training policies.
    (13) Related to committee management. Establish and reestablish 
regional, state, and local advisory committees for activities under his 
or her authority. This authority may not be re-delegated.
    (14) Related to defense and emergency preparedness. Administer 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.), and title VI of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5195 et seq.), concerning rural development credit and financial 
assistance.
    (15) Related to energy. (i) Provide Department-wide operational 
support and coordination for loan and grant programs to foster and 
encourage the production of fuels from agricultural and forestry 
products or by-products.
    (ii) Participate as a Department representative at conferences, 
meetings and other contacts including liaison with the Department of 
Energy and other government agencies and departments with respect to 
implementation of established Department energy policy.
    (iii) Serve as Co-Chairperson of the Energy Coordinating Committee 
of the Department.
    (16) Collect, service, and liquidate loans made, insured, or 
guaranteed by the Rural Utilities Service, the Rural Housing Service, 
the Rural Business-Cooperative Service, or their predecessor agencies.
    (17) Administer the Federal Claims Collection Act of 1966 (31 U.S.C. 
3711 et

[[Page 146]]

seq.), and joint regulations issued pursuant thereto by the Attorney 
General and the Comptroller General (4 CFR chapter II), with respect to 
claims of the Rural Housing Service, the Rural Business-Cooperative 
Service and the Rural Utilities Service.
    (18) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (19) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);

[[Page 147]]

    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (20) Related to rural utilities service. (i) Administer the Rural 
Electrification Act of 1936, as amended (7 U.S.C. 901 et seq.) except 
for rural economic development loan and grant programs; (7 U.S.C. 940c 
and 950aa et seq.): Provided, however, that the Under Secretary may 
utilize consultants and attorneys for the provision of legal services 
pursuant to 7 U.S.C. 918, with the concurrence of the General Counsel.
    (ii) Administer the Rural Electrification Act of 1938 (7 U.S.C. 903 
note).
    (iii) Designate the chief executive officer of the Rural Telephone 
Bank.
    (iv) Administer the following sections of the Consolidated Farm and 
Rural Development Act (7 U.S.C. 1921, et seq.):
    (A) Section 306 (7 U.S.C. 1926), related to water and waste 
facilities.
    (B) Section 306A (7 U.S.C. 1926a).
    (C) Section 306B (7 U.S.C. 1926b).
    (D) Section 306C (7 U.S.C. 1926c).
    (E) Section 306D (7 U.S.C. 1926d).
    (F) Section 306E (7 U.S.C. 1926e).
    (G) Section 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), relating 
to assets and programs related to watershed facilities, resource and 
conservation facilities, and water and waste facilities.
    (H) Section 310A (7 U.S.C. 1931), relating to watershed and resource 
conservation and development
    (I) Section 310B(b) (7 U.S.C. 1932(b)).
    (J) Section 310B(i) (7 U.S.C. 1932(i)), relating to loans for 
business telecommunications partnerships.
    (K) Administrative Provisions of subtitle D of the consolidated Farm 
and Rural Development act relating to rural utility activities.
    (L) Section 379B (7 U.S.C. 2008p).
    (v) Administer section 8, and those functions with respect to 
repayment of obligations under section 4 of the Watershed Protection and 
Flood Prevention Act (16 U.S.C. 1006a, 1004) and administer the Resource 
Conservation and Development Program to assist in carrying out resource 
conservation and development projects in rural areas under section 32(e) 
of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1011(e)).
    (vi) Administer the Water and Waste Loan Program (7 U.S.C. 1926-1).
    (vii) Administer the Rural Wastewater Treatment Circuit Rider 
Program (7 U.S.C. 1926 note).
    (viii) Administer the Distance Learning and Medical Link Programs (7 
U.S.C. 950aaa et seq.).
    (ix) Administer Water and Waste Facility Programs and activities (7 
U.S.C. 1926-1).
    (x) Administer the SEARCH Grants for Small Communities Program (7 
U.S.C. 2009ee et seq.)
    (21) Related to rural business-cooperative. (i) Administer the Rural 
Economic Development Loan and Grant Programs under the Rural 
Electrification Act (7 U.S.C. 940c and 950aa et seq.).
    (ii) Administer the following sections of the Consolidated Farm and 
Rural Development Act (7 U.S.C. 1921 et seq.):
    (A) Section 306(a)(110(A) (7 U.S.C. 1926(a)(11)(A)), relating to 
grants for business technical assistance and planning.
    (B) Section 304(b) (7 U.S.C. 1924(b)), relating to small business 
enterprises.
    (C) Sections 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), relating 
to assets and programs related to rural development.
    (D) Section 310B (7 U.S.C. 1932), relating to rural 
industrialization assistance, rural business enterprises grants and 
rural technology and cooperative development grants.
    (E) Section 312(b) (7 U.S.C. 1942(b)), relating to small business 
enterprises.
    (F) Administrative Provisions of subtitle D of the Consolidated Farm 
and Rural Development Act relating to rural business-cooperative 
activities.

[[Page 148]]

    (G) Section 378 (7 U.S.C. 2008m) relating to the National Rural 
Development Partnership;
    (H) Section 384A et seq. (7 U.S.C. 2009cc et seq.) relating to the 
Rural Business Investment Program;
    (I) Section 385A et seq. (7 U.S.C. 2009dd et seq.) relating to Rural 
Strategic Investment Program.
    (iii) Administer Alcohol Fuels Credit Guarantee Program Account 
(Pub. L. 102-341, 106 Stat. 895).
    (iv) Administer section 1323 of the Food Security Act of 1985 (7 
U.S.C. 1932 note).
    (v) Administer loan programs in the Appalachian region under 
sections 203 and 204 of the Appalachian Regional Development Act of 1965 
(40 U.S.C. App. 204).
    (vi) Administer section 601 of the Powerplant and Industrial Fuel 
Use Act of 1978 (Pub. L. 95-620).
    (vii) Administer the Drought and Disaster Guaranteed Loan Program 
under section 331 of the Disaster Assistance Act of 1988 (7 U.S.C. 1929a 
note).
    (viii) Administer the Disaster Assistance for Rural Business 
Enterprises Guaranteed Loan Program under section 401 of the Disaster 
Assistance Act of 1989 (7 U.S.C. 1929a note).
    (ix) Administer the Rural Economic Development Demonstration Grant 
Program (7 U.S.C. 2662a).
    (x) Administer the Economically Disadvantaged Rural Community Loan 
Program (7 U.S.C. 6616).
    (xi) Administer the assets of the Alternative Agricultural Research 
and Commercialization Corporation and the funds in the Alternative 
Agricultural Research and Commercialization Fund in accordance with 
section 6201 of the Farm Security and Rural Investment Act of 2000 (note 
to 7 U.S.C. 5901 (repealed)).
    (xii) Administer programs authorized by the Cooperative Marketing 
Act of 1926 (7 U.S.C. 451-457).
    (xiii) Carry out the responsibilities of the Secretary of 
Agriculture relating to the marketing aspects of cooperatives, including 
economic research and analysis, the application of economic research 
findings, technical assistance to existing and developing cooperatives, 
education on cooperatives, and statistical information pertaining to 
cooperatives as authorized by the Agricultural Marketing Act of 1946 (7 
U.S.C. 1621-1627).
    (xiv) Work with institutions and international organizations 
throughout the world on subjects related to the development and 
operation of agricultural cooperatives. Such work may be carried out by:
    (A) Exchanging materials and results with such institutions or 
organizations;
    (B) Engaging in joint or coordinated activities; or
    (C) Stationing representatives at such institutions or organizations 
in foreign countries (7 U.S.C. 3291).
    (xv) Administer in rural areas the process of designation, provision 
of monitoring and oversight, and provision of technical assistance for 
Empowerment Zones and Enterprise Communities pursuant to section 13301 
of Public Law 103-66, Omnibus Budget Reconciliation Act of 1993 (26 
U.S.C. 1391 et seq.)
    (xvi) Work with Federal agencies in encouraging the creation of 
local rural community development organizations. Within a State, assist 
other Federal agencies in developing means for extending their services 
effectively to rural areas and in designating pilot projects in rural 
areas (7 U.S.C. 2204).
    (xvii) Conduct assessments to determine how programs of the 
Department can be brought to bear on the economic development problems 
of a State or local area and assure that local groups are receiving 
adequate and effective technical assistance from Federal agencies or 
from local and State governments in formulating development programs and 
in carrying out planned development activities (7 U.S.C. 2204b).
    (xviii) Develop a process through which State, sub-state and local 
rural development needs, goals, objectives, plans, and recommendations 
can be received and assessed on a continuing basis (7 U.S.C. 2204b).
    (xix) Prepare local or area-wide rural development strategies based 
on the needs, goals, objectives, plans and recommendations of local 
communities, sub-state areas and States (7 U.S.C. 2204b).
    (xx) Develop a system of outreach in the State or local area to 
promote

[[Page 149]]

rural development and provide for the publication and dissemination of 
information, through multi-media methods, relating to rural development. 
Advise local rural development organizations of availability of Federal 
programs and the type of assistance available, and assist in making 
contact with Federal program (7 U.S.C. 2204; 7 U.S.C. 2204b).
    (xxi) Administer the Value-Added Agricultural Product Market 
Development Grant program (note to 7 U.S.C. 1621).
    (xxii) Administer the Agriculture Innovation Center Demonstration 
program (note to 7 U.S.C. 1621).
    (xxiii) Administer the Renewable Energy System and Energy Efficiency 
Improvements program (7 U.S.C. 8106).
    (22) Related to rural housing. (i) Administer the following under 
the Consolidated Farm and Rural Development Act ( 7 U.S.C. 1921 et 
seq.):
    (A) Section 306 (7 U.S.C. 1926), except with respect to financing 
for water and waste disposal facilities; or loans for rural 
electrification or telephone systems or facilities other than 
hydroelectric generating and related distribution systems and 
supplemental and supporting structures if they are eligible for Rural 
Utilities Service financing; and financing for grazing facilities and 
irrigation and drainage facilities; and subsection 306(a)(11).
    (B) Section 309A (7 U.S.C. 1929a), regarding assets and programs 
relating to community facilities.
    (C) Administrative Provisions of subtitle D of the Consolidated Farm 
and Rural Development Act relating to rural housing activities.
    (D) Section 379 (7 U.S.C. 2008n) relating to the Rural Telework 
program;
    (E) Section 379A (7 U.S.C. 2008o) relating to the Historic Barn 
Preservation program; and
    (F) Section 379C (7 U.S.C. 2008q) relating to the Farm Workers 
Training Grant program.
    (ii) Administer title V of the Housing Act of 1949 (42 U.S.C. 1471 
et seq.), except those functions pertaining to research.
    (iii) Make grants, administer a grant program, and determine the 
types of assistance to be provided to aid low-income migrant and 
seasonal farmworkers (42 U.S.C. 5177a).
    (iv) Administer the Rural Housing Disaster Program under sections 
232, 234, and 253 of the Disaster Relief Act of 1970 (Pub. L. No. 91-
606).
    (v) Exercise all authority and discretion vested in the Secretary by 
section 510(d) of the Housing Act of 1949, as amended by section 1045 of 
the Stewart B. McKinney Homeless Assistance Amendments Act of 1988, Pub. 
L. 100-628 (42 U.S.C. 1480(d)), including the following:
    (A) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the Department of Justice for the conduct 
of litigation, and refer such actions to the Department of Justice 
through the General Counsel;
    (B) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the General Counsel for the conduct of 
litigation and refer such actions; and
    (C) Enter into contracts with private sector attorneys for the 
conduct of litigation, with the concurrence of the General Counsel, 
after determining that the attorneys will provide competent and cost 
effective representation for the Rural Housing Service and 
representation by the attorney will either accelerate the process by 
which a family or person eligible for assistance under section 502 of 
the Housing Act of 1949 will be able to purchase and occupy the housing 
involved, or preserve the quality of the housing involved.
    (vi) Administer the Rural Firefighters and Emergency Personnel Grant 
program (7 U.S.C. 2655).
    (23) Related to hazardous materials management. (i) Serve on the 
USDA Hazardous Materials Policy Council.
    (ii) Recommend actions and policies that enable USDA agencies under 
his or her authority to comply with the intent, purposes, and standards 
of environmental laws for pollution prevention, control, and abatement.
    (iii) Consult with the United States Environmental Protection Agency 
and other appropriate Federal agencies in developing pollution 
prevention, control, and abatement policies and programs relating to 
agencies under his or her authority.
    (iv) Recommend actions and policies of the loan and grant programs 
under

[[Page 150]]

his or her authority concerning compliance with the Asset Conservation, 
Lender Liability, and Deposit Insurance Protection Act of 1996, Subtitle 
E of Public Law No. 104-208.
    (24) Administer the Biorefinery Development Grant program (7 U.S.C. 
8103).
    (25) Administer the Energy Audit and Renewable Energy Development 
program (7 U.S.C. 8105).
    (26) Related cooperative agreements. Enter into cooperative 
agreements with other Federal agencies, State and local governments, and 
any other organizations or individuals to improve the coordination and 
effectiveness of Federal programs, services, and actions affecting rural 
areas, including the establishment and financing of interagency groups, 
as long as the objectives of the agreement will serve the mutual 
interest of the parties in rural development activities (7 U.S.C. 
2204b(b)(4)).
    (b) The following authority is reserved to the Secretary of 
Agriculture:
    (1) Related to rural business-cooperative. Submission to the 
Congress of the report required pursuant to section 1469 of Pub. L. No. 
101-624.
    (2) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 65 FR 12427, Mar. 9, 2000; 66 
FR 31107, June 11, 2001; 68 FR 27436, May 20, 2003]



Sec. 2.18  Under Secretary for Food Safety.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Under Secretary for Food Safety:
    (1) Related to food safety and inspection. (i) Exercise the 
functions of the Secretary of Agriculture contained in the Agricultural 
Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), relating to 
voluntary inspection of poultry and edible products thereof; voluntary 
inspection and certification of technical animal fat; certified products 
for dogs, cats, and other carnivora; voluntary inspection of rabbits and 
edible products thereof; and voluntary inspection and certification of 
edible meat and other products.
    (ii) Exercise the functions of the Secretary of Agriculture 
contained in the following legislation:
    (A) Poultry Products Inspection Act, as amended (21 U.S.C. 451-470);
    (B) Federal Meat Inspection Act, as amended, and related 
legislation, excluding sections 12-14, and also excluding so much of 
section 18 as pertains to issuance of certificates of condition of live 
animals intended and offered for export (21 U.S.C. 601-611, 615-624, 
641-645, 661, 671-680, 691-692, 694-695);
    (C) Egg Products Inspection Act, except for the Shell Egg 
Surveillance Program, voluntary laboratory analyses of egg products, and 
the Voluntary Egg Grading Program (21 U.S.C. 1031-1056);
    (D) Talmadge-Aiken Act (7 U.S.C. 450) with respect to cooperation 
with States in administration of the Federal Meat Inspection Act and the 
Poultry Products Inspection Act;
    (E) Humane Slaughter Act (7 U.S.C. 1901-1906);
    (F) National Laboratory Accreditation Program (7 U.S.C. 138-138i) 
with respect to laboratories accredited only for pesticide residue 
analysis in meat and poultry products;
    (G) Administer and conduct a Food Safety Research Program (7 U.S.C. 
427); and
    (H) Conduct an education program regarding the availability and 
safety of processes and treatments that eliminate or substantially 
reduce the level of pathogens on meat, meat food products, poultry, and 
poultry products (21 U.S.C. 679b).
    (iii) Coordinate with the Assistant Secretary for Marketing and 
Regulatory Programs the administration of programs relating to human 
pathogen reduction (such as salmonella enteritidis) pursuant to section 
2 of the Act of February 2, 1903, as amended (21 U.S.C. 111), and 
sections 4 and 5 of the Act of May 29, 1884, as amended (21 U.S.C. 120).
    (iv) Enter into contracts, grants, or cooperative agreements to 
further research programs in the agricultural sciences (7 U.S.C. 3318).
    (2) Related to committee management. Establish and reestablish 
regional, State, and local advisory committees for activities under his 
or her authority. This authority may not be redelegated.

[[Page 151]]

    (3) Related to defense and emergency preparedness. Administer 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.), and title VI of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5195 et seq.), concerning the wholesomeness of meat and poultry 
and products thereof and inspection of eggs and egg products.
    (4) Related to biotechnology. Coordinate the development and 
carrying out by Department agencies of all matters and functions 
pertaining to the Department's regulation of biotechnology as they may 
affect the safety of meat, poultry or egg products.
    (5) Related to environmental response. With respect to land and 
facilities under his or her authority, exercise the functions delegated 
to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, 
under the following provisions of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (``the Act''), as 
amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (6) Related to compliance with environmental laws. With respect to 
facilities and activities under his or her authority, to exercise the 
authority of the Secretary of Agriculture pursuant to section 1-102 
related to compliance with applicable pollution control standards and 
section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to 
enter into an inter-agency agreement with the United States 
Environmental Protection Agency, or an

[[Page 152]]

administrative consent order or a consent judgment in an appropriate 
State, interstate, or local agency, containing a plan and schedule to 
achieve and maintain compliance with applicable pollution control 
standards established pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (7) Related to hazardous materials management. (i) Serve on the USDA 
Hazardous Materials Policy Council.
    (ii) Recommend actions and policies that enable the USDA agency 
under his or her authority to comply with the intent, purposes, and 
standards of environmental laws for pollution prevention, control, and 
abatement.
    (iii) Consult with the United States Environmental Protection Agency 
and other appropriate Federal agencies in developing pollution 
prevention, control, and abatement policies and programs relating to 
agencies under his or her authority.
    (iv) Exercise primary responsibility to regulate drug, pesticide, 
and environmental contaminants in food products as covered by the 
Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 
U.S.C. 136 et seq.), including the Food Quality Protection Act of 1996, 
Public Law 104-170, and the Toxic Substances Control Act, as amended (15 
U.S.C. 2601 et seq.), as implemented by the Food Safety and Inspection 
Service through a Memorandum of Understanding with the United States 
Department of Health and Human Services, Food and Drug Administration, 
and the United States Environmental Protection Agency.

[60 FR 56393, Nov. 8, 1995, as amended at 65 FR 12428, Mar. 9, 2000; 68 
FR 27436, May 20, 2003]



Sec. 2.19  Under Secretary for Food, Nutrition, and Consumer Services.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Under Secretary for Food, Nutrition, and Consumer 
Services:
    (1) Related to food and nutrition. (i) Administer the following 
legislation:
    (A) The Food Stamp Act of 1977, as amended (7 U.S.C. 2011-2032).
    (B) Richard B. Russell National School Lunch Act, as amended (42 
U.S.C. 1751-1769h), except procurement of agricultural commodities and 
other foods under section thereof.
    (C) Child Nutrition Act of 1966, as amended (42 U.S.C. 1771-1790).
    (D) Sections 933-939 of the Food, Agriculture, Conservation, and 
Trade Act Amendments of 1991 (7 U.S.C. 5930 note).
    (E) Section 301 of the Healthy Meals for Healthy Americans Act of 
1994 (Pub. L. 103-448).
    (F) Section 4402 of the Farm Security and Rural Investment Act of 
2002 (7 U.S.C. 3007).
    (ii) Administer those functions relating to the distribution and 
donation of agricultural commodities and products thereof under the 
following legislation:
    (A) Clause (3) of section 416(a) of the Agricultural Act of 1949, as 
amended (7 U.S.C. 1431(a)), except the estimate and announcement of the 
types and varieties of food commodities, and the quantities thereof, to 
become available for distribution thereunder;
    (B) Section 709 of the Food and Agriculture Act of 1965, as amended 
(7 U.S.C. 1446a-1);
    (C) Section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 
612c), as supplemented by the Act of June 28, 1937, as amended (15 
U.S.C. 713c), and related legislation;
    (D) Section 9 of the Act of September 6, 1958, as amended (7 U.S.C. 
1431b);

[[Page 153]]

    (E) Section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859), 
except with respect to donations to Federal penal and correctional 
institutions;
    (F) Section 402 of the Mutual Security Act of 1954, as amended (22 
U.S.C. 1922);
    (G) Section 311 of the Older Americans Act of 1965, as amended (42 
U.S.C. 3030a);
    (H) Sections 412 and 413(b) of the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act (42 U.S.C. 5179, 5180(b));
    (I) Sections 4 and 5 of the Agriculture and Consumer Protection Act 
of 1973, as amended (7 U.S.C. 612c note);
    (J) Section 1114 of the Agriculture and Food Act of 1981, as amended 
(7 U.S.C. 1431e);
    (K) Section 1336 of the Agriculture and Food Act of 1981 (Pub. L. 
97-98);
    (L) Emergency Food Assistance Act of 1983 (7 U.S.C. 612c note);
    (M) Sections 3(b)-(i), 3A and 4 of the Commodity Distribution Reform 
Act and WIC Amendments of 1987 (7 U.S.C. 612c note); and
    (N) Section 110 of the Hunger Prevention Act of 1988 (7 U.S.C. 612c 
note).
    (iii) Administer those functions relating to the distribution of 
food coupons under section 412 of the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act (42 U.S.C. 5179).
    (iv) In connection with the functions assigned in paragraphs 
(a)(1)(i), (ii) and (iii) of this section, relating to the distribution 
and donation of agricultural commodities and products thereof and food 
coupons to eligible recipients, authority to determine the requirements 
for such agricultural commodities and products thereof and food coupons 
to be so distributed.
    (v) Receive donation of food commodities under clause (3) of section 
416(a) of the Agricultural Act of 1949, as amended, section 709 of the 
Food and Agriculture Act of 1965, as amended, section 5 of the 
Agriculture and Consumer Protection Act of 1973, section 1114(a) of the 
Agriculture and Food Act of 1981, and section 202(a) and 202A of the 
Emergency Food Assistance Act of 1983.
    (vi) Administer those functions under title IV of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 
1612) relating to the eligibility of aliens for benefits under the 
domestic food assistance programs.
    (2) Related to consumer advice. (i) Develop and implement USDA 
policy and procedural guidelines for carrying out the Department's 
Consumer Affairs Plan.
    (ii) Advise the Secretary and other policy level officials of the 
Department on consumer affairs policies and programs.
    (iii) Coordinate USDA consumer affairs activities and monitor and 
analyze agency procedures and performance.
    (iv) Represent the Department at conferences, meetings and other 
contacts where consumer affairs issues are discussed, including liaison 
with the White House and other governmental agencies and departments.
    (v) Work with the Office of Budget and Program Analysis and the 
Office of Communications to ensure coordination of USDA consumer affairs 
and public participation programs, policies and information, and to 
prevent duplication of responsibilities.
    (vi) Serve as a consumer ombudsman and communication link between 
consumers and the Department.
    (vii) Approve the designation of agency Consumer Affairs Contacts.
    (3) Related to human nutrition information. (i) Develop techniques 
and equipment to assist consumers in the home and in institutions in 
selecting food that supplies a nutritionally adequate diet.
    (ii) Develop family food plans at different costs for use as 
standards by families of different sizes, sex-age composition, and 
economic levels.
    (iii) Develop suitable and safe preparation and management 
procedures to retain nutritional and eating qualities of food served in 
homes and institutions.
    (iv) Develop materials to aid the public in meeting dietary needs, 
with emphasis on food selection for good nutrition and appropriate cost, 
and food preparation to avoid waste, maximize nutrient retention, 
minimize food safety hazards, and conserve energy.
    (v) Develop food plans for use in establishing food stamp benefit 
levels,

[[Page 154]]

and assess the nutritional impact of Federal food programs.
    (vi) Coordinate nutrition education promotion and professional 
education projects within the Department.
    (vii) Analyze data from food consumption surveys in coordination 
with the Under Secretary for Research, Education, and Economics to 
provide a basis for evaluating dietary adequacy.
    (viii) Consult with the Federal and State agencies, the Congress, 
universities, and other public and private organizations and the general 
public regarding household food consumption, individual intake, and 
dietary adequacy, and implications of the survey on public policy 
regarding food and nutrition policies (7 U.S.C. 3171-3175).
    (4) Related to committee management. Establish and reestablish 
regional, State, and local advisory committees for activities under his 
or her authority. This authority may not be redelegated.
    (5) Related to defense and emergency preparedness. Administer 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.), and title VI of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5195 et seq.), concerning food stamp assistance.
    (b) The following authority is reserved to the Secretary of 
Agriculture:
    (1) Related to food and nutrition. Authority to appoint the members 
of the National Advisory Council on Maternal, Infant, and Fetal 
Nutrition as directed in section 17(k) of the Child Nutrition Act of 
1966, as amended (42 U.S.C. 1786(k)).
    (2) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27436, May 20, 2003]



Sec. 2.20  Under Secretary for Natural Resources and Environment.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Under Secretary for Natural Resources and 
Environment:
    (1) Related to environmental quality. (i) Administer the 
implementation of the National Environmental Policy Act for the United 
States Department of Agriculture (USDA).
    (ii) Represent USDA on Regional Response Teams on hazardous spills 
and oil spills pursuant to the Comprehensive Environmental Response, 
Compensation, and Liability Act, as amended ( 42 U.S.C. 9601 et seq.), 
the Clean Water Act, as amended (33 U.S.C. 1251 et seq.), the Oil 
Pollution Act (OPA), as amended (33 U.S.C. 2701 et seq.), Executive 
Order 12580, 3 CFR, 1987 Comp., p. 193, Executive Order 12777, 3 CFR, 
1991 Comp., p. 351, and the National Contingency Plan, 40 CFR part 300.
    (iii) Represent USDA in contacts with the United States 
Environmental Protection Agency, the Council on Environmental Quality, 
and other organizations or agencies on matters related to assigned 
responsibilities.
    (iv) Formulate and promulgate USDA policy relating to environmental 
activity and natural resources.
    (v) Provide staff support for the Secretary in the review of 
environmental impact statements.
    (vi) Provide leadership in USDA for general land use activities 
including implementation of Executive Order 11988, Flood Plain 
Management, 3 CFR, 1977 Comp., p. 117, and Executive Order 11990, 
Protection of Wetlands, 3 CFR, 1977 Comp., p. 121.
    (vii) Take such action as may be necessary, including issuance of 
administrative orders, and enter into agreements with any person to 
perform any response action under sections 106(a) and 122 (except 
subsection (b)(1)) of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9606(a), 
9622), pursuant to sections 4(c)(3) and 4(d)(3) of Executive Order No. 
12580, as amended by Executive Order No. 13016, to be exercised only 
with the concurrence of the General Counsel.
    (viii) Exercise the functions of the Secretary of Agriculture 
authorized in Title V of the Department of the Interior and Related 
Agencies Appropriations Act of 1998, Pub. L. 105-83, relating to the 
acquisition of the New World Mine and other priority land acquisitions, 
land exchanges, and other activities.
    (ix) Serve on the USDA Hazardous Materials Policy Council.

[[Page 155]]

    (x) Recommend actions and policies that enable agencies under his or 
her authority to comply with the intent, purposes, and standards of 
environmental laws for pollution prevention, control, and abatement.
    (xi) Consult with the United States Environmental Protection Agency 
and other appropriate Federal agencies in developing pollution 
prevention, control, and abatement policies and programs relating to 
agencies under his or her authority.
    (2) Related to forestry. (i) Provide national leadership in 
forestry. (As used here and elsewhere in this section, the term 
``forestry'' encompasses renewable and nonrenewable resources of 
forests, including lands governed by the Alaska National Interest Lands 
Conservation Act, forest-related rangeland, grassland, brushland, 
woodland, and alpine areas including but not limited to recreation, 
range, timber, minerals, watershed, wildlife and fish; natural scenic, 
scientific, cultural, and historic values of forests and related lands; 
and derivative values such as economic strength and social well-being).
    (ii) Protect, manage, and administer the national forests, national 
forest purchase units, national grasslands, and other lands and 
interests in lands administered by the Forest Service, which 
collectively are designated as the National Forest System. This 
delegation covers the acquisition and disposition of lands and interests 
in lands as may be authorized for the protection, management, and 
administration of the National Forest System, including the authority to 
approve acquisition of land under the Weeks Act of March 1, 1911, as 
amended (16 U.S.C. 521), and special forest receipts acts, as follows: 
(Pub. L. 337, 74th Cong., 49 Stat. 866, as amended by Pub. L. 310, 78th 
Cong., 58 Stat. 227; Pub. L. 505, 75th Cong., 52 Stat. 347, as amended 
by Pub. L. 310, 78th Cong., 58 Stat. 227; Pub. L. 634, 75th Cong., 52 
Stat. 699, as amended by Pub. L. 310, 78th Cong., 58 Stat. 227; Pub. L. 
748, 75th Cong., 52 Stat. 1205, as amended by Pub. L. 310, 78th Cong., 
58 Stat. 227; Pub. L. 427, 76th Cong., 54 Stat. 46; Pub. L. 589, 76th 
Cong., 54 Stat. 297; Pub. L. 591, 76th Cong., 54 Stat. 299; Pub. L. 637, 
76th Cong., 54 Stat. 402; Pub. L. 781, 84th Cong., 70 Stat. 632).
    (iii) As necessary for administrative purposes, divide into and 
designate as national forests any lands of 3,000 acres or more which are 
acquired under or subject to the Weeks Act of March 1, 1911, as amended, 
and which are contiguous to existing national forest boundaries 
established under the authority of the Weeks Act.
    (iv) Plan and administer wildlife and fish conservation 
rehabilitation and habitat management programs on National Forest System 
lands, pursuant to 16 U.S.C. 670g, 670h, and 670o.
    (v) For the purposes of the National Forest System Drug Control Act 
of 1986 (16 U.S.C. 559b-f), specifically designate certain specially 
trained officers and employees of the Forest Service, not exceeding 500, 
to have authority in the performance of their duties within the 
boundaries of the National Forest System:
    (A) To carry firearms;
    (B) To enforce and conduct investigations of violations of section 
401 of the Controlled Substance Act (21 U.S.C. 841) and other criminal 
violations relating to marijuana and other controlled substances that 
are manufactured, distributed, or dispensed on National Forest System 
lands;
    (C) To make arrests with a warrant or process for misdemeanor 
violations, or without a warrant for violations of such misdemeanors 
that any such officer or employee has probable cause to believe are 
being committed in that employee's presence or view, or for a felony 
with a warrant or without a warrant if that employee has probable cause 
to believe that the person being arrested has committed or is committing 
such a felony;
    (D) To serve warrants and other process issued by a court or officer 
of competent jurisdiction;
    (E) To search, with or without a warrant or process, any person, 
place, or conveyance according to Federal law or rule of law; and
    (F) To seize, with or without warrant or process, any evidentiary 
item according to Federal law or rule of law.
    (vi) Authorize the Forest Service to cooperate with the law 
enforcement officials of any Federal agency, State, or

[[Page 156]]

political subdivision, in the investigation of violations of, and 
enforcement of, section 401 of the Controlled Substances Act (21 U.S.C. 
841), other laws and regulations relating to marijuana and other 
controlled substances, and State drug control laws or ordinances, within 
the boundaries of the National Forest System.
    (vii) Administer programs under section 23 of the Federal Highway 
Act (23 U.S.C. 101(a), 120(f), 125(a)-(c), 138, 202(a)-(b), 203, 204(a)-
(h), 205(a)-(d), 211, 317, 402(a)).
    (viii) Exercise the administrative appeal functions of the Secretary 
of Agriculture in review of decisions of the Chief of the Forest Service 
pursuant to 36 CFR parts 215 and 217 and 36 CFR part 251, subpart C.
    (ix) Conduct, support, and cooperate in investigations, experiments, 
tests, and other activities deemed necessary to obtain, analyze, 
develop, demonstrate, and disseminate scientific information about 
protecting, managing, and utilizing forest and rangeland renewable 
resources in rural, suburban, and urban areas in the United States and 
foreign countries. The activities conducted, supported, or cooperated in 
shall include, but not be limited to: renewable resource management 
research, renewable resource environmental research; renewable resource 
protection research; renewable resource utilization research, and 
renewable resource assessment research (16 U.S.C. 1641-1647).
    (x) Use authorities and means available to disseminate the knowledge 
and technology developed from forestry research (16 U.S.C. 1645).
    (xi) Coordinate activities with other agencies in USDA, other 
Federal and State agencies, forestry schools, and private entities and 
individuals (16 U.S.C. 1643).
    (xii) Enter into contracts, grants, and cooperative agreements for 
the support of scientific research in forestry activities (7 U.S.C. 
427i(a), 1624; 16 U.S.C. 582a-8, 1643-1645, 1649).
    (xiii) Enter into cooperative research and development agreements 
with industry, universities, and others; institute a cash award program 
to reward scientific, engineering, and technical personnel; award 
royalties to inventors; and retain and use royalty income (15 U.S.C. 
3710a-3710c).
    (xiv) Enter into contracts, grants, or cooperative agreements to 
further research, extension, or teaching programs in the food and 
agricultural sciences (7 U.S.C. 3152, 3318).
    (xv) Enter into cost-reimbursable agreements relating to 
agricultural research, extension, or teaching activities (7 U.S.C. 
3319a).
    (xvi) Administer programs of cooperative forestry assistance in the 
protection, conservation, and multiple resource management of forests 
and related resources in both rural and urban areas and forest lands in 
foreign countries (16 U.S.C. 2101-2114).
    (xvii) Provide assistance to States and other units of government in 
forest resources planning and forestry rural revitalization (7 U.S.C. 
6601, 6611-6617; 16 U.S.C. 2107).
    (xviii) Conduct a program of technology implementation for State 
forestry personnel, private forest landowners and managers, vendors, 
forest operators, public agencies, and individuals (16 U.S.C. 2107).
    (xix) Administer Rural Fire Protection and Control Programs (16 
U.S.C. 2106).
    (xx) Provide technical assistance on forestry technology or the 
implementation of the Conservation Reserve and Softwood Timber Programs 
authorized in sections 1231-1244 and 1254 of the Food Security Act of 
1985 (16 U.S.C. 3831-3844; 7 U.S.C. 1981 note).
    (xxi) Administer forest insect, disease, and other pest management 
programs (16 U.S.C. 2104).
    (xxii) Exercise the custodial functions of the Secretary for lands 
and interests in lands under lease or contract of sale to States and 
local agencies pursuant to title III of the Bankhead-Jones Farm Tenant 
Act and administer reserved and reversionary interests in lands conveyed 
under that Act (7 U.S.C. 1010-1012).
    (xxiii) Under such general program criteria and procedures as may be 
established by the Natural Resources Conservation Service:
    (A) Administer the forestry aspects of the programs listed in 
paragraphs (a)(2)(xxiii)(A)(1), (2) and (3) of this section on the 
National Forest System,

[[Page 157]]

rangelands with national forest boundaries, adjacent rangelands which 
are administered under formal agreement, and other forest lands;
    (1) The cooperative river basin surveys and investigations program 
(16 U.S.C. 1006);
    (2) The Eleven Authorized Watershed Improvement Programs and 
Emergency Flood Prevention Measures Program under the Flood Control Act 
(33 U.S.C. 701b-1); and
    (3) The Small Watershed Protection Program under the Pilot Watershed 
Protection and Watershed Protection and Flood Prevention Acts (7 U.S.C. 
701a-h; 16 U.S.C. 1001-1009); and
    (B) Exercise responsibility in connection with the forestry aspects 
of the Resource Conservation and Development Program authorized by title 
III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1011(e)).
    (xxiv) Provide assistance to the Farm Service Agency in connection 
with the Agricultural Conservation Program, the Naval Stores 
Conservation Program, and the Cropland Conversion Program (16 U.S.C. 
590g-q).
    (xxv) Provide assistance to the Rural Housing Service in connection 
with grants and loans under authority of section 303 of the Consolidated 
Farm and Rural Development Act, 7 U.S.C. 1923; and consultation with the 
Department of Housing and Urban Development under the authority of 40 
U.S.C. 461(e).
    (xxvi) Coordinate mapping work of USDA including:
    (A) Clearing mapping projects to prevent duplication;
    (B) Keeping a record of mapping done by USDA agencies;
    (C) Preparing and submitting required USDA reports;
    (D) Serving as liaison on mapping with the Office of Management and 
Budget, Department of Interior, and other departments and 
establishments;
    (E) Promoting interchange of technical mapping information, 
including techniques which may reduce costs or improve quality; and
    (F) Maintaining the mapping records formerly maintained by the 
Office of Operations.
    (xxvii) Administer the radio frequency licensing work of USDA, 
including:
    (A) Representing USDA on the Interdepartmental Radio Advisory 
Committee and its Frequency Assignment Subcommittee of the National 
Telecommunications and Information Administration, Department of 
Commerce;
    (B) Establishing policies, standards, and procedures for allotting 
and assigning frequencies within USDA and for obtaining effective 
utilization of them;
    (C) Providing licensing action necessary to assign radio frequencies 
for use by the agencies of USDA and maintenance of the records necessary 
in connection therewith;
    (D) Providing inspection of USDA's radio operations to ensure 
compliance with national and international regulations and policies for 
radio frequency use; and
    (E) Representing USDA in all matters relating to responsibilities 
and authorities under the Federal Water Power Act, as amended (16 U.S.C. 
791-823).
    (xxviii) [Reserved]
    (xxix) Administer the Youth Conservation Corps Act (42 U.S.C. 
precede 2711 note) for USDA.
    (xxx) Establish and operate the Job Corps Civilian Conservation 
Centers on National Forest System lands as authorized by title I, 
sections 106 and 107 of the Economic Opportunity Act of 1964 (42 U.S.C. 
2716-2717), in accordance with the terms of an agreement dated May 11, 
1967, between the Secretary of Agriculture and the Secretary of Labor; 
and administration of other cooperative manpower training and work 
experience programs where the Forest Service serves as host or prime 
sponsor with other Departments of Federal, State, or local governments.
    (xxxi) Administer the Volunteers in the National Forests Act of 1972 
(16 U.S.C. 558a-558d, 558a note).
    (xxxii) Exercise the functions of the Secretary of Agriculture 
authorized in the Alaska National Interest Lands Conservation Act (16 
U.S.C. 3101-3215).
    (xxxiii) Exercise the functions of the Secretary as authorized in 
the Wild

[[Page 158]]

and Scenic Rivers Act (16 U.S.C. 1271-1278).
    (xxxiv) Jointly administer gypsy moth eradication activities with 
the Assistant Secretary for Marketing and Regulatory Programs, under the 
authority of section 102 of the Organic Act of 1944, as amended; and the 
Act of April 6, 1937, as amended (7 U.S.C. 147a, 148, 148a-148e); and 
the Talmadge Aiken Act (7 U.S.C. 450), by assuming primary 
responsibility for treating isolated gypsy moth infestations on Federal 
lands, and on State and private lands contiguous to infested Federal 
lands, and any other infestations over 640 acres on State and private 
lands.
    (xxxv) Exercise the functions of the Secretary authorized in the 
Federal Onshore Oil and Gas Leasing Reform Act of 1987 (30 U.S.C. 226 et 
seq.).
    (xxxvi) Administer the Public Lands Corps program (16 U.S.C. 1721 et 
seq.) for USDA consistent with the Department's overall national service 
program.
    (xxxvii) Jointly administer the Forestry Incentives Program with the 
Natural Resources Conservation Service, in consultation with State 
Foresters, under section 4 of the Cooperative Forestry Assistance Act of 
1978 (16 U.S.C. 2103).
    (xxxviii) Focusing on countries that could have a substantial impact 
on global warming, provide assistance that promotes sustainable 
development and global environmental stability; share technical, 
managerial, extension, and administrative skills; provide education and 
training opportunities; engage in scientific exchange; and cooperate 
with domestic and international organizations that further international 
programs for the management and protection of forests, rangelands, 
wildlife, fisheries and related natural resources (16 U.S.C. 4501-4505).
    (xxxix) Enter into pilot projects with the Bureau of Land Management 
(BLM), U.S. Department of the Interior, in support of the Service First 
initiative for the purpose of promoting customer service and efficiency 
in managing National Forest System lands and public lands and delegate 
to BLM employees those Forest Service authorities necessary to carry out 
pilot projects (Public Law 106-291).
    (3) Related to natural resources conservation. (i) Provide national 
leadership in the conservation, development and productive use of the 
Nation's soil, water, and related resources. Such leadership encompasses 
soil, water, plant, and wildlife conservation; small watershed 
protection and flood prevention; and resource conservation and 
development. Integrated in these programs are erosion control, sediment 
reduction, pollution abatement, land use planning, multiple use, 
improvement of water quality, and several surveying and monitoring 
activities related to environmental improvement. All are designed to 
assure:
    (A) Quality in the natural resource base for sustained use;
    (B) Quality in the environment to provide attractive, convenient, 
and satisfying places to live, work, and play; and
    (C) Quality in the standard of living based on community improvement 
and adequate income.
    (ii) Provide national leadership in and evaluate and coordinate land 
use policy, and administer the Farmland Protection Policy Act (7 U.S.C. 
4201 et seq.), including the Farms for the Future Program authorized by 
sections 1465-1470 of the Food, Agriculture, Conservation, and Trade Act 
of 1990, as amended (7 U.S.C. 4201 note), except as otherwise delegated 
to the Under Secretary for Research, Education, and Economics in Sec. 
2.21(a)(1)(lxii).
    (iii) Administer the basic program of soil and water conservation 
under Pub. L. No. 46, 74th Congress, as amended, and related laws (16 
U.S.C. 590 a-f, i-l, q, q-1; 42 U.S.C. 3271-3274; 7 U.S.C. 2201), 
including:
    (A) Technical and financial assistance to land users in carrying out 
locally adapted soil and water conservation programs primarily through 
soil and water conservation districts in the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the 
Virgin Islands, and Federally recognized Native American

[[Page 159]]

tribes, but also to communities, watershed groups, Federal and State 
agencies, and other cooperators. This authority includes such assistance 
as:
    (1) Comprehensive planning assistance in nonmetropolitan districts;
    (2) Assistance in the field of income-producing recreation on rural 
non-Federal lands;
    (3) Forestry assistance, as part of total technical assistance to 
private land owners and land users when such services are an integral 
part of land management and such services are not available from a State 
agency; and forestry services in connection with windbreaks and shelter 
belts to prevent wind and water erosion of lands;
    (4) Assistance in developing programs relating to natural beauty; 
and
    (5) Assistance to other USDA agencies in connection with the 
administration of their programs, as follows:
    (i) To the Farm Service Agency in the development and technical 
servicing of certain programs, such as the Agricultural Conservation 
Program and other such similar conservation programs;
    (ii) To the Rural Housing Service in connection with their loan and 
land disposition programs;
    (B) Soil Surveys, including:
    (1) Providing leadership for the Federal part of the National 
Cooperative Soil Survey which includes conducting and publishing soil 
surveys;
    (2) Conducting soil surveys for resource planning and development; 
and
    (3) Performing the cartographic services essential to carrying out 
the functions of the Natural Resources Conservation Service, including 
furnishing photographs, mosaics, and maps;
    (C) Conducting and coordinating snow surveys and making water supply 
forecasts pursuant to Reorganization Plan No. IV of 1940 (5 U.S.C. 
App.);
    (D) Operating plant materials centers for the assembly and testing 
of plant species in conservation programs, including the use, 
administration, and disposition of lands under the administration of the 
Natural Resources Conservation Service for such purposes under title III 
of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010-1011); and
    (E) Providing leadership in the inventorying and monitoring of soil, 
water, land, and related resources of the Nation.
    (iv) Administer the Watershed Protection and Flood Prevention 
Programs, including:
    (A) The eleven authorized watershed projects authorized under 33 
U.S.C. 702b-1;
    (B) The emergency flood control work under 33 U.S.C. 701b-1;
    (C) The Cooperative River Basin Surveys and Investigations Programs 
under 16 U.S.C. 1006;
    (D) The pilot watershed projects under 16 U.S.C. 590 a-f and 16 
U.S.C. 1001-1009;
    (E) The Watershed Protection and Flood Prevention Program under 16 
U.S.C. 1001-1010, including rehabilitation of water resource structural 
measures constructed under certain Department of Agriculture programs 
under 16 U.S.C. 1012, except for responsibilities assigned to the Under 
Secretary for Rural Development.
    (F) The joint investigations and surveys with the Department of the 
Army under 16 U.S.C. 1009; and
    (G) The Emergency Conservation Program under sections 401-405 of the 
Agricultural Credit Act of 1978 (the Act), 16 U.S.C. 2201 et seq., 
except for the provisions of sections 401 and 402 of the Act, 16 U.S.C. 
2201-2202, as administered by the Under Secretary for Farm and Foreign 
Agricultural Services.
    (v) Administer the Great Plains Conservation Program and the 
Critical Lands Resources Conservation Program under 16 U.S.C. 590p(b), 
590q and 590q-3.
    (vi) Administer the Resource Conservation and Development Program 
under 16 U.S.C. 590 a-f; 7 U.S.C. 1010-1011; and 16 U.S.C. 3451-3461, 
except for responsibilities assigned to the Under Secretary for Rural 
Economic and Community Development.
    (vii) Responsibility for entering into long-term contracts for 
carrying out conservation and environmental measures in watershed areas.
    (viii) Provide national leadership for and administer the Soil and 
Water Resources Conservation Act of 1977 (16 U.S.C. 2001 et seq.).

[[Page 160]]

    (ix) Administer the Rural Clean Water Program and other 
responsibilities assigned under section 35 of the Clean Water Act of 
1977 (33 U.S.C. 1251 et seq.).
    (x) Monitor actions and progress of USDA in complying with Executive 
Order 11988, Flood Plain Management, 3 CFR, 1977 Comp., p. 117, and 
Executive Order 11990, Protection of Wetlands, 3 CFR, 1977 Comp., p. 
121, regarding management of floodplains and protection of wetlands; 
monitor USDA efforts on protection of important agricultural, forest and 
rangelands; and provide staff assistance to the USDA Natural Resources 
and Environment Committee.
    (xi) Administer the search and rescue operations authorized under 7 
U.S.C. 2273.
    (xii) Administer section 202(c) of the Colorado River Basin Salinity 
Control Act, 43 U.S.C. 1592(c), including:
    (A) Identify salt source areas and determine the salt load resulting 
from irrigation and watershed management practices;
    (B) Conduct salinity control studies of irrigated salt source areas;
    (C) Provide technical and financial assistance in the implementation 
of salinity control projects including the development of salinity 
control plans, technical services for application, and certification of 
practice applications;
    (D) Develop plans for implementing measures that will reduce the 
salt load of the Colorado River;
    (E) Develop and implement long-term monitoring and evaluation plans 
to measure and report progress and accomplishments in achieving program 
objectives; and
    (F) Enter into and administer contracts with program participants 
and waive cost-sharing requirements when such cost-sharing requirements 
would result in a failure to proceed with needed on-farm measures.
    (xiii) Except as otherwise delegated, administer natural resources 
conservation authorities, including authorities related to programs of 
the Commodity Credit Corporation that provide assistance with respect to 
natural resources conservation, under Title XII of the Food Security Act 
of 1985 (the Act), as amended (16 U.S.C. 3801 et seq.), including the 
following:
    (A) Technical assistance related to the conservation of highly 
erodible lands and wetlands pursuant to sections 1211-1223 of the Act 
(16 U.S.C. 3811-3823).
    (B) Technical assistance related to the Conservation Reserve Program 
authorized by sections 1231-1235A of the Act (16 U.S.C. 3831-3835a).
    (C) The Wetlands Reserve Program and the Emergency Wetlands Reserve 
Program authorized by sections 1237-1237F of the Act (16 U.S.C. 3837-
3837f) and the Emergency Supplemental Appropriations for Relief from the 
Major, Widespread Flooding in the Midwest Act, Public Law 103-75.
    (D) The Conservation Security Program authorized by sections 1238-
1238C (16 U.S.C. 3838-3838c).
    (E) The Farmland Protection Program authorized by sections 1238H-
1238I of the Act (16 U.S.C. 3838h-3838i).
    (F) The Farm Viability Program authorized by section 1238J of the 
Act (16 U.S.C. 3838j).
    (G) The Environmental Easement Program authorized by sections 1239-
1239D of the Act (16 U.S.C. 3839-3839d).
    (H) The Environmental Quality Incentives Program authorized by 
sections 1240-1240I of the Act (16 U.S.C. 3839aa-3839aa-9).
    (I) The conservation of private grazing lands authorized by section 
1240M of the Act (16 U.S.C. 3839bb).
    (J) The Wildlife Habitat Incentives Program authorized by section 
1240N of the Act (16 U.S.C. 3839bb-1).
    (K) The program for soil erosion and sedimentation control in the 
Great Lakes basin authorized by section 1240P of the Act (16 U.S.C. 
3839bb-3).
    (L) The delivery of technical assistance under section 1242 of the 
Act (16 U.S.C. 3842), including the approval of persons or entities 
outside of USDA to provide technical services.
    (M) The authority for partnerships and cooperation provided by 
section 1243 of the Act (16 U.S.C. 3843), except for responsibilities 
assigned to the Under Secretary for Farm and Foreign Agricultural 
Services.
    (N) The incentives for beginning farmers and ranchers and Indian 
tribes and the protection of certain proprietary information related to 
natural resources conservation programs as

[[Page 161]]

provided by section 1244 of the Act (16 U.S.C. 3844), except for 
responsibilities assigned to the Under Secretary for Farm and Foreign 
Agricultural Services.
    (xiv) Approve and transmit to the Congress comprehensive river basin 
reports.
    (xv) Provide representation on the Water Resources Council and river 
basin commissions created by 42 U.S.C. 1962, and on river basin 
interagency committees.
    (xvi) Administer the following provisions of the Farm Security and 
Rural Investment Act of 2002 with respect to functions otherwise 
delegated to the Under Secretary for Natural Resources and Environment:
    (A) The equitable relief provisions of section 1613 (7 U.S.C. 7996).
    (B) The tracking of benefits under section 1614 (7 U.S.C. 7997).
    (C) The development of a plan and related report to coordinate land 
retirement and agricultural working land conservation programs under 
section 2005 (16 U.S.C. 3801 note).
    (xvii) Administer the Water Bank Program under the Water Bank Act 
(16 U.S.C. 1301 et seq.).
    (xviii) Administer the agricultural management assistance provisions 
of section 524(b) of the Federal Crop Insurance Act, as amended (7 
U.S.C. 1524(b)), except for responsibilities assigned to the Under 
Secretary for Farm and Foreign Agricultural Services.
    (xix) Coordinate USDA input and assistance to the Department of 
Commerce and other Federal agencies consistent with section 307 of the 
Coastal Zone Management Act of 1972 (16 U.S.C. 1456), and coordinate 
USDA review of qualifying state and local government coastal management 
plans or programs prepared under such Act and submitted to the Secretary 
of Commerce, consistent with section 306(a) and (c) of such Act (16 
U.S.C. 1455(a) and (c)).
    (4) Related to committee management. Establish and reestablish 
regional, state, and local advisory committees for activities under his 
or her authority. This authority may not be redelegated.
    (5) Related to defense and emergency preparedness. Administer 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.) and title VI of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5195 et seq.), relating to agricultural land and water, forests 
and forest products, rural fire defense, and forestry research.
    (6) Related to surface mining control and reclamation. Administer 
responsibilities and functions assigned to the Secretary of Agriculture 
under the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 
1201 et seq.).
    (7) Related to environmental response. (i) With respect to land and 
facilities under his or her authority, to exercise the functions 
delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., 
p. 193, and Executive Order 12777, 3 CFR, 1991 Comp., p. 351, to act as 
Federal trustee for natural resources in accordance with section 107(f) 
of the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980 (42 U.S.C. 9607(f)), section 311(f)(5) of the Federal Water 
Pollution Control Act (33 U.S.C. 1321(f)(5)), and section 1006(b)(2) of 
the Oil Pollution Act of 1990 (33 U.S.C. 2706(b)(2)).
    (ii) With respect to land and facilities under his or her authority, 
to exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (A) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (B) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance orders; compliance with Federal health and safety standards 
and wage and labor standards applicable to covered work; and emergency 
procurement powers;
    (C) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;

[[Page 162]]

    (D) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (E) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (F) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) of the 
Act pertaining to the annual report to Congress;
    (G) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (H) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to 
the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (I) Section 113(g) of the Act (42 U.S.C. 9613(g)), with respect to 
receiving notification of a natural resource trustee's intent to file 
suit;
    (J) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (K) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (L) Section 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (M) Section 119 of the Act (42 U.S.C. 9619), with respect to 
indemnifying response action contractors;
    (N) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup 
standards; and
    (O) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), relating to mixed funding agreements.
    (iii) With respect to land and facilities under his or her 
authority, to exercise the authority vested in the Secretary of 
Agriculture to act as the ``Federal Land Manager'' pursuant to the Clean 
Air Act, as amended (42 U.S.C. 7401 et seq.).
    (8) Related to compliance with environmental laws. With respect to 
facilities and activities under his or her authority, to exercise the 
authority of the Secretary of Agriculture pursuant to section 1-102 
related to compliance with applicable pollution control standards and 
section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to 
enter into an inter-agency agreement with the United States 
Environmental Protection Agency, or an administrative consent order or a 
consent judgment in an appropriate United States District Court with an 
appropriate State, interstate, or local agency, containing a plan and 
schedule to achieve and maintain compliance with applicable pollution 
control standards established pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, the Hazardous and Solid Waste Amendments, 
and the Federal Facility Compliance Act (42 U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (9) Related to historic preservation. Administer the implementation 
of the National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., Executive Order 11593, 3 CFR, 1971-1975 Comp., p.

[[Page 163]]

559, and regulations of the Advisory Council on Historic preservation, 
36 CFR part 800, for the Department of Agriculture with authority to 
name the Secretary's designee to the Advisory Council on Historic 
Preservation.
    (b) The following authorities are reserved to the Secretary of 
Agriculture:
    (1) Related to natural resource conservation. Designation of new 
project areas in which the resource conservation and development program 
assistance will be provided.
    (2) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 1031, Jan. 8, 1997; 64 
FR 32797, June 18, 1999; 64 FR 34967, June 30, 1999; 65 FR 12428, Mar. 
9, 2000; 67 FR 59135, Sept. 30, 2002; 68 FR 27437, May 20, 2003; 69 FR 
34252, June 21, 2004]



Sec. 2.21  Under Secretary for Research, Education, and Economics.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Under Secretary for Research, Education, and 
Economics.
    (1) Related to science and education. (i) Direct, coordinate and 
provide national leadership and support for research, extension and 
teaching programs in the food and agricultural sciences to meet major 
needs and challenges in development of new food and fiber; food and 
agriculture viability and competitiveness in the global economy; 
enhancing economic opportunities and quality of life for rural America; 
food and agricultural system productivity and development of new crops 
and new uses; the environment and natural resources; or the promotion of 
human health and welfare pursuant to the National Agricultural Research, 
Extension, and Teaching Policy of 1977, as amended (7 U.S.C. 3101 et 
seq.).
    (ii) Provide national leadership and support for research, 
extension, and teaching programs in the food and agricultural sciences 
to carry out sustainable agriculture research and education; a National 
Plant Genetic Resources Program; a national agricultural weather 
information system; research regarding the production, preparation, 
processing, handling, and storage of agricultural products; a Plant and 
Animal Pest and Disease Control Program; and any other provisions 
pursuant to title XVI of the Food, Agriculture, Conservation, and Trade 
Act of 1990 (Pub. L. No. 101-624, 104 Stat. 3703), except the provisions 
relating to the USDA Graduate School in section 1669 and the provisions 
relating to alternative agricultural research and commercialization 
under sections 1657-1664 (7 U.S.C. 5801 et seq.).
    (iii) Coordinate USDA policy and conduct programs relative to the 
Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 
U.S.C. 136 et seq.) and coordinate the Department's Integrated Pest 
Management Programs and the Pesticide Assessment Program (7 U.S.C. 136-
136y).
    (iv) Carry out research, technology development, technology 
transfer, and demonstration projects related to the economic feasibility 
of the manufacture and commercialization of natural rubber from plants 
containing hydrocarbons (7 U.S.C. 178-178n).
    (v) Conduct research on the control of undesirable species of honey 
bees in cooperation with specific foreign governments (7 U.S.C. 284).
    (vi) Administer the appropriation for the endowment and maintenance 
of colleges for the benefit of agriculture and the mechanical arts (7 
U.S.C. 321-326a).
    (vii) Administer teaching funds authorized by section 22 of the 
Bankhead Jones Act, as amended (7 U.S.C. 329).
    (viii) Administer a Cooperative Agricultural Extension Program in 
accordance with the Smith-Lever Act, as amended (7 U.S.C. 341-349).
    (ix) Cooperate with the States for the purpose of encouraging and 
assisting them in carrying out research related to the problems of 
agriculture in its broadest aspects under the Hatch Act, as amended (7 
U.S.C. 361a-361i).
    (x) Evaluate, assess, and report to congressional agriculture 
committees on the merits of proposals for agricultural research 
facilities in the States, and ensure that each research activity 
conducted by an Agricultural Research Service facility serves a national 
or multistate need (7 U.S.C. 390 et seq.).
    (xi) Conduct research concerning domestic animals and poultry, their 
protection and use, the causes of contagious, infectious, and 
communicable diseases, and the means for the prevention and cure of the 
same (7 U.S.C. 391).

[[Page 164]]

    (xii) Conduct research related to the dairy industry and to the 
dissemination of information for the promotion of the dairy industry (7 
U.S.C. 402).
    (xiii) Conduct research and demonstrations at Mandan, ND, related to 
dairy livestock breeding, growing, and feeding, and other problems 
pertaining to the establishment of the dairy and livestock industries (7 
U.S.C. 421-422).
    (xiv) Conduct research on new uses for cotton and on cotton ginning 
and processing (7 U.S.C. 423-424).
    (xv) Administer and conduct research into the basic problems of 
agriculture in its broadest aspects, including, but not limited to, 
production, marketing (other than statistical and economic research but 
including research related to family use of resources), distribution, 
processing, and utilization of plant and animal commodities; problems of 
human nutrition; development of markets for agricultural commodities; 
discovery, introduction, and breeding of new crops, plants, and animals, 
both foreign and native; conservation development; and development of 
efficient use of farm buildings, homes, and farm machinery except as 
otherwise delegated in Sec. 2.22(a)(1)(ii) and Sec. 2.79(a)(2) (7 
U.S.C. 427, 1621-1627, 1629, 2201, and 2204).
    (xvi) Conduct research on varietal improvement of wheat and feed 
grains to enhance their conservation and environmental qualities (7 
U.S.C. 428b).
    (xvii) [Reserved]
    (xviii) Enter into agreements with and receive funds from any State, 
other political subdivision, organization, or individual for the purpose 
of conducting cooperative research projects (7 U.S.C. 450a).
    (xix) Carry out a program (IR-4 Program) for the collection of 
residue and efficacy data in support of minor use pesticide registration 
or reregistration and to determine tolerances for minor use chemical 
residues in or on agricultural commodities (7 U.S.C. 450i).
    (xx) Administer and direct a program of competitive grants for 
research, and special grants for research, education, or extension, to 
State agricultural experiment stations, colleges and universities, other 
research institutions and organizations, Federal agencies, national 
laboratories (competitive grants only), private organizations or 
corporations, and individuals, and of facilities grants to State 
agricultural experiment stations and other designated colleges and 
universities, to promote research, extension, or education, in food, 
agriculture and related areas (7 U.S.C. 450i).
    (xxi)-(xxii) [Reserved]
    (xxiii) Conduct research related to soil and water conservation, 
engineering operations, and methods of cultivation to provide for the 
control and prevention of soil erosion (7 U.S.C. 1010 and 16 U.S.C. 
590a).
    (xxiv) Maintain four regional research laboratories and conduct 
research at such laboratories to develop new scientific, chemical, and 
technical uses and new and extended markets and outlets for farm 
commodities and products and the byproducts thereof (7 U.S.C. 1292).
    (xxv) Conduct a Special Cotton Research Program designed to reduce 
the cost of producing upland cotton in the United States (7 U.S.C. 1441 
note).
    (xxvi) [Reserved]
    (xxvii) Conduct research to develop and determine methods for the 
humane slaughter of livestock (7 U.S.C. 1904).
    (xxviii) Administer a competitive grant program for non- profit 
institutions to establish and operate centers for rural technology or 
cooperative development (7 U.S.C. 1932(f)).
    (xxix) Administer a Nutrition Education Program for Food Stamp 
recipients and for the distribution of commodities on reservations (7 
U.S.C. 2020(f)).
    (xxx) Conduct education and extension programs and a pilot project 
related to nutrition education (7 U.S.C. 2027(a) and 5932).
    (xxxi) Make grants and enter into contracts and other agreements for 
outreach and technical assistance to socially disadvantaged farmers and 
ranchers (7 U.S.C. 2279(a)(3)).
    (xxxii) Develop and maintain national and international library and 
information systems and networks and facilitate cooperation and 
coordination of the agricultural libraries of colleges, universities, 
USDA, and their closely allied information gathering and dissemination 
units in conjunction with

[[Page 165]]

private industry and other research libraries (7 U.S.C. 2201, 2204, 
3125a, and 3126).
    (xxxiii) Accept gifts and order disbursements from the Treasury for 
carrying out of National Agricultural Library (NAL) functions (7 U.S.C. 
2264-2265).
    (xxxiv) Propagate bee-breeding stock and release bee germplasm to 
the public (7 U.S.C. 283).
    (xxxv) Administer, in cooperation with land-grant colleges and 
universities where applicable, a rural development research and 
extension program, a small farm research and extension program, and a 
rural health and safety education program under the Rural Development 
Act of 1972, as amended (7 U.S.C. 2661-2667).
    (xxxvi) Administer a cooperative extension program under the Farmer-
to-Consumer Direct Marketing Act of 1976 (7 U.S.C. 3004).
    (xxxvii) Coordinate the development and carrying out by Department 
agencies of all matters and functions pertaining to agricultural 
research conducted or funded by the Department involving biotechnology, 
including the development and implementation of guidelines for oversight 
of research activities, acting as liaison on all matters and functions 
pertaining to agricultural research in biotechnology between agencies 
within the Department and between the Department and other governmental, 
educational, or private organizations and carrying out any other 
activities authorized by (7 U.S.C. 3121).
    (xxxviii) [Reserved]
    (xxxix) Establish and oversee the National Agricultural Research, 
Extension, Education, and Economics Advisory Board (7 U.S.C. 3123).
    (xl) Provide and distribute information and data about Federal, 
State, local, and other Rural Development Assistance Programs and 
services available to individuals and organizations. To the extent 
possible, NAL shall use telecommunications technology to disseminate 
such information to rural areas (7 U.S.C. 3125b).
    (xli) Assemble and collect food and nutrition educational material, 
including the results of nutrition research, training methods, 
procedures, and other materials related to the purposes of the National 
Agricultural Research, Extension, and Teaching Policy Act of 1977, as 
amended; maintain such information; and provide for the dissemination of 
such information and materials on a regular basis to State educational 
agencies and other interested parties (7 U.S.C. 3126).
    (xlii) Conduct programs related to composting research and extension 
(7 U.S.C. 3130).
    (xliii) Conduct a program of grants to States to expand, renovate, 
or improve schools of veterinary medicine (7 U.S.C. 3151).
    (xliv) Formulate and administer programs to strengthen secondary 
education and two-year post secondary teaching programs; promote 
linkages between secondary, two-year post secondary, and higher 
education programs in the food and agricultural sciences; administer 
grants to secondary education and two-year post secondary teaching 
programs, and to colleges and universities; maintain a national food and 
agricultural education information system (7 U.S.C. 3152).
    (xlv) Administer the National Food and Agricultural Sciences 
Teaching Awards Program for recognition of educators in the food and 
agricultural sciences (7 U.S.C. 3152).
    (xlvi) Administer the National Agricultural Science Award for 
research or advanced studies in the food and agricultural sciences (7 
U.S.C. 3153).
    (xlvii) Administer grants to colleges, universities, and Federal 
laboratories for research on the production and marketing of alcohols 
and industrial hydrocarbons from agricultural commodities and forest 
products (7 U.S.C. 3154).
    (xlviii) Administer a National Food and Human Nutrition Research and 
Extension Program. Establish and administer a Human Nutrition 
Intervention and Health Promotion Research Program (7 U.S.C. 3171-3175).
    (xlix) Administer and direct an Animal Health and Disease Research 
Program under the National Agricultural Research, Extension, and 
Teaching Policy Act of 1977, as amended (7 U.S.C. 3191-3201).
    (l) Support continuing agricultural and forestry extension and 
research, at

[[Page 166]]

1890 land-grant colleges, including Tuskegee University, and administer 
a grant program for five National Research and Training Centers (7 
U.S.C. 3221, 3222, 3222c, 3222d).
    (li) Administer grants to 1890 land-grant colleges, including 
Tuskegee University, through Federal-grant funds to help finance 
research facilities and equipment including agricultural libraries (7 
U.S.C. 3223).
    (lii) Establish and administer competitive grants (or grants without 
regard to any requirement for competition) to Hispanic-serving 
Institutions for the purpose of promoting and strengthening the ability 
of Hispanic-serving Institutions to carry out education, applied 
research, and related community development programs (7 U.S.C. 3241).
    (liii) Provide policy direction and coordinate the Department's work 
with national and international institutions and other persons 
throughout the world in the performance of agricultural research, 
extension, teaching, and development activities; administer a program of 
competitive grants for collaborative projects involving Federal 
scientists or scientists from colleges and universities working with 
scientists at international agricultural research centers in other 
nations focusing either on new technologies and programs for increasing 
the production of food and fiber or training scientists and a program of 
competitive grants to colleges and universities to strengthen United 
States economic competitiveness and to promote international market 
development; establish a program in coordination with the Foreign 
Agricultural Service to place interns from United States colleges and 
universities at Foreign Agricultural Service field offices overseas; and 
provide a biennial report to the Committee on Agriculture of the House 
of Representatives and the Committee on Agriculture, Nutrition, and 
Forestry of the Senate on efforts of the Federal Government to 
coordinate international agricultural research within the Federal 
Government, and to more effectively link the activities of domestic and 
international agricultural researchers, particularly researchers of the 
Agricultural Research Service (7 U.S.C. 3291, 3292b).
    (liv) Provide for an agricultural research and development program 
with the United States/Mexico Foundation for Science (7 U.S.C. 3292a).
    (lv) Administer a program of competitive grants to colleges and 
universities and State cooperative institutions for the acquisition of 
special purpose scientific research equipment for use in the food and 
agricultural sciences (7 U.S.C. 3310a).
    (lvi) Enter into contracts, grants, or cooperative agreements to 
further research, extension, or teaching programs in the food and 
agriculture sciences (7 U.S.C. 3318).
    (lvii) Enter into cost-reimbursable agreements with State 
cooperative institutions or other colleges and universities for the 
acquisition of goods or services in support of research, extension, or 
teaching activities in the food and agricultural sciences, including the 
furtherance of library and related information programs (7 U.S.C. 
3319a).
    (lviii) Conduct research and development and implement a program for 
the development of supplemental and alternative crops (7 U.S.C. 3319d).
    (lix) Administer an Aquaculture Assistance Program, involving 
centers, by making grants to eligible institutions for research and 
extension to facilitate or expand production and marketing of 
aquacultural food species and products; making grants to States to 
formulate Aquaculture development plans for the production and marketing 
of aquacultural species and products; and conducting a program of 
research, extension and demonstration at aquacultural demonstration 
centers (7 U.S.C. 3321-22).
    (lx) Administer a Cooperative Rangeland Research Program (7 U.S.C. 
3331-3336).
    (lxi) Conduct a program of basic research on cancer in animals and 
birds (7 U.S.C. 3902).
    (lxii) Design and implement educational programs and distribute 
materials in cooperation with the cooperative extension services of the 
States emphasizing the importance of productive farmland, and designate 
a farmland information center, pursuant to

[[Page 167]]

section 1544 of the Farmland Protection Policy Act (7 U.S.C. 4205).
    (lxiii) [Reserved]
    (lxiv) Administer programs and conduct projects for research, 
extension, and education on sustainable agriculture (7 U.S.C. 5811-
5813).
    (lxv) Conduct research and cooperative extension programs to 
optimize crop and livestock production potential, integrated resource 
management, and integrated crop management (7 U.S.C. 5821).
    (lxvi) Design, implement, and develop handbooks, technical guides, 
and other educational materials emphasizing sustainable agriculture 
production systems and practices (7 U.S.C. 5831).
    (lxvii) Administer a competitive grant program to organizations to 
carry out a training program on sustainable agriculture (7 U.S.C. 5832).
    (lxviii) Administer a national research program on genetic resources 
to provide for the collection, preservation, and dissemination of 
genetic material important to American food and agriculture production 
(7 U.S.C. 5841-5844).
    (lxix) Conduct remote-sensing and other weather-related research (7 
U.S.C. 5852).
    (lxx) Establish an Agricultural Weather Office and administer a 
national agricultural weather information system, including a 
competitive grants program for research in atmospheric sciences and 
climatology (7 U.S.C. 5852-5853).
    (lxxi) Administer a research and extension grant program to States 
to administer programs for State agricultural weather information 
systems (7 U.S.C. 5854).
    (lxxii) Administer grants and conduct research programs to measure 
microbiological and chemical agents associated with the production, 
preparation, processing, handling, and storage of agricultural products 
(7 U.S.C. 5871-5874).
    (lxxiii) Administer and conduct research and extension programs on 
integrated pest management, including research to benefit floriculture 
(7 U.S.C. 5881).
    (lxxiv) Establish a National Pesticide Resistance Monitoring Program 
and disseminate information on materials and methods of pest and disease 
control available to agricultural producers through the pest and disease 
control database (7 U.S.C. 5882).
    (lxxv) Administer and conduct research and grant programs on the 
control and eradication of exotic pests (7 U.S.C. 5883).
    (lxxvi) Conduct research and educational programs to study the 
biology and behavior of chinch bugs (7 U.S.C. 5884).
    (lxxvii) Administer research programs and grants for risk assessment 
research to address concerns about the environmental effects of 
biotechnology (7 U.S.C. 5921).
    (lxxviii) Administer a rural electronic commerce extension program 
through grants to regional rural development centers and competitive 
grants to land-grant colleges and universities and to colleges and 
universities (including community colleges) with agricultural or rural 
development programs (7 U.S.C. 5923).
    (lxxix) Conduct a research initiative known as the Agricultural 
Genome Initiative, and make grants or enter into cooperative agreements 
on a competitive basis to carry out the Initiative (7 U.S.C. 5924).
    (lxxx) Administer a competitive high priority research and extension 
grants program in specified subject areas (7 U.S.C. 5925).
    (lxxxi) Administer a program of competitive grants to support 
research and extension activities in Nutrient Management Research and 
Extension (7 U.S.C. 5925a).
    (lxxxii) Administer competitive grants to support research and 
extension activities regarding organically grown and processed 
agricultural commodities (7 U.S.C. 5925b).
    (lxxxiii) Facilitate access, through the Economic Research Service 
and the Agricultural Research Service (including the National 
Agricultural Library), by research and extensions professionals, 
farmers, and other interested persons in the United States to, and the 
use by those persons of, organic research conducted outside the United 
States (7 U.S.C. 5925d).
    (lxxxiv)-(lxxxvii) [Reserved]

[[Page 168]]

    (lxxxviii) Establish and administer a program for the development 
and utilization of an agricultural communications network (7 U.S.C. 
5926).
    (lxxxix)-(xc) [Reserved]
    (xci) Administer education programs on Indian reservations and 
tribal jurisdictions (7 U.S.C. 5930).
    (xcii) [Reserved]
    (xciii) Administer a demonstration grants program for support of an 
assistive technology program for farmers with disabilities (7 U.S.C. 
5933).
    (xciv) Conduct research on diseases affecting honeybees (7 U.S.C. 
5934).
    (xcv) Control within USDA the acquisition, use, and disposal of 
material and equipment that may be a source of ionizing radiation 
hazard.
    (xcvi) Conduct programs of research, technology development, and 
education related to global climate change (7 U.S.C. 6701-6710).
    (xcvii) Administer the Small Business Innovation Development Act of 
1982 for USDA (15 U.S.C. 638(e)-(k)).
    (xcviii) Coordinate Departmental policies under the Toxic Substance 
Control Act (15 U.S.C. 2601-2629).
    (xcix) Provide educational and technical assistance in implementing 
and administering the Conservation Reserve Program authorized in 
sections 1231-1244 of the Food Security Act of 1985 (Pub. L. No. 99-198, 
99 Stat. 1509 (16 U.S.C. 3831-3844)).
    (c) Enter into cooperative research and development agreements with 
industry, universities, and others; institute a cash award program to 
reward scientific, engineering, and technical personnel; award royalties 
to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c).
    (ci) Coordinate USDA activities delegated under 15 U.S.C. 3710a-
3710c.
    (cii) Conduct educational and demonstrational work in Cooperative 
Farm Forestry Programs (16 U.S.C. 568).
    (ciii) Administer a cooperative forestry program in accordance with 
the McIntire-Stennis Cooperative Forestry Act, and administer a 
competitive forestry, natural resources, and environmental grant program 
(16 U.S.C. 582A-582A-8).
    (civ) Establish and administer the Forestry Student Grant Program to 
provide competitive grants to assist the expansion of the professional 
education of forestry, natural resources, and environmental scientists 
(16 U.S.C. 1649).
    (cv) Provide for an expanded and comprehensive extension program for 
forest and rangeland renewable resources (16 U.S.C. 1671-1676).
    (cvi) Provide technical, financial, and educational assistance to 
State foresters and State extension directors on rural forestry 
assistance (16 U.S.C. 2102).
    (cvii) Provide educational assistance to State foresters under the 
Forest Stewardship Program (16 U.S.C. 2103a).
    (cviii) Implement and conduct an educational program to assist the 
development of Urban and Community Forestry Programs (16 U.S.C. 2105).
    (cix) Provide staff support to the Secretary of Agriculture in his 
or her role as permanent Chair for the Joint Subcommittee on Aquaculture 
established by the National Aquaculture Act of 1980 and coordinate 
aquacultural activities within the Department (16 U.S.C. 2805).
    (cx) Perform research, development, and extension activities in 
aquaculture (16 U.S.C. 2804 and 2806).
    (cxi) Provide educational assistance to farmers regarding the 
Agricultural Water Quality Protection Program (16 U.S.C. 3838b).
    (cxii) Copy and deliver on demand selected articles and other 
materials from the Department's collections by photographic reproduction 
or other means within the permissions, constraints, and limitations of 
sections 106, 107, and 108 of the Copyright Act of October 19, 1976, (17 
U.S.C. 106, 107, and 108).
    (cxiii) Authorize the use of the 4-H Club name and emblem (18 U.S.C. 
707).
    (cxiv) Maintain a National Arboretum for the purposes of research 
and education concerning tree and plant life, and order disbursements 
from the Treasury, in accordance with the Act of March 4, 1927 (20 
U.S.C. 191 et seq.).
    (cxv) Conduct research on foot-and-mouth disease and other animal 
diseases (21 U.S.C. 113a).
    (cxvi) Conduct research on the control and eradication of cattle 
grubs (screwworms) (21 U.S.C. 114e).

[[Page 169]]

    (cxvii) Obtain and furnish Federal excess property to eligible 
recipients for use in the conduct of research and extension programs (40 
U.S.C. 483(d)(2)).
    (cxviii) Conduct research demonstration and promotion activities 
related to farm dwellings and other buildings for the purposes of 
reducing costs and adapting and developing fixtures and appurtenances 
for more efficient and economical farm use (42 U.S.C. 1476(b)).
    (cxix) Carry out research, demonstration, and educational activities 
authorized in section 202(c) of the Colorado River Basin Salinity 
Control Act (43 U.S.C. 1592(c)).
    (cxx) Conduct research on losses of livestock in interstate commerce 
due to injury or disease (45 U.S.C. 71 note).
    (cxxi) Administer a Cooperative Agricultural Extension Program 
related to agriculture, uses of solar energy with respect to 
agriculture, and home economics in the District of Columbia (D.C. Code 
31-1409).
    (cxxii) [Reserved]
    (cxxiii) Exercise the responsibilities of the Secretary under 
regulations dealing with Equal Employment Opportunity in the Cooperative 
Extension Service (part 18 of this title).
    (cxxiv) Represent the Department on the Federal Interagency Council 
on Education.
    (cxxv) Assure the acquisition, preservation, and accessibility of 
all information concerning food and agriculture by providing leadership 
to and coordination of the acquisition programs and related activities 
of the library and information systems, with the agencies of USDA, other 
Federal departments and agencies, State agricultural experiment 
stations, colleges and universities, and other research institutions and 
organizations.
    (cxxvi) Formulate, write, or prescribe bibliographic and technically 
related standards for the library and information services of USDA (7 
U.S.C. 3125a et seq.).
    (cxxvii) Determine by survey or other appropriate means, the 
information needs of the Department's scientific, professional, 
technical, and administrative staffs, its constituencies, and the 
general public in the areas of food, agriculture, the environment, and 
other related areas.
    (cxxviii) Represent the Department on all library and information 
science matters before Congressional Committees and appropriate 
commissions, and provide representation to the coordinating committees 
of the Federal and State governments concerned with library and 
information science activities.
    (cxxix) Represent the Department in international organizational 
activities and on international technical committees concerned with 
agricultural science, education, and development activities, including 
library and information science activities.
    (cxxx) Prepare and disseminate computer files, indexes and 
abstracts, bibliographies, reviews, and other analytical information 
tools.
    (cxxxi) Arrange for the consolidated purchasing and dissemination of 
printed and automated indexes, abstracts, journals, and other widely 
used information resources and services.
    (cxxxii) Provide assistance and support to professional 
organizations and others concerned with library and information science 
matters and issues.
    (cxxxiii) Pursuant to the authority delegated by the Administrator 
of General Services to the Secretary of Agriculture in 34 FR 6406, 36 FR 
1293, 36 FR 18440, and 38 FR 23838, appoint uniformed armed guards and 
special policemen, make all needful rules and regulations, and annex to 
such rules and regulations such reasonable penalties (not to exceed 
those prescribed in 40 U.S.C. 318(c), as will ensure their enforcement, 
for the protection of persons, property, buildings, and grounds of the 
Arboretum, Washington, DC; the U.S. Meat Animal Research Center, Clay 
Center, NE; the Agricultural Research Center, Beltsville, MD; and the 
Animal Disease Center, Plum Island, NY, over which the United States has 
exclusive or concurrent criminal jurisdiction, in accordance with the 
limitations and requirements of the Federal Property and Administrative 
Services Act of 1949, as amended (40 U.S.C. 471 et seq.), the Act of 
June 1, 1948, as amended (40 U.S.C. 318 et seq.), and the policies, 
procedures, and controls prescribed by the General Services 
Administration. Any rules or regulations promulgated under this 
authority shall be

[[Page 170]]

approved by the Director, Office of Operations, and the General Counsel 
prior to issuance.
    (cxxxiv) Represent the Department on the National Science and 
Technology Council.
    (cxxxv) Administer the Department's Patent Program except as 
delegated to the General Counsel in Sec. 2.31(e).
    (cxxxvi) Review cooperative research and development agreements 
entered into pursuant to 15 U.S.C. 3710a-3710c, with authority to 
disapprove or require the modification of any such agreement.
    (cxxxvii) Establish and administer a 1994 Institutions Endowment 
Fund and to enter into agreements necessary to do this (Section 533(b) 
and (c) of the Equity in Educational Land-Grant Status Act of 1994, 7 
U.S.C. 301 note).
    (cxxxviii) Make grants in equal amounts to 1994 Land-Grant 
Institutions to be used in the same manner as is prescribed for colleges 
under the Act of August 30, 1890 (7 U.S.C. 321 et seq.), and subject to 
the requirements of such Act (Section 534(a) of the Equity in 
Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).
    (cxxxix) Make competitive Institutional Capacity Building Grants to 
assist 1994 Land-Grant Institutions with constructing, acquiring, and 
remodeling buildings, laboratories, and other capital facilities 
(including fixtures and equipment) necessary to conduct instructional 
activities more effectively in agriculture and sciences (Section 535 of 
the Equity in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 
note).
    (cxl) Make competitive grants to 1994 Land-Grant Institutions to 
conduct agricultural research that addresses high priority concerns of 
tribal, national, or multistate significance (Section 536 of the Equity 
in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).
    (cxli) Implement and administer the Community Food Projects Program 
and the Innovative Programs for Addressing Common Community Problems 
pursuant to the provisions of section 25 of the Food Stamp Act of 1977 
(7 U.S.C. 2034).
    (cxlii) [Reserved]
    (cxliii) Coordinate the Department of Agriculture summer intern 
program pursuant to section 922 of the Federal Agriculture Improvement 
and Reform Act (7 U.S.C. 2279c).
    (cxliv) Develop and carry out a system to monitor and evaluate 
agricultural research and extension activities conducted or supported by 
the Department that will enable the Secretary to measure the impact and 
effectiveness of research, extension, and education programs according 
to priorities, goals, and mandates established by law. Conduct a 
comprehensive review of state-of-the-art information technology systems 
for use in developing the system (7 U.S.C. 3129).
    (cxlv) Make grants, competitive grants, and special research grants 
to, and enter into cooperative agreements and other contracting 
instruments with, policy research centers (7 U.S.C. 3155).
    (cxlvi) Conduct a pilot research program to link major cancer and 
heart and other circulatory disease research efforts with agricultural 
research efforts to identify compounds in vegetables and fruits that 
prevent these diseases (7 U.S.C. 3174a).
    (clvii) Administer an Initiative for Future Agriculture and Food 
Systems (7 U.S.C. 7621).
    (cxlviii) Administer the Stuttgart National Aquaculture Research 
Center (16 U.S.C. 778 et seq.; Pub. L. 104-127, sec. 889).
    (cxlix) Provide technical and educational assistance to conserve and 
enhance private grazing land resources (16 U.S.C. 2005b).
    (cl) Provide technical assistance to farmers and ranchers under the 
Environmental Quality Incentives Program (16 U.S.C. 3830 et seq.).
    (cli) Ensure that agricultural research conducted by the 
Agricultural Research Service, and agricultural research, extension, or 
education activities administered by the Cooperative State Research, 
Education, and Extension Service on a competitive basis address a 
concern that is a priority and has national, multistate, or regional 
significance (7 U.S.C. 7611).
    (clii) Solicit and consider input and recommendations from persons 
who conduct or use agricultural research, extension, or education and, 
after consultation with appropriate subcabinet

[[Page 171]]

officials, establish priorities for agricultural research, extension, 
and education activities conducted or funded by the Department; 
promulgate regulations concerning implementation of a process for 
obtaining stakeholder input at 1862, 1890, and 1994 Institutions; and 
ensure that federally supported and conducted agricultural research, 
extension, and education activities are accomplished in accord with 
identified management principles (7 U.S.C. 7612).
    (cliii) Establish procedures that provide for scientific peer review 
of each agricultural research grant administered on a competitive basis, 
and for merit review of each agricultural extension or education grant 
administered, on a competitive basis, by the Cooperative State Research, 
Education, and Extension Service (7 U.S.C. 7613(a)).
    (cliv) Consider the results of the annual review performed by the 
Agricultural Research, Extension, Education, and Economics Advisory 
Board regarding the relevance to priorities of the funding of all 
agricultural research, extension, or education activities conducted or 
funded by the Department and the adequacy of funding, when formulating 
each request for proposals, and evaluating proposals, involving an 
agricultural research, extension, or education activity funded, on a 
competitive basis, by the Department; and solicit and consider input 
from persons who conduct or use agricultural research, extension, or 
education regarding the prior year's request for proposals for each 
activity funded on a competitive basis (7 U.S.C. 7613(c)).
    (clv) Establish, in consultation with appropriate subcabinet 
officials, procedures to ensure scientific peer review of all research 
activities conducted by the Department (7 U.S.C. 7613(d)).
    (clvi) Require a procedure to be established by each 1862, 1890, and 
1994 Institution, for merit review of each agricultural research and 
extension activity funded and review of the activity in accordance with 
the procedure (7 U.S.C. 7613(e)).
    (clvii) Administer an Initiative for Future Agriculture and Food 
Systems (7 U.S.C. 7621).
    (clviii) Administer a program of competitive grants to eligible 
partnerships to coordinate and manage research and extension activities 
to enhance the quality of high-value agricultural products (7 U.S.C. 
7622).
    (clix) Administer a program of competitive grants to eligible 
entities to conduct research, education, or information dissemination 
projects for the development and advancement of precision agriculture (7 
U.S.C. 7623).
    (clx) Coordinate the resources of the Department to develop, 
commercialize, and promote the use of biobased products, and enter into 
cooperative agreements with private entities to operate pilot plants and 
other large-scale preparation facilities under which the facilities and 
technical expertise of the Agricultural Research Service may be made 
available (7 U.S.C. 7624).
    (clxi) Administer the Thomas Jefferson Initiative for Crop 
Diversification program of competitive grants and contracts for the 
purpose of conducting research and development, in cooperation with 
other public and private entities, on the production and marketing of 
new and nontraditional crops needed to strengthen and diversify the 
agricultural production base of the United States (7 U.S.C. 7625).
    (clxii) Administer competitive grants for integrated, 
multifunctional agricultural research, education, and extension 
activities (7 U.S.C. 7626).
    (clxiii) Administer a coordinated program of research, extension, 
and education to improve the competitiveness, viability, and 
sustainability of small and medium size dairy, livestock, and poultry 
operations (7 U.S.C. 7627).
    (clxiv) Administer grants to consortia of land-grant colleges and 
universities to enhance the ability of the consortia to carry out multi-
State research projects aimed at understanding and combating diseases of 
wheat, triticale, and barley caused by Fusarium graminearum and related 
fungi or Tilletia indica and related fungi (7 U.S.C. 7628).
    (clxv) Operate and administer the Food Animal Residue Avoidance 
Database through contracts, grants, or cooperative agreements with 
appropriate colleges or universities (7 U.S.C. 7642).
    (clxvi) Update on a periodic basis, nutrient composition data and 
report to Congress the method that will be used

[[Page 172]]

to update the data and the timing of the update (7 U.S.C. 7651).
    (clxvii) Establish and maintain a Food Safety Research Information 
Office at the National Agricultural Library to provide to the research 
community and the general public information on publicly and privately 
funded food safety research initiatives (7 U.S.C. 7654(a)).
    (clxviii) Develop a national program of safe food handling education 
for adults and young people to reduce the risk of food-borne illness (7 
U.S.C. 7655).
    (clxix) Conduct a performance evaluation to determine whether 
federally funded agricultural research, extension, and education 
programs result in public goods that have national or multistate 
significance, including through a contract with one or more entities to 
provide input and recommendations with respect to federally funded 
agricultural research, extension, and education programs (7 U.S.C. 
7671).
    (clxx) Request the National Academy of Sciences to conduct a study 
of the role and mission of federally funded agricultural research, 
extension, and education (7 U.S.C. 7672).
    (clxxi) Take a census of agriculture in 1998 and every fifth year 
thereafter pursuant to the Census of Agriculture Act of 1997, Pub. L. 
No. 105-113 (7 U.S.C. 2204g).
    (clxxii) Cooperate with other Federal agencies (including the 
National Science Foundation) in issuing joint requests for proposals, 
awarding grants, and administering grants under any competitive 
agricultural research, education, or extension grant program (7 U.S.C. 
3319b).
    (clxxiii) Administer a program of competitive grants, establish 
education teams, and establish an online clearinghouse of curricula and 
training materials and programs, all for training, education, outreach, 
and technical assistance initiatives for the benefit of beginning 
farmers and ranchers (7 U.S.C. 3319f).
    (clxxiv) Administer agricultural research, education, and extension 
activities (including through competitive grants), using any authority 
available to the Secretary, to reduce the vulnerability of the United 
States food and agricultural system to chemical or biological attack, to 
continue partnerships with institutions of higher education and other 
institutions to help form stable, long-term programs to enhance the 
biosecurity of the United States, to make competitive grants to 
universities and qualified research institutions for research on 
counterbioterrorsims, and to counter or otherwise respond to chemical or 
biological attack (7 U.S.C. 3351).
    (clxxv) Administer a program of competitive grants to colleges and 
universities for expansion and security upgrades to enhance the security 
of agriculture against bioterrorism threats (7 U.S.C. 3352).
    (clxxvi) Administer programs for distance education grants and 
resident instruction grants to eligible institutions in insular areas 
that have demonstrable capacity to carry out teaching and extension 
programs in the food and agricultural sciences (7 U.S.C. 3361-3363).
    (clxxvii) Develop and implement a program to communicate with the 
public regarding the use of biotechnology in producing food for human 
consumption (7 U.S.C. 5921a).
    (clxxviii) Administer a program of cooperative research (including 
through competitive award of grants and cooperative agreements to 
colleges and universities) and extension projects on carbon cycling in 
soils and plants, the exchange of other greenhouse gases from 
agriculture, and the carbon sequestration benefits of conservation 
practices (7 U.S.C. 6711).
    (clxxix) Administer a program, in coordination with State 
veterinarians and other appropriate State animal health professionals, 
to conduct research, testing, and evaluation of programs for the control 
and management of Johne's disease in livestock (7 U.S.C. 7629).
    (clxxx) Administer a program of grants to the Girl Scouts of the 
United States of America, the Boy Scouts of America, the National 4-H 
Council, and the National FFA Organization to establish pilot projects 
to expand the programs carried out by the organizations in rural areas 
and small towns (7 U.S.C. 7630).

[[Page 173]]

    (clxxxi) Oversee implementation of the termination of Federal 
schedule A civil service appointments of State agricultural extension 
employees at land-grant colleges and universities (section 7220 of Pub. 
L. 107-171).
    (clxxxii) Administer a program of grants to the Food and 
Agricultural Policy Research Institute (section 10805 of Pub. L. 107-
171).
    (2) Related to committee management. Establish or reestablish 
regional, state and local advisory committees for the activities 
authorized. This authority may not be redelegated.
    (3) Related to defense and emergency preparedness. Administer the 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.), and title VI of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5195 et seq.), concerning scientific and educational programs; 
estimates of supplies of agricultural commodities and evaluation of 
requirements therefor; coordination of damage assessment; food and 
agricultural aspects of economic stabilization, economic research, and 
agricultural statistics; and the coordination of energy programs.
    (4) Related to rural development activities. Provide guidance and 
direction for the accomplishment of activities authorized under Section 
V of the Rural Development Act of 1972, as amended (7 U.S.C. 2661 et 
seq.), for programs under the control of the Under Secretary for 
Research, Education, and Economics, coordinating the policy aspects 
thereof with the Under Secretary for Rural Development.
    (5) Related to environmental response. With respect to land and 
facilities under his or her authority, exercise the functions delegated 
to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, 
under the following provisions of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (``the Act''), as 
amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action,

[[Page 174]]

including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (6) Related to compliance with environmental laws. With respect to 
facilities and activities under his or her authority, to exercise the 
authority of the Secretary of Agriculture pursuant to section 1-102 
related to compliance with applicable pollution control standards and 
section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to 
enter into an inter-agency agreement with the United States 
Environmental Protection Agency, or an administrative consent order or a 
consent judgment in an appropriate State, interstate, or local agency, 
containing a plan and schedule to achieve and maintain compliance with 
applicable pollution control standards established pursuant to the 
following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (7) Related to national food and human nutrition research. (i) 
Administer a National Food and Human Nutrition Research Program under 
the National Agricultural Research, Extension, and Teaching Policy Act 
of 1977, as amended. As used herein the term ``research'' includes:
    (A) Research on the nutrient composition of foods and the effects of 
agricultural practices, handling, food processing, and cooking on the 
nutrients they contain;
    (B) Surveillance of the nutritional benefits provided to 
participants in the food programs administered by the Department; and
    (C) Research on the factors affecting food preference and habits (7 
U.S.C. 3171-3175, 3177).
    (ii) The authority in paragraph (a)(7)(i) of this section includes 
the authority to:
    (A) Appraise the nutritive content of the U.S. food supply;
    (B) Develop and make available data on the nutrient composition of 
foods needed by Federal, State, and local agencies administering food 
and nutrition programs, and the general public, to improve the 
nutritional quality of diets;
    (C) Coordinate nutrition education research projects within the 
Department; and
    (D) Maintain data generated on food composition in a National 
Nutrient Data Bank.
    (iii) Conduct, in cooperation with the Department of Health and 
Human Services, the National Nutrition Monitoring and Related Research 
Program. Included in this delegation is the authority to:
    (A) Design and carry out periodic nationwide food consumption 
surveys to measure household food consumption;
    (B) Design and carry out a continuous, longitudinal individual 
intake survey of the United States population and special high-risk 
groups; and
    (C) Design and carry out methodological research studies to develop 
improved procedures for collecting household and individual food intake 
consumption data;
    (iv) [Reserved]
    (v) Co-chair with the Assistant Secretary for Health, Department of 
Health and Human Services, the Interagency Board for Nutrition 
Monitoring

[[Page 175]]

and Related Research for the development and coordination of a Ten-Year 
Comprehensive Plan as required by Pub. L. No. 101-445, 7 U.S.C. 5301 et 
seq.
    (8) Related to economic research and statistical reporting. (i) 
Conduct economic research on matters of importance to cooperatives as 
authorized by the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-
1627).
    (ii) Conduct economic and social science research and analyses 
relating to:
    (A) Food and agriculture situation and outlook;
    (B) The production, marketing, and distribution of food and fiber 
products (excluding forest and forest products), including studies of 
the performance of the food and agricultural sector of the economy in 
meeting needs and wants of consumers;
    (C) Basic and long-range, worldwide, economic analyses and research 
on supply, demand, and trade in food and fiber products and the effects 
on the U.S. food and agriculture system, including general economic 
analyses of the international financial and monetary aspects of 
agricultural affairs;
    (D) Natural resources, including studies of the use and management 
of land and water resources, the quality of these resources, resource 
institutions, and watershed and river basin development problems; and
    (E) Rural people and communities, as authorized by title II of the 
Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), and 
the Act of June 29, 1935, as amended (7 U.S.C. 427).
    (iii) Perform economic and other social science research under 
section 104(b)(1) and (3) of the Agricultural Trade Development and 
Assistance Act of 1954, as amended, with funds administered by the 
Foreign Agricultural Service (7 U.S.C. 1704).
    (iv) Prepare crop and livestock estimates and administer reporting 
programs, including estimates of production, supply, price, and other 
aspects of the U.S. agricultural economy, collection of statistics, 
conduct of enumerative and objective measurement surveys, construction 
and maintenance of sampling frames, and related activities. Prepare 
reports of the Agricultural Statistics Board covering official state and 
national estimates (7 U.S.C. 476, 951, and 2204).
    (v) Take such security precautions as are necessary to prevent 
disclosure of crop or livestock report information prior to the 
scheduled issuance time approved in advance by the Secretary of 
Agriculture and take such actions as are necessary to avoid disclosure 
of confidential data or information supplied by any person, firm, 
partnership, corporation, or association (18 U.S.C. 1902, 1903, and 
2072).
    (vi) Improve statistics in the Department; maintain liaison with OMB 
and other Federal agencies for coordination of statistical methods and 
techniques.
    (vii) Investigate and make findings as to the effect upon the 
production of food and upon the agricultural economy of any proposed 
action pending before the Administrator of the Environmental Protection 
Agency for presentation in the public interest, before said 
Administrator, other agencies, or before the courts.
    (viii) Review economic data and analyses used in speeches by 
Department personnel and in materials prepared for release through the 
press, radio, and television.
    (ix) Coordinate all economic analysis and review all decisions 
involving substantial economic policy implications.
    (x) Cooperate and work with national and international institutions 
and other persons throughout the world in the performance of 
agricultural research and extension activities to promote and support 
the development of a viable and sustainable global and agricultural 
system. Such work may be carried out by:
    (A) Exchanging research materials and results with the institutions 
or persons;
    (B) Engaging in joint or coordinated research;
    (C) Entering into cooperative arrangements with Departments and 
Ministries of Agriculture in other nations to conduct research, 
extension; and education activities (limited to arrangements either 
involving no exchange of funds or involving disbursements by the agency 
to the institutions of other nations), and then reporting these 
arrangements to the Secretary of Agriculture;

[[Page 176]]

    (D) Stationing representatives at such institutions or organizations 
in foreign countries; or
    (E) Entering into agreements with land-grant colleges and 
universities, other organizations, institutions, or individuals with 
comparable goals, and with the concurrence of the Foreign Agricultural 
Service, USDA, international organizations (limited to agreements either 
involving no exchange of funds or involving disbursements by the agency 
to the cooperator), and then reporting these agreements to the Secretary 
of Agriculture (7 U.S.C. 3291(a)).
    (xi) Prepare for transmittal by the Secretary to the President and 
both Houses of Congress, an analytical report under section 5 of the 
Agricultural Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3504) 
concerning the effect on family farms and rural communities of holdings, 
acquisitions, and transfers of U.S. agricultural land by foreign 
persons.
    (xii) Enter into contracts, grants, or cooperative agreements to 
further research and statistical reporting programs in the food and 
agricultural sciences (7 U.S.C. 3318).
    (xiii) Enter into cost-reimbursable agreements relating to 
agricultural research and statistical reporting (7 U.S.C. 3319a).
    (xiv) Ensure that segregated data on the production and marketing of 
organic agricultural products is included in the ongoing baseline of 
data collection regarding agricultural production and marketing (7 
U.S.C. 5925c).
    (xv) Administer a program of mandatory reporting for dairy products 
and substantially identical products (7 U.S.C. 1637a, 1637b).
    (xvi) Include in each issuance of projections of net farm income an 
estimate of the net farm income earned by commercial producers in the 
United States that will in addition show the estimate of net farm income 
attributable to commercial producers of livestock, loan commodities, and 
agricultural commodities other than loan commodities (7 U.S.C. 7998).
    (9) Related to immigration. Serve as the designee of the Secretary 
pursuant to section 212(e) of the Immigration and Nationality Act, as 
amended, 8 U.S.C. 1182(e) and 22 CFR 514.44(c)).
    (10) Related to hazardous materials management. (i) Serve on the 
USDA Hazardous Materials Policy Council.
    (ii) Recommend actions and policies that enable USDA agencies under 
his or her authority to comply with the intent, purposes, and standards 
of environmental laws for pollution prevention, control, and abatement.
    (iii) Consult with the United States Environmental Protection Agency 
and other appropriate Federal agencies in developing pollution 
prevention, control, and abatement policies and programs relating to 
agencies under his or her authority.
    (iv) Serve as a USDA Environmental Executive responsible for 
coordinating waste prevention; recycling; and the procurement, 
acquisition, and use of recycled products and environmentally preferable 
products, including biobased products, and services pursuant to 
Executive Order 13101 (dual assignment with the Assistant Secretary for 
Administration).
    (b) The following authorities are reserved to the Secretary of 
Agriculture:
    (1) Related to science and education. (i) Withhold funds from States 
in accordance with section 1436 of the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3198).
    (ii) Reapportion funds under section 4 and apportion funds under 
section 5 of the Act of October 10, 1962 (16 U.S.C. 582a-3, 582a-5).
    (iii) Appoint an advisory committee under section 6 of the Act of 
October 10, 1962 (16 U.S.C. 582a-4).
    (iv) Final concurrence in Equal Employment Opportunity Programs 
within the cooperative extension programs submitted under part 18 of 
this title.
    (v) Approve selection of State directors of extension.
    (vi) Approve the memoranda of understanding between the land-grant 
universities and USDA related to cooperative extension programs.
    (2) Related to economic research and statistical reporting. (i) 
Final approval and issuance of the monthly crop report (7 U.S.C. 411a).

[[Page 177]]

    (ii) Final action on rules and regulations for the Agricultural 
Statistics Board.

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 65593, Dec. 15, 1997; 64 
FR 40735, July 28, 1999; 65 FR 5414, Feb. 4, 2000; 65 FR 12428, Mar. 9, 
2000; 65 FR 31245, May 17, 2000; 68 FR 27437, May 20, 2003]



Sec. 2.22  Under Secretary for Marketing and Regulatory Programs.

    (a) The following delegations of authority are made by the Secretary 
to the Under Secretary for Marketing and Regulatory Programs:
    (1) Related to agricultural marketing. (i) Exercise the functions of 
the Secretary of Agriculture contained in the Agricultural Marketing Act 
of 1946, as amended (7 U.S.C. 1621-1627), including payments to State 
Departments of Agriculture in connection with cooperative marketing 
service projects under section 204(b) (7 U.S.C. 1623(b)), but excepting 
matters otherwise assigned.
    (ii) Conduct marketing efficiency research and development 
activities directly applicable to the conduct of the Wholesale Market 
Development Program, specifically:
    (A) Studies of facilities and methods used in physical distribution 
of food and other farm products;
    (B) Studies designed to improve handling of all agricultural 
products as they are moved from farms to consumers; and
    (C) application of presently available scientific knowledge to the 
solution of practical problems encountered in the marketing of 
agricultural products (7 U.S.C. 1621-1627).
    (iii) Exercise the functions of the Secretary of Agriculture 
relating to the transportation activities contained in section 203(j) of 
the Agricultural Marketing Act of 1946 (7 U.S.C. 1622(j)) as amended, 
but excepting matters otherwise assigned.
    (iv) Administer transportation activities under section 201 of the 
Agricultural Adjustment Act of 1938 (7 U.S.C. 1291).
    (v) Apply results of economic research and operations analysis to 
evaluate transportation issues and to recommend revisions of current 
procedures.
    (vi) Serve as the focal point for all Department transportation 
matters including development of policies and strategies.
    (vii) Cooperate with other Departmental agencies in the development 
and recommendation of policies for inland transportation of USDA and 
CCC-owned commodities in connection with USDA programs.
    (viii) Exercise the functions of the Secretary of Agriculture with 
respect to the following legislation:
    (A) U.S. Cotton Standards Act (7 U.S.C. 51-65);
    (B) Cotton futures provisions of the Internal Revenue Code of 1954 
(26 U.S.C. 4854, 4862-4865, 4876, and 7263);
    (C) Cotton Statistics and Estimates Act, as amended (7 U.S.C. 471-
476), except as otherwise assigned;
    (D) Naval Stores Act (7 U.S.C. 91-99);
    (E) Tobacco Inspection Act (7 U.S.C. 511-511q);
    (F) Wool Standard Act (7 U.S.C. 415b-415d);
    (G) Agricultural Marketing Agreement Act of 1937, as amended (7 
U.S.C. 601, 602, 608a-608e, 610, 612, 614, 624, 671-674);
    (H) Cotton Research and Promotion Act (7 U.S.C. 2101-2118), except 
as delegated to the Under Secretary for Farm and Foreign Agricultural 
Services in Sec. 2.16(a)(3)(x);
    (I) Export Apple and Pear Act (7 U.S.C. 581-590);
    (J) Export Grape and Plum Act (7 U.S.C. 591-599);
    (K) Titles I, II, IV, and V of the Federal Seed Act, as amended (7 
U.S.C. 1551-1575, 1591-1611);
    (L) Perishable Agricultural Commodities Act (7 U.S.C. 499a-499s);
    (M) Produce Agency Act (7 U.S.C. 491-497);
    (N) Tobacco Seed and Plant Exportation Act (7 U.S.C. 516-517);
    (O) Tobacco Statistics Act (7 U.S.C. 501-508);
    (P) Section 401(a) of the Organic Act of 1944 (7 U.S.C. 415e);
    (Q) Agricultural Fair Practices Act (7 U.S.C. 2301-2306);
    (R) Wheat Research and Promotion Act (7 U.S.C. 1292 note), except as 
delegated to the Under Secretary for Farm and Foreign Agricultural 
Services in Sec. 2.16(a)(3)(x);

[[Page 178]]

    (S) Plant Variety Protection Act (7 U.S.C. 2321-2331, 2351-2357, 
2371-2372, 2401-2404, 2421-2427, 2441-2443, 2461-2463, 2481-2486, 2501-
2504, 2531-2532, 2541-2545, 2561-2569, 2581-2583), except as delegated 
to the Judicial Officer;
    (T) Subtitle B of title I and section 301(4) of the Dairy and 
Tobacco Adjustment Act of 1983 (7 U.S.C. 4501-4513, 4514(4)), except as 
delegated to the Under Secretary for Farm and Foreign Agricultural 
Services in Sec. 2.16(a)(3)(x);
    (U) Potato Research and Promotion Act (7 U.S.C. 2611-2627), except 
as delegated to the Under Secretary for Farm and Foreign Agricultural 
Services in Sec. 2.16(a)(3)(x);
    (V) [Reserved]
    (W) Egg Research and Consumer Information Act (7 U.S.C. 2701-2718), 
except as delegated to the Under Secretary for Farm and Foreign 
Agricultural Services in Sec. 2.16(a)(3)(x);
    (X) Beef Research and Information Act, as amended (7 U.S.C. 2901-
2918), except as delegated to the Under Secretary for Farm and Foreign 
Agricultural Services in Sec. Sec. 2.16(a)(1)(xiv) and (a)(3)(x);
    (Y) Wheat and Wheat Foods Research and Nutrition Education Act (7 
U.S.C. 3401-3417), except as delegated to the Under Secretary for Farm 
and Foreign Agricultural Services in
    Sec. 2.16(a)(3)(x);
    (Z) Egg Products Inspection Act relating to the Shell Egg 
Surveillance Program, voluntary laboratory analyses of egg products, and 
the Voluntary Egg Grading Program (21 U.S.C. 1031-1056);
    (AA) Section 32 of the Act of August 24, 1935 (7 U.S.C. 612c), as 
supplemented by the Act of June 28, 1937 (15 U.S.C. 713c), and related 
legislation, except functions which are otherwise assigned relating to 
the domestic distribution and donation of agricultural commodities and 
products thereof following the procurement thereof;
    (BB) Procurement of agricultural commodities and other foods under 
section 6 of the National School Lunch Act of 1946, as amended (42 
U.S.C. 1755);
    (CC) In carrying out the procurement functions in paragraphs 
(a)(1)(viii)(AA) and (BB) of this section, the Assistant Secretary for 
Marketing and Regulatory Programs shall, to the extent practicable, use 
the commodity procurement, handling, payment and related services of the 
Farm Service Agency;
    (DD) Act of May 23, 1980, regarding inspection of dairy products for 
export (21 U.S.C. 693);
    (EE) The Pork Promotion, Research and Consumer Information Act of 
1985 (7 U.S.C. 4801-4819), except as delegated to the Under Secretary 
for Farm and Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (FF) The Watermelon Research and Promotion Act (7 U.S.C. 4901-4916), 
except as delegated to the Under Secretary for Farm and Foreign 
Agricultural Services in Sec. 2.16(a)(3)(x);
    (GG) The Honey Research, Promotion, and Consumer Information Act (7 
U.S.C. 4601-4612), except as delegated to the Under Secretary for Farm 
and Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (HH) Subtitles B and C of the Dairy Production Stabilization Act of 
1983, as amended (7 U.S.C. 4501-4513, 4531-4538);
    (II) The Floral Research and Consumer Information Act (7 U.S.C. 
4301-4319), except as delegated to the Under Secretary for Farm and 
Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (JJ) Section 213 of the Tobacco Adjustment Act of 1983, as amended 
(7 U.S.C. 511r);
    (KK) National Laboratory Accreditation Program (7 U.S.C. 138-138i) 
with respect to laboratories accredited for pesticide residue analysis 
in fruits and vegetables and other agricultural commodities, except 
those laboratories analyzing only meat and poultry products;
    (LL) Pecan Promotion and Research Act of 1990 (7 U.S.C. 6001-6013), 
except as delegated to the Under Secretary for Farm and Foreign 
Agricultural Services in Sec. 2.16(a)(3)(x);
    (MM) Mushroom Promotion, Research, and Consumer Information Act of 
1990 (7 U.S.C. 6101-6112), except as delegated to the Under Secretary 
for Farm and Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (NN) Lime Research, Promotion, Research, and Consumer Information 
Act of 1990 (7 U.S.C. 6201-6212), except as delegated to the Under 
Secretary for

[[Page 179]]

Farm and Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (OO) Soybean Promotion, Research, and Consumer Information Act (7 
U.S.C. 6301-6311), except as delegated to the Under Secretary for Farm 
and Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (PP) Fluid Milk Promotion Act of 1990 (7 U.S.C. 6401-6417), except 
as delegated to the Under Secretary for Farm and Foreign Agricultural 
Services in Sec. 2.16(a)(3)(x);
    (QQ) Producer Research and Promotion Board Accountability (104 Stat. 
3927);
    (RR) Consistency with International Obligations of the United States 
(7 U.S.C. 2278);
    (SS) Organic Foods Production Act of 1990 (7 U.S.C. 6501-6522), 
provided that the Administrator, Agricultural Marketing Service, will 
enter into agreements, as necessary, with the Administrator, Food Safety 
and Inspection Service, to provide inspection services;
    (TT) Pesticide Recordkeeping (7 U.S.C. 136i-1) with the provision 
that the Administrator, Agricultural Marketing Service, will enter into 
agreements, as necessary, with other Federal agencies;
    (UU) The International Carriage of Perishable Foodstuffs Act (7 
U.S.C. 4401-4406);
    (VV) The Sheep Promotion, Research, and Information Act (7 U.S.C. 
7101-7111), except as delegated to the Under Secretary for Farm and 
Foreign Agricultural Services in Sec. 2.16(a)(3)(x); and
    (WW) The Fresh Cut Flowers and Fresh Cut Greens Promotion and 
Consumer Information Act (7 U.S.C. 6801-6814), except as delegated to 
the Under Secretary for Farm and Foreign Agricultural Services in Sec. 
2.16(a)(3)(x).
    (XX) Commodity Promotion and Evaluation (7 U.S.C. 7401);
    (YY) The Commodity Promotion, Research, and Information Act of 1996 
(7 U.S.C. 7411-7425), except as delegated to the Under Secretary for 
Farm and Foreign Agricultural Services in Sec. 2.16(a)(3)(x);
    (ZZ) The Canola and Rapeseed Research, Promotion, and Consumer 
Information Act (7 U.S.C. 7441-7452), except as delegated to the Under 
Secretary for Farm and Foreign Agricultural Services in Sec. 
2.16(a)(3)(x);
    (AAA) The National Kiwifruit Research, Promotion, and Consumer 
Information Act (7 U.S.C. 7461-7473), except as delegated to the Under 
Secretary for Farm and Foreign Agricultural Services in Sec. 
2.16(a)(3)(x);
    (BBB) The Popcorn Promotion, Research, and Consumer Information Act 
(7 U.S.C. 7481-7491), except as delegated to the Under Secretary for 
Farm and Foreign Agricultural Services in Sec. 2.16(a)(3)(x).
    (CCC) Farmers' Market Promotion Program (7 U.S.C. 2005).
    (DDD) National Organic Certification Cost-Share Program (7 U.S.C. 
6523).
    (EEE) Exemption of Certified Organic Products from Assessment (7 
U.S.C. 7401).
    (FFF) Country of Origin Labeling (7 U.S.C. 1638-1638(d)).
    (GGG) Hass Avocado Promotion, Research, and Consumer Information Act 
of 2000 (7 U.S.C. 7801-7813).
    (ix) Furnish, on request, copies of programs, pamphlets, reports, or 
other publications for missions or programs as may otherwise be 
delegated or assigned to the Assistant Secretary for Marketing and 
Regulatory Programs, and charge user fees therefor, as authorized by 
section 1121 of the Agriculture and Food Act of 1981, as amended by 
section 1769 of the Food Security Act of 1985, 7 U.S.C. 2242a.
    (x) Collect, summarize, and publish data on the production, 
distribution, and stocks of sugar.
    (2) Related to animal and plant health inspection. Exercise the 
functions of the Secretary of Agriculture under the following 
authorities:
    (i) Administer the Foreign Service personnel system for employees of 
the Animal and Plant Health Inspection Service in accordance with 22 
U.S.C. 3922, except that this delegation does not include the authority 
to represent the Department of Agriculture in interagency consultations 
and negotiations with other foreign affairs agencies regarding joint 
regulations, nor the authority to approve joint regulations issued by 
the Department of State relating to administration of the Foreign 
Service;

[[Page 180]]

    (ii) The Terminal Inspection Act, as amended (7 U.S.C. 166);
    (iii) The Honeybee Act, as amended (7 U.S.C. 281-286);
    (iv) Section 18 of the Federal Meat Inspection Act, as amended, as 
it pertains to the issuance of certificates of condition of live animals 
intended and offered for export (21 U.S.C. 618);
    (v) The responsibilities of the United States under the 
International Plant Protection Convention;
    (vi) (Laboratory) Animal Welfare Act, as amended (7 U.S.C. 2131-
2159);
    (vii) Horse Protection Act (15 U.S.C. 1821-1831);
    (viii) 28 Hour Law, as amended (49 U.S.C. 80502);
    (ix) Export Animal Accommodation Act, as amended (46 U.S.C. 3901-
3902);
    (x) Purebred Animal Duty Free Entry Provisions of Tariff Act of June 
17, 1930, as amended (19 U.S.C. 1202, part 1, Item 100.01);
    (xi) Virus-Serum-Toxin Act (21 U.S.C. 151-159).
    (xii) Conduct diagnostic and related activities necessary to 
prevent, detect, control or eradicate foot-and-mouth disease and other 
foreign animal diseases (21 U.S.C. 113a);
    (xiii) The Agricultural Marketing Act of 1946, sections 203, 205, as 
amended (7 U.S.C. 1622, 1624), with respect to voluntary inspection and 
certification of animal products; inspection, testing, treatment, and 
certification of animals; and a program to investigate and develop 
solutions to the problems resulting from the use of sulfonamides in 
swine;
    (xiv) Talmadge Aiken Act (7 U.S.C. 450) with respect to cooperation 
with States in control and eradication of plant and animal diseases and 
pests;
    (xv) The Federal Noxious Weed Act of 1974, as amended (7 U.S.C. 2801 
note; 2814).
    (xvi) The Endangered Species Act of 1973 (16 U.S.C. 1531-1544);
    (xvii) Executive Order 11987, 3 CFR, 1977 Comp., p. 116;
    (xviii) Section 101(d), Organic Act of 1944 (7 U.S.C. 430);
    (xix) The Swine Health Protection Act, as amended (7 U.S.C. 3801-
3813);
    (xx) Lacey Act Amendments of 1981, as amended (16 U.S.C. 3371-3378);
    (xxi) Title III (and title IV to the extent that it relates to 
activities under title III,) of the Federal Seed Act, as amended (7 
U.S.C. 1581-1610);
    (xxii) Authority to prescribe the amounts of commuted traveltime 
allowances and the circumstances under which such allowances may be paid 
to employees covered by the Act of August 28, 1950 (7 U.S.C. 2260);
    (xxiii) The Act of March 2, 1931 (7 U.S.C. 426-426b);
    (xxiv) The Act of December 22, 1987 (7 U.S.C. 426c);
    (xxv) Authority to work with developed and transitional countries on 
agricultural and related research and extension, with respect to animal 
and plant health, including providing technical assistance, training, 
and advice to persons from such countries engaged in such activities and 
the stationing of scientists of national and international institutions 
in such countries (7 U.S.C. 3291(a)(3));
    (xxvi) Authority to prescribe and collect fees under the Act of 
August 31, 1951, as amended (31 U.S.C. 9701), and sections 2508 and 2509 
of the Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 
136, 136a), as amended;
    (xxvii) The provisions of 35 U.S.C. 156;
    (xviii) Enter into cooperative research and development agreements 
with industry, universities, and others; institute a cash award program 
to reward scientific, engineering, and technical personnel; award 
royalties to inventors; and retain and use royalty income (15 U.S.C. 
3710a-3710c); and
    (xxix) The Alien Species Prevention and Enforcement Act of 1992 (39 
U.S.C. 3015 note).
    (xxxx) Sections 901-905 of the Federal Agriculture Improvement and 
Reform Act of 1996 (7 U.S.C. 1901 note).
    (xxxi) Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 
438, 7 U.S.C. 7701-7772).
    (xxxii) Animal Health Protection Act (7 U.S.C. 8301-8317).
    (xxxiii) Section 10504 of the Farm Security and Rural Investment Act 
of 2002 (7 U.S.C. 8318).
    (xxxiv) Title V of the Agricultural Risk Protection Act of 2000 (7 
U.S.C. 2279e and 2279f).
    (xxxv) The responsibilities of the United States related to 
activities of

[[Page 181]]

the Office of International des Epizooties.
    (3) Related to grain inspection, packers and stockyards. (i) 
Exercise the authority of the Secretary of Agriculture contained in the 
U.S. Grain Standards Act, as amended (7 U.S.C. 71-87h).
    (ii) Exercise the functions of the Secretary of Agriculture 
contained in the Agricultural Marketing Act of 1946, as amended (7 
U.S.C. 1621-1627), relating to inspection and standardization activities 
relating to grain.
    (iii) Administer the Packers and Stockyards Act, as amended and 
supplemented (7 U.S.C. 181-229).
    (iv) Enforce provisions of the Consumer Credit Protection Act (15 
U.S.C. 1601-1655, 1681-1681t) with respect to any activities subject to 
the Packers and Stockyards Act, 1921, as amended and supplemented.
    (v) Exercise the functions of the Secretary of Agriculture contained 
in section 1324 of the Food Security Act of 1985 (7 U.S.C. 1631).
    (4) Related to committee management. Establish and reestablish 
regional, State, and local advisory committees for activities under his 
or her authority. This authority may not be redelegated.
    (5) Related to defense and emergency preparedness. (i) Administer 
responsibilities and functions assigned under the Defense Production Act 
of 1950, as amended (50 U.S.C. App. 2061 et seq.), and title VI of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5195 et seq.), concerning protection of livestock, poultry and 
crops and products thereof from biological and chemical warfare; and 
utilization or disposal of livestock and poultry exposed to radiation.
    (ii) Title II, Subtitles B and C, of the Public Health Security and 
Bioterrorism Preparedness and Response Act of 2002 (7 U.S.C. 8401 note, 
8401, 8411).
    (6) Related to biotechnology. Coordinate the development and 
carrying out by Department agencies of all matters and functions 
pertaining to the Department's regulation of biotechnology, and act as 
liaison on all matters and functions pertaining to the regulation of 
biotechnology between agencies within the Department and between the 
Department and governmental and private organizations. Provided, that 
with respect to biotechnology matters affecting egg products, the 
Assistant Secretary shall consult and coordinate activities of 
Department agencies with the Under Secretary for Food Safety.
    (7) Related to environmental response. With respect to land and 
facilities under his or her authority, exercise the functions delegated 
to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, 
under the following provisions of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (``the Act''), as 
amended:
    (i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;

[[Page 182]]

    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (8) Related to compliance with environmental laws. With respect to 
facilities and activities under his or her authority, to exercise the 
authority of the Secretary of Agriculture pursuant to section 1-102 
related to compliance with applicable pollution control standards and 
section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to 
enter into an inter-agency agreement with the United States 
Environmental Protection Agency, or an administrative consent order or a 
consent judgment in an appropriate State, interstate, or local agency, 
containing a plan and schedule to achieve and maintain compliance with 
applicable pollution control standards established pursuant to the 
following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (9) Related to the Capper-Volstead Act. Serve as a member of the 
Capper-Volstead Act Committee to identify cases of undue price 
enhancement by associations of producers and issue complaints requiring 
such associations to show cause why an order should not be made 
directing them to cease and desist from monopolization or restraint of 
trade (7 U.S.C. 292).
    (10) Related to hazardous materials management. (i) Serve on the 
USDA Hazardous Materials Policy Council.
    (ii) Recommend actions and policies that enable USDA agencies under 
his or her authority to comply with the intent, purposes, and standards 
of environmental laws for pollution prevention, control, and abatement.
    (iii) Consult with the United States Environmental Protection Agency 
and other appropriate Federal agencies in developing pollution 
prevention, control, and abatement policies and programs relating to 
agencies under his or her authority.
    (b) The following authorities are reserved to the Secretary of 
Agriculture:
    (1) Relating to agricultural marketing.
    (i) Promulgation, with the Secretary of the Treasury of joint 
regulations under section 402(b) of the Federal Seed Act, as amended (7 
U.S.C. 1592(b)).
    (ii) Appoint members of the National Dairy Promotion and Research 
Board established by section 113(b) of the

[[Page 183]]

Dairy and Tobacco Adjustment Act of 1983 (7 U.S.C. 4504(b)).
    (iii) Appoint members of the National Processor Advertising and 
Promotion Board established by section 1999H(b)(4) of the Fluid Milk 
Promotion Act of 1990 (7 U.S.C. 6407(b)).
    (iv) Appoint members of the Cotton Board established by section 7(a) 
of the Cotton Research and Promotion Act, as amended (7 U.S.C. 2106(a));
    (v) Appoint members of the Egg Board established by section 8(a) of 
the Egg Research and Consumer Information Act (7 U.S.C. 2707(a));
    (vi) Appoint members of the Floraboard established by section 
1707(1) of the Floral Research and Consumer Information Act (7 U.S.C. 
4306(1));
    (vii) Appoint members of the Honey Board established by section 
7(c)(1) of the Honey Research, Promotion, and Consumer Information Act, 
as amended (7 U.S.C. 4606(c));
    (viii) Appoint members of the Lime Board established by section 
1955(b)(2) of the Lime Research, Promotion, and Consumer Information Act 
of 1990 (7 U.S.C. 6204(b));
    (ix) Appoint members of the Mushroom Council established by section 
1925(b)(1)(B) of the Mushroom Promotion, Research, and Consumer 
Information Act of 1990 (7 U.S.C. 6104(b));
    (x) Appoint members of the Pecan Marketing Board established by 
section 1910(b)(8)(E) of the Pecan Promotion and Research Act of 1990 (7 
U.S.C. 6005(b));
    (xi) Appoint members of the National Potato Promotion Board 
established by section 308(a)(4) of the Potato Research and Promotion 
Act as amended (7 U.S.C. 2617(a));
    (xii) Appoint members of the National Watermelon Promotion Board 
established by section 1647(c) of the Watermelon Research and Promotion 
Act (7 U.S.C. 4906(c));
    (xiii) Appoint members of the PromoFlor Council established by 
section 5(b) of the Fresh Cut Flowers and Fresh Cut Greens Act of 1993 
(7 U.S.C. 6804(b));
    (xiv) Appoint members of the National Kiwifruit Board established by 
section 555(c)(1) of the National Kiwifruit Research, Promotion, and 
Consumer Information Act (7 U.S.C. 7464(c));
    (xv) Appoint members of Popcorn Board established by section 
575(b)(1) of the Popcorn Promotion, Research, and Consumer Information 
Act (7 U.S.C. 7484(b));
    (xvi) Appoint members of the Wheat Industry Council established by 
section 1706(a) of the Wheat and Wheat Foods Research and Nutrition 
Education Act (7 U.S.C. 3405(a));
    (xvii) Appoint members of the Cattlemen's Beef Promotion and 
Research Board established by section 5(1) of the Beef Research and 
Information Act as amended (7 U.S.C. 2904(1));
    (xviii) Appoint members of the National Pork Board established by 
section 1619(a)(1) of the Pork Promotion, Research, and Consumer 
Information Act of 1985 (7 U.S.C. 4808(a));
    (xix) Appoint members of the United Soybean Board established by 
section 1969(b)(1) of the Soybean Promotion, Research, and Consumer 
Information Act (7 U.S.C. 6304(b));
    (xx) Appoint members of the National Sheep Promotion, Research, and 
Information Board established by section 5(b) of the Sheep Promotion, 
Research, and Information Act (7 U.S.C. 7104(b)(1);
    (xxi) Appoint members of the National Canola and Rapeseed Board 
established by section 535(b)(1) of the Canola and Rapeseed Research, 
Promotion, and Consumer Information Act (7 U.S.C. 7444(b));
    (xxii) Appoint members of boards established by section 515(b)(2)(A) 
of the Commodity Promotion, Research, and Information Act of 1996 (7 
U.S.C. 7414(b)).
    (2) Related to animal and plant health inspection. (i) Determination 
that an emergency or extraordinary emergency exists under the Animal 
Health Protection Act (7 U.S.C. 8306, 8316).
    (ii) Determination that an emergency or extraordinary emergency 
exists under the Plant Protection Act (7 U.S.C. 7715, 7772).
    (iii) Approval of requests for apportionment of reserves for the 
control of outbreaks of insects, plant diseases,

[[Page 184]]

and animal diseases to the extent necessary to meet emergency conditions 
(31 U.S.C. 1512).

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25776, May 23, 1996; 61 
FR 68541, Dec. 30, 1996; 62 FR 40254, July 28, 1997; 65 FR 12428, Mar. 
9, 2000; 65 FR 49471, Aug. 14, 2000; 68 FR 27439, May 20, 2003; 70 FR 
55706, Sept. 23, 2005]

    Editorial Note: At 70 FR 55706, Sept. 23, 2005, the Department of 
Agriculture published a document in the Federal Register, attempting to 
amend Sec. 2.22, by revising paragraph (a)(2)(xxxi). However, because 
of inaccurate amendatory language, this amendment could not be 
incorporated. For the convenience of the user, the language at 70 FR 
55706 is set forth as follows:

Sec. 2.22  Under Secretary for Marketing and Regulatory Programs.

    (a) * * *
    (2) * * *

                                * * * * *

    (xxxii) Plant Protection Act, as amended (7 U.S.C. 7701-7786).

                                * * * * *



Sec. 2.23  Assistant Secretary for Congressional Relations.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Assistant Secretary for Congressional Relations:
    (1) Related to congressional affairs. (i) Exercise responsibility 
for coordination of all congressional matters in the Department.
    (ii) Maintain liaison with the Congress and the White House on 
legislative Matters of concern to the Department.
    (2) Related to intergovernmental affairs. (i) Coordinate all 
programs involving intergovernmental affairs including State and local 
government relations and liaison with:
    (A) National Association of State Departments of Agriculture;
    (B) Office of Intergovernmental Relations (Office of Vice 
President);
    (C) Advisory Commission on Intergovernmental Relations;
    (D) Council of State Governments;
    (E) National Governors Conference;
    (F) National Association of Counties;
    (G) National League of Cities;
    (H) International City Managers Association;
    (I) U.S. Conference of Mayors; and
    (J) Such other State and Federal agencies, departments and 
organizations as are necessary in carrying out the responsibilities of 
this office.
    (ii) Maintain oversight of the activities of USDA representatives to 
the 10 Federal Regional councils.
    (iii) Serve as the USDA contact with the Advisory Commission on 
Intergovernmental Relations for implementation of OMB Circular A-85 to 
provide advance notification to state and local governments of proposed 
changes in Department programs that affect such governments.
    (iv) Act as the department representative for Federal executive 
board matters.
    (v) Serve as the official with the principal responsibility for the 
implementation of Executive Order 13175, including consultation and 
collaboration with tribal officials, and coordinate the Department's 
programs involving assistance to American Indians and Alaska Natives.
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27439, May 20, 2003; 69 
FR 34252, June 21, 2004]



Sec. 2.24  Assistant Secretary for Administration.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Assistant Secretary for Administration:
    (1) Related to administrative law judges. (i) Assign, after 
appropriate consultation with other general officers, to the Office of 
Administrative Law Judges proceedings not subject to 5 U.S.C. 556 and 
557, involving the holdings of hearings and performance of related 
duties pursuant to the applicable rules of practice, when the Assistant 
Secretary for Administration determines that because of the nature of 
the proceeding it would be desirable for the proceeding to be presided 
over by an Administrative Law Judge and that such duties and 
responsibilities would not be inconsistent with those of an 
Administrative Law Judge.
    (ii) Provide administrative sup er vis ion of the Office of Ad min 
istrative Law Judges.

[[Page 185]]

    (iii) Maintain overall responsibility and control over the Hearing 
Clerk's activities which include the custody of and responsibility for 
the control, maintenance, and servicing of the original and permanent 
records of all USDA administrative proceedings conducted under the 
provisions of 5 U.S.C 556 and 557:
    (A) Receiving, filing and acknowledging the receipt of complaints, 
petitions, answers, briefs, arguments, and all other documents that may 
be submitted to the Secretary or the Department of Agriculture in such 
proceedings;
    (B) Receiving and filing complaints, notices of inquiry, orders to 
show cause, notices of hearing, designations of Administrative Law 
Judges or presiding officers, answers, briefs, arguments, orders, and 
all other documents that may be promulgated or issued by the Secretary 
or other duly authorized officials of the Department of Agriculture in 
such proceedings;
    (C) Supervising the service upon the parties concerned of any 
documents that are required to be served, and where required, preserving 
proof of service;
    (D) Keeping a docket record of all such documents and proceedings;
    (E) Filing a stenographic record of each administrative hearing;
    (F) Preparing for certification and certifying under the Secretary's 
facsimile signature, material on file in the Hearing Clerk's office;
    (G) Performing any other clerical duties with respect to the 
documents relative to such proceedings as may be required to be 
performed;
    (H) Cooperating with the Office of Operations in the letting of 
contracts for stenographic and reporting services; and forwarding 
vouchers to appropriate agencies for payment;
    (I) Receiving and compiling data, views or comments filed in 
response to notices of proposed standards or rules or regulations; and
    (J) Performing upon request the following services with respect to 
any hearings in such proceedings:
    (1) Arranging for suitable hearing place; and
    (2) Arranging for stenographic reporting of hearings and handling 
details in connection therewith.
    (2) Related to small and disadvantaged business utilization. (i) In 
compliance with Public Law 95-507, the Assistant Secretary for 
Administration is designated as the Department's Director for Small and 
Disadvantaged Business Utilization. The Director of Small and 
Disadvantaged Business Utilization has specific responsibilities under 
the Small Business Act, 15 U.S.C. 644(k). These duties include being 
responsible for the following:
    (A) Administering the Department's small and disadvantaged business 
activities related to procurement contracts, minority bank deposits, and 
grants and loan activities affecting small and minority businesses 
including women-owned business, and the small business, small minority 
business and small women-owned business subcontracting programs;
    (B) Providing Departmentwide liaison and coordination of activities 
related to small, small disadvantaged, and women-owned businesses with 
the Small Business Administration and others in public and private 
sector;
    (C) Developing policies and procedures required by the applicable 
provision of the Small Business Act, as amended to include the 
establishment of goals; and
    (D) Implementing and administering programs described under sections 
8 and 15 of the Small Business Act, as amended (15 U.S.C. 637 and 644).
    (3) [Reserved]
    (4) [Reserved]
    (5) Related to operations. (i) Provide services for Department 
headquarters in the Washington, DC metropolitan area and at emergency 
relocation sites and certain critical facilities specified by the 
Assistant Secretary for Administration in the following areas:
    (A) Acquiring, leasing, utilizing, constructing, maintaining, and 
disposing of real and personal property, including control of space 
assignments;
    (B) Acquiring, storing, distributing, and disposing of forms;
    (C) Mail management and all related functions; and
    (D) Occupational health services and related functions.

[[Page 186]]

    (ii) Operating centralized Departmental services to provide 
printing, copy reproducing, offset composing, supplies, mail, automated 
mailing lists, excess property pool, resource recovery, shipping and 
receiving, forms, labor services, issuing of general employee 
identification cards, supplemental distributing of Department 
directives, space allocating and management, and related management 
support.
    (iii) Providing property management, space management, messenger, 
and other related services with authority to take actions required by 
law or regulation to perform such services for:
    (A) The Secretary of Agriculture;
    (B) The general officers of the Department;
    (C) The offices reporting to the Assistant Secretary for 
Administration;
    (D) Any other offices or agencies of the Department as may be 
agreed; and
    (E) Other federal, state, or local government organizations on a 
cost recovery basis.
    (iv) Represent the Department in contacts with other organizations 
or agencies on matters related to assigned responsibilities.
    (v) Promulgate Departmental regulations, standards, techniques, and 
procedures and represent the Department in maintaining the security of 
physical facilities, self-protection, and warden services, in the 
Washington, D.C. metropolitan area.
    (vi) Provide internal administrative management and support services 
for the defense program of the Department.
    (6) Related to human resources management. (i) Formulate and issue 
Department policy, standards, rules, and regulations relating to human 
resources management.
    (ii) Provide human resources management procedural guidance and 
operational instructions.
    (iii) Set standards for human resources data systems.
    (iv) Inspect and evaluate human resources management operations and 
issue instructions or take direct action to insure conformity with 
appropriate laws, Executive Orders, Office of Personnel Management rules 
and regulations, and other appropriate rules and regulations.
    (v) Exercise final authority in all human resources matters, 
including individual cases, that involve the jurisdiction of more than 
one General Officer or agency head.
    (vi) Receive, review, and recommend action on all requests for the 
Secretary's approval in human resources matters.
    (vii) Authorize and make final decisions on adverse actions, except 
in those cases where the Assistant Secretary for Administration has 
participated.
    (viii) Represent the Department in human resources matters in all 
contacts outside the Department.
    (ix) Exercise specific authorities in the following operational 
matters:
    (A) Waive repayment of training expenses where an employee fails to 
fulfill service agreement;
    (B) Establish or change standards and plans for awards to private 
citizens; and
    (C) Execute, change, extend, or renew:
    (1) Labor-Management Agreements; and
    (2) Associations of Management Officials' or Supervisors' 
Agreements.
    (D) Represent any part of the Department in all contacts and 
proceedings with the National Offices of Labor Organizations;
    (E) Change a position (with no material change in duties) from one 
pay system to another;
    (F) Grant restoration rights, and release employees with 
administrative reemployment rights;
    (G) Authorize any mass dismissals of employees in the Washington, 
D.C., metropolitan area;
    (H) Approve ``normal line of promotion'' cases in the excepted 
service where not in accordance with time-in-grade criteria;
    (I) Make the final decision on all classification appeals filed with 
the Department of Agriculture;
    (J) Authorize all employment actions (except nondisciplinary 
separations and LWOP) and classification actions

[[Page 187]]

for senior level and equivalent positions including Senior Executive 
Service positions and special authority professional and scientific 
positions responsible for carrying out research and development 
functions;
    (K) Authorize all employment actions (except LWOP) for the following 
positions:
    (1) Schedule C;
    (2) Non-career Senior Executive Service or equivalent; and
    (3) Administrative Law Judge.
    (L) Authorize and make final decisions on adverse actions for 
positions in GS-1-15 or equivalent;
    (M) Authorize and make final decisions on adverse actions for 
positions in the career Senior Executive Service or equivalent;
    (N) Approve the details of Department employees to the White House;
    (O) Authorize adverse actions based in whole or in part on an 
allegation of violation of 5 U.S.C. chapter 73, subchapter III, for 
employees in the excepted service;
    (P) Authorize long-term training in programs which require 
Departmentwide competition;
    (Q) Initiate and take adverse action in cases involving a violation 
of the merit system.
    (x) As used in this section, the term human resources includes:
    (A) Position management;
    (B) Position classification;
    (C) Employment;
    (D) Pay administration;
    (E) Automation of human resources data and systems;
    (F) Hours of duty;
    (G) Performance management;
    (H) Promotions;
    (I) Employee development;
    (J) Incentive Programs;
    (K) Leave;
    (L) Retirement;
    (M) Human resource program management evaluations;
    (N) Social security;
    (O) Life insurance;
    (P) Health benefits;
    (Q) Unemployment compensation;
    (R) Labor management relations;
    (S) Intramanagement consultation;
    (T) [Reserved]
    (U) Discipline; and
    (V) Appeals.
    (xi) Provide human resources services, as listed in paragraph 
(a)(6)(x) of this section, and organizational support services, with 
authority to take actions required by law or regulation to perform such 
services for:
    (A) The Secretary of Agriculture;
    (B) The general officers of the Department;
    (C) The offices and agencies reporting to the Assistant Secretary 
for Administration; and
    (D) Any other offices or agencies of the Department as may be 
agreed.
    (xii) Maintain, review, and update Departmental delegations of 
authority.
    (xiii) Authorize organizational changes which occur in:
    (A) Departmental organizations:
    (1) Agency or office;
    (2) Division (or comparable component); and
    (3) Branch (or comparable component in Departmental centers, only).
    (B) Field organizations:
    (1) First organizational level; and
    (2) Next lower organizational level-required only for those types of 
field installations where the establishment, change in location, or 
abolition of same, requires approval in accordance with Departmental 
internal direction.
    (xiv) Formulate and promulgate departmental organizational 
objectives and policies.
    (xv) Approve coverage of individual law enforcement and firefighter 
positions under the special retirement provisions of the Civil Service 
Retirement System and the Federal Employees Retirement System.
    (xvi) Establish Departmentwide safety and health policy and provide 
leadership in the development, coordination, and implementation of 
related standards, techniques, and procedures, and represent the 
Department in complying with laws, Executive Orders and other policy and 
procedural issuances related to occupational safety and health within 
the Department.
    (xvii) Represent the Department in all rulemaking, advisory, or 
legislative capacities on any groups, committees, or Governmentwide 
activities that affect the Department's Occupational Safety and Health 
Management Program.

[[Page 188]]

    (xviii) Determine and provide Departmentwide technical services and 
regional staff support for the safety and health programs.
    (xix) Administer the computerized management information systems for 
the collection, processing and dissemination of data related to the 
Department's occupational safety and health programs.
    (xx) Administer the administrative appeals process related to the 
inclusion of positions in the Testing Designated Position listing in the 
Department's Drug-Free Workplace Program and designate the final appeal 
officer for that Program.
    (xxi) Administer the Department's Occupational Health and Preventive 
Medical Program, as well as design and operate employee assistance and 
workers' compensation activities.
    (xxii) Provide education and training on a Departmentwide basis for 
safety and health-related issues and develop resource and operational 
manuals.
    (xxiii) Oversee and manage the Department's administrative grievance 
program.
    (xxiv) Make final decisions in those cases where an agency head has 
appealed the recommended decision of a grievance examiner.
    (xxv) Formulate and issue Department policy, standards, rules, and 
regulations relating to the Senior Scientific Research Service (7 U.S.C. 
7657).
    (xxvi) Redelegate, as appropriate, any authority delegated under 
paragraph (a)(6) to general officers of the Department and heads of 
Departmental agencies.
    (7) Related to procurement and property management. (i) Promulgate 
policies, standards, techniques, and procedures, and represent the 
Department, in the following:
    (A) Acquisition, including, but not limited to, the procurement of 
supplies, services, equipment, and construction;
    (B) Socioeconomic programs relating to contracting;
    (C) Selection, standardization, and simplification of program 
delivery processes utilizing contracts;
    (D) Acquisition, leasing, utilization, value analysis, construction, 
maintenance, and disposition of real and personal property, including 
control of space assignments;
    (E) Motor vehicle and aircraft fleet and other vehicular 
transportation;
    (F) Transportation of things (traffic management);
    (G) Prevention, control, and abatement of pollution with respect to 
Federal facilities and activities under the control of the Department 
(Executive Order 12088, 3 CFR, 1978 Comp., p. 243);
    (H) Implementation of the Uniform Relocation Assistance and Real 
Property Policies Act of 1970 (42 U.S.C. 4601, et seq.); and
    (I) Development and implementation of energy management and 
environmental actions related to acquisition and procurement, real and 
personal property management, waste prevention and resource recycling, 
and logistics. Maintain liaison with the Office of the Federal 
Environmental Executive, the Department of Energy, and other Government 
agencies in these matters.
    (ii) Exercise the following special authorities:
    (A) Designate the Departmental Debarring Officer to perform the 
functions of 48 CFR part 9, subpart 9.4 related to procurement 
activities, except for commodity acquisitions on behalf of the Commodity 
Credit Corporation (7 CFR part 1407); with authority to redelegate 
suspension and debarment authority for contracts awarded under the 
School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 
612c);
    (B) Conduct liaison with the Office of Federal Register (1 CFR part 
16) including the making of required certifications pursuant to 1 CFR 
part 18;
    (C) Maintain custody and permit appropriate use of the official seal 
of the Department;
    (D) Establish policy for the use of the official flags of the 
Secretary and the Department;
    (E) Coordinate collection and disposition of personal property of 
historical significance;
    (F) Make information returns to the Internal Revenue Service as 
prescribed by 26 U.S.C. 6050M and by 26 CFR 1.6050M-1 and such other 
Treasury regulations, guidelines or procedures as may be issued by the 
Internal Revenue Service in accordance with 26 U.S.C.

[[Page 189]]

6050M. This includes making such verifications or certifications as may 
be required by 26 CFR 1.6050M-1 and making the election allowed by 26 
CFR 1.6050M-1(d)(5)(1);
    (G) Promulgate regulations for the management of contracting and 
procurement for information technology and telecommunication equipment, 
software, services, maintenance and related supplies; and
    (H) Represent the Department in contacts with the General Accounting 
Office, the General Services Administration, the Office of Management 
and Budget, and other organizations or agencies on matters related to 
assigned responsibilities.
    (iii) Serve as the Acquisition Executive in the Department to 
integrate and unify the management process for the Department's major 
system acquisitions and to monitor implementation of the policies and 
practices set forth in Circular A-109, Major Systems Acquisitions, with 
the exception that major system acquisitions for information technology 
shall be under the cognizance of the Chief Information Officer. This 
includes the authority to:
    (A) Insure that OMB Circular A-109 is effectively implemented in the 
Department and that the management objectives of the Circular are 
realized;
    (B) Review the program management of each major system acquisition, 
excluding information technology;
    (C) Designate the program manager for each major systems 
acquisition, excluding information technology; and
    (D) Designate any Departmental acquisition as a major system 
acquisition, excluding information technology, under OMB Circular A-109.
    (iv) Pursuant to Executive Order 12931, 3 CFR, 1994 Comp., p. 925, 
and sections 16, 22, and 37 of the Office of Federal Procurement Policy 
Act, as amended, 41 U.S.C. 414, 418(b), and 433, designate the Senior 
Procurement Executive for the Department and delegate responsibility for 
the following:
    (A) Prescribing and publishing Departmental acquisition policies, 
regulations, and procedures;
    (B) Taking any necessary actions consistent with policies, 
regulations, and procedures with respect to purchases, contracts, 
leases, and other transactions;
    (C) Designating contracting officers;
    (D) Establishing clear lines of contracting authority;
    (E) Evaluating and monitoring the performance of the Department's 
procurement system;
    (F) Managing and enhancing career development of the Department's 
acquisition work force;
    (G) Participating in the development of Governmentwide procurement 
policies, regulations, and standards, and determining specific areas 
where Governmentwide performance standards should be established and 
applied;
    (H) Developing unique Departmental standards as required;
    (I) Overseeing the development of procurement goals, guidelines, and 
innovation;
    (J) Measuring and evaluating procurement office performance against 
stated goals;
    (K) Advising the Secretary whether goals are being achieved;
    (L) Prescribing standards for agency Procurement Executives and 
designating agency Procurement Executives when these standards not are 
met;
    (M) Redelegating as appropriate, the authority in paragraph 
(a)(6)(iv)(A) of this section to agency Procurement Executives or other 
qualified agency officials with no power of further redelegation; and
    (N) Redelegating the authorities in paragraphs (a)(6)(iv)(B), (C), 
(D), (F), and (G) of this section to agency Procurement executives or 
other qualified agency officials with the power of further redelegation.
    (v) Represent the Department in establishing standards for 
acquisition transactions within the electronic data interchange 
environment.
    (vi) Pursuant to the Alternative Agricultural Research and 
Commercialization Act of 1990 (7 U.S.C. 5901-5909), establish and 
maintain a Preference List for selected products developed with 
commercialization assistance under 7 U.S.C. 5905.
    (vii) Designate the Departmental Task Order Ombudsman pursuant to 41 
U.S.C. 253j.
    (viii) Serve as Departmental Remedy Coordination Official pursuant 
to 41

[[Page 190]]

U.S.C. 255 to determine whether payment to any contractor should be 
reduced or suspended based on substantial evidence that the request of 
the contractor for advance, partial, or progress payment is based on 
fraud.
    (ix) Promulgate Departmental policies, standards, techniques, and 
procedures, and represent the Department in maintaining the security of 
physical facilities nationwide.
    (x) Review and approve exemptions for USDA contracts and 
subcontracts from the requirements of the Clean Air Act, as amended (42 
U.S.C. 7401, et seq.), the Federal Water Pollution Control Act, as 
amended (33 U.S.C. 1251, et seq.), and Executive Order 11738, 3 CFR, 
1971-1975 Comp., p. 799, when he or she determines that the paramount 
interest of the United States so requires as provided in these acts and 
Executive Order and the regulations of the Environmental Protection 
Agency (40 CFR 32.2155(b)).
    (xi) Promulgate policy concerning excess Federal personal property 
in accordance with section 923 of Public Law 104-127, to support 
research, educational, technical and scientific activities or for 
related programs, to:
    (A) Any 1994 Institutions (as defined in section 532 of the Equity 
in Educational Land-Grant Status Act of 1994 (Public Law 103-382; 7 
U.S.C. 301 note));
    (B) Any Institutions eligible to receive funds under the Act of 
August 30, 1890 (7 U.S.C. 321, et seq.) including Tuskegee University; 
and
    (C) Any Hispanic-serving Institutions (as defined in sections 316(b) 
of the Higher Education Act of 1965 (20 U.S.C. 1059c (b)).
    (xii) Issue regulations and directives to implement or supplement 
the Federal Acquisition Regulations (48 CFR Chapters 1 and 4).
    (xiii) Issue regulations and directives to implement or supplement 
the Federal Property Management Regulations (41 CFR chapters 101 and 
102).
    (xiv) Serve as a USDA Environmental Executive responsible for 
coordinating waste prevention, recycling, and the procurement, 
acquisition and use of recycled products and environmentally preferable 
products, including biobased products, and services pursuant to 
Executive Order 13101.
    (xv) [Reserved]
    (xvi) In accordance with Public Law 95-91, section 656 and pursuant 
to Executive Order 13123, serve as the Department's principal Energy 
Conservation Officer.
    (xvii) Exercise full Departmentwide contracting and procurement 
authority.
    (xviii) Conduct acquisitions with authority to take actions required 
by law or regulation to procure supplies, services, and equipment for:
    (A) The Secretary of Agriculture;
    (B) The general officers of the Department;
    (C) The offices and agencies reporting to the Assistant Secretary 
for Administration;
    (D) Any other offices or agencies of the Department as may be 
agreed; and
    (E) For other federal, state, or local government organizations on a 
cost recovery basis.
    (8) Related to competition advocacy. (i) Pursuant to the Office of 
Federal Procurement Policy Act (Act), as amended (41 U.S.C. 401, et 
seq.), designate the Department's Advocate for Competition with the 
responsibility for section 20 of the Act (41 U.S.C. 418), including:
    (A) Reviewing the procurement activities of the Department;
    (B) Developing new initiatives to increase full and open 
competition;
    (C) Developing goals and plans and recommending actions to increase 
competition;
    (D) Challenging conditions unnecessarily restricting competition in 
the acquisition of supplies and services;
    (E) Promoting the acquisition of commercial items; and
    (F) Designating an Advocate for Competition for each procuring 
activity within the Department.
    (9) Related to emergency preparedness. Provide guidance to the 
development and administration of the Department's Continuity of 
Operations Plan and to USDA participation in the Continuity of 
Government Plan. This includes:
    (i) Managing the Department Emergency Operations Center and 
alternate facilities.
    (ii) Providing guidance and direction regarding continuity of 
operations to

[[Page 191]]

Departmental staff offices, mission areas, and agencies.
    (iii) Representing and acting as liaison for the Department in 
contacts with other Federal entities and organizations concerning 
matters of assigned responsibilities.
    (iv) Overseeing Department continuity of operations, planning, and 
emergency relocation facilities to ensure that resources are in a 
constant state of readiness.
    (10) Related to compliance with environmental laws and environmental 
management systems. (i) Take action pursuant to Executive Order 12088, 3 
CFR, 1978 Comp., p. 243, to comply with environmental pollution control 
laws with respect to facilities and activities under his or her 
authority, including, but not limited to, entering into inter-agency 
agreements, administrative consent orders, consent judgments, or other 
agreements with the appropriate Federal, State, interstate, or local 
agencies to achieve and maintain compliance with applicable pollution 
control standards.
    (ii) Provide program leadership and oversight for USDA compliance 
with applicable pollution control laws and executive orders, including 
Executive Order 13148, Greening of the Government Through Leadership in 
Environmental Management.
    (iii) Provide program leadership and coordination for USDA's energy 
conservation and energy efficiency activities, and serve as USDA's 
principal Energy Conservation Officer, pursuant to Executive Order 
13123, Greening of the Government Through Efficient Energy Management.
    (iv) Promulgate policies, standards, techniques, and procedures, and 
represent the Department, in prevention, control, and abatement of 
pollution with respect to Federal facilities and activities under the 
control of the Department (Executive Order 12088, 3 CFR, 1978 Comp., p. 
243).
    (v) Review and approve exemptions for USDA contracts, subcontracts, 
grants, agreements, and loans from the requirements of the Clean Air 
Act, as amended (42 U.S.C. 7401, et seq.), the Clean Water Act, as 
amended (33 U.S.C. 1251, et seq.), and Executive Order 11738, 3 CFR, 
1971-1975 Comp., p. 799, when he or she determines that the paramount 
interest of the United States so requires as provided in these acts and 
Executive Order and the regulations of the Environmental Protection 
Agency (40 CFR 32.215(b)).
    (vi) Coordinate USDA waste prevention, recycling, and procurement, 
acquisition and use of recycled products and environmentally preferable 
products, including biobased products, and services, and serve as a USDA 
Environmental Executive, pursuant to Executive Order 13101.
    (vii) Serve on the USDA Hazardous Materials Policy Council.
    (viii) Represent USDA in consulting or working with the 
Environmental Protection Agency (EPA), the Council on Environmental 
Quality, the Domestic Policy Council, and others to develop policies 
relating to hazardous materials management and Federal facilities 
compliance with applicable pollution control laws.
    (ix) Monitor, review, evaluate, and oversee hazardous materials 
management program activities and compliance Department-wide.
    (x) Monitor, review, evaluate, and oversee USDA agency expenditures 
for hazardous materials management program accomplishments.
    (xi) Prepare for the USDA Hazardous Materials Policy Council the 
Hazardous Materials Management Program budget request to the Office of 
Management and Budget (OMB) and Congress, prepare accomplishment reports 
to Congress, OMB, and EPA, and take a lead role in the preparation of 
replies to Congressional inquires.
    (xii) Represent USDA on the National Response Team on hazardous 
spills and oil spills pursuant to the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 
9601, et seq.); the Clean Water Act, as amended (33 U.S.C. 1251, est 
seq.); Oil Pollution Act, as amended (33 U.S.C. 2701, et seq.); 
Executive Order 12580, 3 CFR, 1987 Comp., p. 193; Executive Order 12777, 
3 CFR, 1991 Comp., p. 351, and the National Oil and Hazardous Substances 
Contingency Plan, 40 CFR Part 300.
    (xiii) Approve disbursements from the New World Mine Response and 
Restoration Account, approve the New

[[Page 192]]

World Mine Response and Restoration Plan, and make quarterly reports to 
Congress under Sections 502(d) and (f) of Title V of the Department of 
the Interior and Related Agencies Appropriations Act of 1998, Public Law 
105-83.
    (xiv) Ensure that the Hazardous Materials Management Program 
Department-wide is accomplished with regard to, and in compliance with, 
Executive Order 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations.
    (xv) Take such action as may be necessary, with the affected agency 
head and with the concurrence of the General Counsel, including issuance 
of administrative orders and agreements with any person to perform any 
response action under sections 106(a) and 122 (except subsection (b)(1)) 
of the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, as amended (42 U.S.C. 9606(a), 9622), pursuant to sections 
4(c)(3) and 4(d)(3) of Executive Order 12580, as amended by Executive 
Order 13016.
    (11) Related to management. (i) Administer a productivity program in 
accordance with Executive Order 12089, 3 CFR, 1979 Comp., p. 246, and 
other policy and procedural directives and laws to:
    (ii) Develop strategies to improve processes with respect to 
administrative and associated financial activities of the Department and 
make recommendations to the Secretary.
    (iii) Improve Departmental management by: performing management 
studies and reviews in response to agency requests for assistance; 
enhancing management decision making by developing and applying analytic 
techniques to address particular administrative operational and 
management problems; searching for more economical or effective 
approaches to the conduct of business; developing and revising systems, 
processes, work methods and techniques; and undertaking other efforts to 
improve the management effectiveness and productivity of the Department.
    (iv) Coordinate Departmental Administration strategic planning and 
budget coordination activities on behalf of the Assistant Secretary.
    (12) [Reserved]
    (13) Related to ethics. The Ethics function in the U.S. Department 
of Agriculture is under the authority of the Assistant Secretary for 
Administration for purposes of general supervision only. The Assistant 
Secretary does not have any authority over the functions exercised by 
the Deputy Assistant Secretary for Administration, pursuant to the 
Deputy Assistant Secretary's responsibilities as Designated Agency 
Ethics Official under the Office of Government Ethics regulations at 5 
CFR part 2638.
    (14) [Reserved]
    (15) Related to defense. Provide internal administrative management 
and support services for the defense program of the Department.
    (16) Related to the Board of Contract Appeals. Provide 
administrative supervision of the Board of Contract Appeals. No review 
by the Assistant Secretary for Administration of the merits of appeals 
or of decisions of the Board is authorized and the Board shall be the 
representative of the Secretary in such matters.
    (17) Related to budget and finance. Exercise general financial and 
budget authority over all organizations assigned to the Assistant 
Secretary for Administration.
    (18) Relating to personnel security and the safeguarding of national 
security information:
    (i) Direct and administer USDA's personnel security and public trust 
programs established pursuant to Executive Order 12968, Access to 
Classified Information (3 CFR 1995 Comp. pp 391-402) and 5 CFR 731.
    (ii) Manage the personnel security functions of the Department 
including programs for eligibility access determinations, obtaining 
security clearances for USDA employees, denial or revocation of access 
to national security information, and developing and promulgating 
policies and training.
    (iii) Direct and administer USDA's program under which information 
is safeguarded pursuant to Executive Order 12958, Classified National 
Security Information.

[[Page 193]]

    (iv) Establish Information Security (INFOSEC) policies and 
procedures for classifying, declassifying, safeguarding, and disposing 
of classified national security information and materials.
    (v) Establish procedures under which authorized holders of 
information may challenge the classification of information believed to 
be improperly classified or unclassified.
    (vi) Take corrective action for violations or infractions under 
section 5.7, par. (b), of Executive Order 12958.
    (vii) Develop and maintain a secure facility for the receipt and 
safeguarding of classified material.
    (viii) Coordinate security activities with the Chief Information 
Officer who has primary responsibility for PDD 63, Critical 
Infrastructure Assurance.
    (b) The following authorities are reserved to the Secretary of 
Agriculture:
    (1) Related to human resources management. Make final determinations 
in the following areas:
    (i) Separation of employees for security reasons;
    (ii) Restoration to duty of employees following suspension from duty 
for security reasons;
    (iii) Reinstatement or restoration to duty or the employment of any 
person separated for security reasons; and
    (iv) Issuance of temporary certificates to occupy sensitive 
positions.
    (2) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 65 FR 12428, Mar. 9, 2000; 65 
FR 77756, Dec. 13, 2000; 67 FR 65689, Oct. 28, 2002; 68 FR 27439, May 
20, 2003; 69 FR 34252, June 21, 2004]



Sec. 2.25  Assistant Secretary for Civil Rights.

    (a) The following delegations of authority are made by the Secretary 
to the Assistant Secretary for Civil Rights:
    (1) Provide overall leadership, coordination, and direction for the 
Department's programs of civil rights, including program delivery, 
compliance, and equal employment opportunity, with emphasis on the 
following:
    (i) Actions to enforce Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, prohibiting discrimination in federally assisted programs.
    (ii) Actions to enforce Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. 2000e, prohibiting discrimination in Federal 
employment.
    (iii) Actions to enforce Title IX of the Education Amendments of 
1972, 20 U.S.C. 1681, et seq., prohibiting discrimination on the basis 
of sex in USDA education programs and activities funded by the 
Department.
    (iv) Actions to enforce the Age Discrimination Act of 1975, 42 
U.S.C. 6102, prohibiting discrimination on the basis of age in USDA 
programs and activities funded by the Department.
    (v) Actions to enforce section 504 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 794, prohibiting discrimination against 
individuals with disabilities in USDA programs and activities funded by 
the Department.
    (vi) Actions to enforce section 504 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 794, prohibiting discrimination against 
individuals with disabilities in USDA conducted programs.
    (vii) Actions to enforce related Executive Orders, Congressional 
mandates, and other laws, rules, and regulations, as appropriate.
    (viii) Actions to develop and implement the Department's Federal 
Women's Program.
    (ix) Actions to develop and implement the Department's Hispanic 
Employment Program.
    (2) Evaluate Departmental agency programs, activities, and impact 
statements for civil rights concerns.
    (3) Provide leadership and coordinate Departmental agencies and 
systems for targeting, collecting, analyzing, and evaluating program 
participation data and equal employment opportunity data.
    (4) Provide leadership and coordinate Departmentwide programs of 
public notification regarding the availability of USDA programs on a 
nondiscriminatory basis.
    (5) Coordinate with the Department of Justice on matters relating to 
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), title IX of 
the Education Amendments of 1972 (20 U.S.C. 1681, et seq.), and section 
504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), 
except those matters in litigation,

[[Page 194]]

including administrative enforcement actions, which shall be coordinated 
by the Office of the General Counsel.
    (6) Coordinate with the Department of Health and Human Services on 
matters relating to the Age Discrimination Act of 1975, 42 U.S.C. 6102, 
except those matters in litigation, including administrative enforcement 
actions, which shall be coordinated by the Office of the General 
Counsel.
    (7) Order proceedings and hearings in the Department pursuant to 
Sec. Sec. 15.9(e) and 15.86 of this title which concern consolidated or 
joint hearings within the Department or with other Federal departments 
and agencies.
    (8) Order proceedings and hearings in the Department pursuant to 
Sec. 15.8 of this title after the program agency has advised the 
applicant or recipient of his or her failure to comply and has 
determined that compliance cannot be secured by voluntary means.
    (9) Issue orders to give a notice of hearing or the opportunity to 
request a hearing pursuant to part 15 of this title; arrange for the 
designation of an Administrative Law Judge to preside over any such 
hearing; and determine whether the Administrative Law Judge so 
designated will make an initial decision or certify the record to the 
Secretary of Agriculture with his or her recommended findings and 
proposed action.
    (10) Authorize the taking of action pursuant to Sec. 15.8(a) of 
this title relating to compliance by ``other means authorized by law.''
    (11) Make determinations required by Sec. 15.8(d) of this title 
that compliance cannot be secured by voluntary means, and then take 
action, as appropriate.
    (12) Make determinations that program complaint investigations 
performed under Sec. 15.6 of this title establish a proper basis for 
findings of discrimination, and that actions taken to correct such 
findings are adequate.
    (13) Investigate (or make determinations that program complaint 
investigations establish a proper basis for final determinations), make 
final determinations on both the merits and required corrective action, 
and, where applicable, make recommendations to the Secretary that relief 
be granted under 7 U.S.C. 6998(d) notwithstanding the finality of 
National Appeals Division decisions, as to complaints filed under parts 
15a, 15b, and 15d of this title, except in those cases where the 
Assistant Secretary for Civil Rights has participated in the events that 
gave rise to the matter.
    (14) Conduct civil rights investigations and compliance reviews 
Departmentwide.
    (15) Develop regulations, plans, and procedures necessary to carry 
out the Department's civil rights programs, including the development, 
implementation, and coordination of Action Plans.
    (16) Monitor, evaluate, and report on agency compliance with 
established policy and Executive Orders which further the participation 
of historically Black colleges and universities, the Hispanic-serving 
institutions, 1994 tribal land grant institutions, and other colleges 
and universities with substantial minority group enrollment in 
Departmental programs and activities.
    (17) Related to Equal Employment Opportunity (EEO). Is designated as 
the Department's Director of Equal Employment Opportunity with 
authority:
    (i) To perform the functions and responsibilities of that position 
under 29 CFR part 1614, including the authority:
    (A) To make changes in programs and procedures designed to eliminate 
discriminatory practices and improve the Department's EEO program.
    (B) To provide EEO services for managers and employees.
    (C) To make final agency decisions on EEO complaints by Department 
employees or applicants for employment and order such corrective 
measures in such complaints as may be considered necessary, including 
the recommendation for such disciplinary action as is warranted when an 
employee has been found to have engaged in a discriminatory practice.
    (ii) Administer the Department's EEO program.
    (iii) Oversee and manage the EEO counseling function for the 
Department.
    (iv) Process formal EEO complaints by employees or applicants for 
employment.
    (v) Investigate Department EEO complaints and make final decisions 
on EEO complaints, except in those cases

[[Page 195]]

where the Assistant Secretary has participated in the events that gave 
rise to the matter.
    (vi) Order such corrective measures in EEO complaints as may be 
considered necessary, including the recommendation for such disciplinary 
action as is warranted when an employee has been found to engage in a 
discriminatory practice.
    (vii) Provide liaison on EEO matters concerning complaints and 
appeals with the Department agencies and Department employees.
    (viii) Coordinate the Department's affirmative employment program, 
special emphasis programs, Federal Equal Opportunity Recruitment 
Program, EEO evaluations, and development of policy.
    (ix) Provide liaison on EEO programs and activities with the Equal 
Employment Opportunity Commission and the Office of Personnel 
Management.
    (18) Maintain liaison with historically Black colleges and 
universities, the Hispanic-serving institutions, 1994 tribal land grant 
institutions, and other colleges and universities with substantial 
minority group enrollment, and assist Department agencies in 
strengthening such institutions by facilitating institutional 
participation in Department programs and activities and by encouraging 
minority students to pursue curricula that could lead to careers in the 
food and agricultural sciences.
    (19) Administer the discrimination appeals and complaints program 
for the Department, including all formal individual or group appeals, 
where the system provides for an avenue of redress to the Department 
level, Equal Employment Opportunity Commission, or other outside 
authority.
    (20) Make final determinations, or enter into settlement agreements, 
on discrimination complaints in federally conducted programs subject to 
the Equal Credit Opportunity Act. This delegation includes the authority 
to make compensatory damage awards whether pursuant to a final 
determination or in a settlement agreement under the authority of the 
Equal Credit Opportunity Act and the authority to obligate agency funds, 
including CCC and FCIC funds to satisfy such an award.
    (21) Make final determinations in proceedings under part 15f of this 
title where review of an administrative law judge decision is 
undertaken.
    (22) Provide civil rights and equal employment opportunity support 
services, with authority to take actions required by law or regulation 
to perform such services for:
    (i) The Secretary of Agriculture.
    (ii) The general officers of the Department.
    (iii) The offices and agencies reporting to the Assistant Secretary 
for Administration.
    (iv) Any other offices or agencies of the Department as may be 
agreed.
    (23) Related to outreach. (i) Develop policy guidelines and 
implement a Departmental outreach program which delivers services to 
traditionally under-served customers.
    (ii) Develop a strategic outreach plan for the Department which 
coordinates the goals, objectives, and expectations of mission area 
outreach programs.
    (iii) Coordinate the dissemination/communication of all outreach 
information from the Department and its mission areas ensuring its 
transmission to as wide a public spectrum as possible.
    (iv) Serve as the Department's official outreach spokesperson.
    (v) Provide coordination and oversight of agency outreach activities 
including the establishment of outreach councils.
    (vi) Develop a system to monitor the delivery of outreach grants and 
funding.
    (vii) Establish requirements and procedures for reporting agency 
outreach status and accomplishments including Departmental reporting 
under the Outreach and Assistance for Socially Disadvantaged Farmers and 
Ranchers Program (7 U.S.C. 2279).
    (24) Related to conflict management. (i) Designate the senior 
official to serve as the Department Dispute Resolution Specialist under 
the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571, et 
seq., and provide leadership, direction and coordination for the 
Department's conflict prevention and resolution activities.

[[Page 196]]

    (ii) Issue Departmental regulations, policies, and procedures 
relating to the use of Alternative Dispute Resolution (ADR) to resolve 
employment complaints and grievances, workplace disputes, Departmental 
program disputes, and contract and procurement disputes.
    (iii) Provide ADR services for:
    (A) The Secretary of Agriculture.
    (B) The general officers of the Department.
    (C) The offices and agencies reporting to the Assistant Secretary 
for Administration.
    (D) Any other officer or agency of the Department as may be agreed.
    (iv) Develop and issue standards for mediators and other ADR 
neutrals utilized by the Department.
    (v) Coordinate ADR activities throughout the Department.
    (vi) Monitor agency ADR programs and report at least annually to the 
Secretary on the Department's ADR activities.
    (25) Redelegate, as appropriate, any authority delegated under this 
section to general officers of the Department and heads of Departmental 
agencies.
    (b) [Reserved]

[69 FR 34252, June 21, 2004]



Subpart D_Delegations of Authority to Other General Officers and Agency 
                                  Heads

    Editorial Note: Nomenclature changes to subpart D appear at 60 FR 
66713, Dec. 26, 1995.



Sec. 2.26  Director, Office of the Executive Secretariat.

    The following delegation of authority is made by the Secretary of 
Agriculture to the Director, Office of the Executive Secretariat: 
Responsible for all correspondence control and related records 
management functions for the Office of the Secretary.



Sec. 2.27  Office of Administrative Law Judges.

    (a) The following designations are made by the Secretary of 
Agriculture to the Office of Administrative Law Judges:
    (1) Administrative law judges (formerly hearing examiners) are 
designated pursuant to 5 U.S.C. 556(b)(3) to hold hearings and perform 
related duties in proceedings subject to 5 U.S.C. 556 and 557, arising 
under the Agricultural Marketing Agreement Act of 1937, as amended (7 
U.S.C. 601 et seq.); the Commodity Exchange Act as amended (7 U.S.C. 1 
et seq.); the Perishable Agricultural Commodities Act, as amended (7 
U.S.C. 499a et seq.); the Federal Seed Act, as amended (7 U.S.C. 1551 et 
seq.); the (Laboratory) Animal Welfare Act, as amended (7 U.S.C. 2131 et 
seq.); the Packers and Stockyards Act, 1921, as amended and supplemented 
(7 U.S.C. 181 et seq.); the Forest Resources Conservation and Shortage 
Relief of 1990 (16 U.S.C. 630 et seq.); and any other acts providing for 
hearings to which the provisions of 5 U.S.C. 556 and 557, are 
applicable. Pursuant to the applicable rules of practice, the 
administrative law judges shall make initial decisions in adjudication 
and rate proceedings subject to 5 U.S.C. 556 and 557. Such decisions 
shall become final without further proceedings unless there is an appeal 
to the Secretary by a party to the proceeding in accordance with the 
applicable rules of practice: Provided, however, that no decision shall 
be final for purposes of judicial review except a final decision of the 
Secretary upon appeal. As used herein, ``Secretary'' means the Secretary 
of Agriculture, the Judicial Officer, or other officer or employee of 
the Department delegated, pursuant to the Act of April 4, 1940 (7 U.S.C. 
450c-450g), and Reorganization Plan No. 2 of 1953 (5 U.S.C. App.), 
``regulatory functions'' as that term is defined in the 1940 Act, in 
acting as final deciding officer in adjudication and rate proceedings 
subject to 5 U.S.C. 556 and 557. Administrative Law Judges are delegated 
authority to hold hearings and perform related duties as provided in the 
Rules of Practice Governing Cease and Desist Proceedings Under Section 2 
of the Capper-Volstead Act, set forth in part 1, subpart I of this 
title.
    (2) [Reserved]
    (b) The Chief Administrative Law Judge is delegated the following 
administrative responsibilities subject to the guidance and control of 
the Assistant Secretary for Administration (See Sec. 2.24(a)):

[[Page 197]]

    (1) Exercise general responsibility and authority for all matters 
related to the administrative activities of the Office of Administrative 
Law Judges; and
    (2) Direct the functions of the Hearing Clerk as set out in Sec. 
2.24(a)(1)(iii).



Sec. 2.28  Chief Financial Officer.

    (a) The Chief Financial Officer, under the supervision of the 
Secretary, is responsible for executing the duties enumerated for agency 
Chief Financial Officers in the Chief Financial Officers Act of 1990, 
Public Law No. 101-576, 31 U.S.C. 902, including:
    (1) Reporting directly to the Secretary of Agriculture regarding 
financial management matters and the financial execution of the budget.
    (2) Overseeing all financial management activities relating to the 
programs and operations of the Department and component agencies.
    (3) Developing and maintaining an integrated accounting and 
financial system for the Department and component agencies, including 
financial reporting and internal controls, which--
    (i) Complies with applicable accounting principles, standards, and 
requirements, and internal control standards;
    (ii) Complies with such policies and requirements as may be 
prescribed by the Director of the Office of Management and Budget;
    (iii) Complies with any other requirements applicable to such 
systems; and
    (iv) Provides for complete, reliable, consistent, and timely 
information which is prepared on a uniform basis and which is responsive 
to the financial information needs of Department management and for the 
development and reporting of cost information, the integration of 
accounting and budgeting information, and the systematic measurement of 
performance.
    (4) Making recommendations to the Secretary regarding the selection 
of the Deputy Chief Financial Officer of the Department, and selection 
of principal financial officers of component agencies of the Department.
    (5) Directing, managing, and providing policy guidance and oversight 
of Department financial management personnel, activities, and 
operations, including:
    (i) Preparing and annually revising a Departmental plan to:
    (A) Implement the 5-year financial management plan prepared by the 
Director of the Office of Management and Budget under 31 U.S.C. 
3512(a)(3); and
    (B) Comply with the requirements established for agency financial 
statements under 31 U.S.C. 3515 and with the requirements for audits of 
Department financial statements established in 31 U.S.C. 3521 (e) and 
(f).
    (ii) Developing Departmental financial management budgets, including 
the oversight and recommendation of approval of component agency 
financial management budgets;
    (iii) Recruiting, selecting, and training of personnel to carry out 
Departmental financial management functions;
    (iv) Approving and managing Departmental, and approving component 
agency, financial management systems design or enhancement projects; and
    (v) Implementing and approving Departmental, and approving component 
agency, asset management systems, including systems for cash management, 
credit management, debt collection, and property and inventory 
management and control.
    (6) Preparing and transmitting, by not later than 60 days after the 
submission of the audit report required by 31 U.S.C. 3521(f), an annual 
report to the Secretary and the Director of the Office of Management and 
Budget, which shall include:
    (i) A description and analysis of the status of financial management 
of the Department;
    (ii) The annual financial statements prepared under 31 U.S.C. 3521;
    (iii) The audit report transmitted to the Secretary under 31 U.S.C. 
3521;
    (iv) A summary of the reports on internal accounting and 
administrative control systems submitted to the President and the 
Congress under the amendments made by the Federal Managers' Financial 
Integrity Act of 1982 (31 U.S.C. 1113, 3512); and
    (v) Other information the Secretary considers appropriate to inform 
fully the President and the Congress concerning the financial management 
of the Department.

[[Page 198]]

    (7) Monitoring the financial execution of the budget of the 
Department in relation to projected and actual expenditures, and 
preparing and submitting to the Secretary timely performance reports.
    (8) Reviewing, on a biennial basis, the fees, royalties, rent, and 
other charges imposed by the Department for services and things of value 
it produces, and making recommendations on revising those charges to 
reflect costs incurred by the Department in providing those services and 
things of value.
    (9) Accessing all records, reports, audits, reviews, documents, 
papers, recommendations, or other material that are the property of the 
Department or that are available to the Department, and that relate to 
programs and operations with respect to which the Chief Financial 
Officer has responsibilities, except that this grant allows no access 
greater than that permitted under any other law to records, reports, 
audits, reviews, documents, papers, recommendations, or other material 
of the Office of Inspector General.
    (10) Requesting such information or assistance as may be necessary 
for carrying out the duties and responsibilities granted the Chief 
Financial Officer by the Chief Financial Officers Act of 1990 (Pub. L. 
No. 101-576), from any Federal, State, or local governmental entity.
    (11) To the extent and in such amounts as may be provided in advance 
by appropriations acts, entering into contracts and other arrangements 
with public agencies and with private persons for the preparation of 
financial statements, studies, analyses, and other services, and making 
such payments as may be necessary to carry out the duties and 
prerogatives of the Chief Financial Officer.
    (b) In addition to the above responsibilities, the following 
delegations of authority are made by the Secretary of Agriculture to the 
Chief Financial Officer:
    (1) Designate the Department's Director of Finance and Comptroller 
of the Department Working Capital Fund.
    (2) Establish Departmental policies, standards, techniques, and 
procedures applicable to all USDA agencies for the following areas:
    (i) Development, maintenance, review and approval of all 
departmental, and review and approval of component agency, internal 
control, fiscal, financial management and accounting systems including 
the financial aspects of payroll and property systems;
    (ii) Selection, standardization, and simplification of program 
delivery processes utilizing grants, cooperative agreements and other 
forms of Federal assistance;
    (iii) Review and approval of Federal assistance, internal control, 
fiscal, accounting and financial management regulations and instructions 
proposed or issued by USDA agencies for conformity with Departmental 
requirements; and
    (iv) Section 5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 
853a) as it relates to grants, loans, and licenses.
    (3) Establish policies related to the Department Working Capital 
Fund.
    (4) Approve regulations, procedures and rates for goods and services 
financed through the Department Working Capital Fund which will impact 
the financial administration of the Fund.
    (5) Exercise responsibility and authority for operating USDA's 
Central Accounting System and related administrative systems including:
    (i) Management of the National Finance Center (NFC), which includes 
developing, maintaining, and operating manual and automated 
administrative and accounting systems for the USDA agencies related to 
the Central Accounting System, Departmentwide payroll and personnel 
information, statistics, administrative payments, billings and 
collections, and related reporting systems that are either requested by 
the agencies or required by the Department;
    (ii) Management of the NFC automated data processing and 
telecommunications systems and coordination with the Office of the Chief 
Information Officer to assure that the hardware and software located at 
the NFC will be integrated with and compatible with all other systems;
    (iii) Develop new or modified accounting systems and documentation 
supporting the Central Accounting System which includes working with

[[Page 199]]

USDA agencies to obtain General Accounting Office approval; and
    (iv) Review and approve the issuance of accounting and management 
instructions related to the operation of the NFC.
    (6) Provide management support services for the NFC, and by 
agreement with agency heads concerned, provide such services for other 
USDA tenants housed in the same facility. As used herein, such 
management support services shall include:
    (i) Personnel services, as listed in Sec. 2.24(a)(5)(x), and 
organizational support services, with authority to take actions required 
by law or regulation to perform such services; and
    (ii) Procurement, property management, space management, 
communications, messenger, paperwork management, and related 
administrative services, with authority to take actions required by law 
or regulation to perform such services.
    (7) Exercise responsibility and authority for all matters related to 
the Department's accounting and financial operations including such 
activities as:
    (i) Financial administration, including accounting and related 
activities;
    (ii) Reviewing financial aspects of agency operations and proposals;
    (iii) Furnishing consulting services to agencies to assist them in 
developing and maintaining accounting and financial management systems 
and internal controls, and for other purposes consistent with 
delegations in paragraph (b)(2) of this section;
    (iv) Reviewing and monitoring agency implementation of Federal 
assistance policies;
    (v) Reviewing and approving agencies' accounting systems 
documentation including related development plans, activities, and 
controls;
    (vi) Monitoring agencies' progress in developing and revising 
accounting and financial management systems and internal controls;
    (vii) Evaluating agencies' financial systems to determine the 
effectiveness of procedures employed, compliance with regulations, and 
the appropriateness of policies and practices;
    (viii) Promulgation of Department schedule of fees and charges for 
reproductions, furnishing of copies and making searches for official 
records pursuant to the Freedom of Information Act, 5 U.S.C. 552; and
    (ix) Monitoring USDA implementation of section 5301 of the Anti-Drug 
Abuse Act of 1988 (21 U.S.C. 853a) as it relates to grants, loans, and 
licenses.
    (8) Establish Department and approve component agency programs, 
policies, standards, systems, techniques and procedures to improve the 
management and operational efficiency and effectiveness of the USDA 
including:
    (i) Implementation of the policies and procedures set forth in OMB 
Circulars No. A-76: Performance of Commercial Activities, and No. A-117: 
Management Improvement and the Use of Evaluation in the Executive 
Branch;
    (ii) Increased use of operations research and management science in 
the areas of productivity and management; and
    (iii) All activities financed through the Department Working Capital 
Fund.
    (9) Designate the Commercial Industrial Officer for USDA.
    (10) Develop Departmental policies, standards, techniques, and 
procedures for the conduct of reviews and analysis of the utilization of 
the resources of State and local governments, other Federal agencies and 
of the private sector in domestic program operations.
    (11) Represent the Department in contacts with the Office of 
Management and Budget, General Services Administration, General 
Accounting Office, Department of the Treasury, Office of Personnel 
Management, Department of Health and Human Services, Department of 
Labor, Environmental Protection Agency, Department of Commerce, Congress 
of the United States, State and local governments, universities, and 
other public and private sector individuals, organizations or agencies 
on matters related to assigned responsibilities.
    (12) Maintain the Departmental inventory of commercial activities 
required by OMB Circular No. A-76 and provide Departmentwide technical 
assistance to accomplish Circular objectives.
    (13) Establish policies related to travel by USDA employees.

[[Page 200]]

    (14) Exercise responsibility for coordinating and overseeing the 
implementation of the Government Performance and Results Act of 1993, 
Pub. L. No. 103-62, at the Department.
    (15) Exercise responsibility for design, implementation, and 
oversight of the Department's project known as Financial Information 
Systems Vision, and approval of the design and implementation of an 
integrated financial information and management system for the 
Department and all component agencies.
    (16) Provide budget, accounting, fiscal and related financial 
management services, with authority to take action required by law or 
regulation to provide such services for Working Capital Funds and 
general appropriated and trust funds for:
    (i) The Secretary of Agriculture;
    (ii) The general officers of the Department, except the Inspector 
General;
    (iii) The offices and agencies reporting to the Assistant Secretary 
for Administration; and
    (iv) Any other officers and agencies of the Department as may be 
agreed.
    (17) Develop, promulgate, and coordinate Department-wide policy 
concerning nonprocurement debarment and suspension, as contained in 7 
CFR part 3017.

[60 FR 56393, Nov. 8, 1995, as amended at 63 FR 11101, Mar. 6, 1998; 65 
FR 77761, Dec. 13, 2000]



Sec. 2.29  Chief Economist.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Chief Economist:
    (1) Related to economic analysis. (i) Coordinate economic analyses 
of, and review Department decisions involving, policies and programs 
that have substantial economic implications.
    (ii) Review and assess the economic impact of all significant 
regulations proposed by any agency of the Department.
    (iii) Review economic data and analyses used in speeches and 
Congressional testimony by Department personnel and in materials 
prepared for release through the press, radio, and television.
    (2) Related to risk assessment. (i) Responsible for assessing the 
risks to human health, human safety, or the environment, and for 
preparing cost-benefit analyses, with respect to proposed major 
regulations, and for publishing such assessments and analyses in the 
Federal Register as required by section 304 of the Department of 
Agriculture Reorganization Act of 1994 (7 U.S.C. 2204e).
    (ii) Provide direction to Department agencies in the appropriate 
methods of risk assessment and cost-benefit analyses and coordinate and 
review all risk assessments and cost-benefit analyses prepared by any 
agency of the Department.
    (iii) Enter into contracts, grants, or cooperative agreements to 
further research programs in the food and agriculture sciences (7 U.S.C. 
3318).
    (3) Related to food and agriculture outlook and situation. (i) 
Coordinate and review all crop and commodity data used to develop 
outlook and situation material within the Department.
    (ii) Oversee and clear for consistency analytical assumptions and 
results of all estimates and analyses which significantly relate to 
international and domestic commodity supply and demand, including such 
estimates and analyses prepared for public distribution by the Foreign 
Agricultural Service, the Economic Research Service, or by any other 
agency or office of the Department.
    (4) Related to weather and climate. (i) Advise the Secretary on 
climate and weather activities, and coordinate the development of policy 
options on weather and climate.
    (ii) Coordinate all weather and climate information and monitoring 
activities within the Department and provide a focal point in the 
Department for weather and climate information and impact assessment.
    (iii) Arrange for appropriate representation to attend all meetings, 
hearings, and task forces held outside the Department which require such 
representation.
    (iv) Designate the Executive Secretary of the USDA Weather and 
Climate Program Coordinating Committee.

[[Page 201]]

    (5) Related to interagency commodity estimates committees. (i) 
Establish Interagency Commodity Estimates Committees for Commodity 
Credit Corporation price-supported commodities, for major products 
thereof, and for commodities where a need for such a committee has been 
identified, in order to bring together estimates and supporting analyses 
from participating agencies, and to develop official estimates of 
supply, utilization, and prices for commodities, including the effects 
of new program proposals on acreage, yield, production, imports, 
domestic utilization, price, income, support programs, carryover, 
exports, and availabilities for export.
    (ii) Designate the Chairman, who shall also act as Secretary, for 
all Interagency Commodity Estimates Committees.
    (iii) Assure that all committee members have the basic assumptions, 
background data and other relevant data regarding the overall economy 
and market prospects for specific commodities.
    (iv) Review for consistency of analytical assumptions and results 
all proposed decisions made by Commodity Estimates Committees prior to 
any release outside the Department.
    (6) Related to remote sensing. (i) Provide technical assistance, 
coordination, and guidance to Department agencies in planning, 
developing, and carrying out satellite remote sensing activities to 
assure full consideration and evaluation of advanced technology.
    (ii) Coordinate administrative, management, and budget information 
relating to the Department's remote sensing activities including:
    (A) Inter- and intra-agency meetings, correspondence, and records;
    (B) Budget and management tracking systems; and
    (C) Inter-agency contacts and technology transfer.
    (iii) Designate the Executive Secretary for the Remote Sensing 
Coordination Committee.
    (7) Related to long-range commodity and agricultural-sector 
projections. Establish committees of the agencies of the Department to 
coordinate the development of a set of analytical assumptions and long-
range agricultural-sector projections (2 years and beyond) based on 
commodity projections consistent with these assumptions and coordinated 
through the Interagency Commodity Estimates Committees.
    (8) Related to agricultural labor affairs. Exercise the following 
functions of the Secretary under the Immigration and Nationality Act 
(INA), as amended (8 U.S.C. 1101 et seq.):
    (i) Pursuant to section 214(c) of INA (8 U.S.C. 1184(c)), provide 
consultation to the Attorney General and the Secretary of Labor 
concerning the question of the importation of aliens as nonimmigrant 
temporary agricultural workers, known as ``H-2A'' workers, under 8 
U.S.C. 1101(a)(15)(H)(ii)(a);
    (ii) Pursuant to section 218(e) of the INA (8 U.S.C. 1188 note), 
provide consultation to the Attorney General and the Secretary of Labor 
concerning all regulations to implement 8 U.S.C. 101(a)(15)(H)(ii)(a) 
and 1188 providing for the importation of H-2A workers;
    (iii) Pursuant to section 210(h) of the INA (8 U.S.C. 1160(h)), 
promulgate regulations to define ``seasonal agricultural services'' for 
purposes of the Special Agricultural Worker (SAW) Program;
    (iv) Pursuant to section 210A(a) of the INA (8 U.S.C. 1161(a)), 
determine jointly with the Secretary of Labor the number (if any) of 
additional special agricultural workers, known as ``replenishment 
agricultural workers'' (RAWs), who should be admitted to the United 
States or otherwise acquire the status of aliens lawfully admitted for 
temporary residence during fiscal years 1990 through 1993 to meet a 
shortage of workers to perform seasonal agricultural services in the 
United States during each such fiscal year;
    (v) Pursuant to section 210A(a)(7) of the INA (8 U.S.C. 1161(a)(7)), 
determine jointly with the Secretary of Labor emergency requests to 
increase the shortage number;
    (vi) Pursuant to section 210A(a)(8) of the INA (8 U.S.C. 
1161(a)(8)), determine jointly with the Secretary of Labor requests to 
decrease the number of man-days of seasonal agricultural services 
required of RAWs to avoid deportation and for naturalization under 
section 210A(d)(5)(A) and (B) of the INA (8 U.S.C. 1161(d)(5)(A) and 
(B));
    (vii) Pursuant to section 210A(b)(1) of the INA (8 U.S.C. 
1161(b)(1)), calculate jointly with the Secretary of Labor and

[[Page 202]]

annual numerical limitation on the number of RAWs who may be admitted or 
otherwise acquire the status of aliens lawfully admitted for temporary 
residence during fiscal years 1990 through 1993 under section 210A(c)(1) 
of the INA (8 U.S.C. 1161(c)(1)); and
    (viii) Pursuant to section 210A(b)(2) of the INA (8 U.S.C. 
1161(b)(2)), establish jointly with the Secretary of Labor the 
information that must be reported by any person or entity who employs 
SAWs or RAWs in seasonal agricultural services during fiscal years 1989 
through 1992, and to designate jointly with the Secretary of Labor the 
official to whom the person or entity must furnish such certification.
    (9) Related to the Capper-Volstead Act. Serve as Chairman of the 
Capper-Volstead Act Committee to identify cases of undue price 
enhancement by associations of producers and issue complaints requiring 
such associations to show cause why an order should not be made 
directing them to cease and desist from monopolization or restraint of 
trade. The Chairman is authorized to call upon any agency of the 
Department for support in carrying the functions of the Committee (7 
U.S.C. 292).
    (10) Related to committee management. Establish and reestablish 
regional, state, and local advisory committees for activities under his 
or her authority. This authority may not be redelegated.
    (11) Related to energy. (i) Advise the Secretary and other policy-
level officials of the Department on energy policies and programs, 
including legislative and budget proposals.
    (ii) Serve as or designate the Department representative at 
hearings, conferences, meetings and other contacts with respect to 
energy and energy-related matters, including liaison with the Department 
of Energy, the Environmental Protection Agency and other governmental 
agencies and departments.
    (iii) Enter into contracts, grants, or cooperative agreements to 
further research programs in the food and agriculture sciences (7 U.S.C. 
3318).
    (iv) Enter into cost-reimbursable agreements relating to 
agricultural research (7 U.S.C. 3319a).
    (v) Provide Department leadership in:
    (A) Analyzing and evaluating existing and proposed energy policies 
and strategies, including those regarding the allocation of scarce 
resources;
    (B) Developing energy policies and strategies, including those 
regarding the allocation of scarce resources;
    (C) Reviewing and evaluating Departmental energy and energy-related 
programs and programs progress;
    (D) Developing agricultural and rural components of national energy 
policy plans; and
    (E) Preparing reports on energy and energy-related polices and 
programs required under Acts of Congress and Executive orders, including 
those involving testimony and reports on legislative proposals.
    (vi) Provide Departmental oversight and coordination with respect to 
resources available for energy and energy-related activities, including 
funds transferred to USDA from other departments or agencies of the 
Federal Government pursuant to interagency agreements.
    (vii) Establish guidelines for use in the Federal procurement of 
biobased products in consultation with the Administrators of the 
Environmental Protection Agency and General Services and the Director, 
National Institute of Standards and Technology, and establish, in 
consultation with the Administrator of the Environmental Protection 
Agency, a voluntary ``USDA Certified Biobased Product'' labeling program 
(7 U.S.C. 8102).
    (viii) Administer a competitive biodiesel fuel education grants 
program (7 U.S.C. 8104).
    (ix) Implement a memorandum of understanding with the Secretary of 
Energy regarding cooperation in the application of hydrogen and fuel 
cell technology programs for rural communities and agricultural 
producers (7 U.S.C. 8107).

[60 FR 56393, Nov. 8, 1995, as amended at 63 FR 66979, Dec. 4, 1998; 64 
FR 40735, July 28, 1999; 68 FR 27442, May 20, 2003]



Sec. 2.30  Director, Office of Budget and Program Analysis.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Director, Office of Budget and Program Analysis:

[[Page 203]]

    (1) Serve as the Department's Budget Officer and exercise general 
responsibility and authority for all matters related to the Department's 
budgeting affairs including:
    (i) Resource administration, including all phases of the 
acquisition, and distribution of funds and staff years; and
    (ii) Legislative and regulatory reporting and related activities.
    (2) Provide staff assistance for the Secretary, general officers, 
and other Department and agency officials.
    (3) Formulate and promulgate Departmental budgetary, legislative and 
regulatory policies and procedures.
    (4) Represent the Department in contacts with the Office of 
Management and Budget, the General Accounting Office, the Treasury 
Department, Congressional Committees on Appropriations, and other 
organizations and agencies on matters related to his or her 
responsibility.
    (5) Coordinate and/or conduct policy and program analyses on agency 
operations and proposals to assist the Secretary, general officers and 
other Department and agency officials in formulating and implementing 
USDA policies and programs.
    (6) Review and analyze legislation, regulations, and policy options 
to determine their impact on USDA programs and policy objectives and on 
the Department's budget.
    (7) Monitor ongoing studies with significant program or policy 
implications.
    (b) The following authority is reserved to the Secretary of 
Agriculture: Final approval of the Department's program and financial 
plans.



Sec. 2.31  General Counsel.

    The General Counsel, as the chief law officer of the Department, is 
legal adviser to the Secretary and other officials of the Department and 
responsible for providing legal services for all the activities of the 
Department. The delegations of authority by the Secretary of Agriculture 
to the General Counsel include the following:
    (a) Consider, ascertain, adjust, determine, compromise, and settle 
claims pursuant to the Federal Tort Claims Act, as amended (28 U.S.C. 
2671-2680), and the regulations of the Attorney General contained in 28 
CFR part 14; delegate the authority to consider, ascertain, adjust, 
determine, compromise, and settle, pursuant to the Federal Tort Claims 
Act as amended (28 U.S.C. 2671-2680) and the regulations of the Attorney 
General contained in 28 CFR part 14, claims less than $2500 that allege 
the negligence or wrongful act of an employee of a USDA agency; and 
consider, ascertain, adjust, determine compromise, and settle claims 
pursuant to section 920 of the Federal Agriculture Improvement and 
Reform Act of 1996, Public Law 104-127 (7 U.S.C. 2262a).
    (b) Certify documents as true copies of those on file in the 
Department.
    (c) Sign releases of claims of the United States against private 
persons for damage to or destruction of property of the department, 
except those claims cognizable under the Contract Disputes Act of 1978 
(41 U.S.C. 601 et seq.).
    (d) Responsible for the overall management and operation of the Law 
Library, furnishing complete legal and legislative library services to 
the Office of the General Counsel and the Department.
    (e) Make determinations as to whether employees of the Department 
may retain commercial rights in inventions; prepare patent applications 
and prosecute the same before the Patent Office.
    (f) Represent the Department in formal rulemaking and adjudicatory 
proceedings held in connection with the administration of the 
Department's activities, and decide whether initial decisions of the 
administrative law judges shall be appealed by the Department to the 
Secretary.
    (g) Represent the Department in connection with legal issues that 
arise in its relations with the Congress, the General Accounting Office, 
or other agencies of the Government.
    (h) Represent the Department in proceedings before the Interstate 
Commerce Commission involving freight rates on farm commodities, and in 
appeals from decisions of the Commission to the courts.
    (i) In civil actions arising out of the activities of the 
Department, present

[[Page 204]]

the Department's case to the Attorney General and U.S. attorneys and, 
upon request of the Department of Justice, assist in the preparation and 
trial of such cases and in the briefing and argument of such cases at 
the appellate level.
    (j) Review cases having criminal aspects and refer them to the 
Department of Justice.
    (k) Act as liaison between the Department and the Department of 
Justice.
    (l) Perform the following legal services:
    (1) Render legal opinions on questions arising in the conduct of the 
Department's activities;
    (2) Prepare or review regulations;
    (3) Draft proposed legislation;
    (4) Prepare or review contracts, mortgages, deeds, leases, and other 
documents; and
    (5) Examine titles to land to be acquired or accepted as security 
for loans.
    (m) Perform such other legal services as may be required in the 
administration of the Department's activities, including the defense 
program.
    (n) Serve as a member of the Capper-Volstead Act Committee to 
identify cases of undue price enhancement by associations of producers 
and issue complaints requiring such associations to show cause why an 
order should not be made directing them to cease and desist from 
monopolization or restraint of trade (7 U.S.C. 292).
    (o) Settle claims for damage to, or loss of, privately owned 
property pursuant to the provisions of 31 U.S.C. 3723.
    (p) Serve on the USDA Hazardous Materials Policy Council.

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 49237, Sept. 19, 1996; 
65 FR 12429, Mar. 9, 2000; 70 FR 23927, May 6, 2005; 70 FR 30610, May 
27, 2005]



Sec. 2.32  Director, Homeland Security Staff.

    (a) The following delegations of authority are made by the Secretary 
to the Director, Homeland Security Staff:
    (1) Administer the Department Emergency Preparedness Program. This 
includes the:
    (i) Coordination of the delegations and assignments made to the 
Department under the Defense Production Act, 50 U.S.C. App. 2061, et 
seq., and the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act, 42 U.S.C. 5121, et seq., by Executive Orders 12148, 
``Federal Emergency Management,'' and 12919, ``National Defense 
Industrial Resources Preparedness,'' and Executive Order 12656, November 
18, 1988, ``Assignment of Emergency Preparedness Responsibilities,'' or 
any successor to these Executive Orders, to ensure that the Department 
has sufficient capabilities to respond to any occurrence, including 
natural disaster, military attack, technological emergency, or any other 
emergency.
    (ii) Activation of the USDA incident management system and the 
Federal Response Plan responsibilities in the event of a major incident;
    (iii) Establishment and oversight of a Departmentwide Incidence 
Command training program.
    (iv) Development and promulgation of policies for the Department 
regarding emergency preparedness and national security, including 
matters relating to anti-terrorism and agriculture-related emergency 
preparedness planning both national and international; and guidance to 
USDA state and county emergency boards.
    (v) Representation and liaison for the Department in contacts with 
other Federal entities and organizations, including the Office of 
Homeland Security (or successor organization), the Federal Emergency 
Management Agency, the National Security Council, the Office of 
Management and Budget, concerning matters of a national security, 
natural disaster, other emergencies, and agriculture-related 
international civil emergency planning and related activities, and as 
the primary USDA representative for anti-terrorism activities.
    (vi) Development and submission of a coordinated budget request for 
homeland security.
    (2) Serve as the USDA focal point to identify, receive, disseminate 
and store USDA intelligence requirements and convey information to the 
intelligence community.

[[Page 205]]

    (3) Serve as the primary point of contact for GAO and OIG audits of 
USDA homeland security activities.
    (4) Coordinate interaction between Department agencies and private 
sector businesses and industries in emergency planning and public 
education under Department authorities delegated or assigned under the 
Federal Response Plan, the Defense Production Act 50 U.S.C. App. 2061, 
et seq., and Robert T. Stafford Disaster Relief and Emergency Assistance 
Act, 42 U.S.C. 5121, et seq.
    (5) Serve as the document classification authority for the 
Department.
    (6) Provide staff support to the USDA Homeland Security Council.
    (b) [Reserved]

[68 FR 27442, May 20, 2003]



Sec. 2.33  Inspector General.

    (a) The following delegations of authority are made by the Secretary 
of Agriculture to the Inspector General:
    (1) Advise the Secretary and General officers in the planning, 
development, and execution of Department policies and programs.
    (2) Provide for the personal security of the Secretary and the 
Deputy Secretary.
    (3) Serve as liaison official for the Department for all audits of 
USDA performed by the General Accounting Office.
    (4) In addition to the above delegations of authority, the Inspector 
General, under the general supervision of the Secretary, has specific 
duties, responsibilities, and authorities pursuant to the Inspector 
General Act of 1978, Pub. L. No. 95-452, 5 U.S.C. App.
    (b) The following authority is reserved to the Secretary of 
Agriculture: Approving the implementation in the Office of Inspector 
General of administrative policies or procedures that contravene 
standard USDA administrative policies as promulgated by the Assistant 
Secretary for Administration.



Sec. 2.34  Director, National Appeals Division.

    The Director, National Appeals Division, under the general 
supervision of the Secretary, has specific duties, responsibilities, and 
authorities pursuant to subtitle H of the Department of Agriculture 
Reorganization Act of 1994, Pub. L. No. 103-354, title II (7 U.S.C. 6991 
et seq.), including:
    (a) Deciding appeals from adverse decisions, made by an officer or 
employee of an agency of the Department designated by the Secretary, 
that are adverse to participants. The term ``agency'' shall include the 
following and any predecessor agency: the Farm Service Agency; the 
Commodity Credit Corporation (with respect to domestic programs); the 
Federal Crop Insurance Corporation; the Rural Housing Service; the Rural 
Business-Cooperative Service; the Natural Resources Conservation 
Service; and a State, county, or area committee established under 
section 8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 
U.S.C. 590h(b)(5)); and
    (b) The authority to appoint such hearing officers and other 
employees as are necessary for the administration of the activities of 
the Division.
    (c) Prepare a report each year on the number of requests for 
equitable relief and the disposition of such requests for inclusion in 
the report of the Secretary to Congress on equitable relief requests 
made to the Department under farm and conservation programs (7 U.S.C. 
7996(g)(2).

[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27442, May 20, 2003]



Sec. 2.35  Judicial Officer.

    (a) Pursuant to the Act of April 4, 1940, as amended (7 U.S.C. 450c-
450g), and Reorganization Plan No. 2 of 1953 (5 U.S.C. app.), the 
Secretary of Agriculture makes the following delegations of authority to 
the Judicial Officer. The Judicial Officer is authorized to:
    (1) Act as final deciding officer in adjudicatory proceedings 
subject to 5 U.S.C. 556 and 557;
    (2) Act as final deciding officer in adjudicatory proceedings which 
are or may be subject to the ``Rules of Practice Governing Formal 
Adjudicatory Proceedings Instituted by the Secretary Under Various 
Statutes'' set forth in part 1, subpart H, of this title;
    (3) Act as final deciding officer in adjudicatory proceedings which 
are or

[[Page 206]]

may be subject to the ``Rules of Practice Governing Cease and Desist 
Proceedings Under Section 2 of the Capper-Volstead Act'' set forth in 
part 1, subpart I, of this title;
    (4) Act as final deciding officer in adjudicatory proceedings 
subject to the ``Procedures Related to Administrative Hearings Under the 
Program Fraud Civil Remedies Act of 1986'' set forth in part 1, subpart 
L, of this title;
    (5) Act as final deciding officer in adjudicatory proceedings 
subject to the ``Rules of Practice Governing Adjudication of Sourcing 
Area Applications and Formal Review of Sourcing Areas Pursuant to the 
Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 
620, et seq.)'' set forth in part 1, subpart M, of this title;
    (6) Act as final deciding officer in rate proceedings under the 
Packers and Stockyards Act, as amended and supplemented (7 U.S.C. 181-
229);
    (7) Act as final deciding officer in reparation proceedings under 
statutes administered by the United States Department of Agriculture;
    (8) Act as final deciding officer in appeals under section 63 of the 
Plant Variety Protection Act (7 U.S.C. 2443), and in reexamination 
proceedings under section 91 of the Plant Variety Protection Act, as 
amended (7 U.S.C. 2501);
    (9) Act as final deciding officer in adjudicatory proceedings under 
section 359i of the Agricultural Adjustment Act of 1938, as amended (7 
U.S.C. 1359ii); and
    (10) Issue rules of practice applicable to proceedings conducted 
under section 359i of the Agricultural Adjustment Act of 1938, as 
amended (7 U.S.C. 1359ii).
    (b) The delegation of authority from the Secretary of Agriculture to 
the Judicial Officer in paragraph (a) of this section shall not be 
construed to limit the authority of the Judicial Officer to perform any 
functions, in addition to those identified in the Act of April 4, 1940, 
as amended (7 U.S.C. 450c-450g), which may be assigned by the Secretary 
of Agriculture to the Judicial Officer.
    (c) As used in this section, the term Judicial Officer shall mean 
any person or persons so designated by the Secretary of Agriculture.

[68 FR 27443, May 20, 2003]



Sec. 2.36  Director, Office of Communications.

    (a) Delegations. The following delegations of authority are made by 
the Secretary of Agriculture to Director, Office of Communications:
    (1) Related to public affairs. (i) Advise and counsel general 
officers on public affairs matters to the Department.
    (ii) Organize and direct the activities of a public affairs office 
to include press relations of the secretary of agriculture and other 
executive functions and services for general officers of the Department.
    (2) Related to information activities. (i) Advise the secretary and 
general officers in the planning, development, and execution of 
Department policies and programs.
    (ii) Direct and coordinate the overall formulation and development 
of policies, programs, plans, procedures, standards and organization 
structures and staffing patterns for the information activities of the 
Department and its agencies, both in Washington and in the field.
    (iii) Exercise final review and approval of all public information 
material prepared by the Department and its agencies and select the most 
effective method and audience for distributing this information.
    (iv) Serve as the central public information authority in the USDA, 
with the authority to determine policy for all USDA communication 
activities and agency information activities in order to provide 
leadership and centralized operational direction for USDA and agency 
information activities so that all material shall effectively support 
USDA policies and programs, including the defense program.
    (v) Serve as the central printing authority in the USDA, with 
authority to represent the USDA with Joint Committee on Printing of the 
Congress, the Government Printing Office, and other Federal and State 
agencies on information matters.
    (vi) Cooperate with and secure the cooperation of commercial, 
industrial and other nongovernmental agencies

[[Page 207]]

and concerns regarding information work as required in the execution of 
the Department's programs.
    (vii) Plan and direct communication research and training for the 
Department and its agencies.
    (viii) Oversee general officers and agency heads in the development 
and implementation of information policies issued pursuant to the 
provisions of the ``Freedom of Information Act'' (5 U.S.C. 552) and the 
``Privacy Act'' (5 U.S.C. 552a), and provide consultation regarding 
those policies.
    (ix) Supervise and provide leadership and final clearance for the 
planning, production, and distribution of visual information material 
for the department and its agencies in Washington, D.C., and the field, 
and provide such information services as may be deemed necessary.
    (x) Maintain overall responsibility and control over the preparation 
of the ``Agricultural Decisions.''
    (xi) Administer, direct and coordinate publications and user fee 
authority granted under section 1121 of the Agriculture and Food Act of 
1981, as amended by section 1769 of the Food Security Act of 1985, 7 
U.S.C. 2242a; and publish any appropriate regulations necessary to the 
exercise of this authority.
    (b) [Reserved]



Sec. 2.37  Chief Information Officer.

    (a) Delegation. The Chief Information Officer, under the supervision 
of the Secretary, is responsible for executing the duties enumerated in 
Public Law 104-106 for agency Chief Information Officers, as follows:
    (1) Reporting directly to the Secretary of Agriculture regarding 
information technology matters.
    (2) Overseeing all information technology and information resource 
management activities relating to the programs and operations of the 
Department and component agencies. This oversight includes approving 
information technology investments, monitoring and evaluating the 
performance of those investments and information resource management 
activities, approval of all architectures and components thereto and 
determining whether to continue, modify, or terminate an information 
technology program or project.
    (3) Providing advice and other assistance to the Secretary and other 
senior management personnel to ensure that information technology is 
acquired and managed for the Department consistent with chapter 35 of 
title 44, United States Code (Coordination of Federal Information 
Policy).
    (4) Developing, implementing, and maintaining a sound and integrated 
Departmentwide information technology architecture.
    (5) Promoting the effective and efficient design and operation of 
all major information resources management processes for the Department, 
including improvements to work processes of the Department.
    (6) Approving the acquisition or procurement of information 
technology resources by, or on behalf of, any Department agency or 
office.
    (7) Providing guidance and assistance to Department procurement 
personnel with respect to information technology acquisition strategy 
and policy.
    (8) The Chief Information Officer is designated the Major 
Information Technology Systems Executive in USDA to integrate and unify 
the management process for the Department's major information technology 
system acquisitions and to monitor implementation of the policies and 
practices set forth in Circular A-109, Major Systems Acquisitions, for 
information technology. This includes the authority to:
    (i) Ensure that OMB Circular A-109 is effectively implemented for 
information technology systems in the Department and that the management 
objectives of the Circular are realized;
    (ii) Review the program management of each major information 
technology system acquisition;
    (iii) Approve the appointment of the program manager for each major 
information technology systems acquisition; and
    (iv) Designate any Departmental information technology acquisition 
as a major system acquisition under OMB Circular A-109.
    (9) On an annual basis:
    (i) Assessing Departmentwide personnel requirements regarding 
knowledge and skill in information resources

[[Page 208]]

management, and the adequacy of such requirements, to achieve the 
performance goals established for information resources management.
    (ii) Developing strategies and specific plans for hiring, training, 
and professional development at the executive and management level to 
meet personnel information technology personnel requirements.
    (iii) Reporting to the Secretary on progress made in improving 
information resources management capability.
    (10) The Chief Information Officer is designated as the senior 
official to carry out the responsibilities of the Department under 
chapter 35 of title 44, United States Code (Coordination of Federal 
Information Policy), including:
    (i) Ensuring that the information policies, principles, standards, 
guidelines, rules and regulations prescribed by the Office of Management 
and Budget are appropriately implemented within the Department;
    (ii) Reviewing proposed Department reporting and record keeping 
requirements, including those contained in rules and regulations, to 
ensure that they impose the minimum burden upon the public and have 
practical utility for the Department;
    (iii) Developing and implementing procedures for assessing the 
burden to the public and costs to the Department of information 
requirements contained in proposed legislation affecting Department 
programs; and
    (iv) Assisting the Office of Management and Budget in the 
performance of its functions assigned under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501-3520), including review of Department 
information activities.
    (11) The Chief Information Officer is responsible for:
    (i) Providing Departmentwide guidance and direction in planning, 
developing, documenting, and managing applications software projects in 
accordance with Federal and Department information processing standards, 
procedures, and guidelines;
    (ii) Providing Departmentwide guidance and direction in all aspects 
of information technology, including feasibility studies; economic 
analyses; systems design; acquisition of equipment, software, services, 
and timesharing arrangements; systems installation; systems performance 
and capacity evaluation; and security. Monitoring these activities for 
agencies' major systems development efforts to assure effective and 
economic use of resources and compatibility among systems of various 
agencies when required;
    (iii) Managing the Department Computer Centers, with the exception 
of the National Finance Center, including setting rates to recover the 
cost of goods and services within approved policy and funding levels;
    (iv) Reviewing and evaluating information technology activities 
related to delegated functions to assure that they conform to all 
applicable Federal and Department information technology management 
policies, plans, standards, procedures, and guidelines;
    (v) Designing, developing, implementing, and revising systems, 
processes, work methods, and techniques to improve the management and 
operational effectiveness of information resources;
    (vi) Administering the Departmental records, forms, reports and 
Directives Management Programs;
    (vii) Managing all aspects of the USDA Telecommunications Program 
including planning, development, acquisition, and use of equipment and 
systems for voice and data communications, excluding the actual 
procurement of data transmission equipment, software, maintenance, and 
related supplies;
    (viii) Managing Departmental telecommunications contracts;
    (ix) Providing technical advice throughout the Department;
    (x) Implementing a program for applying information resources 
management technology to improve productivity in the Department;
    (xi) Planning, developing, installing, and operating computer-based 
systems for message exchange, scheduling, computer conferencing, and 
other applications of office automation technology which can be commonly 
used by multiple Department agencies and offices;
    (xii) Representing the Department in contacts with the General 
Accounting Office, the General Services Administration, the Office of 
Management and Budget, the National Institute for

[[Page 209]]

Science and Technology, and other organizations or agencies on matters 
related to delegated responsibilities; and
    (xiii) Review, clear, and coordinate all statistical forms, survey 
plans, and reporting and record keeping requirements originating in the 
Department and requiring approval by the Office of Management and Budget 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
    (12) Implementing policies established pursuant to paragraphs (a)(1) 
through (11) of this section by:
    (i) Disposing of information technology that is acquired by a 
Department agency in violation of procedures or standards for the 
Department Information Systems Technology Architecture;
    (ii) Establishing information technology and information resources 
management performance standards for agency Chief Information Officers, 
information resources managers, and project managers to be used in the 
performance appraisal process;
    (iii) Approving the selection of agency Chief Information Officers 
and agency major information technology system project managers in 
accordance with criteria to be promulgated by the Chief Information 
Officer;
    (iv) Provide recommendations to Agency Heads for the removal or 
replacement of information technology project managers, when, in the 
opinion of the Chief Information Officer, applicable laws and policies 
are being violated, or, when the cost, schedule, or performance of an 
information technology project would indicate management deficiencies;
    (v) Withdrawing agencies' authority to obligate funds on Information 
Technology programs or projects if the agency violates the Chief 
Information Officer policies, standards, or Department Information 
Systems Technology Architecture;
    (vi) Requiring agencies to validate and verify major information 
technology systems through the use of an existing contract for such 
purpose designated by the Chief Information Officer; and
    (vii) Requiring approval by the Chief Information Officer of any 
proposed acquisition of information technology (whether through the 
award or modification of a procurement contract, a cooperative or other 
agreement with a non-Federal party, or an interagency agreement) to 
ensure technical conformance to the Department technical architecture.
    (13) Provide management and operational support to the Secretary of 
Agriculture; the general staff offices; the offices and agencies 
reporting to the Assistant Secretary for Administration and for any 
other offices or agencies of the Department as may be agreed. As used in 
this section, such support services shall include:
    (i) Information technology services, as listed in paragraph 
(a)(11)(v) of this section with authority to take actions required by 
law or regulation to perform such services; and
    (ii) Forms management, files management, and directives management 
with authority to take actions required by law or regulation to perform 
such services.
    (b) [Reserved]

[65 FR 77761, Dec. 13, 2000]

Subpart E [Reserved]



 Subpart F_Delegations of Authority by the Under Secretary for Farm and 
                      Foreign Agricultural Services

    Editorial Note: Nomenclature changes to subpart F appear at 60 FR 
66713, Dec. 26, 1995.



Sec. 2.40  Deputy Under Secretary for Farm and Foreign Agricultural 
Services.

    Pursuant to Sec. 2.16(a), subject to reservations in Sec. 2.16(b), 
and subject to policy guidance and direction by the Under Secretary, the 
following delegation of authority is made to the Deputy Under Secretary 
for Farm and Foreign Agricultural Services, to be exercised only during 
the absence or unavailability of the Under Secretary: Perform all the 
duties and exercise all the powers which are now or which may hereafter 
be delegated to the Under Secretary for Farm and Foreign Agricultural 
Services: Provided, that this authority shall be exercised by the 
respective Deputy Under Secretary in

[[Page 210]]

the order in which he or she has taken office as a Deputy Under 
Secretary.



Sec. 2.42  Administrator, Farm Service Agency.

    (a) Delegations. Pursuant to Sec. 2.16(a)(1) through (a)(4) and 
(a)(6) through (a)(8), subject to the reservations in Sec. 2.16(b)(1), 
the following delegations of authority are made by the Under Secretary 
for Farm and Foreign Agricultural Services to the Administrator, Farm 
Service Agency:
    (1) Formulate policies and administer programs authorized by the 
Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1282 et seq.).
    (2) Formulate policies and administer programs authorized by the 
Agricultural Act of 1949, as amended (7 U.S.C. 1441 et seq.), except the 
provisions of section 416(a)(1), (a)(2) and (b) of the Agricultural Act 
of 1949, as amended, unless specifically provided herein.
    (3) Coordinate and prevent duplication of aerial photographic work 
of the Department, including:
    (i) Clearing photography projects;
    (ii) Assigning symbols for new aerial photography, maintaining 
symbol records, and furnishing symbol books;
    (iii) Recording departmental aerial photography flow and 
coordinating the issuance of aerial photography status maps of latest 
coverage;
    (iv) Promoting interchange of technical information and techniques 
to develop lower costs and better quality;
    (v) Representing the Department on committees, task forces, work 
groups, and other similar groups concerned with aerial photography 
acquisition and reproduction;
    (vi) Providing a Chairperson for the Photography Sales Committee of 
the Department;
    (vii) Coordinating development, preparation, and issuance of 
specifications for aerial photography for the Department;
    (viii) Coordinating and performing procurement, inspection, and 
application of specifications for USDA aerial photography;
    (ix) Maintaining library and files of USDA aerial film and 
retrieving and supplying reproductions on request.
    (4) Administer the Agricultural Conservation Program under title X 
of the Agricultural Act of 1970, as amended (16 U.S.C. 1501 et seq.), 
and under the Soil Conservation and Domestic Allotment Act, as amended 
(16 U.S.C. 590g et seq.).
    (5) Administer responsibilities and functions assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.), relating to 
agricultural production; food processing, storage, and distribution of 
farm equipment and fertilizers. rehabilitation and use of feed, 
agricultural and related agribusiness facilities; and farm credit and 
financial assistance.
    (6) Administer the Emergency Conservation Program under the 
Agricultural Credit Act of 1978, as amended (16 U.S.C. 2201 et seq.).
    (7) Conduct fiscal, accounting and claims functions relating to CCC 
programs for which the Foreign Agricultural Service has been delegated 
authority under Sec. 2.43 and, in conjunction with other agencies of 
the U.S. Government, develop and formulate agreements to reschedule 
amounts due from foreign countries.
    (8) Conduct assigned activities under the Strategic and Critical 
Materials Stockpiling Act, as amended (50 U.S.C. 98 et seq.).
    (9) Supervise and direct Farm Service Agency State and county 
offices and designate functions to be performed by Farm Service Agency 
State and county committees.
    (10) Administer the Dairy Indemnity Program under the Act of August 
13, 1968, as amended (7 U.S.C. 450j et seq.).
    (11) Administer procurement, processing, handling, distribution, 
disposition, transportation, payment, and related services with respect 
to surplus removal and supply operations which are carried out under 
section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859), the Act of 
August 19, 1958, as amended (7 U.S.C. 1431 note), and section 709 of the 
Food and Agriculture Act of 1965, as amended (7 U.S.C. 1446a-1), except 
as delegated to the Under Secretary for Food, Nutrition, and Consumer 
Services in Sec. 2.19 and to the Under Secretary for Farm and Foreign 
Agricultural Services in Sec. 2.16(a)(3), and assist the

[[Page 211]]

Food and Consumer Service and the Agricultural Marketing Service in the 
procurement, handling, payment, and related services under section 32 of 
the Act of August 24, 1935, as amended (7 U.S.C. 612c), the Act of June 
28, 1937, as amended (7 U.S.C. 713c), the National School Lunch Act, as 
amended (42 U.S.C. 1751 et seq.), section 8 of the Child Nutrition Act 
of 1966, as amended (42 U.S.C. 1777), section 311 of the Older Americans 
Act of 1965, as amended (42 U.S.C. 3030a), and section 4(a) of the 
Agriculture and Consumer Protection Act of 1973, as amended (7 U.S.C. 
612c note), and section 1114 of the Agriculture and Food Act of 1981 (7 
U.S.C. 1431e).
    (12) Administer commodity procurement and supply, transportation 
(other than from point of export, except for movement to trust 
territories or possessions), handling, payment,and related services in 
connection with programs under titles II and III of Public Law 480 (7 
U.S.C. 1691, 1701, et seq.) and section 3107 of the Farm Security and 
Rural Investment Act of 2002 (7 U.S.C. 1736o-1) (except for the 
authority under section 3107(d) to designate federal agencies that is 
reserved to the President), and payment and related services with 
respect to export programs and barter operations.
    (13) [Reserved]
    (14) Administer the Agricultural Foreign Investment Disclosure Act 
of 1978 (7 U.S.C. 3501 et seq.) except those functions delegated in 
Sec. 2.21(a)(8)(xi).
    (15) Administer energy management activities as assigned.
    (16) Conduct producer referenda of commodity promotion programs 
under the Beef Research and Information Act, as amended (7 U.S.C. 2901 
et seq.) and the Agricultural Promotion Programs Act of 1990, as amended 
(7 U.S.C. 6001 et seq.).
    (17) Conduct field operations of diversion programs for fresh fruits 
and vegetables under section 32 of the Act of August 29, 1935.
    (18) Administer the U. S. Warehouse Act, as amended (7 U.S.C. 241-
273), and perform compliance examinations for Farm Service Agency 
programs.
    (19) Administer the provisions of the Soil Conservation and Domestic 
Allotment Act relating to assignment of payments (16 U.S.C. 590h(g)).
    (20) Formulate and carry out the Conservation Reserve Program under 
the Food Security Act of 1985, as amended (16 U.S.C. 1231 et seq.).
    (21) Carry out functions relating to highly erodible land and 
wetland conservation under sections 1211-1213 and 1221-1223 of the Food 
Security Act of 1985, as amended (16 U.S.C. 3811-3813 and 3821-3823).
    (22) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petition for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of

[[Page 212]]

civil penalties for violations of section 122 of the Act (42 U.S.C. 
9622), and the granting of awards to individuals providing information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (23) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (24) Administer the Integrated Farm Management Program under section 
1451 of the Food, Agriculture, Conservation, and Trade Act of 1990, as 
amended (7 U.S.C. 5822).
    (25) Administer the provisions of section 326 of the Food and 
Agricultural Act of 1962, as amended (7 U.S.C. 1339c), as they relate to 
any Farm Service Agency administered program.
    (26) Conduct an Options Pilot Program pursuant to sections 1151-1156 
of the Food, Agriculture, Conservation, and Trade Act of 1990, as 
amended (7 U.S.C. 1421 note).
    (27) Formulate and administer regulations regarding program 
ineligibility resulting from convictions under Federal or State law of 
planting, cultivating, growing, producing, harvesting, or storing a 
controlled substance, as required under section 1764 of the Food 
Security Act of 1985 (21 U.S.C. 881a).
    (28) Administer the Consolidated Farm and Rural Development Act (7 
U.S.C. 1921 et seq.) except for the authority contained in the following 
sections:
    (i) The authority in section 304(b) (7 U.S.C. 1924(b)), relating to 
small business enterprise loans;
    (ii) Section 306 (7 U.S.C. 1926), relating to all programs in that 
section;
    (iii) Section 306A (7 U.S.C. 1926a) and Section 306B (7 U.S.C. 
1926b), relating

[[Page 213]]

to the Emergency Community Water Assistance Grant Programs;
    (iv) Section 306C (7 U.S.C. 1926c) to administer the water and waste 
facility loans and grants to alleviate health risks;
    (v) Sections 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), 
regarding assets and programs related to rural development;
    (vi) Section 310A (7 U.S.C. 1931), relating to watershed and 
resource conservation and development loans;
    (vii) Section 310B (7 U.S.C. 1932), regarding rural 
industrialization assistance;
    (viii) Section 312(b) (7 U.S.C. 1942(b)), relating to small business 
enterprises;
    (ix) Section 342 (7 U.S.C. 1013a);
    (x) Section 364 (7 U.S.C. 2006f), section 365 (7 U.S.C. 2008), 
section 366 (7 U.S.C. 2008a), section 367 (7 U.S.C. 2008b), and section 
368 (7 U.S.C. 2008c), regarding assets and programs related to rural 
development; and
    (xi) Administrative provisions of subtitle D of the Consolidated 
Farm and Rural Development Act related to Rural Utilities Service, Rural 
Business-Cooperative Service, and Rural Housing Service activities.
    (29) Collect, service, and liquidate loans made or insured by the 
Farm Service Agency, or its predecessor agencies.
    (30) Administer the Rural Rehabilitation Corporation Trust 
Liquidation Act (40 U.S.C. 440 et seq.), and trust, liquidation, and 
other agreements entered into pursuant thereto.
    (31) [Reserved]
    (32) Administer Farmers Home Administration or any successor agency 
assets conveyed in trust under the Participation Sales Act of 1966 (12 
U.S.C. 1717).
    (33) Administer the emergency loan and guarantee programs under 
sections 232, 234, 237, and 253 of the Disaster Relief Act of 1970 (Pub. 
L. No. 91-606), the Disaster Relief Act of 1969 (Pub. L. No. 91-79), 
Pub. L. No. 92-385, approved August 16, 1972, and the Emergency 
Livestock Credit Act of 1974 (Pub. L. No. 93-357), as amended.
    (34) Administer loans to homestead or desertland entrymen and 
purchasers of land in reclamation projects or to an entryman under the 
desertland law (7 U.S.C. 1006a and 1006b).
    (35) Administer the Federal Claims Collection Act of 1966, as 
amended (31 U.S.C. 3711 et seq.), and joint regulations issued pursuant 
thereto by the Attorney General and the Comptroller General (4 CFR 
chapter II), with respect to claims of the Farm Service Agency.
    (36) Service, collect, settle, and liquidate:
    (i) Deferred land purchase obligations of individuals under the 
Wheeler-Case Act of August 11, 1939, as amended (16 U.S.C. 590y), and 
under the item, ``Water Conservation and Utilization projects'' in the 
Department of the Interior Appropriation Act, 1940 (53 Stat. 719), as 
amended;
    (ii) Puerto Rican Hurricane Relief loans under the Act of July 11, 
1956 (70 Stat. 525); and
    (iii) Loans made in conformance with section 4 of the Southeast 
Hurricane Disaster Relief Act of 1965 (79 Stat. 1301).
    (37) Administer loans to Indian tribes and tribal corporations (25 
U.S.C. 488-492).
    (38) Administer the State Agricultural Loan Mediation Program under 
title 5 of the Agricultural Credit Act of 1987 (7 U.S.C. 5101 et seq.).
    (39) Administer financial assistance programs relating to Economic 
Opportunity Loans to Cooperatives under part A of title III and part D 
of title I and the necessarily related functions in title VI of the 
Economic Opportunity Act of 1964, as amended (42 U.S.C. 2763-2768, 2841-
2855, 2942, 2943(b), 2961), delegated by the Director of the Office of 
Economic Opportunity to the Secretary of Agriculture by documents dated 
October 23, 1964 (29 FR 14764), and June 17, 1968 (33 FR 9850), 
respectively.
    (40) Exercise all authority and discretion vested in the Secretary 
by section 331(c) of the Consolidated Farm and Rural Development Act, as 
amended by section 2 of the Farmers Home Administration Improvement Act 
of 1994, Pub. L. No. 103-248 (7 U.S.C. 1981(c)), including the 
following:
    (i) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the Department of Justice for the conduct 
of litigation,

[[Page 214]]

and refer such actions to the Department of Justice through the General 
Counsel;
    (ii) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the General Counsel, for the conduct of 
litigation and refer such actions; and
    (iii) Enter into contracts with private sector attorneys for the 
conduct of litigation, with the concurrence of the General Counsel, 
after determining that the attorneys will provide competent and cost 
effective representation for the Farm Service Agency.
    (41) [Reserved]
    (42) Administer the provisions concerning the end-use certificate 
system authorized pursuant to section 301(f) of the North American Free 
Trade Implementation Act (19 U.S.C. 3391(f)).
    (43) Determine the type and quantity of commodities that are 
available for programming under section 416(b) of the Agricultural Act 
of 1949 (7 U.S.C. 1431(b)), and the Food for Progress Act of 1985 (7 
U.S.C. 1736o), and arrange for the processing, packaging, 
transportation, handling and delivery to port of such commodities in 
connection therewith.
    (44) Formulate policies and administer programs authorized by Title 
I of the Federal Agriculture Improvement and Reform Act of 1996.
    (45) Administer all programs of the Commodity Credit Corporation 
that provide assistance with respect to the production of agricultural 
commodities, including disaster assistance and the domestic marketing of 
such commodities, except as may otherwise be reserved by the Under 
Secretary for Farm and Agricultural Services.
    (46) Administer the following provisions of the Farm Security and 
Rural Investment Act of 2002 with respect to functions otherwise 
delegated to the Administrator, Farm Service Agency:
    (i) The equitable relief provisions of section 1613 (7 U.S.C. 7996).
    (ii) The tracking of benefits under section 1614 (7 U.S.C. 7997).
    (iii) The development of a plan and related report to coordinate 
land retirement and agricultural working land conservation programs 
under section 2005 (16 U.S.C. 3801 note).
    (47) Administer programs for Apple Loans and Emergency Loans for 
Seed Producers under section 203(f) and 253, respectively, of the 
Agricultural Risk Protection Act of 2000 (7 U.S.C. 1421 note, Pub. L. 
106-224).
    (48) Administer evaluations of direct and guaranteed loan programs 
under section 5301 of the Farm Security and Rural Investment Act of 2002 
(7 U.S.C. 1992 note).
    (b) Reservations. The following authorities are reserved to the 
Under Secretary for Farm and Foreign Agricultural Services:
    (1) Designating counties and areas for emergency programs under Pub. 
L. No. 85-58, as amended.
    (2) Making and issuing notes to the Secretary of the Treasury for 
the purposes of the Agricultural Credit Insurance Fund as authorized by 
the Consolidated Farm and Rural Development Act (7 U.S.C. 1929).

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25776, May 23, 1996; 61 
FR 37552, July 18, 1996; 62 FR 1031, Jan. 8, 1997; 62 FR 19901, Apr. 24, 
1997; 68 FR 27443, May 20, 2003; 69 FR 34254, June 21, 2004]



Sec. 2.43  Administrator, Foreign Agricultural Service.

    (a) Delegations. Pursuant to Sec. 2.16 (a)(3) and (a)(6), subject 
to reservations in Sec. 2.16(b)(2), the following delegations of 
authority are made by the Under Secretary for Farm and Foreign 
Agricultural Services to the Administrator, Foreign Agricultural 
Service:
    (1) Coordinate the carrying out by Department agencies of their 
functions involving foreign agriculture policies and programs and their 
operations and activities in foreign areas. Act as liaison on these 
matters and functions relating to foreign agriculture between the 
Department of Agriculture and the Department of State, the United States 
Trade Representative, the Trade Policy Committee, the Agency for 
International Development and other departments, agencies and committees 
of the U.S. Government, foreign governments, the Organization for 
Economic Cooperation and Development, the European Union, the Food and 
Agriculture Organization of the United Nations, the International Bank 
for Reconstruction and Development, the

[[Page 215]]

Inter-American Development Bank, the Organization of American States, 
and other public and private United States and international 
organizations, and the contracting parties to the General Agreement on 
Tariffs and Trade (GATT) and the World Trade Organization (WTO).
    (2) Conduct functions of the Department relating to GATT, WTO, the 
Trade Expansion Act of 1962 (19 U.S.C. 1801 et seq.), the Trade Act of 
1974 (19 U.S.C. 2101 et seq.), the Trade Agreements Act of 1979 (19 
U.S.C. 2501 et seq.), the Omnibus Trade and Competition Act of 1988 (19 
U.S.C. 2901 et seq.), the provisions of subtitle B of title III of the 
North American Free Trade Agreement Implementation Act (except the 
provisions concerning the end-use certificate system authorized pursuant 
to section 321(f) of that Act (19 U.S.C. 3391(f)) delegated to the 
Administrator, Farm Service Agency), and other legislation affecting 
international agricultural trade including the programs designed to 
reduce foreign tariffs and other trade barriers.
    (3) Conduct studies of worldwide production, trade, marketing, 
prices, consumption, and other factors affecting exports and imports of 
U.S. agricultural commodities; obtain information on methods used by 
other countries to move farm commodities in world trade on a competitive 
basis for use in the development of programs of this Department; provide 
information to domestic producers, the agricultural trade, the public 
and other interests; and promote normal commercial markets abroad. This 
delegation excludes basic and long-range analyses of world conditions 
and developments affecting supply, demand, and trade in farm products 
and general economic analyses of the international financial and 
monetary aspects of agricultural affairs as assigned to the Under 
Secretary for Research, Education, and Economics.
    (4) Administer Departmental programs concerned with development of 
foreign markets for agricultural products of the United States except 
functions relating to export marketing operations under section 32, of 
the Act of August 23, 1935, as amended (7 U.S.C. 612c), delegated to the 
Assistant Secretary for Marketing and Regulatory Programs.
    (5) Conduct Department activities to carry out the provisions of the 
International Coffee Agreement Act of 1968 (19 U.S.C. 1356f).
    (6) Administer functions of the Department relating to import 
controls including, among others, functions under section 22 of the 
Agricultural Adjustment Act of 1933, as amended (7 U.S.C. 624), the 
Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), and 
section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854) 
but not including those functions reserved to the Secretary under Sec. 
2.16(b)(2) and those relating to section 8e of the Agricultural 
Adjustment Act of 1933, as amended (7 U.S.C. 608e-1), as assigned to the 
Assistant Secretary for Marketing and Regulatory Programs.
    (7) Represent the Department on the Interdepartmental Committee for 
Export Control and conduct Departmental activities to carry out the 
provisions of the Export Administration Act of 1969, as amended (50 
U.S.C. App. 2401 et seq.), except as reserved to the Secretary under 
Sec. 2.16(b)(2).
    (8) Exercise the Department's responsibilities in connection with 
international negotiations of the International Wheat Agreement and in 
the administration of such agreement.
    (9) Provide foreign agricultural intelligence and other foreign 
agricultural services in support of programs administered by the 
Department under the Defense Production Act of 1950, as amended (50 
U.S.C. App. 2061 et seq.), and title VI of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.).
    (10) Conduct economic analyses pertaining to the foreign sugar 
situation.
    (11) Exercise the Department's functions with respect to the 
International Sugar Agreement or any such future agreements.
    (12) Exercise the Department's responsibilities with respect to 
tariff-rate quotes for dairy products under chapter 4 of the Harmonized 
Tariff Schedule of the United States (19 U.S.C. 1202).

[[Page 216]]

    (13) Serve as a focal point for handling quality or weight 
discrepancy inquiries from foreign buyers of U.S. agricultural 
commodities to insure that they are investigated and receive a timely 
response and that reports thereof are made to appropriate parties and 
government officials in order that corrective action may be taken.
    (14) Formulate policies and administer programs and activities 
authorized by the Agricultural Trade Act of 1978, as amended (7 U.S.C. 
5601 et seq.).
    (15) Formulate policies and administer barter programs under which 
agricultural commodities are exported.
    (16) Perform functions of the Department in connection with the 
development and implementation of agreements to finance the sale and 
exportation of agricultural commodities on long-term credit or for 
foreign currencies under Public Law 480 (7 U.S.C. 1691, 1701 et seq.).
    (17) Coordinate within the Department activities arising under 
Public Law 480 (except as delegated to the Under Secretary for Research, 
Education, and Economics in Sec. 2.21(a)(8)), and to represent the 
Department in its relationships in such matters with the Department of 
State, any interagency committee on Public Law 480, and other 
departments, agencies and committees of the Government.
    (18) Formulate policies and implement programs to promote the export 
of dairy products, as authorized under section 153 of the Food Security 
Act of 1985, as amended (15 U.S.C. 713a-14), and of sunflowerseed oil 
and cottonseed oil, as authorized under section 301(b)(2)(A) of the 
Disaster Assistance Act of 1988, as amended (7 U.S.C. 1464 note).
    (19) Formulate policies and implement a program for the export sales 
of dairy products, as authorized by section 1163 of the Food Security 
Act of 1985 (7 U.S.C. 1731 note).
    (20) Carry out activities relating to the sale, reduction, or 
cancellation of debt, as authorized by title VI of the Agricultural 
Trade and Development Act of 1954, as amended (7 U.S.C. 1738 et seq.).
    (21) Carry out debt-for-health-and-protection swaps, as authorized 
by section 1517 of the Food, Agriculture, Conservation, and Trade Act of 
1990 (7 U.S.C. 1706).
    (22) Allocate among the various export programs agricultural 
commodities determined under Sec. 2.16(a)(3)(xix) to be available for 
export.
    (23) Maintain a worldwide agricultural intelligence and reporting 
system, including provision for foreign agricultural representation 
abroad to protect and promote U.S. agricultural interests, and to 
acquire information on demand, competition, marketing, and distribution 
of U.S. agricultural commodities abroad pursuant to title VI of the 
Agricultural Act of 1954, as amended (7 U.S.C. 1761-1768).
    (24) Plan and carry out programs and activities under the foreign 
market promotion authority of: The Wheat Research and Promotion Act (7 
U.S.C. 1292 note); the Cotton Research and Promotion Act (7 U.S.C. 2101-
2118); the Potato Research and Promotion Act (7 U.S.C. 2611-2627); the 
Egg Research and Consumer Information Act of 1974 (7 U.S.C. 2701-2718); 
the Beef Research and Information Act, as amended (7 U.S.C. 2901-2918); 
the Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 
3401-3417); the Floral Research and Consumer Information Act of 1981 (7 
U.S.C. 4301-4319); subtitle B of title I of the Dairy and Tobacco 
Adjustment Act of 1983 (7 U.S.C. 4501-4513); the Honey Research, 
Promotion, and Consumer Information Act of 1984, as amended (7 U.S.C. 
4601-4612); the Pork Promotion, Research, and Consumer Information Act 
of 1985 (7 U.S.C. 4801-4819); the Watermelon Research and Promotion Act, 
as amended (7 U.S.C. 4901-4916); the Pecan Promotion and Research Act of 
1990 (7 U.S.C. 6001-6013); the Mushroom Promotion, Research, and 
Consumer Information Act of 1990 (7 U.S.C. 6101-6112); the Lime 
Research, Promotion, and Consumer Information Act of 1990 (7 U.S.C. 
6201-6212); the Soybean Promotion, Research, and Consumer Information 
Act of 1990 (7 U.S.C. 6301-6311); the Fluid Milk Promotion Act of 1990 
(7 U.S.C. 6401-6417); the Fresh Cut Flowers and Fresh Cut Greens 
Promotion and Consumer Information Act (7 U.S.C. 6801-6814); the Sheep 
Promotion, Research, and Information Act of 1994 (7 U.S.C. 7101-7111); 
The Commodity Promotion,

[[Page 217]]

Research, and Information Act of 1996 (7 U.S.C. 7411-7425); the Canola 
and Rapeseed Research, Promotion, and Consumer Information Act (7 U.S.C. 
7441-7452); the National Kiwifruit Research, Promotion, and Consumer 
Information Act (7 U.S.C. 7461-7473); and, the Popcorn Promotion, 
Research, and Consumer Information Act (7 U.S.C. 7481-7491). This 
authority includes determining the programs and activities to be 
undertaken and assuring that they are coordinated with the overall 
departmental programs to develop foreign markets for U.S. agricultural 
products.
    (25) Establish and administer regulations relating to foreign travel 
by employees of the Department. Regulations will include, but not be 
limited to, obtaining and controlling passports, obtaining visas, 
coordinating Department of State medical clearances and imposing 
requirements for itineraries and contacting the Foreign Agricultural 
Affairs Officers upon arrival in the Officers' country(ies) of 
responsibility.
    (26) Administer the Foreign Service personnel system for the 
Department in accordance with 22 U.S.C. 3922, except as otherwise 
delegated in Sec. 2.80(a)(1), but including authority to represent the 
Department of Agriculture in all interagency consultations and 
negotiations with the other foreign agencies with respect to joint 
regulations and authority to approve regulations issued by the 
Department of State relating to the administration of the Foreign 
Service.
    (27) Establish and maintain U.S. Agricultural Trade Offices to 
develop, maintain and expand international markets for U.S. agricultural 
commodities in accordance with title IV of Pub. L. No. 95-501 (7 U.S.C. 
1765a-g).
    (28) Administer the programs under section 416(b) of the 
Agricultural Act of 1949, as amended (7 U.S.C. 1431(b)), relating to the 
foreign donation of CCC stocks of agricultural commodities, except as 
otherwise delegated in Sec. 2.42(a)(43).
    (29)-(30) [Reserved]
    (31) Administer programs under the Food for Progress Act of 1985 (7 
U.S.C. 1736o), except as otherwise delegated in Sec. 2.42(a)(43).
    (32) Serve as Department adviser on policies, organizational 
arrangements, budgets, and actions to accomplish International 
Scientific and Technical Cooperation in Food and Agriculture.
    (33) Administer and direct the Department's programs in 
international development, technical assistance, and training carried 
out under the Foreign Assistance Act, as amended, as requested under 
such act (22 U.S.C. 2151 et seq.).
    (34) Administer and coordinate assigned Departmental programs in 
international research and scientific and technical cooperation with 
other governmental agencies, land grant universities, international 
organizations, international agricultural research centers, and other 
institutions (7 U.S.C. 1624, 3291).
    (35) Direct and coordinate the Department's participation in 
scientific and technical matters and exchange agreements between the 
United States and other countries.
    (36) Direct and coordinate the Department's work with international 
organizations and interagency committees concerned with food and 
agricultural development programs (7 U.S.C. 2201 and 2202).
    (37) Coordinate policy formulation for USDA international science 
and technology programs concerning international agricultural research 
centers, international organizations, and international agricultural 
research and extension activities (7 U.S.C. 3291).
    (38) Disseminate, upon request, information on subjects connected 
with agriculture which has been acquired by USDA agencies that may be 
useful to the U.S. private sector in expanding foreign markets and 
investment opportunities through the operation of a Department 
information center, pursuant to 7 U.S.C. 2201.
    (39) Enter into contracts, grants, cooperative agreements, and cost 
reimbursable agreements relating to agricultural research, extension, or 
teaching activities (7 U.S.C. 3318, 3319a).
    (40) Determine amounts reimbursable for indirect costs under 
international agricultural programs and agreements (7 U.S.C. 3319).
    (41) Administer the Cochran Fellowship Program (7 U.S.C. 3293).

[[Page 218]]

    (42) Determine quantity trigger levels and impose additional duties 
under the special safeguard measures in accordance with U.S. note 2 to 
subchapter IV of chapter 99 of the Harmonized Tariff Schedule of the 
United States (19 U.S.C. 1202).
    (43) Implement provisions of the Trade Act of 1974 regarding 
adjustment assistance for farmers. (19 U.S.C. 2401-2401g).
    (44) Implement section 3107 of the Farm Security and Rural 
Investment Act of 2002 (7 U.S.C. 1736o-1), except as otherwise delegated 
in Sec. 2.42(a)(12) and except for the authority under section 3107(d) 
to designate federal agencies that is reserved to the President.
    (45) Support remote sensing activities of the Department and 
research with satellite imagery including:
    (i) Providing liaison with U.S. space programs;
    (ii) Providing administrative management of the USDA Remote Sensing 
Archive and the transfer of satellite imagery to all USDA agencies;
    (iii) Coordinating all agency satellite imagery data needs; and
    (iv) Arranging for acquisition, and preparation of imagery for use 
to the extent of existing capabilities.
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25776, May 23, 1996; 61 
FR 37552, July 18, 1996; 62 FR 40254, July 28, 1997; 68 FR 27443, May 
20, 2003; 69 FR 34254, June 21, 2004]



Sec. 2.44  Administrator, Risk Management Agency and Manager, Federal 
Crop Insurance Corporation.

    (a) Delegations. Pursuant to Sec. 2.16(a)(4), subject to 
reservations in Sec. 2.16(b)(3), the following delegations of authority 
are made by the Under Secretary for Farm and Foreign Agricultural 
Services to the Administrator, Risk Management Agency, and Manager 
Federal Crop Insurance Corporation:
    (1) Appoint such officers and employees as may be necessary for the 
transaction of the business of the Federal Crop Insurance Corporation 
and the Risk Management Agency.
    (2) Conduct pilot programs involving revenue insurance, risk 
management savings accounts, or the use of futures markets to manage 
risk and support farm income.
    (3) Provide education in management of the financial risks inherent 
in the production and marketing of agricultural commodities.
    (b) [Reserved]

[62 FR 19901, Apr. 24, 1997]



  Subpart G_Delegations of Authority by the Under Secretary for Rural 
                               Development

    Editorial Note: Nomenclature changes to subpart G appear at 60 FR 
66713, Dec. 26, 1995.



Sec. 2.45  Deputy Under Secretary for Rural Economic and Community 
Development.

    Pursuant to Sec. 2.17(a), subject to reservations in Sec. 2.17(b), 
and subject to policy guidance and direction by the Under Secretary, the 
following delegation of authority is made to the Deputy Under Secretary 
for Rural Economic and Community Development, to be exercised only 
during the absence or unavailability of the Under Secretary: Perform all 
the duties and exercise all the powers which are now or which may 
hereafter be delegated to the Under Secretary for Rural Economic and 
Community Development.



Sec. 2.47  Administrator, Rural Utilities Service.

    (a) Delegations. Pursuant to Sec. Sec. 2.17 (a)(14) and (a)(16) 
through (a)(20), and subject to policy guidance and direction by the 
Under Secretary for Rural Economic and Community Development, the 
following delegations of authority are made by the Under Secretary for 
Rural Economic and Community Development to the Administrator, Rural 
Utilities Service:
    (1) Administer the Rural Electrification Act of 1936, as amended (7 
U.S.C. 901, et seq.) except for rural economic development loan and 
grant programs (7 U.S.C. 940c and 950aa, et seq.): Provided, however, 
that the Administrator may utilize consultants and attorneys for the 
provision of legal services pursuant to 7 U.S.C. 918, with the 
concurrence of the General Counsel.
    (2) Administer the Rural Electrification Act of 1938 (7 U.S.C. 903 
note).

[[Page 219]]

    (3) The Administrator, Rural Utilities Service is designated to 
serve as the chief executive officer of the Rural Telephone Bank.
    (4) Administer the following sections of the Consolidated Farm and 
Rural Development Act (7 U.S.C. 1921, et seq.):
    (i) Section 306 (7 U.S.C. 1926), related to water and waste 
facilities.
    (ii) Section 306A (7 U.S.C. 1926a).
    (iii) Section 306B (7 U.S.C. 1926b).
    (iv) Section 306C (7 U.S.C. 1926c).
    (v) Section 306D (7 U.S.C. 1926d).
    (vii) Section 306E (7 U.S.C. 1926e).
    (vii) Sections 309 (7 U.S.C. 1929 and 309A (7 U.S.C. 1929a), 
relating to assets and programs related to watershed facilities, 
resource and conservation facilities, and water and waste facilities.
    (viii) Section 305 (7 U.S.C. 1926) relating to hazardous weather 
early warning systems.
    (ix) Section 310A (7 U.S.C. 1931), relating to watershed and 
resource conservation and development.
    (x) Section 310B(b) (7 U.S.C. 1932(b)).
    (xi) Section 310B(i) (7 U.S.C. 1932(i)), relating to loans for 
business telecommunications partnerships.
    (xii) Section 342 (7 U.S.C. 1013p).
    (xiii) Administrative Provisions of subtitle D of the Consolidated 
Farm and Rural Development Act relating to Rural Utilities Service 
activities.
    (xiv) Section 379B (7 U.S.C. 2009;).
    (5) Administer section 8, and those functions with respect to 
repayment of obligations under section 4, of the Watershed Protection 
and Flood Prevention Act (16 U.S.C. 1006a, 1004) and administer the 
Resource Conservation and Development Program to assist in carrying out 
resource conservation and development projects in rural areas under 
section 32(e) of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1011(e)).
    (6) Administer the Water and Waste Loan Program (7 U.S.C. 1926-1).
    (7) Administer the Rural Wastewater Treatment Circuit Rider Program 
(7 U.S.C. 1926 note).
    (8) Collect, service, and liquidate loans made, insured, or 
guaranteed by the Rural Utilities Service or its predecessor agencies.
    (9) Administer the Federal Claims Collection Act of 1966 (31 U.S.C. 
3711 et seq.), and joint regulations issued pursuant thereto by the 
Attorney General and the Comptroller General (4 CFR chapter II), with 
respect to the claims of the Rural Utilities Service.
    (10) Administer responsibilities and function assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.) 
and title VI of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5195 et seq.), relating to rural development 
credit and financial assistance.
    (11) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;

[[Page 220]]

    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (12) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (13) Administer the Distance Learning and Medical Link Programs (7 
U.S.C. 950aaa et seq.).
    (14) Administer water and waste facility programs and activities (7 
U.S.C. 1926-1).
    (15) Admnister the SEARCH Grants for Small Communities Program (7 
U.S.C. 2009ee et seq.).
    (b) Reservations. The following authority is reserved to the Under 
Secretary for Rural Economic and Community Development:
    (1) Making and issuing notes to the Secretary of the Treasury for 
the purposes of the Rural Development Insurance Fund as authorized by 
the Consolidated Farm and Rural Development Act (7 U.S.C. 1929a).
    (2) Administering loans for rural telephone facilities and service 
in rural areas as authorized by the Consolidated Farm and Rural 
Development Act (7 U.S.C. 1921 et seq.).

[60 FR 56393, Nov. 8, 1995, as amended at 66 FR 16593, Mar. 27, 2001; 68 
FR 27443, May 20, 2003]



Sec. 2.48  Administrator, Rural Business-Cooperative Service.

    (a) Delegations. Pursuant to Sec. 2.17 (a)(1), (a)(2), (a)(14), 
(a)(16) through

[[Page 221]]

(a)(19) and (a)(21), subject to reservations in Sec. 2.17(b)(1), and 
subject to policy guidance and direction by the Under Secretary for 
Rural Economic and Community Development, the following delegations of 
authority are made by the Under Secretary for Rural Economic and 
Community Development to the Administrator, Rural Business-Cooperative 
Service:
    (1) Administer the rural economic development loan and grant 
programs under the Rural Electrification Act (7 U.S.C. 940c and 950aa et 
seq.).
    (2) Administer the following sections of the Consolidated Farm and 
Rural Development Act (7 U.S.C. 1921 et seq.):
    (i) Section 306(a)(11)(A) (7 U.S.C. 1926(a)(11)(A)), related grants 
for business technical assistance and planning;
    (ii) Section 304(b) (7 U.S.C. 1924(b)), relating to small business 
enterprises;
    (iii) Sections 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), 
relating to assets and programs related to rural development;
    (iv) Section 310B (7 U.S.C. 1932), relating to rural 
industrialization assistance, rural business enterprise grants and rural 
technology and cooperative development grants;
    (v) Section 312(b) (7 U.S.C. 1942(b)), relating to small business 
enterprises; and
    (vi) Administrative Provisions of subtitle D of the Consolidated 
Farm and Rural Development Act relating to Rural Business-Cooperative 
Service activities;
    (vii) Section 378 (7 U.S.C., 2008m) relating to the National Rural 
Development Partnership; and
    (viii) Section 384A et seq. (7 U.S.C. 2009cc et seq.) relating to 
the Rural Business Investment program.
    (3) Administer Alcohol Fuels Credit Guarantee Program Account (Pub 
L. No. 102-341, 106 Stat. 895).
    (4) Administer section 1323 of the Food Security Act of 1985 (7 
U.S.C. 1932 note).
    (5) Administer loan programs in the Appalachian region under 
sections 203 and 204 of the Appalachian Regional Development Act of 1965 
(40 U.S.C. App. 204).
    (6) Administer section 601 of the Powerplant and Industrial Fuel Use 
Act of 1978 (Pub. L. No. 95-620).
    (7) Administer the Drought and Disaster Guaranteed Loan program 
under section 331 of the Disaster Assistance Act of 1988 (7 U.S.C. 1929a 
note).
    (8) Administer the Disaster Assistance for Rural Business 
Enterprises Guaranteed Loan Program under section 401 of the Disaster 
Assistance Act of 1989 (7 U.S.C. 1929a note).
    (9) Administer the Rural Economic Development Demonstration Grant 
Program (7 U.S.C. 2662a).
    (10) Administer the Economically Disadvantaged Rural Community Loan 
program (7 U.S.C. 6616).
    (11) Administer programs authorized by the Cooperative Marketing Act 
of 1926 (7 U.S.C. 451-457).
    (12) Carry out the responsibilities of the Secretary of Agriculture 
relating to the marketing aspects of cooperatives, including economic 
research and analysis, the application of economic research findings, 
technical assistance to existing and developing cooperatives, education 
on cooperatives, and statistical information pertaining to cooperatives 
as authorized by the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-
1627).
    (13) Work with institutions and international organizations 
throughout the world on subjects related to the development and 
operation of agricultural cooperatives. Such work may be carried out by:
    (i) Exchanging materials and results with such institutions or 
organizations;
    (ii) Engaging in joint or coordinated activities; or
    (iii) Stationing representatives at such institutions or 
organizations in foreign countries (7 U.S.C. 3291).
    (14) Collect, service, and liquidate loans made, insured, or 
guaranteed by the Rural Business-Cooperative Service or its predecessor 
agencies.
    (15) Administer the Federal Claims Collection Act of 1966 (31 U.S.C. 
3711 et seq.), and joint regulations issued pursuant thereto by the 
Attorney General and the Comptroller General (4 CFR chapter II), with 
respect to the claims of the Rural Business-Cooperative Service.
    (16) Administer responsibilities and functions assigned under the 
Defense Production Act of 1950, as amended (50

[[Page 222]]

U.S.C. App. 2061 et seq.), and title VI of the Robert T. Stafford 
Disaster Relief and Assistance Act (42 U.S.C. 5195 et seq.), relating to 
rural development credit and financial assistance.
    (17) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (18) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);

[[Page 223]]

    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (19) Administer in rural areas the process of designation, provision 
of monitoring and oversight, and provision of technical assistance for 
Empowerment Zones and Enterprise Communities pursuant to section 13301 
of Pub. L. No. 103-66, Omnibus Budget Reconciliation Act of 1993 (26 
U.S.C. 1391 et seq.).
    (20) Provide leadership and coordination within the executive branch 
at the state and local level of Federal rural development program 
utilizing the services of executive branch departments and agencies and 
the agencies, bureaus, offices, and services of the Department of 
Agriculture in coordination with rural development programs of State and 
local governments (7 U.S.C. 2204).
    (21) Coordinate, at the state and local level, activities relative 
to rural development among agencies reporting to the Under Secretary for 
Rural Economic and Community Development and, through appropriate 
channels, serve as the coordinating agency for other departmental 
agencies having primary responsibilities, in coordination with rural 
development programs of State and local governments (7 U.S.C. 2204).
    (22) Work with Federal agencies in encouraging the creation of local 
rural community development organizations. Within a State, assist other 
Federal agencies in developing means for extending their services 
effectively to rural areas and in designating pilot projects in rural 
areas (7 U.S.C. 2204).
    (23) Conduct assessments to determine how programs of the Department 
can be brought to bear on the economic development problems of a State 
or local area and assure that local groups are receiving adequate and 
effective technical assistance from Federal agencies or from local and 
State governments in formulating development programs and in carrying 
out planned development activities (7 U.S.C. 2204b).
    (24) Develop a process through which State, sub-state and local 
rural development needs, goals, objectives, plans, and recommendations 
can be received and assessed on a continuing basis (7 U.S.C. 2204b).
    (25) Prepare local or area-wide rural development strategies based 
on the needs, goals, objectives, plans and recommendations of local 
communities, sub-state areas and States (7 U.S.C. 2204b).
    (26) Develop a system of outreach in the State or local area to 
promote rural development and provide for the publication and 
dissemination of information, through multi-media methods, relating to 
rural development. Advise local rural development organizations of 
availability of Federal programs and the type of assistance available, 
and assist in making contact with Federal program contact (7 U.S.C. 
2204; 7 U.S.C. 2204b).
    (27) Administer the assets of the Alternative Agricultural Research 
and Commercialization Corporation and the funds in the Alternative 
Agricultural Research and Commercialization Fund in accordance with 
section 6201 of the Farm Security and Rural Investment Act of 2000 (see 
note to 7 U.S.C. 5901 (repealed)).
    (28) Administer the Value-Added Agricultural Product Market 
Development Grant program (note to 7 U.S.C. 1621).
    (29) Administer the Agriculture Innovation Center Demonstration 
program (note to 7 U.S.C. 1621).
    (30) Administer the Renewable Energy Systems and Energy Efficiency 
Improvements program (7 U.S.C. 8106).
    (b) Reservation. The following authority is reserved to the Under 
Secretary for Rural Economic and Community Development: Making and 
issuing notes to the Secretary of the Treasury for the purposes of the 
Rural Development Insurance Fund as authorized by

[[Page 224]]

the Consolidated Farm and Rural Development Act (7 U.S.C. 1929a).

[60 FR 56393, Nov. 8, 1995, as amended at 66 FR 33107, June 11, 2001; 68 
FR 27444, May 20, 2003]



Sec. 2.49  Administrator, Rural Housing Service.

    (a) Delegations. Pursuant to Sec. 2.17(a)(14), (a)(16) through 
(a)(19) and (a)(22), and subject to policy guidance and directions by 
the Under Secretary for Rural Economic and Community Development, the 
following delegations are made by the Under Secretary for Rural Economic 
and Community Development to the Administrator, Rural Housing Service:
    (1) Administer the following under the Consolidated Farm and Rural 
Development Act (7 U.S.C. 1921 et seq.):
    (i) Section 306 (7 U.S.C. 1926) except subsection 306(a)(11) and 
except financing for water and waste disposal facilities; hazardous 
weather early warning systems; grazing facilities; irrigation and 
drainage facilities; rural electrification or telephone systems or 
facilities; and hydro-electric generating and related distribution 
systems and supplemental and supporting structures if they are eligible 
for Rural Utilities financing;
    (ii) Section 309A (7 U.S.C. 1929a), regarding assets and programs 
relating to community facilities; and
    (iii) Administrative Provisions of subtitle D of the Consolidated 
Farm and Rural Development Act relating to Rural Housing Service 
activities;
    (iv) Section 379 (7 U.S.C. 2008n) relating to the Rural Telework 
program.
    (v) Section 379A (7 U.S.C. 2008o) relating to the Historic Barn 
Preservation program.
    (vi) Section 379C (7 U.S.C. 2008q) relating to the Farm Workers 
Training Grant program.
    (2) Administer title V of the Housing Act of 1949 (42 U.S.C. 1471 et 
seq.), except those functions pertaining to research.
    (3) Make grants, administer a grant program, and determine the types 
of assistance to be provided to aid low-income migrant and seasonal 
farmworkers (42 U.S.C. 5177a).
    (4) Administer the rural housing disaster program under sections 
232, 234, and 253 of the Disaster Relief Act of 1970 (Pub. L. No. 91-
606).
    (5) Collect, service, and liquidate loans made, insured or 
guaranteed by the Rural Housing Service or its predecessor agencies.
    (6) Exercise all authority and discretion vested in the Secretary by 
section 510(d) of the Housing Act of 1949, as amended by section 1045 of 
the Stewart B. McKinney Homeless Assistance Amendments Act of 1988, Pub. 
L. No. 100-628 (42 U.S.C. 1480(d)), including the following:
    (i) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the Department of Justice for the conduct 
of litigation, and refer such actions to the Department of Justice 
through the General Counsel;
    (ii) Determine, with the concurrence of the General Counsel, which 
actions are to be referred to the General Counsel for the conduct of 
litigation and refer such actions; and
    (iii) Enter into contracts with private sector attorneys for the 
conduct of litigation, with the concurrence of the General Counsel, 
after determining that the attorneys will provide competent and cost 
effective representation for the Rural Housing Service and 
representation by the attorney will either accelerate the process by 
which a family or person eligible for assistance under section 502 of 
the Housing Act of 1949 will be able to purchase and occupy the housing 
involved, or preserve the quality of the housing involved.
    (7) Administer the Federal Claims Collection Act of 1966 (31 U.S.C. 
3711 et seq.), and joint regulations issued pursuant thereto by the 
Attorney General and the Comptroller General (4 CFR chapter II), with 
respect to claims of the Rural Housing Service.
    (8) Administer responsibilities and function assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.) 
and title VI of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5195 et seq.), relating to rural housing and 
community development credit and financial assistance.
    (9) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by

[[Page 225]]

Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following 
provisions of the Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (10) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);

[[Page 226]]

    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (11) Administer the Rural Firefighters and Emergency Personnel Grant 
program (7 U.S.C. 2655).
    (b) Reservation. The following authority is reserved to the Under 
Secretary for Rural Economic and Community Development: Making and 
issuing notes to the Secretary of the Treasury for the purposes the 
Rural Development Insurance Fund as authorized by the Consolidated Farm 
and Rural Development Act (7 U.S.C. 1929(a)) and the Rural Housing 
Insurance Fund as authorized by title V of the Housing Act of 1949 (41 
U.S.C. 1487).

[60 FR 56393, Nov. 8, 1995, as amended at 66 FR 16593, Mar. 27, 2001; 68 
FR 27444, May 20, 2003]



   Subpart H_Delegations of Authority by the Under Secretary for Food 
                                 Safety



Sec. 2.51  Deputy Under Secretary for Food Safety.

    Pursuant to Sec. 2.18, and subject to policy guidance and direction 
by the Under Secretary, the following delegation of authority is made by 
the Under Secretary for Food Safety to the Deputy Under Secretary for 
Food Safety, to be exercised only during the absence or unavailability 
of the Under Secretary: Perform all the duties and exercise all the 
powers which are now or which may hereafter be delegated to the Under 
Secretary for Farm and Foreign Agricultural Services.



Sec. 2.53  Administrator, Food Safety and Inspection Service.

    (a) Delegations. Pursuant to Sec. 2.18, the following delegations 
of authority are made by the Under Secretary for Food Safety to the 
Administrator, Food Safety and Inspection Service:
    (1) Exercise the functions of the Secretary of Agriculture contained 
in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-
1627), relating to voluntary inspection of poultry and edible products 
thereof; voluntary inspection and certification of technical animal fat; 
certified products for dogs, cats and other carnivora; voluntary 
inspection of rabbits and edible products thereof; and voluntary 
inspection and certification of edible meat and other products.
    (2) Exercise the functions of the Secretary of Agriculture contained 
in the following legislation:
    (i) Poultry Products Inspection Act, as amended (21 U.S.C. 451-470);
    (ii) Federal Meat Inspection Act, as amended, and related 
legislation, excluding sections 12-14, and also excluding so much of 
section 18 as pertains to issuance of certificates of condition of live 
animals intended and offered for export (21 U.S.C. 601-611, 615-624, 
641-645, 661, 671-680, 691-692, 694-695);
    (iii) Egg Products Inspection Act, except for the shell egg 
surveillance program, voluntary laboratory analyses of egg products, and 
the voluntary egg grading program (21 U.S.C. 1031-1056);
    (iv) Talmadge-Aiken Act (7 U.S.C. 450) with respect to cooperation 
with States in administration of the Federal Meat Inspection Act and the 
Poultry Products Inspection Act;
    (v) Humane Slaughter Act (7 U.S.C. 1901-1906); and
    (vi) Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 
et seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.), relating to 
wholesomeness of meat and poultry and products thereof and inspection of 
egg and egg products.
    (3) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;

[[Page 227]]

    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (4) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (5) Administer the National Laboratory Accreditation Program (7 
U.S.C. 138-138i) with respect to laboratories accredited only for 
pesticide residue analysis in meat and poultry products.

[[Page 228]]

    (6) Administer and conduct a food safety research program (7 U.S.C. 
427).
    (7) Coordinate with the Animal and Plant Health Inspection Service 
the administration of programs relating to human pathogen reduction 
(such as salmonella enteritidis) pursuant to section 2 of the Act of 
February 2, 1903, as amended (21 U.S.C. 111), and sections 4 and 5 of 
the Act of May 29, 1884, as amended (21 U.S.C. 120).
    (8) Enter into contracts, grants, or cooperative agreements to 
further research programs in the agricultural sciences (7 U.S.C. 3318).
    (9) Conduct an education program regarding the availability and 
safety of processes and treatments that eliminate or substantially 
reduce the level of pathogens on meat, meat food products, poultry, and 
poultry products (21 U.S.C. 679b).
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27444, May 20, 2003]



  Subpart I_Delegations of Authority by the Under Secretary for Food, 
                    Nutrition, and Consumer Services



Sec. 2.55  Deputy Under Secretary for Food, Nutrition, and Consumer 
Services.

    Pursuant to Sec. 2.19(a), subject to reservations in Sec. 2.19(b), 
and subject to policy guidance and direction by the Under Secretary, the 
following delegation of authority is made by the Under Secretary for 
Food, Nutrition, and Consumer Services to the Deputy Under Secretary for 
Food, Nutrition and Consumer Services, to be exercised only during the 
absence or unavailability of the Under Secretary: Perform all the duties 
and exercise all the powers which are now or which may hereafter be 
delegated to the Under Secretary for Food, Nutrition, and Consumer 
Services.



Sec. 2.57  Administrator, Food and Nutrition Service.

    (a) Delegations. Pursuant to Sec. 2.19(a)(1), (a)(2) and (a)(5), 
subject to reservations in Sec. 2.91(b), the following delegations of 
authority are made by the Under Secretary for Food, Nutrition, and 
Consumer Services to the Administrator, Food and Nutrition Service:
    (1) Administer the following legislation:
    (i) The Food Stamp Act of 1977, as amended (7 U.S.C. 2011-2032).
    (ii) Richard B. Russell National School Lunch Act, as amended (42 
U.S.C. 1751-1769h), except procurement of agricultural commodities and 
other foods under section 6 thereof.
    (iii) Child Nutrition Act of 1966, as amended (42 U.S.C. 1771-1790).
    (iv) Sections 933-939 of the Food, Agriculture, Conservation, and 
Trade Act Amendments of 1991 (7 U.S.C. 5930 note).
    (v) Section 301 of the Healthy Meals for Healthy Americans Act of 
1994 (Pub. L. 103-448).
    (vi) Section 4402 of the Farm Security and Rural Investment Act of 
2002 (7 U.S.C. 3007).
    (2) Administer those functions relating to the distribution and 
donation of agricultural commodities and products thereof under the 
following legislation:
    (i) Clause (3) of section 416(a) of the Agricultural Act of 1949, as 
amended (7 U.S.C. 1431(a)), except the estimate and announcement of the 
types and varieties of food commodities, and the quantities thereof, to 
become available for distribution thereunder;
    (ii) Section 709 of the Food and Agriculture Act of 1965, as amended 
(7 U.S.C. 1446a-1);
    (iii) Section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 
612c), as supplemented by the Act of June 28, 1937 (15 U.S.C. 713c), and 
related legislation;
    (iv) Section 9 of the Act of September 6, 1958 (7 U.S.C. 1431b);
    (v) Section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859), 
except with respect to donations to Federal penal and correctional 
institutions;
    (vi) Section 402 of the Mutual Security Act of 1954, as amended (22 
U.S.C. 1922);
    (vii) Section 311 of the Older Americans Act of 1965, as amended (42 
U.S.C. 3030a);
    (viii) Sections 412 and 413(b) of the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act (42 U.S.C. 5179, 5180(b));

[[Page 229]]

    (ix) Sections 4 and 5 of the Agriculture and Consumer Protection Act 
of 1973, as amended (7 U.S.C. 612c note);
    (x) Section 1114 of the Agriculture and Food Act of 1981, as amended 
(7 U.S.C. 1431e);
    (xi) Section 1336 of the Agriculture and Food Act of 1981 (Pub. L. 
No. 97-98);
    (xii) Emergency Food Assistance Act of 1983 (7 U.S.C. 612c note);
    (xiii) Sections 3(b)-(i), 3A and 4 of the Commodity Distribution 
Reform Act and WIC Amendments of 1987 (7 U.S.C. 612c note); and
    (xiv) Section 110 of the Hunger Prevention Act of 1988 (7 U.S.C. 
612c note).
    (3) Administer those functions relating to the distribution of food 
coupons under section 412 of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5179).
    (4) In connection with the functions assigned in paragraphs (a)(1), 
(a)(2), and (a)(3) of this section, relating to the distribution and 
donation of agricultural commodities and products thereof and food 
coupons to eligible recipients, authority to determine the requirements 
for such agricultural commodities and products thereof and food coupons 
to be so distributed.
    (5) Receive donation of food commodities under clause (3) of section 
416(a) of the Agricultural Act of 1949, as amended, section 709 of the 
Food and Agriculture Act of 1965, as amended, section 5 of the 
Agriculture and Consumer Protection Act of 1973, section 1114(a) of the 
Agriculture and Food Act of 1981, and section 202(a) and 202A of the 
Emergency Food Assistance Act of 1983.
    (6) Authorize defense emergency food stamp assistance.
    (7) Develop and implement USDA policy and procedural guidelines for 
carrying out the Department's Consumer Affairs Plan.
    (8) Advise the Secretary and other policy level officials of the 
Department on consumer affairs policies and programs.
    (9) Coordinate USDA consumer affairs activities and monitor and 
analyze agency procedures and performance.
    (10) Represent the Department at conferences, meetings and other 
contacts where consumer affairs issues are discussed, including liaison 
with the White House and other governmental agencies and departments.
    (11) Work with the Office of Budget and Program Analysis and the 
Office of Communications to ensure coordination of USDA consumer affairs 
and public participation programs, policies and information, and to 
prevent duplication of responsibilities.
    (12) Serve as a consumer ombudsman and communication link between 
consumers and the Department.
    (13) Approve the designation of agency Consumer Affairs Contacts.
    (14) Administer those functions under title IV of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 
1612) relating to the eligibility of aliens for benefits under the 
domestic food assistance programs.
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 63 FR 35787, July 1, 1998; 68 
FR 27444, May 20, 2003]



 Subpart J_Delegations of Authority by the Under Secretary for Natural 
                        Resources and Environment

    Editorial Note: Nomenclature changes to subpart J appear at 60 FR 
66713, Dec. 26, 1995.



Sec. 2.59  Deputy Under Secretaries for Natural Resources and Environment.

    Pursuant to Sec. 2.20(a), subject to reservations in Sec. 2.20(b), 
and subject to policy guidance and direction by the Under Secretary, the 
following delegation of authority is made by the Under Secretary for 
Natural Resources and Environment to the Deputy Under Secretaries for 
Natural Resources and Environment, to be exercised only during the 
absence or unavailability of the Under Secretary: Perform all the duties 
and exercise all the powers which are now or which may hereafter be 
delegated to the Under Secretary for Natural Resources and Environment. 
Provided, that, except in the absence of both the Under Secretary and a 
Deputy Under Secretary, this authority shall be exercised by the 
respective Deputy Under Secretary only with respect to

[[Page 230]]

the area or responsibility assigned to him or her.



Sec. 2.60  Chief, Forest Service.

    (a) Delegations. Pursuant to Sec. 2.20(a)(1), (a)(2), (a)(6), 
(a)(7)(ii) and (a)(8), the following delegations of authority are made 
by the Under Secretary for Natural Resources and Environment to the 
Chief of the Forest Service:
    (1) Provide national leadership in forestry. (As used here and 
elsewhere in this section, the term ``forestry'' encompasses renewable 
and nonrenewable resources of forests, including lands governed by the 
Alaska National Interest Lands Conservation Act, forest-related 
rangeland, grassland, brushland, woodland, and alpine areas including 
but not limited to recreation, range, timber, minerals, watershed, 
wildlife and fish; natural scenic, scientific, cultural, and historic 
values of forests and related lands; and derivative values such as 
economic strength and social well being).
    (2) Protect, manage, and administer the national forests, national 
forest purchase units, national grasslands, and other lands and 
interests in lands administered by the Forest Service, which 
collectively are designated as the National Forest System. This 
delegation covers the acquisition and disposition of lands and interest 
in lands as may be authorized for the protection, management, and 
administration of the National Forest System, except that the authority 
to approve acquisition of land under the Weeks Act of March 1, 1911, as 
amended, and special forest receipts acts (Pub. L. No. 337, 74th Cong., 
49 Stat. 866, as amended by Pub. L. No. 310, 78th Cong., 58 Stat. 227; 
Pub. L. No. 505, 75th Cong., 52 Stat. 347, as amended by Pub. L. No. 
310, 78th Cong., 58 Stat. 227; Pub. L. No. 634, 75th Cong., 52 Stat. 
699, as amended by Pub. L. No. 310, 78th Cong., 58 Stat. 227; Pub. L. 
No. 748, 75th Cong., 52 Stat. 1205, as amended by Pub. L. No. 310, 78th 
Cong., 58 Stat. 227; Pub. L. No. 427, 76th Cong., 54 Stat. 46; Pub. L. 
No. 589, 76th Cong., 54 Stat. 297; Pub. L. No. 591, 76th Cong., 54 Stat. 
299; Pub. L. No. 637, 76th Cong., 54 Stat. 402; Pub. L. No. 781, 84th 
Cong., 70 Stat. 632) is limited to acquisitions of less than $250,000 in 
value.
    (3) As necessary for administrative purposes, divide into and 
designate as national forests any lands of 3,000 acres or less which are 
acquired under or subject to the Weeks Act of March 1, 1911, as amended, 
and which are contiguous to existing national forest boundaries 
established under the authority of the Weeks Act.
    (4) Plan and administer wildlife and fish conservation 
rehabilitation and habitat management programs on National Forest System 
lands, pursuant to 16 U.S.C. 670g, 670h, and 670o.
    (5) For the purposes of the National Forests System Drug Control Act 
of 1986 (16 U.S.C. 559-f), specifically designate certain specially 
trained officers and employees of the Forest Service, not exceeding 500, 
to have authority in the performance of their duties within the 
boundaries of the National Forest System:
    (i) To carry firearms;
    (ii) To enforce and conduct investigations of violations of section 
401 of the Controlled Substance Act (21 U.S.C. 481) and other criminal 
violations relating to marijuana and other controlled substances that 
are manufactured, distributed, or dispensed on National Forest System 
lands;
    (iii) To make arrests with a warrant or process for misdemeanor 
violations, or without a warrant for violations of such misdemeanors 
that any such officer or employee has probable cause to believe are 
being committed in that employee's presence or view, or for a felony 
with a warrant or without a warrant if that employee has probable cause 
to believe that the person being arrested has committed or is committing 
such a felony;
    (iv) To serve warrants and other process issued by a court or 
officer of competent jurisdiction;
    (v) To search, with or without a warrant or process, any person, 
place, or conveyance according to Federal law or rule of law; and
    (vi) To seize, with or without warrant or process, any evidentiary 
item according to Federal law or rule of law.
    (6) Cooperate with the law enforcement officials of any Federal 
agency, State, or political subdivision, in the

[[Page 231]]

investigation of violations of, and enforcement of, section 401 of the 
Controlled Substances Act (21 U.S.C. 841), other laws and regulations 
relating to marijuana and other controlled substances, and State drug 
control laws or ordinances, within the boundaries of the National Forest 
System.
    (7) Administer programs under section 23 of the Federal Highway Act 
(23 U.S.C. 101(a), 120(f), 125(a)-(c), 138, 202(a)-(b), 203, 204(a)-(h), 
205(a)-(d), 211, 317, 401(a)).
    (8) Administer provisions of the Surface Mining Control and 
Reclamation Act of 1977 (30 U.S.C. 1272, 1305) as they relate to 
management of the National Forest System.
    (9) Conduct, support, and cooperate in investigations, experiments, 
tests, and other activities deemed necessary to obtain, analyze, 
develop, demonstrate, and disseminate scientific information about 
protecting, managing, and utilizing forest and rangeland renewable 
resources in rural, suburban, and urban areas in the United States and 
foreign countries. The activities conducted, supported, or cooperated in 
shall include, but not be limited to: renewable resource management 
research; renewable resource environmental research; renewable resource 
protection research, renewable resource utilization research, and 
renewable resource assessment research (16 U.S.C. 1641-1647).
    (10) Use authorities and means available to disseminate the 
knowledge and technology developed from forestry research (16 U.S.C. 
1645).
    (11) Coordinate activities with other agencies in USDA, other 
Federal and State agencies, forestry schools, and private entities and 
individuals (16 U.S.C. 1643).
    (12) Enter into contracts, grants, and cooperative agreements for 
the support of scientific research in forestry activities (7 U.S.C. 
427i(a), 1624; 16 U.S.C. 582a-8, 1643-1645, 1649).
    (13) Enter into cooperative research and development agreements with 
industry, universities, and others; institute a cash award program to 
reward scientific, engineering, and technical personnel; award royalties 
to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c).
    (14) Enter into contracts, grants, or cooperative agreements to 
further research, extension, or teaching programs in the food and 
agricultural sciences (7 U.S.C. 3152, 3318).
    (15) Enter into cost-reimbursable agreements relating to 
agricultural research, extension, or teaching activities (7 U.S.C. 
3319a).
    (16) Administer programs of cooperative forestry assistance in the 
protection, conservation, and multiple resource management of forests 
and related resources in both rural and urban areas and forest lands in 
foreign countries (16 U.S.C. 2101-2114).
    (17) Provide assistance to States and other units of government in 
forest resources planning and forestry rural revitalization (7 U.S.C. 
6601, 6611-6617; 16 U.S.C. 2107).
    (18) Conduct a program of technology implementation for State 
forestry personnel, private forest landowners and managers, vendors, 
forest operators, public agencies, and individuals (16 U.S.C. 2107).
    (19) Administer rural fire protection and control program (16 U.S.C. 
2106).
    (20) Provide technical assistance on forestry technology or the 
implementation of the conservation reserve and softwood timber programs 
authorized in sections 1231-1244 and 1254 of the Food Security Act of 
1985 (16 U.S.C. 3831-3844; 7 U.S.C. 1981 note).
    (21) Administer forest insect, disease, and other pest management 
programs (16 U.S.C. 2104).
    (22) Exercise the custodial functions of the Secretary for lands and 
interests in lands under lease or contract of sale to States and local 
agencies pursuant to title III of the Bankhead-Jones Farm Tenant Act and 
administer reserved and reversionary interests in lands conveyed under 
that Act (7 U.S.C. 1010-1012).
    (23) Under such general program criteria and procedures as may be 
established by the Natural Resources Conservation Service:
    (i) Administer the forestry aspects of the programs listed in 
paragraphs (a)(23)(i)(A), (B), and (C) of this section on the National 
Forest System, rangelands with national forest boundaries,

[[Page 232]]

adjacent rangelands which are administered under formal agreement, and 
other forest lands:
    (A) The cooperative river basin surveys and investigations program 
(16 U.S.C. 1006);
    (B) The eleven authorized watershed improvement programs and 
emergency flood prevention measures program under the Flood Control Act 
(33 U.S.C. 701b-1);
    (C) The small watershed protection program under the Pilot Watershed 
Protection and Watershed Protection and Flood Prevention Acts (7 U.S.C. 
701a-h; 16 U.S.C. 1001-1009).
    (ii) Exercise responsibility in connection with the forestry aspects 
of the resource conservation and development program authorized by title 
III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1011(e)).
    (24) Provide assistance to the Farm Service Agency in connection 
with the agricultural conservation program, the naval stores 
conservation program, and the cropland conversion program (16 U.S.C. 
590g-q).
    (25) Provide assistance to the Rural Housing Service in connection 
with grants and loans under authority of section 303 of the Consolidated 
Farm and Rural Development Act, 7 U.S.C. 1923; and consultation with the 
Department of Housing and Urban Development under the authority of 40 
U.S.C. 461(e).
    (26) Coordinate mapping work of USDA including:
    (i) Clearing mapping projects to prevent duplication;
    (ii) Keeping a record of mapping done by USDA agencies;
    (iii) Preparing and submitting required USDA reports;
    (iv) Serving as liaison on mapping with the Office of Management and 
Budget, Department of the Interior, and other departments and 
establishments;
    (v) Promoting interchange of technical mapping information, 
including techniques which may reduce costs or improve quality; and
    (vi) Maintaining the mapping records formerly maintained by the 
Office of Operations.
    (27) Administer the radio frequency licensing work of USDA, 
including:
    (i) Representing USDA on the Interdepartmental Radio Advisory 
Committee and its Frequency Assignment Subcommittee of the National 
Telecommunications and Information Administration, Department of 
Commerce;
    (ii) Establishing policies, standards, and procedures for allotting 
and assigning frequencies within USDA and for obtaining effective 
utilization of them;
    (iii) Providing licensing action necessary to assign radio 
frequencies for use by the agencies of USDA and maintenance of the 
records necessary in connection therewith; and
    (iv) Providing inspection of USDA's radio operations to ensure 
compliance with national and international regulations and policies for 
radio frequency use.
    (28) Represent USDA in all matters relating to responsibilities and 
authorities under the Federal Water Power Act, as amended (16 U.S.C. 
791-823).
    (29) [Reserved]
    (30) Administer the Youth Conservation Corps Act (42 U.S.C. precede 
2711 note) for USDA.
    (31) Establish and operate the Job Corps Civilian Conservation 
Centers on National Forest System lands as authorized by title I, 
sections 106 and 107 of the Economic Opportunity Act of 1964 (42 U.S.C. 
2716-2717), in accordance with the terms of an agreement dated May 11, 
1967, between the Secretary of Agriculture and the Secretary of Labor; 
and administration of other cooperative manpower training and work 
experience programs where the Forest Service serves as host or prime 
sponsor with other Departments of Federal, State, or local governments.
    (32) Administer the Volunteers in the National Forests Act of 1972 
(16 U.S.C. 558a-558d, 558a note).
    (33) Exercise the functions of the Secretary of Agriculture 
authorized in the Alaska National Interest Lands Conservation Act (16 
U.S.C. 3101-3215).
    (34) Administer responsibilities and functions assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42

[[Page 233]]

U.S.C. 5195 et seq.), relating to forests and forest products, rural 
fire defense, and forestry research.
    (35) Represent USDA on Regional Response Teams on hazardous spills 
and oil spills pursuant to the Comprehensive Environmental Response, 
Compensation, and Liability Act, as amended ( 42 U.S.C. 9601 et seq.), 
the Clean Water Act, as amended (33 U.S.C. 1251 et seq.), the Oil 
Pollution Act (OPA), as amended (33 U.S.C. 2701 et seq.), Executive 
Order 12580, 3 CFR, 1987 Comp., p. 193, Executive Order 12777, 3 CFR, 
1991 Comp., p. 351, and the National Contingency Plan, 40 CFR Part 300.
    (36) Exercise the functions of the Secretary as authorized in the 
Wild and Scenic Rivers Act (16 U.S.C. 1271-1278), except for making 
recommendations to the President regarding additions to the National 
Wild and Scenic Rivers System.
    (37) Issue proposed rules relating to the authorities delegated in 
this section, issue final rules and regulations as provided in 36 CFR 
261.70, issue technical amendments and corrections to final rules issued 
by the Secretary or Under Secretary for Natural Resources and 
Environment, and issue proposed and final rules necessary and 
appropriate to carry out title VIII of the Alaska National Interest 
Lands Conservation Act (16 U.S.C. 3101-3215) with regard to National 
Forest System Lands.
    (38) Jointly administer gypsy moth eradication activities with the 
Animal and Plant Health Inspection Service, under the authority of 
section 102 of the Organic Act of 1944, as amended; and the Act of April 
6, 1937, as amended (7 U.S.C. 147a, 148, 148a-148e); and the Talmadge 
Aiken Act (7 U.S.C. 450), by assuming primary responsibility for 
treating isolated gypsy moth infestations on Federal lands, and on State 
and private lands contiguous to infested Federal lands, and any other 
infestations over 640 acres on State and private lands.
    (39) With respect to land and facilities under his or her authority, 
to exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104 (e)-(h) of the Act (42 U.S.C. 9604 (e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) of the 
Act pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(g) of the Act (42 U.S.C. 9613(g)), with respect to 
receiving notification of a natural resource trustee's intent to file 
suit;
    (x) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;

[[Page 234]]

    (xi) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xii) Section 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xiii) Section 119 of the Act (42 U.S.C. 9619), with respect to 
indemnifying response action contractors;
    (xiv) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (40) Exercise the functions of the Secretary authorized in the 
Federal Onshore Oil and Gas Leasing Reform Act of 1987 (30 U.S.C. 226 et 
seq.).
    (41) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate United States 
District Court with an appropriate State, interstate, or local agency, 
containing a plan and schedule to achieve and maintain compliance with 
applicable pollution control standards established pursuant to the 
following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, the Hazardous and Solid Waste Amendment, 
and the Federal Facility Compliance Act (42 U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended, (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (42) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, and Executive Order 12777, 3 CFR, 1991 
Comp., p. 351, to act as Federal trustee for natural resources in 
accordance with section 107(f) of the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980 (42 U.S.C 9607(f)), 
section 311(f)(5) of the Federal Water Pollution Control Act (33 U.S.C. 
1321(f)(5)), and section 1006(b)(2) of the Oil Pollution Act of 1990 (33 
U.S.C. 2706(b)(2)).
    (43) With respect to land and facilities under his or her authority, 
to exercise the authority vested in the Secretary of Agriculture to act 
as the ``Federal Land Manager'' pursuant to the Clean Air Act, as 
amended, 42 U.S.C. 7401 et seq.
    (44) Administer the Public Lands Corps program (16 U.S.C. 1721 et 
seq.) for USDA consistent with the Department's overall national service 
program.
    (45) Jointly administer the Forestry Incentives Program with the 
Natural Resources Conservation Service, in consultation with State 
Foresters, under section 4 of the Cooperative Forestry Assistance Act of 
1978 (16 U.S.C. 2103).
    (46) Focusing on countries that could have a substantial impact on 
global warming, provide assistance that promotes sustainable development 
and global environmental stability; share technical, managerial, 
extension, and

[[Page 235]]

administrative skills; provide education and training opportunities; 
engage in scientific exchange; and cooperate with domestic and 
international organizations that further international programs for the 
management and protection of forests, rangelands, wildlife, fisheries 
and related natural resources (16 U.S.C. 4501-4505).
    (47) Exercise the functions of the Secretary of Agriculture 
authorized in Title V of the Department of the Interior and Related 
Agencies Appropriations Act of 1998, Pub. L. 105-83, relating to the 
acquisition so the New World Mines and other priority land acquisitions, 
land exchanges, and other activities.
    (48) Enter into pilot projects with the Bureau of Land Management 
(BLM), U.S. Department of the Interior, in support of the Service First 
initiative for the purpose of promoting customer service and efficiency 
in managing National Forest System lands and public lands and delegate 
to BLM employees those Forest Service authorities necessary to carry out 
those pilot projects (Pub. L. 106-291).
    (b) Reservations. The following authorities are reserved to the 
Under Secretary for Natural Resources and Environment:
    (1) The authority to issue final rules and regulations relating to 
the administration of Forest Service programs, except as provided in 36 
CFR 261.70 and Sec. 2.60(a)(37).
    (2) As deemed necessary for administrative purposes, the authority 
to divide into and designate as national forests any lands of more than 
3,000 acres acquired under or subject to the Weeks Act of March 1, 1911, 
as amended (16 U.S.C. 521).
    (3) The authority to make recommendations to the Administrator of 
General Services regarding transfer to other Federal, State, or 
Territorial agencies lands acquired under the Bankhead-Jones Farm Tenant 
Act, together with recommendations on the conditions of use and 
administration of such lands, pursuant to the provisions of section 
32(c) of title III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 
1011(c), and Executive Order 11609, 3 CFR, 1971-1975 Comp., p. 586).
    (4) Making recommendations to the President for establishing new 
units or adding to existing units of the National Wild and Scenic Rivers 
System (16 U.S.C. 1271-1278); National Scenic Trails System (16 U.S.C. 
1241-1249) and the National Wilderness Preservation System (16 U.S.C. 
1131-1136).
    (5) Signing of declarations of taking and requests for condemnation 
of property as authorized by law to carry out the mission of the Forest 
Service (40 U.S.C. 257).
    (6) Approval of acquisition of land under the Weeks Act of March 1, 
1911, as amended (16 U.S.C. 521), and special forest receipts acts (Pub. 
L. No. 337, 74th Cong., 49 Stat. 866, as amended by Pub. L. No. 310, 
78th Cong., 58 Stat. 227; Pub. L. No. 505, 75th Cong., 52 Stat. 347, as 
amended by Pub. L. No. 310, 78th Cong., 58 Stat. 227; Pub. L. No. 634, 
75th Cong., 52 Stat. 699, as amended by Pub. L. No. 310, 78th Cong., 58 
Stat. 227; Pub. L. No. 748, 75th Cong., 52 Stat. 1205, as amended by 
Pub. L. No. 310, 78th Cong., 58 Stat. 227; Pub. L. No. 427, 76th Cong., 
54 Stat. 46; Pub. L. No. 589, 76th Cong., 54 Stat. 297; Pub. L. No. 591, 
76th Cong., 54 Stat. 299; Pub. L. No. 637, 76th Cong., 54 Stat. 402; 
Pub. L. No. 781, 84th Cong., 70 Stat. 632) of $250,000 or more in value 
for national forest purposes.
    (7) The authority to approve disbursements from the New World Mine 
Response and Restoration Account and the authority to prepare and 
approve the New World Mine Response and Restoration Plan, including the 
coordination of the response and restoration activities of the Forest 
Service and the other Federal and State agencies, and make quarterly 
reports to Congress under section 502(d) and (f) of Title V of the 
Department of the Interior and Related Agencies Appropriations Act of 
1998, Pub. L. 105-83.

[60 FR 56393, Nov. 8, 1995, as amended at 64 FR 34967, June 30, 1999; 65 
FR 12429, Mar. 9, 2000; 67 FR 59135, Sept. 20, 2002]



Sec. 2.61  Chief, Natural Resources Conservation Service.

    (a) Delegations. Pursuant to Sec. 2.20 (a)(1), (a)(3), (a)(5), 
(a)(6), (a)(7)(ii) and (a)(8), subject to reservations in Sec. 
2.20(b)(1), the following delegations of

[[Page 236]]

authority are made by the Under Secretary for Natural Resources and 
Environment to the Chief of the Natural Resources Conservation Service:
    (1) Provide national leadership in the conservation, development and 
productive use of the Nation's soil, water, and related resources. Such 
leadership encompasses soil, water, plant, and wildlife conservation; 
small watershed protection and flood prevention; and resource 
conservation and development. Integrated in these programs are erosion 
control, sediment reduction, pollution abatement, land use planning, 
multiple use, improvement of water quality, and several surveying and 
monitoring activities related to environmental improvement. All are 
designed to assure:
    (i) Quality in the natural resource base for sustained use;
    (ii) Quality in the environment to provide attractive, convenient, 
and satisfying places to live, work, and play; and
    (iii) Quality in the standard of living based on community 
improvement and adequate income.
    (2) Provide national leadership in evaluating and coordinating land 
use policy, and administer the Farmland Protection Policy Act (7 U.S.C. 
4201 et seq.), including the Farms for the Future Program authorized by 
sections 1465-1470 of the Food, Agriculture, Conservation, and Trade Act 
of 1990 (7 U.S.C. 4201 note), except as otherwise delegated to the 
Administrator, Agricultural Research Service in Sec. 2.65(a)(80) and 
the Administrator, Cooperative State Research, Education, and Extension 
Service in Sec. 2.66(a)(76).
    (3) Administer the basic program of soil and water conservation 
under Pub. L. No. 46, 74th Congress, as amended, and related laws (16 
U.S.C. 590a-f, 1-1, q, q-1; 42 U.S.C. 3271-3274; 7 U.S.C. 2201), 
including:
    (i) Technical and financial assistance to land users in carrying out 
locally adapted soil and water conservation programs primarily through 
soil and water conservation districts in the several States, the 
District of Columbia, the Commonwealth of Puerto Rico, and the 
Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the 
Virgin Islands, and Federally recognized Native American tribes, but 
also to communities, watershed groups, Federal and State agencies, and 
other cooperators. This authority includes such assistance as:
    (A) Comprehensive planning assistance in nonmetroplitan districts;
    (B) Assistance in the field of income-producing recreation on rural 
non-Federal lands;
    (C) Forestry assistance, as part of total technical assistance to 
private land owners and land users when such services are an integral 
part of land management and such services are not available from a State 
agency; and forestry services in connection with windbreaks and shelter 
belts to prevent wind and water erosion of lands;
    (D) Assistance in developing programs relating to natural beauty; 
and
    (E) Assistance to other USDA agencies in connection with the 
administration of their programs, as follows:
    (1) To the Farm Service Agency in the development and technical 
servicing of certain programs, such as the Agricultural Conservation 
Program and other such similar conservation programs;
    (2) To the Rural Housing Service in connection with their loan and 
land disposition programs.
    (ii) Soil Surveys, including:
    (A) Providing leadership for the Federal part of the National 
Cooperative Soil Survey which includes conducting and publishing soil 
surveys;
    (B) Conducting soil surveys for resource planning and development; 
and
    (C) Performing the cartographic services essential to carrying out 
the functions of the Natural Resources Conservation Service, including 
furnishing photographs, mosaics, and maps.
    (iii) Conducting and coordinating snow surveys and making water 
supply forecasts pursuant to Reorganization Plan No. IV of 1940 (5 
U.S.C. App.);
    (iv) Operating plant materials centers for the assembly and testing 
of plant species in conservation programs, including the use, 
administration, and disposition of lands under the administration of the 
Natural Resources Conservation Service for such purposes under title III 
of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010-1011); and

[[Page 237]]

    (v) Providing leadership in the inventorying and monitoring of soil, 
water, land, and related resources of the Nation.
    (4) Administer the Watershed Protection and Flood Prevention 
Programs, including:
    (i) The eleven authorized watershed projects authorized under 33 
U.S.C. 702b-1, except for responsibilities assigned to the Forest 
Service;
    (ii) The emergency flood control work under 33 U.S.C. 701b-1, except 
for responsibilities assigned to the Forest Service;
    (iii) The Cooperative River Basin Surveys and Investigations 
Programs under 16 U.S.C. 1006, except for responsibilities assigned to 
the Forest Service;
    (iv) The pilot watershed projects under 16 U.S.C. 590a-f, and 16 
U.S.C. 1001-1009, except for responsibilities assigned to the Forest 
Service;
    (v) The Watershed Protection and Flood Prevention Program under 16 
U.S.C. 1001-1010, including rehabilitation of water resource structural 
measures constructed under certain Department of Agriculture programs 
under 16 U.S.C. 1012, except for responsibilities assigned to the Rural 
Housing Service and the Forest Service.
    (vi) The joint investigations and surveys with the Department of the 
Army under 16 U.S.C. 1009; and
    (vii) The Emergency Conservation Program under sections 401-405 of 
the Agricultural Credit Act of 1978 (the Act), 16 U.S.C. 2201 et seq., 
except for the provisions of sections 401 and 402 of the Act, 16 U.S.C. 
2201-2202, as administered by the Farm Service Agency.
    (5) Administer the Great Plains Conservation Program and the 
Critical Lands Resources Conservation Program under 16 U.S.C. 590p(b).
    (6) Administer the Resource Conservation and Development Program 
under 16 U.S.C. 590a-f; 7 U.S.C. 1010-1011; and 16 U.S.C. 3451-3461, 
except for responsibilities assigned to the Rural Utilities Service.
    (7) Responsibility for entering into long-term contracts for 
carrying out conservation and environmental measures in watershed areas.
    (8) Provide national leadership for and administer the Soil and 
Water Resources Conservation Act of 1977 (16 U.S.C. 2001 et seq.), 
except for responsibilities assigned to other USDA agencies.
    (9) Administer Rural Clean Water Program and other responsibilities 
assigned under section 35 of the Clean Water Act of 1977 (33 U.S.C. 1251 
et seq.).
    (10) Monitor actions and progress of USDA in complying with 
Executive Order 11988, Flood Plain Management, 3 CFR, 1977 Comp., p. 
117, and Executive Order 11990, Protection of Wetlands, 3 CFR, 1977 
Comp., p. 121, regarding management of floodplains and protection of 
wetlands; monitor USDA efforts on protection of important agricultural, 
forest and rangelands; and provide staff assistance to the USDA Natural 
Resources and Environment Committee.
    (11) Administer the search and rescue operations authorized under 7 
U.S.C. 2273.
    (12) Administer section 202(c) of the Colorado River Basin Salinity 
Control Act, 43 U.S.C. 1592(c) including:
    (i) Identify salt source areas and determine the salt load resulting 
from irrigation and watershed management practices;
    (ii) Conduct salinity control studies of irrigated salt source 
areas;
    (iii) Provide technical and financial assistance in the 
implementation of salinity control projects including the development of 
salinity control plans, technical services for application, and 
certification of practice applications;
    (iv) Develop plans for implementing measures that will reduce the 
salt load of the Colorado River;
    (v) Develop and implement long-term monitoring and evaluation plans 
to measure and report progress and accomplishments in achieving program 
objectives; and
    (vi) Enter into and administer contracts with program participants 
and waive cost-sharing requirements when such cost-sharing requirements 
would result in a failure to proceed with needed on-farm measures.
    (13) Administer natural resources conservation authorities, 
including authorities related to programs of the Commodity Credit 
Corporation that provide assistance with respect to natural resources 
conservation, under Title XII of the Food Security Act of

[[Page 238]]

1985 (the Act), as amended (16 U.S.C. 3801 et seq.), including the 
following:
    (i) Technical assistance related to the conservation of highly 
erodible lands and wetlands pursuant to sections 1211-1223 of the Act 
(16 U.S.C. 3811-3823);
    (ii) Technical assistance related to the Conservation Reserve 
Program authorized by sections 1231-1235A of the Act (16 U.S.C. 3831-
3835a);
    (iii) The Wetlands Reserve Program and the Emergency Wetlands 
Reserve Program authorized by sections 1237-1237F of the Act (16 U.S.C. 
3837-3837f) and the Emergency Supplemental Appropriations for Relief 
from the Major, Widespread Flooding in the Midwest Act, Pub. L. 103-75;
    (iv) The Conservation Security Program authorized by sections 1238-
1238C (16 U.S.C. 3838-3838c);
    (v) The Farmland Protection Program authorized by sections 1238H-
1238I of the Act (16 U.S.C. 3838h-3838i);
    (vi) The Farm Viability Program authorized by section 1238J of the 
Act (16 U.S.C. 3838j);
    (vii) The Environmental Easement Program authorized by sections 
1239-1239D of the Act (16 U.S.C. 3839-3839d);
    (viii) The Environmental Quality Incentives Program authorized by 
sections 1240-1240I of the Act (16 U.S.C. 3839aa-3839aa-9);
    (xix) The conservation of private grazing lands authorized by 
section 1240M of the Act (16 U.S.C. 3839bb);
    (x) The Wildlife Habitat Incentives Program authorized by section 
1240N of the Act (16 U.S.C. 3839bb-1);
    (xi) The program for soil erosion and sedimentation control in the 
Great Lakes basin authorized by section 1240P of the Act (16 U.S.C. 
3839bb-3);
    (xii) The delivery of technical assistance under section 1242 of the 
Act (16 U.S.C. 3842), including the approval of persons or entities 
outside of USDA to provide technical services;
    (xiii) The authority for partnerships and cooperation provided by 
section 1243 of the Act (16 U.S.C. 3843), except for responsibilities 
assigned to the Under Secretary for Farm and Foreign Agricultural 
Services; and
    (xiv) The incentives for beginning farmers and ranchers and Indian 
tribes and the protection of certain proprietary information related to 
natural resources conservation programs as provided by section 1244 of 
the Act (16 U.S.C. 3844), except for responsibilities assigned to the 
Administrator, Farm Service Agency.
    (14) Approve and transmit to the Congress comprehensive river basin 
reports.
    (15) Provide representation on the Water Resources Council and river 
basin commissions created by 42 U.S.C. 1962, and on river basin 
interagency committees.
    (16) Jointly administer the Forestry Incentives Program with the 
Forest Service, in consultation with State Foresters, under section 4 of 
the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2103).
    (17) Administer the Water Bank Program under the Water Bank Act (16 
U.S.C. 1301 et seq.).
    (18) Administer the agricultural management assistance provisions of 
section 524(b) of the Federal Crop Insurance Act, as amended (7 U.S.C. 
1524(b)), except for responsibilities assigned to the Administrator, 
Risk Management Agency.
    (19) [Reserved]
    (20) Coordinate USDA input and assistance to the Department of 
Commerce and other Federal agencies consistent with section 307 of the 
Coastal Zone Management Act of 1972 (16 U.S.C. 1456), and coordinate 
USDA review of qualifying state and local government coastal management 
plans or programs prepared under such Act and submitted to the Secretary 
of Commerce, consistent with section 306(a) and (c) of such Act (16 
U.S.C. 1455(a) and (c)).
    (21) Administer responsibilities and functions assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.), relating to 
agricultural lands and water.
    (22) Administer the Abandoned Mine Reclamation Program for Rural 
Lands and other responsibilities assigned under the Surface Mining 
Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.), except for 
responsibilities assigned to the Forest Service.

[[Page 239]]

    (23) With respect to land and facilities under his or her authority, 
to exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), 
(b), and (c)(4)), with respect to removal and remedial actions in the 
event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604 (e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) of the 
Act pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622) and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Section 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), 
with respect to public participation in the preparation of any plan for 
remedial action and explanation of variances from the final remedial 
action plan for any remedial action or enforcement action, including any 
settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9619), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlement, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9633(b)(1)), related to mixed funding agreements.
    (24) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate United States 
District Court with an appropriate State, interstate, or local agency, 
containing a plan and schedule to achieve and maintain compliance with 
applicable pollution control standards established pursuant to the 
following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, the Hazardous and Solid Waste Amendments, 
and the Federal Facility Compliance Act (42 U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);

[[Page 240]]

    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended, (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (25) Administer the following provisions of the Farm Security and 
Rural Investment Act of 2002 with respect to functions otherwise 
delegated to the Chief, Natural Resources and Environment:
    (i) The equitable relief provisions of section 1613 (7 U.S.C. 7996);
    (ii) The tracking of benefits under section 1614 (7 U.S.c. 7997); 
and
    (iii) The development of a plan and related report to coordinate 
land retirement and agricultural working land conservation programs 
under section 2005 (16 U.S.C. 3801 note).
    (b) Reservations. The following authorities are reserved to the 
Under Secretary for Natural Resources and Environment:
    (1) Executing cooperative agreements and memoranda of understanding 
for multi-agency cooperation with conservation districts and other 
districts organized for soil and water conservation within States, 
territories, possessions, and American Indian Nations.
    (2) Approving additions to authorized Resource Conservation and 
Development Projects that designate new project areas in which resource 
conservation and development program assistance will be provided, and 
withdrawing authorization for assistance, pursuant to 16 U.S.C. 590a-f; 
7 U.S.C. 1010-1011; 16 U.S.C. 3451-3461.
    (3) Giving final approval to and transmitting to the Congress 
watershed work plans that require congressional approval.

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 1031, Jan. 8, 1997; 68 
FR 27444, May 20, 2003]



Subpart K_Delegations of Authority by the Under Secretary for Research, 
                        Education, and Economics



Sec. 2.63  Deputy Under Secretary for Research, Education, and Economics.

    Pursuant to Sec. 2.21(a), subject to reservations in Sec. 2.21(b), 
and subject to policy guidance and direction by the Under Secretary, the 
following delegation of authority is made by the Under Secretary for 
Research, Education, and Economics, to be exercised only during the 
absence or unavailability of the Under Secretary: Perform all the duties 
and exercise all the powers which are now or which may hereafter be 
delegated to the Under Secretary for Research, Education, and Economics.



Sec. 2.65  Administrator, Agricultural Research Service.

    (a) Delegations. Pursuant to Sec. 2.21(a)(1), (a)(3) and (a)(5) 
through (a)(7), subject to reservations in Sec. 2.21(b)(1), the 
following delegations of authority are made by the Under Secretary for 
Research, Education, and Economics to the Administrator, Agricultural 
Research Service:
    (1) Coordinate USDA policy relative to the Federal Insecticide, 
Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 et seq.) and 
coordinate the Department's Integrated Pest Management Programs and the 
Pesticide Assessment Program (7 U.S.C. 136-136y).
    (2) Conduct research related to the economic feasibility of the 
manufacture and commercialization of natural rubber from hydrocarbon-
containing plants (7 U.S.C. 178-178n).
    (3) Conduct research on the control of undesirable species of 
honeybees in cooperation with specific foreign governments (7 U.S.C. 
284).
    (4) Conduct research concerning domestic animals and poultry, their 
protection and use, the causes of contagious, infectious, and 
communicable diseases, and the means for the prevention and cure of the 
same (7 U.S.C. 391).
    (5) Conduct research related to the dairy industry and to the 
dissemination of information for the promotion of the dairy industry (7 
U.S.C. 402).
    (6) Conduct research and demonstrations at Mandan, ND, related to 
dairy

[[Page 241]]

livestock breeding, growing, and feeding, and other problems pertaining 
to the establishment of the dairy and livestock industries (7 U.S.C. 
421-422).
    (7) Conduct research on new uses for cotton and on cotton ginning 
and processing (7 U.S.C. 423-424).
    (8) Conduct research into the basic problems of agriculture in its 
broadest aspects, including, but not limited to, production, marketing 
(other than statistical and economic research but including research 
related to family use of resources), distribution, processing, and 
utilization of plant and animal commodities; problems of human 
nutrition; development of markets for agricultural commodities; 
discovery, introduction, and breeding of new crops, plants, animals, 
both foreign and native; conservation development; and development of 
efficient use of farm buildings, homes, and farm machinery except as 
otherwise delegated in Sec. Sec. 2.22(a)(1)(ii) and 2.79(a)(2) (7 
U.S.C. 427, 1621-1627, 1629, 2201 and 2204).
    (9) Conduct research on varietal improvement of wheat and feed 
grains to enhance their conservation and environmental qualities (7 
U.S.C. 428b).
    (10) [Reserved]
    (11) Enter into agreements with and receive funds from any State, 
other political subdivision, organization, or individual for the purpose 
of conducting cooperative research projects (7 U.S.C. 450a).
    (12) Make facilities grants and conduct research under the IR-4 
program (7 U.S.C. 450i(d) and (e)).
    (13) Conduct research related to soil and water conservation, 
engineering operations, and methods of cultivation to provide for the 
control and prevention of soil erosion (7 U.S.C. 1010 and 16 U.S.C. 
590a).
    (14) Maintain four regional research laboratories and conduct 
research at such laboratories to develop new scientific, chemical, and 
technical uses and new and extended markets and outlets for farm 
commodities and products and the by-products thereof (7 U.S.C. 1292).
    (15) Conduct a Special Cotton Research Program designed to reduce 
the cost of producing upland cotton in the United States (7 U.S.C. 1441 
note).
    (16) Conduct research to formulate new uses for farm and forest 
products (7 U.S.C. 1632(b)).
    (17) Conduct research to develop and determine methods for the 
humane slaughter of livestock (7 U.S.C. 1904).
    (18) Provide national leadership and support for research programs 
and other research activities in the food and agricultural sciences to 
meet major needs and challenges in food and agricultural system 
productivity; development of new food, fiber, and energy sources; 
agricultural energy use and production; natural resources; promotion of 
the health and welfare of people; human nutrition; and international 
food and agriculture pursuant to the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3101 et 
seq.).
    (19) [Reserved]
    (20) Administer the National Agricultural Science Award for research 
or advanced studies in the food and agricultural sciences (7 U.S.C. 
3153).
    (21) Conduct program evaluations to improve the administration and 
effectiveness of agricultural research and education programs (7 U.S.C. 
3317).
    (22) Enter into contracts, grants, or cooperative agreements to 
further research programs and library and related information programs 
supporting research, extension, and teaching programs in the food and 
agricultural sciences (7 U.S.C. 3318).
    (23) Enter into cost-reimbursable agreements with State cooperative 
institutions or other colleges and universities for the acquisition of 
goods or services in support of research, extension, or teaching 
activities in the food and agricultural sciences, including the 
furtherance of library and related information programs (7 U.S.C. 
3319a).
    (24) Conduct research for the development of supplemental and 
alternative crops (7 U.S.C. 3319d).
    (25) Conduct research on potential uses for compost from 
agricultural wastes, including evaluating the application of compost on 
soil, plants, and crops (7 U.S.C. 3130).
    (26) [Reserved]
    (27) Cooperate and work with national and international 
institutions, Departments and Ministries of Agriculture in other 
nations, land-grant

[[Page 242]]

colleges and universities, and other persons throughout the world in the 
performance of agricultural research activities (7 U.S.C. 3291).
    (28) Provide a biennial report to the Committee on Agriculture of 
the House of Representatives and the Committee on Agriculture, 
Nutrition, and Forestry of the Senate on efforts of the Federal 
Government to coordinate international agricultural research within the 
Federal Government, and to more effectively link the activities of 
domestic and international agricultural researchers, particularly 
researchers of the Agricultural Research Service (7 U.S.C. 3291(d)(2)).
    (29) Conduct a program of basic research on cancer in animals and 
birds (7 U.S.C. 3902).
    (30) Conduct and coordinate Departmental research programs on water 
quality and nutrient management (7 U.S.C. 5504).
    (31) Conduct research to optimize crop and livestock production 
potential, integrated resource management, and integrated crop 
management (7 U.S.C. 5821).
    (32) Administer a national research program on genetic resources to 
provide for the collection, preservation, and dissemination of genetic 
material important to American food and agriculture production (7 U.S.C. 
5841).
    (33) Conduct remote-sensing and other weather-related research (7 
U.S.C. 5852).
    (34) Administer grants and conduct research programs to measure 
microbiological and chemical agents associated with the production, 
preparation, processing, handling, and storage of agricultural products 
(7 U.S.C. 5871-5874).
    (35) Conduct research on integrated pest management, including 
research to benefit floriculture (7 U.S.C. 5881).
    (36) Conduct research in the control and eradication of exotic pests 
(7 U.S.C. 5883).
    (37) Conduct research to study the biology and behavior of chinch 
bugs (7 U.S.C. 5884).
    (38) Administer a grant program for risk assessment research to 
address concerns about the environmental effects of biotechnology (7 
U.S.C. 5921).
    (39) Conduct a research initiative known as the Agricultural Genome 
Initiative, and make grants or enter into cooperative agreements on a 
competitive basis to carry out the Initiative (7 U.S.C. 5924).
    (40) Facilitate access, including through the National Agricultural 
Library, by research and extension professionals, farmers, and other 
interested persons in the United States to, and the use by those persons 
of, organic research conducted outside the United States (7 U.S.C. 
5925d).
    (41)-(45) [Reserved]
    (46) Conduct research on diseases affecting honeybees (7 U.S.C. 
5934).
    (47) Coordinate USDA policy and programs relating to global climate 
change (7 U.S.C. 6701-6703).
    (48) Coordinate Departmental policies under the Toxic Substances 
Control Act (15 U.S.C. 2601-2629).
    (49) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and

[[Page 243]]

    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (50) Perform research and administer grants for research and 
development in aquaculture (16 U.S.C. 2804).
    (51) Maintain a National Arboretum for the purposes of research and 
education concerning tree and plant life, and order disbursements from 
the Treasury, in accordance with the Act of March 4, 1927 (20 U.S.C. 191 
et seq.).
    (52) Conduct research on foot-and-mouth disease and other animal 
diseases (21 U.S.C. 113a).
    (53) Conduct research on the control and eradication of cattle grubs 
(screwworms) (21 U.S.C. 114e).
    (54) [Reserved]
    (55) Conduct research on losses of livestock in interstate commerce 
due to injury or disease (45 U.S.C. 71 note).
    (56) Control within USDA the acquisition, use, and disposal of 
material and equipment that may be a source of ionizing radiation 
hazard.
    (57) Pursuant to the authority delegated by the Administrator of 
General Services to the Secretary of Agriculture in 34 FR 6406, 36 FR 
1293, 36 FR 18840, and 38 FR 23838, appoint uniformed armed guards and 
special policemen, make all needful rules and regulations, and annex to 
such rules and regulations such reasonable penalties (not to exceed 
those prescribed in 40 U.S.C. 318(c)), as will insure their enforcement, 
for the protection of persons, property, buildings, and grounds of the 
Arboretum, Washington, DC; the U.S. Meat Animal Research Center, Clay 
Center, NE.; the Agricultural Research Center, Beltsville, MD; and the 
Animal Disease Center, Plum Island, NY, over which the United States has 
exclusive or concurrent criminal jurisdiction, in accordance with the 
limitations and requirements of the Federal Property and Administrative 
Services Act of 1949, as amended (40 U.S.C. 471 et seq.), the Act of 
June 1, 1948, as amended (40 U.S.C. 318 et seq.), and the policies, 
procedures, and controls prescribed by the General Services 
Administration. Any rules or regulations promulgated under this 
authority shall be approved by the Director, Office of Operations, and 
the General Counsel prior to issuance.
    (58) Administer the Department's Patent Program except as delegated 
to the General Counsel in Sec. 2.31(e).
    (59) Provide management support services for the Economic Research 
Service, the Cooperative State Research, Education and Extension 
Service, and the National Agricultural Statistics Service as agreed upon 
by the agencies with authority to take actions required by law or 
regulation. As used herein, the term management support services 
includes budget, finance, personnel, procurement, property management, 
communications, paperwork management, ADP support, and related 
administrative services.
    (60) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;

[[Page 244]]

    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (61) Carry out research activities authorized in section 202(c) of 
the Colorado River Basin Salinity Control Act (43 U.S.C. 1592(c)).
    (62) Perform food and agricultural research in support of functions 
assigned to the Department under the Defense Production Act of 1950, as 
amended (50 U.S.C. App. 2061 et seq.), and title VI of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et 
seq.).
    (63) Propagate bee-breeding stock and release bee germplasm to the 
public (7 U.S.C. 283).
    (64) Administer a National Food and Human Nutrition Research Program 
and a Human Nutrition Intervention and Health Promotion Research Program 
under the National Agricultural Research, Extension, and Teaching Policy 
Act of 1977, as amended. As used herein the term ``research'' includes:
    (i) Research on the nutrient composition of foods and the effects of 
agricultural practices, handling, food processing, and cooking on the 
nutrients they contain;
    (ii) Surveillance of the nutritional benefits provided to 
participants in the food programs administered by the Department; and
    (iii) Research on the factors affecting food preference and habits. 
(7 U.S.C. 3171-3175, 3177).
    (65) The authority in paragraph (a)(64) of this section includes the 
authority to:
    (i) Appraise the nutritive content of the U.S. food supply;
    (ii) Develop and make available data on the nutrient composition of 
foods needed by Federal, State, and local agencies administering food 
and nutrition programs, and the general public, to improve the 
nutritional quality of diets;
    (iii) Coordinate nutrition education research and professional 
education projects within the Department; and
    (iv) Maintain data generated on food composition in a National 
Nutrient Data Bank.
    (66) Conduct, in cooperation with the Department of Health and Human 
Services, the National Nutrition Monitoring and Related Research 
Program. Included in this delegation is the authority to:
    (i) Design and carry out periodic nationwide food consumption 
surveys to measure household food consumption;
    (ii) Design and carry out a continuous, longitudinal individual 
intake survey of the United States population and special high-risk 
groups; and

[[Page 245]]

    (iii) Design and carry out methodological research studies to 
develop improved procedures for collecting household and individual food 
intake consumption data;
    (67) [Reserved]
    (68) Provide staff support to the Under Secretary for Research, 
Education, and Economics related to the Ten-Year Comprehensive Plan and 
the Interagency Board for Nutrition Monitoring and Related Research 
required by Pub. L. No. 101-445, 7 U.S.C. 5301 et seq.
    (69) Obtain and furnish excess property to eligible recipients for 
use in the conduct of research and extension programs.
    (70) [Reserved]
    (71) Establish and maintain a Food Safety Research Information 
Office at the National Agricultural Library to provide to the research 
community and the general public information on publicly and privately 
funded food safety research initiatives (7 U.S.C. 7654(a)).
    (72) Develop and maintain library and information systems and 
networks and facilitate cooperation and coordination of the agricultural 
libraries of colleges, universities, USDA, and their closely allied 
information gathering and dissemination units in conjunction with 
private industry and other research libraries (7 U.S.C. 2201, 2204, 
3125a, and 3126).
    (73) Accept gifts and order disbursements from the Treasury for the 
benefit of the National Agricultural Library or for the carrying out of 
any of its functions (7 U.S.C. 2264-2265).
    (74) Provide for the dissemination of appropriate rural health and 
safety information resources possessed by the National Agricultural 
Library Rural Information Center, in cooperation with State educational 
program efforts (7 U.S.C. 2662).
    (75) Provide national leadership in the development and maintenance 
of library and related information systems and other activities to 
support the research, extension, and teaching programs in the food and 
agricultural sciences pursuant to the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3101 
and 3121).
    (76) Administer the programs and services of the National 
Agricultural Library consistent with its charge to serve as the primary 
agricultural information resource of the United States and enter into 
agreements and receive funds from various entities to conduct National 
Agricultural Library activities (7 U.S.C. 3125a).
    (77) Provide and distribute information and data about Federal, 
State, local, and other rural development assistance programs and 
services available to individuals and organizations. To the extent 
possible, the National Agricultural Library shall use telecommunications 
technology to disseminate such information to rural areas (7 U.S.C. 
3125b).
    (78) Assemble and collect food and nutrition educational materials, 
including the results of nutrition research, training methods, 
procedures, and other materials related to the purposes of the National 
Agricultural Research, Extension, and Teaching Policy Act of 1977, as 
amended; maintain such information; and provide for the dissemination of 
such information and materials on a regular basis to State educational 
agencies and other interested parties (7 U.S.C. 3126).
    (79) Conduct program evaluations to improve the administration and 
efficacy of the National Agricultural Library and related information 
systems in the food and agricultural sciences (7 U.S.C. 3317).
    (80) Administer the National Agricultural Library, including the 
farmland information center, pursuant to section 1544(b) of the Farmland 
Protection Policy Act (7 U.S.C. 4205(b)).
    (81) Support Department water programs through participation in 
State water quality coordination programs and dissemination of 
agrichemical information (7 U.S.C. 5503-5506).
    (82) Provide a repository of agriculture and ground water quality 
planning information (7 U.S.C. 5505).
    (83) Disseminate information on materials and methods of pest and 
disease control available to agricultural producers through the pest and 
disease control database (7 U.S.C. 5882).
    (84) Represent the Department on all library and information science 
matters before Congressional Committees

[[Page 246]]

and appropriate commissions, and provide representation to the 
coordinating committees of the Federal and State governments concerned 
with library and information science activities.
    (85) Represent the Department in international organizational 
activities and on international technical committees concerned with 
library and information science activities.
    (86) Prepare and disseminate computer files, indexes and abstracts, 
bibliographies, reviews and other analytical information tools.
    (87) Arrange for the consolidated purchasing and dissemination of 
printed and automated indexes, abstracts, journals, and other widely 
used information resources and services.
    (88) Provide assistance and support to professional organizations 
and others concerned with library and information science matters and 
issues.
    (89) Copy and deliver on demand selected articles and other 
materials from the National Agricultural Library's collections by 
photographic reproduction or other means within the permissions, 
constraints, and limitations of sections 106, 107, and 108 of the 
Copyright Act of October 19, 1976 (17 U.S.C. 106, 107 and 108).
    (90) Formulate, write, or prescribe bibliographic and technically 
related standards for the library and information services of USDA (7 
U.S.C. 3125a et seq.).
    (91) Assure the acquisition, preservation, and accessibility of all 
information concerning food and agriculture by providing leadership to 
and coordination of the acquisition programs and related activities of 
the library and information systems, with the agencies of USDA, other 
Federal departments and agencies, State agricultural experiment 
stations, colleges and universities, and other research institutions and 
organizations.
    (92) Determine by survey or other appropriate means, the information 
needs of the Department's scientific, professional, technical, and 
administrative staffs, its constituencies, and the general public in the 
areas of food, agriculture, the environment, and other related areas.
    (93) Review cooperative research and development agreements entered 
into pursuant to 15 U.S.C. 3710a-3710c, with authority to disapprove or 
require the modification of any such agreement.
    (94) Administer the Stuttgart National Aquaculture Research Center 
(16 U.S.C. 778 et seq.; Pub. L. 104-127, sec. 889).
    (95) Provide technical and educational assistance to conserve and 
enhance private grazing land resources (16 U.S.C. 2005b).
    (96) Provide technical assistance to farmers and ranchers under the 
Environmental Quality Incentives Program (16 U.S.C. 3830 et seq.).
    (97) Enter into cooperative research and development agreements with 
industry, universities, and others; institute a cash award program to 
reward scientific, engineering, and technical personnel; award royalties 
to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c).
    (98) Coordinate USDA activities delegated under 15 U.S.C. 3710a-
3710c.
    (99) Ensure that agricultural research conducted by the Agricultural 
Research Service (ARS) addresses a concern that is a priority and has 
national, multistate, or regional significance (7 U.S.C. 7611).
    (100) Solicit and consider input and recommendations from persons 
who conduct or use agricultural research, extension, or education (7 
U.S.C. 7612(b)).
    (101) Consider the results of the annual review performed by the 
Agricultural Research, Extension, Education, and Economics Advisory 
Board regarding the relevance to priorities of the funding of all 
agricultural research, extension, or education activities conducted or 
funded by the Department and the adequacy of funding when formulating 
each request for proposals, and evaluating proposals, involving an 
agricultural research, extension, or education activity funded, on a 
competitive basis, by the Department; and solicit and consider input 
from persons who conduct or use agricultural research, extension, or 
education regarding the prior year's request for proposals for each 
activity funded on a competitive basis (7 U.S.C. 7613(c)).

[[Page 247]]

    (102) Establish procedures that ensure scientific peer review of all 
research activities conducted by the Agricultural Research Service (7 
U.S.C. 7613(d)).
    (103) Coordinate the resources of the Department to develop, 
commercialize, and promote the use of biobased products, and enter into 
cooperative agreements with private entities to operate pilot plants and 
other large-scale preparation facilities under which the facilities and 
technical expertise of the Agricultural Research Service may be made 
available (7 U.S.C. 7624).
    (104) Administer grants to consortia of land-grant colleges and 
universities to enhance the ability of the consortia to carry out multi-
State research projects aimed at understanding and combating diseases of 
wheat, triticale, and barley caused by Fusarium graminearum and related 
fungi or Tilletia indica and related fungi (7 U.S.C. 7628).
    (105) Administer a program of fees to support the Patent Culture 
Collection maintained and operated by the Agricultural Research Service 
(7 U.S.C. 7641).
    (106) Update on a periodic basis, nutrient composition data, and 
report to Congress the method that will be used to update the data and 
the timing of the update (7 U.S.C. 7651).
    (107) Ensure that each research activity conducted by an 
Agricultural Research Service facility serves a national or multistate 
need (7 U.S.C. 390a(e)).
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 65594, Dec. 15, 1997; 65 
FR 5416, Feb. 4, 2000; 68 FR 27445, May 20, 2003]



Sec. 2.66  Administrator, Cooperative State Research, Education, and 
Extension Service.

    (a) Delegations. Pursuant to Sec. 2.21 (a)(1) and (a)(3), subject 
to the reservations in Sec. 2.21(b)(1), the following delegations of 
authority are made by the Under Secretary for Research, Education, and 
Extension to the Administrator, Cooperative State Research, Education, 
and Extension Service.
    (1) Administer research and technology development grants related to 
the economic feasibility of the manufacture and commercialization of 
natural rubber from hydrocarbon-containing plants (7 U.S.C. 178-178n).
    (2) Administer the appropriation for the endowment and maintenance 
of colleges for the benefit of agriculture and the mechanical arts (7 
U.S.C. 321-326a).
    (3) Administer teaching funds authorized by section 22 of the 
Bankhead Jones Act, as amended (7 U.S.C. 329).
    (4) Cooperate with the States for the purpose of encouraging and 
assisting them in carrying out research related to the problems of 
agriculture in its broadest aspects under the Hatch Act, as amended (7 
U.S.C. 361a-361i).
    (5) Administer an agricultural research facilities proposal review 
process for submission to Congress (7 U.S.C. 390, 390a(a)-(d)).
    (6) Carry out a program (IR-4 Program) for the collection of residue 
and efficacy data in support of minor use pesticide registration or 
reregistration and to determine tolerances for minor use chemical 
residues in or on agricultural commodities (7 U.S.C. 450i(e)).
    (7) Administer a program of competitive grants to State agricultural 
experiment stations, colleges and universities, other research 
institutions and organizations, Federal agencies, private organizations 
or corporations, and individuals for research to further USDA programs 
(7 U.S.C. 450i(b)).
    (8) Administer a program of special grants to carry out research, 
extension, or education activities to facilitate or expand promising 
breakthroughs in areas of food and agricultural sciences and to 
facilitate or expand ongoing State-Federal food and agricultural 
research, extension, or education programs; and administer a program of 
facilities grants to renovate and refurbish research spaces (7 U.S.C. 
450i (c) and (d)).
    (9) Make grants and enter into contracts and other agreements for 
outreach and technical assistance to socially disadvantaged farmers and 
ranchers (7 U.S.C. 2279(a)(3)).
    (10) Administer, in cooperation with land-grant colleges and 
universities where applicable, a rural development research and 
extension program, a small farm research and extension program, and a 
rural health and safety

[[Page 248]]

education program under the Rural Development Act of 1972, as amended (7 
U.S.C. 2661-2667).
    (11) Provide national leadership and support for cooperative 
research and extension programs and other cooperative activities in the 
food and agricultural sciences to meet major needs and challenges in 
food and agricultural system productivity; development of new food, 
fiber, and energy sources; agricultural energy use and production; 
natural resources; promotion of the health and welfare of people; human 
nutrition; and international food and agriculture pursuant to the 
National Agricultural Research, Extension, and Teaching Policy Act of 
1977, as amended (7 U.S.C. 3101 et seq.).
    (12) Conduct a program of grants to States to expand, renovate, or 
improve schools of veterinary medicine (7 U.S.C. 3151).
    (13) Formulate and administer programs to strengthen secondary 
education and two-year post secondary teaching programs; promote 
linkages between secondary, two-year post-secondary, and higher 
education programs in the food and agricultural sciences; administer 
grants to secondary education and two-year post secondary teaching 
programs, and to colleges and universities; and maintain a national food 
and agricultural education information system (7 U.S.C. 3152).
    (14) Administer the National Food and Agricultural Sciences Teaching 
Awards program for recognition of educators in the food and agricultural 
sciences (7 U.S.C. 3152).
    (15) Administer grants to colleges, universities, and Federal 
laboratories for research on the production and marketing of alcohol and 
industrial hydrocarbons from agricultural commodities and forest 
products (7 U.S.C. 3154).
    (16) Make grants, competitive grants, and special research grants 
to, and enter into agreements and other contracting instruments with 
policy research centers (7 U.S.C. 3155).
    (17) Conduct a program of grants to States to support continuing 
animal health and disease research programs under the National 
Agricultural Research, Extension, and Teaching Policy Act of 1977, as 
amended (7 U.S.C. 3191-3201).
    (18) Support continuing agricultural and forestry extension and 
research, at 1890 land-grant colleges, including Tuskegee University, 
and administer a grant program for five National Research and Training 
Centennial Centers (7 U.S.C. 3221, 3222, 3222c, 3222d).
    (19) Administer grants to 1890 land-grant colleges, including 
Tuskegee University, through Federal-grant funds to help finance and 
upgrade agricultural and food science facilities which are used for 
research, extension, and resident instruction (7 U.S.C. 3222b).
    (20) Provide policy direction and coordinate the Department's work 
with national and international institutions and other persons 
throughout the world in the performance of agricultural research, 
extension, teaching, and development activities; administer a program of 
competitive grants for collaborative projects involving Federal 
scientists or scientists from colleges and universities working with 
scientists at international agricultural research centers in other 
nations focusing either on new technologies and programs for increasing 
the production of food and fiber or training scientists and a program of 
competitive grants to colleges and universities to strengthen United 
States economic competitiveness and to promote international market 
development; and establish a program in coordination with the Foreign 
Agricultural Service to place interns from United States colleges and 
universities at Foreign Agricultural Service field offices overseas (7 
U.S.C. 3291, 3292b).
    (21) Administer a program of competitive grants to colleges and 
universities and State cooperative institutions for the acquisition of 
special purpose scientific research equipment for use in the food and 
agricultural sciences (7 U.S.C. 3310a).
    (22) Conduct program evaluations to improve the administration and 
efficacy of the cooperative research grants and extension programs 
involving State agricultural experiment stations, cooperative extension 
services, and colleges and universities (7 U.S.C. 3317).
    (23) Enter into contracts, grants, or cooperative agreements to 
further research, extension or teaching activities

[[Page 249]]

in the food and agricultural sciences (7 U.S.C. 3318)
    (24) Enter into cost-reimbursable agreements with State cooperative 
institutions or other colleges and universities for the acquisition of 
goods or services in support of research, extension, or teaching 
activities in the food and agricultural sciences, including the 
furtherance of library and related information programs (7 U.S.C. 
3319a).
    (25) Conduct research and develop and implement a program for the 
development of supplemental and alternative crops (7 U.S.C. 3319d).
    (26) Administer an Aquaculture Assistance Program, involving 
centers, by making grants to eligible institutions for research and 
extension to facilitate or expand production and marketing of 
aquacultural food species and products; making grants to States to 
formulate aquaculture development plans for the production and marketing 
of aquacultural species and products; conducting a program of research, 
extension and demonstration at aquacultural demonstration centers (7 
U.S.C. 3321-3322).
    (27) [Reserved]
    (28) Administer a cooperative rangeland research program (7 U.S.C. 
3331-3336).
    (29) Administer grants for basic research on cancer in animals and 
birds (7 U.S.C. 3902).
    (30) Administer programs and conduct projects in cooperation with 
other agencies for research and education on sustainable agriculture (7 
U.S.C. 5811-5813).
    (31) Administer a cooperative research and extension program to 
optimize crop and livestock production potential in integrated resource 
management and integrated crop management systems (7 U.S.C. 5821).
    (32) Establish an Agricultural Weather Office and administer a 
national agricultural weather information system, including competitive 
grants program for research in atmospheric sciences and climatology (7 
U.S.C. 5852-5853).
    (33) Administer a cooperative extension program on agricultural 
weather forecasts and climate information for agricultural producers and 
administer a grant program to States to administer programs for State 
agricultural weather information systems (7 U.S.C. 5854).
    (34) In cooperation with the Agricultural Research Service, 
administer competitive research grants regarding the production, 
preparation, processing, handling, and storage of agriculture products 
(7 U.S.C. 5871-5874).
    (35) Administer a grants and contracts program on integrated pest 
management including research to benefit floriculture and administer an 
extension program developed for integrated pest management (7 U.S.C. 
5881).
    (36) Administer a grants program to States on the control of 
infestations and eradication of exotic pests (7 U.S.C. 5883).
    (37) Administer a grant program for risk assessment research to 
address concerns about the environmental effects of biotechnology (7 
U.S.C. 5921).
    (38) Develop and implement a program to communicate with the public 
regarding the use of biotechnology in producing food for human 
consumption (7 U.S.C. 5921a).
    (39) Administer a rural electronic commerce extension program 
through grants to regional rural development centers and competitive 
grants to land-grant colleges and universities and to colleges and 
universities (including community colleges) with agricultural or rural 
development programs (7 U.S.C. 5923).
    (40) Conduct a research initiative known as the Agricultural Genome 
Initiative; and make grants or enter cooperative agreements on a 
competitive basis with individuals and organizations to carry out the 
Initiative (7 U.S.C. 5924).
    (41) [Reserved]
    (42) Administer a competitive high priority research and extension 
grants program in specified subject areas (7 U.S.C. 5925).
    (43) Administer a program of competitive grants to support research 
and extension activities in Nutrient Management Research and Extension 
(7 U.S.C. 5925a).
    (44) Administer competitive grants to support research and extension 
activities regarding organically grown and processed agricultural 
commodities (7 U.S.C. 5925b).
    (45) [Reserved]

[[Page 250]]

    (46) Establish and administer a program for the development and 
utilization of an agricultural communications network (7 U.S.C. 5926).
    (47)-(48) [Reserved]
    (49) Support research on the effects of global climate change in 
agriculture and forestry, including mitigation of the effects on crops 
of economic significance, and on the effects of the emissions of certain 
gases on global climate change (7 U.S.C. 6702).
    (50) Administer the Small Business Innovation Development Act of 
1982 for USDA (15 U.S.C. 638(e)-(k)).
    (51) Administer a cooperative forestry program in accordance with 
the McIntire-Stennis Cooperative Forestry Act, and administer a 
competitive forestry, natural resources, and environmental grant program 
(16 U.S.C. 582a-582a-8).
    (52) Establish and administer the Forestry Student Grant Program to 
provide competitive grants to assist the expansion of the professional 
education of forestry, natural resources, and environmental scientists 
(16 U.S.C. 1649).
    (53) Provide staff support to the Secretary of Agriculture in his or 
her role as permanent Chair for the Joint Subcommittee on Aquaculture 
established by the National Aquaculture Act of 1980 and coordinate 
aquacultural responsibilities within the Department (16 U.S.C. 2805).
    (54) Administer extension education programs in aquaculture and 
administer grants related to research and development in aquaculture (16 
U.S.C. 2806).
    (55) Coordinate research by cooperating State research institutions 
and administer education and information activities assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.).
    (56) Provide management support services to agencies reporting to 
the Under Secretary for Research, Education, and Economics in the 
administration of discretionary grants.
    (57) Represent the Department on the Federal Interagency Council on 
Education.
    (58)-(60) [Reserved]
    (61) Administer a cooperative agricultural extension program in 
accordance with the Smith-Lever Act, as amended (7 U.S.C. 341-349).
    (62) Administer a cooperative agricultural extension program related 
to agriculture, uses of solar energy with respect to agriculture, and 
home economics in the District of Columbia (D.C. Code 31-1409).
    (63) Conduct educational and demonstration work related to the 
distribution and marketing of agricultural products under the 
Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627).
    (64) Administer a competitive grant program for non-profit 
institutions to establish and operate centers for rural technology or 
cooperative development (7 U.S.C. 1932(f)).
    (65) Administer a nutrition education program for Food Stamp 
recipients and for the distribution of commodities on reservations (7 
U.S.C. 2020(f)).
    (66)-(71) [Reserved]
    (72) Administer a cooperative extension program under the Farmer-to-
Consumer Direct Marketing Act of 1976 (7 U.S.C. 3004).
    (73) Identify and compile information on methods of composting 
agricultural wastes and its potential uses and develop educational 
programs on composting (7 U.S.C. 3130).
    (74) Administer a National Food and Human Nutrition Research and 
Extension Program (7 U.S.C. 3171-3173, 3175)
    (75) [Reserved]
    (76) Design educational programs, implement, and distribute 
materials in cooperation with the cooperative extension services of the 
States emphasizing the importance of productive farmland pursuant to 
section 1544(a) of the Farmland Protection Policy Act (7 U.S.C. 
4205(a)).
    (77) [Reserved]
    (78) Design, implement, and develop handbooks, technical guides, and 
other educational materials emphasizing sustainable agriculture 
production systems and practices (7 U.S.C. 5831).
    (79) Administer a competitive grant program to organizations to 
carry out a training program on sustainable agriculture (7 U.S.C. 5832).

[[Page 251]]

    (80) Establish a national pesticide resistance monitoring program (7 
U.S.C. 5882).
    (81) Conduct educational programs on the biology and behavior of 
chinch bugs (7 U.S.C. 5884).
    (82) Administer education programs on Indian reservations and tribal 
jurisdictions (7 U.S.C. 5930).
    (83) Administer competitive grants to States to establish a pilot 
project to coordinate food and nutrition education programs (7 U.S.C. 
2027(a) and 5932).
    (84) Administer a demonstration grants program for support of an 
assistive technology program for farmers with disabilities (7 U.S.C. 
5933).
    (85) Conduct educational and demonstrational work in cooperative 
farm forestry programs (16 U.S.C. 568).
    (86) Provide for an expanded and comprehensive extension program for 
forest and rangeland renewable resources (16 U.S.C. 1671-1676).
    (87) [Reserved]
    (88) Provide technical, financial, and educational assistance to 
State foresters and State extension directors on rural forestry 
assistance (16 U.S.C. 2102).
    (89) Provide educational assistance to State foresters under the 
Forest Stewardship Program (16 U.S.C. 2103a).
    (90) Implement and conduct an educational program to assist the 
development of urban and community forestry programs (16 U.S.C. 2105).
    (91) Provide educational assistance to farmers regarding the 
Agricultural Water Quality Protection Program (16 U.S.C. 3838b).
    (92) Authorize the use of the 4-H Club name and emblem (18 U.S.C. 
707).
    (93) Conduct demonstrational and promotional activities related to 
farm dwellings and other buildings for the purposes of reducing costs 
and adapting and developing fixtures and appurtenances for more 
efficient and economical farm use (42 U.S.C. 1476(b)).
    (94) [Reserved]
    (95) Exercise the responsibilities of the Secretary under 
regulations dealing with Equal Employment Opportunity (part 18 of this 
title).
    (96) Carry out demonstration and educational activities authorized 
in section 202(c) of the Colorado River Basin Salinity Control Act (43 
U.S.C. 1592(c)).
    (97) Provide educational and technical assistance in implementing 
and administering the conservation reserve program authorized in 
sections 1231-1244 of the Food Security Act of 1985 (Pub. L. No. 99-198, 
99 Stat. 1509, 16 U.S.C. 3831-3844).
    (98) Establish and administer a 1994 Institutions Endowment Fund and 
to enter into agreements necessary to do this (Section 533(b)(c) of the 
Equity in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).
    (99) Make grants in equal amounts to 1994 Land-Grant Institutions to 
be used in the same manner as is prescribed for colleges under the Act 
of August 30, 1890 (26 Stat. 417, chapter 841; 7 U.S.C. 321 et seq.) 
(commonly known as the Second Morrill Act), and subject to the 
requirements of such Act (Sections 533 and 534 of the Equity in 
Educational Land-Grant Act of 1994, 7 U.S.C. 301 note).
    (100) Make competitive Institutional Capacity Building Grants to 
assist 1994 Institutions with constructing, acquiring, and remodeling 
buildings, laboratories, and other capital facilities (including 
fixtures and equipment) necessary to conduct instructional activities 
more effectively in agriculture and sciences (Section 535 of the Equity 
in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).
    (101) Make competitive grants to 1994 Land-Grant Institutions to 
conduct agricultural research that addresses high priority concerns of 
tribal, national, or multistate significance (Section 536 of the Equity 
in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).
    (102) Implement and administer the Community Food Projects Program 
and the Innovative Programs for Addressing Common Community Problems 
pursuant to the provisions of section 25 of the Food Stamp Act of 1977 
(7 U.S.C. 2034).
    (103) [Reserved]
    (104) Develop and carry out a system to monitor and evaluate 
agricultural research and extension activities conducted or supported by 
the Department of Agriculture that will enable the Secretary to measure 
the impact and effectiveness of research, extension, and

[[Page 252]]

education programs according to priorities, goals, and mandates 
established by law. Conduct a comprehensive review of state-of-the-art 
information technology systems for use in developing the system (7 
U.S.C. 3129).
    (105) Conduct a pilot research program to link major cancer and 
heart and other circulatory disease research efforts with agricultural 
research efforts to identify compounds in vegetables and fruits that 
prevent these diseases (7 U.S.C. 3174a).
    (106) Administer grants to 1890 land-grant colleges, including 
Tuskegee University, through Federal-grant funds to help finance 
research facilities and equipment including agricultural libraries (7 
U.S.C. 3223).
    (107) Establish and administer competitive grants (or grants without 
regard to any requirement for competition) to Hispanic-serving 
Institutions for the purpose of promoting and strengthening the ability 
of Hispanic-serving Institutions to carry out education, applied 
research, and related community development programs (7 U.S.C. 3241).
    (108) [Reserved]
    (109) Award a grant, on a competitive basis, to establish a red meat 
safety research center at an eligible research facility (7 U.S.C. 5929).
    (110) Coordinate the development and carrying out by Department 
agencies of all matters and functions pertaining to agricultural 
research conducted or funded by the Department involving biotechnology, 
including the development and implementation of guidelines for oversight 
of research activities, acting as liaison on all matters and functions 
pertaining to agricultural research in biotechnology between agencies 
within the Department and between the Department and other governmental, 
educational, or private organizations and carrying out any other 
activities authorized by (7 U.S.C. 3121).
    (111) Provide staff support to the Under Secretary for Research, 
Education, and Economics related to the National Agricultural Research, 
Extension, Education, and Economics Advisory Board (7 U.S.C. 3123).
    (112) [Reserved]
    (113) Provide technical and educational assistance to conserve and 
enhance private grazing land resources (16 U.S.C. 2005b).
    (114) Provide technical assistance to farmers and ranchers under the 
Environmental Quality Incentives Program (16 U.S.C. 3830 et seq.).
    (115) Coordinate USDA policy and conduct programs relative to the 
Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 
U.S.C. 136, et seq.) and coordinate the Department's Integrated Pest 
Management Programs and the Pesticide Assessment Program (7 U.S.C. 136-
136y).
    (116) Conduct programs of research, technology development, and 
education related to global climate change (7 U.S.C. 6701-6710).
    (117) Represent the Department in international organizational 
activities and on international technical committees concerned with 
agricultural science, education, and development activities, including 
library and information science activities.
    (118) Conduct a program of nutrition education research.
    (119) Ensure that agricultural research, extension, or education 
activities administered, on a competitive basis, by the Cooperative 
State Research, Education, and Extension Service address a concern that 
is a priority and has national, multistate, or regional significance (7 
U.S.C. 7611).
    (120) Solicit and consider input and recommendations from persons 
who conduct or use agricultural research, extension, or education; 
ensure that Federally supported and conducted agricultural research, 
extension, and education activities are accomplished in accord with 
identified management principles; and promulgate regulations concerning 
implementation of a process for obtaining stakeholder input at 1862, 
1890, and 1994 Institutions (7 U.S.C. 7612 (b), (c)and (d)).
    (121) Establish procedures that provide for scientific peer review 
of each agricultural research grant administered, on a competitive 
basis, and for merit review of each agricultural extension or education 
grant administered, on a competitive basis, by the Cooperative State 
Research, Education, and Extension Service (7 U.S.C. 7613(a)).

[[Page 253]]

    (122) Consider the results of the annual review performed by the 
Agricultural Research, Extension, Education, and Economics Advisory 
Board regarding the relevance to priorities of the funding of all 
agricultural research, extension, or education activities conducted or 
funded by the Department and the adequacy of funding, when formulating 
each request for proposals, and evaluating proposals, involving an 
agricultural research, extension, or education activity funded, on a 
competitive basis, by the Department; and solicit and consider input 
from persons who conduct or use agricultural research, extension, or 
education regarding the prior year's request for proposals for each 
activity funded on a competitive basis (7 U.S.C. 7613(c)).
    (123) Require a procedure to be established by each 1862, 1890, and 
1994 Institution, for merit review of each agricultural research and 
extension activity funded and review of the activity in accordance with 
the procedure (7 U.S.C. 7613(e)).
    (124) Administer an Initiative for Future Agriculture and Food 
Systems (7 U.S.C. 7621).
    (125) Administer a program of competitive grants to eligible 
partnerships to coordinate and manage research and extension activities 
to enhance the quality of high-value agricultural products (7 U.S.C. 
7622).
    (126) Administer a program of competitive grants to eligible 
entities to conduct research, education, or information dissemination 
projects for the development and advancement of precision agriculture (7 
U.S.C. 7623).
    (127) Administer the Thomas Jefferson Initiative for Crop 
Diversification program of competitive grants and contracts for the 
purpose of conducting research and development, in cooperation with 
other public and private entities, on the production and marketing of 
new and nontraditional crops needed to strengthen and diversify the 
agricultural production base of the United States (7 U.S.C. 7625).
    (128) Administer competitive grants for integrated, multifunctional 
agricultural research, education, and extension activities (7 U.S.C. 
7626).
    (129) Operate and administer the Food Animal Residue Avoidance 
Database through contracts, grants, or cooperative agreements with 
appropriate colleges or universities (7 U.S.C. 7642).
    (130) Develop a national program of safe food handling education for 
adults and young people to reduce the risk of food-borne illness (7 
U.S.C. 7655).
    (131) Cooperate with other Federal agencies (including the National 
Science Foundation) in issuing joint requests for proposals, awarding 
grants, and administering grants under any competitive agricultural 
research, education, or extension grant program (7 U.S.C. 3319b).
    (132) Administer a program of competitive grants, establish 
education teams, and establish an online clearinghouse of curricula and 
training materials and programs, all for training, education, outreach, 
and technical assistance initiatives for the benefit of beginning 
farmers and ranchers (7 U.S.C. 3319f).
    (133) Administer agricultural research, education, and extension 
activities (including through competitive grants), using any authority 
available to the Secretary, to reduce the vulnerability of the United 
States food and agricultural system to chemical or biological attack, to 
continue partnerships with institutions of higher education and other 
institutions to help form stable, long-term programs to enhance the 
biosecurity of the United States, to make competitive grants to 
universities and qualified research institutions for research on 
counterbioterrorism, and to counter or otherwise respond to chemical or 
biological attack (7 U.S.C. 3351).
    (134) Administer a program of competitive grants to colleges and 
universities for expansion and security upgrades to enhance the security 
of agriculture against bioterrorism (7 U.S.C. 3352).
    (135) Administer programs for distance education grants and resident 
instruction grants to eligible institutions in insular areas that have 
demonstrable capacity to carry out teaching and extension programs in 
the food and agricultural sciences (7 U.S.C. 3361-3363).

[[Page 254]]

    (136) Administer a program of cooperative research (including 
through competitive award of grants and cooperative agreements to 
colleges and universities) and extension projects on carbon cycling in 
soils and plants, the exchange of other greenhouse gases from 
agriculture, and the carbon sequestration benefits of conservation 
practices (7 U.S.C. 6711).
    (137) Administer a program, in coordination with State veterinarians 
and other appropriate State animal health professionals, to conduct 
research, testing, and evaluation of programs for the control and 
management of Johne's disease in livestock (7 U.S.C. 7629).
    (138) Administer a program of grants to the Girl Scouts of the 
United States of America, the Boy Scouts of America, the National 4-H 
Council, and the National FFA Organization to establish pilot projects 
to expand the programs carried out by the organizations in rural areas 
and small towns (7 U.S.C. 7630).
    (139) Oversee implementation of the termination of Federal schedule 
A civil service appointments of State agricultural extension employees 
at land-grant colleges and universities (section 7220 of Pub. L. 107-
171).
    (140) Administer and direct a program of grants to the Food and 
Agricultural Policy Research Institute (section 10805 of Pub. L. 107-
171).
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 65595, Dec. 15, 1997; 65 
FR 5417, Feb. 4, 2000; 68 FR 27445, May 20, 2003]



Sec. 2.67  Administrator, Economic Research Service.

    (a) Delegations. Pursuant to Sec. 2.21 (a)(3), (a)(8) and (a)(9), 
subject to reservations in Sec. 2.21(b)(2), the following delegations 
of authority are made by the Under Secretary for Research, Education, 
and Economics to the Administrator, Economic Research Service:
    (1) Conduct economic research on matters of importance to 
cooperatives as authorized by the Agricultural Marketing Act of 1946 (7 
U.S.C. 1621-1627).
    (2) Conduct economic and social science research and analyses 
relating to:
    (i) Food and agriculture situation and outlook;
    (ii) The production, marketing, and distribution of food and fiber 
products (excluding forest and forest products), including studies of 
the performance of the food and agricultural sector of the economy in 
meeting needs and wants of consumers;
    (iii) Basic and long-range, worldwide, economic analyses and 
research on supply, demand, and trade in food and fiber products and the 
effects on the U.S. food and agriculture system, including general 
economic analyses of the international financial and monetary aspects of 
agricultural affairs;
    (iv) Natural resources, including studies of the use and management 
of land and water resources, the quality of these resources, resource 
institutions, and watershed and river basin development problems; and
    (v) Rural people and communities, as authorized by title II of the 
Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), and 
the Act of June 29, 1935, as amended (7 U.S.C. 427).
    (3) Perform economic and other social science research under section 
104(b)(1) and (3) of the Agricultural Trade Development and Assistance 
Act of 1954, as amended, with funds administered by the Foreign 
Agricultural Service (7 U.S.C. 1704(b)(1), (3)).
    (4) Investigate and make findings as to the effect upon the 
production of food and upon the agricultural economy of any proposed 
action pending before the Administrator of the Environmental Protection 
Agency for presentation in the public interest, before said 
Administrator, other agencies, or before the courts.
    (5) Review economic data and analyses used in speeches by Department 
personnel and in materials prepared for release through the press, radio 
and television.
    (6) Cooperate and work with national and international institutions 
and other persons throughout the world in the performance of 
agricultural research and extension activities to promote and support 
the development of a viable and sustainable global agricultural system. 
Such work may be carried out by:

[[Page 255]]

    (i) Exchanging research materials and results with the institutions 
or persons;
    (ii) Engaging in joint or coordinated research;
    (iii) Entering into cooperative arrangements with Departments and 
Ministries of Agriculture in other nations to conduct research, 
extension; and education activities (limited to arrangements either 
involving no exchange of funds or involving disbursements by the agency 
to the institutions of other nations), and then reporting these 
arrangements to the Under Secretary for Research, Education, and 
Economics;
    (iv) Stationing representatives at such institutions or 
organizations in foreign countries; or
    (v) Entering into agreements with land-grant colleges and 
universities, other organizations, institutions, or individuals with 
comparable goals, and with the concurrence of the Office of 
International Cooperation and Development, USDA, international 
organizations (limited to agreements either involving no exchange of 
funds or involving disbursements by the agency to the cooperator), and 
then reporting these agreements to the Under Secretary for Research, 
Education, and Economics (7 U.S.C. 3291(a)).
    (7) Prepare for transmittal by the Secretary to the President and 
both Houses of Congress, an analytical report under section 5 of the 
Agricultural Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3504) 
concerning the effect of holdings, acquisitions, and transfers of U.S. 
agricultural land by foreign persons.
    (8) Administer responsibilities and functions assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.), concerning estimates 
of supplies of agricultural commodities and evaluation of requirements 
therefor; food and agricultural aspects of economic stabilization and 
economic research; and coordination of energy programs.
    (9) Enter into contracts, grants, or cooperative agreements to 
further research programs in the food and agricultural sciences (7 
U.S.C. 3318).
    (10) Enter into cost-reimbursable agreements relating to 
agricultural research (7 U.S.C. 3319a).
    (11) Represent the Department in international organizational 
activities and on international technical committees concerned with 
agricultural science, education, and development activities, including 
library and information science activities.
    (12) Facilitate access by research and extension professionals, 
farmers, and other interested persons in the United States to, and the 
use by those persons of, organic research conducted outside the United 
States (7 U.S.C. 5925d).
    (13)-(14) [Reserved]
    (15) Solicit and consider input and recommendations from persons who 
conduct or use agricultural research, extension, or education (7 U.S.C. 
7612(b)).
    (16) Consider the results of the annual review performed by the 
Agricultural Research, Extension, Education, and Economics Advisory 
Board regarding the relevance to priorities of the funding of all 
agricultural research, extension, or education activities conducted or 
funded by the Department and the adequacy of funding, when formulating 
each request for proposals, and evaluating proposals, involving an 
agricultural research, extension, or education activity funded, on a 
competitive basis, by the Department; and solicit and consider input 
from persons who conduct or use agricultural research, extension, or 
education regarding the prior year's request for proposals for each 
activity funded on a competitive basis (7 U.S.C. 7613(c)).
    (17) Establish procedures that ensure scientific peer review of all 
research activities conducted by the Economic Research Service (7 U.S.C. 
7613(d)).
    (18) Include in each issuance of projections of net farm income an 
estimate of the net farm income earned by commercial producers in the 
United States that will in addition show the estimate of net farm income 
attributable to commercial producers of livestock, loan commodities, and 
agricultural commodities other than loan commodities (7 U.S.C. 7998).

[[Page 256]]

    (b) Reservation. The following authority is reserved to the Under 
Secretary for Research, Education, and Economics: Review all proposed 
decisions having substantial economic policy implications.

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 65596, Dec. 15, 1997; 64 
FR 40736, July 28, 1999; 65 FR 5418, Feb. 4, 2000; 68 FR 27446, May 20, 
2003]



Sec. 2.68  Administrator, National Agricultural Statistics Service.

    (a) Delegations. Pursuant to Sec. 2.21 (a)(3) and (a)(8), subject 
to reservations in Sec. 2.21(b)(2), the following delegations of 
authority are made by the Under Secretary for Research, Education, and 
Economics to the Administrator, National Agricultural Statistics 
Service:
    (1) Prepare crop and livestock estimates and administer reporting 
programs, including estimates of production, supply, price, and other 
aspects of the U.S. agricultural economy, collection of statistics, 
conduct of enumerative and objective measurement surveys, construction 
and maintenance of sampling frames, and related activities. Prepare 
reports of the Agricultural Statistics Board of the Department of 
Agriculture covering official state and national estimates (7 U.S.C. 
476, 951, and 2204).
    (2) Take such security precautions as are necessary to prevent 
disclosure of crop or livestock report information prior to the 
scheduled issuance time approved in advance by the Secretary of 
Agriculture and take such actions as are necessary to avoid disclosure 
of confidential data or information supplied by any person, firm, 
partnership, corporation, or association (18 U.S.C. 1902, 1905, and 
2072).
    (3) Improve statistics in the Department; maintain liaison with OMB 
and other Federal agencies for coordination of statistical methods and 
techniques.
    (4) Administer responsibilities and functions assigned under the 
Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et 
seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.), concerning 
coordination of damage assessment; and food and agricultural aspects of 
agricultural statistics.
    (5) Enter into contracts, grants, or cooperative agreements to 
further research and statistical reporting programs in the food and 
agricultural sciences (7 U.S.C. 3318).
    (6) Enter cost-reimbursable agreements relating to agricultural 
research and statistical reporting (7 U.S.C. 3319a).
    (7) Cooperate and work with national and international institutions 
and other persons throughout the world in the performance of 
agricultural research and extension activities to promote and support 
the development of a viable and sustainable global agricultural system. 
Such work may be carried out by:
    (i) Exchanging research materials and results with the institutions 
or persons;
    (ii) Engaging in joint or coordinated research;
    (iii) Entering into cooperative arrangements with Departments and 
Ministries of Agriculture in other nations to conduct research, 
extension, and education activities (limited to arrangements either 
involving no exchange of funds or involving disbursements by the agency 
to the institutions of other nations), and then reporting these 
arrangements to the Under Secretary for Research, Education, and 
Economics;
    (iv) Stationing representatives at such institutions or 
organizations in foreign countries; or
    (v) entering into agreements with land-grant colleges and 
universities, other organizations, institutions, or individuals with 
comparable goals, and, with the concurrence of the Foreign Agricultural 
Service, international organizations (limited to agreements either 
involving no exchange of funds or involving disbursements by the agency 
to the cooperator), and then reporting these agreements to the Under 
Secretary for Research, Education, and Economics (7 U.S.C. 3291(a)).
    (8) Represent the Department in international organizational 
activities and on international technical committees concerned with 
agricultural science, education, and development activities, including 
library and information science activities.

[[Page 257]]

    (9) Take a census of agriculture in 1998 and every fifth year 
thereafter pursuant to the Census of Agriculture Act of 1997, Pub. L. 
105-113 (7 U.S.C. 2204g).
    (10) Ensure that segregated data on the production and marketing of 
organic agricultural products is included in the ongoing baseline of 
data collection regarding agricultural production and marketing (7 
U.S.C. 5925c).
    (11) Administer a program of mandatory reporting for dairy products 
and substantially identical products (7 U.S.C. 1637a, 1638b).
    (b) Reservation. The following authority is reserved to the Under 
Secretary for Research, Education, and Economics: Review all proposed 
decisions having substantial economic policy implications.

[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 65596, Dec. 15, 1997; 65 
FR 5418, Feb. 4, 2000; 68 FR 27446, May 20, 2003]



        Subpart L_Delegations of Authority by the Chief Economist



Sec. 2.70  Deputy Chief Economist.

    Pursuant to Sec. 2.29, the following delegation of authority is 
made by the Chief Economist to the Deputy Chief Economist, to be 
exercised only during the absence or unavailability of the Chief 
Economist: Perform all the duties and exercise all the powers which are 
now or which may hereafter be delegated to the Chief Economist.



Sec. 2.71  Director, Office of Risk Assessment and Cost-Benefit Analysis.

    (a) Delegations. Pursuant to Sec. 2.29(a)(2), the following 
delegations of authority are by the Chief Economist to the Director, 
Office of Risk Assessment and Cost-Benefit Analysis:
    (1) Responsible for assessing the risks to human health, human 
safety, or the environment, and for preparing cost-benefit analyses, 
with respect to proposed major regulations, and for publishing such 
assessments and analyses in the Federal Register as required by section 
304 of the Department of Agriculture Reorganization Act of 1994 (7 
U.S.C. 2204e)
    (2) Provide direction to Department agencies in the appropriate 
methods of risk assessment and cost-benefit analyses and coordinate and 
review all risk assessments and cost-benefit analyses prepared by any 
agency of the Department.
    (3) Enter into contracts, grants, or cooperative agreements to 
further research programs in the food and agriculture sciences (7 U.S.C. 
3318).
    (b) Reservation. The following authority is reserved to the Chief 
Economist: Review all proposed decisions having substantial economic 
policy implications.

[60 FR 56393, Nov. 8, 1995, as amended at 63 FR 66979, Dec. 4, 1998]



Sec. 2.72  Chairman, World Agricultural Outlook Board.

    (a) Delegations. Pursuant to Sec. 2.29 (a)(3) through (a)(7), the 
following delegations of authority are made by the Chief Economist to 
the Chairman, World Agricultural Outlook Board:
    (1) Related to food and agriculture outlook and situation. (i) 
Coordinate and review all crop and commodity data used to develop 
outlook and situation material within the Department.
    (ii) Oversee and clear for consistency analytical assumptions and 
results of all estimates and analyses which significantly relate to 
international and domestic commodity supply and demand, including such 
estimates and analyses prepared for public distribution by the Foreign 
Agricultural Service, the Economic Research Service, or by any other 
agency or office of the Department.
    (2) Related to weather and climate. (i) Advise the Secretary on 
climate and weather activities, and coordinate the development of policy 
options on weather and climate.
    (ii) Coordinate all weather and climate information and monitoring 
activities within the Department and provide a focal point in the 
Department for weather and climate information and impact assessment.
    (iii) Arrange for appropriate representation to attend all meetings, 
hearings, and task forces held outside the Department which require such 
representation.
    (iv) Designate the Executive Secretary of the USDA Weather and 
Climate Program Coordinating Committee.

[[Page 258]]

    (3) Related to interagency commodity estimates committees. (i) 
Establish Interagency Commodity Estimates Committees for Commodity 
Credit Corporation price-supported commodities, for major products 
thereof, and for commodities where a need for such a committee has been 
identified, in order to bring together estimates and supporting analyses 
from participating agencies, and to develop official estimates of 
supply, utilization, and prices for commodities, including the effects 
of new program proposals on acreage, yield, production, imports, 
domestic utilization, price, income, support programs, carryover, 
exports, and availabilities for export.
    (ii) Designate the Chairman, who shall also act as Secretary, for 
all Interagency Commodity Estimates Committees.
    (iii) Assure that all committee members have the basic assumptions, 
background data and other relevant data regarding the overall economy 
and market prospects for specific commodities.
    (iv) Review for consistency of analytical assumptions and results 
all proposed decisions made by Commodity Estimates Committees prior to 
any release outside the Department.
    (4) Related to remote sensing. (i) Provide technical assistance, 
coordination, and guidance to Department agencies in planning, 
developing, and carrying out satellite remote sensing activities to 
assure full consideration and evaluation of advanced technology.
    (ii) Coordinate administrative, management, and budget information 
relating to the Department's remote sensing activities including:
    (A) Inter- and intra-agency meetings, correspondence, and records;
    (B) Budget and management tracking systems; and
    (C) Inter-agency contacts and technology transfer.
    (iii) Designate the Executive Secretary for the Remote Sensing 
Coordination Committee.
    (5) Related to long-range commodity and agricultural-sector 
projections. Establish committees of the agencies of the Department to 
coordinate the development of a set of analytical assumptions and long-
range agricultural-sector projections (2 years and beyond) based on 
commodity projections consistent with these assumptions and coordinated 
through the Interagency Commodity Estimates Committees.
    (b) Reservation. The following authority is reserved to the Chief 
Economist: Review all proposed decisions having substantial economic 
policy implications.



Sec. 2.73  Director, Office of Energy Policy and New Uses.

    (a) Delegations. Pursuant to Sec. 2.29(a)(11), the following 
delegations of authority are made by the Chief Economist to the 
Director, Office of Energy Policy and New Uses:
    (1) Providing Department leadership in:
    (i) Analyzing and evaluating existing and proposed energy policies 
and strategies, including those regarding the allocation of scarce 
resources;
    (ii) Developing energy policies and strategies, including those 
regarding the allocation of scarce resources;
    (iii) Reviewing and evaluating Departmental energy and energy-
related programs and program progress;
    (iv) Developing agricultural and rural components of national energy 
policy plans;
    (v) Preparing reports on energy and energy-related policies and 
programs required under Act of Congress and Executive Orders, including 
those involving testimony and reports on legislative proposals.
    (2) Providing Departmental oversight and coordination with respect 
to resources available for energy and energy-related activities, 
including funds transferred to USDA from departments and agencies of the 
Federal government pursuant to interagency agreements.
    (3) Representing the Chief Economist at conferences, meetings, and 
other contacts where energy matters are discussed, including liaison 
with the Department of Energy, the Environmental Protection Agency, and 
other governmental departments and agencies.
    (4) Providing the Chief Economist with such assistance as requested 
to perform the duties delegated to the Director concerning energy and 
new uses.

[[Page 259]]

    (5) Working with the Office of the Assistant Secretary for 
Congressional Relations to maintain Congressional and public contacts in 
energy matters, including development of legislative proposals, 
preparation of reports on legislation pending in congress, appearances 
before Congressional committees, and related activities.
    (6) These delegations exclude the energy management actions related 
to the internal operations of the Department as delegated to the 
Assistant Secretary for Administration.
    (7) Conduct a program on the economic feasibility of new uses of 
agricultural products. Assist agricultural researchers by evaluating the 
economic and market potential of new agricultural products in the 
initial phase of development and contributing to prioritization of the 
Departmental research agenda.
    (8) Administer a competitive biodiesel fuel education grants program 
(7 U.S.C. 8104).
    (9) Implement a memorandum of understanding with the Secretary of 
Energy regarding cooperation in the application of hydrogen and fuel 
cell technology programs for rural communities and agricultural 
producers (7 U.S.C. 8107).
    (b) [Reserved]

[64 FR 40736, July 28, 1999, as amended at 68 FR 27446, May 20, 2003]



    Subpart M_Delegations of Authority by the Chief Financial Officer



Sec. 2.75  Deputy Chief Financial Officer.

    Pursuant to Sec. 2.28, the following delegation of authority is 
made by the Chief Financial Officer to the Deputy Chief Financial 
Officer, to be exercised only during the absence or unavailability of 
the Chief Financial Officer: Perform all the duties and exercise all the 
powers which are now or which may hereafter be delegated to the Chief 
Financial Officer.



Subpart N_Delegations of Authority by the Under Secretary for Marketing 
                         and Regulatory Programs



Sec. 2.77  Deputy Under Secretary for Marketing and Regulatory Programs.

    Pursuant to Sec. 2.22(a), subject to reservations in Sec. 2.22(b), 
and subject to policy guidance and direction by the Under Secretary, the 
following delegation of authority is made by the Under Secretary for 
Marketing and Regulatory Programs to the Deputy Under Secretary for 
Marketing and Regulatory Programs, to be exercised only during the 
absence or unavailability of the Under Secretary: Perform all the duties 
and exercise all the powers which are now or which may hereafter be 
delegated to the Under Secretary for Marketing and Regulatory Programs.

[68 FR 27446, May 20, 2003]



Sec. 2.79  Administrator, Agricultural Marketing Service.

    (a) Delegations. Pursuant to Sec. 2.22(a)(1), (a)(5) and (a)(8), 
subject to reservations in Sec. 2.22(b)(1), the following delegations 
of authority are made by the Assistant Secretary for Marketing and 
Regulatory Programs to the Administrator, Agricultural Marketing 
Service:
    (1) Exercise the functions of the Secretary of Agriculture contained 
in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-
1627), including payments to State departments of agriculture in 
connection with cooperative marketing service projects under section 
204(b) (7 U.S.C. 1623(b)), but excepting matters otherwise assigned.
    (2) Conduct marketing efficiency research and development activities 
directly applicable to the conduct of the Wholesale Market Development 
Program, specifically:
    (i) Studies of facilities and methods used in physical distribution 
of food and other farm products;
    (ii) Studies designed to improve handling of all agricultural 
products as they are moved from farms to consumers; and

[[Page 260]]

    (iii) application of presently available scientific knowledge to the 
solution of practical problems encountered in the marketing of 
agricultural products (7 U.S.C. 1621-1627).
    (3) Exercise the functions of the Secretary of Agriculture relating 
to the transportation activities contained in section 203(j) of the 
Agricultural Marketing Act of 1946 (7 U.S.C. 1622(j)) as amended, but 
excepting matters otherwise assigned.
    (4) Administer transportation activities under section 201 of the 
Agricultural Adjustment Act of 1938 (7 U.S.C. 1291).
    (5) Apply results of economic research and operations analysis to 
evaluate transportation issues and to recommend revisions of current 
procedures.
    (6) Serve as the focal point for all Department transportation 
matters including development of policies and strategies.
    (7) Cooperate with other Departmental agencies in the development 
and recommendation of policies and programs for inland transportation of 
USDA and CCC-owned commodities in connection with USDA programs.
    (8) Exercise the functions of the Secretary of Agriculture contained 
in the following legislation:
    (i) U.S. Cotton Standards Act (7 U.S.C. 51-65);
    (ii) Cotton futures provisions of the Internal Revenue Code of 1954 
(26 U.S.C. 4854, 4862-4865, 4876, and 7263);
    (iii) Cotton Statistics and Estimates Act, as amended (7 U.S.C. 471-
476), except as otherwise assigned;
    (iv) [Reserved]
    (v) Naval Stores Act (7 U.S.C. 91-99);
    (vi) Tobacco Inspection Act (7 U.S.C. 511-511q);
    (vii) Wool Standards Act (7 U.S.C. 415-415d);
    (viii) Agricultural Marketing Agreement Act of 1937, as amended (7 
U.S.C. 601, 602, 608a-608e, 610, 612, 614, 624, 671-674);
    (ix) Cotton Research and Promotion Act (7 U.S.C. 2101-2118), except 
as specified in Sec. 2.43(a)(24);
    (x) Export Apple and Pear Act (7 U.S.C. 581-590);
    (xi) Export Grape and Plum Act (7 U.S.C. 591-599);
    (xii) Titles I, II, IV, and V of the Federal Seed Act, as amended (7 
U.S.C. 1551-1575, 1591-1611);
    (xiii) Perishable Agricultural Commodities Act (7 U.S.C. 499a-499s);
    (xiv) Produce Agency Act (7 U.S.C. 491-497);
    (xv) Tobacco Seed and Plant Exportation Act (7 U.S.C. 516-517);
    (xvi) [Reserved]
    (xvii) Tobacco Statistics Act (7 U.S.C. 501-508);
    (xviii)-(xxi) [Reserved]
    (xxii) Section 401(a) of the Organic Act of 1944 (7 U.S.C. 415e);
    (xxiii) Agricultural Fair Practices Act (7 U.S.C. 2301-2306);
    (xxiv) Wheat Research and Promotion Act (7 U.S.C. 1292 note), except 
as specified in Sec. 2.43(a)(24);
    (xxv) Plant Variety Protection Act (7 U.S.C. 2321-2331, 2351-2357, 
2371- 2372, 2401-2404, 2421-2427, 2441-2443, 2461-2463, 2481-2486, 2501-
2504, 2531-2532, 2541-2545, 2561-2569, 2581-2583), except as delegated 
to the Judicial Officer;
    (xxvi) Subtitle B of title I and section 301(4) of the Dairy and 
Tobacco Adjustment Act of 1983 (7 U.S.C. 4501-4513, 4514(4)), except as 
specified in Sec. 2.43(a)(24);
    (xxvii) Potato Research and Promotion Act (7 U.S.C. 2611-2627), 
except as specified in Sec. 2.43(a)(24);
    (xxviii)-(xxx) [Reserved]
    (xxxi) Egg Research and Consumer Information Act (7 U.S.C. 2701-
2718), except as delegated in Sec. 2.43(a)(24);
    (xxxii) Beef Research and Information Act, as amended, (7 U.S.C. 
2901-2918), except as delegated in Sec. Sec. 2.42(a)(29) and 
2.43(a)(24);
    (xxxiii) Wheat and Wheat Foods Research and Nutrition Education Act 
(7 U.S.C. 3401-3417), except as delegated in Sec. 2.43(a)(24);
    (xxxiv) Egg Products Inspection Act relating to the shell egg 
surveillance program, voluntary laboratory analyses of egg products, and 
the voluntary egg grading program (21 U.S.C. 1031-1056);
    (xxxv) Section 32 of the Act of August 24, 1935 (7 U.S.C. 612c), as 
supplemented by the Act of June 28, 1937 (15 U.S.C. 713c), and related 
legislation, except functions which are otherwise assigned relating to 
the domestic distribution and donation of agricultural

[[Page 261]]

commodities and products thereof following the procurement thereof;
    (xxxvi) Procurement of agricultural commodities and other foods 
under section 6 of the National School Lunch Act of 1946, as amended (42 
U.S.C. 1755);
    (xxxvii) In carrying out the procurement functions in paragraphs 
(a)(8)(xxxv) and (xxxvi) of this section, the Administrator, 
Agricultural Marketing Service shall, to the extent practicable, use the 
commodity procurement, handling, payment and related services of the 
Farm Service Agency;
    (xxxviii) Act of May 23, 1908, regarding inspection of dairy 
products for export (21 U.S.C. 693);
    (xxxix) The Pork Promotion, Research, and Consumer Information Act 
of 1985 (7 U.S.C. 4801-4819), except as specified in Sec. 2.43(a)(24);
    (xl) The Watermelon Research and Consumer Information Act (7 U.S.C. 
4901-4616), except as specified in Sec. 2.43(a)(24);
    (xli) The Honey Research, Promotion, and Consumer Information Act (7 
U.S.C. 4601-4612), except as specified in Sec. 2.43(a)(24);
    (xlii) Subtitles B and C of the Dairy Production Stabilization Act 
of 1983, as amended (7 U.S.C. 4501-4513, 4531-4538);
    (xliii) The Floral Research and Consumer Information Act (7 U.S.C. 
4301-4319), except as specified in Sec. 2.43(a)(24);
    (xliv) Section 213 of the Tobacco Adjustment Act of 1983, as amended 
(7 U.S.C. 511r);
    (xlv) National Laboratory Accreditation Program (7 U.S.C. 138-138i) 
with respect to laboratories accredited for pesticide residue analysis 
in fruits and vegetables and other agricultural commodities, except 
those laboratories analyzing only meat and poultry products;
    (xlvi) Pecan Promotion and Research Act of 1990 (7 U.S.C. 6001-
6013), except as specified in Sec. 2.43(a)(24);
    (xlvii) Mushroom Promotion, Research, and Consumer Information Act 
of 1990 (7 U.S.C. 6101-6112), except as specified in Sec. 2.43(a)(24);
    (xlviii) Lime Research, Promotion, and Consumer Information Act of 
1990 (7 U.S.C. 6201-6212), except as specified in Sec. 2.43(a)(24);
    (xlix) Soybean Promotion, Research, and Consumer Information Act (7 
U.S.C. 6301-6311), except as specified in Sec. 2.43(a)(24);
    (l) Fluid Milk Promotion Act of 1990 (7 U.S.C. 6401-6417), except as 
specified in Sec. 2.43(a)(24);
    (li) Producer Research and Promotion Board Accountability (104 Stat. 
3927);
    (lii) Consistency with International Obligations of the United 
States (7 U.S.C. 2278);
    (liii) Organic Foods Production Act of 1990 (7 U.S.C. 6501-6522) 
provided that the Administrator, Agricultural Marketing Service, will 
enter into agreements, as necessary, with the Administrator, Food Safety 
and Inspection Service, to provide inspection services;
    (liv) Pesticide Recordkeeping (7 U.S.C. 136i-l) with the provision 
that the Administrator, Agricultural Marketing Service, will enter into 
agreements, as necessary, with other Federal agencies;
    (lv) The International Carriage of Perishable Foodstuffs Act (7 
U.S.C. 4401-4406);
    (lvi) The Sheep Promotion, Research, and Information Act (7 U.S.C. 
7101-7111), except as specified in Sec. 2.43(a)(24); and
    (lvii) The Fresh Cut Flowers and Fresh Cut Greens Promotion and 
Consumer Information Act (7 U.S.C. 6801-6814), except as specified in 
Sec. 2.43(a)(24).
    (lviii) Commodity Promotion and Evaluation (7 U.S.C. 7401);
    (lix) Commodity Promotion, Research, and Information Act of 1996 (7 
U.S.C. 7411-7425), except as specified in Sec. 2.43(a)(24);
    (lx) The Canola and Rapeseed Research, Promotion, and Consumer 
Information Act (7 U.S.C. 7441-7452), except as specified in Sec. 
2.43(a)(24);
    (lxi) The National Kiwifruit Research, Promotion, and Consumer 
Information Act (7 U.S.C. 7461-7473), except as specified in Sec. 
2.43(a)(24); and
    (lxii) The Popcorn Promotion, Research, and Consumer Information Act 
(7 U.S.C. 7481-7491), except as specified in Sec. 2.43(a)(24).
    (lxiii) Farmers' Market Promotion Program (7 U.S.C. 2005).
    (lxiv) National Organic Certification Cost-Share Program (7 U.S.C. 
6523).

[[Page 262]]

    (lxv) Exemption of Certified Organic Products from Assessment (7 
U.S.C. 7401).
    (lxvi) Country of Origin Labeling (7 U.S.C. 1638-1638(d)).
    (lxvii) Hass Avocado Promotion, Research, and Consumer Information 
Act of 2000 (7 U.S.C. 7801-7813).
    (9) Furnish, on request, copies of programs, pamphlets, reports, or 
other publications for missions or programs as may otherwise be 
delegated or assigned to the Administrator, Agricultural Marketing 
Service and charge user fees therefore, as authorized by section 1121 of 
the Agriculture and Food Act of 1981, as amended by section 1769 of the 
Food Security Act of 1985, 7 U.S.C. 2242a.
    (10) Collect, summarize, and publish data on the production, 
distribution, and stocks of sugar.
    (11) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (12) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the

[[Page 263]]

United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (b) [Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25776, May 23, 1996; 62 
FR 37485, July 14, 1997; 62 FR 40255, July 28, 1997; 68 FR 27446, May 
20, 2003]



Sec. 2.80  Administrator, Animal and Plant Health Inspection Service.

    (a) Delegations. Pursuant to Sec. 2.22(a)(2) and (a)(6) through 
(a)(9), and subject to reservations in Sec. 2.22(b)(2), the following 
delegations of authority are made by the Under Secretary for Marketing 
and Regulatory Programs to the Administrator, Animal and Plant Health 
Inspection Service: Exercise functions of the Secretary of Agriculture 
under the following authorities:
    (1) Administer the Foreign Service personnel system for employees of 
the Animal and Plant Health Inspection Service in accordance with 22 
U.S.C. 3922, except that this delegation does not include the authority 
to approve joint regulations issued by the Department of State relating 
to administration of the Foreign Service, nor an authority to represent 
the Department of Agriculture in interagency consultations and 
negotiations with the other foreign affairs agencies with respect to 
joint regulations.
    (2) The Terminal Inspection Act, as amended (7 U.S.C. 166).
    (3) The Honeybee Act, as amended (7 U.S.C. 281-286).
    (4) Section 18 of the Federal Meat Inspection Act, as amended, as it 
pertains to the issuance of certificates of condition of live animals 
intended and offered for export (21 U.S.C. 618).
    (5) The responsibilities of the United States under the 
International Plant Protection Convention.
    (6) (Laboratory) Animal Welfare Act, as amended (7 U.S.C. 2131-
2159).
    (7) Horse Protection Act (15 U.S.C. 1821-1831).
    (8) 28 Hour Law, as amended (49 U.S.C. 80502).
    (9) Export Animal Accommodation Act, as amended (46 U.S.C. 3901-
3902).
    (10) Purebred animal duty-free-entry provision of Tariff Act of June 
17, 1930, as amended (19 U.S.C. 1202, part 1, Item 100.01).
    (11) Virus-Serum-Toxin Act (21 U.S.C. 151-159).
    (12) Conduct diagnostic and related activities necessary to prevent, 
detect, control or eradicate foot-and-mouth disease and other foreign 
animal diseases (21 U.S.C. 113a).
    (13) The Agricultural Marketing Act of 1946, section 203, 205, as 
amended (7 U.S.C. 1622, 1624), with respect to voluntary inspection and 
certification of animal products; inspection, testing, treatment, and 
certification of animals; and a program to investigate and develop 
solutions to the problems resulting from the use of sulfonamides in 
swine.
    (14) Talmadge-Aiken Act (7 U.S.C. 450) with respect to cooperation 
with States in control and eradication of plant and animal diseases and 
pests.
    (15) Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 
et seq.), and title VI of the Robert T. Stafford Disaster Relief and 
Emergency Assistance Act (42 U.S.C. 5195 et seq.), relating to 
protection of livestock, poultry

[[Page 264]]

and crops and products thereof from biological and chemical warfare; and 
utilization or disposal of livestock and poultry exposed to radiation.
    (16) The Federal Noxious Weed Act of 1974, as amended (7 U.S.C. 2801 
note; 2814).
    (17) The Endangered Species Act of 1973 (16 U.S.C. 1531-1544).
    (18) Executive Order 11987, 3 CFR, 1977 Comp., p. 116.
    (19) Section 101(d), Organic Act of 1944 (7 U.S.C. 430).
    (20) The Swine Health Protection Act, as amended (7 U.S.C. 3801-
3813).
    (21) Lacey Act Amendments of 1981, as amended (16 U.S.C. 3371-3378).
    (22) Title III (and title IV to the extent that it relates to 
activities under title III) of the Federal Seed Act, as amended (7 
U.S.C. 1581-1610).
    (23) Authority to prescribe the amounts of commuted traveltime 
allowances and the circumstances under which such allowances may be paid 
to employees covered by the Act of August 28, 1950 (7 U.S.C. 2260).
    (24) Provide management support services for the Grain Inspection, 
Packers and Stockyards Administration, and the Agricultural Marketing 
Service as agreed upon by the agencies with authority to take actions 
required by law or regulation. As used herein, the term management 
support services includes budget, finance, personnel, procurement, 
property management, communications, paperwork management, and related 
administrative services.
    (25) Coordinate the development and carrying out by Department 
agencies of all matters and functions pertaining to the Department's 
regulation of biotechnology, and act as liaison on all matters and 
functions pertaining to the regulation of biotechnology between agencies 
within the Department and between the Department and other governmental 
and private organizations.
    (26) The Act of March 2, 1931 (7 U.S.C. 426-426b).
    (27) The Act of December 22, 1987 (7 U.S.C. 426c).
    (28) Authority to work with developed and transitional countries on 
agricultural and related research and extension, with respect to animal 
and plant health, including providing technical assistance, training, 
and advice to persons from such countries engaged in such activities and 
the stationing of scientists at national and international institutions 
in such countries (7 U.S.C. 3291(a)(3)).
    (29) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;

[[Page 265]]

    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action, 
including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (30) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (31) Authority to prescribe and collect fees under the Act of August 
31, 1951, as amended (31 U.S.C. 9701), and sections 2508 and 2509 of the 
Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136, 
136a), as amended.
    (32) The provisions of 35 U.S.C. 156.
    (33) Enter into cooperative research and development agreements with 
industry, universities, and others; institute a cash award program to 
reward scientific, engineering, and technical personnel; award royalties 
to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c).
    (34) The Alien Species Prevention and Enforcement Act of 1992 (39 
U.S.C. 3015 note).
    (35) Sections 901-905 of the Federal Agriculture Improvement and 
Reform Act of 1996 (7 U.S.C. 1901 note).
    (36) Plant Protection Act, as amended (7 U.S.C. 7701-7786).
    (37) Animal Health Protection Act (7 U.S.C. 8301-8317).
    (38) Section 10504 of the Farm Security and Rural Investment Act of 
2002 (7 U.S.C. 8318).
    (39) Title V of the Agricultural Risk Protection Act of 2000 (7 
U.S.C. 2279e and 2279f).
    (40) The responsibilities of the United States related to activities 
of the Office International des Epizooties.
    (41) Public Health Security and Bioterrorism Preparedness and 
Response Act of 2002 (Title II, Subtitles B and C; of the Public Health 
Security and Bioterrorism Preparedness Response Act of 2002 (7 U.S.C. 
8401 note, 8401, 8411)).

[[Page 266]]

    (b) Reservation. The following authority is reserved to the Under 
Secretary for Marketing and Regulatory Programs: The authority to make 
determinations under 35 U.S.C. 156 as to whether an applicant acted with 
due diligence.

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 68541, Dec. 30, 1996; 65 
FR 49471, Aug. 14, 2000; 68 FR 27446, May 20, 2003; 70 FR 55706, Sept. 
23, 2005]



Sec. 2.81  Administrator, Grain Inspection, Packers and Stockyards 
Administration.

    (a) Delegations. Pursuant to Sec. Sec. 2.22 (a)(3) and (a)(9), the 
following delegations of authority are made by the Assistant Secretary 
for Marketing and Regulatory Programs to the Administrator, Grain 
Inspection Service, Packers and Stockyards Administration:
    (1) Administer the United States Grain Standards Act, as amended (7 
U.S.C. 71-87h).
    (2) Exercise the functions of the Secretary of Agriculture contained 
in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-
1627), relating to inspection and standardization activities related to 
grain.
    (3) Administer the Packers and Stockyards Act, 1921, as amended and 
supplemented.
    (4) Enforce provisions of the Consumer Credit Protection Act (15 
U.S.C. 1601-1665, 1681-1681t), with respect to any activities subject to 
the Packers and Stockyards Act, 1921, as amended and supplemented.
    (5) Exercise the functions of the Secretary of Agriculture contained 
in section 1324 of the Food Security Act of 1985 (7 U.S.C. 1631).
    (6) With respect to land and facilities under his or her authority, 
exercise the functions delegated to the Secretary by Executive Order 
12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980 (``the Act''), as amended:
    (i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 
(a), (b), and (c)(4)), with respect to removal and remedial actions in 
the event of release or threatened release of a hazardous substance, 
pollutant, or contaminant into the environment;
    (ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with 
respect to information gathering and access requests and orders; 
compliance with Federal health and safety standards and wage and labor 
standards applicable to covered work; and emergency procurement powers;
    (iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with 
respect to the reduction of exposure to significant risk to human 
health;
    (iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to 
the acquisition of real property and interests in real property required 
to conduct a remedial action;
    (v) The first two sentences of section 105(d) of the Act (42 U.S.C. 
9605(d)), with respect to petitions for preliminary assessment of a 
release or threatened release;
    (vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to 
consideration of the availability of qualified minority firms in 
awarding contracts, but excluding that portion of section 105(f) 
pertaining to the annual report to Congress;
    (vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the 
assessment of civil penalties for violations of section 122 of the Act 
(42 U.S.C. 9622), and the granting of awards to individuals providing 
information;
    (viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect 
to the designation of officials who may obligate money in the Hazardous 
Substances Superfund;
    (ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to 
establishing an administrative record upon which to base the selection 
of a response action and identifying and notifying potentially 
responsible parties;
    (x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to 
preliminary assessment and site inspection of facilities;
    (xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and 
(c)), with respect to public participation in the preparation of any 
plan for remedial action and explanation of variances from the final 
remedial action plan for any remedial action or enforcement action,

[[Page 267]]

including any settlement or consent decree entered into;
    (xii) Section 119 of the Act (42 U.S.C. 9119), with respect to 
indemnifying response action contractors;
    (xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to 
cleanup standards; and
    (xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to 
settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 
9622(b)(1)), related to mixed funding agreements.
    (7) With respect to facilities and activities under his or her 
authority, to exercise the authority of the Secretary of Agriculture 
pursuant to section 1-102 related to compliance with applicable 
pollution control standards and section 1-601 of Executive Order 12088, 
3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with 
the United States Environmental Protection Agency, or an administrative 
consent order or a consent judgment in an appropriate State, interstate, 
or local agency, containing a plan and schedule to achieve and maintain 
compliance with applicable pollution control standards established 
pursuant to the following:
    (i) Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as further amended by the Hazardous and 
Solid Waste Amendments, and the Federal Facility Compliance Act (42 
U.S.C. 6901 et seq.);
    (ii) Federal Water Pollution Prevention and Control Act, as amended 
(33 U.S.C. 1251 et seq.);
    (iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f et seq.);
    (iv) Clean Air Act, as amended (42 U.S.C. 7401 et seq.);
    (v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 et seq.);
    (vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 et 
seq.);
    (vii) Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended (7 U.S.C. 136 et seq.); and
    (viii) Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980, as amended by the Superfund Amendments and 
Reauthorization Act of 1986 (42 U.S.C. 9601 et seq.).
    (b) [Reserved]



   Subpart O_Delegations of Authority by the Assistant Secretary for 
                         Congressional Relations



Sec. 2.83  Deputy Assistant Secretary for Congressional Relations.

    Pursuant to Sec. 2.23, and subject to policy guidance and direction 
by the Assistant Secretary, the following delegation of authority is 
made by the Assistant Secretary for Congressional Relations to the 
Deputy Assistant Secretary for Congressional Relations, to be exercised 
only during the absence or unavailability of the Assistant Secretary: 
Perform all duties and exercise all powers which are now or which may 
hereafter be delegated to the Assistant Secretary for Congressional 
Relations.



Sec. 2.85  Director, Office of Intergovernmental Affairs.

    (a) Delegations. Pursuant to Sec. 2.23, the following delegations 
of authority are made by the Assistant Secretary for Congressional 
Relations to the Director, Office of Intergovernmental Affairs:
    (1) Coordinate all programs involving intergovernmental affairs 
including State and local government relations and liaison with:
    (i) National Association of State Departments of Agriculture;
    (ii) Office of Intergovernmental Relations (Office of Vice 
President);
    (iii) Advisory Commission on Intergovernmental Relations;
    (iv) Council of State Governments;
    (v) National Governors Conference;
    (vi) National Association of Counties;
    (vii) National League of Cities;
    (viii) International City Managers Association;
    (ix) U.S. Conference of Mayors; and
    (x) Such other State and Federal agencies, departments, and 
organizations as are necessary in carrying out the responsibilities of 
this office.
    (2) Maintain oversight of the activities of USDA representatives to 
the 10 Federal Regional councils.
    (3) Serve as the USDA contact with the Advisory Commission on 
Intergovernmental Relations for implementation of OMB Circular A-85 to 
provide advance notification to State and local governments of proposed 
changes in

[[Page 268]]

Department programs that affect such governments.
    (4) Act as the Department representative for Federal executive board 
matters.
    (5) Serve as the official with the principal responsibility for the 
implementation of Executive Order 13175, including consultation and 
collaboration with tribal officials, and coordinate the Department's 
programs involving assistance to American Indians and Alaska Natives.
    (b)[Reserved]

[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27447, May 20, 2003; 69 
FR 34254, June 21, 2004]



   Subpart P_Delegations of Authority by the Assistant Secretary for 
                             Administration



Sec. 2.87  Deputy Assistant Secretary for Administration.

    (a) Delegations. Pursuant to the Office of Government Ethics 
regulations at 5 CFR part 2638. The Deputy Assistant Secretary for 
Administration shall be the USDA Designated Agency Ethics Official and 
shall exercise all authority pursuant to the Office of Government Ethics 
regulations at 5 CFR part 2638.
    (b) Pursuant to Sec. 2.24(a), subject, to reservations in Sec. 
2.24(b), the following delegation of authority is made by the Assistant 
Secretary for Administration to the Deputy Assistant Secretary for 
Administration, to be exercised only during the absence or 
unavailability of the Assistant Secretary: Perform all the duties and 
exercise all the powers which are now or which may hereafter be 
delegated to the Assistant Secretary for Administration.

[67 FR 65690, Oct. 28, 2002]



Sec. 2.88  Director, Office of Small and Disadvantaged Business 
Utilization.

    (a) Delegations. Pursuant to Sec. 2.24 (a)(3), the following 
delegations of authority are made by the Assistant Secretary for 
Administration to the Director, Office of Small and Disadvantaged 
Business Utilization:
    (1) The Director, Office of Small and Disadvantaged Business 
Utilization, under the supervision of the Assistant Secretary for 
Administration, has specific responsibilities under the Small Business 
Act, 15 U.S.C. 644(k). These duties include being responsible for the 
following:
    (i) Administering the Department's small and disadvantaged business 
activities related to procurement contracts, minority bank deposits, and 
grants and loan activities affecting small and minority businesses 
including women-owned business, and the small business, small minority 
business, and small women-owned business subcontracting programs;
    (ii) Providing Departmentwide liaison and coordination of activities 
related to small, small disadvantaged, and women-owned businesses with 
the Small Business Administration and others in public and private 
sector;
    (iii) Developing policies and procedures required by the applicable 
provision of the Small Business Act, as amended, to include the 
establishment of goals; and
    (iv) Implementing and administering programs described under 
sections 8 and 15 of the Small Business Act, as amended (15 U.S.C. 637 
and 644).
    (b) [Reserved]

[65 FR 77763, Dec. 13, 2000]



Sec. 2.90  [Reserved]



Sec. 2.91  Director, Office of Operations.

    (a) Delegations. Pursuant to Sec. 2.24(a)(5) and (a)(9), the 
following delegations of authority are made by the Assistant Secretary 
for Administration to the Director, Office of Operations:
    (1) Provide services for Department headquarters in the Washington, 
DC metropolitan area and at emergency relocation sites and certain 
critical facilities specified by the Assistant Secretary for 
Administration in the following areas:
    (i) Acquiring, leasing, utilizing, constructing, maintaining, and 
disposing of real and personal property, including control of space 
assignments.
    (ii) Acquiring, storing, distributing, and disposing of forms.
    (iii) Mail management and all related functions.
    (iv) Occupational health services and related functions.
    (2) Operating centralized Departmental services to provide printing,

[[Page 269]]

copy reproducing, offset composing, supplies, mail, automated mailing 
lists, excess property pool, resource recovery, shipping and receiving, 
forms, labor services, issuing of general employee identification cards, 
supplemental distributing of Department directives, space allocating and 
management, and related management support.
    (3) Providing property management, space management, messenger, 
communications, and other related services with authority to take 
actions required by law or regulation to perform such services for:
    (i) The Secretary of Agriculture;
    (ii) The general officers of the Department;
    (iii) The offices and agencies reporting to the Assistant Secretary 
for Administration;
    (iv) Any other offices or agencies of the Department as may be 
agreed; and
    (v) Other federal, state, or local government organizations on a 
cost recovery basis.
    (4) Represent the Department in contacts with other organizations or 
agencies on matters related to assigned responsibilities.
    (5) Promulgate Departmental regulations, standards, techniques, and 
procedures and represent the Department in maintaining the security of 
physical facilities, self-protection, and warden services, in the 
Washington, DC metropolitan area.
    (6) Provide internal administrative management and support services 
for the defense program of the Department.
    (7) Related to compliance with environmental laws. Take action 
pursuant to Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to comply 
with environmental pollution control laws with respect to facilities and 
activities under his or her authority, including, but not limited to, 
entering into inter-agency agreements, administrative consent orders, 
consent judgments, or other agreements with the appropriate Federal, 
State, interstate, or local agencies to achieve and maintain compliance 
with applicable pollution control standards.
    (8) Manage the Department Emergency Operations Center and alternate 
facilities.
    (b) [Reserved]

[65 FR 77765, Dec. 13, 2000, as amended at 68 FR 27447, May 20, 2003]



Sec. 2.92  Director, Office of Human Resources Management.

    (a) Delegations. Pursuant to Sec. 2.24 (a)(6) and (a)(12), and 
subject to reservations in Sec. 2.24(b)(1), the following delegations 
of authority are made by the Assistant Secretary for Administration to 
the Director, Office of Human Resources Management:
    (1) Formulate and issue Department policy, standards, rules and 
regulations relating to human resources management.
    (2) Provide human resources management procedural guidance and 
operational instructions.
    (3) Set standards for human resources data systems.
    (4) Inspect and evaluate human resources management operations and 
issue instructions or take direct action to insure conformity with 
appropriate laws, Executive Orders, Office of Personnel Management rules 
and regulations, and other appropriate rules and regulations.
    (5) Exercise final authority in all human resources matters, 
including individual cases, that involve the jurisdiction of more than 
one General Officer, or agency head.
    (6) Receive, review, and recommend action on all requests for the 
Secretary's or Assistant Secretary for Administration's approval in 
human resources matters.
    (7) Authorize and make final decisions on adverse actions except in 
those cases where the Assistant Secretary for Administration or the 
Director, Office of Human Resources Management, has participated.
    (8) Represent the Department in human resources matters in all 
contacts outside the Department.
    (9) Exercise specific authorities in the following operational 
matters:
    (i) Waive repayment of training expenses where an employee fails to 
fulfill service agreement;

[[Page 270]]

    (ii) Establish or change standards and plans for awards to private 
citizens; and
    (iii) Execute, change, extend, or renew:
    (A) Labor-Management Agreements; and
    (B) Associations of Management Officials' or Supervisors' 
Agreements.
    (iv) Represent any part of the Department in all contacts and 
proceedings with the National Offices of Labor Organizations.
    (v) Change a position (with no material change in duties) from one 
pay system to another;
    (vi) Grant restoration rights, and release employees with 
administrative reemployment rights;
    (vii) Authorize any mass dismissals of employees in the Washington, 
DC metropolitan area;
    (viii) Approve ``normal line of promotion'' cases in the excepted 
service where not in accordance with time-in grade criteria;
    (ix) Make the final decision on all classification appeals filed 
with the Department of Agriculture;
    (x) Authorize all employment actions (except nondisciplinary 
separations and LWOP) and classification actions for senior level and 
equivalent positions including Senior Executive Service positions and 
special authority professional and scientific positions responsible for 
carrying out research and development functions;
    (xi) Authorize all employment actions (except LWOP) for the 
following positions:
    (A) Schedule C;
    (B) Non-career Senior Executive Service or equivalent; and
    (C) Administrative Law Judge.
    (xii) Authorize and make final decisions on adverse actions for 
positions in GS-1-15 or equivalent;
    (xiii) Authorize and make final decisions on adverse actions for 
positions in the career Senior Executive Service or equivalent;
    (xiv) Approve the details of Department employees to the White 
House;
    (xv) Authorize adverse actions based in whole or in part on an 
allegation of violation of 5 U.S.C. chapter 73, subchapter III, for 
employees in the excepted service;
    (xvi) Authorize long-term training in programs which require 
Departmentwide competition; and
    (xvii) Initiate and take adverse action in cases involving a 
violation of the merit system.
    (10) As used in this section, the term human resources includes:
    (i) Position management;
    (ii) Position classification;
    (iii) Employment;
    (iv) Pay administration;
    (v) Automated human resources data and systems;
    (vi) Hours of duty;
    (vii) Performance management;
    (viii) Promotions;
    (ix) Employee development;
    (x) Incentive programs;
    (xi) Leave;
    (xii) Retirement;
    (xiii) Human resource program management evaluation;
    (xiv) Social security;
    (xv) Life insurance;
    (xvi) Health benefits;
    (xvii) Unemployment compensation;
    (xviii) Labor management relations;
    (xix) Intramanagement consultation;
    (xx) [Reserved]
    (xxi) Discipline; and
    (xxii) Appeals.
    (11) Provide human resource services, as listed in paragraph (a)(10) 
of this section; and organizational support services; with authority to 
take actions required by law or regulation to perform such services for:
    (i) The Secretary of Agriculture;
    (ii) The general officers of the Department;
    (iii) The offices reporting to the Assistant Secretary for 
Administration; and
    (iv) Any other officer or agency of the Department as may be agreed.
    (12) Maintain, review, and update Departmental delegations of 
authority.
    (13) Recommend authorization of organizational changes which occur 
in:
    (i) Departmental organizations:
    (A) Agency or office;
    (B) Division (or comparable component); and
    (C) Branch (or comparable component in Departmental centers, only).
    (ii) Field organizations;
    (A) First organizational level; and
    (B) Next lower organizational level-required only for those types of 
field

[[Page 271]]

installations where the establishment, change in location, or abolition 
of same requires approval in accordance with Departmental internal 
direction.
    (14) Formulate and promulgate Departmental policies regarding 
reorganizations.
    (15) Establish Departmentwide safety and health policy and provide 
leadership in the development, coordination, and implementation of 
related standards, techniques, and procedures, and represent the 
Department in complying with laws, Executive Orders and other policy and 
procedural issuances and related to occupational safety and health 
within the Department.
    (16) Represent the Department in all rulemaking, advisory, or 
legislative capacities on any groups, committees, or Government wide 
activities that affect the USDA Occupational Safety and Health 
Management Program.
    (17) Determine and provide Departmentwide technical services and 
regional staff support for the safety and health programs.
    (18) Administer the computerized management information systems for 
the collection, processing, and dissemination of data related to the 
Department's occupational safety and health programs.
    (19) Administer the administrative appeals process related to the 
inclusion of positions in the Testing Designated Position listing in the 
Department's Drug-Free Workplace Program and designate the final appeal 
officer for that Program.
    (20) Administer the Department's Occupational Health and Prevention 
Medical Program, as well as design and operate employee assistance and 
workers' compensation activities.
    (21) Provide education and training on a Departmentwide basis for 
safety and health-related issues and develop resource and operational 
manuals.
    (22) Oversee and manage the Department's administrative grievance 
program.
    (23) Make final decisions in those cases where an agency head has 
appealed the recommended decision of a grievance examiner.
    (24) Formulate and issue Department policy, standards, rules, and 
regulations relating to the Senior Scientific Research Service (7 U.S.C. 
7657).
    (25) Redelegate, as appropriate, any authority delegated under this 
section to general officers of the Department and heads of Departmental 
agencies.
    (b) Reservation. The following authority is reserved to the 
Assistant Secretary for Administration:
    (1) Authorize organizational changes occurring in a Department 
agency or staff office which affect the overall structure of that 
service or office; i.e., require a change to that service or office's 
overall organization chart.
    (2) [Reserved]

[65 FR 77765, Dec. 13, 2000, as amended at 68 FR 27447, May 20, 2003; 69 
FR 34255, June 21, 2004]



Sec. 2.93  Director, Office of Procurement and Property Management.

    (a) Delegations. Pursuant to Sec. Sec. 2.24(a)(7), (a)(8), (a)(9), 
and (a)(10), the following delegations of authority are made by the 
Assistant Secretary for Administration to the Director, Office of 
Procurement and Property Management:
    (1) Promulgate policies, standards, techniques, and procedures, and 
represent the Department, in the following:
    (i) Acquisition, including, but not limited to, the procurement of 
supplies, services, equipment, and construction;
    (ii) Socioeconomic programs relating to contracting;
    (iii) Selection, standardization, and simplification of program 
delivery processes utilizing contracts;
    (iv) Acquisition, leasing, utilization, value analysis, 
construction, maintenance, and disposition of real and personal 
property, including control of space assignments;
    (v) Motor vehicle and aircraft fleet and other vehicular 
transportation;
    (vi) Transportation of things (traffic management);
    (vii) [Reserved]
    (viii) Implementation of the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (42 U.S.C. 4601, et seq.); and

[[Page 272]]

    (ix) Development and implementation of energy management and 
environmental actions related to acquisition and procurement, real and 
personal property management, waste prevention and resource recycling, 
and logistics. Maintain liaison with the Office of the Federal 
Environmental Executive, the Department of Energy, and other Government 
agencies in these matters.
    (2) Exercise the following special authorities:
    (i) The Director, Office of Procurement and Property Management, is 
designated as the Departmental Debarring Officer and authorized to 
perform the functions of 48 CFR part 9, subpart 9.4 related to 
procurement activities, except for commodity acquisitions on behalf of 
the Commodity Credit Corporation (7 CFR part 1407), with authority to 
redelegate suspension and debarment authority for contracts awarded 
under the School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 
7 U.S.C. 612c);
    (ii) Conduct liaison with the Office of Federal Register (1 CFR part 
16) including the making of required certifications pursuant to 1 CFR 
part 18;
    (iii) Maintain custody and permit appropriate use of the official 
seal of the Department;
    (iv) Establish policy for the use of the official flags of the 
Secretary and the Department;
    (v) Coordinate collection and disposition of personal property of 
historical significance;
    (vi) Make information returns to the Internal Revenue Service as 
prescribed by 26 U.S.C. 6050M and by 26 CFR 1.6050M-1 and such other 
Treasury regulations, guidelines or procedures as may be issued by the 
Internal Revenue Service in accordance with 26 U.S.C. 6050M. This 
includes making such verifications or certifications as may be required 
by 26 CFR 1.6050M-1 and making the election allowed by 26 CFR 1.6050M-
1(d)(5)(1).
    (vii) Promulgate regulations for the management of contracting and 
procurement for information technology and telecommunication equipment, 
software, services, maintenance and related supplies; and
    (viii) Represent the Department in contacts with the General 
Accounting Office, the General Services Administration, the Office of 
Management and Budget, and other organizations or agencies on matters 
related to assigned responsibilities; and
    (ix) Redelegate, as appropriate, the authority in paragraph (a)(10) 
of this section to agency Property Officials or other qualified agency 
officials with no power of further redelegation.
    (3) Exercise authority under the Department's Acquisition Executive 
(the Assistant Secretary for Administration) to integrate and unify the 
management process for the Department's major system acquisitions and to 
monitor implementation of the policies and practices set forth in OMB 
Circular A-109, Major Systems Acquisitions, with the exception that 
major system acquisitions for information technology shall be under the 
cognizance of the Chief Information Officer. This delegation includes 
the authority to:
    (i) Insure that OMB Circular A-109 is effectively implemented in the 
Department and that the management objectives of the Circular are 
realized;
    (ii) Review the program management of each major system acquisition, 
excluding information technology;
    (iii) Designate the program manager for each major system 
acquisition, excluding information technology; and
    (iv) Designate any Departmental acquisition, excluding information 
technology, as a major system acquisition under OMB Circular A-109.
    (4) Pursuant to Executive Order 12931, 3 CFR, 1994 Comp., p. 925, 
and sections 16, 22, and 37 of the Office of Federal Procurement Policy 
Act, as amended, 41 U.S.C. 414, 418(b), and 433, serve as the Senior 
Procurement Executive for the Department with responsibility for the 
following:
    (i) Prescribing and publishing Departmental acquisition policies, 
regulations, and procedures;
    (ii) Taking any necessary actions consistent with policies, 
regulations, and procedures, with respect to purchases, contracts, 
leases, and other transactions;
    (iii) Designating contracting officers;
    (iv) Establishing clear lines of contracting authority;

[[Page 273]]

    (v) Evaluating and monitoring the performance of the Department's 
procurement system;
    (vi) Managing and enhancing career development of the Department's 
acquisition work force;
    (vii) Participating in the development of Governmentwide procurement 
policies, regulations and standards, and determining specific areas 
where Governmentwide performance standards should be established and 
applied;
    (viii) Developing unique Departmental standards as required,
    (ix) Overseeing the development of procurement goals, guidelines, 
and innovation;
    (x) Measuring and evaluating procurement office performance against 
stated goals;
    (xi) Advising the Assistant Secretary whether procurement goals are 
being achieved;
    (xii) Prescribing standards for agency Procurement Executives and 
designating agency Procurement Executives when these standards are not 
met;
    (xiii) Redelegating, as appropriate, the authority in paragraph 
(a)(5)(i) of this section to agency Procurement Executives or other 
qualified agency officials with no power of further redelegation; and
    (xiv) Redelegating the authorities in paragraphs (a)(5)(ii), (iv), 
(vi), and (vii) of this section to agency Procurement executives or 
other qualified agency officials with the power of further redelegation.
    (5) Represent the Department in establishing standards for 
acquisition transactions within the electronic data interchange 
environment.
    (6) [Reserved]
    (7) Designate the Departmental Task Order Ombudsman pursuant to 41 
U.S.C. 253j.
    (8) Promulgate Departmental policies, standards, techniques, and 
procedures and represent the Department in maintaining the security of 
physical facilities nationwide.
    (9) [Reserved]
    (10) Promulgate policy and obtain and furnish excess Federal 
personal property in accordance with section 923 of Public Law 104-127, 
in support research, educational, technical and scientific activities or 
for related programs, to:
    (i) Any 1994 Institutions (as defined in section 532 of the Equity 
in Educational Land-Grant Status Act of 1994, (Public Law 103-382; 7 
U.S.C. 301 note));
    (ii) Any Institutions eligible to receive funds under the Act of 
August 30, 1890 (7 U.S.C. 321 et seq.) including Tuskegee University; 
and
    (iii) Any Hispanic-serving Institutions (as defined in sections 
316(b) of the Higher Education Act of 1965 (20 U.S.C. 1059c (b)).
    (11) Issue regulations and directives to implement or supplement the 
Federal Acquisition Regulations (48 CFR chapters 1 and 4).
    (12) Issue regulations and directives to implement or supplement the 
Federal Management Regulation (41 CFR part 102) and the Federal Property 
Management Regulations (41 CFR chapters 101).
    (13) Exercise full Departmentwide contracting and procurement 
authority.
    (14) Conduct acquisitions with authority to take actions required by 
law or regulation to procure supplies, services, and equipment for:
    (i) The Secretary of Agriculture;
    (ii) The general officers of the Department;
    (iii) The offices and agencies reporting to the Assistant Secretary 
for Administration;
    (iv) Any other offices or agencies of the Department as may be 
agreed; and
    (v) For other federal, state, or local government organizations on a 
cost recovery basis.
    (15) Pursuant to the Office of Federal Procurement Policy Act (Act), 
as amended (41 U.S.C. 401, et seq.), designate the Department's Advocate 
for Competition with the responsibility for section 20 of the Act (41 
U.S.C. 418), including:
    (i) Reviewing the procurement activities of the Department;
    (ii) Developing new initiatives to increase full and open 
competition;
    (iii) Developing goals and plans and recommending actions to 
increase competition;
    (iv) Challenging conditions unnecessarily restricting competition in 
the acquisition of supplies and services;

[[Page 274]]

    (v) Promoting the acquisition of commercial items; and
    (vi) Designating an Advocate for Competition for each procuring 
activity within the Department.
    (16) Related to Emergency Preparedness. Provide guidance to the 
development and administration of the Department Continuity of 
Operations Plan and to USDA participation in Continuity of Government 
Plan. This includes:
    (i) Providing guidance and direction regarding continuity of 
operations to Departmental staff offices, mission areas, and agencies.
    (ii) Representing and acting as liaison for the Department in 
contacts with other Federal entities and organizations concerning 
matters of assigned responsibilities.
    (iii) Overseeing Department continuity of operations, planning, and 
emergency relocation facilities to ensure that resources are in a 
constant state of readiness.
    (17) Related to energy and environmental management: (i) Provide 
program leadership and coordination for USDA's energy conservation and 
energy efficiency activities pursuant to Executive Order 13123, Greening 
of the Government Through Efficient Energy Management.
    (ii) Promulgate policies, standards, techniques, and procedures, and 
represent the Department, in prevention, control, and abatement of 
pollution with respect to Federal facilities and activities under the 
control of the Department (Executive Order 12088, 3 CFR 1978 Comp., p. 
243).
    (iii) Review and approve exemptions for USDA contracts, 
subcontracts, grants, agreements, and loans from the requirements of the 
Clean Air Act, as amended (42 U.S.C. 7401, et seq.), the Clean Water 
Act, as amended (33 U.S.C. 1251, et seq.), and Executive Order 11738, 3 
CFR, 1971-1975 Comp., p. 799, when he or she determines that the 
paramount interest of the United States so requires as provided in these 
acts and Executive Order and the regulations of the Environmental 
Protection Agency (40 CFR 32.215(b)).
    (iv) Provide program leadership and oversight for USDA compliance 
with applicable pollution control laws and executive orders, including 
Executive Order 13148, Greening of the Government Through Leadership in 
Environmental Management.
    (v) Coordinate USDA waste prevention, recycling, and procurement, 
acquisition and use of recycled products and environmentally preferable 
products, including biobased products, and services, and serve as USDA 
Environmental Executive, pursuant to Executive Order 13101.
    (vi) Serve as Departmental Administration Member and Executive 
Secretary of the USDA Hazardous Materials Policy Council.
    (vii) Represent USDA in consulting or working with the Environmental 
Protection Agency (EPA), the Council on Environmental Quality, the 
Domestic Policy Council, and others to develop policies relating to 
hazardous materials management and Federal facilities compliance with 
applicable pollution control laws.
    (viii) Monitor, review, evaluate, and oversee hazardous materials 
management program activities and compliance Department-wide.
    (ix) Monitor, review, evaluate, and oversee USDA agency expenditures 
for hazardous materials management program accomplishments.
    (x) Prepare for the USDA Hazardous Materials Policy Council the 
Hazardous Materials Management Program budget request to the Office of 
Management and Budget (OMB) and Congress, prepare accomplishment reports 
to Congress, OMB, and EPA, and take a role in the preparation of replies 
to Congressional inquires.
    (xi) Represent USDA on the National Response Team on hazardous 
spills and oil spills pursuant to the Comprehensive Environmental 
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 
9601, et seq.); the Clean Water Act, as amended (33 U.S.C. 1251, et 
seq.); Oil Pollution Act, as amended (33 U.S.C. 2701, et seq.); 
Executive Order 12580, 3 CFR 1987 Comp., p. 193; Executive Order 12777, 
3 CFR, 1991 Comp., p. 351, and the National Oil and Hazardous Substances 
Contingency Plan, 40 CFR Part 300.
    (xii) Approve disbursements from the New World Mine Response and 
Restoration Account, approve the New World

[[Page 275]]

Mine Response and Restoration Plan, and make quarterly reports to 
Congress under Sections 502(d) and (f) of Title V of the Department of 
the Interior and Related Agencies Appropriations Act of 1998, Public Law 
105-83.
    (xiii) Ensure that the Hazardous Materials Management Program 
Department-wide is accomplished with regard to, and in compliance with, 
Executive Order 12898, Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Income Populations.
    (xiv) Take such action as may be necessary, with the affected agency 
head and with the concurrence of the General Counsel, including issuance 
of administrative orders and agreements with any person to perform any 
response action under sections 106(a) and 122 (except subsection (b)(1)) 
of the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, as amended (42 U.S.C. 9606(a), 9622), pursuant to sections 
4(c)(3) and 4(d)(3) of Executive Order 12580, as amended by Executive 
Order 13016.
    (18) Relating to personnel security and the safeguarding of national 
security information:
    (i) Direct and administer USDA's personnel security and public trust 
programs established pursuant to Executive Order 12968, Access to 
Classified Information (3 CFR 1995 Comp. pp 391-402) and 5 CFR part 731.
    (ii) Manage the personnel security functions of the Department 
including programs for eligibility access determinations, obtaining 
security clearance for USDA employees, denial or revocation of access to 
national security information, and developing and promulgating policies 
training.
    (iii) Direct and administer USDA's program under which information 
is safeguard pursuant to Executive Order 12958, Classified National 
Security Information.
    (iv) Establish Information Security (INFOSEC) policies and 
procedures for classifying, declassifying, safeguarding, and disposing 
of classified national security information and materials.
    (v) Establish procedures under which authorized holders of 
information may challenge the classification of information believed to 
be improperly classified or unclassified.
    (vi) Take corrective action for violations or infractions under 
section 5.7 par. (b), of Executive Order 12958.
    (vii) Develop and maintain a secure facility for the receipt and 
safeguarding of classified material.
    (viii) Coordinate security activities with the Chief Information 
Officer who has primary responsibility for PDD 63, Critical 
Infrastructure Assurance.
    (b) [Reserved]

[65 FR 77766, Dec. 13, 2000; 68 FR 27447, May 20, 2003]



Sec. 2.94  Director, Office of Planning and Coordination.

    (a) Delegations. Pursuant to Sec. 2.24(a)(11), the following 
delegations of authority are made by the Assistant Secretary for 
Administration to the Director, Office of Planning and Coordination:
    (1) Administer a productivity program in accordance with Executive 
Order 12089, 3 CFR, 1979 Comp., p. 246, and other policy and procedural 
directives and laws to:
    (2) Develop strategies to improve processes with respect to 
administrative and financial activities of the Department and make 
recommendations to the Secretary.
    (3) Improve Departmental management by: performing management 
studies and reviews in response to agency requests for assistance; 
enhancing management decision making by developing and applying analytic 
techniques to address particular administrative operational and 
management problems; searching for more economical or effective 
approaches to the conduct of business; developing and revising systems, 
processes, work methods and techniques; and undertaking other efforts to 
improve the management effectiveness and productivity of the Department.
    (4) Coordinate Departmental Administration strategic planning and 
budget activities on behalf of the Assistant Secretary.
    (b) [Reserved]

[65 FR 77768, Dec. 13, 2000, as amended at 68 FR 27449, May 20, 2003]

[[Page 276]]



Sec. 2.95  Director, Office of Ethics.

    The Director, Office of Ethics, shall be the USDA Alternate Agency 
Ethics Official, pursuant to 5 CFR 2638.202, and shall exercise the 
authority reserved to the Designate Agency Ethics Official under 5 CFR 
part 2638 only in the absence or unavailability of the Designated Agency 
Ethics Official.

[67 FR 65690, Oct. 28, 2002]



   Subpart Q-Delegations of Authority by the Chief Information Officer



Sec. 2.200  Deputy Chief Information Officer.

    Pursuant to Sec. 2.37, the following delegation of authority is 
made by the Chief Information Officer to the Deputy Chief Information 
Officer, to be exercised only during the absence or unavailability of 
the Chief Information Officer: perform all duties and exercise all 
powers which are now or which may hereafter be delegated to the Chief 
Information Officer.

[65 FR 77769, Dec. 13, 2000]



Subpart R_Delegations of Authority by the Assistant Secretary for Civil 
                                 Rights



Sec. 2.300  Director, Office of Civil Rights.

    (a) Pursuant to Sec. 2.25, the following delegations of authority 
are made by the Assistant Secretary for Civil Rights to the Director, 
Office of Civil Rights:
    (1) Provide overall leadership, coordination, and direction for the 
Department's programs of civil rights, including program delivery, 
compliance, and equal employment opportunity, with emphasis on the 
following:
    (i) Actions to enforce Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d, prohibiting discrimination in federally assisted programs.
    (ii) Actions to enforce Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. 2000e, prohibiting discrimination in Federal 
employment.
    (iii) Actions to enforce Title IX of the Education Amendments of 
1972, 20 U.S.C. 1681, et seq., prohibiting discrimination on the basis 
of sex in USDA education programs and activities funded by the 
Department.
    (iv) Actions to enforce the Age Discrimination Act of 1975, 42 
U.S.C. 6102, prohibiting discrimination on the basis of age in USDA 
programs and activities funded by the Department.
    (v) Actions to enforce section 504 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 794, prohibiting discrimination against 
individuals with disabilities in USDA programs and activities funded by 
the Department.
    (vi) Actions to enforce section 504 of the Rehabilitation Act of 
1973, as amended, 29 U.S.C. 794, prohibiting discrimination against 
individuals with disabilities in USDA conducted programs.
    (vii) Actions to enforce related Executive Orders, Congressional 
mandates, and other laws, rules, and regulations, as appropriate.
    (viii) Actions to develop and implement the Department's Federal 
Women's Program.
    (ix) Actions to develop and implement the Department's Hispanic 
Employment Program.
    (2) Evaluate Departmental agency programs, activities, and impact 
statements for civil rights concerns.
    (3) Provide leadership and coordinate Departmental agencies and 
systems for targeting, collecting, analyzing, and evaluating program 
participation data and equal employment opportunity data.
    (4) Provide leadership and coordinate Departmentwide programs of 
public notification regarding the availability of USDA programs on a 
nondiscriminatory basis.
    (5) Coordinate with the Department of Justice on matters relating to 
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), Title IX of 
the Education Amendments of 1972 (20 U.S.C. 1681, et seq.), and section 
504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), 
except those matters in litigation, including administrative enforcement 
actions, which shall be coordinated by the Office of the General 
Counsel.
    (6) Coordinate with the Department of Health and Human Services on 
matters relating to the Age Discrimination Act of 1975, 42 U.S.C. 6102, 
except those

[[Page 277]]

matters in litigation, including administrative enforcement actions, 
which shall be coordinated by the Office of the General Counsel.
    (7) Order proceedings and hearings in the Department pursuant to 
Sec. Sec. 15.9(e) and 15.86 of this title which concern consolidated or 
joint hearings within the Department or with other Federal departments 
and agencies.
    (8) Order proceedings and hearings in the Department pursuant to 
Sec. 15.8 of this title after the program agency has advised the 
applicant or recipient of his or her failure to comply and has 
determined that compliance cannot be secured by voluntary means.
    (9) Issue orders to give a notice of hearing or the opportunity to 
request a hearing pursuant to part 15 of this title; arrange for the 
designation of an Administrative Law Judge to preside over any such 
hearing; and determine whether the Administrative Law Judge so 
designated will make an initial decision or certify the record to the 
Secretary of Agriculture with his or her recommended findings and 
proposed action.
    (10) Authorize the taking of action pursuant to Sec. 15.8(a) of 
this title relating to compliance by ``other means authorized by law.''
    (11) Make determinations required by Sec. 15.8(d) of this title 
that compliance cannot be secured by voluntary means, and then take 
action, as appropriate.
    (12) Make determinations that program complaint investigations 
performed under Sec. 15.6 of this title establish a proper basis for 
findings of discrimination, and that actions taken to correct such 
findings are adequate.
    (13) Investigate (or make determinations that program complaint 
investigations establish a proper basis for final determinations), make 
final determinations on both the merits and required corrective action, 
and, where applicable, make recommendations to the Secretary that relief 
be granted under 7 U.S.C. 6998(d) notwithstanding the finality of 
National Appeals Division decisions, as to complaints filed under parts 
15a, 15b, and 15d of this title, except in those cases where the 
Director, Office of Civil Rights, has participated in the events that 
gave rise to the matter.
    (14) Conduct civil rights investigations and compliance reviews 
Departmentwide.
    (15) Develop regulations, plans, and procedures necessary to carry 
out the Department's civil rights programs, including the development, 
implementation, and coordination of Action Plans.
    (16) Monitor, evaluate, and report on agency compliance with 
established policy and Executive Orders which further the participation 
of historically Black colleges and universities, the Hispanic-serving 
institutions, 1994 tribal land grant institutions, and other colleges 
and universities with substantial minority group enrollment in 
Departmental programs and activities.
    (17) Related to Equal Employment Opportunity (EEO). Provide support 
to the Assistant Secretary for Civil Rights who serves as the 
Department's Director of Equal Employment Opportunity, with authority 
to:
    (i) Perform the functions and responsibilities of that position 
under 29 CFR part 1614, including the authority:
    (A) To make changes in programs and procedures designed to eliminate 
discriminatory practices and improve the Department's EEO program.
    (B) To provide EEO services for managers and employees.
    (C) To make final agency decisions on EEO complaints by Department 
employees or applicants for employment and order such corrective 
measures in such complaints as may be considered necessary, including 
the recommendation for such disciplinary action as is warranted when an 
employee has been found to have engaged in a discriminatory practice
    (ii) Administer the Department's EEO program.
    (iii) Oversee and manage the EEO counseling function for the 
Department.
    (iv) Process formal EEO complaints by employees or applicants for 
employment.
    (v) Investigate Department EEO complaints and make final decisions 
on EEO complaints, except in those cases where the Assistant Secretary 
has participated in the events that gave rise to the matter.

[[Page 278]]

    (vi) Order such corrective measures in EEO complaints as may be 
considered necessary, including the recommendation for such disciplinary 
action as is warranted when an employee has been found to engage in a 
discriminatory practice.
    (vii) Provide liaison on EEO matters concerning complaints and 
appeals with the Department agencies and Department employees.
    (viii) Coordinate the Department's affirmative employment program, 
special emphasis programs, Federal Equal Opportunity Recruitment 
Program, EEO evaluations, and development of policy.
    (ix) Provide liaison on EEO programs and activities with the Equal 
Employment Opportunity Commission and the Office of Personnel 
Management.
    (18) Maintain liaison with historically Black colleges and 
universities, the Hispanic-serving institutions, 1994 tribal land grant 
institutions, and other colleges and universities with substantial 
minority group enrollment, and assist Department agencies in 
strengthening such institutions by facilitating institutional 
participation in Department programs and activities and by encouraging 
minority students to pursue curricula that could lead to careers in the 
food and agricultural sciences.
    (19) Administer the discrimination appeals and complaints program 
for the Department, including all formal individual or group appeals, 
where the system provides for an avenue of redress to the Department 
level, Equal Employment Opportunity Commission, or other outside 
authority.
    (20) Make final determinations, or enter into settlement agreements, 
on discrimination complaints in conducted programs subject to the Equal 
Credit Opportunity Act. This delegation includes the authority to make 
compensatory damage awards whether pursuant to a final determination or 
in a settlement agreement under the authority of the Equal Credit 
Opportunity Act and the authority to obligate agency funds, including 
CCC and FCIC funds to satisfy such an award.
    (21) Provide civil rights and equal employment opportunity support 
services, with authority to take actions required by law or regulation 
to perform such services for:
    (i) The Secretary of Agriculture.
    (ii) The general officers of the Department.
    (iii) The offices and agencies reporting to the Assistant Secretary 
for Administration.
    (iv) Any other offices or agencies of the Department as may be 
agreed.
    (22) Related to outreach. (i) Develop policy guidelines and 
implement a Departmental outreach program which delivers services to 
traditionally under-served customers.
    (ii) Develop a strategic outreach plan for the Department which 
coordinates the goals, objectives, and expectations of mission area 
outreach programs.
    (iii) Coordinate the dissemination/communication of all outreach 
information from the Department and its mission areas ensuring its 
transmission to as wide a public spectrum as possible.
    (iv) Serve as the Department's official outreach spokesperson.
    (v) Provide coordination and oversight of agency outreach activities 
including the establishment of outreach councils.
    (vi) Develop a system to monitor the delivery of outreach grants and 
funding.
    (vii) Establish requirements and procedures for reporting agency 
outreach status and accomplishments including Departmental reporting 
under the Outreach and Assistance for Socially Disadvantaged Farmers and 
Ranchers Program (7 U.S.C. 2279).
    (24) Related to conflict management. (i) Designate the senior 
official to serve as the Department Dispute Resolution Specialist under 
the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571, et 
seq., and provide leadership, direction and coordination for the 
Department's conflict prevention and resolution activities.
    (ii) Issue Departmental regulations, policies, and procedures 
relating to the use of Alternative Dispute Resolution (ADR) to resolve 
employment complaints and grievances, workplace disputes, Departmental 
program disputes, and contract and procurement disputes.
    (iii) Provide ADR services for:

[[Page 279]]

    (A) The Secretary of Agriculture.
    (B) The general officers of the Department.
    (C) The offices and agencies reporting to the Assistant Secretary 
for Administration.
    (D) Any other officer or agency of the Department as may be agreed.
    (iv) Develop and issue standards for mediators and other ADR 
neutrals utilized by the Department.
    (v) Coordinate ADR activities throughout the Department.
    (vi) Monitor Agency ADR programs and report at least annually to the 
Secretary on the Department's ADR activities.
    (25) Redelegate, as appropriate, any authority delegated under this 
section to general officers of the Department and heads of Departmental 
agencies.
    (b) [Reserved]

[69 FR 34255, June 21, 2004]



PART 3_DEBT MANAGEMENT--Table of Contents




               Subpart A_Settlement of Small or Old Debts

Sec.
3.1 Purposes of the act and regulations.
3.2 Definitions.
3.3 Settlement of indebtedness.
3.4 Investigations and findings.
3.5 Delegations of authority.
3.6 Forms and records.
3.8 Penalties.
3.9 Indebtedness referred to the Comptroller General or the Attorney 
          General.
3.10 Scope of the act.

                        Subpart B_Debt Collection

3.21 Debt collection standards.
3.22 Definitions.
3.23 Collection by administrative offset.
3.24 Coordinating administrative offset with other Federal agencies.
3.25 Notice requirements before offset.
3.26 Exceptions to notice requirements.
3.27 Inspection of USDA records related to the debt.
3.28 Written agreements to repay debt as alternative to administrative 
          offset.
3.29 Hearings and reviews.
3.30 Stay of offset.
3.31 Agency procedures.
3.32 Offset against amounts payable from Civil Service retirement and 
          disability fund.
3.33 Offset of debtor's judgment against the United States.
3.34 Interest, penalties and administrative costs.
3.35 Disclosure to a credit reporting agency.
3.36 Use of collection agencies.

                         Subpart C_Salary Offset

3.51 Scope.
3.52 Definitions.
3.53 Coordinating offset with another Federal agency.
3.54 Determination of indebtedness.
3.55 Notice requirements before offset.
3.56 Request for a hearing.
3.57 Result if employee fails to meet deadlines.
3.58 Hearings.
3.59 Written decision following a hearing.
3.60 Review of Departmental record related to the debt.
3.61 Written agreement to repay debt as alternative to salary offset.
3.62 Procedures for salary offset: When deductions may begin.
3.63 Procedures for salary offset: Types of collection.
3.64 Procedures for salary offset: Methods of collection.
3.65 Procedures for salary offset: Imposition of interest, penalties and 
          administrative costs.
3.66 Nonwaiver of rights.
3.67 Refunds.
3.68 Agency regulations.

         Subpart D_Cooperation with the Internal Revenue Service

3.81 Reporting discharged debts to the Internal Revenue Service.
3.82 Offset against tax refunds.

               Subpart E_Adjusted Civil Monetary Penalties

3.91 Adjusted civil monetary penalties.



               Subpart A_Settlement of Small or Old Debts

    Authority: Sec. 1, 58 Stat. 836; 12 U.S.C. 1150.

    Source: 10 FR 807, Jan. 23, 1945, unless otherwise noted. 
Redesignated at 13 FR 6903, Nov. 24, 1948.



Sec. 3.1  Purposes of the act and regulations.

    The principal purposes of the act and of the regulations in this 
part are to provide means of:
    (a) Settling, by compromise, adjustment or cancellation relatively 
small debts long past due and owing to the

[[Page 280]]

Government arising from loans or payments made under farm programs 
administered by the Department;
    (b) recovering by the Department of substantial sums which are found 
uncollectible when the indebtednesses are treated as full obligations, 
and which otherwise would probably never be collected;
    (c) clearing the accounts of balances so small as not to warrant 
continued efforts of collection; and
    (d) the clearing of the accounts of the records of indebtedness made 
uncollectible by reason of the death or disappearance of the debtors.

The existence of the act will neither serve as grounds for any 
relaxation in the general collection policy of the Department nor should 
it serve as grounds for any lessening of the efforts of farmers to pay 
their indebtedness.



Sec. 3.2  Definitions.

    (a) Department means Department of Agriculture.
    (b) Indebtedness with respect to any person, means a debt to the 
Government under each of the acts and programs listed in Sec. 3.10.
    (c) Compromise means final liquidation of the indebtedness through 
the immediate payment of a portion thereof, and acceptance by the United 
States of such payment in full satisfaction of the indebtedness.
    (d) Adjustment means the scaling down of the amount of the 
indebtedness including interest, conditioned upon the payment of the 
adjusted amount at some specified future time or times; such adjustment 
is not to be considered as effective as a settlement under this act 
until the provisions of the adjustment arrangement have been carried 
out.
    (e) Cancellation means the complete discharge, without payment, of 
the indebtedness and the debtor.

[10 FR 807, Jan. 23, 1945, as amended at 11 FR 11984, Oct. 15, 1946. 
Redesignated at 13 FR 6903, Nov. 24, 1948; 55 FR 38662, Sept. 20, 1990]



Sec. 3.3  Settlement of indebtedness.

    (a) Indebtedness will be compromised, adjusted, or canceled, upon 
applicability by the debtor except in those cases where it is found that 
it is legally impossible for the debtor to make application, and upon 
the making of all the following findings:
    (1) That said indebtedness has been due and payable for five years 
or more;
    (2) That the debtor is unable to pay said indebtedness in full and 
has no reasonable prospect of being able to do so; officers of the 
Department shall not make such findings on the basis of mere 
unwillingness to pay on the part of the debtor, or mere financial 
disadvantage to him, but should find that the settlement is the most 
advantageous arrangement possible from the standpoint of the Government 
under the findings prescribed in this part. In no event shall 
cancellation be made unless, in addition to the foregoing requirements, 
there is an advantage in removing the indebtedness from the accounts.
    (3) That the debtor has acted in good faith in an effort to meet his 
obligation; and
    (4) That the principal amount of said indebtedness is not in excess 
of $1,000.
    (b) Indebtedness may also be canceled without application when any 
one of the following circumstances is found:
    (1) The amount of said indebtedness, including interest, is less 
than $10; such efforts of collection have been made as are warranted 
under the circumstances, and the cost of collection or of continued 
maintenance of accounts is deemed greater than the amount of the 
indebtedness;
    (2) The debtor is deceased and there is no reasonable prospect of 
recovering from his estate;
    (3) The debtor's whereabouts has remained unknown for two years and 
there is no reasonable prospect of obtaining collection; heads of 
agencies designated in Sec. 3.5 will prescribe procedures which will 
assure that cancellations on this ground will be made only after a 
diligent effort has been made to locate the debtor, including such 
contact with other agencies of the Department or otherwise as the amount 
of the indebtedness and the circumstances warrant;
    (4) The debtor has been discharged of the indebtedness in any 
proceeding under ``An act to establish a uniform system of bankruptcy 
throughout the United States.''

[[Page 281]]

    (5) It is impossible or impracticable for legal or other reasons to 
obtain the debtor's application but all of the findings required by 
paragraph (a) of this section are made.

[10 FR 807, Jan. 23, 1945, as amended at 12 FR 441, Jan. 22, 1947. 
Redesignated at 13 FR 6903, Nov. 24, 1948, and amended at 21 FR 3213, 
May 16, 1956]



Sec. 3.4  Investigations and findings.

    The heads of agencies designated in Sec. 3.5 shall prescribe 
procedures for the conduct of investigations to determine the facts 
incident to the settlement of any indebtedness. These procedures should 
include, among other things, provisions for consultations with local 
authorities, businessmen, or local representatives of other Government 
agencies, or for obtaining the recommendations of committees or other 
groups or persons designated by each agency for assistance in its 
regular program, or otherwise. The file relating to each debtor shall 
contain the formal findings required by Sec. 3.3, together with such 
evidence as has been obtained in support of such findings.
    In order to effect uniformity in settlements, agency procedures 
should also provide that, where it appears from the application of the 
debtor or from investigation that the debtor is otherwise indebted to 
the United States, to the extent practicable consultation should be had 
(other than in cases under Sec. 3.3(b)(1) and (4) with any other 
creditor agencies, to ascertain pertinent information as to the status 
of such other obligation or obligations. Such information shall be 
considered in connection with the settlement and for inclusion in the 
findings.
    The head of each agency shall provide for review of proposed 
indebtedness settlements within his agency by officers or employees 
designated for that purpose under such conditions as he shall determine 
to be adequate to insure the protection of the interests of the United 
States.



Sec. 3.5  Delegations of authority.

    The heads of any administration or other agency having jurisdiction 
over any of the acts or programs listed in Sec. 3.10 (including those 
of Federal Crop Insurance Corporation) are hereby authorized, within 
their respective jurisdictions, to exercise any or all of the functions 
prescribed by this part. The head of each of such agencies may delegate 
and authorize the redelegation of any of the functions vested in him by 
this part: Provided, That the determination of any settlement shall not 
be delegated beyond the head of the highest field office having 
jurisdiction, except that in the case of the Agricultural Stabilization 
and Conservation State Offices, such authority may also be delegated to 
the State Administrative Officers and except that in the case of the 
Farmers Home Administration, such authority may also be delegated to 
Assistant State Directors and Chiefs, Production Loan Operations, in 
State offices of that administration.

[21 FR 3213, May 16, 1956, as amended at 55 FR 18591, May 3, 1990]



Sec. 3.6  Forms and records.

    The Office of Management and Budget may prescribe or approve forms 
for applications for settlement of indebtedness under this part; and 
shall require each agency to establish records to insure the immediate 
availability of necessary information of operations under this part. 
Each agency shall furnish to the Office of Management and Budget a 
report of operations under this part quarterly, or for such other 
periods as the Director of Finance may designate.

[21 FR 3213, May 16, 1956, as amended at 55 FR 38662, Sept. 20, 1990]



Sec. 3.8  Penalties.

    The act prescribes the punishment by a fine of not more than $1,000 
or imprisonment for not more than one year, or both, upon conviction, 
for anyone making any material representation, knowing it to be false, 
for the purpose of influencing in any way the action of the Secretary or 
of any person acting under his authority in connection with any 
compromise, adjustment, or cancellation of indebtedness provided for in 
the act. The act also prohibits the acceptance by any officer, employee, 
or other person to whom is delegated any power or function under the 
act, of any fee, commission, gift, or other consideration, directly or 
indirectly, for or in

[[Page 282]]

connection with any transaction or business relating to the compromise, 
adjustment, or cancellation of indebtedness under the act.



Sec. 3.9  Indebtedness referred to the Comptroller General or the 
Attorney General.

    No settlement shall be effected under this part if the indebtedness 
is pending before the Comptroller General for compromise, or the 
Attorney General for collection.

[10 FR 807, Jan. 23, 1945. Redesignated at 13 FR 6903, Nov. 24, 1948, 
and amended at 55 FR 38662, Sept. 20, 1990]



Sec. 3.10  Scope of the act.

    The authorities prescribed in this part are applicable to 
indebtedness arising from loans or payments made or credit extended 
pursuant to the following acts and programs:

    1. Act of July 1, 1918 (40 Stat. 635), Loans for seed.
    2. Act of March 3, 1921 (41 Stat. 1347), Loans for seed.
    3. Act of March 20, 1922 (42 Stat. 467), Loans for seed.
    4. Act of April 26, 1924 (43 Stat. 110), Loans for seed and feed.
    5. Act of February 25, 1927 (44 Stat. 1245), Loans for seed, feed 
and fertilizer.
    6. Act of February 28, 1927 (44 Stat. 1251), Hurricane damage loans.
    7. Act of February 25, 1929 (45 Stat. 1306), as amended May 17, 1929 
(46 Stat. 3), Loans for seed, feed and fertilizer and to vegetable and 
fruit growers.
    8. Act of March 3, 1930 (46 Stat. 78-79), as amended April 24, 1930 
(46 Stat. 254). Loans for seed, feed, fertilizer, fuel and oil.
    9. Act of December 20, 1930 (46 Stat. 1032), as amended February 14, 
1931 (46 Stat. 1160). Loans for seed, feed, fertilizer, fuel and oil and 
crop production, and for assisting in forming local agricultural credit 
corporations, livestock loan companies, or like organizations.
    10. Act of February 23, 1931 (46 Stat. 1276), Loans for seed, feed, 
fertilizer, fuel and oil.
    11. Act of January 22, 1932 (47 Stat. 5), Loans for crop production.
    12. Act of March 3, 1932 (47 Stat. 60), Loans for agricultural 
credit corporations, livestock loan companies, or like organizations.
    13. Act of February 4, 1933 (47 Stat. 795), Loans for crop 
production and harvesting.
    14. Act of February 23, 1934 (48 Stat. 354), Loans for crop 
production and harvesting.
    15. Act of June 19, 1934 (48 Stat. 1056), Loans for emergency relief 
and for seed, feed, freight, summer fallowing and similar purposes.
    16. Act of February 20, 1935 (49 Stat. 28), Loans for crop 
production and harvesting.
    17. Act of March 21, 1935 (49 Stat. 50), appropriation to effectuate 
Act of February 20, 1935.
    18. Act of April 8, 1935 (49 Stat. 115), E. O. 7305, Loans for crop 
production and harvesting.
    19. Act of January 29, 1937 (50 Stat. 5), Loans for crop production 
and harvesting.
    20. Act of February 4, 1938 (52 Stat. 27), Loans for crop production 
and harvesting.
    21. Agricultural Adjustment Act (of 1933), as heretofore amended.
    22. Bankhead Cotton Act of April 21, 1934, as heretofore amended, on 
account of the several cotton tax-exemption certificate pools.
    23. Jones-Connally Cattle Act of April 7, 1934, as heretofore 
amended.
    24. Emergency Appropriation Act, fiscal year 1935, approved June 19, 
1934 (48 Stat. 1056), as heretofore amended, (amendment to Agricultural 
Adjustment Act of 1933, relating to cotton option contracts.)
    25. Kerr Tobacco Act of June 28, 1934 and Public Resolution No. 76 
of March 14, 1936, as heretofore amended.
    26. Section 32 of the Act of August 24, 1935 and related 
legislation, as heretofore amended.
    27. Supplemental Appropriation Act, fiscal year 1936, as heretofore 
amended, (rental and benefit payments and cotton price adjustment 
payments).
    28. Sections 7 to 17 of the Soil Conservation and Domestic Allotment 
Act, as heretofore amended.
    29. Sugar Act of 1937, as heretofore amended.
    30. Sections 303 and 381(a) of the Agricultural Adjustment Act of 
1938 and related or subsequent legislation, as heretofore amended, 
authorizing parity or adjustment payments.
    31. Title IV and Title V of the Agricultural Adjustment Act of 1938 
and related legislation, as heretofore amended, (Cotton Pool 
Participation Trust Certificates (Title IV), and crop insurance (Title 
V)).
    32. Any other Act of Congress heretofore enacted authorizing 
payments to farmers under programs administered through the Agricultural 
Adjustment Agency.
    33. Act of April 8, 1935 (49 Stat. 115), Loan for rural 
rehabilitation and relief.
    34. Act of June 22, 1936 (49 Stat. 1608), Loan for rural 
rehabilitation and relief.
    35. Act of February 9, 1937 (50 Stat. 8), Loans for rural 
rehabilitation and relief.
    36. Act of June 29, 1937 (50 Stat. 352), Loans for rural 
rehabilitation and relief.
    37. The Bankhead-Jones Farm Tenant Act (50 Stat. 522 et seq.).

[[Page 283]]

    38. The Water Facilities Act of August 28, 1937 (50 Stat. 869 et 
seq.).
    39. Act of March 2, 1938 (52 Stat. 83, Pub. Res. 80), Loans for 
rural rehabilitation and relief.
    40. Act of June 21, 1938 (52 Stat. 809), Loans for rural 
rehabilitation and relief.
    41. Act of June 30, 1939 (53 Stat. 927), Loans for rural 
rehabilitation and relief.
    42. Act of June 26, 1940 (54 Stat. 611), Loans for rural 
rehabilitation and relief.
    43. Act of July 1, 1941 (55 Stat. 408), Loans for rural 
rehabilitation.
    44. Act of July 22, 1942 (56 Stat. 664), Loans for rural 
rehabilitation.
    45. Act of July 12, 1943 (57 Stat. 392), Loans for rural 
rehabilitation.
    46. Act of June 28, 1944 (58 Stat. 425), Loans for rural 
rehabilitation.
    47. Flood restoration loans, Second Deficiency Appropriation Act, 
1943 (57 Stat. 537, 542)
    48. Subsequent legislation appropriating or making available funds 
for such loans as those listed under numbers 33 through 47, made by or 
through Resettlement Administration or the Farm Security Administration.
    49. Crop-insurance programs formulated pursuant to Title V of the 
Agricultural Adjustment Act of 1938 (the Federal Crop Insurance Act), 
and any amendment or supplement thereto heretofore or hereafter enacted.
    50. Any indebtedness of farmers evidenced by notes or accounts 
receivable, title to which has been acquired in the liquidation of loans 
to cooperative associations made under the provisions of the Act of June 
15, 1929 (46 Stat. 11).
    51. Any indebtedness of food stamp recipients and retailers/
wholesalers. Food Stamp Act.

(Sec. 2, 58 Stat. 836; 12 U.S.C. 1150a)

[10 FR 807, Jan. 23, 1945. Redesignated at 13 FR 6903, Nov. 24, 1948, 
and amended at 55 FR 38662, Sept. 20, 1990; 62 FR 60451, Nov. 10, 1997; 
64 FR 11755, Mar. 10, 1999]



                        Subpart B_Debt Collection

    Authority: 31 U.S.C. 3701, 3711, 3716-3719, 3728; 4 CFR part 102; 4 
CFR 105.4.

    Source: 50 FR 7722, Feb. 26, 1985, unless otherwise noted.



Sec. 3.21  Debt collection standards.

    (a) The regulations in this subpart are issued under the Federal 
Claims Collection Act of 1966, as amended by the Debt Collection Act of 
1982 (31 U.S.C. 3701, 3711, 3716-3719), and the Joint Regulations issued 
under the Act by the Attorney General and the Comptroller General (4 CFR 
parts 101-105), prescribing Government-wide standards for administrative 
collection, compromise, suspension or termination of agency collection 
action, disclosure of debt information to consumer reporting agencies, 
referral of claims to private collection contractors for resolution, and 
referral to the General Accounting Office and to the Department of 
Justice for litigation of civil claims by the Government for money or 
property.
    (b) The head of each agency of the Department may carry out the 
duties and exercise the authority of the Secretary under 31 U.S.C. 3701, 
3711, 3716-3719, 3728, the Joint Regulations of the Attorney General and 
the Comptroller General, and the regulations in this part, with respect 
to the claims of the agency. An agency head may adopt regulations, in 
accordance with the Debt Collection Act and the Joint Regulations, 
setting out agency procedures for the collection by administrative 
offset of such claims and debts. If the head of an agency of the 
Department adopts regulations separate from this subpart, the procedures 
thereby established, rather than those set out in this part, shall be 
followed for the collection of the claims and debts to which the 
separate regulations apply. If an agency does not adopt separate 
regulations, the Director of the Office of Finance and Management may 
carry out the duties and exercise the authority of the Secretary on 
behalf of agency heads.
    (c) Except where administrative offset is explicitly prohibited by 
statute or where other procedures are explicitly provided for by 
statute, all contracts and other written agreements which are executed 
after the effective date of these regulations between an agency and any 
person or entity must include the following or substantially similar 
language:

Any monies that are payable or may become payable from the United States 
under this agreement to any person or legal entity not an agency or 
subdivision of a State or local government may be subject to 
administrative offset for the collection of a delinquent debt the person 
or legal entity owes to the United States, under the Federal Claims 
Collection Act of 1966, as amended by the Debt

[[Page 284]]

Collection Act of 1982 (31 U.S.C. 3701, 3711, 3716-3719); 4 CFR part 102 
and subpart B of this part. Information on the person's or legal 
entity's responsibility for a commercial debt or delinquent consumer 
debt owed the United States will be disclosed to consumer or commercial 
credit reporting agencies.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38662, Sept. 20, 1990]



Sec. 3.22  Definitions.

    In this subpart:
    (a) Debt management officer means an agency employee responsible for 
collection by administrative offset of debts owed the United States.
    (b) Contracting officer has the same meaning as in 41 U.S.C. 601.
    (c) Creditor agency means a Federal agency to whom a debtor owes a 
monetary debt. It need not be the same agency that effects the offset.
    (d) Offsetting agency means an agency that withholds from its 
payment to a debtor an amount owed by the debtor to a creditor agency, 
and assures that the funds are paid to the creditor agency to be applied 
to the debt.
    (e) Reviewing officer means an agency employee responsible for 
conducting a hearing or providing documentary review on the existence of 
the debt and the propriety of administrative offset.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38662, Sept. 20, 1990]



Sec. 3.23  Collection by administrative offset.

    (a) Whenever feasible, each agency of the Department of Agriculture 
must use, or request any other Federal agency to use, administrative 
offset in accordance with 31 U.S.C. 3716 and 4 CFR 102.3 to collect 
debts due the United States. The debt need not be reduced to judgment or 
be undisputed.
    (b) The feasibility of collecting a debt by administrative offset 
will be determined on a case-by-case basis considering among other 
factors the following:
    (1) Legal impediments to administrative offset, such as contract 
provisions, or degree of certainty as to the factual basis (other than 
the debt amount) of the Government's claim.
    (2) Practicality, considering such questions as costs in time and 
money of administrative offset relative to the size of the debt.
    (3) Whether offset would substantially interfere with or defeat the 
purposes of a program authorizing payments against which offset is 
contemplated, as where payment is an advance for future performance by 
the debtor of a service the Government desires.
    (4) Whether the agency has substantiated the existence of the debt.
    (c) The offset will be effected 31 days after the debtor receives a 
Notice of Intent to Collect by Administrative Offset, or when a stay of 
offset expires, unless the agency determines under Sec. 3.26 that 
immediate action is necessary. If the debtor owes more than one debt, 
amounts recovered through administrative offset may be applied to them 
in any order, with attention to applicable statutes of limitation.
    (d) These procedures will be used to collect any debt subject to 31 
U.S.C. 3716, including contract debts, but not including 
intracontractual claims or intracontractual disputes. A contracting 
officer administering a claim under the Contract Disputes Act (CDA), 41 
U.S.C. 601-613 must promptly refer the claim to the agency debt 
management officer for consideration of administrative offset apart from 
CDA proceedings.
    (e) An agency debt management officer will determine the prima facie 
existence of the debt, the feasibility of administrative offset as a 
means of collection and what monies, if any, are payable or may become 
payable to the debtor. No agency employee may act as debt management 
officer for the consideration of collection by administrative offset in 
a matter for which the employee was a contracting officer.
    (f) An agency reviewing officer will afford debtors review of the 
issue of administrative offset under these rules. No agency employee may 
act as a reviewing officer for the consideration of collection by 
administrative offset in a matter for which the employee was a 
contracting officer or a debt management officer.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38662, Sept. 20, 1990]

[[Page 285]]



Sec. 3.24  Coordinating administrative offset with other Federal agencies.

    (a) A Government list or other notice, naming debtors and their 
creditor agencies, which is provided to USDA will constitute a request 
for administrative offset.
    (b) Any agency which requests another agency to effect 
administrative offset must certify that the debtor owes the debt 
(including the amount and basis of the debt and the due date of the 
payment) and that all of the applicable requirements of 31 U.S.C. 3716 
and 4 CFR part 102 have been met.
    (c) An agency which is requested by another agency to effect 
administrative offset must not do so without obtaining a written 
certification that the debtor owes the creditor agency a debt (including 
the amount and basis of the debt and the due date of the payment) and 
that all of the applicable requirements of 31 U.S.C. 3716 and 4 CFR part 
102 have been met. An offsetting USDA agency may rely on the information 
contained in a requesting creditor agency's certification.
    (d) Only a creditor agency may agree to an installment repayment 
system or compromise, suspension or termination of the collection 
process.
    (e) A USDA agency which is requested by another agency to effect 
administrative offset may decline for good cause. Good cause includes 
direct or indirect disruption of the offsetting agency's essential 
program operations that might result from the offset. The refusal and 
the reasons must be sent in writing to the creditor agency.



Sec. 3.25  Notice requirements before offset.

    (a) Before an agency effects administrative offset, the creditor 
agency must provide the debtor with a minimum of 30 calendar days' 
written notice that unpaid debt amounts will be collected by 
administrative offset against any money that the United States is going 
to pay to the debtor, unless the creditor agency determines immediate 
action is necessary under Sec. 3.26, or the debtor enters into a 
repayment agreement or requests review.
    (b) The Notice of Intent to Collect by Administrative Offset must be 
served on the debtor by personal delivery, first class mail, or 
certified mail and will state:
    (1) The amount of the debt, the date it was incurred, the name and 
address of the offsetting agency, and the program under which the debt 
was incurred.
    (2) The rate of interest accrued from the date of mailing or other 
delivery of the initial demand letter, and the amount of any other 
penalties or administrative costs added to the principal debt.
    (3) The creditor agency's intention to collect the debt by 
administrative offset against any funds that might become available, 
until the principal debt and all accumulated interest and other charges 
are paid in full.
    (4) The date on which administrative offset will be effected, unless 
the creditor agency determines immediate action is necessary under Sec. 
3.26, or the debtor enters into a repayment agreement or requests a 
review.
    (5) That the debtor has a right to inspect and copy agency or other 
Department records related to the debt. The debtor must pay copying 
costs unless they are waived by the agency.
    (6) That the debtor may enter into a written agreement to repay the 
debt, which must be approved by the creditor agency.
    (7) That the debtor has a right to obtain review of the agency's 
determination that the debt exists and the propriety of administrative 
offset.
    (8) That a repayment agreement or request for review may be sought 
only from the creditor agency and not the offsetting agency.
    (9) Time limitations and other procedures or conditions imposed by 
the agency.
    (10) The address to which the debtor should send all correspondence 
relating to the offset.
    (c) Any demand for payment will include a Notice of Intent to 
Collect by Administrative Offset, even if the debt is not delinquent at 
the time the letter is sent.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38662, Sept. 20, 1990; 
62 FR 60451, Nov. 10, 1997]

[[Page 286]]



Sec. 3.26  Exceptions to notice requirements.

    (a) When the procedural requirements of Sec. 3.25 have been met by 
the creditor agency or under some other statutory or regulatory 
authority, an agency need not duplicate the notice before effecting 
administrative offset.
    (b) A USDA agency may effect administrative offset against a payment 
to be made to a debtor before completion of the procedures in Sec. 3.25 
when the agency finds, or is advised by the requesting creditor agency, 
that:
    (1) Failure to take the offset would substantially prejudice the 
Government's ability to collect the debt, such as where possible 
insolvency of the debtor might encourage competition among creditors for 
funds, or where expiration of a statute of limitations is imminent; and
    (2) The time before the payment is to be made does not reasonably 
permit the completion of these procedures.
    (c) The finding required by paragraph (b) of this section must be 
furnished by the offsetting agency to the debtor in writing as soon as 
reasonably possible after the offset is effected. Promptly after 
administrative offset is effected under this subsection, the creditor 
agency must give the debtor the notice required by Sec. 3.25.
    (d) An offsetting USDA agency may rely on the information contained 
in a creditor agency's request for administrative offset under this 
section.



Sec. 3.27  Inspection of USDA records related to the debt.

    A debtor who intends to inspect or copy agency or Departmental 
records with respect to the claim action must notify the agency in 
writing within 20 calendar days of the date the Notice of Intent to 
Offset was delivered to the debtor. In response, the agency must notify 
the debtor of the location, time, and any other conditions, consistent 
with part 1, subpart A of this title, for inspecting and copying, and 
that the debtor may be liable for reasonable copying expenses.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38662, Sept. 20, 1990]



Sec. 3.28  Written agreements to repay debt as alternative to 
administrative offset.

    The debtor may, in response to Notice of Intent to Collect by 
Administrative Offset, propose to the creditor agency a written 
agreement to repay the debt as an alternative to administrative offset. 
Any debtor who wishes to do this must submit a written proposal for 
repayment of the debt, which must be received by the creditor agency 
within 20 calendar days of the date the notice was delivered to the 
debtor. In response, the creditor agency must notify the debtor in 
writing whether the proposed agreement is acceptable. In exercising its 
discretion, the creditor agency must balance the Government's interest 
in collecting the debt against fairness to the debtor.



Sec. 3.29  Hearings and reviews.

    (a) A debtor who receives a Notice of Intent to Collect by 
Administrative Offset may request a hearing or documentary review of the 
agency's determination that the debt exists and the propriety of 
administrative offset. Any debtor who wishes to do this must submit a 
written explanation of why the debtor disagrees and seeks review. The 
request must be received by the creditor agency within 20 calendar days 
of the date the notice was delivered to the debtor.
    (b) In response, the creditor agency must notify the debtor in 
writing whether the review will be by documentary review or by hearing. 
If the debtor requests a hearing, and the creditor agency decides to 
conduct a documentary review, the agency must notify the debtor of the 
reason why a hearing will not be granted. The agency must also advise 
the debtor of the procedures to be used in reviewing the documentary 
record, or of the date, location and procedures to be used if review is 
by a hearing.
    (c) Unless otherwise arranged by mutual agreement between the debtor 
and the agency, evidenced in writing, any documentary review or hearing 
will be conducted not less than 10 calendar days and no more than 45 
calendar days after receipt of the request for review.
    (d) Unless otherwise arranged by mutual agreement between the debtor 
and

[[Page 287]]

the agency, evidenced in writing, a documentary review or hearing will 
be based on agency records plus other relevant documentary evidence 
which may be submitted by the debtor within 10 calendar days after the 
request for review is received.
    (e)(1) Hearings will be as informal as possible, and will be 
conducted by a reviewing officer in a fair and expeditious manner. The 
reviewing officer need not use the formal rules of evidence with regard 
to the admissibility of evidence or the use of evidence once admitted. 
However, clearly irrelevant material should not be admitted, whether or 
not any party objects. Any party to the hearing may offer exhibits, such 
as copies of financial records, telephone memoranda, or agreements, 
provided the opposing party is notified at least 5 days before the 
hearing.
    (2) Debtors may represent themselves or may be represented at their 
own expense by an attorney or other person.
    (3) The substance of all significant matters discussed at the 
hearing must be recorded. No official record or transcript of the 
hearing need be created, but if a debtor requested that a transcript be 
made, it will be at the debtor's expense.
    (f)(1) Within no more than 30 calendar days after the hearing or the 
documentary review, the reviewing officer will issue a written decision 
to the debtor and the agency, including the supporting rationale for the 
decision. The deadline for issuance of the decision may be extended by 
the reviewing officer for good cause for no more than 30 calendar days, 
and beyond the 30 calendar days extension only with the consent of the 
debtor. The decision need not be lengthy or formal in style, but must 
address the substantive issues. The decision should address any 
significant procedural matter which was in dispute before or during the 
hearing or documentary review.
    (2) The reviewing officer's decision constitutes final agency action 
as to the following issues:
    (i) All issues of fact relating to the basis of the debt (including 
the existence of the debt and the propriety of administrative offset), 
in cases where the debtor previously had not been afforded due process; 
and
    (ii) The existence of the debt and the propriety of administrative 
offset, in cases where the debtor previously had been afforded due 
process as to issues of fact relating to the basis of the debt.
    (g) The reviewing officer will promptly distribute copies of the 
decision to the Assistant Secretary for Administration, USDA and to the 
debtor and the debtor's representative.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38662, Sept. 20, 1990]



Sec. 3.30  Stay of offset.

    (a)(1) Unless otherwise arranged by mutual agreement between the 
debtor and the agency, evidenced in writing, when an agency receives a 
debtor's request for inspection of agency records, the offset is stayed 
for no longer than 10 calendar days beyond the date set by the creditor 
agency for the record inspection.
    (2) When an agency receives a debtor's proposal for a repayment 
agreement, the offset is stayed until the debtor is notified as to 
whether the proposed agreement is acceptable.
    (3) When a review is conducted, the offset is stayed until the 
creditor agency issues a final written decision.
    (b) When administrative offset is stayed, the amount of the debt and 
interest will be withheld from payments to the debtor, but not applied 
against the debt until the stay expires. If withheld funds are later 
determined not to be subject to offset, they will be promptly refunded 
to the debtor.
    (c) When administrative offset is stayed, the creditor agency will 
immediately notify an offsetting agency to withhold the payment pending 
termination of the stay.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38663, Sept. 20, 1990]



Sec. 3.31  Agency procedures.

    (a) Any USDA agency may publish in the Federal Register, by rule or 
notice, a listing by category of the order in which any funds it holds 
for or intends to pay to a person may be reached by administrative 
offset.
    (b) For principal debts of $600 or more, an agency head may direct 
that

[[Page 288]]

no compromise be made, or no collection action suspended or terminated 
without advice from the USDA General Counsel.



Sec. 3.32  Offset against amounts payable from Civil Service retirement 
and disability fund.

    An agency may request that monies payable to a debtor from the Civil 
Service Retirement and Disability Fund be administratively offset to 
collect debts owed to the agency by the debtor. The creditor agency must 
certify that the debtor owes the debt, the amount of the debt, and that 
the creditor agency has complied with 4 CFR 102.4 and Office of 
Personnel Management regulations. The request must be submitted to the 
official designated in Office of Personnel Management regulations.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38663, Sept. 20, 1990]



Sec. 3.33  Offset of debtor's judgment against the United States.

    Collection by offset against a judgment obtained by a debtor against 
the United States must be effected in accordance with 31 U.S.C. 3728.



Sec. 3.34  Interest, penalties and administrative costs.

    (a) USDA creditor agencies must attempt to collect interest, 
penalties and administrative costs on any delinquent debts owed to the 
United States in accordance with 4 CFR 102.13 and 102.14, or according 
to written documentation constituting the basis of the debt, or under 
any guidelines issued by the Assistant Secretary for Administration or 
by the creditor agency's fiscal officer.
    (1) Interest will not be assessed on interest, penalties or 
administrative costs. However, if a debtor defaults on a repayment 
agreement, interest which has accrued but was not collected under the 
defaulted agreement will be added to the principal to be paid under a 
new repayment agreement.
    (2) Agencies will assess a penalty of six percent a year on any 
unpaid debt balance delinquent for more than 90 days. This charge 
accrues from the date the debt becomes delinquent.
    (3) Agencies will charge the debtor for administrative costs 
incurred in processing and handling a delinquent debt. Administrative 
costs may include costs of obtaining credit reports, using a private 
debt collector, or selling collateral or property to satisfy the debt.
    (b) Agencies will waive the collection of interest assessed under 
these regulations on a delinquent debt or any portion of that debt which 
is paid within 30 days after the date on which interest began to accrue. 
Agencies may extend the 30-day period on a case-by-case basis, if it is 
determined that an extension is appropriate because of partial or 
complete absence of culpability by the debtor for the delay in payment.
    (c) Agencies may waive collection of all or part of the interest, 
penalties, and administrative costs assessed under these regulations 
when it is determined:
    (1) That the Government cannot collect the full amount of the 
delinquent debt or interest and costs because of the debtor's inability 
to pay the full amount within a reasonable time (considering such 
factors as those listed at 4 CFR 103.2(b)), or the debtor's refusal to 
pay the full amount where the Government is unable to effect collection 
in full within a reasonable time; or
    (2) That there is a real doubt concerning the Government's ability 
to recover interest, penalties or costs in court, either because of the 
legal or equitable issues involved or because the facts are being 
disputed in court; or
    (3) That the cost of collecting the delinquent debt with interest, 
penalties, or costs outweighs the amounts to be recovered; or
    (4) That the collection of some or all of these charges would be 
against equity and good conscience or not in the best interests of the 
United States; or
    (5) (For waiver of interest) that a request is pending for 
reconsideration, administrative review, or waiver of the underlying 
delinquent debt under a statute allowing but not requiring one or more 
of these remedies. If the statute under which review or waiver is sought 
by the debtor prohibits the agency from collecting the delinquent debt 
before resolution of the review or waiver request, interest, penalties 
and administrative costs must be waived

[[Page 289]]

during the period in which collection action is stayed. Otherwise, 
interest, penalties and administrative costs will not be waived except 
for a separate reason included in this section; or
    (6) (For waiver of interest) that the agency has agreed to a 
repayment plan consistent with 4 CFR 102.11 and with Sec. 3.28 of this 
subpart, there is no indication of fault or lack of good faith by the 
debtor, and the amount of interest is sufficiently large relative to the 
size of the installments reasonably affordable by the debtor that the 
principal debt would never be repaid; or
    (7) The debt is repaid after the date on which interest, penalties 
and administrative costs became payable and the estimated costs of 
recovering the remaining interest balance exceed the amount owed to the 
agency.
    (d) The creditor agency must document its reasons for waiving 
interest, penalties, or administrative costs. This documentation must be 
retained by the agency for at least three years.

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38663, Sept. 20, 1990]



Sec. 3.35  Disclosure to a credit reporting agency.

    (a) The Department may report all commercial debts and all 
delinquent consumer debts to credit reporting agencies. The Department 
need not report foreign debts, or the debts of State and local 
governments, Indian tribal governments, or other public institutions.
    (b) Disclosure of delinquent consumer debts must be consistent with 
the requirements of 31 U.S.C. 3711(f), 4 CFR 102.3(c), and 5 U.S.C. 552a 
(the Privacy Act).

[50 FR 7722, Feb. 26, 1985, as amended at 55 FR 38663, Sept. 20, 1990]



Sec. 3.36  Use of collection agencies.

    USDA agencies should use collection agencies at any time accounts 
become delinquent. Agencies must refer all accounts 6 months or more 
delinquent unless other collection actions are being pursued or referral 
is prohibited by statute.

[55 FR 38663, Sept. 20, 1990]



                         Subpart C_Salary Offset

    Authority: 5 U.S.C. 5514; 5 CFR part 550, subpart K.

    Source: 51 FR 8995, Mar. 17, 1986, unless otherwise noted.



Sec. 3.51  Scope.

    (a) The provisions of this subpart set forth the Department's 
procedures for the collection of a Federal employee's pay by salary 
offset to satisfy certain valid and past due debts owed the government.
    (b) These regulations apply to:
    (1) Current employees of the Department and other agencies who owe 
debts to the Department; and
    (2) Current employees of the Department who owe debts to other 
agencies.
    (c) These regulations do not apply to debts or claims arising under 
the Internal Revenue Code of 1954 (26 U.S.C. 1 et seq.); the Social 
Security Act (42 U.S.C. 301 et seq.); the tariff laws of the United 
States; or to any case where collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute.
    (d) These regulations identify the types of salary offset available 
to the Department, as well as certain rights provided to the employee, 
which include a written notice before deductions begin, the opportunity 
to petition for a hearing and to receive a written decision if a hearing 
is granted. These employee rights do not apply to any adjustment to pay 
arising out of an employee's election of coverage or a change in 
coverage under a Federal benefits program requiring periodic deductions 
from pay, if the amount to be recovered was accumulated over four pay 
periods or less.
    (e) These regulations do not preclude an employee from:
    (1) Requesting waiver of a salary overpayment under 5 U.S.C. 5584, 
10 U.S.C. 2774, or 32 U.S.C. 716;
    (2) Requesting waiver of any other type of debt, if waiver is 
available by statute; or
    (3) Questioning the amount or validity of a debt by submitting a 
subsequent claim to the General Accounting Office.
    (f) Nothing in these regulations precludes the compromise, 
suspension or

[[Page 290]]

termination of collection actions where appropriate under the 
Department's regulations contained elsewhere.



Sec. 3.52  Definitions.

    (a) Agency means:
    (1) An Executive Agency as defined by section 105 of title 5 U.S.C., 
the U.S. Postal Service, the U.S. Postal Rate Commission; and
    (2) A Military Department as defined by section 102 of title 5, 
U.S.C.
    (b) Debt means:
    (1) An amount owed to the United States from sources which include, 
but are not limited to, insured or guaranteed loans, fees, leases, 
rents, royalties, services, sales of real or personal property, 
overpayments, penalties, damages, interest, fines and forfeitures 
(except those arising under the Uniform Code of Military Justice).
    (2) An amount owed to the United States by an employee for pecuniary 
losses where the employee has been determined to be liable due to his or 
her negligent, willful, unauthorized or illegal acts, including but not 
limited to:
    (i) Theft, misuse, or loss of Government funds;
    (ii) False claims for services and travel;
    (iii) Illegal, unauthorized obligations and expenditures of 
Government appropriations;
    (iv) Using or authorizing the use of Government owned or leased 
equipment, facilities, supplies, and services for other than official or 
approved purposes;
    (v) Lost, stolen, damaged, or destroyed Government property;
    (vi) Erroneous entries on accounting records or reports; and
    (vii) Deliberate failure to provide physical security and control 
procedures for accountable officers, if such failure is determined to be 
the approximate cause for a loss of Government funds.
    (c) Department or USDA means the United States Department of 
Agriculture.
    (d) Disposable pay means any pay due an employee that remains after 
required deductions for Federal, State and Local income taxes; Social 
Security taxes, including Medicare taxes; Federal retirement programs; 
premiums for life and health insurance benefits; and such other 
deductions required by law to be withheld.
    (e) Employee means a current employee of an agency, including a 
current member of the Armed Forces or a Reserve of the Armed Forces.
    (f) Hearing official means an administrative law judge of the 
Department or some other individual not under the control of the 
Secretary.
    (g) Salary offset means a deduction of a debt by deduction(s) from 
the disposable pay of an employee without his or her consent.
    (h) Secretary means the Secretary of the U.S. Department of 
Agriculture or his or her designee.
    (i) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt owed by an employee to an agency as permitted or 
required by 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716, 5 U.S.C. 
8346(b) or any other law.



Sec. 3.53  Coordinating offset with another Federal agency.

    (a) When USDA is owed the debt. When USDA is owed a debt by an 
employee of another agency, the other agency shall not initiate the 
requested offset until USDA provides the agency with a written 
certification that the debtor owes USDA a debt (including the amount and 
basis of the debt and the due date of the payment) and that USDA has 
complied with these regulations.
    (b) When another agency is owed the debt. The Department may use 
salary offset against one of its employees who is indebted to another 
agency, if requested to do so by that agency. Such a request must be 
accompanied by a certification by the requesting agency that the person 
owes the debt (including the amount and basis of the debt and the due 
date of the payment) and that the agency has complied with its 
regulations required by 5 U.S.C. 5514 and 5 CFR part 550, subpart K.



Sec. 3.54  Determination of indebtedness.

    (a) In determining that an employee is indebted to USDA and that 4 
CFR parts 101 through 105 have been satisfied and that salary offset is 
appropriate, the Secretary will review the

[[Page 291]]

debt to make sure that it is valid and past due.
    (b) If the Secretary determines that any of the requirements of 
paragraph (a) of this section have not been met, no determination of 
indebtedness shall be made and salary offset will not proceed until the 
Secretary is assured that the requirements have been met.



Sec. 3.55  Notice requirements before offset.

    Except as provided in Sec. 3.51(d), salary offset will not be made 
unless the Secretary first provides the employee with a minimum of 30 
calendar days written notice. This Notice of Intent to Offset Salary 
(Notice of Intent) will state:
    (a) That the Secretary has reviewed the records relating to the debt 
and has determined that a debt is owed, the amount of the debt, and the 
facts giving rise to the debt;
    (b) The Secretary's intention to collect the debt by means of 
deduction from the employee's current disposable pay until the debt and 
all accumulated interest are paid in full;
    (c) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (d) An explanation of the Department's requirements concerning 
interest, penalties and administrative costs; unless such payments are 
waived in accordance with 31 U.S.C. 3717 and Sec. 3.34;
    (e) The employee's right to inspect and copy Department records 
relating to the debt;
    (f) The employee's right to enter into a written agreement with the 
Secretary for a repayment schedule differing from that proposed by the 
Secretary, so long as the terms of the repayment schedule proposed by 
the employee are agreeable to the Secretary;
    (g) The right to a hearing conducted by a hearing official on the 
Secretary's determination of the debt, the amount of the debt, or 
percentage of disposable pay to be deducted each pay period, so long as 
a petition is filed by the employee as prescribed by the Secretary;
    (h) That the timely filing of a petition for hearing will stay the 
collection proceedings;
    (i) That a final decision on the hearing will be issued at the 
earliest practical date, but not later than 60 calendar days after the 
filing of the petition requesting the hearing, unless the employee 
requests, and the hearing officer grants, a delay in the proceedings;
    (j) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (1) Disciplinary procedures appropriate under 5 U.S.C. chapter 75, 5 
CFR part 752, or any other applicable statutes or regulations;
    (2) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
any other applicable statutory authority; or
    (3) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
any other applicable statutory authority;
    (k) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (l) That amounts paid on or deducted for the debt which are later 
waived or found not owed to the United States will be promptly refunded 
to the employee, unless there are applicable contractual or statutory 
provisions to the contrary;
    (m) The method and time period for requesting a hearing; and
    (n) The name and address of an official of USDA to whom 
communications should be directed.



Sec. 3.56  Request for a hearing.

    (a) Except as provided in paragraph (c) of this section, an employee 
must file a petition for a hearing, that is received by the Secretary 
not later than 30 calendar days from the date of the Department's notice 
described in Sec. 3.55, if an employee wants a hearing concerning:
    (1) The existence or amount of the debt; or
    (2) The Secretary's proposed offset schedule (including percentage).
    (b) The petition must be signed by the employee and should identify 
and explain with reasonable specificity and brevity the facts, evidence 
and witnesses which the employee believes support his or her position. 
If the employee objects to the percentage of disposable pay to be 
deducted from each check, the petition should state the objection and 
the reasons for it.

[[Page 292]]

    (c) If the employee files a petition for hearing later than the 30 
calendar days as described in paragraph (a) of this section, the hearing 
officer may accept the request if the employee can show that the delay 
was because of circumstances beyond his or her control or because of 
failure to receive notice of the filing deadline (unless the employee 
has actual notice of the filing deadline).



Sec. 3.57  Result if employee fails to meet deadlines.

    An employee will not granted a hearing and will have his or her 
disposable pay offset in accordance with the Secretary's offset schedule 
if the employee:
    (a) Fails to file a petition for a hearing as prescribed in 
Sec. 3.56; or
    (b) Is scheduled to appear and fails to appear at the hearing.



Sec. 3.58  Hearings.

    (a) If an employee timely files a petition for a hearing under Sec. 
3.56, the Secretary shall select the time, date, and location for the 
hearing.
    (b)(1) Hearings shall be conducted by an appropriately designated 
hearing official; and
    (2) Rules of evidence shall not be adhered to, but the hearing 
official shall consider all evidence that he or she determines to be 
relevant to the debt that is the subject of the hearing and weigh it 
accordingly, given all of the facts and circumstances surrounding the 
debt.
    (c) USDA will have the burden of going forward to prove the 
existence of the debt.
    (d) The employee requesting the hearing shall bear the ultimate 
burden of proof.
    (e) The evidence presented by the employee must prove that no debt 
exists or cast sufficient doubt such that reasonable minds could differ 
as to the existence of the debt.



Sec. 3.59  Written decision following a hearing.

    Written decisions provided after a hearing will include:
    (a) A statement of the facts presented at the hearing to support the 
nature and origin of the alleged debt and those presented to refute the 
debt;
    (b) The hearing officer's analysis, findings and conclusions, 
considering all of the evidence presented and the respective burdens of 
the parties, in light of the hearing;
    (c) The amount and validity of the alledged debt determined as a 
result of the hearing; and
    (d) There payment schedule (including percentage of disposable pay), 
if applicable.
    (e) The determination of the amount of the debt at this hearing is 
the final agency action on this matter.



Sec. 3.60  Review of Departmental record related to the debt.

    (a) Notification by employee. An employee who intends to inspect or 
copy Departmental records related to the debt must send a letter to the 
Secretary stating his or her intention. The letter must be received by 
the Secretary within 30 calendar days of the date of the Notice of 
Intent.
    (b) Secretary's response. In response to the timely notice submitted 
by the debtor as described in paragraph (a) of this section, the 
Secretary will notify the employee of the location and time when the 
employee may inspect and copy Departmental records related to the debt.



Sec. 3.61  Written agreement to repay debt as alternative to salary 
offset.

    (a) Notification by employee. The employee may propose, in response 
to a Notice of Intent, a written agreement to repay the debt as an 
alternative to salary offset. Any employee who wishes to do this must 
submit a proposed written agreement to repay the debt which is received 
by the Secretary within 30 calendar days of the date of the Notice of 
Intent.
    (b) Secretary's response. The Secretary will notify the employee 
whether the employee's prosposed written agreement for repayment is 
acceptable. The Secretary may accept a repayment agreement instead of 
proceeding by offset. In making this determination, the Secretary will 
balance the Department's interest in collecting the debt against 
hardship to the employee. If

[[Page 293]]

the debt is delinquent and the employee has not disputed its existence 
or amount, the Secretary will accept a repayment agreement, instead of 
offset, for good cause such as, if the employee is able to establish 
that offset would result in undue financial hardship or would be against 
equity and good conscience.



Sec. 3.62  Procedures for salary offset: When deductions may begin.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the Secretary's Notice of Intent to collect 
from the employee's current pay.
    (b) If the employee filed a petition for a hearing with the 
Secretary before the expiration of the period provided for in Sec. 3.56 
then deductions will begin after the hearing officer has provided the 
employee with a hearing, and a final written decision has been rendered 
in favor of the Secretary.
    (c) If an employee retires or resigns before collection of the 
amount of the indebtedness is completed, the remaining indebtedness will 
be collected according to the procedures for administrative offset (see 
subpart B of this part).



Sec. 3.63  Procedures for salary offset: Types of collection.

    A debt will be collected in a lump-sum or in installments. 
Collection will be by lump-sum collection unless the employee is 
financially unable to pay in one lump-sum, or if the amount of the debt 
exceeds 15 percent of disposable pay for an ordinary pay period. In 
these cases, deduction will be by installments, as set forth in Sec. 
3.64.



Sec. 3.64  Procedures for salary offset: Methods of collection.

    (a) General. A debt will be collected by deductions at officially-
established pay intervals from an employee's current pay account, unless 
the employee and the Secretary agree to alternative arrangements for 
repayment under Sec. 3.61.
    (b) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment. The size 
and frequency of installment deductions will bear a reasonable relation 
to the size of the debt and the employee's ability to pay. However, the 
amount deducted for any period will not exceed 15 percent of the 
disposable pay from which the deduction is made, unless the employee has 
agreed in writing to the deduction of a greater amount. If possible, the 
installment payment will be sufficient in size and frequency to 
liquidate the debt in no more than three years. Installment payments of 
less than $25 per pay period or $50 a month will be accepted only in the 
most unusual circumstances.
    (c) Sources of deductions. The Department will make deductions only 
from basic pay, special pay, incentive pay, retired pay, retainer pay, 
or in the case of an employee not entitled to basic pay, other 
authorized pay.



Sec. 3.65  Procedures for salary offset: Imposition of interest, 
penalties and administrative costs.

    Interest, penalties and administrative costs will be charged in 
accordance with 4 CFR 102.13.



Sec. 3.66  Nonwaiver of rights.

    So long as there are no statutory or contractual provisions to the 
contrary, no employee payment (or all or portion of a debt) collected 
under these regulations will be interpreted as a waiver of any rights 
that the employee may have under 5 U.S.C. 5514.



Sec. 3.67  Refunds.

    The Department will refund promptly to the appropriate individual 
amounts offset under these regulations when:
    (a) A debt is waived or otherwise found not owing the United States 
(unless expressly prohibited by statute or regulation); or
    (b) The Department is directed by an administrative or judicial 
order to refund deducted from the employee's current pay.



Sec. 3.68  Agency regulations.

    The Head of each USDA agency is delegated the authority to act for 
the Secretary under these regulations and may issue regulations or 
policies not inconsistent with Office of Personnel Management 
regulations (5 CFR part

[[Page 294]]

550, subpart K) and regulations in this subpart governing the collection 
of a debt by salary offset.



         Subpart D_Cooperation with the Internal Revenue Service

    Authority: 26 U.S.C. 61, 31 U.S.C. 3720A, I TFRM 4055.50.



Sec. 3.81  Reporting discharged debts to the Internal Revenue Service.

    When the Department discharges a debt for less than the full value 
of the indebtedness it will report the outstanding balance discharged, 
not including interest, to the Internal Revenue Service, using IRS Form 
1099-G or any other form prescribed by the Service, when:
    (a) The principal amount of the debt not in dispute is $600 or more; 
and
    (b) The obligation has not been discharged in a bankruptcy 
proceeding; and
    (c) The obligation is no longer collectible either because the time 
limit in the applicable statute for enforcing collection expired during 
the tax year, or because during the year a formal compromise agreement 
was reached in which the debtor was legally discharged of all or a 
portion of the obligation.

[50 FR 7726, Feb. 26, 1985]



Sec. 3.82  Offset against tax refunds.

    The Department will take action to effect administrative offset 
against tax refunds due to debtors under 26 U.S.C. 6402, in accordance 
with the provisions of 31 U.S.C. 3720A and Treasury Department 
regulations.

[50 FR 7726, Feb. 26, 1985]



               Subpart E_Adjusted Civil Monetary Penalties

    Authority: 28 U.S.C. 2461 note.



Sec. 3.91  Adjusted civil monetary penalties.

    (a) In general. (1) The Secretary will adjust the civil monetary 
penalties, listed in paragraph (b) of this section, to take account of 
inflation at least once every 4 years as required by the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as 
amended.
    (2) Any increase in the dollar amount of a civil monetary penalty 
listed in paragraph (b) of this section shall apply only to violations 
occurring after June 23, 2005.
    (3) The descriptions of the civil monetary penalties listed in 
paragraph (b) of this section are for illustrative purposes only. This 
section does not amend, interpret, implement, or alter in any way the 
statutory provisions in which the civil monetary penalties listed in 
paragraph (b) are set. Moreover, the descriptions of the civil monetary 
penalties listed in paragraph (b) do not necessarily contain a complete 
description of the circumstances (e.g., requirements regarding the 
``state of mind'' of the violator(s), requirements regarding the type of 
law or issuance violated, etc.) under which the penalties are assessed. 
Persons should consult the statutory text in which the civil monetary 
penalties are set and any implementing regulations to make applicability 
determinations.
    (4) As used in this section, the following terms have the following 
meanings:
    (i) Secretary means the Secretary of Agriculture; and
    (ii) Department means the United States Department of Agriculture.
    (b) Penalties--(1) Agricultural Marketing Service--(i) Civil penalty 
for improper pesticide recordkeeping, codified at 7 U.S.C. 136i-1(d), 
has:
    (A) A maximum of $650 in the case of the first offense; and
    (B) A minimum of $1,100 in the case of subsequent offenses, except 
that the penalty shall be less than $1,100 if the Secretary determines 
that the person made a good faith effort to comply.
    (ii) Civil penalty for a violation of the unfair conduct rule under 
the Perishable Agricultural Commodities Act, in lieu of license 
revocation or suspension, codified at 7 U.S.C. 499b(5), has a maximum of 
$2,200.
    (iii) Civil penalty for a violation of the licensing requirements 
under the Perishable Agricultural Commodities Act, codified at 7 U.S.C. 
499c(a), has a maximum of $1,200 for each such offense and not more than 
$350 for each

[[Page 295]]

day it continues, or a maximum of $350 for each such offense if the 
Secretary determines the violation was not willful.
    (iv) Civil penalty in lieu of license suspension under the 
Perishable Agricultural Commodities Act, codified at 7 U.S.C. 499h(e), 
has a maximum of $2,000 for each violative transaction or each day the 
violation continues.
    (v) Civil penalty for a violation of the Export Apple Act, codified 
at 7 U.S.C. 586, has a minimum of $110 and a maximum of $11,000.
    (vi) Civil penalty for a violation of the Export Grape and Plum Act, 
codified at 7 U.S.C. 596, has a minimum of $110 and a maximum of 
$11,000.
    (vii) Civil penalty for a violation of an order issued by the 
Secretary under the Agricultural Adjustment Act, reenacted with 
amendments by the Agricultural Marketing Agreement Act of 1937, codified 
at 7 U.S.C. 608c(14)(B), has a maximum of $1,100.
    (viii) Civil penalty for failure to file certain reports under the 
Agricultural Adjustment Act, reenacted with amendments by the 
Agricultural Marketing Agreement Act of 1937, codified at 7 U.S.C. 
610(c), has a maximum of $110.
    (ix) Civil penalty for a violation of a seed program under the 
Federal Seed Act, codified at 7 U.S.C. 1596(b), has a minimum of $37.50 
and a maximum of $650.
    (x) Civil penalty for failure to collect any assessment or fee or 
for a violation of the Cotton Research and Promotion Act, codified at 7 
U.S.C. 2112(b), has a maximum of $1,100.
    (xi) Civil penalty for a violation of a cease and desist order, or 
for deceptive marketing, under the Plant Variety Protection Act, 
codified at 7 U.S.C. 2568(b), has a minimum of $650 and a maximum of 
$11,000.
    (xii) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Potato 
Research and Promotion Act, codified at 7 U.S.C. 2621(b)(1), has a 
minimum of $650 and a maximum of $6,500.
    (xiii) Civil penalty for failure to obey a cease and desist order 
under the Potato Research and Promotion Act, codified at 7 U.S.C. 
2621(b)(3), has a maximum of $650.
    (xiv) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Egg Research 
and Consumer Information Act, codified at 7 U.S.C. 2714(b)(1), has a 
minimum of $650 and a maximum of $6,500.
    (xv) Civil penalty for failure to obey a cease and desist order 
under the Egg Research and Consumer Information Act, codified at 7 
U.S.C. 2714(b)(3), has a maximum of $650.
    (xvi) Civil penalty for failure to remit any assessment or fee or 
for a violation of a program under the Beef Research and Information 
Act, codified at 7 U.S.C. 2908(a)(2), has a maximum of $6,500.
    (xvii) Civil penalty for failure to remit any assessment or for a 
violation of a program regarding wheat and wheat foods research, 
codified at 7 U.S.C. 3410(b), has a maximum of $1,100.
    (xviii) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Floral 
Research and Consumer Information Act, codified at 7 U.S.C. 4314(b)(1), 
has a minimum of $650 and a maximum of $6,500.
    (xix) Civil penalty for failure to obey a cease and desist order 
under the Floral Research and Consumer Information Act, codified at 7 
U.S.C. 4314(b)(3), has a maximum of $650.
    (xx) Civil penalty for a violation of an order under the Dairy 
Promotion Program, codified at 7 U.S.C. 4510(b), has a maximum of 
$1,100.
    (xxi) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of the Honey Research, Promotion, 
and Consumer Information Act, codified at 7 U.S.C. 4610(b)(1), has a 
minimum of $650 and a maximum of $6,500.
    (xxii) Civil penalty for failure to obey a cease and desist order 
under the Honey Research, Promotion, and Consumer Information Act, 
codified at 7 U.S.C. 4610(b)(3), has a maximum of $650.
    (xxiii) Civil penalty for a violation of a program under the Pork 
Promotion, Research, and Consumer Information Act of 1985, codified at 7 
U.S.C.

[[Page 296]]

4815(b)(1)(A)(i), has a maximum of $1,100.
    (xxiv) Civil penalty for failure to obey a cease and desist order 
under the Pork Promotion, Research, and Consumer Information Act of 
1985, codified at 7 U.S.C. 4815(b)(3)(A), has a maximum of $650.
    (xxv) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Watermelon 
Research and Promotion Act, codified at 7 U.S.C. 4910(b)(1), has a 
minimum of $650 and a maximum of $6,500.
    (xxvi) Civil penalty for failure to obey a cease and desist order 
under the Watermelon Research and Promotion Act, codified at 7 U.S.C. 
4910(b)(3), has a maximum of $650.
    (xxvii) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Pecan 
Promotion and Research Act of 1990, codified at 7 U.S.C. 6009(c)(1), has 
a minimum of $1,100 and a maximum of $11,000.
    (xxviii) Civil penalty for failure to obey a cease and desist order 
under the Pecan Promotion and Research Act of 1990, codified at 7 U.S.C. 
6009(e), has a maximum of $1,100.
    (xxix) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Mushroom 
Promotion, Research, and Consumer Information Act of 1990, codified at 7 
U.S.C. 6107(c)(1), has a minimum of $650 and a maximum of $6,500.
    (xxx) Civil penalty for failure to obey a cease and desist order 
under the Mushroom Promotion, Research, and Consumer Information Act of 
1990, codified at 7 U.S.C. 6107(e), has a maximum of $650.
    (xxxi) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of the Lime Research, Promotion, 
and Consumer Information Act of 1990, codified at 7 U.S.C. 6207(c)(1), 
has a minimum of $650 and a maximum of $6,500.
    (xxxii) Civil penalty for failure to obey a cease and desist order 
under the Lime Research, Promotion, and Consumer Information Act of 
1990, codified at 7 U.S.C. 6207(e), has a maximum of $650.
    (xxxiii) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Soybean 
Promotion, Research, and Consumer Information Act, codified at 7 U.S.C. 
6307(c)(1)(A), has a maximum of $1,100.
    (xxxiv) Civil penalty for failure to obey a cease and desist order 
under the Soybean Promotion, Research, and Consumer Information Act, 
codified at 7 U.S.C. 6307(e), has a maximum of $6,500.
    (xxxv) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Fluid Milk 
Promotion Act of 1990, codified at 7 U.S.C. 6411(c)(1)(A), has a minimum 
of $650 and a maximum of $6,500, or in the case of a violation that is 
willful, codified at 7 U.S.C. 6411(c)(1)(B), has a minimum of $11,000 
and a maximum of $130,000.
    (xxxvi) Civil penalty for failure to obey a cease and desist order 
under the Fluid Milk Promotion Act of 1990, codified at 7 U.S.C. 
6411(e), has a maximum of $6,500.
    (xxxvii) Civil penalty for knowingly labeling or selling a product 
as organic except in accordance with the Organic Foods Production Act of 
1990, codified at 7 U.S.C. 6519(a), has a maximum of $11,000.
    (xxxviii) Civil penalty for failure to pay, collect, or remit any 
assessment or fee or for a violation of a program under the Fresh Cut 
Flowers and Fresh Cut Greens Promotion and Information Act of 1993, 
codified at 7 U.S.C. 6808(c)(1)(A)(i), has a minimum of $650 and a 
maximum of $6,500.
    (xxxix) Civil penalty for failure to obey a cease and desist order 
under the Fresh Cut Flowers and Fresh Cut Greens Promotion and 
Information Act of 1993, codified at 7 U.S.C. 6808(e)(1), has a maximum 
of $6,500.
    (xl) Civil penalty for a violation of a program under the Sheep 
Promotion, Research, and Information Act of 1994, codified at 7 U.S.C. 
7107(c)(1)(A), has a maximum of $1,100.
    (xli) Civil penalty for failure to obey a cease and desist order 
under the Sheep Promotion, Research, and Information Act of 1994, 
codified at 7 U.S.C. 7107(e), has a maximum of $650.

[[Page 297]]

    (xlii) Civil penalty for a violation of an order or regulation 
issued under the Commodity Promotion, Research, and Information Act of 
1996, codified at 7 U.S.C. 7419(c)(1), has a minimum of $1,200 and a 
maximum of $12,000 for each violation.
    (xliii) Civil penalty for a violation of a cease and desist order 
under the Commodity Promotion, Research, and Information Act of 1996, 
codified at 7 U.S.C. 7419(e), has a minimum of $1,200 and a maximum of 
$12,000 for each day the violation occurs.
    (xliv) Civil penalty for a violation of an order or regulation 
issued under the Canola and Rapeseed Research, Promotion, and Consumer 
Information Act, codified at 7 U.S.C. 7448(c)(1)(A)(i), has a maximum of 
$1,200 for each violation.
    (xlv) Civil penalty for a violation of a cease and desist order 
under the Canola and Rapeseed Research, Promotion, and Consumer 
Information Act, codified at 7 U.S.C. 7448(e), has a maximum of $6,000 
for each day the violation occurs.
    (xlvi) Civil penalty for a violation of an order or regulation 
issued under the National Kiwifruit Research, Promotion, and Consumer 
Information Act, codified at 7 U.S.C. 7468(c)(1), has a minimum of $600 
and a maximum of $6,000 for each violation.
    (xlvii) Civil penalty for a violation of a cease and desist order 
under the National Kiwifruit Research, Promotion, and Consumer 
Information Act, codified at 7 U.S.C. 7468(e), has a maximum of $600 for 
each day the violation occurs.
    (xlviii) Civil penalty for a violation of an order or regulation 
issued under the Popcorn Promotion, Research, and Consumer Information 
Act, codified at 7 U.S.C. 7487(a), has a maximum of $1,200 for each 
violation.
    (xlix) Civil penalty for certain violations under the Egg Products 
Inspection Act, codified at 21 U.S.C. 1041(c)(1)(A), has a maximum of 
$6,500 for each violation.
    (l) Civil penalty for a violation of an order or regulation issued 
under the Hass Avocado Promotion, Research, and Information Act of 2000, 
codified at 7 U.S.C. 7807(c)(1)(A)(i), has a minimum of $1,100 and a 
maximum of $11,000 for each violation.
    (li) Civil penalty for failure to obey a cease and desist order 
under the Hass Avocado Promotion, Research, and Information Act of 2000, 
codified at 7 U.S.C. 7807(e)(1), has a maximum of $11,000 for each 
offense.
    (lii) Civil penalty for a violation of certain provisions of the 
Livestock Mandatory Reporting Act of 1999, codified at 7 U.S.C. 
1636b(a)(1), has a maximum of $11,000 for each violation.
    (liii) Civil penalty for failure to obey a cease and desist order 
under the Livestock Mandatory Reporting Act of 1999, codified at 7 
U.S.C. 1636b(g)(3), has a maximum of $11,000 for each violation.
    (2) Animal and Plant Health Inspection Service--(i) Civil penalty 
for a violation of the imported seed provisions of the Federal Seed Act, 
codified at 7 U.S.C. 1596(b), has a minimum of $37.50 and a maximum of 
$650.
    (ii) Civil penalty for a violation of the Animal Welfare Act, 
codified at 7 U.S.C. 2149(b), has a maximum of $3,750, and knowing 
failure to obey a cease and desist order has a civil penalty of $1,650.
    (iii) Civil penalty for any person that causes harm to, or 
interferes with, an animal used for the purposes of official inspections 
by the Department, codified at 7 U.S.C. 2279e(a), has a maximum of 
$11,000.
    (iv) Civil penalty for a violation of the Swine Health Protection 
Act, codified at 7 U.S.C. 3805(a), has a maximum of $11,000.
    (v) Civil penalty for any person that violates the Plant Protection 
Act (PPA), or that forges, counterfeits, or, without authority from the 
Secretary, uses, alters, defaces, or destroys any certificate, permit, 
or other document provided for in the PPA, codified at 7 U.S.C. 
7734(b)(1), has a maximum of the greater of: $55,000 in the case of any 
individual (except that the civil penalty may not exceed $1,100 in the 
case of an initial violation of the PPA by an individual moving 
regulated articles not for monetary gain), $275,000 in the case of any 
other person for each violation, and $550,000 for all violations 
adjudicated in a single proceeding; or twice

[[Page 298]]

the gross gain or gross loss for any violation, forgery, counterfeiting, 
unauthorized use, defacing, or destruction of a certificate, permit, or 
other document provided for in the PPA that results in the person 
deriving pecuniary gain or causing pecuniary loss to another.
    (vi) Civil penalty for any person [except as provided in 7 U.S.C. 
8309(d)] that violates the Animal Health Protection Act (AHPA), or that 
forges, counterfeits, or, without authority from the Secretary, uses, 
alters, defaces, or destroys any certificate, permit, or other document 
provided under the AHPA, codified at 7 U.S.C. 8313(b)(1), has a maximum 
of the greater of: $55,000 in the case of any individual, except that 
the civil penalty may not exceed $1,100 in the case of an initial 
violation of the AHPA by an individual moving regulated articles not for 
monetary gain, $275,000 in the case of any other person for each 
violation, and $550,000 for all violations adjudicated in a single 
proceeding; or twice the gross gain or gross loss for any violation or 
forgery, counterfeiting, or unauthorized use, alteration, defacing or 
destruction of a certificate, permit, or other document provided under 
the AHPA that results in the person's deriving pecuniary gain or causing 
pecuniary loss to another person.
    (vii) Civil penalty for any person that violates certain regulations 
under the Agricultural Bioterrorism Protection Act of 2002 regarding 
transfers of listed agents and toxins or possession and use of listed 
agents and toxins, codified at 7 U.S.C. 8401(i)(1), has a maximum of 
$275,000 in the case of an individual and $550,000 in the case of any 
other person.
    (viii) Civil penalty for a violation of the Horse Protection Act, 
codified at 15 U.S.C. 1825(b)(1), has a maximum of $2,200.
    (ix) Civil penalty for failure to obey Horse Protection Act 
disqualification, codified at 15 U.S.C. 1825(c), has a maximum of 
$4,300.
    (x) Civil penalty for knowingly violating, or, if in the business as 
an importer or exporter, violating, with respect to terrestrial plants, 
any provision of the Endangered Species Act of 1973, any permit or 
certificate issued thereunder, or any regulation issued pursuant to 
section 9(a)(1)(A) through (F), (a)(2)(A) through (D), (c), (d) (other 
than regulations relating to recordkeeping or filing reports), (f), or 
(g) of the Endangered Species Act of 1973 (16 U.S.C. 1538(a)(1)(A) 
through (F), (a)(2)(A) through (D), (c), (d), (f), and (g)), as set 
forth at 16 U.S.C. 1540(a), has a maximum of $32,500.
    (xi) Civil penalty for knowingly violating, or, if in the business 
as an importer or exporter, violating, with respect to terrestrial 
plants, any other regulation issued under the Endangered Species Act of 
1973, as set forth at 16 U.S.C. 1540(a), has a maximum of $18,200.
    (xii) Civil penalty for any other violation, with respect to 
terrestrial plants, of the Endangered Species Act of 1973, or any 
regulation, permit, or certificate issued thereunder, as set forth at 16 
U.S.C. 1540(a), has a maximum of $650.
    (xiii) Civil penalty for knowingly and willfully violating 49 U.S.C. 
80502 with respect to the transportation of animals by any rail carrier, 
express carrier, or common carrier (except by air or water), a receiver, 
trustee, or lessee of one of those carriers, or an owner or master of a 
vessel, codified at 49 U.S.C. 80502(d), has a minimum of $110 and a 
maximum of $550.
    (3) Food and Nutrition Service--(i) Civil penalty for hardship fine 
in lieu of disqualification, codified at 7 U.S.C. 2021(a), has a maximum 
of $11,000 per violation.
    (ii) Civil penalty for trafficking in food coupons, codified at 7 
U.S.C. 2021(b)(3)(B), has a maximum of $27,000 for each violation, 
except that the maximum penalty for violations occurring during a single 
investigation is $54,000.
    (iii) Civil penalty for the sale of firearms, ammunition, 
explosives, or controlled substances for coupons, codified at 7 U.S.C. 
2021(b)(3)(C), has a maximum of $27,000 for each violation, except that 
the maximum penalty for violations occurring during a single 
investigation is $54,000.
    (iv) Civil penalty for any entity that submits a bid to supply 
infant formula to carry out the Special Supplemental Nutrition Program 
for Women, Infants and Children and discloses the amount

[[Page 299]]

of the bid, rebate or discount practices in advance of the bid opening 
or for any entity that makes a statement prior to the opening of the 
bids for the purpose of influencing a bid, codified at 42 U.S.C. 
1786(h)(8)(H)(i), has a maximum of $132,000,000.
    (v) Civil penalty for a vendor convicted of trafficking in food 
instruments, codified at 42 U.S.C. 1786(o)(1)(A) and 42 U.S.C. 
1786(o)(4)(B), has a maximum of $11,000 for each violation, except that 
the maximum penalty for violations occurring during a single 
investigation is $44,000.
    (vi) Civil penalty for a vendor convicted of selling firearms, 
ammunition, explosives, or controlled substances in exchange for food 
instruments, codified at 42 U.S.C. 1786(o)(1)(B) and 42 U.S.C. 
1786(o)(4)(B), has a maximum of $11,000 for each violation, except that 
the maximum penalty for violations occurring during a single 
investigation is $44,000.
    (4) Food Safety and Inspection Service--(i) Civil penalty for 
certain violations under the Egg Products Inspection Act, codified at 21 
U.S.C. 1041(c)(1)(A), has a maximum of $6,500 for each violation.
    (ii) Civil penalty for failure to timely file certain reports, 
codified at 21 U.S.C. 467d, has a maximum of $110 per day for each day 
the report is not filed.
    (iii) Civil penalty for failure to timely file certain reports, 
codified at 21 U.S.C. 677, has a maximum of $110 per day for each day 
the report is not filed.
    (iv) Civil penalty for failure to timely file certain reports, 
codified at 21 U.S.C. 1051, has a maximum of $110 per day for each day 
the report is not filed.
    (5) Forest Service--(i) Civil penalty for a willful disregard of the 
prohibition against the export of unprocessed timber originating from 
Federal lands, codified at 16 U.S.C. 620d(c)(1)(A), has a maximum of 
$650,000 per violation or three times the gross value of the unprocessed 
timber, whichever is greater.
    (ii) Civil penalty for a violation in disregard of the Forest 
Resources Conservation and Shortage Relief Act of 1990 or the 
regulations that implement such Act regardless of whether such violation 
caused the export of unprocessed timber originating from Federal lands, 
codified at 16 U.S.C. 620d(c)(2)(A)(i), has a maximum of $97,500 per 
violation.
    (iii) Civil penalty for a person that should have known that an 
action was a violation of the Forest Resources Conservation and Shortage 
Relief Act of 1990 or the regulations that implement such Act regardless 
of whether such violation caused the export of unprocessed timber 
originating from Federal lands, codified at 16 U.S.C. 620d(c)(2)(A)(ii), 
has a maximum of $65,000 per violation.
    (iv) Civil penalty for a willful violation of the Forest Resources 
Conservation and Shortage Relief Act of 1990 or the regulations that 
implement such Act regardless of whether such violation caused the 
export of unprocessed timber originating from Federal lands, codified at 
16 U.S.C. 620d(c)(2)(A)(iii), has a maximum of $650,000.
    (v) Civil penalty for a violation involving protections of caves, 
codified at 16 U.S.C. 4307(a)(2), has a maximum of $11,000.
    (6) Grain Inspection, Packers and Stockyards Administration--(i) 
Civil penalty for a packer or swine contractor violation, codified at 7 
U.S.C. 193(b), has a maximum of $11,000.
    (ii) Civil penalty for a livestock market agency or dealer failure 
to register, codified at 7 U.S.C. 203, has a maximum of $650 and not 
more than $37.50 for each day the violation continues.
    (iii) Civil penalty for operating without filing, or in violation 
of, a stockyard rate schedule, or of a regulation or order of the 
Secretary made thereunder, codified at 7 U.S.C. 207(g), has a maximum of 
$650 and not more than $37.50 for each day the violation continues.
    (iv) Civil penalty for a stockyard owner, livestock market agency 
and dealer violation, codified at 7 U.S.C. 213(b), has a maximum of 
$11,000.
    (v) Civil penalty for a stockyard owner, livestock market agency and 
dealer compliance order violation, codified at 7 U.S.C. 215(a), has a 
maximum of $650.
    (vi) Civil penalty for a failure to file required reports, codified 
at 15 U.S.C. 50, has a maximum of $110.
    (vii) Civil penalty for live poultry dealer violations, codified at 
7 U.S.C. 228b-2(b), has a maximum of $27,000.

[[Page 300]]

    (viii) Civil penalty for a violation, codified at 7 U.S.C. 86(c), 
has a maximum of $97,500.
    (7) Federal Crop Insurance Corporation--(i) Civil penalty for any 
person who willfully and intentionally provides any false or inaccurate 
information to the Federal Crop Insurance Corporation or to an approved 
insurance provider with respect to an insurance plan or policy that is 
offered under the authority of the Federal Crop Insurance Act, codified 
at 7 U.S.C. 1506(n)(1)(A), has a maximum of $11,000.
    (ii) Civil penalty for any person who willfully and intentionally 
provides any false or inaccurate information to the Federal Crop 
Insurance Corporation or to an approved insurance provider with respect 
to an insurance plan or policy that is offered under the authority of 
the Federal Crop Insurance Act, or who fails to comply with a 
requirement of the Federal Crop Insurance Corporation, codified at 7 
U.S.C. 1515(h)(3)(A), has a maximum of the greater of: The amount of 
pecuniary gain obtained as a result of the false or inaccurate 
information or the noncompliance; or $11,000.
    (8) Rural Housing Service--(i) Civil penalty for a violation of 
section 536 of Title V of the Housing Act of 1949, codified at 42 U.S.C. 
1490p(e)(2), has a maximum of $110,000 in the case of an individual, and 
a maximum of $1,100,000 in the case of an applicant other than an 
individual.
    (ii) Civil penalty for equity skimming under section 543(a) of the 
Housing Act of 1949, codified at 42 U.S.C. 1490s(a)(2), has a maximum of 
$27,500.
    (iii) Civil penalty under section 543(b) of the Housing Act of 1949 
for a violation of regulations or agreements made in accordance with 
Title V of the Housing Act of 1949, by submitting false information, 
submitting false certifications, failing to timely submit information, 
failing to maintain real property security in good repair and condition, 
failing to provide acceptable management for a project, or failing to 
comply with applicable civil rights statutes and regulations, codified 
at 42 U.S.C. 1490s(b)(3)(A), has a maximum of the greater of: Twice the 
damages the Department, guaranteed lender, or project that is secured 
for a loan under Title V, suffered or would have suffered as a result of 
the violation; or $55,000 per violation.

[70 FR 29575, May 24, 2005]

                            PART 4 [RESERVED]



PART 5_DETERMINATION OF PARITY PRICES--Table of Contents




Sec.
5.1 Parity index and index of prices received by farmers.
5.2 Marketing season average price data.
5.3 Selection of calendar year price data.
5.4 Commodities for which parity prices shall be calculated.
5.5 Publication of season average, calendar year, and parity price data.
5.6 Revision of the parity price of a commodity.

    Authority: 7 U.S.C. 1301, 1375.

    Editorial Note: Nomenclature changes to part 5 appear at 62 FR 8361, 
Feb. 25, 1997.



Sec. 5.1  Parity index and index of prices received by farmers.

    (a) The parity index and related indices for the purpose of 
calculating parity prices after May 1, 1976, according to the formula 
contained in section 301(a) of the Agricultural Adjustment Act of 1938, 
as amended by the Agricultural Acts of 1948, 1949, 1954, and 1956 
(hereinafter referred to as section 301(a)) shall be the index of prices 
paid by farmers, interest, taxes, and farm wage rates, as revised May 
1976 and published in the May 28, 1976, and subsequent issues of the 
monthly report, ``Agricultural Prices.'' The publication of these 
indices by the National Agricultural Statistics Service in the monthly 
report, ``Agricultural Prices'', shall be continued.
    (b) The measure of the general level of prices received by farmers 
as provided for in section 301(a)(1)(B)(ii) after January 1, 1959, shall 
be the index of prices received by farmers as revised January 1959 and 
published in the January 30, 1959, and subsequent issues of 
``Agricultural Prices''. The simple average of the 120 monthly indices 
included in the preceding 10 calendar years plus an adjustment to take 
account of the effect on the index of any adjustment made on average 
prices of individual commodities as hereinafter

[[Page 301]]

specified shall be used in the calculation of the adjusted base prices. 
Parity prices heretofore published for periods prior to January 1, 1959 
shall not be revised.
    (c) The term milkfat as used in these regulations is synonymous with 
the term butterfat, and when any statute requires calculation of the 
parity price of butterfat, the parity price of milkfat shall be the 
parity price of butterfat.

[24 FR 697, Jan. 31, 1959, as amended by Amdt. 6, 24 FR 9778, Dec. 5, 
1959; Amdt. 29, 41 FR 22333, June 3, 1976]



Sec. 5.2  Marketing season average price data.

    It is hereby found that it is impractical to use averages of prices 
received by farmers on a calendar year basis for the following 
agricultural commodities for the purpose of calculating adjusted base 
prices and, therefore, marketing season average prices will be used. An 
allowance for any supplemental payment resulting from price support 
operations shall be included in the determination of the adjusted base 
prices. For cigar binder tobacco, types 51-52, for each of the marketing 
seasons beginning in the years 1949 through 1958, 37.9 cents per pound 
shall be used in lieu of the average of prices received by farmers for 
such tobacco during each such marketing season.

                            Basic Commodities

    Extra long staple cotton; peanuts; rice, and the following types of 
tobacco: Flue-cured, types 11-14; Virginia fire-cured, type 21; 
Kentucky-Tennessee fire-cured, types 22-23; burley, type 31; dark air-
cured, types 35-36; sun-cured, type 37; Pennsylvania seedleaf, type 41; 
cigar filler and binder, types 42-44 and 53-55; Puerto Rican filler, 
type 46 (price refers to year of harvest); and cigar binder, types 51-
52.

                     Designated Nonbasic Commodities

    Tung nuts; honey, wholesale extracted.

                             Wool and Mohair

    Wool and mohair.

                       Other Nonbasic Commodities

                              citrus fruit

    Grapefruit; lemons; limes; oranges; tangerines; and Temples.

                        deciduous and other fruit

    Apples for processing; apricots for fresh consumption; apricots for 
processing (except dried); dried apricots; avocados; blackberries; 
boysenberries; gooseberries; loganberries; black raspberries; red 
raspberries; youngberries; tart cherries; sweet cherries; cranberries; 
dates; grapes, raisins, dried; all grapes excluding raisins, dried; 
nectarines for fresh consumption, nectarines for processing; olives for 
processing (except crushed for oil); olives, crushed for oil; olives for 
canning; papayas (Hawaii), for fresh consumption; peaches for fresh 
consumption; clingstone peaches for processing (except dried); freestone 
peaches for processing (except dried); dried peaches; pears for fresh 
consumption; pears for processing (except dried); dried pears; plums 
(California), for fresh consumption; plus (California), for processing; 
dried prunes (California); prunes and plums (excluding California), for 
processing (except dried); strawberries for fresh consumption; and 
strawberries for processing.

                               Seed Crops

    Alfalfa, bentgrass, crimson clover, Chewings fescue, red fescue, 
tall fescue, Marion Kentucky bluegrass, Ladino clover, lespedeza, 
orchard grass, red clover, timothy, and hairy vetch.

                               sugar crops

    Sugar beets and sugarcane for sugar.

                                tree nuts

    Almonds; filberts; pecans, all; and walnuts.

                       vegetables for fresh market

    Artichokes, asparagus, snap beans, broccoli, cabbage, cantaloupe, 
carrots, cauliflower, celery, sweet corn, cucumbers, eggplant, escarole, 
garlic, honeydew melons, lettuce, onions, green peppers, spinach, 
tomatoes, and watermelons.

                        vegetables for processing

    Asparagus, lima beans, snap beans, beets, cabbage, sweet corn, 
cucumbers, green peas, spinach, and tomatoes.

                            Other Commodities

    Beeswax; cottonseed; hops; peas; dry field; peppermint oil; popcorn; 
potatoes; spearmint oil; and tobacco, types 61-62. All other commodities 
for which monthly price data are not available.

[21 FR 761, Feb. 3, 1956]

    Editorial Note: For Federal Register citations affecting Sec. 5.2 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.

[[Page 302]]



Sec. 5.3  Selection of calendar year price data.

    In computing the adjusted base price for those commodities for which 
calendar year price data are used, ``* * * the average of the prices 
received by farmers for such commodity, at such times as the Secretary 
may select during each year * * *,'' as used in section 301(a)(1)(B)(i), 
shall be the simple average of the 12 monthly estimates of the prices 
received by farmers as published by the National Agricultural Statistics 
Service in ``Agricultural Prices'' for those commodities for which such 
prices are available. An allowance for unredeemed loans and purchase 
agreement deliveries, any supplemental payments resulting from price 
support operations, and the value of marketing certificates, such as 
those received by producers of wheat pursuant to the Agricultural 
Adjustment Act of 1938, as amended, and others of generally similar 
character and effect, shall be added to the price specified above. 
Prices received for milk wholesale, milkfat, beef cattle, sheep, and 
lambs shall include wartime subsidy payments as provided by section 
301(a)(1)(B). For Maryland Tobacco, type 32, the price data for each 
calendar year shall be the weighted average price of type 32 tobacco 
sold during the period January 1-December 31.

[Amdt. 14, 29 FR 12451, Sept. 1, 1964]



Sec. 5.4  Commodities for which parity prices shall be calculated.

    Parity prices shall be calculated for the following commodities:

                            Basic Commodities

    Wheat; corn; American upland cotton; extra long staple cotton; rice; 
peanuts;\1\ and the following types of tobacco: flue-cured, types 11-14; 
Virginia fire-cured, type 21; Kentucky-Tennessee fire-cured, types 22-
23; burley, type 31; Maryland, type 32; dark air-cured, types 35-36; 
sun-cured, type 37; Pennsylvania seedleaf, type 41; cigar filler and 
binder, types 42-44 and 53-55; Puerto Rican filler, type 46; and cigar 
binder, types 51-52.
---------------------------------------------------------------------------

    \1\ For the purpose of calculating parity prices the commodity 
peanuts shall exclude peanuts produced for oil in 1950 and 1951 under 
the provisions of subsections (g) and (h) of section 359 of the 
Agricultural Adjustment Act of 1938 as amended.
---------------------------------------------------------------------------

                     Designated Nonbasic Commodities

    Milk sold to plants; milkfat in cream; tung nuts; honey, wholesale 
extracted.

                             Wool and Mohair

    Wool and mohair.

                       Other Nonbasic Commodities

                              citrus fruit

    Grapefruit; lemons; limes; oranges; tangerines; and Temples.

                        deciduous and other fruit

    Apples (primarily for fresh use); apples for processing; apricots 
for fresh consumption; apricots for processing (except dried); dried 
apricots; avocados; blackberries; boysenberries; gooseberries; 
loganberries; black raspberries; red raspberries; youngberries; tart 
cherries; sweet cherries; cranberries; dates; grapes, raisins, dried; 
all grapes, excluding raisins, dried; nectarines for fresh consumption; 
nectarines for processing; olives for processing (excluding crushed for 
oil); olives, crushed for oil; olives for canning; papayas (Hawaii), for 
fresh consumption; peaches for fresh consumption; clingstone peaches for 
processing (except dried); freestone peaches for processing (except 
dried); dried peaches; pears for fresh consumption; pears for processing 
(except dried); dried pears; plums (California), for fresh consumption; 
plums (California), for processing; dried prunes (California); prunes 
and plums (excluding California), for processing (except dried); 
strawberries for fresh consumption; and strawberries for processing.

                               seed crops

    Alfalfa, bentgrass, crimson clover, Chewings fescue, red fescue, 
tall fescue, Marion Kentucky bluegrass, Ladino clover, lespedeza, 
orchard grass, red clover, timothy, and hairy vetch.

                               sugar crops

    Sugar beets, and sugarcane for sugar.

                                tree nuts

    Almonds; filberts; pecans, all; and walnuts.

                       vegetables for fresh market

    Artichokes, asparagus, snap beans, broccoli, cabbage, cantaloups, 
carrots, cauliflower, celery, sweet corn, cucumbers, eggplant, escarole, 
garlic, honeydew melons, lettuce, onions, green peppers, spinach, 
tomatoes, and watermelons.

[[Page 303]]

                        vegetables for processing

    Asparagus, lima beans, snap beans, beets, cabbage, sweet corn, 
cucumbers, green peas, spinach and tomatoes.

                            other commodities

    Beef cattle; hogs; lambs; calves; sheep; turkeys; eggs; beeswax; 
potatoes; hops; peppermint oil; popcorn; spearmint oil; tobacco, Types 
61 and 62; barley; beans, dry edible; cottonseed; peas, dry field; 
flaxseed; hay, all baled; oats; rye; sorghum grain; soybeans; 
sweetpotatoes; and crude pine gum.

[21 FR 763, Feb. 3, 1956, as amended by Amdt. 1, 22 FR 693, Feb. 2, 
1957; Amdt. 3, 23 FR 1565, Mar. 5, 1958; Amdt. 17, 31 FR 10767, Aug. 13, 
1966; Amdt. 23, 34 FR 1132, Jan. 24, 1969; Amdt. 25, 34 FR 15785, Oct. 
14, 1969; Amdt. 26, 35 FR 3158, Feb. 19, 1970; Amdt. 27, 36 FR 15516, 
Aug. 17, 1971; 38 FR 10795, May 2, 1973]



Sec. 5.5  Publication of season average, calendar year, and parity price 
data.

    (a) New adjusted base prices for all of the commodities on a 
calendar year basis and for as many of the commodities on a marketing 
season average basis as are practicable shall be published on or about 
January 31 of each year. In cases where preliminary marketing season 
average price data are used in estimating the adjusted base prices 
published in January, any additional price data which becomes available 
shall be used in estimating a revised adjusted base price which shall be 
published prior to the beginning of the marketing season for the 
commodity.
    (b) The official parity prices determined under section 301(a)(1) 
and the regulations in this part and the indexes and relevant price data 
shall be published in the monthly report ``Agricultural Prices'' issued 
by the National Agricultural Statistics Service. Parity prices for all 
commodities for which parity prices are computed shall be so published 
in the January and July issues each year. The parity prices published in 
other issues may be restricted to those which the National Agricultural 
Statistics Service, after consultation with the Agricultural Marketing 
Service, the Farm Service Agency, and any other interested government 
agency, considers necessary or desirable. The parity prices determined 
in accordance with this part shall be the parity prices used in other 
reports, determinations, or documents of the Department.

[21 FR 763, Feb. 3, 1956, as amended by Amdt. 16, 30 FR 2521, Feb. 26, 
1965]



Sec. 5.6  Revision of the parity price of a commodity.

    (a) Initiation of hearings. The ``modernized'' parity formula 
specified in section 301(a)(1) of the Agricultural Adjustment Act of 
1938, as amended, takes into consideration the average prices received 
by farmers for agricultural commodities during the last ten years and is 
designed gradually to adjust relative parity prices of specific 
commodities for persistent or continuing changes in demand and supply 
conditions which are reflected in market prices. Accordingly, only in 
rare cases is it possible for the parity price of any agricultural 
commodity to become seriously out of line with the parity prices of 
other agricultural commodities. In any case, however, in which producers 
of any agricultural commodity believe that the parity price of such 
commodity, as computed pursuant to the provisions of section 301(a)(1), 
is seriously out of line with the parity prices of other agricultural 
commodities, a request for a public hearing under section 301(a)(1)(F) 
may be submitted to the Secretary of Agriculture by a substantial number 
of interested producers. The producers shall also furnish to the 
Secretary, with such request or separately, data supporting their 
conclusion that the parity price of such commodity is seriously out of 
line with the parity prices of other commodities. Upon receipt of such a 
request with supporting data, or at any time upon the Secretary's own 
motion, this Department will make a preliminary study of the 
relationship between the parity price of such commodity and the parity 
prices of other commodities, and if the Secretary concludes that there 
appears to be reasonable grounds for believing that the parity price of 
such commodity is seriously out of line with the parity prices of other 
agricultural commodities, a hearing will be held pursuant to the 
provisions of section 301(a)(1)(F).
    (b) Notice of hearing. If the Secretary of Agriculture determines 
that such a hearing shall be held, he shall issue a

[[Page 304]]

notice of the hearing, which shall be filed with the Hearing Clerk of 
the United States Department of Agriculture, who shall promptly (1) 
cause such notice to be published in the Federal Register, and (2) mail 
a copy thereof to each of the producers who requested the hearing and to 
grower organizations known to be interested in the hearing. Legal notice 
of the hearing shall be deemed to be given upon filing such notice with 
the Federal Register for publication, and failure to give notice in the 
manner otherwise provided in this paragraph shall not affect the 
legality of the notice. The notice of hearing shall state the purpose of 
the hearing and the time and place of the hearing. The time of the 
hearing shall not be less than fifteen days after the date of 
publication of the notice in the Federal Register, unless the Secretary 
shall determine that an emergency exists which requires a shorter period 
of notice, in which case the period of notice shall be that which the 
Secretary determines to be reasonable in the circumstances.
    (c) Conduct of hearing--(1) Presiding officer. Each hearing held 
under section 301(a)(1)(F) shall be presided over by a Hearing Examiner 
of the Office of Administrative Law Judges or such other employee of the 
Department as the Secretary may designate for the purpose.
    (2) Time and place of hearing. Each hearing shall be heard at the 
time and place set forth in the notice of hearing but may be continued 
by the presiding officer from day to day or adjourned to a later date or 
to a different place without notice other than the announcement thereof 
at the hearing.
    (3) Order of procedure. At the commencement of the hearing, the 
presiding officer shall file as an exhibit a copy of the Federal 
Register containing the notice of the hearing and shall then outline 
briefly the procedure to be followed. Evidence shall then be received 
from interested persons in such order as the presiding officer shall 
prescribe.
    (4) Submission of evidence. The hearing shall be conducted in such a 
way as to obtain a clear and orderly record. All interested persons 
appearing at the hearing shall be given reasonable opportunity to offer 
data, views, or arguments relevant to (i) whether the parity price for 
the agricultural commodity involved is or is not seriously out of line 
with the parity prices of other agricultural commodities, and (ii) the 
proper relationship between the parity price of such commodity and the 
parity prices of other agricultural commodities and the revisions, if 
any, which should be made in computing the parity price of such 
commodity. All documentary exhibits shall be submitted in duplicate. The 
presiding officer shall, insofar as possible, exclude irrelevant, 
immaterial, or unduly repetitious evidence but shall not apply technical 
judicial rules of evidence. Every witness shall be subject to 
questioning by the presiding officer or by any other representative of 
the Department, but cross-examination by other persons shall not be 
allowed, except in the discretion of the presiding officer. The 
proceedings at the hearing shall be transcribed verbatim.
    (5) Written arguments. The presiding officer shall fix a time, not 
to exceed ten days from the close of the hearing, within which 
interested persons may file written arguments with the Hearing Clerk.
    (d) Preparation and issuance of determination--(1) Preparation of 
recommendation. As soon as practicable after the close of the hearing, 
the presiding officer, or such employees of the Department as may be 
assigned for the purpose, shall review, consider, and weigh all evidence 
of probative value, views, and arguments which have been submitted, and 
may consider other pertinent information and data which is available in 
the Department of Agriculture, and shall submit a recommendation thereon 
to the Secretary.
    (2) Determination by the Secretary. As soon as possible after 
receipt of the recommendation, the Secretary shall determine whether the 
parity price of such commodity computed in accordance with section 
301(a)(1) appears to be seriously out of line with the parity prices of 
other agricultural commodities whether the facts require a revision of 
the method of computing the parity price of such commodity, and the 
revision, if any, which is required

[[Page 305]]

in the method of computing the parity price of such commodity. Such 
determination by the Secretary shall be final. The Secretary's 
determination shall be filed with the Hearing Clerk who shall cause the 
determination to be published promptly in the Federal Register. The 
Hearing Clerk shall also mail a copy of the determination to each 
producer and grower organization which participated in or is known to be 
interested in the hearing. Upon application to the Hearing Clerk, any 
person shall be entitled to a copy of the determination.

[23 FR 9252, Nov. 29, 1958]



PART 6_IMPORT QUOTAS AND FEES--Table of Contents




                       Subpart_General Provisions

Sec.
6.2 Responsibility for actions under section 22 and section 8(a).
6.3 Requests by interested persons for action by Department of 
          Agriculture.
6.4 Investigations.
6.5 Hearings under section 22.
6.6 Submission of recommendations under section 22.
6.7 Submission of recommendations under section 8(a) (emergency 
          treatment).
6.8 Representation at Tariff Commission hearings.
6.9 Information.

            Subpart_Dairy Tariff-Rate Import Quota Licensing

6.20 Introduction.
6.21 Definitions.
6.22 Requirement for a license.
6.23 Eligibility to apply for a license.
6.24 Application for a license.
6.25 Allocation of licenses.
6.26 Surrender and reallocation.
6.27 Limitations on use of license.
6.28 Transfer of license.
6.29 Use of licenses.
6.30 Record maintenance and inspection.
6.31 Debarment and suspension.
6.32 Globalization of licenses.
6.33 License fee.
6.34 Adjustment of Appendices.
6.35 Correction of errors.
6.36 Miscellaneous.
6.37 Supersedure of Import Regulation 1, Revision 7.

Appendixes 1-3 to Subpart--Dairy Tariff-Rate Import Quota Licensing

     Subpart_Price-Undercutting of Domestic Cheese by Quota Cheeses

6.40 General.
6.41 Definitions.
6.42 Complaints of price-undercutting.
6.43 Determinations.
6.44 Delegation of authority.

    Cross Reference: For United States International Trade Commission 
regulations on investigations of effects of imports on agricultural 
programs, see 19 CFR part 204.



                       Subpart_General Provisions

    Authority: Sec. 8, 65 Stat. 75; 19 U.S.C. 1365.

    Source: 17 FR 8287, Sept. 16, 1952; 19 FR 57, Jan. 6, 1954, unless 
otherwise noted.



Sec. 6.2  Responsibility for actions under section 22 and section 8(a).

    The primary responsibility within the Department of Agriculture for 
action on matters for which the Secretary is responsible under section 
22 of the Agricultural Adjustment Act of 1933, as amended, and section 
8(a) of the Trade Agreements Extension Act of 1951 is assigned to the 
Administrator, Foreign Agricultural Service (referred to in this part as 
the ``Administrator''), but the other offices, agencies, and bureaus of 
the Department whose activities will be affected by any action under 
section 22 or section 8(a) shall be consulted by the Administrator in 
discharging his responsibility under this part.



Sec. 6.3  Requests by interested persons for action by Department of 
Agriculture.

    (a) Section 22. A request for action under section 22 should be 
submitted in duplicate to the Administrator, Foreign Agricultural 
Service, United States Department of Agriculture, Washington 25, D.C. 
Such request shall include a statement of the reasons why action would 
be warranted under section 22 and shall be supported by appropriate 
information and data.
    (b) Section 8(a). A request for action under section 8(a) should be 
submitted in duplicate to the Administrator, Foreign Agricultural 
Service, United States Department of Agriculture, Washington 25, D.C. 
Such request shall include a statement of the reasons why

[[Page 306]]

the commodity is perishable, and why, due to such perishability, a 
condition exists requiring emergency treatment, and shall be supported 
by appropriate information and data. A request under section 8(a) 
submitted in connection with a proposed section 7 (Trade Agreements 
Extension Act of 1951) investigation shall not be acted upon until a 
section 7 application has been properly filed by the person making the 
request with the Tariff Commission, and a copy of such application and 
supporting information and data are furnished the Administrator.



Sec. 6.4  Investigations.

    (a) Section 22. The Administrator shall cause an investigation to be 
made whenever, based upon a request submitted pursuant to Sec. 6.3 or 
upon other information available to him, he determines that there is 
reasonable ground to believe that the imposition of import quotas or 
fees under section 22 may be warranted, or that the termination or 
modification of import quotas or fees in effect under section 22 may be 
warranted.
    (b) Section 8(a). The Administrator shall cause an immediate 
investigation to be made whenever (1) a request is received for 
emergency treatment in connection with an application properly filed 
with the Tariff Commission under section 7; (2) a request is received 
for emergency treatment under section 22 if the Administrator determines 
that there is reasonable ground to believe that the imposition of import 
quotas or fees under section 22 may be warranted; or (3) the 
Administrator, upon the basis of other information available to him, has 
reasonable ground for believing that emergency treatment under section 
8(a) is necessary. The Administrator shall expedite to the fullest 
practicable extent his attention to requests for emergency treatment 
under section 8(a), and such requests shall receive priority over 
requests for other action under section 22. The investigation shall 
cover (1) whether the commodity is a perishable agricultural commodity; 
(2) whether, due to the perishability of the commodity, a condition 
exists requiring emergency treatment as indicated by such factors as (i) 
the marketing season for the commodity, (ii) past and prospective 
domestic production, stocks, requirements, and prices, (iii) past and 
prospective imports; and (3) such other matters as the Administrator 
determines are relevant to a determination as to whether emergency 
treatment for the commodity is necessary. No public hearing shall be 
held in connection with investigations under this paragraph.



Sec. 6.5  Hearings under section 22.

    The Administrator is authorized to provide for such public hearings 
as he deems necessary to discharge the responsibility for action under 
section 22 vested in him by Sec. Sec. 6.2 and 6.4(a). In view of the 
need, however, for prompt action on requests for action under section 
22, public hearings shall be held in connection with investigations 
conducted under Sec. 6.4(a) only when the Administrator determines that 
a public hearing is necessary to obtain supplementary information not 
otherwise available. Any public hearing which is held shall be conducted 
by representatives designated for the purpose by the Administrator; 
shall be preceded by such public notice as, in the opinion of the 
Administrator, will afford interested persons reasonable opportunity to 
attend and present information; and minutes of the proceedings at such 
hearing shall be obtained. Hearings shall be informal and technical 
rules of evidence shall not apply. Such hearings are for the purpose of 
obtaining information for the assistance of the Secretary. However, in 
discharging his responsibilities under section 22, the Secretary is not 
restricted to the information adduced at the hearings.



Sec. 6.6  Submission of recommendations under section 22.

    (a) The Administrator shall make a report to the Secretary upon the 
completion of each investigation made by him pursuant to Sec. 6.4(a). 
The report shall summarize the information disclosed by the 
investigation; shall contain the recommendations of the Administrator; 
and, in case action under section 22 is recommended, shall be 
accompanied by a suggested letter from the Secretary to the President 
recommending that the Tariff Commission be

[[Page 307]]

directed to conduct an investigation. Such report shall be submitted to 
the other offices, agencies, and bureaus of the Department of 
Agriculture whose activities would be affected, for concurrence or 
comment.
    (b) The Secretary will recommend that the President direct the 
Tariff Commission to conduct an investigation under section 22 only if 
he has reason to believe, upon the basis of the information available to 
him, that import quotas or fees should be imposed.



Sec. 6.7  Submission of recommendations under section 8(a) (emergency 
treatment).

    (a) Section 22. The Administrator's report submitted pursuant to 
Sec. 6.6 shall indicate whether or not emergency treatment is 
necessary. If emergency treatment is recommended, the report shall 
discuss the condition which requires emergency treatment and be 
accompanied by suggested letters from the Secretary to the President, to 
the Tariff Commission, and to the petitioner (if any) advising them of 
the Secretary's determination. The suggested letter from the Secretary 
to the President shall include a recommendation as to whether such 
emergency treatment should take the form of action by the President 
prior to receiving the recommendations of the Tariff Commission, or 
whether a decision by the President may appropriately be withheld until 
the recommendations of the Tariff Commission are received. If emergency 
treatment requested is not recommended, the report to the Secretary 
shall be accompanied by suggested letters from the Secretary to the 
petitioner and the Tariff Commission stating the action taken.
    (b) Section 7. The Administrator shall make a report to the 
Secretary upon the completion of each investigation made by him pursuant 
to Sec. 6.4(b). The report shall summarize the information disclosed by 
the investigation, including the points listed in Sec. 6.4(b) which 
were considered in reaching the recommendation, and shall contain the 
recommendations of the Administrator as to whether or not emergency 
treatment is required. If emergency treatment is recommended, the report 
shall discuss the condition which requires emergency treatment and shall 
be accompanied by suggested letters from the Secretary to the President, 
to the Tariff Commission, and to the petitioner advising them of the 
Secretary's determination. The suggested letter from the Secretary to 
the President shall include a recommendation as to whether such 
emergency treatment should take the form of action by the President 
prior to receiving the recommendations of the Tariff Commission, or 
whether a decision by the President may appropriately be withheld until 
the recommendations of the Tariff Commission are received. If emergency 
treatment is not recommended, the report to the Secretary shall be 
accompanied by suggested letters from the Secretary to the petitioner 
and to the Tariff Commission stating the action taken. Each such report 
shall be submitted to the other offices, agencies, and bureaus of the 
Department of Agriculture whose activities would be affected, for 
concurrence or comment.



Sec. 6.8  Representation at Tariff Commission hearings.

    The Department of Agriculture shall be represented at all hearings 
conducted by the Tariff Commission under section 22 by persons 
designated by the Administrator, assisted by a representative of the 
Office of the General Counsel. Such representatives shall present the 
recommendations of the Department of Agriculture, shall submit such 
information and data in support thereof as are available, and shall 
exercise the right of examining other witnesses which is granted to the 
Secretary.

[17 FR 8287, Sept. 16, 1952; 20 FR 1830, Mar. 25, 1955]



Sec. 6.9  Information.

    Persons desiring information from the Department of Agriculture 
regarding section 22 or section 8(a), or any action with respect 
thereto, should address such inquiries to the Administrator, Foreign 
Agricultural Service, United States Department of Agriculture, 
Washington 25, DC.

[[Page 308]]



            Subpart_Dairy Tariff-Rate Import Quota Licensing

    Authority: Additional U.S. Notes 6, 7, 8, 12, 14, 16-23 and 25 to 
Chapter 4 and General Note 15 of the Harmonized Tariff Schedule of the 
United States (19 U.S.C. 1202), Pub. L. 97-258, 96 Stat. 1051, as 
amended (31 U.S.C. 9701), and secs. 103 and 404, Pub. L. 103-465, 108 
Stat. 4819 (19 U.S.C. 3513 and 3601).

    Source: 61 FR 53007, Oct. 9, 1996, unless otherwise noted.



Sec. 6.20  Introduction.

    (a) Presidential Proclamation 6763 of December 23, 1994, modified 
the Harmonized Tariff Schedule of the United States affecting the import 
regime for certain articles of dairy products. The Proclamation 
terminated quantitative restrictions that had been imposed pursuant to 
section 22 of the Agricultural Adjustment Act of 1933, as amended (7 
U.S.C. 624); proclaimed tariff-rate quotas for such articles pursuant to 
Pub. L. 103-465; and specified which of such articles may be entered 
only by or for the account of a person to whom a license has been issued 
by the Secretary of Agriculture.
    (b) Effective January 1, 1995, the prior regime of absolute quotas 
for certain dairy products was replaced by a system of tariff-rate 
quotas. The articles subject to licensing under the new tariff-rate 
quotas are listed in Appendices 1, 2, and 3 of this subpart. Licenses 
will be issued pursuant to the provisions of this subpart for the 1997 
and subsequent quota years. These licenses will permit the holder to 
import specified quantities of the subject articles into the United 
States at the applicable in-quota rate of duty. If an importer has no 
license for an article subject to a tariff-rate quota, such importer 
will, with certain exceptions, be required to pay the applicable over-
quota rate of duty.
    (c) The Secretary of Agriculture has determined that this subpart 
will, to the fullest extent practicable, result in fair and equitable 
allocation of the right to import articles subject to such tariff-rate 
quotas. The subpart will also maximize utilization of the tariff-rate 
quotas for such articles, taking due account of any special factors 
which may have affected or maybe affecting the trade in the articles 
concerned.



Sec. 6.21  Definitions.

    As used in this subpart and the Appendices thereto, the following 
terms mean:
    Article. One of the products listed in Appendices 1, 2, or 3 which 
are the same as those described in Additional U.S. Notes 6, 7, 8, 12, 
14, 16-23 and 25 to Chapter 4 of the Harmonized Tariff Schedule.
    Customs. The United States Customs Service.
    Country. Country of origin as determined in accordance with Customs 
rules and regulations, except that ``EC 12'', ``EC 15'', and ``Other 
countries'' shall each be treated as a country.
    Cheese or cheese products. Articles in headings 0406, 1901.90.34, 
and 1901.90.36 of the Harmonized Tariff Schedule.
    Commercial entry. Any entry except those made by or for the account 
of the United States Government or for a foreign government, for the 
personal use of the importer or for sampling, taking orders, research, 
or the testing of equipment.
    Dairy products. Articles in headings 0401 through 0406, margarine 
cheese listed under headings 1901.90.34 and 1901.90.36, ice cream listed 
under heading 2105, and casein listed under heading 3501 of the 
Harmonized Tariff Schedule.
    Department. The United States Department of Agriculture.
    EC 12. Belgium, Denmark, the Federal Republic of Germany, France, 
Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, 
and the United Kingdom.
    EC 15. Austria, Belgium, Denmark, the Federal Republic of Germany, 
Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, 
Portugal, Spain, Sweden and the United Kingdom.
    Enter or Entry. To make or making entry for consumption, or 
withdrawal from warehouse for consumption in accordance with Customs 
regulations and procedures.
    Harmonized Tariff Schedule or HTS. The Harmonized Tariff Schedule of 
the United States.

[[Page 309]]

    Licensee. A person to whom a license has been issued under this 
subpart.
    Licensing Authority. Any officer or employee of the U.S. Department 
of Agriculture designated to act in this position by the Director of the 
Division charged with managing the Dairy Tariff-Rate Import Quota 
Licensing System, currently the Import Policies and Programs Division of 
the Foreign Agricultural Service.
    Other countries. Countries not listed by name as having separate 
tariff-rate quota allocations for an article in the Additional U.S. 
Notes to Chapter 4 of the Harmonized Tariff Schedule.
    Person. An individual, firm, corporation, partnership, association, 
trust, estate or other legal entity.
    Postmark. The postage cancellation mark or date applied by the 
United States Postal Service. This does not include the date on metered 
postage affixed by the applicant, or on mail delivered by private 
entities.
    Process or Processing. Any additional preparation of a dairy 
product, such as melting, grating, shredding, cutting and wrapping, or 
blending with any additional ingredient.
    Quota year. The 12-month period beginning on January 1 of a given 
year.
    Tariff-rate quota amount or TRQ amount. The amount of an article 
subject to the applicable in-quota rate of duty established under a 
tariff-rate quota.
    United States. The customs territory of the United States, which is 
limited to the 50 states, the District of Columbia, and Puerto Rico.

[61 FR 53007, Oct. 9, 1996, as amended at 65 FR 1298, Jan. 10, 2000]



Sec. 6.22  Requirement for a license.

    (a) General rule. A person who seeks to enter, or cause to be 
entered, an article shall obtain a license, in accordance with this 
subpart, except as provided in paragraph (b).
    (b) Exceptions. Licenses are not required if:
    (1) The article is imported by or for the account of any agency of 
the U.S. Government;
    (2) The article is imported for the personal use of the importer, 
provided that the net weight does not exceed five kilograms in any one 
shipment;
    (3) The article imported will not enter the commerce of the United 
States and is imported as a sample for taking orders, for exhibition, 
for display or sampling at a trade fair, for research, for testing of 
equipment; or for use by embassies of foreign governments. Written 
approval of the Licensing Authority shall be obtained prior to entry, 
and the importer of record (or a broker or agent acting on its behalf) 
shall provide to the Licensing Authority, prior to the release of such 
articles, the appropriate Customs documentation identifying the article, 
quantity to be imported, its location, intended use, an entry number and 
the importer of record. The Licensing Authority may also require as a 
condition of import that the article be destroyed or re-exported after 
such use; or
    (4) Such person pays the applicable over-quota rate of duty.



Sec. 6.23  Eligibility to apply for a license.

    (a) In general. To apply for any license, a person shall have:
    (1) A business office, and be doing business, in the United States, 
and
    (2) An agent in the United States for service of process.
    (b) Eligibility for the 1997 and subsequent quota years--(1) 
Historical licenses (Appendix 1). Any person issued a historical or 
nonhistorical license for the 1996 quota year for an article may apply 
for a historical license (Appendix 1) for the same article from the same 
country for the 1997 and subsequent quota years, if such person was, 
during the 12-month period ending August 31 prior to the quota year, 
either:
    (i) Where the article is cheese or cheese product,
    (A) The owner of and importer of record for at least three separate 
commercial entries of cheese or cheese products totaling not less than 
57,000 kilograms net weight, each of the three entries not less than 
2,000 kilograms net weight,
    (B) The owner of and importer of record for at least eight separate 
commercial entries of cheese or cheese products, from at least eight 
separate shipments, totaling not less than 19,000 kilograms net weight, 
each of the eight entries not less than 450 kilograms net weight, with a 
minimum of two entries

[[Page 310]]

in each of at least three quarters during that period; or
    (C) The owner or operator of a plant listed in Section II or listed 
in Section I as a processor of cheese of the most current issue of 
``Dairy Plants Surveyed and Approved for USDA Grading Service'' and had 
processed or packaged at least 450,000 kilograms of cheese or cheese 
products in its own plant in the United States; or
    (ii) Where the article is not cheese or cheese product,
    (A) The owner of and importer of record for at least three separate 
commercial entries of dairy products totaling not less than 57,000 
kilograms net weight, each of the three entries not less than 2,000 
kilograms net weight;
    (B) The owner of and importer of record for at least eight separate 
commercial entries of dairy products, from at least eight separate 
shipments, totaling not less than 19,000 kilograms net weight, each of 
the eight entries not less than 450 kilograms net weight, with a minimum 
of two entries in each of at least three quarters during that period;
    (C) The owner or operator of a plant listed in the most current 
issue of ``Dairy Plants Surveyed and Approved for USDA Grading Service'' 
and had manufactured, processed or packaged at least 450,000 kilograms 
of dairy products in its own plant in the United States; or
    (D) The exporter of dairy products in the quantities and number of 
shipments required under (A) or (B) above.
    (2) Certain butter. A person issued a nonhistorical license for 
butter for the 1997 or 1998 quota year may annually apply for a 
historical license (Appendix 1) for the same quantity of butter for the 
subsequent quota year and each year thereafter, provided that such 
person has used at least 90 percent of the original license issued for 
the previous quota year and meets the requirements of paragraph 
(b)(1)(ii). However, if a person is issued a historical license pursuant 
to this paragraph, that person may not be issued a nonhistorical license 
for butter for any quota year in which that historical license is issued 
to that person, unless applicants who do not hold such a license have 
all been issued such a nonhistorical license.
    (3) Nonhistorical licenses for cheese or cheese products (Appendix 
2). A person may annually apply for a nonhistorical license for cheese 
or cheese products (Appendix 2) for the 1997 quota year and each quota 
year thereafter if such person meets the requirements of paragraph 
(b)(1)(i) of this section.
    (4) Nonhistorical licenses for articles other than cheese or cheese 
products (Appendix 2). A person may annually apply for a nonhistorical 
license for articles other than cheese or cheese products (Appendix 2) 
for the 1997 quota year and each quota year thereafter if such person 
meets the requirements of paragraph (b)(1)(ii).
    (5) Designated license (Appendix 3). A person may annually apply for 
a designated license (Appendix 3) for the 1997 quota year and for each 
quota year thereafter, provided that such person meets the requirements 
of paragraph (b)(1)(i), of this section and provided further that the 
government of the country has designated such person for such license. 
The designating country shall submit its selection of designated 
importers in writing directly to the Licensing Authority not later than 
October 31 prior to the beginning of the quota year.
    (c) Exceptions. (1) A licensee that fails in a quota year to enter 
at least 85 percent of the amount of an article permitted under a 
license, shall not be eligible to receive a license for the same article 
from the same country for the next quota year. For the purpose of this 
paragraph, the amount of an article permitted under the license will 
exclude any amounts surrendered pursuant to Sec. 6.26(a), but will 
include any additional allocations received pursuant to Sec. 6.26(b).
    (2) Paragraph (c)(1) of this section will not apply where the 
licensee demonstrates to the satisfaction of the Licensing Authority 
that the failure resulted from breach by a carrier of its contract of 
carriage, breach by a supplier of its contract to supply the article, 
act of God or force majeure.
    (3) Paragraph (c)(1) of this section may not apply in the case of 
historical or nonhistorical licenses, where the licensee demonstrates to 
the satisfaction of the Licensing Authority that the

[[Page 311]]

country specified on the license maintains or permits an export monopoly 
to control the dairy articles concerned and the licensee petitions the 
Licensing Authority to waive this requirement. The licensee shall submit 
evidence that the country maintains an export monopoly as defined in 
this paragraph. For the purposes of this paragraph ``export monopoly'' 
means a privilege vested in one or more persons consisting of the 
exclusive right to carry on the exportation of any article of dairy 
products from a country to the United States.
    (4) The Licensing Authority will not issue a nonhistorical license 
(Appendix 2) for an article from a country during a quota year to an 
applicant who is affiliated with another applicant to whom the Licensing 
Authority is issuing a non-historical license for the same article from 
the same country for that quota year. Further, the Licensing Authority 
will not issue a nonhistorical license for butter to an applicant who is 
affiliated with another applicant to whom the Licensing Authority is 
issuing a historical butter license of 57,000 kilograms or greater. For 
the purpose of this paragraph, an applicant will be deemed affiliated 
with another applicant if:
    (i) The applicant is the spouse, brother, sister, parent, child or 
grandchild of such other applicant;
    (ii) The applicant is the spouse, brother, sister, parent, child or 
grandchild of an individual who owns or controls such other applicant;
    (iii) The applicant is owned or controlled by the spouse, brother, 
sister, parent, child or grandchild of an individual who owns or 
controls such other applicant.
    (iv) Both applicants are 5 percent or more owned or directly or 
indirectly controlled, by the same person;
    (v) The applicant, or a person who owns or controls the applicant, 
benefits from a trust that controls such other applicant.
    (5) The Licensing Authority will not issue a nonhistorical license 
(Appendix 2) for an article from a country during a quota year to an 
applicant who is associated with another applicant to whom the Licensing 
Authority is issuing a nonhistorical license for the same article from 
the same country for that quota year. Further, the Licensing Authority 
will not issue a nonhistorical license for butter to an applicant who is 
associated with another applicant to whom the Licensing Authority is 
issuing a historical butter license for 57,000 kilograms or greater. For 
the purpose of this paragraph, an applicant will be deemed associated 
with another applicant if:
    (i) The applicant is an employee of, or is controlled by an employee 
of, such other applicant;
    (ii) The applicant manages or is managed by such other applicant, or 
economically benefits, directly or indirectly, from the use of the 
license issued to such other applicant.
    (6) The Licensing Authority will not issue a nonhistorical license 
for an article from a country, for which the applicant receives a 
designated license.



Sec. 6.24  Application for a license.

    (a) Application for license shall be made on either paper or 
electronic forms, provided or designated by the Licensing Authority, and 
shall be submitted in accordance with Sec. 6.36(b). All parts of the 
application shall be completed. The application, if mailed, shall be 
postmarked no earlier than September 1 and no later than midnight 
October 15 of the year preceding that for which license application is 
made. The application, if submitted electronically, shall be transmitted 
no earlier than September 1 and no later than midnight October 15 of the 
year preceding that for which license application is made. The Licensing 
Authority will not accept incomplete applications or unpostmarked mailed 
applications.
    (b)(1) Where the applicant seeks to establish eligibility on the 
basis of imports, applications shall include identification of entries 
(if submitted electronically) or Customs Form 7501 (if submitted by 
mail), sufficient to establish the applicant as the importer of record 
of entries required under Sec. 6.23, during the 12-month period ending 
August 31 prior to the quota year for which license is being sought.
    (2) Where the applicant seeks to establish eligibility on the basis 
of exports, applications shall include:

[[Page 312]]

    (i) Census Form 7525 or a copy of the electronic submission of such 
form, and
    (ii) The commercial invoice or bill of sale for the quantities and 
number of export shipments required under Sec. 6.23, during the 12-
month period ending August 31 prior to the quota year for which license 
is being sought.
    (c) However, if the applicant is applying on the basis of more than 
eight shipments, the application, if mailed, shall include:
    (1) The required documentary evidence for eight shipments;
    (2) A signed certification that the remaining required documents are 
on file at the applicant's premises; and
    (3)(i) If the application is made on the basis of imports, a listing 
of the entry numbers, dates of entry and volumes on those remaining 
documents; or
    (ii) If the application is made on the basis of exports, a listing 
of the dates of export and volumes on those documents.
    (d) An applicant requesting more than one nonhistorical license must 
rank order these requests by the applicable Additional U.S. Note number. 
Cheese and cheese products must be ranked separately from dairy articles 
which are not cheese or cheese products.

[61 FR 53007, Oct. 9, 1996, as amended at 69 FR 59763, Oct. 6, 2004]



Sec. 6.25  Allocation of licenses.

    (a) Historical licenses for the 1997 quota year (Appendix 1). (1) A 
person issued a historical license for the 1996 quota year will be 
issued a historical license for the 1997 quota year in an amount equal 
to the Basic Annual Allocation level used by the Licensing Authority for 
the 1996 quota year provided that such person meets the requirements of 
Sec. 6.23(b)(1) and Sec. 6.23(c).
    (2) A person issued a nonhistorical license for the 1996 quota year 
will be issued a historical license for the 1997 quota year for the same 
quantity as the license for the 1996 quota year, provided that such 
person meets the requirements of Sec. 6.23.
    (3) If a person was issued more than one historical license, or one 
or more historical licenses and a nonhistorical license, for the same 
article from the same country for the 1996 quota year, such person will 
be issued a single historical license for the 1997 quota year, the 
amount of which shall be determined in accordance with paragraphs, (a) 
(1) and (2) of this section.
    (b) Historical licenses for the 1998 and subsequent quota years 
(Appendix 1). (1) A person issued a historical license for the 1997 
quota year will be issued a historical license in the same amount for 
the same article from the same country for the 1998 quota year and for 
each subsequent quota year except that:
    (i) Beginning with the 1999 quota year, a person who has surrendered 
more than 50 percent of such historical license in each of the prior 
three quota years will thereafter be issued a license in an amount equal 
to the average annual quantity entered during those three quota years; 
and
    (ii) Beginning with the quota year 2001, a person who has 
surrendered more than 50 percent of such historical license in at least 
three of the prior five quota years will thereafter be issued a license 
in an amount equal to the average annual quantity entered during those 
five quota years.
    (2) However, prior to the beginning of the 1999 quota year, the 
Secretary of Agriculture may determine that the exceptions in paragraphs 
(b)(1) (i) and (ii) of this section shall not apply in light of market 
conditions.
    (c) Nonhistorical licenses (Appendix 2). The Licensing Authority 
will allocate nonhistorical licenses on the basis of a rank-order 
lottery system, which will operate as follows:
    (1) The minimum license size shall be:
    (i) Where the article is cheese or cheese product:
    (A) The total amount available for nonhistorical license where such 
amount is less than 9,500 kilograms;
    (B) 9,500 kilograms where the total amount available for 
nonhistorical license is between 9,500 kilograms and 500,000 kilograms, 
inclusive;
    (C) 19,000 kilograms where the total amount available for 
nonhistorical license is between 500,001 kilograms and 1,000,000 
kilograms, inclusive;

[[Page 313]]

    (D) 38,000 kilograms where the total amount available for 
nonhistorical license is greater than 1,000,000 kilograms; or
    (E) An amount less than the minimum license size established in 
paragraphs (c)(1)(i) (A) through (D) of this section, if requested by 
the licensee;
    (ii) Where the article is not cheese or cheese product:
    (A) The total amount available for nonhistorical license where such 
amount is less than 19,000 kilograms;
    (B) 19,000 kilograms where the total amount available for 
nonhistorical license is between 19,000 kilograms and 550,000 kilograms, 
inclusive;
    (C) 38,000 kilograms where the total amount available for 
nonhistorical license is between 550,001 kilograms and 1,000,000 
kilograms, inclusive; and
    (D) 57,000 kilograms where the total amount available for 
nonhistorical license is greater than 1,000,000 kilograms;
    (E) An amount less than the minimum license sizes established in 
paragraphs (c)(1)(i) (A) through (D) of this section, if requested by 
the licensee.
    (2) Taking into account the order of preference expressed by each 
applicant, as required by Sec. 6.24(c), the Licensing Authority will 
allocate licenses for an article from a country by a series of random 
draws. A license of minimum size will be issued to each applicant in the 
order established by such draws until the total amount of such article 
in Appendix 2 has been allocated. An applicant that receives a license 
for an article will be removed from the pool for subsequent draws until 
every applicant has been allocated at least one license, provided that 
the licenses for which they applied are not already fully allocated. Any 
amount remaining after the random draws which is less than the 
applicable minimum license size may, at the discretion of the Licensing 
Authority, be prorated equally among the licenses awarded for that 
article.
    (d) Designated licenses (Appendix 3). (1) With respect to an article 
listed in Appendix 3, the government of the applicable country may, not 
later than October 31 prior to the beginning of a quota year, submit 
directly and in writing to the Licensing Authority:
    (i) The names and addresses of the importers that it is designating 
to receive licenses; and
    (ii) The amount, in percentage terms, of such article for which each 
such importer is being designated. Where quantities for designation 
result from both Tokyo Round concessions and Uruguay Round concessions, 
the designations should be made in terms of each.
    (2) To the extent practicable, the Licensing Authority will issue 
designated licenses to those importers, and in those amounts, indicated 
by the government of the applicable country, provided that the importer 
designated meets the eligibility requirements set forth in Sec. 6.23. 
Consistent with the international obligations of the United States, the 
Licensing Authority may disregard a designation if the Licensing 
Authority determines that the person designated is not eligible for any 
of the reasons set forth in Sec. 6.23(c) (1) or (2).
    (3) If a government of a country which negotiated in the Uruguay 
Round for the right to designate importers has not done so, but 
determines to designate importers for the next quota year, it shall 
indicate its intention to do so directly and in writing to the Licensing 
Authority not later than July 1 prior to the beginning of such next 
quota year. Furthermore, if a government that has designated importers 
for a quota year determines that it will not continue to designate 
importers for the next quota year, it shall so indicate directly and in 
writing to the Licensing Authority, not later than July 1 prior to such 
next quota year.

    Effective Date Note: At 63 FR 13481, Mar. 20, 1998, in Sec. 6.25, 
paragraphs (b)(1) (i) and (ii) were suspended indefinitely.



Sec. 6.26  Surrender and reallocation.

    (a) If a licensee determines that it will not enter the entire 
amount of an article permitted under its license, such licensee shall 
surrender its license right to enter the amount that it does not intend 
to enter. Surrender shall be made to the Licensing Authority in writing 
by mail or electronic submission, postmarked or electronically 
submitted, in accordance with Sec. 6.36(b), no later than October 1. 
Any surrender shall be final and shall be only for that quota year, 
except as provided in

[[Page 314]]

Sec. 6.25(b). The amount of the license not surrendered shall be 
subject to the license use requirements of Sec. 6.23(c)(1).
    (b) For each quota year, the Licensing Authority will, to the extent 
practicable, reallocate any amounts surrendered.
    (c) Any person who has been issued a license for a quota year may 
apply to receive additional license, or addition to an existing license 
for a portion of the amount being reallocated. The application shall be 
submitted to the Licensing Authority by mail or electronic submission, 
in accordance with Sec. 6.36(b), no earlier than September 1 and not 
later than September 15, and shall specify:
    (1) The name and control number of the applicant;
    (2) The article and country being requested, the applicable 
Additional U.S. Note number and, if more than one article is requested, 
a rank-order by Additional U.S. Note number; and
    (3) If applicable, the number of the license issued to the applicant 
for that quota year permitting entry of the same article from the same 
country.
    (d) The Licensing Authority will reallocate surrendered amounts 
among applicants as follows:
    (1) The minimum license size, or addition to an existing license, 
will be the total amount of the article from a country surrendered, or 
10,000 kilograms, whichever is less;
    (2) Minimum size licenses, or additions to an existing license, will 
be allocated among applicants requesting articles on the basis of the 
rank-order lottery system described in Sec. 6.25(c);
    (3) If there is any amount of an article from a country left after 
minimum size licenses have been issued, the Licensing Authority may 
allocate the remainder in any manner it determines equitable among 
applicants who have requested that article; and
    (4) No amount will be reallocated to a licensee who has surrendered 
a portion of its license for the same article from the same country 
during that quota year unless all other licensees applying for a 
reallocated quantity have been allocated a license;
    (e) However, if the government of an exporting country chooses to 
designate eligible importers for surrendered amounts under Appendix 3, 
the Licensing Authority shall issue the licenses in accordance with 
Sec. 6.25(d)(2), provided that the government of the exporting country 
notifies the Licensing Authority of its designations no later than 
September 1. Such notification shall contain the names and addresses of 
the importers that it is designating and the amount in percentage terms 
of such article for which each importer is being designated. In such 
case the requirements of paragraph (c) of this section shall not apply.
    (f) Except for paragraph (a), the provisions of Sec. 6.26 for 
surrendered and reallocated tariff-rate quota shares do not apply for 
the 1996 quota year. Reissued tariff-rate quota shares for licenses 
surrendered during 1996 will be made pursuant to the provisions in 
effect for the 1996 quota year (Sec. 6.26(f)(2) as contained in 7 CFR 
subtitle A, revised as of January 1, 1996).

[61 FR 53007, Oct. 9, 1996, as amended at 69 FR 59764, Oct. 6, 2004]



Sec. 6.27  Limitations on use of license.

    (a) A licensee shall not obtain or use a license for speculation, 
brokering, or offering for sale, or permit any other person to use the 
license for profit.
    (b) A licensee who is eligible as a manufacturer or processor, 
pursuant to Sec. 6.23, shall process at least 75 percent of its 
licensed imports in such person's own facilities and maintain the 
records necessary to so substantiate.



Sec. 6.28  Transfer of license.

    (a) If a licensee sells or conveys its business involving articles 
covered by this subpart to another person, including the complete 
transfer of the attendant assets, the Licensing Authority will transfer 
to such other person the historical, nonhistorical or designated license 
issued for that quota year. Such sale or conveyance must be 
unconditional, except that it may be in escrow with the sole condition 
for return of escrow being that the Licensing Authority determines that 
such sale does not meet the requirements of this paragraph.
    (b) The parties seeking transfer of license shall give written 
notice to the Licensing Authority of the intended

[[Page 315]]

sale or conveyance described in paragraph (a) of this section by mail as 
required in Sec. 6.36(b). The notice must be received by the Licensing 
Authority at least 20 working days prior to the intended consummation of 
the sale or conveyance. Such written notice shall include copies of the 
documents of sale or conveyance. The Licensing Authority will review the 
documents for compliance with the requirements of paragraph (a) of this 
section and advise the parties in writing of its findings by the end of 
the 20-day period. The parties shall have the burden of demonstrating to 
the satisfaction of the Licensing Authority that the contemplated sale 
or conveyance complies with the requirements of paragraph (a) of this 
section. Within 15 days of the consummation of the sale or conveyance, 
the parties shall mail copies of the final documents to the Licensing 
Authority, in accordance with Sec. 6.36(b). The Licensing Authority 
will not transfer the licenses unless the documents are submitted in 
accordance with this paragraph.
    (c) The eligibility for a license of a person to whom a business is 
sold or conveyed will be determined for the next quota year in 
accordance with Sec. 6.23. For the purposes of Sec. 6.23(b)(1) the 
person to whom a business is sold or conveyed shall be deemed to be the 
person to whom the historical licenses were issued during the quota year 
in which the sale or conveyance occurred. Further, for the purposes of 
Sec. 6.23 (b) and (c), the entries made under such licenses by the 
original licensee during the year in which the sale of conveyance is 
made, shall be considered as having been made by the person to whom the 
business was sold or conveyed.

[61 FR 53007, Oct. 9, 1996, as amended at 69 FR 59764, Oct. 6, 2004]



Sec. 6.29  Use of licenses.

    (a) An article entered under a license shall be an article produced 
in the country specified on the license.
    (b) An article entered or withdrawn from warehouse for consumption 
under a license must be entered in the name of the licensee as the 
importer of record by the licensee or its agent, and must be owned by 
the licensee at the time of such entry.
    (c) If the article entered or withdrawn from warehouse for 
consumption was purchased by the licensee through a direct sale from a 
foreign supplier, the licensee shall present, at the time of entry:
    (1) A true and correct copy of a through bill of lading from the 
country; and
    (2) A commercial invoice or bill of sale from the seller, showing 
the quantity and value of the product, the date of purchase and the 
country; or
    (3) Where the article was entered into warehouse by the foreign 
supplier, Customs Form 7501 endorsed by the foreign supplier and the 
commercial invoice.
    (d) If the article entered was purchased by the licensee via sale-
in-transit, the licensee shall present, at the time of entry:
    (1) A true and correct copy of a through bill of lading endorsed by 
the original consignee of the goods;
    (2) A certified copy of the commercial invoice or bill of sale from 
the foreign supplier to the original consignee of the goods; and
    (3) A commercial invoice or bill of sale from the original consignee 
to the licensee.
    (e) If the article entered was purchased by the licensee in 
warehouse, the licensee shall present, at the time of entry:
    (1) Customs Form 7501 endorsed by the original consignee of the 
goods;
    (2) A certified copy of the commercial invoice or bill of sale from 
the foreign supplier to the original consignee of the goods; and
    (3) A commercial invoice or bill of sale from the original consignee 
to the licensee.
    (f) The Licensing Authority may waive the requirements of paragraphs 
(c), (d) or (e), if it determines that because of strikes, lockouts or 
other unusual circumstances, compliance with those requirements would 
unduly interfere with the entry of such articles.
    (g) Nothing in this subpart shall prevent the use of immediate 
delivery in accordance with the provisions of Customs regulations 
relating to tariff-rate quotas.

[[Page 316]]



Sec. 6.30  Record maintenance and inspection.

    A licensee shall retain all records relating to its purchases, sales 
and transactions governed by this subpart, including all records 
necessary to establish the licensee's eligibility, for five years 
subsequent to the end of the quota year in which such purchases, sales 
or transactions occurred. During that period, the licensee shall, upon 
reasonable notice and during ordinary hours of business, grant officials 
of the U.S. Department of Agriculture full and complete access to the 
licensee's premises to inspect, audit or copy such records.



Sec. 6.31  Debarment and suspension.

    7 CFR part 3017--Governmentwide Debarment and Suspension 
(Nonprocurement) and Government Requirements for Drug-Free Workplace 
(Grants), Subparts A through E, applies to this subpart.



Sec. 6.32  Globalization of licenses.

    If the Licensing Authority determines that entries of an article 
from a country are likely to fall short of that country's allocated 
amount as indicated in Appendices 1, 2, and 3, the Licensing Authority 
may permit, with the approval of the Office of the United States Trade 
Representative, the applicable licensees to enter the remaining balance 
or a portion thereof from any country during that quota year. Requests 
for consideration of such adjustments must be submitted to the Licensing 
Authority no later than September 1. The Licensing Authority will obtain 
prior consent for such an adjustment of licenses from the government of 
the exporting country for quantities in accordance with the Uruguay 
Round commitment of the United States.



Sec. 6.33  License fee.

    (a) A fee will be assessed each quota year for each license to 
defray the Department's costs of administering the licensing system. To 
the extent practicable, the fee will be announced by the Licensing 
Authority in a notice published in the Federal Register no later than 
August 31 of the year preceding the quota year for which the fee is 
assessed.
    (b) The license fee for each license issued is due and payable in 
full by mail or electronic submission, postmarked or electronically 
submitted in accordance with Sec. 6.36(b), no later than May 1 of the 
year for which the license is issued. The fee for any license issued 
after May 1 of any quota year is due and payable in full by mail or 
electronic submission, postmarked or electronically submitted in 
accordance with Sec. 6.36(b), no later than 30 days from the date of 
issuance of the license. Fee payments, if made by mail, shall be made by 
certified check or money order payable to the Treasurer of the United 
States. Fee payments, if made electronically, shall be made utilizing 
the electronic software designated for the purpose by the Licensing 
Authority.
    (c) If the license fee is not paid by the final payment date, a hold 
will be placed on the use of the license and no articles will be 
permitted entry under that license. The Licensing Authority shall send a 
warning letter by certified mail, return receipt requested, advising the 
licensee that if payment is not mailed in accordance with Sec. 6.36(b) 
or received within 21 days from the date of the letter, that the license 
will be revoked. Where the license at issue is a historical license, 
this will result, pursuant to Sec. 6.23(b), in the person's loss of 
historical eligibility for such license.
    (d) Licensees may elect not to accept certain licenses issued to 
them; however, the Licensing Authority must be so notified by mail or 
electronic e-mail, postmarked or electronically submitted in accordance 
with Sec. 6.36(b) no later than May 1 of the year for which the license 
is issued.

[61 FR 53007, Oct. 9, 1996, as amended at 69 FR 59764, Oct. 6, 2004]



Sec. 6.34  Adjustment of Appendices.

    (a) Whenever a historical license (Appendix 1) is not issued to an 
applicant pursuant to the provisions of Sec. 6.23, is permanently 
surrendered or is revoked by the Licensing Authority, the amount of such 
license will be transferred to Appendix 2.
    (b) The cumulative annual transfers to Appendix 2 made in accordance 
with paragraph (a) will be published in the Federal Register. If a 
transfer results

[[Page 317]]

in the addition of a new article, or an article from a country not 
previously listed in Appendix 2, the Licensing Authority shall afford 
all eligible applicants for that quota year the opportunity to apply for 
a license for such article.



Sec. 6.35  Correction of errors.

    (a) If a person demonstrates, to the satisfaction of the Licensing 
Authority, that errors were made by officers or employees of the United 
States Government, the Licensing Authority will review and rectify the 
errors to the extent permitted under this subpart.
    (b) To be considered, a person must provide sufficient documentation 
regarding the error to the Licensing Authority by letter, postmarked not 
later than August 31 of the calendar year following the calendar year in 
which the error was alleged to have been committed.
    (c) If the error resulted in the loss of a historical license by a 
license holder, the Licensing Authority will transfer the amount of such 
license from Appendix 2 to Appendix 1 in order to provide for the 
issuance of such license in the calendar year following the calendar 
year for which the license was revoked. The cumulative annual transfers 
to Appendix 1 in accordance with this paragraph will be published in the 
Federal Register.

[65 FR 1298, Jan. 10, 2000]



Sec. 6.36  Miscellaneous.

    (a) If any deadline date in this subpart falls on a Saturday, Sunday 
or a Federal holiday, then the deadline shall be the next business day.
    (b) All submissions required under this subpart shall be made either 
by registered or certified mail, return receipt requested, with a 
postmarked receipt, with proper postage affixed and properly addressed 
to the Dairy Import Licensing Group, STOP 1021, U.S. Department of 
Agriculture, 1400 Independence Avenue SW., Washington DC 20250-1021, or 
by electronic submission utilizing the electronic software designated 
for this purpose by the Licensing Authority.

[61 FR 53007, Oct. 9, 1996. Redesignated at 65 FR 1298, Jan. 10, 2000; 
69 FR 59764, Oct. 6, 2004]



Sec. 6.37  Supersedure of Import Regulation 1, Revision 7.

    This subpart will supersede the provisions of Import Regulation 1, 
Revision 7 heretofore in effect (Sec. Sec. 6.20 through 6.33 and 
appendices 1 through 3 as contained in 7 CFR subtitle A revised as of 
January 1, 1996). With respect to any violation of the provisions of 
that regulation by a licensee prior to the effective date hereof, the 
provisions of that regulation will be deemed to continue in full force; 
however, the debarment and suspension of Sec. 6.31 of this subpart 
shall apply with respect to any violation of that regulation.

[61 FR 53007, Oct. 9, 1996. Redesignated at 65 FR 1298, Jan. 10, 2000]

[[Page 318]]

   Appendixes 1-3 to Subpart--Dairy Tariff-Rate Import Quota Licensing
[GRAPHIC] [TIFF OMITTED] TR02JN05.000


[[Page 319]]


[GRAPHIC] [TIFF OMITTED] TR02JN05.001


[[Page 320]]


[GRAPHIC] [TIFF OMITTED] TR02JN05.002


[[Page 321]]


[GRAPHIC] [TIFF OMITTED] TR02JN05.003


[69 FR 27819, May 17, 2004, as amended at 70 FR 32219, June 2, 2005]



     Subpart_Price-Undercutting of Domestic Cheese by Quota Cheeses

    Authority: Sec. 702, Pub. L. 96-39, 93 Stat. 144, 19 U.S.C. 1202 
note.

    Source: 45 FR 9883, Feb. 13, 1980, unless otherwise noted.



Sec. 6.40  General.

    This subpart sets forth the procedures applicable to the 
determination by the Secretary of Agriculture as to whether the price at 
which any article of quota cheese is being offered for sale in the 
United States on a duty-paid wholesale basis is less than the domestic 
wholesale market price of similar articles produced in the United States 
(i.e., price-undercutting) in accordance with section 702 of the Trade 
Agreements Act of 1979 (Pub. L. 96-39, 93 Stat. 144, 19 U.S.C. 1202 
note) (hereinafter referred to as the Act).

[[Page 322]]



Sec. 6.41  Definitions.

    (a) Complainant means the person who has filed with the 
Investigating Authority, in accordance with the procedures set forth in 
this subpart, a written complaint alleging that price-undercutting is 
occurring.
    (b) Country of origin means the country, as defined in 19 CFR 
134.1(b), in which the quota article subject to this regulation was 
produced or manufactured.
    (c) Foreign government means the government of the country of origin 
or, for purposes of determining whether a subsidy has been provided for 
the member states of the European Economic Community, the subsidy 
granting bodies of the European Economic Community.
    (d) Investigating Authority means the Director, Dairy, Livestock and 
Poultry Division, Commodity Programs, Foreign Agricultural Service.
    (e) Quota cheese means the articles provided for in the following 
items of the Tariff Schedules of the United States:

117.00 (except Stilton produced in the United Kingdom);
117.05 (except Stilton produced in the United Kingdom);
117.15;
117.20;
117.25;
117.42;
117.44;
117.55;
117.60 (except Gammelost and Nokkelost);
117.75 (except goat's milk cheeses and soft-ripened cow's milk cheeses);
117.81;
117.86;
117.88 (except goat's milk cheeses and soft-ripened cow's milk cheeses);

    (f) Secretary means the Secretary of Agriculture.
    (g) Subsidy has the same meaning as such term has in section 771(5) 
of the Tariff Act of 1930 as added by section 101 of the Trade 
Agreements Act of 1979 (19 USC 1677(5)).
    (h) The United States means the Customs Territory of the United 
States, which is limited to the United States, District of Columbia and 
Puerto Rico.



Sec. 6.42  Complaints of price-undercutting.

    (a) Submission of complaint. Any person who has reason to believe 
that the price at which any article of quota cheese is offered for sale 
or sold in the United States on a duty-paid wholesale price basis is 
less than the domestic wholesale market price of similar articles 
produced in the United States and that a foreign government is providing 
a subsidy with respect to such article of quota cheese may file with the 
Investigating Authority a written complaint making such allegation.
    (b) Contents of complaint. Such complaint shall contain, or be 
accompanied by, information to substantiate complainant's allegations, 
in substantially the following form:
    (1) The name and address of the complainant.
    (2) The location of the domestic wholesale market in which price-
undercutting is alleged to be occurring.
    (3) The article of quota cheese involved in the alleged price-
undercutting.
    (4) The country of origin of such article of quota cheese.
    (5) The similar domestic article, the price of which the complainant 
believes is being undercut.
    (6) The month and year that the complainant first concluded that the 
price-undercutting was taking place.
    (7) To extent known to the complainant, all pertinent facts with 
regard to the alleged subsidy, and, if known, the statutory or other 
authority under which it is paid, the manner in which it is paid, and 
the value of such subsidy when received and used by producers or sellers 
of such quota cheese.
    (8) All other information which the complainant believes 
substantiates the allegation of price-undercutting, including the 
complainant's estimate of the domestic wholesale market price of the 
similar article produced in the United States and the duty-paid 
wholesale price of the quota cheese involved. If available, samples of 
the domestic and imported cheese products should be submitted.



Sec. 6.43  Determinations.

    (a) Making determinations. Not later than 30 days after receiving an 
acceptable complaint, as described in Sec. 6.42(b), alleging price-
undercutting, the Secretary shall make a determination as to the 
validity of the allegation. In

[[Page 323]]

making such determination, the following shall apply:
    (1) The ``domestic wholesale market'' shall be one or more of the 
three major U.S. market areas, viz., New York City, Chicago, and San 
Francisco, and/or any other market area within the Customs Territory of 
the United States, which the Investigating Authority determines most 
representative of the area specified by the complainant as the one in 
which price-undercutting is alleged to be occurring (hereinafter 
referred to as ``designated area'').
    (2) The ``duty-paid wholesale price'' determined by the 
Investigating Authority shall be the average of prices at which 
wholesalers have sold or offered for sale in the designated area the 
article of quota cheese alleged to be involved in price-undercutting, as 
obtained in a survey directed by the Investigating Authority during the 
investigation: Provided, That whenever the designated area is not or 
does not include one of the major market areas specified in paragraph 
(a)(1) of this section, the Investigating Authority may adjust the 
average of prices determined for such designated area on the basis of 
the average of prices determined for the major market area which is 
determined to be the most representative of the designated area, taking 
into consideration any special factors which may be affecting prices in 
the designated area.
    (3) The ``domestic wholesale market price'' determined by the 
Investigating Authority for a similar article produced in the United 
States to that article of quota cheese which is alleged to be involved 
in price-undercutting shall be the average of prices at which 
wholesalers have sold the similar article produced in the United States 
in the designated area, as obtained in a survey directed by the 
Investigating Authority during the investigation: Provided, That 
whenever the designated area is not or does not include one of the major 
market areas specified in paragraph (a)(1) of this section, the 
Investigating Authority may adjust the average of prices determined for 
such designated area on the basis of the average of prices determined 
for the major market area which is determined to be the most 
representative of the designated area, taking into consideration any 
special factors which may be affecting prices in the designated area.
    (4) ``Similar article produced in the United States'' shall be an 
article of cheese, cheese product, or imitation cheese produced in the 
United States and marketed in the domestic wholesale market, which is 
determined by the Investigating Authority, based upon available 
information to be most like the imported article of quota cheese alleged 
to be involved in price-undercutting, in terms of its physical 
properties and end use. In making this determination, first 
consideration shall be given to the normal end uses of the article 
produced in the United States in comparison with the end use of the 
article of quota cheese alleged to be involved in price-undercutting. If 
the end use of both articles is determined to be the same (e.g., 
processing or retail sale), the physical characteristics of the two 
articles shall be considered.

If the common end use of the two articles is processing, the 
representative samples of the two articles shall be examined in terms of 
processing quality, taking special note of processing yields. If the 
common end use of the two articles is retail sale, representative 
samples of the two articles shall be examined in terms of similarities 
of taste, texture, general appearance, quality, age, and packaging. 
Imported imitation quota cheese shall only be compared with imitation 
domestic cheese. If it is determined that the domestic cheese the price 
of which is claimed to be undercut is not similar to the quota cheese 
allegedly undercutting it, there shall be no finding of price-
undercutting.
    (b) Reporting determinations. Determinations by the Secretary as to 
the validity of allegations of price-undercutting made under this 
subpart shall be published in the Federal Register not later than 5 days 
after the date the determination is made.



Sec. 6.44  Delegation of authority.

    The powers vested in the Administrator, FAS, insofar as such powers 
relate to the functions of the Investigating Authority by this 
regulation

[[Page 324]]

are hereby delegated to the Investigating Authority. This final rule has 
been reviewed under the USDA criteria established to implement Executive 
Order 12044, ``Improving Government Regulations.'' a determination has 
been made that this action should not be classified ``significant'' 
under those criteria. A Final Impact Statement has been prepared and is 
available from Carol M. Harvey in room 6622, South Agriculture Building, 
14th and Independence Ave., SW., Washington, DC 20250.



PART 7_SELECTION AND FUNCTIONS OF AGRICULTURAL STABILIZATION AND 
CONSERVATION STATE, COUNTY AND COMMUNITY COMMITTEES--Table of Contents




Sec.
7.1 Administration.
7.2 General.
7.3 Definitions.
7.4 Selection of committee members.
7.5 Eligible voters.
7.6 Determination of elective areas.
7.7 Calling of elections.
7.8 Conduct of community committee elections.
7.9 Election of community committee members, delegates to local 
          administrative area and county conventions, and county 
          committee members.
7.10 Conduct of county convention.
7.11 County committee members.
7.12 Tie votes.
7.13 Vacancies.
7.14 Appeals.
7.15 Eligibility requirements of county committee members, community 
          committee members, and delegates.
7.16 Eligibility requirements of all other personnel.
7.17 Dual office.
7.18 Terms of office of county and community members.
7.19 Terms of office of delegates to the conventions.
7.20 State committee duties.
7.21 County committee duties.
7.22 Community committee duties.
7.23 Chairperson of the county committee duties.
7.24 Chairperson of the community committee duties.
7.25 County executive director duties.
7.26 Private business activity and conflicts of interest.
7.27 Political activity.
7.28 Removal from office or employment for cause.
7.29 Delegation of authority to Deputy Administrator.
7.30 Right of review.
7.31 Hearing in connection with appeals and requests for reconsideration 
          to Deputy Administrator.
7.32 Findings, analysis, and recommendations of hearing officer.
7.33 Determination of the Deputy Administrator.
7.34 Custody and use of books, records, and documents.
7.35 Administrative operations.
7.36 Implementation.
7.37 Applicability.
7.38 Retention of authority.

    Authority: Secs. 4 and 8 of the Soil Conservation and Domestic 
Allotment Act, as amended; 49 Stat. 164 and 1149, as amended (16 U.S.C. 
590d and 590h).

    Source: 52 FR 48512, Dec. 23, 1987, unless otherwise noted.



Sec. 7.1  Administration.

    (a) The regulations of this part are applicable to the election and 
functions of community and county Agricultural Stabilization and 
Conservation (``ASC'') committee and the functions of State ASC 
committees (``community'', ``county'', and ``State committees'', 
respectively). State, county, and community committees shall be under 
the general supervision of the Administrator, Agricultural Stabilization 
and Conservation Service (``ASCS'').
    (b) State, county, and community committees, and representatives and 
employees thereof, do not have authority to modify or waive any of the 
provisions of this part.
    (c) The State committees shall take any action required by these 
regulations which has not been taken by the county committee. The State 
committee shall also:
    (1) Correct, or require a county committee to correct, any action 
taken by such county committee which is not in accordance with this 
part, or
    (2) Require a county committee to withhold taking any action which 
is not in accordance with this part.
    (d) No provision or delegation herein to a State or county committee 
shall preclude the Administrator, ASCS, or a designee of the 
Administrator, from determining any question arising under

[[Page 325]]

this part, or from reversing or modifying any determination made by a 
State or county committee.



Sec. 7.2  General.

    State, county, and community committees shall, as directed by the 
Secretary of a designee of the Secretary, carry out the programs and 
functions of the Secretary.



Sec. 7.3  Definitions.

    The terms defined in part 719 of this title governing the 
reconstitution of farms shall also be applicable to this part.



Sec. 7.4  Selection of committee members.

    State committee members shall be selected by the Secretary and shall 
serve at the pleasure of the Secretary. County and community committee 
members shall be elected in accordance with Sec. 7.9 of this part.



Sec. 7.5  Eligible voters.

    (a) Voters eligible to participate in:
    (1) The direct election of county committee members and
    (2) Community committee elections shall be persons who meet the 
requirements of paragraphs (b) and (c) of this section.
    (b) Any person, regardless of race, color, religion, sex, age, or 
national origin, who has an interest in a farm as owner, operator, 
tenant, or sharecropper and who is of legal voting age in the State in 
which the farm is located, and any person not of such legal voting age 
who is in charge of the supervision and conduct of the farming 
operations on an entire farm, shall be eligible to vote for direct 
election of county committee members or community committee members if 
such person is eligible to participate with respect to the farm in any 
program administered by the county committee.
    (c) In any State having a community property law, the spouse of a 
person who is eligible to vote in accordance with paragraph (b) of this 
section shall also be eligible to vote.
    (d) If an eligible voter is an entity other than an individual, the 
eligible voter's vote may be cast by a duly authorized representative of 
such entity, as determined by the Deputy Administrator, State and County 
Operations, ASCS (``Deputy Administrator'').
    (e) Each county office shall have a list of eligible voters for each 
community within the county available for public inspection in advance 
of the community committee election.
    (f) Each eligible voter shall be entitled to only one ballot in any 
election held in any one local administrative area. If the eligible 
voter has an interest in land located in more than one community in the 
county, such voter shall not be entitled to vote in more than one 
community in the county. There shall be no voting by proxy.



Sec. 7.6  Determination of elective areas.

    (a) Local administrative areas and communities. (1) Except as 
provided in paragraph (b) of this section, there shall be three local 
administrative areas in each county. With respect to Alaska, the term 
``county'' shall be the area so designated by the State committee.
    (2) Each local administrative area shall have at least one community 
committee consisting of three members.
    (3) The boundaries of the communities and local administrative areas 
shall be determined by the State committee after considering 
recommendations by the county committee.
    (b) Exceptions to general rule. (1) A local administrative area may 
have more than one community committee if the county had more than three 
community committees on December 23, 1985.
    (2) In counties with less than 150 producers, the county committee 
may reduce the number of communities to one.
    (3) The Deputy Administrator may include more than one county or 
parts of different counties in a community if it is determined that 
there is an insufficient number of producers in an area to establish a 
slate of candidates for a community committee and hold an election.
    (4) In counties which had less than three communities on December 
23, 1985, the county committee may establish one community for the 
county.
    (5) In any county where there is only one community, the community 
committee shall be the county committee.

[[Page 326]]

    (c) The county committee shall give public notice of the community 
boundaries in advance of the election.



Sec. 7.7  Calling of elections.

    (a) Each election of community committee members shall be held on a 
date, or within a specified period of time, determined by the Deputy 
Administrator. Such date or period of time shall fall within a period 
beginning on or after July 1 and ending not later than December 30 each 
year. Each such election shall be held in accordance with instructions 
issued by the Deputy Administrator which shall be available for 
examination in each county office.
    (b) If the number of eligible voters voting in any election of 
community committee members is so small that the State committee 
determines that the result of the election does not represent the views 
of a substantial number of eligible voters, the State committee shall 
declare the election void and call a new election. If it is determined 
by the State committee that the election for any position on a community 
committee has not been held substantially in accordance with official 
instructions, the State committee shall declare such election void and 
call a new election.



Sec. 7.8  Conduct of community committee elections.

    (a) The county committee serving at the time shall be responsible 
for the conduct of community committee elections in accordance with 
instructions issued by the Deputy Administrator.
    (b) Elections shall not be associated with, or held in conjunction 
with, any other election or referendum conducted for any other purpose.
    (c) The county committee shall give advance public notice of how, 
when, and where eligible voters may vote; when and where the votes will 
be counted; and the right to witness the vote counting.
    (d) All nominees shall be notified in writing of the outcome of the 
election by the county executive director.



Sec. 7.9  Election of community committee members, delegates to local 
administrative area and county conventions, and county committee members.

    (a) Where there are three local administrative areas as provided in 
Sec. 7.6 of this part there shall be an election of community committee 
members and alternates for a term of three years, or until such person's 
successor is elected and qualified, in one of the local administrative 
areas so that the term of office of the community committee members and 
alternates within one of the local administrative areas will expire each 
year.
    (b) Except as provided in paragraph (d) of this section, the 
eligible voters in a community shall elect every three years a community 
committee composed of three members and shall elect first and second 
alternates to serve as acting members of the community committee in the 
order elected in case of the temporary absence of a member, or to become 
a member of the community committee in the order elected in case of the 
resignation, disqualification, removal, or death of a member. An acting 
member of the community committee shall have the same duties and the 
same authority as a regular member of such committee. The election shall 
be conducted by mail ballot in all counties, except that the Deputy 
Administrator may authorize use of the meeting or polling place method 
in a specific county where such is deemed justified. Where elections are 
by mail or by polling place, the county committee shall give advance 
public notice that nominations may be made by petition. Election shall 
be by secret ballot and by plurality vote with each eligible voter 
having the option of writing in the names of candidates. Except as 
provided in paragraph (d) of this section and Sec. 7.10(c) of this 
part, the three regular members of the community committee shall be the 
delegates to the local administrative area and county conventions and 
the first and second alternates to community committee shall also be, in 
that order, alternate delegates to the local administrative area and 
county conventions. A person may not serve as delegate if such person 
has been a member of the county

[[Page 327]]

committee for that county during the 90 days preceding the community 
committee election. Failure to elect the prescribed number of alternates 
at the regular election shall not invalidate such election or require a 
special election to elect additional alternates.
    (c) In any county where there is only one local administrative area, 
the community committee shall be the county committee.
    (d) Where there is only one community in the county, one committee 
person shall be elected to hold office for a term of 3 years, or until 
such person's successor is elected and qualified, so that the term of 
office of one committee member will expire in each year. There shall 
also be elected annually a first alternate and second alternate to serve 
as acting members in the order elected in case of the temporary absence 
of a member or to become a member in the order elected in the case of 
resignation, disqualification, removal, or death of a member of the 
committee. In the event an alternate fills a permanent vacancy on the 
committee, such person shall assume the office until the next election 
or until the replaced committee member's successor is elected and 
qualified. An acting member shall have the same duties and authority as 
a regular member.
    (e) In any county where there are three local administrative areas, 
the delegates elected pursuant to Sec. 7.9 (a) and (b) of this part 
shall meet in a local administrative area convention held before the 
close of the same calendar year in which they were elected to elect a 
county committee member and a first and second alternate. A first and 
second alternate shall serve as acting members of the committee in the 
order elected in case of the temporary absence of a member, or to become 
a member in the order elected in case of the resignation, 
disqualification, removal, or death of a member of the county committee. 
In the event an alternate fills a permanent vacancy on the county 
committee, such person shall assume the unexpired term of the county 
committee member who was replaced. An acting member of the county 
committee shall have the same duties and authority as a member. The 
Deputy Administrator may fix the exact convention date. Each delegate 
shall be entitled to only one vote on any ballot, and there shall be no 
voting by proxy. A majority of the delegates so elected and qualified to 
vote at the time of the convention shall constitute a quorum. Such 
convention shall be held to the extent practicable in the manner set 
forth in Sec. 7.10 of this part and in accordance with instructions 
issued by the Deputy Administrator.

[52 FR 48512, Dec. 23, 1987, as amended at 53 FR 23749, June 24, 1988]



Sec. 7.10  Conduct of county convention.

    (a) The county committee serving at the time shall be responsible 
for designating the place at which the county convention will be held 
and for the conduct of the convention in accordance with instructions 
issued by the Deputy Administrator.
    (b) The delegates to the county convention shall determine which 
county committee members shall be the county committee chairperson and 
county committee vice-chairperson.
    (c) Each local administrative area shall have the same number of 
delegates at the county convention. If a portion of the delegates from a 
local administrative area are precluded from attending the county 
convention as the result of the limitation imposed by the preceding 
sentence, the delegates from such local administrative area shall elect 
those delegates who shall attend the county convention.
    (d) County conventions shall not be associated with or held in 
conjunction with any other election or referendum conducted for any 
other purpose.
    (e) The county committee shall give advance public notice of the 
county convention which shall be open to the public.
    (f) The county executive director shall notify in writing all newly 
elected county committee members, alternates, and county committee 
members with unexpired terms of the election results.



Sec. 7.11  County committee members.

    (a) County committee members elected in accordance with Sec. 7.9 of 
this part shall hold office for a term of three years or until a 
successor is elected and qualified.

[[Page 328]]

    (b) The county committee shall select a secretary who shall be the 
county executive director, other employee of the county committee, or 
the county agricultural extension agent for the county. If the county 
agricultural extension agent is not selected as secretary to the county 
committee, that person shall be an ex officio member of the county 
committee but shall not have the power to vote.

[52 FR 48512, Dec. 23, 1987, as amended at 53 FR 23750, June 24, 1988]



Sec. 7.12  Tie votes.

    (a) Tie votes in community committee elections held by mail or 
polling place method shall be settled by lot. Tie votes in such 
elections held by the meeting method which cannot be settled by further 
balloting on the same day shall be settled by lot. In counties with one 
local administrative area, a tie vote in determining the chairperson and 
vice chairperson of the county committee which cannot be settled by 
further balloting on the same day shall be settled by lot.
    (b) In the county or local administrative area convention, tie votes 
which cannot be settled by further balloting on the same day shall be 
settled by lot.



Sec. 7.13  Vacancies.

    (a) In case of a vacancy in the office of chairperson of county or 
community committee, the respective vice chairperson shall become 
chairperson; in case of a vacancy in the office of vice chairperson, the 
respective third member shall become vice chairperson; in case of a 
vacancy in the office of the third member, the respective first 
alternate shall become the third member; and in case of a vacancy in the 
office of the first alternate, the respective second alternate shall 
become the first alternate. When unanimously recommended by the three 
members of the county committee, as constituted under this paragraph and 
paragraph (c) of this section, and approved by the State committee, the 
offices of chairperson and vice chairperson of the county committee may 
be filled from such membership without regard to the order of succession 
prescribed in this paragraph or the action of the delegates to the 
county convention.
    (b) In case of a vacancy in the panel of delegates to the local 
administrative area or county convention, the respective community 
committee alternates shall act as delegates.
    (c) In the event that a vacancy, other than one caused by temporary 
absence, occurs in the membership of the county committee and no 
alternate is available to fill the vacancy, the State committee shall 
call a meeting of the delegates of the appropriate community committees 
to elect persons to fill such vacancies as exist in the membership of 
the county committee and in the panel of alternates, except as provided 
in Sec. 7.28 of this part.
    (d) In the event that a vacancy, other than one caused by temporary 
absence, occurs in the membership of the community committee and no 
alternate is available to fill the vacany, a special election shall be 
held to fill such vacancies as exist in the membership and in the panel 
of alternates.



Sec. 7.14  Appeals.

    (a) Any eligible voter in the county may appeal to the county 
committee in writing or in person, or both:
    (1) The eligibility or ineligibility of a person to vote,
    (2) The eligibility of a person to hold office, and
    (3) The validity of the community committee elections. Such appeal 
must be made within 15 days of the election date, except that appeals on 
a determination of eligibility of a person nominated by petition must be 
made within 7 days of the date of notification of ineligibility.
    (b) Any eligible voter in the county may appeal to the State 
committee in writing, in person, or both:
    (1) A county committee decision on an election appeal. An appeal of 
a county committee decision must be made within 15 days of the 
notification of the decision, and
    (2) The validity of a county convention. An appeal on the validity 
of a county convention must be made within 15 days of the county 
convention.

[[Page 329]]



Sec. 7.15  Eligibility requirements of county committee members, 
community committee members, and delegates.

    (a) To be eligible to hold office as a county committee member, 
community committee member, a delegate, or an alternate to any such 
office, a person must meet the conditions set forth in this section.
    (b) Such person must:
    (1) Be eligible to vote in the local administrative area in which 
the election is held if proposed for county committee member or 
alternate, or in the community in which the election is held if proposed 
for community committee member or alternate;
    (2)(i) Except as provided in paragraph (b)(2)(ii) of this section, 
be residing in the local administrative area in which the election is 
held if proposed for county committee member or alternate, or be 
residing in the community in which the election is held if proposed for 
community committee member or alternate.
    (ii) In cases where a State line, a county line, a local 
administrative area boundary, or a community boundary runs through a 
farm, eligible persons residing on such farm may hold office in the 
county or community in which the farm has been determined to be located 
for program participation purposes. In cases where a candidate has no 
farming interests in the local administrative area or community in which 
the person resides or only a token amount, as determined by the State 
committee, an eligible person may hold office when such person resides 
in the county and has farming interests in the local administrative area 
or community in which the person is a candidate.
    (3) Not be ineligible under Sec. 7.27 of this part.
    (4) Not have been dishonorably discharged from any branch of the 
armed services; removed for cause from any public office; convicted of 
any fraud, larceny, embezzlement, or felony, unless any such 
disqualification is waived by the State committee or the Deputy 
Administrator;
    (5) Not have been removed as a county committee member, community 
committee member, delegate, alternate to any such office, or as an 
employee for: Failure to perform the duties of the office; committing, 
attempting, or conspiring to commit fraud; incompetence; impeding the 
effectiveness of any program administered in the county; refusal to 
carry out or failure to comply with the Department's policy relating to 
equal opportunity and civil rights, including the equal employment 
policy, or interfering with others in carrying out such policy; or for 
violation of official instructions, unless any such disqualification is 
waived by the State committee or the Deputy Administrator;
    (6) Not have been disqualified for future service because of a 
determination by a State committee that during previous service as a 
county committee member, community committee member, delegate, alternate 
of any such office, or as an employee of the county committee such 
person has: Failed to perform the duties of such office or employment; 
committed, attempted, or conspired to commit fraud; impeded the 
effectiveness of any program administered in the county; in the course 
of their official duties, refused to carry out or failed to comply with 
the Department's policy relating to equal opportunity and civil rights, 
including the equal employment policy, or interfered with others in 
carrying out such policy; or violated official instructions, unless any 
such disqualification is waived by the State committee or the Deputy 
Administrator;
    (7) During the term of office, not be a full-time employee of the 
U.S. Department of Agriculture;
    (8) If the office is that of county committee member, not be a sales 
agent or employee of the Federal Crop Insurance Corporation during the 
term of office;
    (9) If the office is that of delegate to the local administrative 
area or county convention, not have been a county committee member for 
that county during the 90 days preceding the community election;
    (10) If the office is that of county committee member, not be 
serving as a county committee member with one or more years following 
the current election remaining in the term of office; and

[[Page 330]]

    (11) If the office is that of county committee member, not have 
served three consecutive terms as county committee member just prior to 
the current election, except that:
    (i) Any partial term served by an alternate who filled a permanent 
vacancy on the county committee, shall not count toward this three term 
limitation; and
    (ii) In the case of a person elected to be a national officer or 
State president of the National Association of Farmer Elected 
Committeemen, the limitation shall be four consecutive terms.

[52 FR 48512, Dec. 23, 1987, as amended at 59 FR 15827, Apr. 5. 1994]



Sec. 7.16  Eligibility requirements of all other personnel.

    (a) The county executive director and other employees of the county 
committee must not have been: Dishonorably discharged from any branch of 
the armed services; removed for cause from any public office; or 
convicted of any fraud, larceny, embezzlement, or felony, unless any 
such disqualification is waived by the State committee or the Deputy 
Administrator.
    (b) The county executive director or any other employee of the 
county committee must not have been removed as a county committee 
member, community committee member, delegate, alternate to any such 
office, county executive director, or other employee of the county 
committee for: Failure to perform the duties of the office; committing, 
attempting, or conspiring to commit fraud; incompetence; impeding the 
effectiveness of any program administered in the county; refusal to 
carry out or failure to comply with the Department's policy relating to 
equal opportunity and civil rights, including equal employment policy, 
or interfering with others in carrying out such policy; or for violation 
of official instructions, unless such disqualification is waived by the 
State committee or the Deputy Administrator.
    (c) The county executive director or any other employee of the 
county committee must not have been disqualified for future employment 
because of a determination by a State committee that during previous 
service as a county committee member, community committee member, 
delegate, alternate to any such office, or as an employee of the county 
committee has: Failed to perform the duties of such office or 
employment; committed, attempted, or conspired to commit fraud; impeded 
the effectiveness of any program administered in the county; refused to 
carry out or failed to comply with the Department's policy relating to 
equal opportunity and civil rights, including the equal employment 
policy, or interfered with others in carrying out such policy; or 
violated official instructions, unless such disqualification is waived 
by the State committee or the Deputy Administrator.
    (d) The tenure of employment of any count executive director or 
other employee of the county committee shall be terminated as soon as 
any such person becomes ineligible for employment under the provisions 
of this section.



Sec. 7.17  Dual office.

    (a) County committee membership. A member of the county committee 
may not be at the same time:
    (1) A member of a community committee;
    (2) A delegate to a local administrative area convention;
    (3) A delegate to a county convention;
    (4) The secretary to the county committee;
    (5) A member of the State committee; or
    (6) County executive director or any other county office employee.
    (b) Community committee membership. A member of the community 
committee may not be at the same time:
    (1) A member of a county committee;
    (2) The secretary to the county committee;
    (3) A member of the State committee; or
    (4) County executive director or regular county office employee.
    (c) Delegate to conventions. A delegate to the local administrative 
area or county convention may not be a member of the State committee.

[[Page 331]]



Sec. 7.18  Terms of office of county and community members.

    The term of office of county and community committee members and 
alternates to such office shall begin on a date fixed by the Deputy 
Administrator, which shall be after their election and not later than 
the first day in the next January. Before any such county committee 
members or alternate county committee members may take office, such 
person shall sign an oath of office pledge that they will faithfully, 
fairly, and honestly perform to the best of their ability all of the 
duties devolving on them as committee members. A term of office shall 
continue until a successor is elected and qualified as provided in 
Sec. Sec. 7.8 and 7.9 of this part.



Sec. 7.19  Terms of office of delegates to the conventions.

    The terms of office of delegates and alternates to the local 
administrative area and county conventions shall begin immediately upon 
their election and shall continue until their respective successors have 
elected and qualified.



Sec. 7.20  State committee duties.

    The State committee, subject to the general direction and 
supervision of the Deputy Administrator, shall be generally responsible 
for carrying out in the State the agricultural conservation program, the 
production adjustment and price support programs, the acreage allotment 
and marketing quota programs, the wool and mohair incentive payment 
program, and any other program or function assigned by the Secretary or 
a designee of the Secretary.



Sec. 7.21  County committee duties.

    (a) The county committee, subject to the general direction and 
supervision of the State committee, and acting through community 
committee members and other personnel, shall be generally responsible 
for carrying out in the county the agricultural conservation program, 
the production adjustment and price support programs, the acreage 
allotment and marketing quota programs, the wool and mohair incentive 
payment program, and any other program or function assigned by the 
Secretary or a designee of the Secretary.
    (b) The county committee shall:
    (1) Enter into leasing agreements for such office space as needed in 
accordance with official instructions.
    (2) Employ the county executive director, subject to standards and 
qualifications furnished by the State committee, to serve at the 
pleasure of the county committee, except that incumbent directors shall 
not be removed other than in accordance with the provisions of Sec. 
7.28 of this part until all members of the county committee have been in 
office for at least 90 days. There shall be no employment discrimination 
due to race, religion, color, sex, age, or national origin. The county 
executive director may not be removed for advocating or carrying out the 
Department's policy on equal opportunity and civil rights, including the 
equal employment policy. In the event it is claimed that dismissal is 
for such reasons, the dismissal shall not become effective until the 
State committee and the Deputy Administrator have determined that 
dismissal was not because of such reasons;
    (3) Direct the activities of the local committees elected in the 
county;
    (4) Pursuant to official instructions, review, approve, and certify 
forms, reports, and documents requiring such action in accordance with 
such instructions;
    (5) Recommend to the State committee needed changes in boundaries of 
community and local administrative areas;
    (6) Make available to farmers and the public, information concerning 
the objectives and operations of the programs administered through the 
county committee;
    (7) Make available to agencies of the Federal Government and others 
information with respect to the county committee activities in 
accordance with official instructions issued;
    (8) Give public notice of the designation and boundaries of each 
community within the county not less than 50 days prior to the election 
of community committee members and delegates;

[[Page 332]]

    (9) Direct the giving of notices in accordance with applicable 
regulations and official instructions;
    (10) Recommend to the State committee desirable changes in or 
additions to existing programs;
    (11) Conduct such hearings and investigations as the State committee 
may request; and
    (12) Perform such other duties as may be prescribed by the State 
committee.



Sec. 7.22  Community committee duties.

    (a) The community committee shall be subject to the general 
direction and supervision of the county committee.
    (b) The community committee shall:
    (1) Serve as an advisor and consultant to the county committee;
    (2) Periodically meet with the county committee and State committee 
to be informed on farm program issues;
    (3) Communicate with producers on issues or concerns regarding farm 
programs;
    (4) Report to the county committee, the State committee, and other 
interested persons on changes to, or modification of, farm programs 
recommended by producers;
    (5) Perform such other functions as are required by law or as the 
Secretary or a designee of the Secretary may specify.



Sec. 7.23  Chairperson of the county committee duties.

    The chairperson of the county committee or the person acting as the 
chairperson shall preside at meetings of the county committee, certify 
such documents as may require the chairperson's certification, and 
perform such other duties as may be prescribed by the State committee.



Sec. 7.24  Chairperson of the community committee duties.

    The chairperson of the community committee or the person acting as 
the chairperson shall preside at meetings of the community committee, 
and perform such other duties as may be assigned by the county 
committee.



Sec. 7.25  County executive director duties.

    (a) The county executive director shall execute the policies 
established by the county committee and be responsible for the day-to-
day operations of the county office.
    (b) The county executive director shall:
    (1) In accordance with standards and qualifications furnished by the 
State committee, employ the personnel of the county office to serve at 
the pleasure of the county executive director. There shall be no 
employment discrimination due to race, religion, color, sex, age, or 
national origin. An employee may not be removed under this paragraph for 
advocating or carrying out the Department's policy on equal opportunity 
and civil rights, including the equal employment policy. In the event it 
is claimed that the dismissal is for such reason, the dismissal shall 
not become effective until the State committee and the Deputy 
Administrator have determined that dismissal was not because of such 
reason;
    (2) Receive, dispose of, and account for all funds, negotiable 
instruments, or property coming into the custody of the county 
committee;
    (3) Serve as counselor to the local administrative area and county 
convention chairperson on election procedures; and
    (4) Supervise, under the direction of the county committee, the 
activities of the communitiy committees elected in the county.



Sec. 7.26  Private business activity and conflicts of interest.

    (a) No county committee member, community committee member, 
delegate, alternate to any such office, or county office employee shall 
at any time use such office or employment to promote any private 
business interest.
    (b) County committee members, community committee members, 
delegates, or alternates, and any person employed in the county office 
shall be subject to the official instructions issued with respect to 
conflicts of interest and proper conduct.

[[Page 333]]



Sec. 7.27  Political activity.

    (a) No person may be a member of the county governing body or hold a 
Federal, State, or county office filled by an election held pursuant to 
law or be employed by any such office and also hold office as a county 
committee member, community committee member, delegate, alternate to 
such office, or be employed in any capacity, except, that members of 
school boards, soil conservation district boards, weed control district 
boards, or of similar boards are not ineligible to hold office or 
employment under this paragraph solely because of membership on such 
boards.
    (b) No person may be a candidate for membership on the county 
governing body or for any Federal, State, or county office filled by an 
election held pursuant to law and hold office as a county committee 
member, community committee member, delegate, alternate to any such 
office, or be employed in any capacity, except, that candidates for 
school boards, soil conservation district boards, irrigation district 
boards, drainage district boards, weed control district boards, or for 
similar boards are not ineligible to hold office or employment under 
this subsection solely because of candidacy for such boards.
    (c) No person may be an officer, employee, or delegate to a 
convention of any political party or political organization and hold 
office as a county committee member, community committee member, 
delegate, alternate to any such office, or be employed in any capacity.
    (d) The tenure of office of any county committee member, community 
committee member, delegate, alternate to any such office, or the 
employment of any employee, shall be automatically terminated as soon as 
any such person becomes ineligible for office of employment under the 
provisions of paragraph (a), (b), or (c) of this section.
    (e) No county committee member, community committee member, 
delegate, or alternate to any such office, or any employee shall at any 
time engage in the following political activities:
    (1) Solicit or receive any contributions (including the sale of 
tickets) for political party organizations or for a candidate for 
political office or for any other political purpose in any room or 
building used for the transaction of any Federal official business, or 
at any place from any other county committee member, community committee 
member, delegate, or alternate to any such office or employee.
    (2) Use official authority or influence to discharge, remove, 
demote, or promote any employee, or threaten or promise to so do, for 
withholding or giving contributions (including the buying or the refusal 
to buy tickets) for political purposes, or for supporting or opposing 
any candidate or any political organization in any primary, general, or 
special election for political office.
    (3) Use or direct or permit the use of any official space, 
equipment, materials, supplies, or personal services either to support 
or oppose any political office holder, candidate or party, or for any 
other political purpose.
    (f) A county committee member or alternate to such office, an 
employee on any day when entitled to receive pay for services in 
performance of duties, or an employee who serves during a continuous 
period of 90 days or more and has a regular tour of duty established in 
advance at any time, shall not solicit, collect, receive, disburse, or 
otherwise handle contributions of money, pledges, gifts, or anything of 
value (including the sale of tickets) made for:
    (1) Political party organizations;
    (2) A candidate for political office in any primary, general, or 
special election, but excluding such activities on behalf of individual 
candidates in township and municipal elections; or
    (3) Any other political purpose.

[52 FR 48512, Dec. 23, 1987; 53 FR 1441, Jan. 19, 1988]



Sec. 7.28  Removal from office or employment for cause.

    (a) Any county committee member, community committee member, 
delegate to the local administrative area convention or the county 
convention, an alternate to any such office, county executive director, 
or any other county employee who: Fails to perform the duties of office; 
commits or attempts, or

[[Page 334]]

conspires to commit fraud; is incompetent; impedes the effectiveness of 
any program administered in the county; violates the provisions of Sec. 
7.27 (e) or (f) of this part; refuses to carry out or fails to comply 
with the equal opportunity and civil rights, including the equal 
employment policy, or who interferes with others in carrying out such 
policy; or violates official instructions, shall be suspended from 
office or employment. Any person who is under formal investigation for 
any of the above-cited reasons may be suspended. The suspension action 
may be taken by the county executive director with respect to any other 
employee, or by the county committee or State committee with respect to 
the county executive director or any other county employee and by the 
State committee with respect to any county committee member, community 
committee member, delegate to the local administrative area convention 
or the county convention, or any alternate to any such office. Any 
person suspended shall be given a written statement of the reasons for 
such action and be allowed 15 days from the date of mailing of the 
notice of suspension in which to advise the county committee, or the 
State committee if it made the suspension, in writing, in person, or 
both, why such person should be restored to duty.
    (b) The county committee or the county executive director, or the 
State committee if it made the suspension, following such further 
investigation as is deemed necessary shall restore to duty or remove the 
suspended person. The county committee or county executive director may 
not restore a suspended person to duty without prior written approval of 
the State committee, and, if such approval is denied, shall promptly 
remove such person. Upon refusal or failure of the county committee or 
the county executive director to remove promptly the suspended person, 
the State committee shall remove such person. In the event further 
investigation develops reasons for the action taken, in addition to 
those disclosed in the suspension notice, the suspended person shall be 
given written notification of such additional reasons and allowed 15 
days from the date of mailing of the notice of additional reasons for 
the suspension in which to advise why such person should be restored to 
duty. In the event a person under suspension submits a resignation, 
acceptance thereof shall not prevent a determination by the county 
committee or State committee that such person would have been removed 
had the person remained in the position. Such determination shall 
constitute removal within the meaning of Sec. Sec. 7.27 (e) and 7.28(c) 
of this part. The person so removed shall be given written notification 
of any such determination and the reasons therefor.
    (c) Any incumbent or former county committee member, community 
committee member, delegate to the local administrative area convention 
or the county convention, an alternate to any such office, county 
executive director, or any other county employee who during a term of 
employment: Fails or failed to perform the duties of employment; 
committed, attempted, or conspired to commit fraud; was incompetent; 
impeded the effectiveness of any program administered in the county; 
violated the provisions of Sec. 7.27 (e) or (f) of this part; refused 
to carry out or failed to comply with the Department's policy relating 
to equal opportunity and civil rights, including the equal employment 
policy; or violated official instructions, may be disqualified for 
future service or employment by the State committee. Before any such 
disqualification determination is made, the State committee shall 
undertake such investigation as it deems necessary, after which the 
State committee shall give the affected person a written statement of 
the determination for the proposed disqualification action. Such person 
shall have 15 days from the date of receipt of such determination to 
advise in writing, in person or both, why the action should not be 
taken. If any further investigation develops substantial additional 
reasons for disqualification, the person involved shall be given a 
written statement of such reasons and 15 days from the date of mailing 
in which to respond. The State committee may remove the disqualification 
for future service or employment only with prior approval of the Deputy 
Administrator.

[[Page 335]]

    (d) Any county committee member, community committee member, 
delegate to the local administrative area convention or the county 
convention, or any alternate to any such office, county executive 
director, or any other county employee, who, prior to taking such 
persons's present office: Committed, or attempted or conspired to commit 
fraud; or impeded the effectiveness of any program administered in the 
county, may be suspended. Any such person who is under formal 
investigation for any reason set forth in this section may be suspended. 
The proceedings under this paragraph shall be applied the same as 
provided in paragraph (a) of this section.
    (e) If in the event of suspensions or vacancies there are less than 
two members, including alternates, available to serve on the county 
committee, the State committee shall designate a person to administer 
the programs in the county pending the exoneration or removal of those 
persons under investigation and, if removed, pending the election of new 
county committee members and alternates. Such person may be the 
remaining member or alternate member of the committee if available. Any 
person named by the State committee to serve in such capacity shall have 
full authority to perform all duties regularly performed by a duly 
elected county committee.



Sec. 7.29  Delegation of authority to Deputy Administrator.

    Notwithstanding the authority vested by this part in a State 
committee, a county committee, and the county executive director, the 
Deputy Administrator shall have authority to suspend and/or remove or 
disqualify for future service or employment, any county committee 
member, community committee member, delegate to the local administrative 
area convention or the county convention, an alternate to any such 
office, county executive director, or other county employee, for any and 
all of the reasons and causes authorizing such suspension, removal, and 
disqualification by the State committee, the county committee, or the 
county executive director. Any person suspended, removed or disqualified 
pursuant to this section shall be given a written statement of the 
reason for such action and shall be advised of the right of review as 
provided in Sec. 7.30 of this part.



Sec. 7.30  Right of review.

    Any person dissatisfied with a determination of the county committee 
or county executive director may appeal in writing or in person or both, 
such determination to the State committee. Any person dissatisfied with 
a determination of the State committee may appeal such determination in 
writing to the Deputy Administrator. Any person dissatisfied with the 
determination of the Deputy Administrator made under Sec. 7.29 of this 
part may request a reconsideration of such determination by the Deputy 
Administrator. Any such appeal or request for reconsideration shall be 
made within 15 days from the date of the mailing of the determination 
with respect to which the appeal or request is filed. Except as provided 
in Sec. 7.31 of this part, such appeals and requests for 
reconsideration shall be determined on an informal basis. The person 
filing the appeal or request for reconsideration may present reasons, in 
writing or in person, or both, why the determination should be reversed 
or modified. Within 60 days after the reasons have been presented, such 
person shall be notified of the determination on appeal or 
reconsideration. The notification shall clearly set forth the basis for 
the determination. The determination of the Deputy Administrator is 
final and not subject to further administrative review.



Sec. 7.31  Hearing in connection with appeals and requests for 
reconsideration to Deputy Administrator.

    Any person (the ``appellant'') filing an appeal with the Deputy 
Administrator, or a request for reconsideration of a determination made 
by the Deputy Administrator under Sec. 7.29 of this part, is entitled, 
at such person's election, to a hearing in connection therewith. If the 
appellant does not request a hearing, the appeal or reconsideration 
shall be handled in accordance with Sec. 7.30 of this part. If the 
appellant desires a hearing, such person shall so advise the Deputy 
Administrator. The hearing

[[Page 336]]

shall be conducted by the Deputy Administrator, or a designee of the 
Deputy Administrator, who shall serve as a hearing officer. The hearing 
shall be held at the time and place designated by the hearing officer. 
The appellant may appear personally or through or accompanied by a 
representative. The hearing officer shall conduct the hearing so as to 
bring out pertinent facts, including the production of pertinent 
documents. Rules of evidence shall not be applied strictly, but the 
hearing officer shall exclude irrelevant or unduly repetitious evidence. 
Information having a bearing on the issues shall be received in 
evidence. Both the appellant and the agency representatives are entitled 
to produce witnesses and the appellant and agency representative shall 
be given an opportunity to cross-examine witnesses. The hearing officer 
shall inform the witnesses that they are subject to a fine of not more 
than $10,000 or imprisonment for not more than 5 years, or both, for 
making any false statements (18 U.S.C. 1001). The hearing officer shall 
cause a transcript to be made of the hearing and it shall be made 
available to the appellant at actual costs.



Sec. 7.32  Findings, analysis, and recommendations of hearing officer.

    If the hearing has been conducted by a designee of the Deputy 
Administrator, the hearing officer shall, within 60 days from date of 
receipt of the transcript transmit to the Deputy Administrator:
    (a) The record of the hearing;
    (b) The findings and analysis of the hearing officer; and
    (c) A recommended determination.



Sec. 7.33  Determination of the Deputy Administrator.

    Within 30 days after receipt of the findings, analysis, and 
recommendations of the hearing officer that are made under Sec. 7.32 of 
this part, or within 60 days from the date of receipt of the transcript 
prepared under such section if the Deputy Administrator conducted the 
hearing, the Deputy Administrator shall make a final determination. The 
notification shall clearly set forth the basis for the determination. 
The determination of the Deputy Administrator is final and not subject 
to further administrative review.



Sec. 7.34  Custody and use of books, records, and documents.

    (a) All books, records, and documents of or used by the county 
committee in the administration of programs assigned to it, or in the 
conduct of elections, shall be the property of the Commodity Credit 
Corporation or the United States Department of Agriculture, as 
applicable, and shall be maintained in good order in the county office.
    (b) For polling and mail type elections, ballots shall remain in 
sealed boxes until the prescribed date for counting. Following the 
counting of ballots in all types of elections, the ballots shall be 
placed in sealed containers and retained for 30 days unless otherwise 
determined by the State committee.
    (c) The books, records, and documents referred to in paragraph (a) 
shall be available for use and examination:
    (1) At all times by authorized representatives of the Secretary; the 
Administrator, or a designee of the Administrator.
    (2) By state, county, and community committee members, and 
authorized employees of the State and county office in the performance 
of duties assigned to them under this part, subject to instructions 
issued by the Deputy Administrator;
    (3) At any reasonable time to any program participant insofar as 
such person's interests under the programs administered by the county 
committee may be affected, subject to instructions issued by the Deputy 
Administrator; and
    (4) To any other person only in accordance with instructions issued 
by the Deputy Administrator.



Sec. 7.35  Administrative operations.

    The administrative operations of county committees including but not 
limited to the following, shall be conducted, except as otherwise 
provided in these regulations, in accordance with official instructions 
issued: annual, sick, and other types of employee leave; location and 
use of the county

[[Page 337]]

committee office; the calling, and conduct of elections; and the 
maintenance of records of county and local committee meetings.



Sec. 7.36  Implementation.

    Unless specifically provided in this part, the Deputy Administrator, 
State and County Operations, or the Deputy Administrator, Management, 
ASCS, is authorized to issue the instructions and procedures referred to 
herein which implement the provisions of this part.



Sec. 7.37  Applicability.

    This part shall apply to each State of the United States.



Sec. 7.38  Retention of authority.

    Nothing in this part shall preclude the Secretary, the 
Administrator, or the Deputy Administrator from administering any or all 
programs or exercising other functions delegated to the community 
committee, county committee, State committee, or any employee of such 
committees. In exercising this authority, the Secretary, the 
Administrator, or the Deputy Administrator may designate for such period 
of time as deemed necessary a person or persons of their choice to be in 
charge will full authority to carry on the programs or other functions 
without regard to the normal duties of such committees or employees.



PART 8_4-H CLUB NAME AND EMBLEM--Table of Contents




Sec.
8.1 Policy.
8.2 Delegation of authority.
8.3 Definitions.
8.4 Basic premises.
8.5 Revocation of present authorizations.
8.6 Authorization for use.
8.7 Continued use.
8.8 Use by public informational services.
8.9 Use in 4-H fund raising.

    Authority: 5 U.S.C. 301; 18 U.S.C. 707.

    Source: 50 FR 31582, Aug. 2, 1985, unless otherwise noted.



Sec. 8.1  Policy.

    The Cooperative Extension Service, of which the 4-H Club program is 
a part, invites and appreciates the cooperation of all organizations, 
agencies, and individuals whose interest, products, or services will 
contribute to the educational effort of the Cooperative Extension 
Service as conducted through the 4-H Club program.



Sec. 8.2  Delegation of authority.

    The Administrator of the Cooperative State Research, Education, and 
Extension Service, United States Department of Agriculture, may 
authorize the use of the 4-H Club Name and Emblem in accordance with the 
regulations in this part.

[50 FR 31582, Aug. 2, 1985, as amended at 60 FR 52293, Oct. 6, 1995]



Sec. 8.3  Definitions.

    4-H Club Name and Emblem as used in this part means the emblem 
consisting of a green four-leaf clover with stem and the letter ``H'' in 
white or gold on each leaflet, or any insignia in colorable imitation 
thereof, or the words, ``4-H Club,'' ``4-H Clubs'' or any combination of 
these or other words or characters in colorable imitation thereof.
    Cooperative Extension Service, as used in this part includes the 
entire Cooperative Extension System consisting of the Cooperative State 
Research, Education, and Extension Service, United States Department of 
Agriculture; the State Cooperative Extension Services; and the County 
Cooperative Extension Services.
    Cooperative State Research, Education, and Extension Service, United 
States Department of Agriculture as used in this part means the Federal 
agency within the United States Department of Agriculture which 
administers Federal agricultural cooperative extension programs.
    County Cooperative Extension Service as used in this part refers to 
a county Extension office or equivalent Extension office operating under 
a State Cooperative Extension Service.
    State Cooperative Extension Service as used in this part means an 
organization established at the land-grant college or university under 
the Smith-Lever Act of May 8, 1914, as amended (7 U.S.C. 341-349); 
section 209(b) of the Act of October 26, 1974, as amended (D.C. Code, 
through section 31-1719(b)); or

[[Page 338]]

section 1444 of the National Agricultural Research, Extension, and 
Teaching Policy Act of 1977, as amended (7 U.S.C. 3221).

[50 FR 31582, Aug. 2, 1985, as amended at 52 FR 8432, Mar. 17, 1987; 52 
FR 47660, Dec. 15, 1987; 60 FR 52293, Oct. 6, 1995]



Sec. 8.4  Basic premises.

    (a) The 4-H Club Name and Emblem are held in trust by the Secretary 
of Agriculture of the United States Department of Agriculture for the 
educational and character-building purposes of the 4-H program and can 
be used only as authorized by the statute and according to the 
authorization of the Secretary or designated representative.
    (b) The 4-H Club Name and Emblem may be used by authorized 
representatives of the United States Department of Agriculture, the 
Cooperative Extension Services, the land-grant institutions, and the 
National 4-H Council, according to these regulations, for serving the 
educational needs and interests of 4-H youth.
    (c) Any use of the 4-H Club Name and Emblem is forbidden if it 
exploits the 4-H programs, its volunteer leaders or 4-H youth 
participants or the United States Department of Agriculture, the 
Cooperative Extension Services, or the land-grant institutions, or their 
employees.
    (d) The 4-H Club Name and Emblem shall not be used to imply 
endorsement of commercial firms, products, or services.



Sec. 8.5  Revocation of present authorizations.

    Effective September 16, 1985, authorization permits for the use of 
the 4-H Club Name and Emblem presently in effect will be revoked. 
However, such authorizations may be renewed upon written request.



Sec. 8.6  Authorization for use.

    (a) The Administrator of the Cooperative State Research, Education, 
and Extension Service may grant authorization for use of the 4-H Club 
Name and Emblem:
    (1) For educational or informational uses which the Cooperative 
Extension Service deems to be in the best interests of the 4-H program 
and which can be properly controlled by the Cooperative Extension 
Service.
    (2) For services to youth which the Cooperative Extension Service 
determines it is not in a position itself to perform.
    (b) Authorizations, when issued, will be valid for specified 
purposes and periods of time only. Application forms for requesting 
authorization to use the 4-H Club Name and Emblem may be obtained from 
the Administrator of the Cooperative State Research, Education, and 
Extension Service, United States Department of Agriculture, Washington, 
D.C. 20250.
    (c) Granting an authorization to an individual, organization, or 
institution for a specific use does not preclude granting a similar 
authorization to another individual, organization, or institution for 
the same or a similar purpose.
    (d) All uses of the 4-H Club Name or Emblem shall be consistent with 
the educational purposes, character-building objectives, and dignity of 
the 4-H program and the 4-H Club Name or Emblem shall be given a 
position of prominence. It is not permissible to superimpose any letter, 
design, or object on the 4-H Club Emblem, or to materially alter its 
intended shape.
    (e) Specific authorization is not required to use the 4-H Club Name 
or Emblem in media such as newspapers, periodicals, and radio and 
television programs when such use is primarily for educational or 
informational purposes. Likewise, specific authorization is not required 
to use the 4-H Club Name or Emblem in those exhibits, displays, etc., 
which are designed primarily to pay tribute to or salute the 4-H program 
and are in keeping with the policies enunciated herein.
    (f) Authorization must be obtained for use of the 4-H Club Name or 
Emblem by other than representatives of the Cooperative Extension 
Services, the land-grant institutions, and the National 4-H Council in 
connection with contests and awards, books, booklets, charts, posters, 
and all other forms of publications; all calendars regardless of origin 
or use; theatrical and nontheatrical motion pictures; slides, slide 
films, and other visual and audio-

[[Page 339]]

visual materials; supplies (whether to be sold or provided without 
charge); and titles of persons.
    (g) Any authorization or permission for use of the 4-H Club Name and 
Emblem may be revoked at any time after written notice.

[50 FR 31582, Aug. 2, 1985, as amended at 60 FR 52293, Oct. 6, 1995]



Sec. 8.7  Continued use.

    (a) The Cooperative Extension Services, land-grant institutions, 
local 4-H Clubs and groups and other officially affiliated 4-H 
organziations recognized by the Secretary of Agriculture and the 
Cooperative Extension Service are authorized to use the 4-H Club Name or 
Emblem:
    (1) For their own educational or informational purposes according to 
these regulations;
    (2) On materials which are originated, requested, purchased, 
distributed, or sold by them for use in their respective geographical 
areas of responsibilities;
    (3) Except as specifically authorized by the above-named 
organizations for use within the respective geographic boundaries 
specified (club or group, county, area, State) and as provided for in 
paragraph (a)(4) of this section, manufacturers, wholesalers, jobbers, 
retailers, purchasers or others cannot manufacture, sell, or distribute 
materials bearing the 4-H Club Name or Emblem.
    (4) Any proposal for distribution on an interstate, regional, or 
nationwide basis of materials, supplies, and similar items bearing the 
4-H Club Name or Emblem which originates with an organization or 
individual not affiliated with the Cooperative Extension Service shall 
be brought to the attention of the Administrator of the Cooperative 
State Research, Education, and Extension Service, United States 
Department of Agriculture, for approval.
    (b) [Reserved]

[50 FR 31582, Aug. 2, 1985, as amended at 60 FR 52293, Oct. 6, 1995]



Sec. 8.8  Use by public informational services.

    (a) In any advertisement, display, exhibit, visual and audio-visual 
material, news release, publication in any form, radio and television 
program devoted in whole or in part to 4-H, the 4-H message or salute 
must be distinctly set apart from any commercial product message or 
reference.
    (b) Advertisements, news releases, publications in any form, visuals 
and audio-visuals, or displays in any form must not include actual or 
implied testimonials or endorsements of business firms, commercial 
products or services, either by 4-H Clubs, other 4-H organizations and 
affiliated groups, 4-H youth participants, volunteer 4-H leaders, the 
Cooperative Extension Services, the land-grant institutions, USDA, or by 
any employees associated with any of the foregoing. Statements that a 
product is used or preferred to the exclusion of similar products are 
not permitted.
    (c) The granting of an authorization to a non-Extension affiliated 
agency, organization or individual, for production of films, visual and 
audio-visual materials, books, publications in any form, etc., is 
contingent upon approval of the initial proposal and subject to review 
of the script of the visual or audio-visual or draft of the publication 
when the draft is in the final working form.



Sec. 8.9  Use in 4-H fund raising.

    (a) Fund-raising programs using the 4-H Name or Emblem may be 
carried out for specific educational purposes. Such fund-raising 
programs and use of the 4-H name and emblem on, or associated with, 
products, and services for such purposes must have the approval of 
appropriate Cooperative Extension office, as follows:
    (1) Approval of the County Cooperative Extension Service, or the 
appropriate land-grant institution, if the fund-raising program is 
confined to the area served by the County Cooperative Extension Service.
    (2) Approval of the State Cooperative Extension Service, or the 
appropriate land-grant institution, if the fund-raising program is 
multi-county or Statewide.
    (3) Approval of the Administrator of the Cooperative State Research, 
Education, and Extension Service, United States Department of 
Agriculture, or a

[[Page 340]]

designee, if the fund-raising program is multi-State or Nationwide.
    (b) When used to promote 4-H educational programs, the 4-H Club name 
and emblem, subject to obtaining authorization as provided in these 
regulations, may be used on or associated with products and services 
sold in connection with 4-H fund-raising programs so long as no 
endorsement or the appearance of an endorsement of a commercial firm, 
product or service is either intended or effected. Tributes to 4-H 
contained on or associated with commerical products or services, when 
such products or services are used for the fund-raising activities, are 
subject to the requirements of this paragraph. All moneys received from 
4-H fund-raising programs, except those necessary to pay reasonable 
expenses, must be expended to further the 4-H educational programs.

[52 FR 8432, Mar. 17, 1987, as amended at 60 FR 52293, Oct. 6, 1995]

                          PARTS 9-10 [RESERVED]



PART 11_NATIONAL APPEALS DIVISION--Table of Contents




         Subpart A_National Appeals Divison Rules of Procedures

Sec.
11.1 Definitions.
11.2 General statement.
11.3 Applicability.
11.4 Inapplicability of other laws and regulations.
11.5 Informal review of adverse decisions.
11.6 Director review of agency determination of appealability and right 
          of participants to Division hearing.
11.7 Ex parte communications.
11.8 Division hearings.
11.9 Director review of determinations of Hearings Officers.
11.10 Basis for determinations.
11.11 Reconsideration of Director determinations.
11.12 Effective date and implementation of final determinations of the 
          Division.
11.13 Judicial review.
11.14 Filing of appeals and computation of time.
11.15 Participation of third parties and interested parties in Division 
          proceedings.

                  Subpart B_Organization And Functions

11.20 General statement.
11.21 Organization.
11.22 Functions.

           Subpart C_Availability of Information to the Public

11.30 General statement.
11.31 Public inspection and copying.
11.32 Initial request for records.
11.33 Appeals.

Appendix A to Subpart C--List of Addresses

    Authority: 5 U.S.C. 301; Title II, Subtitle H, Pub. L. 103-354, 108 
Stat. 3228 (7 U.S.C. 6991 et seq.); Reorganization Plan No. 2 of 1953 (5 
U.S.C. App.).

    Source: 64 FR 33373, June 23, 1999, unless otherwise noted.



         Subpart A_National Appeals Divison Rules of Procedures



Sec. 11.1  Definitions.

    For purposes of this part:
    Adverse decision means an administrative decision made by an 
officer, employee, or committee of an agency that is adverse to a 
participant. The term includes a denial of equitable relief by an agency 
or the failure of an agency to issue a decision or otherwise act on the 
request or right of the participant within timeframes specified by 
agency program statutes or regulations or within a reasonable time if 
timeframes are not specified in such statutes or regulations. The term 
does not include a decision over which the Board of Contract Appeals has 
jurisdiction.
    Agency means:
    (1) The Commodity Credit Corporation (CCC);
    (2) The Farm Service Agency (FSA);
    (3) The Federal Crop Insurance Corporation (FCIC);
    (4) The Natural Resources Conservation Service (NRCS);
    (5) The Risk Management Agency (RMA);
    (6) The Rural Business-Cooperative Service (RBS);
    (7) Rural Development (RD);
    (8) The Rural Housing Service (RHS);
    (9) The Rural Utilities Service (RUS) (but not for programs 
authorized by the Rural Electrification Act of 1936 or the Rural 
Telephone Bank Act, 7 U.S.C. 901 et seq.);
    (10) A State, county, or area committee established under section 
8(b)(5)

[[Page 341]]

of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h 
(b)(5)); and
    (11) Any predecessor or successor agency to the above-named 
agencies, and any other agency or office of the Department which the 
Secretary may designate.
    Agency record means all the materials maintained by an agency 
related to an adverse decision which are submitted to the Division by an 
agency for consideration in connection with an appeal under this part, 
including all materials prepared or reviewed by the agency during its 
consideration and decisionmaking process, but shall not include records 
or information not related to the adverse decision at issue. All 
materials contained in the agency record submitted to the Division shall 
be deemed admitted as evidence for purposes of a hearing or a record 
review under Sec. 11.8.
    Agency representative means any person, whether or not an attorney, 
who is authorized to represent the agency in an administrative appeal 
under this part.
    Appeal means a written request by a participant asking for review by 
the National Appeals Division of an adverse decision under this part.
    Appellant means any participant who appeals an adverse decision in 
accordance with this part. Unless separately set forth in this part, the 
term ``appellant'' includes an authorized representative.
    Authorized representative means any person, whether or not an 
attorney, who is authorized in writing by a participant, consistent with 
Sec. 11.6(c), to act for the participant in an administrative appeal 
under this part. The authorized representative may act on behalf of the 
participant except when the provisions of this part require action by 
the participant or appellant personally.
    Case record means all the materials maintained by the Secretary 
related to an adverse decision: The case record includes both the agency 
record and the hearing record.
    Days means calendar days unless otherwise specified.
    Department means the United States Department of Agriculture (USDA).
    Director means the Director of the Division or a designee of the 
Director.
    Division means the National Appeals Division established by this 
part.
    Equitable relief means relief which is authorized under section 326 
of the Food and Agriculture Act of 1962 (7 U.S.C. 1339a) and other laws 
administered by the agency.
    Ex parte communication means an oral or written communication to any 
officer or employee of the Division with respect to which reasonable 
prior notice to all parties is not given, but it shall not include 
requests for status reports, or inquiries on Division procedure, in 
reference to any matter or proceeding connected with the appeal 
involved.
    Hearing, except with respect to Sec. 11.5, means a proceeding 
before the Division to afford a participant the opportunity to present 
testimony or documentary evidence or both in order to have a previous 
determination reversed and to show why an adverse determination was in 
error.
    Hearing Officer means an individual employed by the Division who 
conducts the hearing and determines appeals of adverse decisions by any 
agency.
    Hearing record means all documents, evidence, and other materials 
generated in relation to a hearing under $11.8.
    Implement means the taking of action by an agency of the Department 
in order fully and promptly to effectuate a final determination of the 
Division.
    Participant means any individual or entity who has applied for, or 
whose right to participate in or receive, a payment, loan, loan 
guarantee, or other benefit in accordance with any program of an agency 
to which the regulations in this part apply is affected by a decision of 
such agency. The term does not include persons whose claim(s) arise 
under:
    (1) Programs subject to various proceedings provided for in 7 CFR 
part 1;
    (2) Programs governed by Federal contracting laws and regulations 
(appealable under other rules and to other forums, including to the 
Department's Board of Contract Appeals under 7 CFR part 24);

[[Page 342]]

    (3) The Freedom of Information Act (appealable under 7 CFR part 1, 
subpart A);
    (4) Suspension and debarment disputes, including, but not limited 
to, those falling within the scope of 7 CFR parts 1407 and 3017;
    (5) Export programs administered by the Commodity Credit 
Corporation;
    (6) Disputes between reinsured companies and the Federal Crop 
Insurance Corporation;
    (7) Tenant grievances or appeals prosecutable under the provisions 
of 7 CFR part 1944, subpart L, under the multi-family housing program 
carried out by RHS;
    (8) Personnel, equal employment opportunity, and other similar 
disputes with any agency or office of the Department which arise out of 
the employment relationship;
    (9) The Federal Tort Claims Act, 28 U.S.C. 2671 et seq., or the 
Military Personnel and Civilian Employees Claims Act of 1964, 31 U.S.C. 
3721;
    (10) Discrimination complaints prosecutable under the 
nondiscrimination regulations at 7 CFR parts 15, 15a, 15b, 15e, and 15f; 
or
    (11) Section 361, et seq., of the Agricultural Adjustment Act of 
1938, as amended (7 U.S.C. 1361, et seq.) involving Tobacco Marketing 
Quota Review Committees.
    Record review means an appeal considered by the Hearing Officer in 
which the Hearing Officer's determination is based on the agency record 
and other information submitted by the appellant and the agency, 
including information submitted by affidavit or declaration.
    Secretary means the Secretary of Agriculture.



Sec. 11.2  General statement.

    (a) This part sets forth procedures for proceedings before the 
National Appeals Division within the Department. The Division is an 
organization within the Department, subject to the general supervision 
of and policy direction by the Secretary, which is independent from all 
other agencies and offices of the Department, including Department 
officials at the state and local level. The Director of the Division 
reports directly to the Secretary of Agriculture. The authority of the 
Hearing Officers and the Director of the Division, and the 
administrative appeal procedures which must be followed by program 
participants who desire to appeal an adverse decision and by the agency 
which issued the adverse decision, are included in this part.
    (b) Pursuant to section 212(e) of the Federal Crop Insurance Reform 
and Department of Agriculture Reorganization Act of 1994, Pub. L. 103-
354 (the Act), 7 U.S.C. 6912(e), program participants shall seek review 
of an adverse decision before a Hearing Officer of the Division, and may 
seek further review by the Director, under the provisions of this part 
prior to seeking judicial review.



Sec. 11.3  Applicability.

    (a) Subject matter. The regulations contained in this part are 
applicable to adverse decisions made by an agency, including, for 
example, those with respect to:
    (1) Denial of participation in, or receipt of benefits under, any 
program of an agency;
    (2) Compliance with program requirements;
    (3) The making or amount of payments or other program benefits to a 
participant in any program of an agency; and
    (4) A determination that a parcel of land is a wetland or highly 
erodible land.
    (b) Limitation. The procedures contained in this part may not be 
used to seek review of statutes or USDA regulations issued under Federal 
Law.



Sec. 11.4  Inapplicability of other laws and regulations.

    (a) Reserved.
    (b) The Federal Rules of Evidence, 28 U.S.C. App., shall not apply 
to proceedings under this part.



Sec. 11.5  Informal review of adverse decisions.

    (a) Required informal review of FSA adverse decisions. Except with 
respect to farm credit programs, a participant must seek an informal 
review of an adverse decision issued at the field service office level 
by an officer or employee of FSA, or by any employee of a

[[Page 343]]

county or area committee established under section 8(b)(5) of the Soil 
Conservation and Domestic Allotment Act, 16 U.S.C. 590h(b)(5), before 
NAD will accept an appeal of a FSA adverse decision. Such informal 
review shall be done by the county or area committee with responsibility 
for the adverse decision at issue. The procedures for requesting such an 
informal review before FSA are found in 7 CFR part 780. After receiving 
a decision upon review by a county or area committee, a participant may 
seek further informal review by the State FSA committee or may appeal 
directly to NAD under Sec. 11.6(b).
    (b) Optional informal review. With respect to adverse decisions 
issued at the State office level of FSA and adverse decisions of all 
other agencies, a participant may request an agency informal review of 
an adverse decision of that agency prior to appealing to NAD. Procedures 
for requesting such an informal review are found at 7 CFR part 780 
(FSA), 7 CFR part 614 (NRCS), 7 CFR part 1900, subpart B (RUS), 7 CFR 
part 1900, subpart B (RBS), and 7 CFR part 1900, subpart B (RHS).
    (c) Mediation. A participant also shall have the right to utilize 
any available alternative dispute resolution (ADR) or mediation program, 
including any mediation program available under title V of the 
Agricultural Credit Act of 1987, 7 U.S.C. 5101 et seq., in order to 
attempt to seek resolution of an adverse decision of an agency prior to 
a NAD hearing. If a participant:
    (1) Requests mediation or ADR prior to filing an appeal with NAD, 
the participant stops the running of the 30-day period during which a 
participant may appeal to NAD under Sec. 11.6(b)(1), and will have the 
balance of days remaining in that period to appeal to NAD once mediation 
or ADR has concluded.
    (2) Requests mediation or ADR after having filed an appeal to NAD 
under Sec. 11.6(b), but before the hearing, the participant will be 
deemed to have waived his right to have a hearing within 45 days under 
Sec. 11.8(c)(1) but shall have a right to have a hearing within 45 days 
after conclusion of mediation or ADR.



Sec. 11.6  Director review of agency determination of appealability 
and right of participants to Division hearing.

    (a) Director review of agency determination of appealability. (1) 
Not later than 30 days after the date on which a participant receives a 
determination from an agency that an agency decision is not appealable, 
the participant must submit a written request personally signed by the 
participant to the Director to review the determination in order to 
obtain such review by the Director.
    (2) The Director shall determined whether the decision is adverse to 
the individual participant and thus appealable or is a matter of general 
applicability and thus not subject to appeal, and will issue a final 
determination notice that upholds or reverses the determination of the 
agency. This final determination is not appealable. If the Director 
reverses the determination of the agency, the Director will notify the 
participant and the agency of that decision and inform the participant 
of his or her right to proceed with an appeal.
    (3) The Director may delegate his or her authority to conduct a 
review under this paragraph to any subordinate official of the Division 
other than a Hearing Officer. In any case in which such review is 
conducted by such a subordinate official, the subordinate official's 
determination shall be considered to be the determination of the 
Director and shall be final and not appealable.
    (b) Appeals of adverse decisions. (1) To obtain a hearing under 
Sec. 11.8, a participant personally must request such hearing not later 
than 30 days after the date on which the participant first received 
notice of the adverse decision or after the date on which the 
participant receives notice of the Director's determination that a 
decision is appealable. In the case of the failure of an agency to act 
on the request or right of a recipient, a participant personally must 
request such hearing not later than 30 days after the participant knew 
or reasonably should have known that the agency had not acted within the 
timeframes specified by agency program regulations, or, where such 
regulations specify no timeframes, not later than

[[Page 344]]

30 days after the participant reasonably should have known of the 
agency's failure to act.
    (2) A request for a hearing shall be in writing and personally 
signed by the participant, and shall include a copy of the adverse 
decision to be reviewed, if available, along with a brief statement of 
the participant's reasons for believing that the decision, or the 
agency's failure to act, was wrong. The participant also shall send a 
copy of the request for a hearing to the agency, and may send a copy of 
the adverse decision to be reviewed to the agency, but failure to do 
either will not constitute grounds for dismissal of the appeal. Instead 
of a hearing, the participant may request a record review.
    (c) If a participant is represented by an authorized representative, 
the authorized representative must file a declaration with NAD, executed 
in accordance with 28 U.S.C. 1746, stating that the participant has duly 
authorized the declarant in writing to represent the participant for 
purposes of a specified adverse decision or decisions, and attach a copy 
of the written authorization to the declaration.



Sec. 11.7  Ex parte communications.

    (a)(1) At no time between the filing of an appeal and the issuance 
of a final determination under this part shall any officer or employee 
of the Division engage in ex parte communications regarding the merits 
of the appeal with any person having any interest in the appeal pending 
before the Division, including any person in an advocacy or 
investigative capacity. This prohibition does not apply to:
    (i) Discussions of procedural matters related to an appeal; or
    (ii) Discussions of the merits of the appeal where all parties to 
the appeal have been given notice and an opportunity to participate.
    (2) In the case of a communication described in paragraph (a)(1)(ii) 
of this section, a memorandum of any such discussion shall be included 
in the hearing record.
    (b) No interested person shall make or knowingly cause to be made to 
any officer or employee of the Division an ex parte communication 
relevant to the merits of the appeal.
    (c) If any officer or employee of the Division receives an ex parte 
communication in violation of this section, the one who receives the 
communication shall place in the hearing record:
    (1) All such written communications;
    (2) Memoranda stating the substance of all such oral communications; 
and
    (3) All written responses to such communications, and memoranda 
stating the substance of any oral responses thereto.
    (d) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section the Hearing 
Officer or Director may, to the extent consistent with the interests of 
justice and the policy of the underlying program, require the party to 
show cause why such party's claim or interest in the appeal should not 
be dismissed, denied, disregarded, or otherwise adversely affected on 
account of such violation.



Sec. 11.8  Division hearings.

    (a) General rules. (1) The Director, the Hearing Officer, and the 
appellant shall have access to the agency record of any adverse decision 
appealed to the Division for a hearing. Upon request by the appellant, 
the agency shall provide the appellant a copy of the agency record.
    (2) The Director and Hearing Officer shall have the authority to 
administer oaths and affirmations, and to require, by subpoena, the 
attendance of witnesses and the production of evidence. A Hearing 
Officer shall obtain the concurrence of the Director prior to issuing a 
subpoena.
    (i) A subpoena requiring the production of evidence may be requested 
and issued at any time while the case is pending before the Division.
    (ii) An appellant or an agency, acting through any appropriate 
official, may request the issuance of a subpoena requiring the 
attendance of a witness by submitting such a request in writing at least 
14 days before the scheduled date of a hearing. The Director or Hearing 
Officer shall issue a subpoena at least 7 days prior to the scheduled 
date of a hearing.
    (iii) A subpoena shall be issued only if the Director or a Hearing 
Officer determined that:

[[Page 345]]

    (A) For a subpoena of documents, the appellant or the agency has 
established that production of documentary evidence is necessary and is 
reasonably calculated to lead to information which would affect the 
final determination or is necessary to fully present the case before the 
Division; or
    (B) For a subpoena of a witness, the appellant or the agency has 
established that either a representative of the Department or a private 
individual possesses information that is pertinent and necessary for 
disclosure of all relevant facts which could impact the final 
determination, that the information cannot be obtained except through 
testimony of the person, and that the testimony cannot be obtained 
absent issuance of a subpoena.
    (iv) The party requesting issuance of a subpoena shall arrange for 
service. Service of a subpoena upon a person named therein may be made 
by registered or certified mail, or in person. Personal service shall be 
made by personal delivery of a copy of the subpoena to the person named 
therein by any person who is not a party and who is not less than 18 
years of age. Proof of service shall be made by filing with the Hearing 
Officer or Director who issued the subpoena a statement of the date and 
manner of service and of the names of the persons served, certified by 
the person who made the service in person or by return receipts for 
certified or registered mail.
    (v) A party who requests that a subpoena be issued shall be 
responsible for the payment of any reasonable travel and subsistence 
costs incurred by the witness in connection with his or her appearance 
and any fees of a person who serves the subpoena in person. The 
Department shall pay the costs associated with the appearance of a 
Department employee whose role as a witness arises out of his or her 
performance of official duties, regardless of which party requested the 
subpoena. The failure to make payment of such charges on demand may be 
deemed by the Hearing Officer or Director as sufficient ground for 
striking the testimony of the witness and the evidence the witness has 
produced.
    (vi) If a person refuses to obey a subpoena, the Director, acting 
through the Office of the General Counsel of the Department and the 
Department of Justice, may apply to the United States District Court in 
the jurisdiction where that person resides to have the subpoena enforced 
as provided in the Federal Rules of Civil Procedure (28 U.S.C. App.).
    (3) Testimony required by subpoena pursuant to paragraph (a)(2) of 
this section may, at the discretion of the Director or a Hearing 
Officer, be presented at the hearing either in person or telephonically.
    (b) Hearing procedures applicable to both record review and 
hearings. (1) Upon the filing of an appeal under this part of an adverse 
decision by any agency, the agency promptly shall provide the Division 
with a copy of the agency record. If requested by the applicant prior to 
the hearing, a copy of such agency record shall be provided to the 
appellant by the agency within 10 days of receipt of the request by the 
agency.
    (2) The Director shall assign the appeal to a Hearing Officer and 
shall notify the appellant and agency of such assignment. The notice 
also shall advise the appellant and the agency of the documents required 
to be submitted under paragraph (c)(2) of this section, and notify the 
appellant of the option of having a hearing by telephone.
    (3) The Hearing Officer will receive evidence into the hearing 
record without regard to whether the evidence was known to the agency 
officer, employee, or committee making the adverse decision at the time 
the adverse decision was made.
    (c) Procedures applicable only to hearings. (1) Upon a timely 
request for a hearing under Sec. 11.6(b), an appellant has the right to 
have a hearing by the Division on any adverse decision within 45 days 
after the date of receipt of the request for the hearing by the 
Division.
    (2) The Hearing Officer shall set a reasonable deadline for 
submission of the following documents:
    (i) By the appellant;
    (A) A short statement of why the decision is wrong;
    (B) A copy of any document not in the agency record that the 
appellant anticipates introducing at the hearing; and

[[Page 346]]

    (C) A list of anticipated witnesses and brief descriptions of the 
evidence such witnesses will offer.
    (ii) By the agency:
    (A) A copy of the adverse decision challenged by the appellant;
    (B) A written explanation of the agency's position, including the 
regulatory or statutory basis therefor;
    (C) A copy of any document not in the agency record that the agency 
anticipates introducing at the hearing; and
    (D) A list of anticipated witnesses and brief descriptions of the 
evidence such witnesses will offer.
    (3) Not less than 14 days prior to the hearing, the Division must 
provide the appellant, the authorized representative, and the agency a 
notice of hearing specifying the date, time, and place of the hearing. 
The hearing will be held in the State of residence of the appellant, as 
determined by the Hearing Officer, or at a location that is otherwise 
convenient to the appellant, the agency, and the Division. The notice 
also shall notify all parties of the right to obtain an official record 
of the hearing.
    (4) Pre-hearing conference. Whenever appropriate, the Hearing 
Officer shall hold a pre-hearing conference in order to attempt to 
resolve the dispute or to narrow the issues involved. Such pre-hearing 
conference shall be held by telephone unless the Hearing Officer and all 
parties agree to hold such conference in person.
    (5) Conduct of the hearing. (i) A hearing before a Hearing Officer 
will be in person unless the appellant agrees to a hearing by telephone.
    (ii) The hearing will be conducted by the Hearing Officer in the 
manner determined by the Division most likely to obtain the facts 
relevant to the matter or matters at issue. The Hearing Officer will 
allow the presentation of evidence at the hearing by any party without 
regard to whether the evidence was known to the officer, employee, or 
committee of the agency making the adverse decision at the time the 
adverse decision was made. The Hearing Officer may confine the 
presentation of facts and evidence to pertinent matters and exclude 
irrelevant, immaterial, or unduly repetitious evidence, information, or 
questions. Any party shall have the opportunity to present oral and 
documentary evidence, oral testimony of witnesses, and arguments in 
support of the party's position; controvert evidence relied on by any 
other party; and question all witnesses. When appropriate, agency 
witnesses requested by the appellant will be made available at the 
hearing. Any evidence may be received by the Hearing Officer without 
regard to whether that evidence could be admitted in judicial 
proceedings.
    (iii) An official record shall be made of the proceedings of every 
hearing. This record will be made by an official tape recording by the 
Division. In addition, either party may request that a verbatim 
transcript be made of the hearing proceedings and that such transcript 
shall be made the official record of the hearing. The party requesting a 
verbatim transcript shall pay for the transcription service, shall 
provide a certified copy of the transcript to the Hearing Officer free 
of charge, and shall allow any other party desiring to purchase a copy 
of the transcript to order it from the transcription service.
    (6) Absence of parties. (i) If at the time scheduled for the hearing 
either the appellant or the agency representative is absent, and no 
appearance is made on behalf of such absent party, or no arrangements 
have been made for rescheduling the hearing, the Hearing Officer has the 
option to cancel the hearing unless the absent party has good cause for 
the failure to appear. If the Hearing Officer elects to cancel the 
hearing, the Hearing Officer may:
    (A) Treat the appeal as a record review and issue a determination 
based on the agency record as submitted by the agency and the hearing 
record developed prior to the hearing date;
    (B) Accept evidence into the hearing record submitted by any party 
present at the hearing (subject to paragraph (c)(6)(ii) of this 
section), and then issue a determination; or
    (C) Dismiss the appeal.
    (ii) When a hearing is cancelled due to the absence of a party, the 
Hearing Officer will add to the hearing record any additional evidence 
submitted by any party present, provide a copy of such evidence to the 
absent party or

[[Page 347]]

parties, and allow the absent party or parties 10 days to provide a 
response to such additional evidence for inclusion in the hearing record
    (iii) Where an absent party has demonstrated good cause for the 
failure to appear, the Hearing Officer shall reschedule the hearing 
unless all parties agree to proceed without a hearing.
    (7) Post-hearing procedure. The Hearing Officer will leave the 
hearing record open after the hearing for 10 days, or for such other 
period of time as the Hearing Officer shall establish, to allow the 
submission of information by the appellant or the agency, to the extent 
necessary to respond to new facts, information, arguments, or evidence 
presented or raised at the hearing. Any such new information will be 
added by the Hearing Office to the hearing record and sent to the other 
party or parties by the submitter of the information. The Hearing 
Officer, in his or her discretion, may permit the other party or parties 
to respond to this post-hearing submission.
    (d) Interlocutory review. Interlocutory review by the Director of 
rulings of a Hearing Officer are not permitted under the procedures of 
this part.
    (e) Burden of proof. The appellant has the burden of proving that 
the adverse decision of the agency was erroneous by a preponderance of 
the evidence.
    (f) Timing of issuance of determination. The Hearing Officer will 
issue a notice of the determination on the appeal to the named 
appellant, the authorized representative, and the agency not later than 
30 days after a hearing or the closing date of the hearing record in 
cases in which the Hearing Officer receives additional evidence from the 
agency or appellant after a hearing. In the case of a record review, the 
Hearing Officer will issue a notice of determination within 45 days of 
receipt of the appellant's request for a record review. Upon the Hearing 
Officer's request, the Director may establish an earlier or later 
deadline. A notice of determination shall be accompanied by a copy of 
the procedures for filing a request for Director review under Sec. 
11.9. If the determination is not appealed to the Director for review 
under Sec. 11.9, the notice provided by the Hearing Officer shall be 
considered to be a notice of a final determination under this part.



Sec. 11.9  Director review of determinations of Hearing Officers.

    (a) Requests for Director review. (1) Not later than 30 days after 
the date on which an appellant receives the determination of a Hearing 
Officer under Sec. 11.8, the appellant must submit a written request, 
signed personally by the named appellant, to the Director to review the 
determination in order to be entitled to such review by the Director. 
Such request shall include specific reasons why the appellant believes 
the determination is wrong.
    (2) Not later than 15 business days after the date on which an 
agency receives the determination of a Hearing Officer under Sec. 11.8, 
the head of the agency may make a written request that the Director 
review the determination. Such request shall include specific reasons 
why the agency believes the determination is wrong, including citations 
of statutes or regulations that the agency believes the determination 
violates. Any such request may be made by the head of an agency only, or 
by a person acting in such capacity, but not by any subordinate officer 
of such agency.
    (3) A copy of a request for Director review submitted under this 
paragraph shall be provided simultaneously by the submitter to each 
party to the appeal.
    (b) Notification of parties. The Director promptly shall notify all 
parties of receipt of a request for review.
    (c) Responses to request for Director review. Other parties to an 
appeal may submit written responses to a request for Director review 
within 5 business days from the date of receipt of a copy of the request 
for review.
    (d) Determination of Director. (1) The Director will conduct a 
review of the determination of the Hearing Officer using the agency 
record, the hearing record, the request for review, any responses 
submitted under paragraph (c) of this section, and such other arguments 
or information as may be accepted by the Director, in order to determine 
whether the decision of the

[[Page 348]]

Hearing Officer is supported by substantial evidence. Based on such 
review, the Director will issue a final determination notice that 
upholds, reverses, or modifies the determination of the Hearing Officer. 
The Director's determination upon review of a Hearing Officer's decision 
shall be considered to be the final determination under this part and 
shall not be appealable. However, if the Director determines that the 
hearing record is inadequate or that new evidence has been submitted, 
the Director may remand all or a portion of the determination to the 
Hearing Officer for further proceedings to complete the hearing record 
or, at the option of the Director, to hold a new hearing.
    (2) The Director will complete the review and either issue a final 
determination or remand the determination not later than--
    (i) 10 business days after receipt of the request for review, in the 
case of a request by the head of an agency; or
    (ii) 30 business days after receipt of the request for review, in 
the case of a request by an appellant.
    (3) In any case or any category of cases, the Director may delegate 
his or her authority to conduct a review under this section to any 
Deputy or Assistant Directors of the Division. In any case in which such 
review is conducted by a Deputy or Assistant Director under authority 
delegated by the Director, the Deputy or Assistant Director's 
determination shall be considered to be the determination of the 
Director under this part and shall be final and not appealable.
    (e) Equitable relief. In reaching a decision on an appeal, the 
Director shall have the authority to grant equitable relief under this 
part in the same manner and to the same extent as such authority is 
provided an agency under applicable laws and regulations.



Sec. 11.10  Basis for determinations.

    (a) In making a determination, the Hearing Officers and the Director 
are not bound by previous findings of facts on which the agency's 
adverse decision was based.
    (b) In making a determination on the appeal, Hearing Officers and 
the Director shall ensure that the decision is consistent with the laws 
and regulations of the agency, and with the generally applicable 
interpretations of such laws and regulations.
    (c) All determinations of the Hearing Officers and the Director must 
be based on information from the case record, laws applicable to the 
matter at issue, and applicable regulations published in the Federal 
Register and in effect on the date of the adverse decision or the date 
on which the acts that gave rise to the adverse decision occurred, 
whichever date is appropriate under the applicable agency program laws 
and regulations.



Sec. 11.11  Reconsideration of Director determinations.

    (a) Reconsideration of a determination of the Director may be 
requested by the appellant or the agency within 10 days of receipt of 
the determination. The Director will not consider any request for 
reconsideration that does not contain a detailed statement of a material 
error of fact made in the determination, or a detailed explanation of 
how the determination is contrary to statute or regulation, which would 
justify reversal or modification of the determination.
    (b) The Director shall issue a notice to all parties as to whether a 
request for reconsideration meets the criteria in paragraph (a) of this 
section. If the request for reconsideration meets such criteria, the 
Director shall include a copy of the request for reconsideration in the 
notice to the non-requesting parties to the appeal. The non-requesting 
parties shall have 5 days from receipt of such notice from the Director 
to file a response to the request for reconsideration with the Director.
    (c) The Director shall issue a decision on the request for 
reconsideration within 5 days of receipt of responses from the non-
requesting parties. If the Director's decision upon reconsideration 
reverses or modifies the final determination of the Director rendered 
under Sec. 11.9(d), the Director's decision on reconsideration will 
become the final determination of the Director under Sec. 11.9(d) for 
purposes of this part.

[[Page 349]]



Sec. 11.12  Effective date and implementation of final determinations 
of the Division.

    (a) On the return of a case to an agency pursuant to the final 
determination of the Division, the head of the agency shall implement 
the final determination not later than 30 days after the effective date 
of the notice of the final determination.
    (b) A final determination will be effective as of the date of filing 
of an application, the date of the transaction or event in question, or 
the date of the original adverse decision, whichever is applicable under 
the applicable agency program statutes or regulations.



Sec. 11.13  Judicial review.

    (a) A final determination of the Division shall be reviewable and 
enforceable by any United States District Court of competent 
jurisdiction in accordance with chapter 7 of title 5, United States 
Code.
    (b) An appellant may not seek judicial review of any agency adverse 
decision appealable under this part without receiving a final 
determination from the Division pursuant to the procedures of this part.



Sec. 11.14  Filing of appeals and computation of time.

    (a) An appeal, a request for Director Review, or any other document 
will be considered ``filed'' when delivered in writing to the Division, 
when postmarked, or when a complete facsimile copy is received by the 
Division.
    (b) Whenever the final date for any requirement of this part falls 
on a Saturday, Sunday, Federal holiday, or other day on which the 
Division is not open for the transaction of business during normal 
working hours, the time for filing will be extended to the close of 
business on the next working day.
    (c) The time for filing an appeal, a request for Director review, or 
any other document expires at 5:00 p.m. local time at the office of the 
Division to which the filing is submitted on the last day on which such 
filing may be made.



Sec. 11.15  Participation of third parties and interested parties in 
Division proceedings.

    In two situations, parties other than the appellant or the agency 
may be interested in participating in Division proceedings. In the first 
situation, a Division proceeding may in fact result in the adjudication 
of the rights of a third party, e.g., an appeal of a tenant involving a 
payment shared with a landlord, an appeal by one recipient of a portion 
of a payment shared by multiple parties, an appeal by one heir of an 
estate. In the second situation, a party may desire to receive notice of 
and perhaps participate in an appeal because of the derivative impact 
the appeal determination will have on that party, e.g., guaranteed 
lenders and reinsurance companies. The provisions in this section set 
forth rules for the participation of such third and interested parties.
    (a) Third parties. When an appeal is filed, the Division shall 
notify any potential third party whose rights may be adjudicated of its 
right to participate as an appellant in the appeal. This includes the 
right to seek Director review of the Hearing Officer determination. Such 
third parties may be identified by the Division itself, by an agency, or 
by the original appellant. The Division shall issue one notice to the 
third party of its right to participate, and if such party declines to 
participate, the Division determination will be binding as to that third 
party as if it had participated. For purposes of this part, a third 
party includes any party for which a determination of the Division could 
lead to an agency action on implementation that would be adverse to the 
party thus giving such party a right to a Division appeal.
    (b) Interested parties. With respect to a participant who is a 
borrower under a guaranteed loan or an insured under a crop insurance 
program, the respective guaranteed lender or reinsurance company having 
an interest in a participant's appeal under this part may participate in 
the appeal as an interested party, but such participation does not 
confer the status of an appellant upon the guaranteed lender or 
reinsurance

[[Page 350]]

company such that it may request Director review of a final 
determination of the Division.



                  Subpart B_Organization And Functions

    Authority: 5 U.S.C. 301 and 552; 7 CFR part 2.

    Source: 63 FR 44773, Aug. 21, 1998, unless otherwise noted.



Sec. 11.20  General statement.

    This subpart provides guidance for the general public as to the 
organization and functions of NAD.



Sec. 11.21  Organization.

    NAD was established on October 13, 1994. Delegation of authority to 
the Director, NAD, appears at Sec. 2.34 of this title. The organization 
is comprised of three regional offices: Eastern Regional Office, 
Indianapolis, Indiana; Southern Regional Office, Memphis, Tennessee; and 
Western Regional Office, Lakewood, Colorado; and the headquarters staff 
located in Alexandria, Virginia. NAD is headed by a Director. NAD is 
assigned responsibility for certain administrative appeals as set forth 
in subpart A of this part.



Sec. 11.22  Functions.

    (a) Director. Provides executive direction for NAD. The Director is 
responsible for developing and implementing nationwide plans, policies, 
and procedures for the timely and orderly hearing and disposition of 
appeals filed by individuals or entities in accordance with subpart A of 
this part. The Director will respond to all FOIA requests concerning 
appeal decisions and case records maintained by NAD.
    (b) Deputy Director for Hearings and Administration. Responsible for 
all administrative functions of NAD, including budget, correspondence, 
personnel, travel, equipment, and regulation review and development.
    (c) Deputy Director for Planning, Training, and Quality Control. 
Responsible for NAD strategic planning, including the organization's 
compliance with the Government Performance and Results Act, Pub. L. 103-
62, employee training, and the establishment and maintenance of a 
quality assurance program.
    (d) Assistant Directors for Regions. Responsible for oversight of 
the adjudication process for cases filed in the NAD regional offices. 
Assistant Directors ensure statutory and administrative time frames are 
met, and oversee the administrative functions, training, and supervision 
of the support staff located in the regional offices and the large 
dispersed staff of professional hearing officers located throughout the 
regions. The three regional offices serve as the custodian for all NAD 
determinations and case records.



           Subpart C_Availability of Information to the Public

    Authority: 5 U.S.C. 301 and 552; 7 CFR 1.1-1.16.

    Source: 63 FR 44774, Aug. 21, 1998, unless otherwise noted.



Sec. 11.30  General statement.

    This subpart implements the regulations of the Secretary of 
Agriculture at 7 CFR 1.1 through 1.16 concerning FOIA (5 U.S.C. 552). 
The Secretary's regulations, as implemented by the regulations in this 
part, govern the availability of the records of NAD to the public.



Sec. 11.31  Public inspection and copying.

    Section 1.5 of this title requires that certain materials be made 
available by each USDA agency for public inspection and copying in 
accordance with 5 U.S.C. 522(a)(2). Members of the public wishing to 
gain access to these NAD records should write to the appropriate address 
shown in Appendix A of this subpart.



Sec. 11.32  Initial requests for records.

    (a) Requests for NAD records should be in writing and addressed to 
the NAD official having custody of the records desired as indicated in 
Sec. 11.22(d). Addresses are found in Appendix A of this subpart. In 
his or her petition, the requester may ask for a fee waiver if there is 
likely to be a charge for the requested information. The criteria for 
waiver of fees are found in section 6 of appendix A, subpart A of part 1 
of this

[[Page 351]]

title. All requests for records shall be deemed to have been made 
pursuant to FOIA, regardless of whether FOIA is specifically mentioned. 
To facilitate processing of a request, the phrase ``FOIA REQUEST'' 
should be placed in capital letters on the front of the envelope.
    (b) A request must reasonably describe records to enable NAD 
personnel to locate them with reasonable effort. Where possible, a 
requester should supply specific information, such as dates, titles, 
appellant name or appeal number, that may help identify the records. If 
the request relates to a matter in pending litigation, the court and its 
location should be identified.
    (c) If NAD determines that a request does not reasonably describe 
the records, it shall inform the requester of this fact and extend the 
requester an opportunity to clarify the request or to confer promptly 
with knowledgeable NAD personnel to attempt to identify the records he 
or she is seeking. The ``date of receipt'' in such instances, for 
purposes of Sec. 1.12(a) of this title, shall be the date of receipt of 
the amended or clarified request.
    (d) Nothing in this subpart shall be interpreted to preclude NAD 
from honoring an oral request for information, but if the requester is 
dissatisfied with the response, the NAD official involved shall advise 
the requester to submit a written request in accordance with paragraph 
(a) of this section. The ``date of receipt'' of such a request for 
purposes of Sec. 1.12(a) of this title shall be the date of receipt of 
the written request. For recordkeeping purposes, the NAD official 
responding to an oral request for information may ask the requester to 
also submit his or her request in writing.
    (e) If a request for records or a fee waiver under this subpart is 
denied, the person making the request shall have the right to appeal the 
denial. Requesters also may appeal NAD decisions regarding a requester's 
status for purposes of fee levels under section 5 of Appendix A, subpart 
A of part 1 of this title. All appeals must be in writing and addressed 
to the official designated in Sec. 11.33. To facilitate processing of 
an appeal, the phrase ``FOIA APPEAL'' should be placed in capital 
letters on the front of the envelope.
    (f) NAD shall develop and maintain a record of all written and oral 
FOIA requests and FOIA appeals received by NAD, which shall include, in 
addition to any other information, the name of the requester, brief 
summary of the information requested, an indication of whether the 
request or appeal was denied or partially denied, the FOIA exemption(s) 
cited as the basis for any denials, and the amount of fees associated 
with the request or appeal.



Sec. 11.33  Appeals.

    Any person whose initial FOIA request is denied in whole or in part 
may appeal that denial to the Director, National Appeals Division, U.S. 
Department of Agriculture, 3101 Park Center Drive, Suite 1113, 
Alexandria, Virginia 22302. The Director will make the final 
determination on the appeal.

          Appendix A to Subpart C of Part 11--List of Addresses

    This list provides the titles and mailing addresses of officials who 
have custody of NAD records. This list also identifies the normal 
working hours, Monday through Friday, excluding holidays, during which 
public inspection and copying of certain kinds of records is permitted.

Director, National Appeals Division, U.S. Department of Agriculture, 
3101 Park Center Drive, Suite 1113, Alexandria, Virginia 22302, Hours: 8 
a.m.-5 p.m.
Regional Assistant Director, Eastern Region, National Appeals Division, 
U.S. Department of Agriculture, 3500 DePauw Boulevard, Suite 2052, 
Indianapolis, Indiana 46268, Hours: 8 a.m.-5 p.m.
Regional Assistant Director, Southern Region, National Appeals Division, 
U.S. Department of Agriculture, 7777 Walnut Grove Road, LLB-1, Memphis, 
Tennessee 38120, Hours: 8 a.m.-5 p.m.
Regional Assistant Director, Western Region, National Appeals Division, 
U.S. Department of Agriculture, 755 Parfet Street, Suite 494, Lakewood, 
Colorado 80215-5506, Hours: 8 a.m.-5 p.m.



PART 12_HIGHLY ERODIBLE LAND AND WETLAND CONSERVATION--Table of Contents




                      Subpart A_General Provisions

Sec.
12.1 General.
12.2 Definitions.

[[Page 352]]

12.3 Applicability.
12.4 Determination of ineligibility.
12.5 Exemption.
12.6 Administration.
12.7 Certification of compliance.
12.8 Affiliated persons.
12.9 Landlords and tenants.
12.10 Scheme or device.
12.11 Action based upon advice or action of USDA.
12.12 Appeals.

               Subpart B_Highly Erodible Land Conservation

12.20 NRCS responsibilities regarding highly erodible land.
12.21 Identification of highly erodible lands criteria.
12.22 Highly erodible field determination criteria.
12.23 Conservation plans and conservation systems.

                     Subpart C_Wetland Conservation

12.30 NRCS responsibilities regarding wetlands.
12.31 On-site wetland identification criteria.
12.32 Converted wetland identification criteria.
12.33 Use of wetland and converted wetland.
12.34 Paperwork Reduction Act assigned number.

    Authority: 16 U.S.C. 3801 et seq.

    Source: 61 FR 47025, Sept. 6, 1996, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 12.1  General.

    (a) Scope. This part sets forth the terms and conditions under which 
a person who produces an agricultural commodity on highly erodible land 
or designates such land for conservation use, plants an agricultural 
commodity on a converted wetland, or converts a wetland shall be 
determined to be ineligible for certain benefits provided by the United 
States Department of Agriculture (USDA) and agencies and 
instrumentalities of USDA.
    (b) Purpose. The purpose of the provisions of this part are to 
remove certain incentives for persons to produce agricultural 
commodities on highly erodible land or converted wetland and to 
thereby--
    (1) Reduce soil loss due to wind and water erosion;
    (2) Protect the Nation's long-term capability to produce food and 
fiber;
    (3) Reduce sedimentation and improve water quality; and
    (4) Assist in preserving the functions and values of the Nation's 
wetlands.



Sec. 12.2  Definitions.

    (a) General. The following definitions shall be applicable for the 
purposes of this part:
    Agricultural commodity means any crop planted and produced by annual 
tilling of the soil, including tilling by one-trip planters, or 
sugarcane.
    CCC means the Commodity Credit Corporation, a wholly-owned 
government corporation within USDA organized under the provisions of 15 
U.S.C. 714 et seq.
    Conservation District (CD) means a subdivision of a State or local 
government organized pursuant to the applicable law to develop and 
implement soil and water conservation activities or programs.
    Conservation plan means the document that--
    (1) Applies to highly erodible cropland;
    (2) Describes the conservation system applicable to the highly 
erodible cropland and describes the decisions of the person with respect 
to location, land use, tillage systems, and conservation treatment 
measures and schedules; and
    (3) Is approved by the local soil conservation district in 
consultation with the local committees established under section 8(b)(5) 
of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 
590h(b)(5)) and the Natural Resources Conservation Service (NRCS) for 
purposes of compliance with this part.
    Conservation system means a combination of one or more conservation 
measures or management practices that are--
    (1) Based on local resource conditions, available conservation 
technology, and the standards and guidelines contained in the NRCS field 
office technical guides (available from NRCS State offices); and
    (2) Designed for purposes of this part to achieve, in a cost-
effective and technically practicable manner, a substantial reduction in 
soil erosion or a substantial improvement in soil conditions on a field 
or group of fields containing highly erodible cropland when

[[Page 353]]

compared to the level of erosion or soil conditions that existed before 
the application of the conservation measures and management practices.
    Conservation use or set aside means cropland that is designated as 
conservation-use acreage, set aside, or other similar designation for 
the purpose of fulfilling provisions under any acreage-limitation or 
land-diversion program administered by the Secretary of Agriculture 
requiring that the producer devote a specified acreage to conservation 
or other non-crop production uses.
    Creation of a wetland means the development of the hydrologic, 
geochemical, and biological components necessary to support and maintain 
a wetland where a wetland did not previously exist. Any wetland 
established on a non-hydric soil will be considered a created wetland.
    CSREES means the Cooperative State Research, Education, and 
Extension Service, an agency of USDA which is generally responsible for 
coordinating the information and educational programs of USDA.
    Department means the United States Department of Agriculture (USDA).
    Enhancement of a wetland means the alteration of an existing wetland 
to increase its specific functions and values. Enhancement actions 
include new capabilities, management options, structures, or other 
actions to influence one or several functions and values.
    Erodibility index means a numerical value that expresses the 
potential erodibility of a soil in relation to its soil loss tolerance 
value without consideration of applied conservation practices or 
management.
    FSA means the Farm Service Agency, an agency of USDA which is 
generally responsible for administering commodity production adjustment 
and certain conservation programs of USDA.
    Field means a part of a farm that is separated from the balance of 
the farm by permanent boundaries such as fences, roads, permanent 
waterways, or other similar features. At the option of the owner or 
operator of the farm, croplines may also be used to delineate a field if 
farming practices make it probable that the croplines are not subject to 
change. Any highly erodible land on which an agricultural commodity is 
produced after December 23, 1985, and is not exempt under Sec. 12.5(a), 
shall be considered part of the field in which the land was included on 
December 23, 1985, unless, to carry out this title, the owner and FSA 
agree to modify the boundaries of the field.
    Highly erodible land means land that has an erodibility index of 8 
or more.
    Hydric soils means soils that, in an undrained condition, are 
saturated, flooded, or ponded long enough during a growing season to 
develop an anaerobic condition that supports the growth and regeneration 
of hydrophytic vegetation.
    Hydrophytic vegetation means plants growing in water or in a 
substrate that is at least periodically deficient in oxygen during a 
growing season as a result of excessive water content.
    Landlord means a person who rents or leases farmland to another 
person.
    Local FSA office means the county office of the Farm Service Agency 
serving the county or a combination of counties in the area in which a 
person's land is located for administrative purposes.
    NRCS means the Natural Resources Conservation Service, an agency 
within USDA which is generally responsible for providing technical 
assistance in matters of natural resources conservation and for 
administering certain conservation programs of USDA.
    Operator means the person who is in general control of the farming 
operations on the farm during the crop year.
    Owner means a person who is determined to have legal ownership of 
farmland and shall include a person who is purchasing farmland under 
contract.
    Person means an individual, partnership, association, corporation, 
cooperative, estate, trust, joint venture, joint operation, or other 
business enterprise or other legal entity and, whenever applicable, a 
State, a political subdivision of a State, or any agency thereof, and 
such person's affiliates as provided in Sec. 12.8 of this part.
    Restoration of a wetland means the re-establishment of wetland 
conditions, including hydrologic condition or native hydrophytic 
vegetation, to an area

[[Page 354]]

where a wetland had previously existed.
    Secretary means the Secretary of USDA.
    Sharecropper means a person who performs work in connection with the 
production of a crop under the supervision of the operator and who 
receives a share of such crop for such labor.
    Soil map unit means an area of the landscape shown on a soil map 
which consists of one or more soils.
    State means each of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, the Virgin Islands of the United 
States, American Samoa, the Commonwealth of the Northern Mariana 
Islands, or the Trust Territory of the Pacific Islands.
    Tenant means a person usually called a ``cash tenant'', ``fixed-rent 
tenant'', or ``standing rent tenant'' who rents land from another for a 
fixed amount of cash or a fixed amount of a commodity to be paid as 
rent; or a person (other than a sharecropper) usually called a ``share 
tenant'' who rents land from another person and pays as rent a share of 
the crops or proceeds therefrom. A tenant shall not be considered the 
farm operator unless the tenant is determined to be the operator 
pursuant to this part and 7 CFR part 718.
    Wetland, except when such term is a part of the term ``converted 
wetland'', means land that--
    (1) Has predominance of hydric soils;
    (2) Is inundated or saturated by surface or groundwater at a 
frequency and duration sufficient to support a prevalence of hydrophytic 
vegetation typically adapted for life in saturated soil conditions; and
    (3) Under normal circumstances does support a prevalence of such 
vegetation, except that this term does not include lands in Alaska 
identified as having a high potential for agricultural development and a 
predominance of permafrost soils.
    Wetland determination means a decision regarding whether or not an 
area is a wetland, including identification of wetland type and size. A 
wetland determination may include identification of an area as one of 
the following types of wetland--
    (1) Artificial wetland is an area that was formerly non-wetland, but 
now meets wetland criteria due to human activities, such as:
    (i) An artificial lake or pond created by excavating or diking land 
that is not a wetland to collect and retain water that is used primarily 
for livestock, fish production, irrigation, wildlife, fire control, 
flood control, cranberry growing, or rice production, or as a settling 
pond; or
    (ii) A wetland that is temporarily or incidentally created as a 
result of adjacent development activity;
    (2) Commenced-conversion wetland is a wetland, farmed wetland, 
farmed-wetland pasture, or a converted wetland on which conversion 
began, but was not completed, prior to December 23, 1985.
    (3) Converted wetland is a wetland that has been drained, dredged, 
filled, leveled, or otherwise manipulated (including the removal of 
woody vegetation or any activity that results in impairing or reducing 
the flow and circulation of water) for the purpose of or to have the 
effect of making possible the production of an agricultural commodity 
without further application of the manipulations described herein if:
    (i) Such production would not have been possible but for such 
action, and
    (ii) Before such action such land was wetland, farmed wetland, or 
farmed-wetland pasture and was neither highly erodible land nor highly 
erodible cropland;
    (4) Farmed wetland is a wetland that prior to December 23, 1985, was 
manipulated and used to produce an agricultural commodity, and on 
December 23, 1985, did not support woody vegetation and met the 
following hydrologic criteria:
    (i) Is inundated for 15 consecutive days or more during the growing 
season or 10 percent of the growing season, whichever is less, in most 
years (50 percent chance or more), or
    (ii) If a pothole, playa, or pocosion, is ponded for 7 or more 
consecutive days during the growing season in most years (50 percent 
chance of more) or is saturated for 14 or more consecutive days during 
the growing season in most years (50 percent chance or more);
    (5) Farmed-wetland pasture is wetland that was manipulated and 
managed for pasture or hayland prior to December

[[Page 355]]

23, 1985, and on December 23, 1985, met the following hydrologic 
criteria:
    (i) Inundated or ponded for 7 or more consecutive days during the 
growing season in most years (50) percent chance or more), or
    (ii) Saturated for 14 or more consecutive days during the growing 
season in most years (50 percent chance or more);
    (6) Not-inventoried land, is an area for which no evaluation of 
soils, vegetation, or hydrology has been conducted to determine if 
wetland criteria are met;
    (7) Non-wetland is;
    (i) Land that under natural conditions does not meet wetland 
criteria, or
    (ii) Is converted wetland the conversion of which occurred prior to 
December 23, 1985, and on that date, the land did not meet wetland 
criteria but an agricultural commodity was not produced and the area was 
not managed for pasture or hay;
    (8) Prior-converted cropland is a converted wetland where the 
conversion occurred prior to December 23, 1985, an agricultural 
commodity had been produced at least once before December 23, 1985, and 
as of December 23, 1985, the converted wetland did not support woody 
vegetation and met the following hydrologic criteria:
    (i) Inundation was less than 15 consecutive days during the growing 
season or 10 percent of the growing season, whichever is less, in most 
years (50 percent chance or more); and
    (ii) If a pothole, playa or pocosin, ponding was less than 7 
consecutive days during the growing season in most years (50 percent 
chance or more) and saturation was less than 14 consecutive days during 
the growing season most years (50 percent chance or more); or
    (9) Wetland, as defined above in this section.
    Wetland delineation means outlining the boundaries of a wetland 
determination on aerial photography, digital imagery, other graphic 
representation of the area, or on the land.
    (b) Terms for FSA operations. In the regulations in this part, and 
in all instructions, forms, and documents in connection therewith, all 
other words and phrases specifically relating to FSA operations shall, 
unless required by the subject matter or the specific provisions of this 
part, have the meanings assigned to them in the regulations at part 718 
of this title that govern reconstitutions of farms, allotments, and 
bases and any subsequent amendment thereto.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.3  Applicability.

    (a) Geographic scope. The provisions of this part shall apply to all 
land, including Indian tribal land, in the fifty States, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Island of 
the United States, American Samoa, the Commonwealth of the Northern 
Mariana Islands, and the Federated States of Micronesia, the Republic of 
Palau, and the Republic of the Marshall Islands.
    (b) Effective date. The provisions of this part apply to all actions 
taken after July 3, 1996, and to determinations made after or pending on 
July 3, 1996, except to the extent that Sec. 12.5(a)(5) and 12.5 (b)(4) 
through (b)(8) specify retroactive application on December 23, 1985, and 
November 28, 1990, for certain actions and determinations regarding 
wetlands and converted wetlands. Actions taken and determinations made 
prior to July 3, 1996, are subject to regulations set forth in this part 
as of July 2, 1996, except as otherwise provided in this part. Further, 
to the extent that a person may be eligible for an exemption for an 
action taken before July 3, 1996, the action is subject to the 
provisions of this part.



Sec. 12.4  Determination of ineligibility.

    (a) Actions. Except as provided in Sec. 12.5, a person shall be 
ineligible for all or a portion of USDA program benefits listed in this 
section if:
    (1) The person produces an agricultural commodity on a field in 
which highly erodible land is predominant, or designates such a field 
for conservation use;
    (2) The person produces an agricultural commodity on wetland that 
was converted after December 23, 1985; or
    (3) After November 28, 1990, the person converts a wetland by 
draining, dredging, filling, leveling, removing woody vegetation, or 
other means for

[[Page 356]]

the purpose, or to have the effect, of making the production of an 
agricultural commodity possible.
    (b) Highly erodible land. A person determined to be ineligible under 
paragraph (a)(1) of this section may be ineligible for all program 
benefits listed in (d) and (e) of this section.
    (c) Wetland conservation. A person determined to be ineligible under 
paragraph (a)(2) of this section shall be ineligible for all or a 
portion of the USDA program benefits listed in paragraph (d) of this 
section for which the person otherwise would have been eligible during 
the crop year of the commodity that was planted on the converted 
wetland. A person determined to be ineligible under paragraph (a)(3) of 
this section for the conversion of a wetland shall be ineligible for all 
or a portion of the USDA program benefits listed in paragraph (d) of 
this section for which the person otherwise would have been eligible 
during the crop year which is equal to the calendar year during which 
the violation occurred and each subsequent crop year until the converted 
wetland is restored or the loss of wetland functions and values have 
been mitigated prior to the beginning of such calendar year in 
accordance with Sec. 12.5(b)(4)(i) (A) and (C) through (F) of this 
part. Ineligibility under paragraph (a)(2) or (a)(3) of this section may 
be reduced, in lieu of the loss of all benefits specified under 
paragraph (d) of this section for such crop year, based on the 
seriousness of the violation, as determined by the FSA Deputy 
Administrator for Farm Programs or designee upon recommendation by the 
FSA County Committee. Factors such as the information that was available 
to the affected person prior to the violation, previous land use 
patterns, the existence of previous wetland violations under this part 
or under other Federal, State, or local wetland provisions, the wetland 
functions and values affected, the recovery time for full mitigation of 
the wetland functions and values, and the impact that a reduction in 
payments would have on the person's ability to repay a USDA farm loan 
shall be considered to making this determination.
    (d) Programs subject to either highly erodible land or wetland 
conservation. USDA program benefits covered by a determination of 
ineligibility under this rule are:
    (1) Contract payments under a production flexibility contract, 
marketing assistance loans, and any type of price support or payment 
made available under the Agricultural Market Transition Act, the 
Commodity Credit Corporation Charter Act (15 U.S.C. 714 et seq.), or any 
other Act;
    (2) A farm credit program loan made or guaranteed under the 
Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) or 
any other provision of law administered by FSA if the Secretary 
determines that the proceeds of such loan will be used for a purpose 
that contributes to the conversion of wetlands that would make 
production of an agricultural commodity possible or for a purpose that 
contributes to excessive erosion of highly erodible land (i.e., 
production of an agricultural commodity or highly erodible land without 
a conservation plan or conservation system as required by this part);
    (3) A payment made pursuant to a contract entered into under the 
Environmental Quality Incentives Program under chapter 4 of subtitle D 
of the Food Security Act of 1985, as amended; or a payment under any 
other provision of Subtitle D of that Act;
    (4) A payment made under section 401 or 402 of the Agricultural 
Credit Act of 1978 (16 U.S.C. 2201 or 2202);
    (5) A payment, loan, or other assistance under section 3 or 8 of the 
Watershed Protection and Flood Prevention Act (16 U.S.C. 1003 or 1006a).
    (e) Programs subject to highly erodible land only. In addition to 
programs listed in paragraph (d) of this section, a person determined to 
be ineligible under paragraph (a)(1) of this section shall be ineligible 
as determined by FSA for the following USDA program benefits for which 
the person otherwise would have been eligible during the crop year for 
which the determination applies:
    (1) A farm storage facility loan made under section 4(h) of the 
Commodity Credit Corporation Charter Act (15 U.S.C. 714b(h));
    (2) A disaster payment made under the Federal Agricultural 
Improvement

[[Page 357]]

and Reform Act, Pub. L. 104-127, or any other act; and
    (3) A payment made under section 4 or 5 of the Commodity Credit 
Corporation Charter Act (15 U.S.C. 714b or 714c) for the storage of an 
agricultural commodity acquired by the Commodity Credit Corporation.
    (f) Prior loans. The provisions of paragraphs (a), (b), and (c) of 
this section do not apply to any loan described in paragraphs (d) or (e) 
of this section that was made prior to December 23, 1985.
    (g) Determination of ineligibility. For the purpose of paragraph (a) 
of this section, a person shall be determined to have produced an 
agricultural commodity on a field in which highly erodible land is 
predominant or to have designated such a field for conservation use, to 
have produced an agricultural commodity on converted wetland, or to have 
converted a wetland if:
    (1) NRCS has determined that--
    (i) Highly erodible land is predominant in such field, or
    (ii) All or a portion of the field is converted wetland; and
    (2) FSA has determined that the person is or was the owner or 
operator of the land, or entitled to share in the crops available from 
the land, or in the proceeds thereof; and
    (3) With regard to the provisions of paragraph (a)(1) and (a)(2) of 
this section, FSA has determined that the land is or was planted to an 
agricultural commodity or was designated as conservation use during the 
year for which the person is requesting benefits.
    (h) Intent to participate in USDA programs. Persons who wish to 
participate in any of the USDA programs described in paragraph (d) or 
(e) of this section are responsible for contacting the appropriate 
agency of USDA well in advance of the intended participated date so that 
Form AD-1026 can be completed. This contact will help assure that the 
appropriate determinations regarding highly erodible land or wetland, 
and conservation plans or conservation systems are scheduled in a timely 
manner. A late contact may not allow sufficient time for USDA to service 
the request and could result in a substantial delay in receiving a USDA 
determination of eligibility or ineligibility.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.5  Exemption.

    (a) Exemptions regarding highly erodible land--(1) Highly erodible 
cropland in production or in USDA programs during 1981 through 1985 crop 
years. During the period beginning on December 23, 1985, and ending on 
the later of January 1, 1990, or the date that is two years after the 
date the cropland on which an agricultural commodity is produced was 
surveyed by NRCS to determine if such land is highly erodible, no person 
shall be determined to be ineligible for benefits as provided in Sec. 
12.4 as the result of the production of an agricultural commodity on any 
highly erodible land:
    (i) That was planted to an agricultural commodity in any year 1981 
through 1985; or
    (ii) That was set aside, diverted, or otherwise not cultivated in 
any such crop years under a program administered by the Secretary for 
any such crops to reduce production of an agricultural commodity.
    (2) Compliance with a conservation plan or conservation system. As 
further specified in this part, no person shall be ineligible for the 
program benefits described in Sec. 12.4 as the result of production of 
an agricultural commodity on highly erodible land or the designation of 
such land for conservation use if such production or designation is in 
compliance with a conservation plan or conservation system approved 
under paragraph (a)(2)(i) or (a)(2)(ii) of this section. A person shall 
not be ineligible for program benefits under Sec. 12.4 as the result of 
the production of an agricultural commodity on highly erodible land or 
as the result of designation of such land as conservation use if the 
production or designation is:
    (i) In an area within a CD, under a conservation system that has 
been approved by the CD after the CD determines that the conservation 
system is in conformity with technical standards set forth in the NRCS 
field office technical guide for such district; or
    (ii) In an area not within a CD, under a conservation system that 
has been approved by NRCS to be adequate for

[[Page 358]]

the production of such agricultural commodity on highly erodible land or 
for the designation of such land as conservation use.
    (3) Reliance upon NRCS determination for highly erodible land. A 
person may be relieved from ineligibility for program benefits as the 
result of the production of an agricultural commodity which was produced 
on highly erodible land or for the designation of such land as 
conservation use in reliance on a determination by NRCS that such land 
was not highly erodible land, except that this paragraph shall not apply 
to any agricultural commodity that was planted on highly erodible land, 
or for the designation of highly erodible land as conservation use after 
NRCS determines that such land is highly erodible land, and the person 
is notified of such determinations.
    (4) Areas of 2 acres or less. No person shall be determined to be 
ineligible under Sec. 12.4 for noncommercial production of agricultural 
commodities on highly erodible land on an area of 2 acres or less if it 
is determined by FSA that such production is not intended to circumvent 
the conservation requirements otherwise applicable under this part.
    (5) Good faith. (i) No person shall become ineligible under Sec. 
12.4 as a result of the failure of such person to apply a conservation 
system on highly erodible land that was converted from native 
vegetation, i.e. rangeland or woodland, to crop production before 
December 23, 1985, if FSA determines such person has acted in good faith 
and without the intent to violate the provisions of this part and if 
NRCS determines that the person complies with paragraph (a)(5)(ii) of 
this section.
    (ii) A person is who determined to meet the requirements of 
paragraph (a)(5)(i) of this section shall be allowed a reasonable period 
of time, as determined by NRCS, but not to exceed one year, during which 
to implement the measures and practices necessary to be considered 
applying the person's conservation plan. If a person does not take the 
required corrective actions, the person may be determined to be 
ineligible for the crop year during which such actions were to be taken 
as well as any subsequent crop years. Notwithstanding the good-faith 
requirements of paragraph (a)(5)(i) of this section, if NRCS observes a 
possible compliance deficiency while providing on-site technical 
assistance, NRCS shall provide to the responsible person, not later than 
45 days after observing the possible violation, information regarding 
actions needed to comply with the plan and this subtitle. NRCS shall 
provide this information in lieu of reporting the observation as a 
violation, if the responsible person attempts to correct the 
deficiencies as soon as practicable, as determined by NRCS, after 
receiving the information, and if the person takes corrective action as 
directed by NRCS not later than one year after receiving the 
information. If a person does not take the required corrective actions, 
the person may be determined to be ineligible for the crop year during 
which the compliance deficiencies occurred as well as any subsequent 
crop years.
    (iii) No person shall become ineligible under Sec. 12.4 as a result 
of failure to apply a conservation system with respect to highly 
erodible cropland that was converted from native vegetation, i.e., 
rangeland or woodland, to crop production after December 23, 1985, if 
such person has acted in good faith and without an intent to violate the 
provisions of this part. The person shall, in lieu of the loss of all 
benefits specified under Sec. 12.4 (d) and (e) for such crop year, be 
subject to a reduction in benefits of not less than $500 nor more than 
$5,000 depending upon the seriousness of the violation, as determined by 
FSA. The dollar amount of the reduction will be determined by FSA and 
may be based on the number of acres and the degree of erosion hazard for 
the area in violation, as determined by NRCS, or upon such other factors 
as FSA deems appropriate.
    (iv) Any person whose benefits are reduced in a crop year under 
paragraph (a)(5) of this section may be eligible for all of the benefits 
specified under Sec. 12.4 (d) and (e) for any subsequent crop year if 
NRCS determines that such person is applying a conservation plan 
according to the schedule set forth in the plan on all highly erodible 
land planted to an agricultural commodity or designated as conservation 
use.

[[Page 359]]

    (6) Allowable variances. (i) Notwithstanding any other provisions of 
this part, no person shall be determined to be ineligible for benefits 
as a result of the failure of such person to apply a conservation system 
if NRCS determines that--
    (A) The failure is technical and minor in nature and that such 
violation has little effect on the erosion control purposes of the 
conservation plan applicable to the land on which the violation has 
occurred; or
    (B) The failure is due to circumstances beyond the control of the 
person; or
    (C) NRCS grants a temporary variance from the practices specified in 
the plan for the purpose of handling a specific problem, including 
weather, pest, and disease problems, which NRCS determines cannot 
reasonably be addressed except through such variance.
    (ii) If the person's request for a temporary variance involves the 
use of practices or measures to address weather, pest, or disease 
problems, NRCS shall make a decision on whether to grant the variance 
during the 30-day period beginning on the date of receipt of the 
request. If NRCS fails to render a decision during the period, the 
temporary variance shall be considered granted unless the person seeking 
the variance had reason to know that the variance would not be granted. 
In determining whether to grant a variance for natural disasters such as 
weather, pest, or disease problems, NRCS will consider such factors as:
    (A) The percent of a stand damaged or destroyed by the event;
    (B) The percent of expected crop production compared to normal 
production for that crop;
    (C) The documented invasion of non-native insects, weeds, or 
diseases for which no recognized treatment exists;
    (D) Whether an event is severe or unusual based on historical 
weather records; and
    (E) Other specific circumstances caused by a natural event that 
prevented the implementation of conservation practices or systems, 
installation of structures, or planting of cover crops.
    (b) Exemptions for wetlands and converted wetlands--(1) General 
exemptions. A person shall not be determined to be ineligible for 
program benefits under Sec. 12.4 as the result of the production of an 
agricultural commodity on converted wetland or the conversion of wetland 
if:
    (i) The land is a prior-converted cropland and meets the definition 
of a prior-converted cropland as of the date of a wetland determination 
by NRCS;
    (ii) The land has been determined by NRCS to be a prior-converted 
cropland and such determination has been certified, and NRCS determines 
that the wetland characteristics returned after the date of the wetland 
certification as a result of--
    (A) The lack of maintenance of drainage, dikes, levees, or similar 
structures,
    (B) The lack of management of the lands containing the wetland, or
    (C) Circumstances beyond the control of the person;
    (iii) The land was determined by NRCS to be a farmed wetland or a 
farmed-wetland pasture and--
    (A) Such land meets wetland criteria through a voluntary 
restoration, enhancement, or creation action after that determination,
    (B) The technical determinations regarding the baseline site 
conditions and the restoration, enhancement, or creation action have 
been adequately documented by NRCS,
    (C) The proposed conversion action is documented by the NRCS prior 
to implementation, and
    (D) The extent of the proposed conversion is limited so that the 
conditions will be at least equivalent to the wetland functions and 
values that existed at the time of implementation of the voluntary 
wetland restoration, enhancement, or creation action;
    (iv) NRCS has determined that the conversion if for a purpose that 
does not make the production of an agricultural commodity possible, such 
as conversions for fish production, trees, vineyards, shrubs, 
cranberries, agricultural waste management structures, livestock ponds, 
fire control, or building and road construction and no agricultural 
commodity is produced on such land;
    (v) NRCS has determined that the actions of the person with respect 
to the

[[Page 360]]

conversion of the wetland or the combined effect of the production of an 
agricultural commodity on a wetland converted by the person or by 
someone else, individually and in connection with all other similar 
actions authorized by NRCS in the area, would have only a minimal effect 
on the wetland functions and values of wetlands in the area;
    (vi)(A) After December 23, 1985, the Army Corps of Engineers issued 
an individual permit pursuant to section 404 of the Clean Water Act, 33 
U.S.C. 1344, authorizing such action and the permit required mitigation 
that adequately replaced the functions and values of the wetlands 
converted, as determined by NRCS, or
    (B) After December 23, 1985, the action is encompassed under section 
404 of the Clean Water Act, 33 U.S.C. 1344, by an Army Corps of 
Engineers nationwide or regional general permit and the wetland 
functions and values were adequately mitigated, as determined by NRCS; 
or
    (vii) The land is determined by NRCS to be--
    (A) An artificial wetland,
    (B) A wet area created by a water delivery system, irrigation, 
irrigation system, or application of water for irrigation,
    (C) A nontidal drainage or irrigation ditch excavated in non-
wetland, or
    (D) A wetland converted by actions of persons other than the person 
applying for USDA program benefits or any of the person's predecessors 
in interest after December 23, 1985, if such conversion was not the 
result of a scheme or device to avoid compliance with this part. Further 
drainage improvement on such land is not permitted without loss of 
eligibility for USDA program benefits, unless NRCS determines under 
paragraph (b)(1)(v) of this section that further drainage activities 
applied to such land would have minimal effect on the wetland functions 
and values in the area. In applying this paragraph, a converted wetland 
shall be presumed to have been converted by the person applying for USDA 
program benefits unless the person can show that the conversion was 
caused by a third party with whom the person was not associated through 
a scheme or device as described under Sec. 12.10 of this part. In this 
regard, activities of a water resource district, drainage district, or 
similar entity will be attributed to all persons within the jurisdiction 
of the district or other entity who are assessed for the activities of 
the district or entity. Accordingly, where a person's wetland is 
converted due to the actions of the district or entity, the person shall 
be considered to have caused or permitted the drainage. Notwithstanding 
the provisions of the preceding sentences and as determined by FSA to be 
consistent with the purposes of this part, the activities of a drainage 
district or other similar entity will not be attributed to a person to 
the extent that the activities of the district or entity were beyond the 
control of the person and the wetland converted is not used by the 
person for the production of an agricultural commodity or a forage crop 
for harvest by mechanical means or mitigation for the converted wetland 
occurs in accordance with this part.
    (2) Commenced conversion wetlands. (i) The purpose of a 
determination of a commenced conversion made under this paragraph is to 
implement the legislative intent that those persons who had actually 
started conversion of a wetland or obligated funds for conversion prior 
to December 23, 1985, would be allowed to complete the conversion so as 
to avoid unnecessary economic hardship.
    (ii) All persons who believed they had a wetland or converted 
wetland for which conversion began but was not completed prior to 
December 23, 1985, must have requested by September 19, 1988, FSA to 
make a determination of commencement in order to be considered exempt 
under this section.
    (iii) Any conversion activity considered by FSA to be commenced 
under this section lost its exempt status if such activity as not 
completed on or before January 1, 1995. For purposes of this part, land 
on which such conversion activities were completed by January 1, 1995, 
shall be evaluated by the same standards and qualify for the same 
exemptions as prior-converted croplands. For purposes of this part, land 
on which such conversion activities were not completed by January 1, 
1995, shall be evaluated by the same

[[Page 361]]

standards and qualify for the same exemptions as wetlands or farmed 
wetlands, as applicable.
    (iv) Only those wetlands for which the construction had begun, or to 
which the contract or purchased supplies and materials related, 
qualified for a determination of commencement. However, in those 
circumstances where the conversion of wetland did not meet the specific 
requirements of this paragraph, the person could have requested a 
commencement of conversion determination from the FSA Deputy 
Administrator for Farm Programs, upon a showing that undue economic 
hardship would have resulted because of substantial financial 
obligations incurred prior to December 23, 1985, for the primary and 
direct purpose of converting the wetland.
    (3) Wetlands farmed under natural conditions. A person shall not be 
determined to be ineligible for program benefits under Sec. 12.4 of 
this part as a result of the production of an agricultural commodity on 
a wetland on which the owner or operator of a farm or ranch uses normal 
cropping or ranching practices to produce agricultural commodities in a 
manner that is consistent for the area, where such production is 
possible as a result of natural conditions, such as drought, and is 
without action by the producer that alters the hydrology or removes 
woody vegetation.
    (4) Mitigation. (i) No person shall be determined to be ineligible 
under Sec. 12.4 for any action associated with the conversion of a 
wetland if the wetland functions and values are adequately mitigated, as 
determined by NRCS, through the restoration of a converted wetland, the 
enhancement of an existing wetland, or the creation of a new wetland, if 
the mitigation--
    (A) Is in accordance with a mitigation plan approved by NRCS;
    (B) Is in advance of, or concurrent with, the wetland conversion or 
the production of an agricultural commodity, as applicable;
    (C) Is not at the expense of the federal government in either 
supporting the direct or indirect costs of the restoration activity or 
costs associated with acquiring or securing mitigation sites, except if 
conducted under a mitigation banking pilot program established by USDA;
    (D) Occurs on lands in the same general area of the local watershed 
as the converted wetlands, provided that for purposes of this paragraph, 
lands in the same general area of the local watershed may include 
regional mitigation banks;
    (E) Is on lands for which the owner has granted an easement to USDA, 
recorded the easement on public land records, and has agreed to the 
maintenance of the restored, created, or enhanced wetland for as long as 
the converted wetland for which the mitigation occurred remains in 
agricultural use or is not returned to its original wetland 
classification with equivalent functions and values; and
    (F) Provides the equivalent functions and values that will be lost 
as a result of the wetland conversion.
    (ii) A mitigation plan is a record of decisions that document the 
actions necessary to compensate for the loss of wetland functions and 
values that result from converting a wetland. The mitigation plan may be 
a component of a larger natural resources conservation plan.
    (iii) The State Conservationist, in consultation with the State 
Technical Committee, may name certain types or classes of wetland not 
eligible for exemption under paragraph (b)(4)(i) of this section where 
the State Conservationist determines that mitigation will not achieve 
equivalent replacement of wetland functions and values within a 
reasonable time frame or for other reasons identified by the State 
Conservationist. Any type or class of wetland that a State 
Conservationist identifies as not eligible for exemption under paragraph 
(b)(4)(i) of this section will be published in the Federal Register for 
inclusion in this part.
    (5) Good faith violations. (i) A person who is determined under 
Sec. 12.4 to be ineligible for benefits as the result of the production 
of an agricultural commodity on a wetland converted after December 23, 
1985, or as the result of the conversion of a wetland after November 28, 
1990, may regain eligibility for benefits if--

[[Page 362]]

    (A) FSA determines that such person acted in good faith and without 
the intent to violate the wetland provisions of this part, and
    (B) NRCS determines that the person within an agreed to period, not 
to exceed 1 year, is implementing all practices in a mitigation plan.
    (ii) In determining whether a person acted in good faith under 
paragraph (b)(5)(i)(A) of this section, the FSA shall consider such 
factors as whether--
    (A) The characteristics of the site were such that the person should 
have been aware that a wetland existed on the subject land,
    (B) NRCS had informed the person about the existence of a wetland on 
the subject land,
    (C) The person did not convert the wetland, but planted an 
agricultural commodity on converted wetland when the person should have 
known that a wetland previously existed on the subject land,
    (D) The person has a record of violating the wetland provisions of 
this part or other Federal, State, or local wetland provisions, or
    (E) There exists other information that demonstrates that the person 
acted with the intent to violate the wetland provisions of this part.
    (iii) After the requirements of paragraph (b)(5)(i) of this section 
are met, USDA may waive applying the ineligibility provisions of Sec. 
12.4.
    (6) Reliance upon NRCS wetland determination. (i) A person shall not 
be ineligible for program benefits as a result of taking an action in 
reliance on a previous certified wetland determination by NRCS.
    (ii) A person who may be ineligible for program benefits as the 
result of the production of an agricultural commodity on converted 
wetland or for the conversion of a wetland may seek relief under Sec. 
12.11 of this part if such action was taken in reliance on an incorrect 
technical determination by NRCS as to the status of such land. If the 
error caused the person to make a substantial financial investment, as 
determined by the NRCS, for the conversion of a wetland, the person may 
be relieved of ineligibility for actions related to that portion of the 
converted wetland for which the substantial financial investment was 
expended in conversion activities. The relief available under this 
paragraph shall not apply to situations in which the person knew or 
reasonably should have known that the determination was in error because 
the characteristics of the site were such that the person should have 
been aware that a wetland existed on the subject land, or for other 
reasons.
    (7) Responsibility to provide evidence. It is the responsibility of 
the person seeking an exemption related to converted wetlands under this 
section to provide evidence, such as receipts, crop-history data, 
drawings, plans or similar information, for purposes of determining 
whether the conversion or other action is exempt in accordance with this 
section.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.6  Administration.

    (a) General. A determination of ineligibility for benefits in 
accordance with the provisions of this part shall be made by the agency 
of USDA to which the person has applied for benefits. All determinations 
required to be made under the provisions of this part shall be made by 
the agency responsible for making such determinations, as provided in 
this section.
    (b) Administration by FSA. (1) The provisions of this part which are 
applicable to FSA will be administered under the general supervision of 
the Administrator, FSA, and shall be carried out in the field in part by 
State FSA committees and county FSA committees (COC).
    (2) The FSA Deputy Administrator for Farm Programs may determine any 
question arising under the provisions of this part which are applicable 
to FSA and may reverse or modify any determination of eligibility with 
respect to programs administered by FSA made by a State FSA committee or 
COC or any other FSA office or FSA official (except the Administrator) 
in connection with the provisions of this part.
    (3) FSA shall make the following determinations which are required 
to be made in accordance with this part:

[[Page 363]]

    (i) Whether a person produced an agricultural commodity on a 
particular field as determined under Sec. 12.5(a)(1);
    (ii) The establishment of field boundaries;
    (iii) Whether land was planted to an agricultural commodity in any 
of the years, 1981 through 1985, for the purposes of Sec. 12.5(a)(1);
    (iv) Whether land was set aside, diverted, or otherwise not 
cultivated under a program administered by the Secretary for any crop to 
reduce production of an agricultural commodity under Sec. 12.4(g) and 
Sec. 12.5(a)(1);
    (v) Whether for the purposes of Sec. 12.9, the production of an 
agricultural commodity on highly erodible land or converted wetland by a 
landlord's tenant or sharecropper is required under the terms and 
conditions of the agreement between the landlord and such tenant or 
sharecropper;
    (vi) Whether the conversion of a particular wetland was commenced 
before December 23, 1985, for the purposes of Sec. 12.5(b)(3);
    (vii) Whether the conversion of a wetland was caused by a third 
party under Sec. 12.5(b)(1)(vii)(D);
    (viii) Whether certain violations were made in good faith under 
Sec. Sec. 12.5(a)(5) or 12.5(b)(5);
    (ix) The determination of the amount of reduction in benefits based 
on the seriousness of the violation, based on technical information 
provided by NRCS;
    (x) The determination of whether the application of the producer's 
conservation system would impose an undue economic hardship on the 
producer; and
    (xi) Whether the proceeds of a farm loan made, insured, or 
guaranteed by FSA will be used for a purpose that will contribute to 
excessive erosion of highly erodible land or to the conversion of 
wetland.
    (4) A representative number of farms selected in accordance with 
instructions issued by the Deputy Administrator shall be inspected by an 
authorized representative of FSA to determine compliance with any 
requirement specified in this part as a prerequisite for obtaining 
program benefits.
    (5) FSA may consult with U.S. Fish and Wildlife Service on third-
party determinations.
    (c) Administration by NRCS. (1) The provisions of this part that are 
applicable to NRCS shall be administered under the general supervision 
of the Deputy Chief for Natural Resources Conservation Programs, and 
shall be carried out in the field by the regional conservationist, state 
conservationist, area conservationist, and district conservationist or 
other NRCS representative.
    (2) An NRCS representative shall make the following determinations 
which are required to be made in accordance with this part:
    (i) Whether land is highly erodible or has a wetland type or a 
converted wetland identified in accordance with the provisions of this 
part;
    (ii) Whether highly erodible land is predominant on a particular 
field under Sec. 12.22;
    (iii) Whether the conservation plan that a person is applying is 
based on the local NRCS field office technical guide and is approved 
by--
    (A) The CD and NRCS, or
    (B) By NRCS;
    (iv) Whether the conservation system that a person is using has been 
approved by the CD under Sec. 12.5(a)(2) or, in an area not within a 
CD, a conservation system approved by NRCS to be adequate for the 
production of an agricultural commodity on highly erodible land;
    (v) Whether the actions of a person(s) with respect to the 
conversion of a wetland or production of an agricultural commodity on 
converted wetland would have only a minimal effect on the functions and 
values of wetlands in the area;
    (vi) Whether an approved conservation plan is being applied on 
highly erodible fields in accordance with the schedule specified therein 
or whether a failure to apply the plan is technical and minor in nature, 
due to circumstances beyond the control of the person, or whether a 
temporary variance form the requirements of the plan should be granted;
    (vii) Whether an approved conservation system is being used on a 
highly erodible field;

[[Page 364]]

    (viii) Whether the conversion of a wetland is for the purpose or has 
the effect of making the production of an agricultural commodity 
possible;
    (ix) Whether a farmed wetland or farmed-wetland pasture is 
abandoned;
    (x) Whether the planting of an agricultural commodity on a wetland 
is possible under natural conditions;
    (xi) Whether maintenance of existing drainage of a wetland described 
in Sec. 12.33 exceeds the scope and effect of the original drainage;
    (xii) Whether a plan for the mitigation of a converted wetland will 
be approved and whether the mitigation of a converted wetland is 
accomplished according to the approved mitigation plan;
    (xiii) Whether all technical information relating to the 
determination of a violation and severity of a violation has been 
provided to FSA for making payment-reduction determinations; and
    (xiv) Whether or not a commenced-conversion activity was completed 
by January 1, 1995.
    (3) NRCS may provide such other technical assistance for 
implementation of the provisions of this part as is determined to be 
necessary.
    (4) A person may obtain a highly erodible land or a wetland scope-
and-effect determination by making a written request on Form AD-1026. 
The determination will be made in writing, and a copy will be provided 
to the person.
    (5) A determination of whether or not an area meets the highly 
erodible land criteria or whether wetland criteria, identified in 
accordance with the current Federal wetland delineation methodology in 
use at the time of the determination and that are consistent with 
current mapping conventions, may be made by the NRCS representative 
based upon existing records or other information and without the need 
for an on-site determination. This determination will be made by the 
NRCS representative as soon as possible following a request for such a 
determination.
    (6) An on-site determination as to whether an area meets the 
applicable criteria shall be made by an NRCS representative if the 
person has disagreed with the determination made under paragraph (c)(5) 
of this section, or if adequate information is not otherwise available 
to an NRCS representative on which to make an off-site determination.
    (7) An on-site determination, where applicable, will be made by the 
NRCS representative as soon as possible following a request for such a 
determination, but only when site conditions are favorable for the 
evaluation of soils, hydrology, or vegetation.
    (8) With regard to wetland determinations, if an area is 
continuously inundated or saturated for long periods of time during the 
growing season to such an extent that access by foot to make a 
determination of predominance of hydric soils or prevalence of 
hydrophytic vegetation is not feasible, the area will be determined to 
be a wetland.
    (9) Persons who are adversely affected by a determination made under 
this section and believe that the requirements of this part were 
improperly applied may appeal, under Sec. 12.12 of this part, any 
determination by NRCS.
    (d) Administration by CSREES. The CSREES shall coordinate the 
related information and education program for USDA concerning 
implementation of this rule.
    (e) Assistance of other Federal agencies. If NRCS determines, 
through agreement or otherwise, that the purposes of this part would be 
furthered by the assistance of other Federal agencies with wetland 
responsibilities, NRCS may accept such assistance and adopt any or all 
such actions by these agencies as an action by an NRCS representative 
under this part.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.7  Certification of compliance.

    (a) Self-certification. In order for a person to be determined to be 
eligible for any of the benefits specified in Sec. 12.4:
    (1) It must be determined by USDA whether any field in which the 
person applying for the benefits has an interest and intends to produce 
an agricultural commodity contains highly erodible land;

[[Page 365]]

    (2) The person applying for or receiving the benefits must certify 
in writing on Form AD-1026 that such person will not produce an 
agricultural commodity on highly erodible land, or designate such land 
for conservation use; or plant an agricultural commodity on a converted 
wetland; or convert a wetland to make possible the production of an 
agricultural commodity during the crop year in which the person is 
seeking such benefits, unless such actions are exempt, under Sec. 12.5, 
from the provisions of Sec. 12.4 of this part;
    (3) A person may certify application of practices required by the 
person's conservation plan. NRCS shall permit a person who makes such a 
certification with respect to a conservation plan to revise the 
conservation plan in any manner, if the same level of conservation 
treatment provided for by the conservation system under the person's 
conservation plan is maintained. NRCS may not revise the person's 
conservation plan without the concurrence of the person;
    (4) The person applying for a FSA direct or guaranteed farm credit 
program loan must certify that such person shall not use the proceeds of 
the loan for a purpose that will contribute to excessive erosion on 
highly erodible land or to conversion of wetlands for the purpose, or to 
have the effect, of making the production of an agricultural commodity 
possible; and
    (5) The person applying for the benefits must authorize and provide 
representatives of USDA access to all land in which such person has an 
interest for the purpose of verifying any such certification.
    (b) Availability to other agencies. Each agency of USDA shall make 
all certifications of compliance received by such agency and the results 
of investigations concerning such certifications of compliance available 
to other agencies.
    (c) Compliance. A certification made in accordance with this section 
does not relieve any person from compliance with provisions of this 
part.



Sec. 12.8  Affiliated persons.

    (a) Ineligibility of affiliated persons. Ineligibility of an 
individual or entity under this part for benefits shall also be an 
ineligibility for benefits for ``affiliated persons'' as defined in this 
section.
    (b) Affiliated persons of an individual. If the person requesting 
benefits is an individual, the affiliated persons are:
    (1) The spouse and minor child of such person or guardian of such 
child; except that spouses who establish to the satisfaction of the COC 
that operations of the husband and wife are maintained separately and 
independently shall not be considered affiliates;
    (2) Any partnership, joint venture, or other enterprise in which the 
person or any person listed in paragraphs (b)(1) has an ownership 
interest or financial interest; unless such interest is held indirectly 
through another business enterprise; or
    (3) Any trust in which the individual, business enterprise, or any 
person listed in paragraph (b)(1) is a beneficiary or has a financial 
interest, unless such interest is held indirectly through another 
business enterprise.
    (c) Affiliated persons of an entity. If the person who has requested 
benefits from USDA is a corporation, partnership, or other joint 
venture, the affiliated persons are any participant or stockholder 
therein of the corporation, partnership, or other joint venture, except 
for persons who have an indirect interest through another business 
enterprise in such corporation, partnership, or other joint venture or 
persons with a 20 percent or less share in a corporation.
    (d) Limitation. Any reduction in payments which results only from 
the application of the affiliation provisions of this section to a 
partnership, joint venture, trust, or other enterprise shall be limited 
to the extent of interest held in such partnership, joint venture, 
trust, or other enterprise by the person or business enterprise that 
committed the violation. However, for violations for which the business 
enterprise is considered directly responsible under the provisions of 
this part, the business enterprise shall be subject to a full loss of 
benefits, including those instances in which the business enterprise has 
an interest in the land where the violation occurred or where the 
business enterprise had an interest in the crops produced on the land.

[[Page 366]]

    (e) Avoidance of this part. Limitations on affiliation shall not 
apply as needed to correct for any action that would otherwise tend to 
defeat the purposes of this part.



Sec. 12.9  Landlords and tenants.

    (a) Landlord eligibility. (1) Except as provided in paragraph (a)(2) 
of this section, the ineligibility of a tenant or sharecropper for 
benefits (as determined under Sec. 12.4) shall not cause a landlord to 
be ineligible for USDA program benefits accruing with respect to land 
other than those in which the tenant or sharecropper has an interest.
    (2) The provisions of paragraph (a)(1) of this section shall not be 
applicable to a landlord if the production of an agricultural commodity 
on highly erodible land or converted wetland by the landlord's tenant or 
sharecropper is required under the terms and conditions of the agreement 
between the landlord and such tenant or sharecropper and such agreement 
was entered into after December 23, 1985, or if the landlord has 
acquiesced in such activities by the tenant or sharecropper.
    (b) Tenant or renter eligibility. (1) The ineligibility of a tenant 
or renter may be limited to the program benefits listed in Sec. 12.4(c) 
accruing with respect to only the farm on which the violation occurred 
if:
    (i) The tenant or renter shows that a good-faith effort was made to 
comply by developing an approved conservation plan for the highly 
erodible land in a timely manner and prior to any violation of the 
provisions of this part; and
    (ii) The owner of such farm refuses to apply such a plan and 
prevents the tenant or renter from implementing certain practices that 
are a part of the approved conservation plan; and
    (iii) FSA determines that the lack of compliance is not a part of a 
scheme or device as described in Sec. 12.10.
    (2) If relief is granted under paragraph (b)(1) of this section, the 
tenant or renter must actively apply those conservation treatment 
measures that are determined to be within the control of the tenant or 
renter.



Sec. 12.10  Scheme or device.

    All or any part of the benefits listed in Sec. 12.4 otherwise due a 
person from USDA may be withheld or required to be refunded if the 
person adopts or participates in adopting any scheme or device designed 
to evade, or which has the effect of evading, the provisions of this 
part. Such acts shall include, but are not limited to, concealing from 
USDA any information having a bearing on the application of the 
provisions of this part or submitting false information to USDA or 
creating entities for the purpose of concealing the interest of a person 
in a farming operation or to otherwise avoid compliance with the 
provisions of this part. Such acts shall also include acquiescence in, 
approval of, or assistance to acts which have the effect of, or the 
purpose of, circumventing these regulations.



Sec. 12.11  Action based upon advice or action of USDA.

    The provisions of part 718 of this Title, as amended, relating to 
performance based upon the action or advice of a County Committee (COC) 
or State FSA Committee shall be applicable to the provisions of this 
part. In addition, if it is determined by the appropriate USDA agency 
that the action of a person which would form the basis of any 
ineligibility under this part was taken by such person in good-faith 
reliance on erroneous advice, information, or action of any other 
authorized representative of USDA, the appropriate agency may make such 
benefits available to the extent that similar relief would be allowed 
under 7 CFR part 718.



Sec. 12.12  Appeals.

    Any person who has been or who would be denied program benefits in 
accordance with Sec. 12.4 as the result of any determination made in 
accordance with the provisions of this part may obtain a review of such 
determination in accordance with the administrative appeals procedures 
of the agency which rendered such determination. Agency appeal 
procedures are contained in the Code of Federal Regulations as follows: 
FSA, part 780 of this title; NRCS, part 614 of this title; Rural 
Utilities Service, part 1900, subpart B of this title.

[[Page 367]]



               Subpart B_Highly Erodible Land Conservation



Sec. 12.20  NRCS responsibilities regarding highly erodible land.

    In implementing the provisions of this part, NRCS shall, to the 
extent practicable:
    (a) Develop and maintain criteria for identifying highly erodible 
lands;
    (b) Prepare and make available to the public lists of highly 
erodible soil map units;
    (c) Make soil surveys for purposes of identifying highly erodible 
land; and
    (d) Provide technical guidance to conservation districts which 
approve conservation plans and systems, in consultation with local 
county FSA committees, for the purposes of this part.



Sec. 12.21  Identification of highly erodible lands criteria.

    (a) Basis for identification as highly erodible. Soil map units and 
an erodibility index will be used as the basis for identifying highly 
erodible land. The erodibility index for a soil is determined by 
dividing the potential average annual rate of erosion for each soil by 
its predetermined soil loss tolerance (T) value. The T value represents 
the maximum annual rate of soil erosion that could occur without causing 
a decline in long-term productivity. The equation for measuring erosion 
is described below.
    (1) The potential average annual rate of sheet and rill erosion is 
estimated by multiplying the following factors of the Universal Soil 
Loss Equation (USLE):
    (i) Rainfall and runoff (R);
    (ii) The degree to which the soil resists water erosion (K); and
    (iii) The function (LS), which includes the effects of slope length 
(L) and steepness (S).
    (2) The potential average annual rate of wind erosion is estimated 
by multiplying the following factors of the Wind Erosion Equation (WEQ): 
Climatic characterization of windspeed and surface soil moisture (C) and 
the degree to which soil resists wind erosion (I).
    (3) The USLE is explained in the U.S. Department of Agriculture 
Handbook 537, ``Predicting Rainfall Erosion Losses.'' The WEQ is 
explained in the paper by Woodruff, N.P., and F. H. Siddaway, 1965, ``A 
Wind Erosion Equation,'' Soil Science Society of America Proceedings, 
Vol. 29. No. 5, pages 602-608. Values for all the factors used in these 
equations are contained in the NRCS field office technical guide and the 
references which are a part of the guide. The Universal Soil Loss 
Equation, the Revised Universal Soil Loss Equation, and the Wind Erosion 
Equation and the rules under which NRCS uses the equations are published 
at Sec. Sec. 610.11 through 610.15 of this title.
    (b) Highly erodible. A soil map unit shall be determined to be 
highly erodible if either the RKLS/T or the CI/T value for the map unit 
equals or exceeds 8.
    (c) Potentially highly erodible. Whenever a soil map unit 
description contains a range of a slope length and steepness 
characteristics that produce a range of LS values which result in RKLS/T 
quotients both above and below 8, the soil map unit will be entered on 
the list of highly erodible soil map units as ``potentially highly 
erodible.'' The final determination of erodibility for an individual 
field containing these soil map unit delineations will be made by an on-
site investigation.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.22  Highly erodible field determination criteria.

    (a) Predominance. Highly erodible land shall be considered to be 
predominant on a field if either:
    (1) 33.33 percent or more of the total field acreage is identified 
as soil map units which are highly erodible; or
    (2) 50 or more acres in such field are identified as soil map units 
which are highly erodible.
    (b) Modification of field boundaries. A person may request the 
modification of field boundaries for the purpose of excluding highly 
erodible land from a field. Such a request must be submitted to, and is 
subject to the approval of, FSA. FSA shall use the technical 
determination of NRCS in approving this request.

[[Page 368]]

    (c) Impact of changing field boundaries. When field boundaries are 
changed to include areas of land that were included in a field that was 
previously determined to be predominately highly erodible according to 
paragraph (a) of this section, such areas shall continue to be subject 
to the requirements for predominately highly erodible fields, except as 
provided in paragraph (b) of this section.
    (d) Small area of noncropland. Small areas of noncropland within or 
adjacent to the boundaries of existing highly erodible crop fields such 
as abandoned farmsteads, areas around filled or capped wells, rock 
piles, trees, or brush which are converted to cropland are considered to 
meet the requirement of Sec. 12.5(a)(2) if they are included in an 
approved conservation plan for the entire highly erodible field.

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.23  Conservation plans and conservation systems.

    (a) Use of field office technical guide. A conservation plan or 
conservation system developed for the purposes of Sec. 12.5(a) must be 
based on, and to the extent practicable conform with, the NRCS field 
office technical guide in use at the time the plan is developed or 
revised. For highly erodible croplands which were used to produce 
agricultural commodities prior to December 23, 1985, the applicable 
conservation systems in the field office technical guide are designed to 
achieve substantial reductions in soil erosion. Conservation systems 
shall be technically and economically feasible; based on local resource 
conditions and available conservation technology; cost-effective; and 
shall not cause undue economic hardship on the person applying the 
conservation system. Any conservation plans or systems that were 
approved prior to July 3, 1996, are deemed to be in compliance with this 
paragraph.
    (b) Substantial reduction in soil erosion. For the purpose of 
determining whether there is a substantial reduction in soil erosion on 
a field containing highly erodible cropland which was used to produce an 
agricultural commodity prior to December 23, 1985, the measurement of 
erosion reduction achieved by applying a conservation plan or system 
shall be based on a comparison of the estimated annual level of erosion 
that is expected to occur on that portion of the field for which a 
conservation plan or system was developed and is being applied, to the 
estimated annual level of erosion that existed on that same portion of 
the field before the application of a conservation plan or system. On a 
field that is converted from native vegetation after July 3, 1996, and 
where any crop production will result in increased erosion, in no case 
will the required conservation plan or system permit a substantial 
increase in erosion.
    (c) Field trials. NRCS may allow a person to include in the person's 
conservation plan or a conservation system under the plan, on a field-
trial basis, practices that are not currently approved but that NRCS 
considers have a reasonable likelihood of success. These trials must 
have prior approval by NRCS, and must be documented in the person's 
conservation plan specifying the limited time period during which the 
field trial is in effect. If, at the end of the conservation field trial 
period, NRCS finds that the practice does not meet conservation 
compliance requirements, the person will not be ineligible for USDA 
program benefits during the period of the field trial.
    (d) Highly erodible land previously under a Conservation Reserve 
Program contract. Any person who owns or operates highly erodible land 
that was under a Conservation Reserve Program contract as authorized by 
section 1231 of the Food Security Act of 1985, as amended, shall have 2 
years after the expiration of termination of the contract to fully apply 
a conservation system if the conservation plan for such land requires 
the installation of structural measures for the production of an 
agricultural commodity. NRCS officials may extend this period one 
additional year for circumstances beyond the control of the person. The 
person shall not be required to meet a higher conservation standard than 
the standard applied to other highly erodible cropland located within 
the area served by the field office technical guide for the area in 
which the field is located.

[[Page 369]]

    (e) Information regarding conservation options. NRCS, in providing 
assistance to a person for the preparation or revision of a conservation 
plan under this part, will provide such person with information 
concerning cost-effective and applicable erosion control alternatives, 
crop flexibility, or other conservation assistance options that may be 
available.
    (f) Timely request for assistance. Persons who require NRCS 
assistance for the development of a conservation plan or the 
installation of a conservation system are encouraged to request this 
assistance well in advance of deadline dates for compliance; otherwise 
the person may not be able to comply with these provisions and maintain 
eligibility for USDA program benefits.
    (g) Action by conservation districts. Conservation districts approve 
or disapprove conservation plans or conservation systems after NRCS 
determines that the plans or systems conform to the NRCS field office 
technical guide. If a conservation district fails, without due cause, to 
act on a request for conservation plan or conservation system approval 
within 45 days, or if no conservation district exists, NRCS will approve 
or disapprove, as appropriate, the conservation plan or system in 
question.
    (h) Application of a conservation plan or system. A person is 
considered to be applying a conservation plan for purposes of Sec. 
12.5(a) if the conservation system or plan being applied achieves or 
exceeds the substantial reduction in soil erosion as described in 
paragraph (b) which the conservation system or plan was designed to 
achieve. It is the responsibility of the person to:
    (1) Certify that the conservation plan or system is being applied; 
and
    (2) Arrange for a revision of the conservation plan with NRCS, if 
changes are made in land use, crop rotation or management, conservation 
practices, or in the original schedule of practice installation that 
would affect the achievement of substantial reduction in soil erosion in 
a given crop year.
    (i) Appeal to FSA. Persons who are adversely affected by the 
determinations made under this subpart and believe that the requirements 
of this subpart were improperly applied may appeal the decision to FSA 
under Sec. 12.12.
    (j) Undue economic hardship. After a technical determination has 
been made, the FSA county committee shall, if a person asserts that the 
application of the person's conservation system would impose an undue 
economic hardship on the person, make a recommendation to the State FSA 
Committee as to whether or not the application of the conservation 
system would impose an undue economic hardship. The State FSA Committee 
may provide the person with a variance on the basis of the hardship. 
Under this variance, and any conditions that may be required in the 
variance, the person will be considered to be in compliance with the 
applicable provisions of this part. The State FSA Committee will 
consider relevant factors, such as the cost of installation of required 
conservation practices and benefits earned through programs subject to 
compliance with this part, and the person's general economic situation.



                     Subpart C_Wetland Conservation



Sec. 12.30  NRCS responsibilities regarding wetlands.

    (a) Technical and coordination responsibilities. In carrying out the 
provisions of this part, NRCS shall:
    (1) Oversee the development and application of criteria to identify 
hydric soils in consultation with the National Technical Committee for 
Hydric Soils and make available to the public an approved county list of 
hydric soil map units, which is based upon the National List of Hydric 
Soils;
    (2) Coordinate with the U.S. Fish and Wildlife Service and others in 
updating the National List of Plant Species that Occur in Wetlands;
    (3) Make or approve wetland determinations, delineations and 
certifications, functional assessments, mitigation plans, categorical 
minimal effects, and other technical determinations relative to the 
implementation of the wetland conservation provisions of this part;
    (4) Develop and utilize off-site and on-site wetland identification 
procedures;

[[Page 370]]

    (5) Assure quality of service and determinations through procedures 
developed by NRCS in consultation with other Federal agencies that have 
wetland responsibilities;
    (6) Investigate complaints and make technical determinations 
regarding potential violations;
    (7) Develop a process at the state level, in coordination with the 
U.S. Fish and Wildlife Service, to ensure that these provisions are 
carried out in a technically defensible and timely manner, seek 
assistance as appropriate, and annually review the progress being made 
on implementation; and
    (8) Conduct reviews of implementation and provide the Army Corps of 
Engineers, Environmental Protection Agency, and the U.S. Fish and 
Wildlife Service an opportunity to participate in this review.
    (b) Technical assistance from others In carrying out the provisions 
of this part, NRCS may request technical assistance from the U.S. Fish 
and Wildlife Service, State or local agencies, conservation districts, 
or qualified private entities when NRCS determines that additional staff 
resources or technical expertise are needed to address adequately the 
requirements of this part or to enhance the quality of implementation of 
this part.
    (c) Certification of wetland determinations and wetland 
delineations. (1) Certification of a wetland determination means that 
the wetland determination is of sufficient quality to make a 
determination of ineligibility for program benefits under Sec. 12.4 of 
this part. Certification of a wetland determination shall be completed 
according to delineation procedures agreed to by the Army Corps of 
Engineers, the Environmental Protection Agency, the U.S. Fish and 
Wildlife Service and NRCS. NRCS may certify a wetland determination 
without making a field investigation. NRCS will notify the person 
affected by the certification and provide an opportunity to appeal the 
certification prior to the certification becoming final. All wetland 
determinations made after July 3, 1996, will be done on a tract basis 
and will be considered certified wetland determinations. A not-
inventoried designation within a certified wetland is subject to change 
when the soil, hydrology, and vegetation evaluation is completed and 
identified as to type of wetland or as a non-wetland. This change from a 
not-inventoried designation to an approved wetland designation will be 
done at the request of the landowner or during a formal investigation of 
a potential violation.
    (2) The wetland determination and wetland delineation shall be 
certified as final by the NRCS official 30 days after providing the 
person notice of certification or, if an appeal is filed with USDA, 
after the administrative appeal procedures are exhausted.
    (3) In the case of an appeal, NRCS will review and certify the 
accuracy of the determination of all lands subject to the appeal to 
ensure that the subject lands have been accurately delineated. Prior to 
a decision being rendered on the appeal, NRCS will conduct an on-site 
investigation of the subject land.
    (4) Before any benefits are withheld, an on-site investigation of a 
potential wetland violation will be made by NRCS. The affected person 
will be provided an opportunity to appeal the on-site determination to 
USDA if the on-site determination differs from the original 
determination. Such action by NRCS shall be considered a review of the 
prior determination and certification of the delineation. If the prior 
determination was a certified wetland determination, an appeal of the 
NRCS on-site determination shall be limited to the determination that 
the wetland was converted in violation of this part.
    (5) A copy of the information from the final certified wetland 
determination and the wetland delineation shall be recorded on official 
USDA aerial photography, digital imagery, or other graphic 
representation of the area.
    (6) As long as the affected person is in compliance with the wetland 
conservation provision of this part, and as long as the area is devoted 
to the use and management of the land for production of food, fiber, or 
horticultural crops, a certification made under this section will remain 
valid and in effect until such time as the person affected by the 
certification requests review of the certification by NRCS. A person may 
request review of a certification

[[Page 371]]

only if a natural event alters the topography or hydrology of the 
subject land to the extent that the final certification is no longer a 
reliable indication of site conditions, or if NRCS concurs with an 
affected person that an error exists in the current wetland 
determination

[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, 1996]



Sec. 12.31  On-site wetland identification criteria.

    (a) Hydric soils. (1) NRCS shall identify hydric soils through the 
use of published soil maps which reflect soil surveys completed by NRCS 
or through the use of on-site reviews. If a published soil map is 
unavailable for a given area, NRCS may use unpublished soil maps which 
were made according to the specifications of the National Cooperative 
Soil Survey or may conduct an on-site evaluation of the land.
    (2) NRCS shall determine whether an area of a field or other parcel 
of land has a predominance of hydric soils that are inundated or 
saturated as follows:
    (i) If a soil map unit has hydric soil as all or part of its name, 
that soil map unit or portion of the map unit related to the hydric soil 
shall be determined to have a predominance of hydric soils;
    (ii) If a soil map unit is named for a miscellaneous area that meets 
the criteria for hydric soils (i.e., riverwash, playas, beaches, or 
water) the soil map unit shall be determined to have a predominance of 
hydric soils; or
    (iii) If a soil map unit contains inclusions of hydric soils, that 
portion of the soil map unit identified as hydric soil shall be 
determined to have a predominance of hydric soils.
    (3) List of hydric soils. (i) Hydric soils are those soils which 
meet criteria set forth in the publication ``Hydric Soils of the United 
States 1985'' which was developed by the National Technical Committee 
for Hydric Soils and which is incorporated by reference. This 
publication may be obtained upon request by writing NRCS at U.S. 
Department of Agriculture, P.O. Box 2890, Washington, DC 20013, and is 
available for inspection at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call 202-741-6030, or go to: http://www.archives.gov/
federal--register/code--of--federal--regulations/ibr--locations.html. 
Incorporation of this publication by reference was approved by the 
Director of the Federal Register on June 24, 1986. The materials are 
incorporated as they exist on the date of the approval and a notice of 
any change in these materials will be published in the Federal Register.
    (ii) An official list of hydric soil map units shall be maintained 
at the local NRCS office and shall include--
    (A) All soils from the National List of Hydric Soils that can be 
found in that field office area, and
    (B) Any soil map units or areas which the state conservationist 
determines to meet such hydric soil criteria.
    (iii) Any deletions of a hydric soil unit from the hydric soil map 
unit list must be made according to the established procedure contained 
in the publication ``Hydric Soils of the United States 1985'' for adding 
or deleting soils from the National List of Hydric Soils.
    (b) Hydrophytic vegetation. Hydrophytic vegetation consists of 
plants growing in water or in a substrate that is at least periodically 
deficient in oxygen during a growing season as a result of excessive 
water content.
    (1) A plant shall be considered to be a plant species that occurs in 
wetland if such plant is listed in the National List of Plant Species 
that Occur in Wetlands. The publication may be obtained upon request 
from the U.S. Fish and Wildlife Service at National Wetland Inventory, 
Monroe Bldg. Suite 101, 9720 Executive Center Drive, St. Petersburg, 
Florida 33702.
    (2) For the purposes of the definition of ``wetland'' in Sec. 12.2 
of this part, land shall be determined to have a prevalence of 
hydrophytic vegetation if:
    (i) NRCS determines through the criteria specified in paragraph 
(b)(3) of this section that under normal circumstances such land 
supports a prevalence of hydrophytic vegetation. The term ``normal 
circumstances'' refers to the soil and hydrologic conditions that are 
normally present, without regard to whether the vegetation has been 
removed; or

[[Page 372]]

    (ii) In the event the vegetation on such land has been altered or 
removed, NRCS will determine if a prevalence of hydrophytic vegetation 
typically exists in the local area on the same hydric soil map unit 
under non-altered hydrologic conditions.
    (3) The determination of prevalence of hydrophytic vegetation will 
be made in accordance with the current Federal wetland delineation 
methodology in use by NRCS at the time of the determination.
    (c) Mitigation wetlands. Notwithstanding the provisions of this 
section, wetlands which are created in order to mitigate the loss of 
other wetlands as a result of irrigation, recreation, municipal water, 
flood control, or other similar projects shall not be considered to be 
artificial wetland for the purposes of Sec. 12.5(b)(1)(vii)(A) of this 
part.
    (d) Minimal effect determination. For the purposes of Sec. 
12.5(b)(1)(v) of this part, NRCS shall determine whether the effect of 
any action of a person associated with the conversion of a wetland, the 
conversion of wetland and the production of an agricultural commodity on 
converted wetland, or the combined effect of the production of an 
agricultural commodity on a wetland converted by someone else has a 
minimal effect on the functions and values of wetlands in the area. Such 
determination shall be based upon a functional assessment of functions 
and values of the wetland under consideration and other related wetlands 
in the area, and will be made through an on-site evaluation. A request 
for such determination will be made prior to the beginning of activities 
that would convert the wetland. If a person has converted a wetland and 
then seeks a determination that the effect of such conversion on wetland 
was minimal, the burden will be upon the person to demonstrate to the 
satisfaction of NRCS that the effect was minimal.

The production of an agricultural commodity on any portion of a 
converted wetland in conformance with a minimal-effect determination by 
NRCS is exempt under Sec. 12.5(b)(1)(v) of this part. However, any 
additional action of a person that will change the functions and values 
of a wetland for which a minimal-effect determination has been made 
shall be reported to NRCS for a determination of whether the effect 
continues to be minimal. The loss of a minimal effect determination will 
cause a person who produces an agricultural commodity on the converted 
wetland after such change in status to be ineligible, under Sec. 12.4, 
for certain program benefits. In situations where the wetland functions 
and values are replaced by the restoration, enhancement or creation of a 
wetland in accordance with a mitigation plan approved by NRCS, the 
exemption provided by the determination will be effective after NRCS 
determines that all practices in a mitigation plan are being 
implemented.
    (e) Categorical Minimal Effect Exemptions. (1) The state 
conservationist, in consultation with the state technical committee 
established under 16 U.S.C. 3861, shall identify any categories of 
conversion activities and conditions which are routinely determined by 
NRCS to have minimal effect on wetland functions and values, as 
described in paragraph (d) of this section, and recommend to the Chief, 
NRCS, or a designee, inclusion on a list of categorical minimal effect 
exemptions.
    (2) The Chief, or designee, shall evaluate the conversion practices 
recommended by the state conservationists in the region to ensure 
consistency across State and regional lines, and to determine whether 
any categories of conversion activities identified pursuant to paragraph 
(e)(1) of this section, if such activities were exempt from the 
ineligibility provisions of Sec. 12.4, would only have a minimal effect 
on wetland functions and values in a wetland system within the region.
    (3) Any categories of conversion activities which meet the criteria 
of paragraph (e)(2) of this section will be published in the Federal 
Register for inclusion in this part and shall be exempt under Sec. 
12.5(b)(1)(v) of this part.
    (4) The NRCS local field office shall maintain a list of any 
activities and conditions which are determined by the Chief, or 
designee, exempt pursuant to this section and will provide the list to a 
person upon request.

[61 FR 47025, Sept. 6, 1996, as amended at 69 FR 18803, Apr. 9, 2004]

[[Page 373]]



Sec. 12.32  Converted wetland identification criteria.

    (a) Converted wetland shall be identified by determining whether the 
wetland was altered so as to meet the definition of converted wetland. 
In making this determination, the following factors are to be 
considered:
    (1) Where hydric soils have been used for production of an 
agricultural commodity and the effect of the drainage or other altering 
activity is not clearly discernible, NRCS will compare the site with 
other sites containing the same hydric soils in a natural condition to 
determine if the hydric soils can or cannot be used to produce an 
agricultural commodity under natural conditions. If the soil on the 
comparison site could not produce an agricultural commodity under 
natural conditions, the subject wetland will be considered to be 
converted wetland.
    (2) Where woody hydrophytic vegetation has been removed from hydric 
soils for the purpose of or permitting the production of an agricultural 
commodity, the area will be considered to be converted wetland.
    (b) A wetland shall not be considered to be converted if:
    (1) Production of an agricultural commodity on such land is possible 
as a result of a natural condition, such as drought, and it is 
determined that the actions of the person producing such agricultural 
commodity does not permanently alter or destroy natural wetland 
characteristics. Destruction of herbaceous hydrophytic vegetation (i.e., 
plants other than woody shrubs or trees) as a result of the production 
of an agricultural commodity shall not be considered as altering or 
destroying natural wetland characteristic if such vegetation could 
return following cessation of the natural condition which made 
production of the agricultural commodity possible; or
    (2) Such land is correctly identified as farmed wetland or farmed-
wetland pasture.



Sec. 12.33  Use of wetland and converted wetland.

    (a) The provisions of Sec. 12.32(b)(2) are intended to protect 
remaining functions and values of the wetlands described therein. 
Persons may continue to farm such wetlands under natural conditions or 
as they did prior to December 23, 1985. However, no action can be taken 
to increase effects on the water regime beyond that which existed on 
such lands on or before December 23, 1985, unless NRCS determines the 
effect on losing remaining wetland values would be minimal under Sec. 
12.5(b)(1)(v). If, after December 23, 1985, changes due to human 
activity occurred in the watershed and resulted in an increase in the 
water regime on a person's land, the person may be allowed to adjust the 
existing drainage system to accommodate the increased water regime on 
the condition that the person affected by this additional water provides 
NRCS with appropriate documentation of the increased water regime, the 
causes thereof, and the planned changes in the existing drainage system. 
In order to maintain program eligibility, a person must provide 
sufficient documentation and receive approval from NRCS prior to making 
any changes that will have the effect of increasing the capacity of the 
existing drainage systems.
    (b) Unless otherwise provided in this part, the production of an 
agricultural commodity on land determined by NRCS to be prior-converted 
cropland is exempted by law from these regulations for the area which 
was converted. Maintenance or improvement of drainage systems on prior-
converted croplands are not subject to this rule so long as the prior-
converted croplands are used for the production of food, forage, or 
fiber and as long as such actions do not alter the hydrology of nearby 
wetlands or do not make possible the production of an agricultural 
commodity on these other wetlands. Other wetlands under this section 
means any natural wetland, farmed wetland, farmed-wetland pasture, or 
any converted wetland that is not exempt under Sec. 12.5 of this part.
    (c) Abandonment is the cessation for five consecutive years of 
management or maintenance operations related to the use of a farmed 
wetland or a farmed-wetland pasture. Unless the criteria for receiving 
an exemption under Sec. 12.5(b)(1)(iii) are met, such land is 
considered to be abandoned when the land meets the wetland criteria of

[[Page 374]]

Sec. 12.31. In order for documentation of site conditions to be 
considered adequate under Sec. 12.5(b)(1)(iii), the affected person 
must provide to NRCS available information concerning the extent of 
hydrological manipulation, the extent of woody vegetation, and the 
history of use. In accordance with Sec. 12.5(b)(1)(iii), participation 
in a USDA approved wetland restoration, set-aside, diverted acres, or 
similar programs shall not be deemed to constitute abandonment.
    (d) The maintenance of the drainage capacity or any alteration or 
manipulation, including the maintenance of a natural waterway operated 
and maintained as a drainage outlet, that affects the circulation and 
flow of water made to a farmed wetland or farmed-wetland pasture would 
not cause a person to be determined to be ineligible under this part, 
provided that the maintenance does not exceed the scope and effect of 
the original alteration or manipulation, as determined by NRCS, and 
provided that the area is not abandoned. Any resultant conversion of 
wetlands is to be at the minimum extent practicable, as determined by 
NRCS.



Sec. 12.34  Paperwork Reduction Act assigned number.

    The information collection requirements contained in this regulation 
(7 CFR part 12) have been approved by the Office of Management and 
Budget under provisions of 44 U.S.C. chapter 35 and have been assigned 
OMB Number 0560-0004.

                           PART 13 [RESERVED]



PART 14_DETERMINING THE PRIMARY PURPOSE OF CERTAIN PAYMENTS FOR FEDERAL 
TAX PURPOSES--Table of Contents




Sec.
14.1 Purpose.
14.2 Applicability.
14.3 Objective.
14.4 Policy.
14.5 Procedure.
14.6 Criteria for determining the primary purpose of payments with 
          respect to potential exclusion from gross income.
14.7 Non-Federal programs and payments.

    Authority: Sec. 543, Pub. L. 95-600; as amended by sec. 105, Pub. L. 
96-222; 26 U.S.C. 126, 1255 and 5 U.S.C. 301.

    Source: 45 FR 58507, Sept. 4, 1980, unless otherwise noted.



Sec. 14.1  Purpose.

    (a) Part 14 sets forth criteria to be used by the Secretary of 
Agriculture in determining the primary purpose of certain payments 
received by persons under applicable programs. Determining the primary 
purpose for which applicable payments are made is one step toward the 
exclusion of all or part of the payments from gross income for Federal 
income tax purposes.
    (b) The criteria set forth in part 14 apply only to the 
determinations to be made by the Secretary of Agriculture.



Sec. 14.2  Applicability.

    (a) Part 14 applies only to payments received under the programs 
listed in paragraphs (a)(1) through (10) of this section. Payments 
received under programs not listed in paragraphs (a)(1) through (10) of 
this section, are not considered eligible for exclusion from gross 
income under this part.
    (1) The rural clean water program authorized by section 208(j) of 
the Federal Water Pollution Control Act (33 U.S.C. 1288(j)).
    (2) The rural abandoned mine program authorized by section 406 of 
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1236).
    (3) The water bank program authorized by the Water Bank Act (16 
U.S.C. 1301 et seq.).
    (4) The emergency conservation measures program authorized by title 
IV of the Agricultural Credit Act of 1978 (16 U.S.C. 2201 et seq.).
    (5) The agricultural conservation program authorized by the Soil 
Conservation and Domestic Allotment Act (16 U.S.C. 590a).
    (6) The Great Plains conservation program authorized by section 16 
of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590p(b)).
    (7) The resource conservation and development program authorized by 
the Bankhead-Jones Farm Tenant Act and by the Soil Conservation and 
Domestic Allotment Act (7 U.S.C. 1010; 16 U.S.C. 590a et seq.).

[[Page 375]]

    (8) The forestry incentives program authorized by section 4 of the 
Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2103).
    (9) Any small watershed program administered by the Secretary of 
Agriculture that is determined by the Secretary of the Treasury or his 
delegate to be substantially similar to the type of programs described 
in paragraphs (a)(1) through (8) of this section.
    (10) Any program of a State, a possession of the United States, a 
political subdivision of a State or a possession of the United States, 
the District of Columbia, or a combination of any of the foregoing under 
which payments are made primarily for the purpose of conserving soil and 
water resources, protecting or restoring the environment, improving 
forests, or providing a habitat for wildlife.
    (b) The criteria set forth in Sec. 14.5 for determining the primary 
purpose of payments with respect to their eligibility for exclusion from 
gross income shall also be used to determine the applicability of this 
part to payments received under non-Federal programs as provided in 
Sec. 14.2(a)(10).



Sec. 14.3  Objective.

    The objective of the determinations made under part 14 is to provide 
maximum conservation, environmental, forestry improvement, and wildlife 
benefits to the general public from the operation of applicable 
programs.



Sec. 14.4  Policy.

    Federal tax, conservation, natural resource, and environmental 
policies should complement rather than conflict with one another. 
Therefore, the Federal income tax liability on applicable payments 
should be reduced or eliminated to the extent that the payments yield 
conservation, environmental, forestry improvement, or wildlife benefits 
to the general public beyond the benefits that accrue to those who 
receive the payments.



Sec. 14.5  Procedure.

    (a) The portion of an applicable payment that may be excluded from 
gross income under part 14 shall be that portion or all, as appropriate, 
that--
    (1) Is determined to be made primarily for the purpose of conserving 
soil and water resources, protecting or restoring the environment, 
improving forests, or providing wildlife habitat; and
    (2) Is determined by the Secretary of the Treasury as not increasing 
substantially the annual income derived from the property associated 
with the payment.
    (b) Primary purpose means the principal, fundamental, predominant, 
or independent objective for which a payment is made. The following 
shall be considered in determining the primary purpose of a payment:
    (1) Single-purpose payments shall be considered as having that 
purpose as their primary purpose.
    (2) Multiple-purpose payments. If a payment is made for several 
purposes, it may be considered as having soil and water conservation, 
environmental protection or restoration, forestry improvement, or 
providing wildlife habitat as its primary purpose to the extent of the 
portion of the payment that is made for one or more of such purposes.
    (3) Where a purpose of a payment, or portion thereof, is in doubt, 
the following sources should be considered--
    (i) Authorizing legislation, legislative history, administrative 
regulation, administrative history, interpretive case law, and the 
administrative policies and procedures under which the applicable 
program operates and the payment is made; and
    (ii) Agreements or other documentation accompanying the transfer of 
the payment;
    (iii) Use made of the payment by the recipient.



Sec. 14.6  Criteria for determining the pri- mary purpose of payments 
with respect to potential exclusion from gross income.

    (a) Soil conservation. (1) Payments shall be considered to be made 
primarily for the purpose of soil conservation if they are intended to 
finance activities, measures, or practices to reduce soil deterioration.
    (2) Soil deterioration refers to impairments of the physical or 
chemical

[[Page 376]]

properties of soil that are largely irreversible and that can be 
expected to result in a long-term or permanent reduction in the 
productive capacity of the resource regardless of the level of 
technology available or applied. Erosion by water and wind and the 
associated changes that result in permanent or long-term reductions in 
the productive capacity of the soil are forms of soil deterioration.
    (b) Water conservation. (1) Water conservation includes actions 
that, for a given level of water supply, reduce the demand for or use of 
water by--
    (i) Improving efficiency in use;
    (ii) Reducing loss and waste;
    (iii) Increasing the recycling or reuse of water, thereby making 
existing supplies available for other current or future uses; or
    (iv) Improving land management practices for the purpose of reducing 
water use, loss, waste, increasing the efficiency of water use, or 
increasing the recycling or reuse of water.
    (2) Payments shall be considered to be made primarily for the 
purpose of water conservation if they are intended to finance actions, 
measures, or practices that can be expected to result in water 
conservation as defined in paragraph b(1) of this section.
    (c) Protecting the environment. (1) Payments shall be considered to 
be made primarily for the purpose of protecting the environment if they 
are intended to finance actions, measures, or practices undertaken to 
prevent man-caused or man-induced reductions or degradations in the 
quantity or quality of the natural external or extrinsic conditions 
directly or indirectly affecting people.
    (2) External or extrinsic conditions refer to the complex of natural 
conditions or circumstances, including but not limited to those 
affecting public health and safety, in which people reside or otherwise 
carry out their lives.
    (d) Restoring the environment. (1) Payments shall be considered to 
be made primarily for the purpose of restoring the environment if they 
are intended to finance actions, measures, or practices undertaken to 
reestablish, return, or enhance the quantity or quality of the natural 
external or extrinsic conditions directly or indirectly affecting people 
that existed before the man-caused or man-induced degradation.
    (2) External or extrinsic conditions have the same meaning with 
respect to restoring the environment as they do for protecting the 
environment.
    (e) Improving forests. (1) Payments shall be considered to be made 
primarily for the purpose of improving forests if they are intended to 
finance actions, measures, or practices undertaken for the direct or 
indirect conservation or enhancement of the quantity or quality of 
timber resources.
    (2) Improving forests includes the generation and regeneration of 
timber stands as well as the silvicultural improvement of such timber 
stands but excludes harvest cuttings not undertaken primarily for 
silvicultural improvement.
    (f) Providing habitat for wildlife. (1) Payments shall be considered 
to be made primarily for the purpose of providing habitat for wildlife 
if they are intended to finance actions, measures, or practices leading 
directly to the establishment of those physical and biological 
conditions or resources that can be expected to support primarily 
noncultivated and nondomesticated animal and plant life. The animal and 
plant life must be of value to the public in their natural state apart 
from any value that may be realized from them as private economic gain.
    (2) Wildlife includes but is not limited to species of terrestrial 
or aquatic animals and plants.
    (3) Habitat includes, but is not limited to, the food supply, water 
supply, and nesting and escape cover necessary to support populations of 
wildlife species. Included in the definition of wildlife habitat are 
domestic crops raised for the primary purpose of providing food supply 
or cover for specific wildlife species.



Sec. 14.7  Non-Federal programs and payments.

    (a) Definition of non-Federal programs. Non-Federal program means 
any program of a State, a possession of the United States, a political 
subdivision of any State or possession of the United States, the 
District of Columbia, or a combination of any of the foregoing.

[[Page 377]]

    (b) Applicability. Payments received through non-Federal programs 
under which payments are made primarily for the purpose of conserving 
soil and water resources, protecting or restoring the environment, 
improving forests, or providing a habitat for wildlife may be considered 
for exclusion from gross income under part 14.
    (c) Determining the primary purpose of non-Federal payments. The 
determination of the primary purpose for which non-Federal payments are 
made with respect to their potential for exclusion from gross income 
shall be made by using the criteria set forth in part 14 for determining 
the primary purpose of Federal payments.
    (d) Procedure for determining the primary purpose of payments made 
under non-Federal programs. (1) To initiate the process of determining 
the applicability of this part to payments received through non-Federal 
programs and the primary purpose of the payments for potential exclusion 
from gross income, the non-Federal official responsible for the program 
through which the payments are made should provide six copies of the 
following materials relating to the program to the Secretary of 
Agriculture--
    (i) Authorizing legislation;
    (ii) Rules or regulations;
    (iii) Current policies and procedures under which payments are made 
and used;
    (iv) A description of all practices or measures for which payments 
are made and used; and
    (v) Any other information that may be helpful in determining the 
purpose for which payments, or portions thereof, are made and used.
    (2) Any changes in the supporting documentation listed in paragraphs 
(d)(1)(i) through (d)(1)(iv) of this section, should be reported to the 
Secretary within 30 days of the date they become final.



PART 15_NONDISCRIMINATION--Table of Contents




   Subpart A_Nondiscrimination in Federally-Assisted Programs of the 
 Department of Agriculture_Effectuation of Title VI of the Civil Rights 
                               Act of 1964

Sec.
15.1 Purpose and application of part.
15.2 Definitions.
15.3 Discrimination prohibited.
15.4 Assurances required.
15.5 Compliance.
15.6 Complaints.
15.7 Intimidatory or retaliatory acts prohibited.
15.8 Procedure for effecting compliance.
15.9 Hearings.
15.10 Decisions and notices.
15.11 Judicial review.
15.12 Effect on other regulations; forms and instructions.

Appendix to Subpart A--List of Federal Financial Assistance From USDA

Subpart B [Reserved]

 Subpart C_Rules of Practice and Procedure for Hearings, Decisions and 
        Administrative Review Under the Civil Rights Act of 1964

                           General Information

15.60 Scope of rules.
15.61 Records to be public.
15.62 Definitions.
15.63 Computation of time.
15.64 Parties.
15.65 Appearance.
15.66 Complainants not parties.
15.67 Intervener.
15.68 Ex parte communications.

            Form, Execution, Filing and Service of Documents

15.71 Form of documents to be filed.
15.72 Filing.
15.73 Service.
15.74 Date of service.

                       Initial Notice and Response

15.81 How proceedings are commenced.
15.82 Notice of hearing and response thereto.
15.83 Notice of opportunity to request a hearing and response thereto.
15.84 Answer.
15.85 Amendment of notice or answer.
15.86 Consolidated or joint hearings.

                             Hearing Officer

15.91 Who presides.
15.92 Designation of hearing officer.
15.93 Time and place of hearing.
15.94 Disability of hearing officer.
15.95 Responsibilities and duties of hearing officer.

                                 Motions

15.101 Form and content.
15.102 Responses to motions.
15.103 Disposition of motions.

[[Page 378]]

                           Hearing Procedures

15.110 Prehearing conferences.
15.111 Purpose of hearing.
15.112 Statement of position and brief.
15.113 Testimony.
15.115 Affidavits.
15.116 Depositions.
15.117 Evidence.
15.118 Cross-examination.
15.119 Objections.
15.120 Exceptions to rulings of hearing officer unnecessary.
15.121 Official notice.
15.122 Offer of proof.
15.123 Appeals from ruling of hearing officer.
15.124 Admissions as to facts and documents.

                               The Record

15.131 Official transcript.
15.132 Record for decision.

                         Posthearing Procedures

15.135 Posthearing briefs.
15.136 Decisions and notices.
15.137 Exceptions to initial or proposed decision.
15.138 Review of initial decision.
15.139 Oral argument.
15.140 Service of decisions.
15.141 Contents of decision.
15.142 Content of orders.
15.143 Decision where financial assistance affected.

    Authority: 5 U.S.C. 301; 29 U.S.C. 794.



   Subpart A_Nondiscrimination in Federally-Assisted Programs of the 
 Department of Agriculture_Effectuation of Title VI of the Civil Rights 
                               Act of 1964

    Source: 29 FR 16274, Dec. 4, 1964; 29 FR 16966, Dec. 11, 1964, 
unless otherwise noted.



Sec. 15.1  Purpose and application of part.

    (a) The purpose of the regulations in this part is to effectuate the 
provisions of title VI of the Civil Rights Act of 1964 (hereinafter 
referred to as the ``Act'') to the end that no person in the United 
States shall, on the ground of race, color, or national origin, be 
excluded from participation in, be denied the benefits of, or be 
otherwise subjected to discrimination under any program or activity of 
an applicant or recipient receiving Federal financial assistance from 
the Department of Agriculture or any Agency thereof.
    (b) The regulations in this part apply to any program or activity of 
an applicant or recipient for which Federal financial assistance is 
authorized under a law administered by the Department including, but not 
limited to, the Federal financial assistance listed in the appendix to 
this part. They apply to money paid, property transferred, or other 
Federal financial assistance extended to an applicant or recipient for 
its program or activity after the effective date of these regulations 
pursuant to an application approved or statutory or other provision made 
therefor prior to such effective date. The regulations in this part do 
not apply to (1) any Federal financial assistance by way of insurance or 
guaranty contract, (2) money paid, property transferred, or other 
assistance extended prior to the effective date of the regulations in 
this part, (3) any assistance to an applicant or recipient who is an 
ultimate beneficiary, or (4) except as provided in Sec. 15.3(c), any 
employment practice of any employer, employment agency or labor 
organization. The fact that a specific kind of Federal financial 
assistance is not listed in the appendix, shall not mean, if title VI of 
the Act is otherwise applicable, that such Federal financial assistance 
is not covered. Other Federal financial assistance under statutes now in 
force or hereinafter enacted may be added to this list by notice 
approved and issued by the Secretary and published in the Federal 
Register.

[29 FR 16274, Dec. 4, 1964, as amended at 38 FR 17925, July 5, 1973; 68 
FR 51341, Aug. 26, 2003]



Sec. 15.2  Definitions.

    (a) Department means the Department of Agriculture, and includes 
each of its operating agencies and other organizational units.
    (b) Agency means any service, bureau, agency, office, 
administration, instrumentality of or corporation within the U.S. 
Department of Agriculture extending Federal financial assistance to any 
program or activity, or any officer or employee of the Department to 
whom the Secretary delegates authority to carry out any of the functions 
or

[[Page 379]]

responsibilities of an agency under this part.
    (c) Secretary means the Secretary of Agriculture or any officer or 
employee of the Department to whom the Secretary has heretofore 
delegated, or to whom the Secretary may hereafter delegate, the 
authority to act in his stead under the regulations in this part.
    (d) Hearing Officer means a hearing examiner appointed pursuant to 5 
U.S.C. 3105, and designated to hold hearings under the regulations in 
this part or any person authorized to hold a hearing and make a final 
decision under the regulations in this part.
    (e) Recipient means any State, political subdivision of any State, 
or instrumentality of any State or political subdivision, any public or 
private agency, institution, or organization, or other entity or any 
individual in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assignee, or transferee thereof, but such term does not 
include any ultimate beneficiary.
    (f) Primary recipient includes any recipient which is authorized or 
required to extend Federal financial assistance to another recipient.
    (g) Federal financial assistance or financial assistance includes 
(1) grants and loans of Federal funds, (2) the grant or donation of 
Federal property and interests in property, (3) the detail of Federal 
personnel, (4) the sale and lease of, and the permission to use (on 
other than a casual or transient basis), Federal property or any 
interest in such property or the furnishing of services without 
consideration or at a nominal consideration, or at a consideration which 
is reduced for the purpose of assisting the recipient, or in recognition 
of the public interest to be served by such sale, lease or furnishing of 
services to the recipient, and (5) any Federal agreement, arrangement, 
or other contract which has as one of its purposes the provision of 
assistance.
    (h) Grant, loan or contract includes any grant, loan agreement or 
commitment to loan, contract or agreement to provide financial 
assistance or any other arrangement between the Department or any Agency 
and a recipient of financial assistance.
    (i) United States means the States of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, Wake Island, the Canal Zone, and the territories and possessions 
of the United States, and the term State means any one of the foregoing.
    (j) Applicant means one who submits an application, request, or plan 
required to be approved by an Agency, or by a primary recipient, as a 
condition to eligibility for Federal financial assistance, and 
application means such an application, request, or plan.
    (k) Program or activity and program mean all of the operations of 
any entity described in paragraphs (k)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities

[[Page 380]]

described in paragraph (k)(1), (2), or (3) of this section.
    (l) Facility includes all or any portion of structures, equipment, 
or other real or personal property or interests therein, and the 
provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.

[29 FR 16274, Dec. 4, 1964, as amended at 36 FR 3411, Feb. 24, 1971; 38 
FR 17925, July 5, 1973; 68 FR 51340, 51341, Aug. 26, 2003]



Sec. 15.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity of the applicant or recipient to which 
these regulations apply. These regulations apply, but are not 
restricted, to unequal treatment in priority, quality, quantity, methods 
or charges for service, use, occupancy or benefit, participation in the 
service or benefit available, or in the use, occupancy or benefit of any 
structure, facility, or improvement.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which the regulations in this part apply may not, 
directly or through contractual or other arrangements on the ground of 
race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit, to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege, enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provisions of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, an applicant 
or recipient may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any of its programs or activities to which 
the regulations in this part apply, on the grounds of race, color, or 
national origin; or with the purpose or effect of defeating or 
substantially impairing the accomplishment of the objectives of the Act 
and the regulations in this part.
    (4) As used in this section, the services, financial aid, or other 
benefit provided under a program or activity of an

[[Page 381]]

applicant or recipient receiving Federal financial assistance shall be 
deemed to include any and all services, financial aid, or other benefit 
provided in or through a facility provided or improved in whole or part 
with the aid of Federal financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in these regulations does not limit the applicability of the provisions 
of paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (c) Employment practices. Where a primary objective of the Federal 
financial assistance to a program to which the regulations in this part 
apply is to provide employment, a recipient may not, directly or through 
contractual or other arrangements, subject an individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under the program including recruitment or 
recruitment advertising, employment, layoff or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation, and 
use of facilities. This paragraph applies to programs where a primary 
objective of the Federal financial assistance is (1) to reduce 
unemployment, (2) to assist individuals in meeting expenses incident to 
the commencement or continuation of their education or training, or (3) 
to provide work experience which contributes to education or training. 
Where a primary objective of the Federal financial assistance is not to 
provide employment, but discrimination on the grounds of race, color, or 
national origin in the employment practices of the recipient or other 
persons subject to the regulations in this part, tends, on the grounds 
of race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program or activity of the applicant or 
recipient to which these regulations apply, the foregoing provisions of 
this Sec. 15.3(c) shall apply to the employment practices of the 
recipient or other persons subject to these regulations, to the extent 
necessary to assure equality of opportunity to, and nondiscriminatory 
treatment of, beneficiaries. The requirements applicable to construction 
employment under any program or activity of the applicant or recipient 
shall be those specified in or pursuant to part III of Executive Order 
11246 or any Executive order which supersedes it.
    (d) Examples. In order that all parties may have a clear 
understanding of the applicability of the regulations in this part to 
their activities, there are listed in this section types of Federal 
financial assistance together with illustrations, by way of example 
only, of types of activity covered by the regulations in this part. 
These illustrations and examples, however, are not intended to be all 
inclusive. The fact that a particular type of Federal financial 
assistance is not listed does not, of course, indicate that a program is 
not covered by the regulations in this part. Moreover, the examples set 
forth with respect to any particular listed type of Federal financial 
assistance are not limited to that program alone and the prohibited 
actions described may also be prohibited in other programs or activities 
whether or not listed below.
    (1) Cooperative Agricultural Extension Program. (i) Discrimination 
in making available or in the manner of making available instructions, 
demonstrations, information, and publications offered by or through the 
Cooperative Extension Service;
    (ii) Discrimination in the use in any program or activity funded by 
the Cooperative Extension Service of any facility, including offices, 
training facilities, lecture halls, or other structures or improvements; 
or
    (iii) Discrimination in training activities, admission to or 
participation in fairs, competitions, field days, and encampments, 
conducted or sponsored by, or in which the Cooperative Extension Service 
participates.

[[Page 382]]

    (2) Rural Electrification and Rural Telephone Programs. (i) Refusal 
or failure by a borrower to accept applications for membership or 
applications to purchase shares of stock, or discrimination by a 
borrower in the terms and conditions of membership or stock ownership, 
where such membership or stock ownership is a condition prerequisite to 
the furnishing of electric or telephone service by the borrower, or to 
the receipt of any benefits or advantages related to such service;
    (ii) Refusal or failure by a borrower to extend, or discrimination 
by a borrower in the extension of, electric or telephone service to 
unserved persons;
    (iii) Denial by a borrower to any person of the benefits of 
improvement, expansion or upgrading, or discrimination by a borrower 
among consumers or subscribers in improving, expanding or upgrading, of 
electric or telephone service;
    (iv) Discrimination by a borrower in respect of rates, or terms or 
conditions of, service among consumers or subscribers;
    (v) Exclusion by a borrower of any member or stockholder, if the 
borrower is a cooperative or mutual type of corporation, from 
participation in any meeting of members or stockholders of the borrower, 
discrimination among its members or stockholders in respect of the 
exercise of any of their rights as members or stockholders, or in the 
manner of the exercise of such rights; or
    (vi) Exclusion by a borrower of any consumer or subscriber from, 
denial by a borrower to any consumer or subscriber of the use of, or 
discrimination by a borrower against any consumer or subscriber in his 
use of, any of the borrower's facilities.
    (3) Direct Distribution Program. (i) Exclusion of an otherwise 
eligible recipient agency (school, summer camp for children, 
institution, welfare agency or disaster organization) or person from 
participation in the Direct Distribution Program.
    (ii) Discrimination in the allocation of food to eligible persons.
    (iii) Discrimination in the manner in which or the place or times at 
which foods donated under the Program are distributed by recipient 
agencies to eligible persons.
    (iv) Segregation of persons served in different meal periods or by 
different seating or serving or different food or different size 
portions by recipient agencies serving prepared meals containing donated 
foods.
    (4) National School Lunch Program. (i) Discrimination by a State 
agency in the selection of schools to participate in the Program or in 
the assignment to schools of rates of reimbursement.
    (ii) Exclusion of any child from participation in the Program.
    (iii) Discrimination by school officials in the selection of 
children to receive free or reduced-price lunches.
    (iv) Segregation of participating children in different lunch 
periods or different seating, and discrimination by serving different 
food or different size portions.
    (v) Failure to offer free and reduced-price lunches, on an equitable 
basis in schools of a school district in which children are assigned to 
schools on the basis of race, color, or national origin.
    (5) Food Stamp Program. (i) Discrimination by a State agency in 
certifying households as eligible for the Program.
    (ii) Segregation or other discrimination in the manner in which or 
the times at which eligible households are issued food coupons.
    (6) Special Milk Program for Children. (i) Discrimination by a State 
agency in the selection of schools and child-care institutions to 
participate in the Program.
    (ii) Discrimination by a State agency in the selection of needy 
schools to receive reimbursement for milk served free.
    (iii) Discrimination by a State agency in the assignment of 
reimbursement rates to schools and child-care institutions or in the 
adjustment of such rates, or in fixing allowable distribution costs.
    (iv) Exclusion of any child from participation in the Program and 
segregation of participating children in different serving periods or 
different places of service.
    (v) Discrimination by school officials or child-care institutions in 
the selection of children to receive free milk.

[[Page 383]]

    (7) Price Support Programs carried out through producer associations 
or cooperatives or through persons who are required to provide specified 
benefits to producers. (i) Denial of the benefits of price support for a 
producers commodity.
    (ii) Denial of membership or stock ownership to any producer by any 
association or cooperative.
    (iii) Discrimination among producers in the manner of making or 
paying any price support advances, loans, or payments.
    (iv) Discrimination in the fees or charges collected from or in the 
net gains distributed to producers.
    (v) Discrimination in the use of facilities and services generally 
made available to members or patrons under the Price Support Program.
    (8) Forest Service Programs. (i) Refusal or failure by a recipient 
of a permit or lease to provide to any person the benefits from the use 
of land administered by the Forest Service, the resources therefrom, or 
improvements thereon.
    (ii) Refusal or failure by any recipient to provide to any person 
the benefits from Federal payments based on a share of the receipts from 
lands administered by the Forest Service.
    (iii) Refusal or failure by any recipient to provide to any person 
the benefits from Federal assistance in cooperative programs for the 
protection, development, management, and use of forest resources.
    (iv) Refusal or failure by any cooperator or other recipient to 
provide to any person the benefits from Federal assistance through 
grants or advances of funds for research.
    (9) Farmers Home Administration Programs--(i) Direct soil and water 
loans to association. (a) A borrower's denial of, or discrimination in 
furnishing, services under a program or activity financed wholly or 
partially with the aid of the loan, as in the case of a water supply 
system.
    (b) A borrower's denial of, or discrimination or segregation in 
permitting, the use of facilities which are part of a project financed 
wholly or partially with the aid of the loan, as in the case of a golf 
course, swimming pool, tennis courts, parking areas, lounges, dining 
rooms, and rest rooms of a recreation association.
    (c) Discrimination by a borrower in the terms and conditions of 
membership or stock ownership, or refusal or failure of a borrower to 
accept applications for membership or for purchase of shares of stock, 
or discrimination by a borrower in acting or failing to act upon such 
applications, where such membership or stock ownership is a prerequisite 
to the participation in services furnished by, or the use of facilities 
of, the borrower which are financed wholly or partially with the aid of 
the loan or to the receipt of any benefits or advantages related to such 
services or the use of such facilities.
    (d) Denial or impairment by a borrower of any person's rights as a 
member or stockholder of the borrower, or borrower's discrimination 
against or segregation of persons in the exercise of their rights as 
members or stockholders of the borrower.
    (ii) Direct senior citizens rental housing loans to private 
nonprofit corporations and consumer cooperatives. (a) A borrower's 
exclusion of any person from, discrimination in the terms and conditions 
of eligibility for, or discrimination against or segregation of any 
person in, the use and occupancy of the housing and related facilities 
financed wholly or partially with the aid of the loan.
    (b) Discrimination by a borrower in the terms and conditions of 
membership or stock ownership, or refusal or failure of a borrower to 
accept applications for membership or for purchase of shares of stock, 
or discrimination by a borrower in acting or failing to act upon such 
applicattions, where such membership or stock ownership is a condition 
of eligibility for use and occupancy of the housing and related 
facilities financed wholly or partially with the aid of the loan or to 
the receipt of any benefits or advantages related to such housing or 
facilities.
    (c) Denial or impairment by a borrower of any person's rights as a 
member or stockholder of the borrower, or a borrower's discrimination 
against or segregation of persons in the exercise of their rights as 
members or stockholders of the borrower.
    (10) Cooperative State Research Programs. (i) Discrimination in 
making

[[Page 384]]

available information whether published or provided through public or 
private statement, correspondence, demonstration or field day.
    (ii) Discrimination in participation in any Cooperative Research 
Program or project.
    (iii) Discrimination in the use of any facility, including offices, 
laboratories, or other structures, or research plots or fields.
    (iv) Discrimination in employment of graduate students to conduct 
research when such students receive substantial research training 
benefits as a result of such employment.

[29 FR 16274, Dec. 4, 1964, as amended at 35 FR 18383, Dec. 3, 1970; 38 
FR 17925, July 5, 1973; 68 FR 51341, Aug. 26, 2003]



Sec. 15.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which these regulations apply, except an application to which 
paragraph (b) of this section applies, and every application for Federal 
financial assistance to provide a facility, shall as a condition to its 
approval and the extension of any Federal financial assistance pursuant 
to the application, contain or be accompanied by an assurance that the 
applicant's program or activity will be conducted or the facility 
operated in compliance with all requirements imposed by or pursuant to 
the Act and the regulations in this part. In the case where the Federal 
financial assistance is to provide or is in the form of personal 
property, or real property or interest therein, or structures thereon, 
the assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for the purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services and benefits or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases, the assurance shall obligate the recipient for the period 
during which Federal financial assistance is extended pursuant to the 
application. The Agency shall specify the form of the foregoing 
assurances and the extent to which like assurances will be required of 
subgrantees, contractors, and subcontractors, successors in interest and 
other participants. Any such assurance shall include provisions which 
give the United States a right to seek its judicial enforcement.
    (2) In the case of real property, structures, or improvements 
thereon, or interests therein, which was acquired through Federal 
financial assistance, or in the case where Federal financial assistance 
is provided in the form of a transfer of real property or interest 
therein from the Federal Government, the instrument effecting or 
recording the transfer shall contain a covenant running with the land 
assuring nondiscrimination for the period during which the real property 
is used for a purpose for which the Federal financial assistance is 
extended or for another purpose involving the provision of similar 
services or benefits, or for as long as the recipient retains ownership 
or possession of the property, whichever is longer. Where no transfer of 
property is involved, but property is improved through Federal financial 
assistance, the recipient shall agree to include such a covenant in any 
subsequent transfer of such property. Where the property is obtained 
from the Federal Government, such covenant may also include a condition 
coupled with a right to be reserved by the Agency to revert title to the 
property in the event of a breach of the covenant where, in the 
discretion of the Agency concerned, such a condition and right of 
reverter is appropriate to the purposes of the Federal financial 
assistance under which the real property is obtained and to the nature 
of the grant and the grantee. In such event, if a transferee of real 
property proposes to mortgage or otherwise encumber the real property as 
security for financing construction of new, or improvement of existing, 
facilities on such property for the purposes for which the property was 
transferred, the Agency may agree, upon request of the transferee and if 
necessary to accomplish such financing, and upon such conditions as it 
deems appropriate to forbear the exercise of such right to revert title 
for so long as the lien of such mortgage or other encumbrance remains 
effective.

[[Page 385]]

    (3) Transfers of surplus property are subject to regulations issued 
by the Administrator of General Services (41 CFR 101-6.2).
    (b) Every application by a State or a State Agency, including a 
State Extension Service, but not including an application for aid to an 
institution of higher education, continuing Federal financial assistance 
to which the regulations in this part apply shall as a condition to its 
approval and the exension of any Federal financial assistance pursuant 
to the application (1) contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part, 
and (2) provide or be accompanied by provision for such methods of 
administration for the program as are found by the Agency to give 
reasonable assurance that the applicant and all recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to the regulations in this part: 
Provided, That where no application is required prior to payment, the 
State or State Agency, including a State Extension Service, shall, as a 
condition to the extension of any Federal financial assistance, submit 
an assurance complying with the requirements of paragraphs (b)(1) and 
(2) of this section.
    (c) Assurances from institutions. The assurance required with 
respect to an institution of higher education, or any other institution, 
insofar as the assurance relates to the institution's practices with 
respect to admission or other treatment of individuals or to the 
opportunity to participate in the provision of services or other 
benefits to such individuals, shall be applicable to the entire 
institution.
    (d) Recipients other than applicants. Each recipient not required to 
submit an application for Federal financial assistance, shall furnish, 
as a condition to the extension of any such assistance, an assurance or 
statement as is required of applicants under paragraphs (a), (b)(1) and 
(2) of this section.
    (e) Elementary and secondary schools. The requirements of paragraphs 
(a), (b), or (d) of this section with respect to any elementary or 
secondary school or school system shall be deemed to be satisfied if 
such school or school system (1) is subject to a final order of a court 
of the United States for the desegregation of such school or school 
system, and provides an assurance that it will comply with such order, 
including any future modification of such order, or (2) submits a plan 
for the desegregation of such school or school system which the 
responsible official of the Department of Health, Education, and Welfare 
determines is adequate to accomplish the purposes of the Act and this 
part, and provides reasonable assurance that it will carry out such 
plan; in any case of continuing Federal financial assistance the said 
responsible official of the Department of Health, Education, and Welfare 
may reserve the right to redetermine, after such period as may be 
specified by him, the adequacy of the plan to accomplish the purposes of 
the Act and this part within the earliest practical time. In any case in 
which a final order of a court of the United States for the 
desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.

[29 FR 16274, Dec. 4, 1964, as amended at 32 FR 3967, Mar. 11, 1967; 35 
FR 18383, Dec. 3, 1970; 38 FR 17926, July 5, 1973; 68 FR 53141, Aug. 26, 
2003]



Sec. 15.5  Compliance.

    (a) Cooperation and assistance. Each Agency shall to the fullest 
extent practicable seek the cooperation of recipients in obtaining 
compliance with the regulations and this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with the regulations in this part. As a normal part of the 
administration of Federal financial assistance covered by the 
regulations in this part, designated personnel will in their reviews and 
other activities or as specifically directed by the Agency, review the 
activities of recipients to determine whether they are complying with 
the regulations in this part. Reports by such personnel shall include 
statements regarding compliance and instances, if any, of noncompliance. 
In

[[Page 386]]

the event of noncompliance, the Agency shall seek to secure voluntary 
compliance by all appropriate means.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Agency timely, complete and accurate compliance reports at 
such times, and in such form and containing such information, as the 
Agency may determine to be necessary to ascertain whether the recipient 
has complied or is complying with the regulations in this part. In the 
case in which a primary recipient extends Federal financial assistance 
to any other recipient, such other recipient shall also submit such 
compliance reports to the primary recipient as may be necessary to 
enable the primary recipient to carry out its obligations under the 
regulations in this part. In general, recipients should have available 
for the Agency racial and ethnic data showing the extent to which 
members of minority groups are beneficiaries of federally assisted 
programs.
    (c) Access to sources of information. Each recipient shall permit 
access by authorized employees of this Department during normal business 
hours to such of its books, records, accounts, and other sources of 
information, and its facilities as may be pertinent to ascertain 
compliance with the regulations in this part. Where any information 
required of a recipient is in the exclusive possession of any other 
agency, institution or person and this agency, institution or person 
shall fail or refuse to furnish this information, the recipient shall so 
certify in its report and shall set forth what efforts it has made to 
obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of the 
regulations in this part and their applicability to the program for 
Federal statutes, authorities, or other means by which Federal financial 
assistance is extended and which the recipient receives Federal 
financial assistance, and make such information available to them in 
such manner, as the Department or its Agencies finds necessary to 
apprise such persons of the protections against discrimination assured 
them by the Act and the regulations in this part.

[29 FR 16274, Dec. 4, 1964, as amended at 29 FR 16966, Dec. 11, 1964; 38 
FR 17926, July 5, 1973; 68 FR 51341, Aug. 26, 2003]



Sec. 15.6  Complaints.

    Any person who believes himself/herself or any specific class of 
individuals to be subjected to discrimination prohibited by the 
regulations in this part may by himself/herself or by an authorized 
representative file with the Secretary or any Agency a written 
complaint. A complaint must be filed not later than 180 days from the 
date of the alleged discrimination, unless the time for filing is 
extended by the Agency or by the Secretary. Such complaint shall be 
promptly referred to the Assistant Secretary for Civil Rights. The 
complaint shall be investigated in the manner determined by the 
Assistant Secretary for Civil Rights and such further action taken by 
the Agency or the Secretary as may be warranted.

[50 FR 25687, June 21, 1985, as amended at 68 FR 27449, May 20, 2003]



Sec. 15.7  Intimidatory or retaliatory acts prohibited.

    No recipient or other person shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by section 601 of the Act or the 
regulations in this part, or because he has made a complaint, testified, 
assisted, or participated in any manner in an investigation, proceeding, 
or hearing under the regulations in this part. The identity of 
complainants shall be kept confidential except to the extent necessary 
to carry out the purposes of the regulations in this part, including the 
conduct of any hearing or judicial proceeding arising thereunder.



Sec. 15.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with the regulations in this part, and if the noncompliance or 
threatened noncompliance cannot be corrected by informal means, 
compliance with the regulations in this part may be effected by the 
suspension or termination of or

[[Page 387]]

refusal to grant or to continue Federal financial assistance, upon a 
finding, in accordance with the procedure hereinafter prescribed, or by 
any other means authorized by law. Such other means may include, but are 
not limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 15.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 15.4 or otherwise fails or 
refuses to comply with the requirements imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph, except that the 
Department shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application therefor approved prior to the effective date of the 
regulations in this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or to continue Federal financial assistance shall become effective 
until (1) the Agency has advised the applicant or recipient of his 
failure to comply and has determined that compliance cannot be secured 
by voluntary means, (2) there has been an express finding on the record, 
after opportunity for hearing, of a failure by the applicant or 
recipient to comply with the requirement imposed by or pursuant to the 
regulations in this part, (3) the action has been approved by the 
Secretary pursuant to Sec. 15.10(e), and (4) the expiration of 30 days 
after the Secretary has filed with the committee of the House and the 
committee of the Senate, having legislative jurisdiction over the 
program involved, a full written report of the circumstances and the 
grounds for such action. Any action to suspend or terminate or to refuse 
to grant or to continue Federal financial assistance shall be limited to 
the particular political entity, or part thereof, or other applicant or 
recipient as to whom such a finding has been made and shall be limited 
in its effect to the particular program, or part thereof, in which such 
noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the Secretary 
has determined that compliance cannot be secured by voluntary means, (2) 
the recipient or other person has been notified of its failure to comply 
and of the action to be taken to effect compliance, and (3) the 
expiration of at least ten days from the mailing of such notice to the 
recipient or other person. During this period of at least ten days, 
additional efforts shall be made to persuade the recipient or other 
person to comply with the regulations in this part and to take such 
corrective action as may be appropriate.



Sec. 15.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required under the regulations in this part, reasonable notice shall 
be given by registered or certified mail, return receipt requested, to 
the affected applicant or recipient. This notice shall advise the 
applicant or recipient of the action proposed to be taken, the specific 
provision under which the proposed action against it is to be taken, and 
the matters of fact or law asserted as the basis for this action, and 
either (1) fix a date not less than 20 days after the date of such 
notice within which the applicant or recipient may request of the 
Secretary or the Agency that the matter be scheduled for hearing or (2) 
advise the applicant or recipient that the matter in question has been 
set down for hearing at a stated place and time. The time and place so 
fixed shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing

[[Page 388]]

under this subsection or to appear at a hearing for which a date has 
been set shall be deemed to be a waiver of the right to a hearing under 
section 602 of the Act and the regulations in this part and consent to 
the making of a decision on the basis of such information as is 
available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department in Washington, DC, at a time fixed by the hearing 
officer or by the Secretary unless it is determined that the convenience 
of the applicant or recipient or of the Department requires that another 
place be selected. Hearings shall be held before a hearing officer.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557, and in accordance with such rules of procedure 
promulgated by the Secretary as not inconsistent with this section, 
relating to the conduct of the hearing, giving of notices subsequent to 
those provided for in paragraph (a) of this section, taking of 
testimony, exhibits, arguments and briefs, requests for findings, and 
other related matters. Both the Department, and the applicant or 
recipient shall be entitled to introduce all relevant evidence on the 
issues as stated in the notice for hearing or as determined by the 
hearing officer conducting the hearing at the outset of or during the 
hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to these regulations in this part, but rules or 
principles designed to assure production of the most credible evidence 
available and to subject testimony to test by cross-examination shall be 
applied where reasonably necessary by the hearing officer. The hearing 
officer may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record shall be open to examination by the parties and opportunity shall 
be given to refute facts and arguments advanced on either side of the 
issues. A transcript shall be made of the oral evidence except to the 
extent the substance thereof is stipulated for the record. All decisions 
shall be based upon the hearing record and written findings shall be 
made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with these 
regulations with respect to two or more to which the regulations in this 
part apply, or noncompliance with the regulations in this part and the 
regulations of one or more other Federal Departments or Agencies issued 
under title VI of the Act, the Secretary may, by agreement with such 
other Departments or Agencies, where applicable provide for the conduct 
of consolidated or joint hearings, and for the application to such 
hearings of rules of procedure not inconsistent with the regulations in 
this part. Final decisions in such cases, insofar as the regulations in 
this part are concerned, shall be made in accordance with Sec. 15.10.

[29 FR 16274, Dec. 4, 1964, as amended at 35 FR 18384, Dec. 3, 1970; 38 
FR 17926, July 5, 1973; 68 FR 51341, Aug. 26, 2003]



Sec. 15.10  Decisions and notices.

    (a) Decision by hearing officer or Secretary. (1) The hearing 
officer shall either make an initial decision, if so authorized, or 
certify the entire record including his recommended findings, and 
proposed decision to the Secretary for a final decision, and a copy of 
such initial decision or certification shall be mailed to the applicant 
or recipient. The applicant or recipient may within 30 days of the 
mailing of such notice of initial decision file with the Secretary his 
exceptions to the initial decision, with his reasons therefor.
    (2) In the absence of exceptions, the Secretary may on his own 
motion within 45 days after the initial decision serve on the applicant 
or recipient a notice that he will review the decision. Upon the filing 
of such exceptions or of such notice of review the Secretary shall 
review the initial decision and issue his own decision thereon including 
the reasons therefor. In the absence

[[Page 389]]

of either exceptions or a notice of review the initial decision shall 
constitute the final decision of the Secretary.
    (b) Decisions on record or review. Whenever a record is certified to 
the Secretary for decision or he reviews the decision of a hearing 
officer pursuant to paragraph (a), the applicant or recipient shall be 
given reasonable opportunity to file with him briefs or other written 
statements of its contentions, and a copy of the final decision of the 
Secretary shall be given in writing to the applicant or recipient, and 
to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 15.9(a), a decision shall be made by 
the Secretary on the record and a copy of such decision shall be given 
in writing to the applicant or recipient, and to the complainant, if 
any.
    (d) Rulings required. Each decision of a hearing officer shall set 
forth his ruling on each finding, conclusion, or exception presented, 
and shall identify the requirement or requirements imposed by or 
pursuant to the regulations in this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Decision by Secretary. The Secretary shall make any final 
decision which provides for the suspension or termination of, or the 
refusal to grant or continue Federal financial assistance, or the 
imposition of any other sanction available under the regulations in this 
part or the Act.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and the 
regulations in this part, including provisions designed to assure that 
no Federal financial assistance to which this regulation applies will 
thereafter be extended to the applicant or recipient determined by such 
decision to be in default in its performance of an assurance given by it 
pursuant to the regulations in this part, or to have otherwise failed to 
comply with the regulations in this part, unless and until it corrects 
its noncompliance and satisfies the Agency that it will fully comply 
with the regulations in this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibilty to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
the Act and the regulations in this part and provides reasonable 
assurance that it will fully comply therewith. An elementary or 
secondary school or school system which is unable to file an assurance 
of compliance with Sec. 15.4 (a), (b), or (d) shall be restored to full 
eligibility to receive Federal financial assistance if it complies with 
the requirements of a Sec. 15.4(e) and is otherwise in compliance with 
the Act and the regulations in this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance. Any such request shall be supported by 
information showing that the applicant or recipient has met the 
requirements of paragraph (g)(1) of this section. If the Secretary 
determines that those requirements have been satisfied, he shall restore 
such eligibility.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit a request for a hearing in writing, specifying why 
it believes the denial to have been in error. It shall thereupon be 
given an expeditious hearing, with a decision on the record, in 
accordance with rules of procedure set forth in subpart C of this part. 
The applicant or recipient will be restored to such eligibility if it 
proves at such a hearing, that it has satisfied the requirements of 
paragraph (g)(1) of this section. While proceedings under this paragraph 
are pending, the sanctions imposed by the order issued under paragraph 
(f) of this section shall remain in effect.

[29 FR 16274, Dec. 4, 1964, as amended at 35 FR 18384, Dec. 3, 1970; 38 
FR 17926, July 5, 1973; 68 FR 51341, Aug. 26, 2003]

[[Page 390]]



Sec. 15.11  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 15.12  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Department which 
impose requirements designed to prohibit any discrimination against 
individuals on the ground of race, color, or national origin under any 
program to which the regulations in this part apply, and which authorize 
the suspension or termination of or refusal to grant or to continue 
Federal financial assistance to any applicant for or recipient of such 
assistance for failure to comply with such requirements, are hereby 
superseded to the extent that such discrimination is prohibited by the 
regulations in this part, except that nothing in the regulations in this 
part shall be deemed to relieve any person of any obligation assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to the effective date of the regulations in this 
part. Nothing in these regulations, however, shall be deemed to 
supersede any of the following including future amendments thereof:
    (1) Executive Order 11246 and regulations issued thereunder; or
    (2) Executive Order 11063 and regulations issued thereunder or any 
other regulations or instructions insofar as they prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which the regulations in this part are 
inapplicable, or prohibit discrimination on any other ground.
    (b) Forms and instructions. Each Agency shall issue and promptly 
make available forms and such implementing instructions and procedures 
consistent with the regulations in this part as may be necessary. Each 
Agency in making available Federal financial assistance to any program 
or activity may utilize contractual commitments in obtaining compliance 
with the regulations in this part, including obtaining compliance by 
recipients other than the contracting recipient.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of other Departments or Agencies of the 
Government with the consent of such Department or Agency, 
responsibilities in connection with the effectuation of the purposes of 
title VI of the Act and the regulations in this part (other than 
responsibility for final decision as provided in Sec. 15.10) including 
the achievement of effective coordination and maximum uniformity within 
the Department and within the Executive Branch of the Government in the 
application of title VI and these regulations to similar programs and in 
similar situations. Any action taken, determination made, or requirement 
imposed by an official of another Department or Agency acting under this 
paragraph shall have the same effect as though such action had been 
taken by the Secretary or any Agency of this Department.

[29 FR 16274, Dec. 4, 1964, as amended at 38 FR 17927, July 5, 1973; 68 
FR 51341, Aug. 26, 2003]

 Appendix to Subpart A of Part 15--List of Federal Financial Assistance 
                                From USDA

    The types of Federal assistance administered by the U.S. Department 
of Agriculture include but are not limited to the following:

----------------------------------------------------------------------------------------------------------------
                    Type of Federal Financial Assistance                                   Authority
----------------------------------------------------------------------------------------------------------------
                              Administered by the Agricultural Cooperative Service
 
----------------------------------------------------------------------------------------------------------------
1. Cooperative Development..................................................  Cooperative Marketing Act of 1926,
                                                                               7 U.S.C. 451 et seq. Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, 7 U.S.C. 1621 et seq.
 
-----------------------------------------------------------------------------

[[Page 391]]

 
                               Administered by the Agricultural Marketing Service
 
----------------------------------------------------------------------------------------------------------------
2. Federal-State marketing improvement program..............................  Agricultural Marketing Act of
                                                                               1946, Section 204b, 7 U.S.C.
                                                                               1623(b).
 
-----------------------------------------------------------------------------
                                Administered by the Agricultural Research Service
 
----------------------------------------------------------------------------------------------------------------
3. Soil and Water Conservation..............................................  7 CFR 3015.205(b); Department of
                                                                               Agriculture Organic Act of 1862
                                                                               (7 U.S.C. 2201); the Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, (7 U.S.C. 427, 1621) and
                                                                               the Food Security Act of 1985 (7
                                                                               U.S.C. 1281 et seq.).
4. Animal Productivity......................................................  7 CFR 3015.205(b); Department of
                                                                               Agriculture Organic Act of 1862;
                                                                               (7 U.S.C. 2201); the Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, (7 U.S.C. 427, 1621) and
                                                                               the Food Security Act of 1985 (7
                                                                               U.S.C. 1281 et seq.).
5. Plant Productivity.......................................................  7 CFR 3015.205(b); Department of
                                                                               Agriculture Organic Act of 1862,
                                                                               (7 U.S.C. 2201); the Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, (7 U.S.C. 427, 1621) and
                                                                               the Food Security Act of 1985 (7
                                                                               U.S.C. 1281 et seq.).
6. Commodity Conversion and Delivery........................................  7 CFR 3015.205(b); Department of
                                                                               Agriculture Organic Act of 1862
                                                                               (7 U.S.C. 2201); the Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, (7 U.S.C. 427, 1621) and
                                                                               the Food Security Act of 1985 (7
                                                                               U.S.C. 1281 et seq.).
7. Human Nutrition..........................................................  7 CFR 3015.205(b); Department of
                                                                               Agriculture Organic Act of 1862
                                                                               (7 U.S.C. 2201); the Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, (7 U.S.C. 427, 1621) and
                                                                               the Food Security Act of 1985 (7
                                                                               U.S.C. 1281 et seq.).
8. Integration of Agricultural Systems......................................  7 CFR 3015.205(b); Department of
                                                                               Agriculture Organic Act of 1862
                                                                               (7 U.S.C. 2201); the Agricultural
                                                                               Marketing Act of 1946, as
                                                                               amended, (7 U.S.C. 427, 1621) and
                                                                               the Food Security Act of 1985 (7
                                                                               U.S.C. 1281 et seq.).
-----------------------------------------------------------------------------
                     Administered by the Agricultural Stabilization and Conservation Service
 
----------------------------------------------------------------------------------------------------------------
9. Price support programs operating through producer associations,            Agricultural Adjustment Act of
 cooperatives and other recipients in which the recipient is required to       1938, 7 U.S.C. 1301-1393; Pub. L.
 furnish specified benefits to producers (e.g. tobacco, peanuts, cotton,       73-430; Commodity Credit
 rice, honey, dry edible beans, tung oil, naval stores and soybeans price      Corporation Charter Act, 15
 support programs).                                                            U.S.C. 714 et seq.; Agricultural
                                                                               Act of 1949, as amended; 7 U.S.C.
                                                                               1421 et seq.; Pub. L. 81-439, as
                                                                               amended; Agriculture and Food Act
                                                                               of 1961; Pub. L. 97-98; Dairy and
                                                                               Tobacco Adjustment Act of 1983;
                                                                               Pub. L. 98-180; Agricultural
                                                                               Programs Adjustment Act of 1984;
                                                                               Pub. L. 98-258; Food Security Act
                                                                               of 1985; Pub. L. 99-198.
 
-----------------------------------------------------------------------------
                               Administered by Cooperative State Research Service
 
----------------------------------------------------------------------------------------------------------------
10. 1890 Research Facilities................................................  Sec. 1433 of the National
                                                                               Agricultural Research, Extension
                                                                               and Teaching Policy Act of 1977,
                                                                               Pub. L. 95-113, as amended; 7
                                                                               U.S.C. 3195.
11. Payments to 1890 Land-Grant Colleges and Tuskegee Institute.............  Sec. 1445 of the National
                                                                               Agricultural Research, Extension
                                                                               and Teaching Policy Act of 1977;
                                                                               Pub. L. 85-113, as amended; 7
                                                                               U.S.C. 3222.
12. Cooperative Forestry Research (McIntire-Stennis Act)....................  Cooperative Forestry Research Act
                                                                               of October 10, 1962; Pub. L. 87-
                                                                               788; 16 U.S.C. 582a-582q-7.
13. Payments to Agricultural Experiment Stations under Hatch Act............  Hatch Act of 1887, as amended; 7
                                                                               U.S.C. 361a-361i.
14. Grants for Agricultural Research Competitive Research Grants............  Sec. 2(b) of Pub. L. 89-106; 7
                                                                               U.S.C. 450i(b), as amended.
15. Grants for Agricultural Research, Special Research Grants...............  Sec. 2(c) of Pub. L. 89-106; 7
                                                                               U.S.C. 450i(c), as amended.
16. Animal Health and Disease Research......................................  National Agricultural Research,
                                                                               Extension and Teaching Policy Act
                                                                               of 1977, Sec. 1433, Pub. L. 95-
                                                                               113, as amended; 7 U.S.C. 3195.
-----------------------------------------------------------------------------
                                        Administered by Extension Service
 
----------------------------------------------------------------------------------------------------------------
17. Home Economics..........................................................  Smith-Lever Act, as amended; 7
                                                                               U.S.C. 341-349; District of
                                                                               Columbia Post-secondary Education
                                                                               Reorganization Act, D.C. Code,
                                                                               Sec. 31-1518; Title V, Rural
                                                                               Development Act of 1972, as
                                                                               amended; 7 U.S.C. 2661 et seq.
                                                                               Sec. 14, Title 14, National
                                                                               Agricultural Research, Extension
                                                                               and Teaching Policy Act of 1977;
                                                                               Pub. L. 95-113, as amended.

[[Page 392]]

 
18. 4-H Youth Development...................................................  Smith-Lever Act, as amended; 7
                                                                               U.S.C. 341-349; District of
                                                                               Columbia Public Postsecondary
                                                                               Education Reorganization Act,
                                                                               D.C. Code, Sec. 31-1518; Title
                                                                               VI, Rural Development Act of
                                                                               1972, as amended; 7 U.S.C. 2661
                                                                               et seq.; Sections 1425 and 1444,
                                                                               National Agricultural Research,
                                                                               Extension and Teaching Policy Act
                                                                               of 1977; Pub. L. 95-113, as
                                                                               amended; 7 U.S.C. 3221, 3175;
                                                                               Pub. L. 96-374, Sec. 1361(c); 7
                                                                               U.S.C. 301 note; Pub. L. 97-98,
                                                                               Agriculture and Food Act of 1981,
                                                                               sec. 1401.
19. Agricultural and Natural Resources......................................  Smith-Lever Act, as amended; 7
                                                                               U.S.C. 341-349; District of
                                                                               Columbia Public Postsecondary
                                                                               Education Reorganization Act,
                                                                               D.C. Code, Sec. 31-1518; Title V,
                                                                               Rural Development Act of 1972, as
                                                                               amended; 7 U.S.C. 2661 et seq.;
                                                                               Sec. 14, National Agricultural
                                                                               Research, Extension and Teaching
                                                                               Policy Act of 1977; Pub. L. 95-
                                                                               113, as amended; 7 U.S.C. 3101 et
                                                                               seq.
20. Community Resource Development..........................................  Smith-Lever Act, as amended; 7
                                                                               U.S.C. 341-349; District of
                                                                               Columbia Public Postsecondary
                                                                               Reorganization Act, D.C. Code 31-
                                                                               1518; Title V, Rural Development
                                                                               Act of 1972, as amended; 7 U.S.C.
                                                                               2661 et seq.; National
                                                                               Agricultural Research, Extension
                                                                               and Teaching Policy Act of 1977;
                                                                               Pub. L. 95-113, as amended; 7
                                                                               U.S.C. 3101 et seq.; Renewable
                                                                               Resources Extension Act of 1978;
                                                                               16 U.S.C. 1671-1676.
-----------------------------------------------------------------------------
                               Administered by Federal Crop Insurance Corporation
 
----------------------------------------------------------------------------------------------------------------
21. Crop Insurance..........................................................  Federal Crop Insurance Act, as
                                                                               amended; 7 U.S.C. 1501-1520;
                                                                               Title V of the Agricultural
                                                                               Adjustment Act of 1938; 52 Stat.
                                                                               31 and Federal Crop Insurance Act
                                                                               of 1980; Pub. L. 96-385 (Sept.
                                                                               26, 1980); 94 Stat. 1312-1319.
 
-----------------------------------------------------------------------------
                                   Administered by Farmers Home Administration
 
----------------------------------------------------------------------------------------------------------------
22. Farm Ownership Loans to install or improve recreational facilities or     Section 302 of the Consolidated
 other nonfarm enterprises.                                                    Farm and Rural Development Act,
                                                                               as amended; 7 U.S.C. 1923.
23. Farm Operating Loans to install or improve recreational facilities or     Sec. 312 of the Consolidated Farm
 other nonfarm enterprises.                                                    and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1942.
24. Community Facility Loans................................................  Sec. 306 of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1926.
25. Rural Rental Housing and related facilities for elderly persons and       Sec. 515, Title V, Housing Act of
 families of low income.                                                       1949, as amended; 42 U.S.C. 1485.
26. Rural Cooperative Housing...............................................  Sec. 515, Title V, Housing Act of
                                                                               1949, as amended; 42 U.S.C. 1485.
27. Rural Housing Site Loans................................................  Sec. 524, Title V, Housing Act of
                                                                               1949, as amended; 42 U.S.C.
                                                                               1490d.
28. Farm and Labor Housing Loans............................................  Sec. 514, Title V, Housing Act of
                                                                               1949, as amended; 42 U.S.C. 1484.
29. Farm Labor Housing Grants...............................................  Sec. 516, Title V, Housing Act of
                                                                               1949, as amended; 42 U.S.C. 1486.
30. Mutual self-help housing grants. (Technical assistance grants)..........  Sec. 523, Title V, Housing Act of
                                                                               1949, as amended; 42 U.S.C.
                                                                               1490c.
31. Technical and supervisory assistance grants.............................  Sec. 525, Title V, Housing Act of
                                                                               1949, as amended; 42 U.S.C.
                                                                               1490e.
32. Individual Recreation Loans.............................................  Sec. 304 of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1924.
33. Recreation Association Loans............................................  Sec. 306 of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1926.
34. Private enterprise grants...............................................  Sec. 310(B)(c) of the Consolidated
                                                                               Farm and Rural Development Act,
                                                                               as amended; 7 U.S.C. 1932(c).
35. Indian Tribal Land Acquisition Loans....................................  Pub. L. 91-229, approved April 11,
                                                                               1970; 25 U.S.C. 488.
36. Grazing Association Loans...............................................  Sec. 306 of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1926.
37. Irrigation and Drainage Associations....................................  Sec. 306 of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1926.
38. Area development assistance planning grant program......................  Sec. 306(a)(11) of the
                                                                               Consolidated Farm and Rural
                                                                               Development Act, as amended; 7
                                                                               U.S.C. 1926(a)(11).
39. Resource conservation and development loans.............................  Sec. 32(e) of Title III, the
                                                                               Bankhead-Jones Farm Tenant Act; 7
                                                                               U.S.C. 1011(e).
40. Rural Industrial Loan Program...........................................  Sec. 310B of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1932.
41. Rural renewal and resource conservation development, land conservation    Sec. 31-35, Title III, Bankhead-
 and land utilization.                                                         Jones Farm Tenant Act; 7 U.S.C.
                                                                               1010-1013a.

[[Page 393]]

 
42. Soil and water conservation, recreational facilities, uses; pollution     Sec. 304 of the Consolidated Farm
 abatement facilities loans.                                                   and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1924.
43. Watershed protection and flood prevention program.......................  Sec. 1-12 of the Watershed
                                                                               Protection and Flood Prevention
                                                                               Act, as amended; 16 U.S.C. 1001-
                                                                               1008.
44. Water and Waste Facility Loans and Grants...............................  Sec. 306 of the Consolidated Farm
                                                                               and Rural Development Act, as
                                                                               amended; 7 U.S.C. 1926.
-----------------------------------------------------------------------------
                                   Administered by Food and Nutrition Service
 
----------------------------------------------------------------------------------------------------------------
45. Food Stamp Program......................................................  The Food Stamp Act of 1977, as
                                                                               amended; 7 U.S.C. 2011-2029.
46. Nutrition Assistance Program for Puerto Rico. This is the Block Grant     The Food Stamp Act of 1977, as
 signoff of the Food Stamp Program for Puerto Rico.                            amended; Sec. 19, 7 U.S.C. 2028.
47. Food Distribution (Food Donation Program). (Direct Distribution Program)  Sec. 32, Pub. L. 74-320, 49 Stat.
                                                                               744 (7 U.S.C. 612c); Pub. L. 75-
                                                                               165. 50 Stat. 323 (15 U.S.C.
                                                                               713c); secs. 6, 9, 60 Stat. 231,
                                                                               233, Pub. L. 79-396 (42 U.S.C.
                                                                               1755, 1758); sec. 416, Pub. L. 81-
                                                                               439, 63 Stat. 1058 (7 U.S.C.
                                                                               1431); sec. 402, Pub. L. 91-665,
                                                                               68 Stat. 843 (22 U.S.C. 1922);
                                                                               sec. 210, Pub. L. 84-540, 70
                                                                               Stat. 202 (7 U.S.C. 1859); sec.
                                                                               9, Pub. L. 85-931, 72 Stat. 1792
                                                                               (7 U.S.C. 1431b); Pub. L. 86-756,
                                                                               74 Stat. 899 (7 U.S.C. 1431
                                                                               note); sec. 709, Pub. L. 89-321,
                                                                               79 Stat. 1212 (7 U.S.C. 1446a-1);
                                                                               sec. 3, Pub. L. 90-302, 82 Stat.
                                                                               117 (42 U.S.C. 1761); secs. 409,
                                                                               410, Pub. L. 93-288, 88 Stat. 157
                                                                               (42 U.S.C. 5179, 5189); sec. 2,
                                                                               Pub. L. 93-326, 88 Stat. 286 (42
                                                                               U.S.C. 1762a); sec. 16, Pub. L.
                                                                               94-105, 89 Stat. 522 (42 U.S.C.
                                                                               1766); sec. 1304(a), Pub. L. 95-
                                                                               113, 91 Stat. 980 (7 U.S.C. 612
                                                                               note); sec. 311, Pub. L. 95-478,
                                                                               92 Stat. 1533 (42 U.S.C. 3030a);
                                                                               sec. 10, Pub. L. 95-627, 92 Stat.
                                                                               3623 (42 U.S.C. 1760); Pub. L. 98-
                                                                               8, 97 Stat. 35 (7 U.S.C. 612c
                                                                               note); (5 U.S.C. 301).
48. Food Distribution Program Commodities on Indian Reservations............  The Food Stamp Act of 1977, as
                                                                               amended, Section 4(b), 7 U.S.C.
                                                                               2013(b).
49. National School Lunch Program...........................................  National School Lunch Act, as
                                                                               amended; 42 U.S.C. 1751-1760.
50. Special Milk Program for Children (School Milk Program).................  Child Nutrition Act of 1966, Sec.
                                                                               3, as amended, 42 U.S.C. 1772.
51. School Breakfast Program................................................  Child Nutrition Act of 1966, Sec.
                                                                               4, as amended; 42 U.S.C. 1773.
52. Summer Food Service Program for Children................................  National School Lunch Act, Sec.
                                                                               13, as amended; 42 U.S.C. 1761.
53. Child Care Food Program.................................................  National School Lunch Act, Sec.
                                                                               17, as amended; 42 U.S.C. 1766.
54. Nutrition Education and Training Program................................  Child Nutrition Act of 1966, Sec.
                                                                               19, 42 U.S.C. 1788.
55. Special Supplemental Food Program for Women, Infants and Children.......  Child Nutrition Act of 1966, Sec.
                                                                               17, 42 U.S.C. 1786.
56. Commodity Supplemental Food Program.....................................  Agriculture and Consumer
                                                                               Protection Act of 1973, as
                                                                               amended; 7 U.S.C. 612c note.
57. Temporary Emergency Food Assistance Program.............................  Temporary Emergency Food
                                                                               Assistance Act of 1983, as
                                                                               amended; 7 U.S.C. 612c note.
58. State Administrative Expenses for Child Nutrition.......................  Child Nutrition Act of 1966, Sec.
                                                                               7, as amended; 42 U.S.C. 1776.
59. Nutrition Assistance Program for the Commonwealth of the North Mariana    Trust Territory of the Pacific
 Islands. (This is the Block Grant spin-off of the Food Stamp Program for      Island, 48 U.S.C. 1681 note.
 CNMI).
-----------------------------------------------------------------------------
                                         Administered by Forest Service
 
----------------------------------------------------------------------------------------------------------------
60. Permits for use of National Forests and National Grasslands by other      Act of June 4, 1897, as amended,
 than individuals at a nominal or no charge.                                   16 U.S.C. 551; Sec. 501 of the
                                                                               Federal Land Policy Management
                                                                               Act of 1976, 43 U.S.C. 1761; Term
                                                                               Permit Act of March 4, 1915, as
                                                                               amended, 16 U.S.C. 4971, Secs. 3
                                                                               and 4 of the American Antiquities
                                                                               Act of June 8, 1906, 16 U.S.C.
                                                                               432; Sec. 32 of the Bankhead-
                                                                               Jones Farm Tenant Act, as
                                                                               amended, 7 U.S.C. 1011.
61. Youth Conservation Corps................................................  Act of August 13, 1970, as
                                                                               amended, 16 U.S.C. 1701-1706.
                                                                               Note: This is a Federally
                                                                               financed and conducted program on
                                                                               National Forest land providing
                                                                               summer employment to teen-age
                                                                               youth doing conservation work
                                                                               while learning about their
                                                                               natural environment and heritage.
                                                                               Recruitment of recipient youth is
                                                                               without regard to economic,
                                                                               social or racial classification.
                                                                               Policy requires that random
                                                                               selection from the qualified
                                                                               applicant pool be made in a
                                                                               public forum.

[[Page 394]]

 
62. Job Corps...............................................................  29 U.S.C. 1691-1701. Note: This is
                                                                               a Federally financed and
                                                                               conducted program providing
                                                                               education and skills training to
                                                                               young men and women. The U.S.
                                                                               Department of Labor is entirely
                                                                               responsible for recruiting of
                                                                               recipient youth.
63. Permits for disposal of common varieties of mineral material from lands   Secs. 1-4 of the Act of July 31,
 under the Forest Service jurisdiction for use by other individuals at a       1947, as amended, 30 U.S.C. 601-
 nominal or no charge.                                                         603, 611.
64. Use of Federal land for airports........................................  Airport and Airway Improvement Act
                                                                               of 1982, as amended, 49 U.S.C.
                                                                               2202, 2215. National Forest lands
                                                                               are exempt, Sec. 2215(c).
65. Conveyance of land to States or political subdivisions for widening       Act of October 13, 1964, 78 Stat.
 highways, streets and alleys.                                                 1089. Forest Road and Trail Act,
                                                                               codified at 16 U.S.C. 532-538.
66. Payment of 25 percent of National Forest receipts to States for schools   Act of May 23, 1908, as amended,
 and roads.                                                                    16 U.S.C. 500.
67. Payment to Minnesota from National Forest receipts of a sum based on a    Sec. 5 of the Act of June 22,
 formula.                                                                      1948, as amended, 16 U.S.C. 577 g-
                                                                               l.
68. Payment of 25 percent of net revenues from Title III, Bankhead-Jones      Sec. 33 of the Bankhead-Jones Farm
 Farm Tenant Act lands to Counties for school and road purposes.               Tenant Act, as amended, 7 U.S.C.
                                                                               1012.
69. Cooperative action to protect, develop, manage and utilize forest         Cooperative Forestry Assistance
 resources on State and private lands.                                         Act of 1976, 16 U.S.C. 2101-2111.
70. Advance of funds for cooperative research...............................  Sec. 20 of the Granger-Thye Act of
                                                                               April 24, 1950, 16 U.S.C. 581-1.
71. Grants for support of scientific research...............................  Forest and Rangeland Renewable
                                                                               Resources Planning Act of 1974,
                                                                               as amended, 16 U.S.C. 1600 et
                                                                               seq.
72. Research Cooperation....................................................  Forest and Rangeland Renewable
                                                                               Resources Research Planning Act
                                                                               of 1974, as amended, 16 U.S.C.
73. Grants to Maine, Vermont and New Hampshire for the purpose of assisting   Older American Act of 1965, as
 economically disadvantaged citizens over 55 years of age.                     amended, 42 U.S.C. 3056.
74. Senior Community Service Employment, develop, manage and utilize forest   Older American Act of 1965, as
 resources on State and private lands.                                         amended, 42 U.S.C. 3056.
75. Cooperative Law Enforcement.............................................  16 U.S.C. 551a and 553.
76. Forest Utilization and Marketing........................................  Cooperative Forestry Assistance
                                                                               Act of 1978, Pub. L. 95-313, 16
                                                                               U.S.C. 1606, 2101-2111.
77. Fire prevention and suppression.........................................  Cooperative Forestry Assistance
                                                                               Act of 1978, Pub. L. 95-313, Sec.
                                                                               7, 16 U.S.C. 2106.
78. Assistance to States for tree planting..................................  Cooperative Forestry Assistance
                                                                               Act of 1978, Pub. L. 95-313,
                                                                               Secs. 3, 6, 16 U.S.C. 2102, 2105.
79. Technical assistance forest management..................................  Cooperative Forestry Assistance
                                                                               Act of 1978, Pub. L. 95-313, Sec.
                                                                               8, 16 U.S.C. 2107.
80. Extramural Research (Cooperative Agreements and Grants).................  Range Renewable Resources Act of
                                                                               1978; Rangeland and Latest
                                                                               Renewable Resources Research Act;
                                                                               16 U.S.C. 1641-1647.
-----------------------------------------------------------------------------
                               Administered by Food Safety and Inspection Service
 
----------------------------------------------------------------------------------------------------------------
81. Federal-State Cooperative Agreements and Talmadge-Aiken Agreements......  Federal Meat Inspection Act; 21
                                                                               U.S.C. 601 et seq. Talmadge-Aiken
                                                                               Act; 7 U.S.C. 450. Poultry
                                                                               Products Inspection Act; 21
                                                                               U.S.C. 451 et seq.
 
-----------------------------------------------------------------------------
                       Administered by Office of International Cooperation and Development
 
----------------------------------------------------------------------------------------------------------------
82. Technical Assistance....................................................  7 U.S.C. 3291; 22 U.S.C. 2357; 22
                                                                               U.S.C. 2392.
83. International Training..................................................  7 U.S.C. 3291; 22 U.S.C. 2357; 22
                                                                               U.S.C. 2392.
84. Scientific and Technical Exchanges......................................  7 U.S.C. 3291.
85. International Research..................................................  7 U.S.C. 3291.
-----------------------------------------------------------------------------
                                    Administered by Soil Conservation Service
 
----------------------------------------------------------------------------------------------------------------
86. Conservation Technical Assistance to Landusers..........................  Sec. 1-6 and 17 of the Soil
                                                                               Conservation and Domestic
                                                                               Allotment Act, 16 U.S.C. 590a-
                                                                               590f, 590g.
87. Plant Materials Conservation............................................  Soil Conservation Act of 1935,
                                                                               Pub. L. 74-46; 49 Stat. 163, 16
                                                                               U.S.C. 590(a-f).
88. Technical and financial assistance in Watershed Protection and flood      Watershed Protection and Flood
 prevention.                                                                   Protection Act, as amended, 16
                                                                               U.S.C. 1001-1005, 1007-1008;
                                                                               Flood Control Act, as amended and
                                                                               supplemented; 33 U.S.C. 701; 16
                                                                               U.S.C. 1606(a) and Sec. 403-405
                                                                               of the Agriculture Credit Act of
                                                                               1978; 16 U.S.C. 2203-2205. Flood
                                                                               Prevention: Pub. L. 78-534; 58
                                                                               Stat. 905; 33 U.S.C. 701(b)(1);
                                                                               Pub. L. 81-516.
89. Technical and financial assistance in Watershed Protection and flood      Emergency Operation (216); 68
 prevention.                                                                   Stat. 184; 33 U.S.C. 701(b)(1).
                                                                               Watershed Operation: Pub. L. 83-
                                                                               566; 68 Stat. 666:16 U.S.C. 1001
                                                                               et seq.

[[Page 395]]

 
90. Soil Survey.............................................................  Sec. 1-6 and 17 of the Soil
                                                                               Conservation and Domestic
                                                                               Allotment Act, as amended, 16
                                                                               U.S.C. 590a-590f, 590g.
91. Rural Abandoned Mine Program............................................  Surface Mining Control and
                                                                               Reclamation Act of 1977, Sec.
                                                                               406; Pub. L. 95-87, 30 U.S.C.
                                                                               1236, 91 Stat. 460.
92. Resource Conservation and Development...................................  Soil Conservation Act of 1935;
                                                                               Pub. L. 74-46; Bankhead-Jones
                                                                               Farm Tenant Act; Pub. L. 75-210,
                                                                               as amended, Pub. L. 89-796; Pub.
                                                                               L. 87-703; Pub. L. 91-343; Pub.
                                                                               L. 92-419; Pub. L. 97-98; 95
                                                                               Stat. 1213; 16 U.S.C. 590a-590f,
                                                                               590g.
93. Great Plains Conservation...............................................  Soil Conservation and Domestic
                                                                               Allotment Act, Pub. L. 74-46, as
                                                                               amended by the Great Plains Act
                                                                               of August 7, 1956; Pub. L. 84-
                                                                               1021, Pub. L. 86-793 approved
                                                                               September 14, 1980. Pub. L. 91-
                                                                               118 approved November 1, 1969;
                                                                               Pub. L. 96-263 approved June 6,
                                                                               1980; 16 U.S.C. 590a-590f, 590g.
----------------------------------------------------------------------------------------------------------------


[53 FR 48506, Dec. 1, 1988, as amended at 68 FR 51341, Aug. 26, 2003]

Subpart B [Reserved]



 Subpart C_Rules of Practice and Procedure for Hearings, Decisions and 
        Administrative Review Under the Civil Rights Act of 1964

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; sec. 15.9(d) 
of subpart A to 7 CFR, part 15, and laws referred to in the appendix to 
subpart A, part 15, title 7 CFR.

    Source: 30 FR 14355, Nov. 17, 1965, unless otherwise noted.

                           General Information



Sec. 15.60  Scope of rules.

    The rules of practice and procedure in this subpart supplement 
Sec. Sec. 15.9 and 15.10 of subpart A of this part and govern the 
practice for hearings, decisions, and administrative review conducted by 
the Department of Agriculture, pursuant to title VI of the Civil Rights 
Act of 1964, section 602 (78 Stat. 252) and this part, title 7, CFR, 
except these rules shall not apply to any stage of a proceeding which 
has occurred prior to the effective date hereof.



Sec. 15.61  Records to be public.

    All documents and papers filed in any proceeding under this part may 
be inspected and copied in the Office of the Department Hearing Clerk.



Sec. 15.62  Definitions.

    All terms used in this subpart shall, unless the context otherwise 
requires, have the same meaning as defined in subpart A of this part.



Sec. 15.63  Computation of time.

    A period of time begins with the day following the act or event and 
includes the last day of the period, unless it is a Saturday, Sunday, or 
legal holiday observed in the District of Columbia, in which case it 
shall be the following workday. When the period of time prescribed or 
allowed is less than 7 days, intermediate Saturdays, Sundays, and legal 
holidays shall be excluded from the computation.



Sec. 15.64  Parties.

    The term party shall include an applicant or recipient with respect 
to whom the agency has issued a notice of hearing or opportunity to 
request a hearing in accordance with subpart A of this part and Sec. 
15.81. The agency shall be deemed a party to all proceedings.



Sec. 15.65  Appearance.

    Any party may appear in person or by counsel or authorized 
representative and participate fully in any proceeding.



Sec. 15.66  Complainants not parties.

    A person submitting a complaint pursuant to Sec. 15.6 is not a 
party to the proceedings governed by this subpart, but may petition, 
after proceedings have been commenced, to become an intervener.



Sec. 15.67  Intervener.

    Any interested person or organization may file a petition to 
intervene which will include a statement of position and a statement of 
what petitioner expects to contribute to the hearing, and a copy of the 
petition will

[[Page 396]]

be served on all parties. Such petition should be filed prior to the 
prehearing conference, or if none is held, before the commencement of 
the hearing, unless the petitioner shows good cause for filing the 
petition later. The hearing officer may grant the petition if he 
believes that such participation will not unduly delay a hearing and 
will contribute materially to the proceeding. An intervener is not a 
party and may not introduce evidence at a hearing, or propound questions 
to a witness, unless the hearing officer determines that the proposed 
additional evidence is relevant and will clarify the facts. The 
intervener may submit and serve on all parties a brief in support or 
opposition to any brief of a party. All service and notice required by 
and upon a party shall apply to an intervener.



Sec. 15.68  Ex parte communications.

    (a) General. After proceedings have been commenced, any 
communication or discussion ex parte, as regards the merits of the 
proceeding or a factually related proceeding, between an employee of the 
Department involved in the decisional process and a person not employed 
by the Department, and any such communication or discussion between any 
employee of the Department, who is or has been engaged in any way in the 
investigation or prosecution of the proceeding or a factually related 
proceeding, and an employee of the Department who is involved or may be 
involved in the decisional process of a proceeding, except at a 
conference, hearing or review proceeding under these rules is improper 
and prohibited.
    (b) Request for information. A request for information about the 
status of a proceeding without discussing issues or expressing points of 
view and inquiries with respect to procedural matters or an emergency 
request for an extension of time are not deemed ex parte communications. 
When practical all parties should be notified of any request for an 
extension of time. Communication between an applicant or recipient and 
the agency or the Secretary with respect to securing voluntary 
compliance with any requirement of subpart A of this part is not 
prohibited.
    (c) Unsponsored written material. Letters expressing views or urging 
action and other unsponsored written material regarding matters in issue 
in a proceeding will be placed in the correspondence section of the 
docket of the proceeding. Such are not deemed part of the evidence or 
record.

            Form, Execution, Filing and Service of Documents



Sec. 15.71  Form of documents to be filed.

    All copies of documents filed in a proceeding shall be dated, signed 
in ink, shall show the address and position or title of the signatory, 
and shall show the docket number and title of the proceeding on the 
front page.



Sec. 15.72  Filing.

    All documents relating to a proceeding under this subpart shall be 
filed in an original and two copies of such document with the Office of 
the Hearing Clerk at Room 112, Administration Building, Department of 
Agriculture, Washington, D.C., 20250, during regular business hours. 
Regular business hours are every Monday through Friday (legal holidays 
in the District of Columbia excepted) from 9 a.m. to 5:30 p.m., eastern 
standard or daylight saving time, whichever is effective in the District 
of Columbia at the time.



Sec. 15.73  Service.

    Service shall be made by the Hearing Clerk by personal delivery of 
one copy to each person to be served or by mailing by first-class mail, 
or air mail if more than 300 miles, properly addressed with postage 
prepaid. When a party or intervener has appeared by attorney or 
representative, service upon such attorney or representative will be 
deemed proper service. The initial notice of hearing, opportunity to 
request a hearing, or notice setting a date for a hearing shall be by 
certified mail, return receipt requested.



Sec. 15.74  Date of service.

    The date of service shall be the day when the matter is deposited in 
the U.S. mail or is delivered in person, except that the date of service 
of the initial notice a hearing or notice of opportunity to request a 
hearing or notice setting a date for a hearing shall be the

[[Page 397]]

date of its delivery, or of its attempted delivery if delivery is 
refused.

                       Initial Notice and Response



Sec. 15.81  How proceedings are commenced.

    Proceedings are commenced by mailing a notice to an applicant or 
recipient of alleged noncompliance with the Act and the Secretary's 
regulations thereunder. The notice will be signed by the interested 
agency head or by the Secretary and shall be filed with the hearing 
clerk for proper service by the hearing clerk according to the rules of 
this subpart. The notice shall include either a notice of hearing or 
notice of opportunity to request a hearing as determined by the 
Secretary and shall comply with the requirements of Sec. 15.9(a).



Sec. 15.82  Notice of hearing and response thereto.

    A notice of hearing shall fix a date not less than 30 days from the 
date of service of the notice of a hearing on matters alleged in the 
notice. If the applicant or recipient does not desire a hearing, he 
should so state in writing, in which case the applicant or recipient 
shall have the right to submit written information and argument for the 
record, and the additional right to further participate in the 
proceeding. Failure to appear at the time set for a hearing, without 
good cause, shall be deemed a waiver of the right to a hearing under 
section 602 of the Act and the regulations in this part and consent to 
the making of a decision on such information as is available which may 
be presented for the record.



Sec. 15.83  Notice of opportunity to request a hearing and response 
thereto.

    A notice of opportunity to request a hearing shall set a date not 
less than 20 days from service of said notice within which the applicant 
or recipient may file a request for a hearing, or may wiave a hearing 
and submit written information and argument for the record, in which 
case, the applicant or recipient shall have the right to further 
participate in the proceeding. When the applicant or recipient elects to 
file a request for a hearing, a time shall be set for the hearing at a 
date not less than 20 days from the date applicant or recipient is 
notified of the date set for the hearing. Failure of the applicant or 
recipient to request a hearing or to appear at the date set shall be 
deemed a waiver of the right to a hearing, under section 602 of the Act 
and the regulations in this part and consent to the making of a decision 
on such information as is available which may be presented for the 
record.



Sec. 15.84  Answer.

    In any case covered by Sec. 15.82 or Sec. 15.83 the applicant or 
recipient shall file an answer. Said answer shall admit or deny each 
allegation of the notice, unless the applicant or recipient is without 
knowledge, in which case the answer shall so state, and the statement 
will be considered a denial. Failure to file an answer shall be deemed 
an admission of all allegations of fact in the notice. Allegations of 
fact in the notice not denied or controverted by answer shall be deemed 
admitted. Matters intended to be offered as affirmative defenses must be 
stated as a separate part of the answer. The answer under Sec. 15.82 
shall be filed within 20 days from the date of service of the notice of 
hearing. The answer under Sec. 15.83 shall be filed within 20 days of 
service of the notice of opportunity to request a hearing.



Sec. 15.85  Amendment of notice or answer.

    The notice of hearing or notice of opportunity to request a hearing 
may be amended once as a matter of course before an answer thereto is 
served, and each applicant or recipient may amend his answer once as a 
matter of course not later than 10 days before the date fixed for 
hearing but in no event later than 20 days from the date of service of 
his original answer. Otherwise a notice or answer may be amended only by 
leave of the hearing officer. An applicant or recipient shall file his 
answer to an amended notice within the time remaining for filing the 
answer to the original notice or within 10 days after service of the 
amended notice, whichever period may be the longer, unless the hearing 
officer otherwise orders.

[[Page 398]]



Sec. 15.86  Consolidated or joint hearings.

    Two or more proceedings against the same respondent, or against 
different respondents in which the same or related facts are asserted to 
constitute noncompliance, may be consolidated for hearing or decision or 
both by the agency head, if he has the principal responsibility within 
the Department for the administration of all the laws extending the 
Federal financial assistance involved. If laws administered by more than 
one agency head are involved, such officials may by agreement order 
consolidation for hearing. The Secretary may order proceedings in the 
Department consolidated for hearing with proceedings in other Federal 
Departments or agencies, by agreement with such other Departments or 
agencies. All parties to any proceeding consolidated subsequently to 
service of the notice of hearing or notice of opportunity to request a 
hearing shall be promptly served with notice of such consolidation.

                             Hearing Officer



Sec. 15.91  Who presides.

    A hearing officer shall preside over all proceedings held under this 
part. The hearing officer shall be a hearing examiner qualified under 
section 11 of the Administrative Procedure Act (5 U.S.C. 1001 et seq.), 
and designated to hold hearings under the regulations in this subpart or 
any person authorized to hold a hearing and make a final decision. The 
hearing officer will serve until he has made an initial decision, 
certified the record to the Secretary, or made a final decision if so 
authorized.



Sec. 15.92  Designation of hearing officer.

    Unless otherwise provided by an order of the Secretary at the time 
the notice of alleged noncompliance provided in Sec. 15.81 is filed 
with the Office of the Hearing Clerk, the hearing shall be held before a 
hearing examiner, who shall be appointed by the Chief Hearing Examiner, 
Office of Hearing Examiners within five days after the filing of such 
notice. Unless otherwise provided, the hearing examiner shall certify 
the entire record with his recommended findings and proposed decision to 
the Secretary for final decision.



Sec. 15.93  Time and place of hearing.

    When a notice of hearing is sent to an applicant or recipient, the 
time and place of hearing shall be fixed by the Secretary, and when the 
applicant or recipient requests a hearing, the time and place shall be 
set by the hearing officer and in either case in conformity with Sec. 
15.9(b). The complainant, if any, shall be advised of the time and place 
of the hearing.



Sec. 15.94  Disability of hearing officer.

    In the case of death, illness, disqualification, or unavailability 
of the designated hearing officer, another hearing officer may be 
designated by the Secretary to take his place. If such death, illness, 
disqualification or unavailability occurs during the course of a 
hearing, the hearing will be either continued under a substitute hearing 
officer, or terminated and tried de novo in the discretion of the 
Secretary. In the absence of the designated hearing officer any hearing 
examiner may rule on motions and other interlocutory papers.



Sec. 15.95  Responsibilities and duties of hearing officer.

    The hearing officer shall have the duty to conduct a fair hearing, 
to take all necessary action to avoid delay, and to maintain order. He 
shall have all powers necessary to these ends, including (but not 
limited to) the power to:
    (a) Arrange and issue notice of the date, time and place of 
hearings, or, upon due notice to the parties, to change the date, time 
and place of hearings previously set.
    (b) Hold conferences to settle, simplify, or fix the issues in a 
proceeding, or to consider other matters that may aid in the expeditious 
disposition of the proceeding.
    (c) Require parties and interveners to state their position with 
respect to the various issues in the proceeding.
    (d) Administer oaths and affirmations.
    (e) Rule on motions, and other procedural items on matters pending 
before him.

[[Page 399]]

    (f) Regulate the course of the hearing and conduct of parties 
therein.
    (g) Examine witnesses and direct witnesses to testify.
    (h) Receive, rule on, exclude or limit evidence.
    (i) Fix the time for filing motions, petitions, briefs, or other 
items in matters pending before him.
    (j) In accordance with his authority issue an initial decision, or 
recommended findings and proposed decision, or final decision.
    (k) Take any other action a hearing officer is authorized to take 
under these rules or subpart A of this part.

                                 Motions



Sec. 15.101  Form and content.

    (a) General. Motions shall state the relief sought and the authority 
relied upon. If made before or after the hearing, the motion shall be in 
writing and filed with the hearing clerk with a copy to all parties. If 
made at the hearing, they should be stated orally but the hearing 
officer may require that any motion be reduced to writing and filed and 
served on all parties in the same manner as a formal motion.
    (b) Extension of time or postponement. A request for an extention of 
time should be filed and served on all parties and should set forth the 
reasons for the request and may be granted upon a showing of good cause. 
Answers to such requests are permitted, if made promptly.



Sec. 15.102  Responses to motions.

    Within 8 days or such reasonable time as may be fixed by the hearing 
officer, or Secretary, if the motion is properly addressed to him, any 
party may file a response to the motion, unless the motion is made at a 
hearing in which case an immediate response may be required. The hearing 
officer may dispose of motions at a prehearing conference.



Sec. 15.103  Disposition of motions.

    The hearing officer may not sustain or grant a motion prior to 
expiration of the time for filing responses thereto, but may overrule or 
deny such motion without waiting on a response: Provided, however, That 
prehearing conferences, hearings, and decisions need not be delayed 
pending disposition of motions. Oral motions may be ruled on 
immediately. Motions submitted to the hearing officer not disposed of in 
separate rulings or in his decision will be deemed denied. Oral argument 
shall not be held on written motions unless expressly ordered. 
Interlocutory appeals from rulings on motions shall be governed by Sec. 
15.123.

                           Hearing Procedures



Sec. 15.110  Prehearing conferences.

    (a) In any case in which it appears that such procedure will 
expedite the proceeding, the hearing officer may, prior to the 
commencement of the hearing, request the parties to meet with him or to 
correspond with him regarding any of the following:
    (1) Simplification and clarification of the issues;
    (2) Necessity or desirability of amendments to the pleadings;
    (3) Stipulations, admissions of fact and of the contents and 
authenticity of documents;
    (4) Matters of which official notice will be taken;
    (5) Limitation of the number of experts or other witnesses;
    (6) Disposal of all motions; and
    (7) Such other matters as may expedite and aid in the disposition of 
the proceeding.
    (b) The hearing officer shall enter in the record a written summary 
of the results of the conference or correspondence with the parties.



Sec. 15.111  Purpose of hearing.

    (a) The hearing is directed to receiving factual evidence and expert 
opinion testimony related to the issues in the proceeding. Argument will 
not be received in evidence; rather it should be presented in 
statements, memoranda or briefs, as determined by the hearing officer. 
Brief opening statements, which shall be limited to a statement of the 
party's position and what he intends to prove, may also be made at 
hearings.
    (b) Hearings for the reception of evidence will be held only in 
cases where issues of fact must be resolved in order to determine 
whether the respondent

[[Page 400]]

has failed to comply with one or more applicable requirements of subpart 
A of this part. In any case where it appears from the answer of the 
applicant or recipient to the notice of hearing or notice of opportunity 
to request a hearing, from his failure timely to answer, or from his 
admissions or stipulations in the record that there are no matters of 
material fact in dispute, the hearing officer may enter an order so 
finding, and fixing the time for the submission of evidence by the 
Government for the record. Thereafter, the proceedings shall go to 
conclusion in accordance with subpart A of this part and the rules of 
this subpart. An appeal from such order may be allowed in accordance 
with the rules for interlocutory appeal in Sec. 15.123.



Sec. 15.112  Statement of position and brief.

    The hearing officer may require all parties and any intervener to 
file a written statement of position or brief prior to the beginning of 
a hearing.



Sec. 15.113  Testimony.

    (a) Testimony shall be given orally under oath or affirmation by 
witnesses at the hearing, but the hearing officer, in his discretion, 
may require or permit that the testimony of any witness be prepared in 
writing and served on all parties in advance of the hearing. Such 
testimony may be adopted by the witness at the hearing and filed as part 
of the record thereof. Unless authorized by the hearing officer, 
witnesses will not be permitted to read prepared testimony into the 
record. Except as provided in Sec. Sec. 15.115 and 15.116, witnesses 
shall be available at the hearing for cross-examination.
    (b) Proposed exhibits shall be exchanged either at a prehearing 
conference, or otherwise prior to the hearing. Proposed exhibits not so 
exchanged may be denied admission as evidence unless good cause is shown 
why they were not exchanged. The authenticity of all proposed exhibits 
exchanged prior to hearing will be deemed admitted unless written 
objection thereto is filed prior to the hearing or unless good cause is 
shown at the hearing for failure to file such written objection.



Sec. 15.115  Affidavits.

    An affidavit, intended to be used as evidence without cross-
examination of the affiant, will be filed and served on the parties at 
least 15 days prior to the hearing; and not less than seven days prior 
to hearing a party may file and serve written objections to any 
affidavit on the ground that he believes it necessary to test the truth 
of assertions therein by cross-examination. In such event, the affidavit 
objected to will not be received in evidence unless the affiant is made 
available for cross-examination at the hearing or otherwise as 
prescribed by the hearing officer. In absence of an objection being 
filed within the time specified, such affidavit will be received in 
evidence.



Sec. 15.116  Depositions.

    Upon such terms as may be just, the hearing officer, in his 
discretion, may authorize the testimony of any witness to be taken by 
deposition.



Sec. 15.117  Evidence.

    Irrelevant, immaterial, unreliable, and unduly repetitious evidence 
will be excluded, and technical rules of evidence shall not apply but 
rules or principles designed to assure the most credible evidence 
available and to subject testimony to test by cross-examination shall 
apply.



Sec. 15.118  Cross-examination.

    Cross-examination will be limited to the scope of direct examination 
and matters at issue in the hearing.



Sec. 15.119  Objections.

    Objections to evidence shall be timely and briefly state the ground 
relied upon. The ruling of the hearing officer will be part of the 
record. Argument in support of the objection will not be part of the 
record.



Sec. 15.120  Exceptions to rulings of hearing officer unnecessary.

    Exceptions to rulings of the hearing officer are unnecessary. It is 
sufficient that a party, at the time the ruling of the hearing officer 
is sought, makes known the action which he desires the hearing officer 
to take, or his objection

[[Page 401]]

to an action taken, and his grounds therefor.



Sec. 15.121  Official notice.

    A public document, or part thereof, such as an official report 
decision, opinion, or published scientific or economic statistical data 
issued by any branch of the Federal or a State Government which has been 
shown to be reasonably available to the public, may be offered for 
official notice and accepted in the record without further proof of 
authenticity. Where official notice is to be taken, any party, on timely 
request, shall have an opportunity to show the contrary.



Sec. 15.122  Offer of proof.

    An offer of proof made in connection with an objection taken to any 
ruling of the hearing officer rejecting or excluding proposed oral 
testimony shall consist of a statement for the record of the substance 
of the evidence which counsel contends would be adduced by such 
testimony; and, if the excluded evidence consists of evidence in 
documentary or written form or of reference to documents or records, a 
copy of such evidence shall be marked for identification and shall 
accompany the record as an offer of proof.



Sec. 15.123  Appeals from ruling of hearing officer.

    A ruling of the hearing officer may not be appealed to the Secretary 
prior to consideration of the entire proceeding by the hearing officer 
except with the consent of the hearing officer and where he certifies on 
the record or in writing that the allowance of an interlocutory appeal 
is clearly necessary to prevent exceptional delay, expense, or prejudice 
to any part or substantial detriment to the public interest. If an 
appeal is allowed, any party may file a brief with the Secretary within 
such period as the hearing officer directs. Oral argument will be heard 
in the discretion of the Secretary.



Sec. 15.124  Admissions as to facts and documents.

    Not later than 15 days prior to the scheduled date of the hearing 
except for good cause shown, or prior to such earlier date as the 
hearing officer may order, any party may serve upon an opposing party a 
written request for the admission of the genuineness and authenticity of 
any relevant documents described in and exhibited with the request, or 
for the admission of the truth of any relevant matters of fact stated in 
the request. Each of the matters of which an admission is requested 
shall be deemed admitted, unless within a period designated in the 
request (not less than 10 days after service thereof, or within such 
further time as the hearing officer may allow upon motion and notice) 
the party to whom the request is directed serves upon the requesting 
party a sworn statement either denying specifically the matters of which 
an admission is requested or setting forth in detail the reasons why he 
cannot truthfully either admit or deny such matters. Copies of requests 
for admission and answers thereto shall be served on all parties. Any 
admission made by a party to such request is only for the purposes of 
the pending proceeding, or any proceeding or action instituted for the 
enforcement of any order entered therein, and shall not constitute an 
admission by him for any other purpose or be used against him in any 
other proceeding or action.

[31 FR 8586, June 21, 1966]

                               The Record



Sec. 15.131  Official transcript.

    The hearing clerk will designate the official reporter for all 
hearings. The official transcript of testimony taken, together with any 
affidavits, exhibits, depositions, briefs, or memoranda of law shall be 
filed with the hearing clerk. Transcripts of testimony in hearings will 
be supplied by the official reporter to the parties and to the public at 
rates not to exceed the maximum rates fixed by the contract between the 
Department and the reporter. Upon notice to all parties, the hearing 
officer may authorize corrections to the transcript which involve 
matters of substance.



Sec. 15.132  Record for decision.

    The transcript of testimony, exhibits, affidavits, depositions, 
briefs, memoranda of law, and all pleadings,

[[Page 402]]

motions, papers, and requests filed in the proceeding, except the 
correspondence section of the docket, including rulings, and any 
recommended findings and proposed decision, or initial decision shall 
constitute the exclusive record for final decision.

                         Posthearing Procedures



Sec. 15.135  Posthearing briefs.

    The hearing officer shall fix a reasonable time for filing 
posthearing briefs, which may contain proposed findings of fact and 
conclusions of law, and, if permitted, reply briefs. Briefs should 
include a summary of the evidence relied upon together with references 
to exhibit numbers and pages of the transcript, with citations of the 
authorities relied upon. Briefs shall be filed in the Office of the 
Hearing Clerk with a copy to all parties.



Sec. 15.136  Decisions and notices.

    When the time for submission of posthearing briefs has expired the 
hearing officer shall either make an initial decision or final decision, 
if so authorized, or certify the entire record including his recommended 
findings and proposed decision to the Secretary for a final decision and 
a copy of such initial, or final decision or certification shall be 
mailed to the applicant or recipient and other parties by the hearing 
clerk.



Sec. 15.137  Exceptions to initial or proposed decision.

    Within 30 days of the mailing of such notice of initial or 
recommended findings and proposed decision, the applicant or recipient 
and other parties may file with the hearing clerk for consideration by 
the Secretary exceptions to the initial or recommended findings and 
proposed decision, with reasons therefor. Each party will be given 
reasonable opportunity to file briefs or other written statements of 
contentions in which the party may request that the decision be 
modified, reversed, affirmed or adopted.



Sec. 15.138  Review of initial decision.

    In the absence of exceptions to an initial decision, the Secretary 
may on his own motion within 45 days after an initial decision serve 
upon the parties a notice that he will review the decision and will give 
the parties reasonable opportunity to file briefs or other written 
statements of contentions. At the expiration of said time for filing 
briefs, the Secretary will review the initial decision and issue a final 
decision thereon. In the absence of either exceptions to an initial 
decision or a notice or review, the initial decision shall constitute 
the final decision of the Secretary.



Sec. 15.139  Oral argument.

    If any party desires to argue orally before the Secretary on the 
review of recommended findings and proposed decision, or an initial 
decision, he shall so state at the time he files his exceptions or 
brief. The Secretary may grant such request in his discretion. If 
granted, he will serve notice of oral argument on all parties and will 
set forth the order of presentation and the amount of time allotted, and 
the time and place of argument.



Sec. 15.140  Service of decisions.

    All final decisions shall be promptly served on all parties and the 
complainant.



Sec. 15.141  Contents of decision.

    Each decision of a hearing officer shall set forth his ruling on 
each finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to the regulations in 
this part with which it is found that the applicant or recipient has 
failed to comply.



Sec. 15.142  Content of orders.

    The final decision may provide for suspension or termination of, or 
refusal to grant or continue Federal financial assistance, in whole or 
in part, under the program involved, and may contain such terms, 
conditions, and other provisions as are consistent with and will 
effectuate the purposes of the Act and the regulations in this part, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance

[[Page 403]]

given by it pursuant to the regulations in this part, or to have 
otherwise failed to comply with the regulations in this part, unless and 
until it corrects its noncompliance and satisfies the Agency that it 
will fully comply with the regulations in this part.



Sec. 15.143  Decision where financial assistance affected.

    The Secretary shall make any final decision which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under the regulations in this part or the Act.



PART 15a_EDUCATION PROGRAMS OR ACTIVITIES RECEIVING OR BENEFITTING FROM 
FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
15a.1 Purpose and effective date.
15a.2 Definitions.
15a.3 Remedial and affirmative action and self-evaluation.
15a.4 Assurance required.
15a.5 Effect of other requirements.
15a.6 Effect of employment opportunities.
15a.7 Designation of responsible employee and adoption of grievance 
          procedures.
15a.8 Dissemination of policy.

                           Subpart B_Coverage

15a.11 Application.
15a.12 Educational institutions controlled by religious organizations.
15a.13 Military and merchant marine educational institution.
15a.14 Membership practices of certain organizations.
15a.15 Exempt activities.
15a.16 Admission.
15a.17 Education institutions eligible to submit transition plans.
15a.18 Transition plans.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

15a.21 Admission.
15a.22 Preference in admission.
15a.23 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs and 
                          Activities Prohibited

15a.31 Education programs and activities.
15a.32 Housing.
15a.33 Comparable facilities.
15a.34 Access to course offerings.
15a.35 Access to schools operated by L.E.A.s.
15a.36 Counseling and use of appraisal and counseling materials.
15a.37 Financial assistance.
15a.38 Employment assistance to students.
15a.39 Health and insurance benefits and services.
15a.40 Marital or parental status.
15a.41 Athletics.
15a.42 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                   Programs and Activities Prohibited

15a.51 Employment.
15a.52 Employment criteria.
15a.53 Recruitment.
15a.54 Compensation.
15a.55 Job classification and structure.
15a.56 Fringe benefits.
15a.57 Marital or parental status.
15a.58 Effect of State or local law or other requirements.
15a.59 Advertising.
15a.60 Pre-employment inquiries.
15a.61 Sex as a bona-fide occupational qualification.

                     Subpart F_Procedures (Interim)

15a.71 Interim procedures.

Appendix to Subpart F

    Authority: Title IX of the Education Amendments of 1972, Pub. L. 92-
318, as amended by sec. 3 of Pub. L. 93-568, 88 Stat. 1855 and sec. 412 
of Pub. L. 94-482, 90 Stat. 2234 (except secs. 904 and 906 thereof); 20 
U.S.C. 1681, 1682, 1683, 1685, 1686.

    Source: 44 FR 21610, April 11, 1979, unless otherwise noted.



                         Subpart A_Introduction



Sec. 15a.1  Purpose and effective date.

    The purpose of this part is to effectuate title IX of the Education 
Amendments of 1972, as amended by Public Law 93-568, 88 Stat. 1855 and 
Public Law 94-482, 90 Stat. 2234 (except sections 904 and 906 of those 
Amendments) which is designed to eliminate (with certain exceptions) 
discrimination on

[[Page 404]]

the basis of sex in any education program or activity receiving Federal 
financial assistance, whether or not such program or activity is offered 
or sponsored by an educational institution as defined in this part.



Sec. 15a.2  Definitions.

    As used in this part, the term:
    (a) Title IX means title IX of the Education Amendments of 1972, 
Public Law 92-318, as amended by section 3 of Public Law 93-568, 88 
Stat. 1855 and section 412 of Public Law 94-482, 90 Stat. 2234 (except 
sections 904 and 906 thereof); 20 U.S.C. 1681, 1682, 1683, 1685, 1686.
    (b) Department means the Department of Agriculture, and includes 
each of its operating agencies and other organizational units.
    (c) Secretary means the Secretary of Agriculture or any officer or 
employees of the Department to whom the Secretary has heretofore 
delegated, or to whom the Secretary may hereafter delegate, the 
authority to act for the Secretary under the regulations in this part.
    (d) Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Department:
    (1) A grant or loan of Federal financial assistance, including
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property of any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient, or in recognition of public interest to served 
thereby, or permission to use Federal property or any interest therein 
without consideration.
    (5) Any other contract, agreement, or arrangement which has as one 
of its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    (e) Recipient means the State or political subdivision thereof, of 
any instrumentality of a State or political subdivision thereof, any 
public or private agency, institution, or organization, or other entity, 
or any person, to whom Federal financial assistance is extended directly 
or through another recipient and which operates an education program or 
activity which receives or benefits from such assistance, including any 
subunit, successor, assignee, or transferee thereof.
    (f) Applicant means one who submits an application, request, or plan 
required to be approved by a Department official, or by a recipient, as 
a condition to becoming a recipient.
    (g) Educational institution means a local educational agency 
(L.E.A.) as defined by section 801(f) of the Elementary and Secondary 
Education Act of 1965 (20 U.S.C. 881), a preschool, a private elementary 
or secondary school, or an applicant or recipient of the type defined by 
paragraph (h), (i), (j), or (k) of this section.
    (h) Institution of graduate higher education means an institution 
which:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences; or
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    (i) Institution of undergraduate higher education means:

[[Page 405]]

    (1) An institution offering at least two but less than four years of 
college level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body which certifies credentials or offers degrees, 
but which may or may not offer academic study.
    (j) Institution of professional education means an institution 
(except any institution of undergraduate higher education) which offers 
a program of academic study that leads to a first professional degree in 
a field for which there is a national specialized accrediting agency 
recognized by the United States Commissioner of Education.
    (k) Institution of vocational education means a school or 
institution (except an institution of professional or graduate or 
undergraduate higher education) which has as its primary purpose 
preparation of students to pursue a technical, skilled, or semiskilled 
occupation or trade, or to pursue study in a technical field, whether or 
not the school or institution offers certificates, diplomas, or degrees 
and whether or not it offers fulltime study.
    (l) Administratively separate unit means a school, department or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    (m) Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, 
participation, or matriculation in or at an education program or 
activity operated by a recipient.
    (n) Student means a person who has gained admission.
    (o) Transition plan means a plan subject to the approval of the 
United States Commissioner of Education pursuant to section 901(a) of 
the Education Amendments of 1972, under which an educational institution 
operates in making the transition from being an educational institution 
which admits only students of one sex to being one which admits students 
of both sexes without discrimination.
    (p) Educational recipient means an educational institution as 
defined in Sec. 15a.2(g) and every other recipient which has education 
as a significant purpose.
    (q) Education program or activity means:
    (1) Every program or activity operated by an educational recipient; 
and
    (2) Every program or activity operated by other recipients where a 
significant purpose of the finanical assistance is education,
    (r) United States means the States of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, 
Guam, Wake Island, the Canal Zone, and the territories and possessions 
of the United States, and the term State means any one of the foregoing.



Sec. 15a.3  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the Secretary finds that a recipient has 
discriminated against persons on the basis of sex in an education 
program or activity, such recipient shall take such remedial action as 
the Secretary deems necessary to overcome the effects of such 
discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action to overcome the effects of 
conditions which resulted in limited participation therein by persons of 
a particular sex. Nothing herein shall be interpreted to alter any 
affirmative action obligations which a recipient may have under 
Executive Order 11246.
    (c) Self-evaluation. Each recipient shall, within one year of the 
effective date of this part:
    (1) Evaluate in terms of the requirements of this part, its current 
policies and practices and the effects thereof concerning admission of 
students, treatment of students, and employment of both academic and 
non-academic personnel working in connection with the recipient's 
education program or activity;

[[Page 406]]

    (2) Modify any of these policies and practices which do not or may 
not meet the requirements of this part; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination which resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following the 
effective date of this part or completion of the evaluation required 
under paragraph (c) of this section, whichever is longer, and shall 
provide to the Secretary upon request, a description of any 
modifications made pursuant to paragraph (c)(1) of this section and of 
any remedial steps taken pursuant to paragraph (c)(3) of this section.



Sec. 15a.4  Assurance required.

    (a) General. Every application for Federal financial assistance for 
any education program or activity shall as condition of its approval 
contain or be accompanied by an assurance from the applicant or 
recipient, satisfactory to the Secretary, that each education program or 
activity operated by the applicant or recipient and to which this part 
applies will be operated in compliance with this part. An assurance of 
compliance with this part shall not be satisfactory to the Secretary if 
the applicant or recipient to whom such assurance applies fails to 
commit itself to take whatever remedial action is necessary in 
accordance with Sec. 15a.3(a) to eliminate existing discrimination on 
the basis of sex or to eliminate the effects of past discrimination 
whether occurring prior or subsequent to the submission to the Secretary 
of such assurance.
    (b) Transfers of property. If a recipient sells or otherwise 
transfers property financed in whole or in part with Federal financial 
assistance to a transferee which operates any education program or 
activity, and the Federal share of the fair market value of the property 
is not upon such sale or transfer properly accounted for to the Federal 
Government both the transferor and the transferee shall be deemed to be 
recipients, subject to the provisions of subpart B.
    (c) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurances shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (d) Form. The Secretary will specify the form of the assurances 
required by paragraph (a) of this section and the extent to which such 
assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 15a.5  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
this part are independent of, and do not alter, obligations not to 
discriminate on the basis of sex imposed by Executive Order 11246, as 
amended; title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq.); the Equal Pay Act (29 U.S.C. 206 and 206(d); and any other act of 
Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with this part is not obviated or alleviated by any 
State or local law or other requirement which would render any applicant 
or student ineligible, or limit the eligibility of any applicant or 
student, on the basis of sex to practice any occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with this part is not obviated or alleviated by any 
rule or regulation of any organization, club, athletic or other league, 
or association which would render any applicant or student ineligible to 
participate or limit the eligibility or participation of any applicant 
or student, on the basis of sex,

[[Page 407]]

in any education program or activity operated by a recipient and which 
receives or benefits from Federal financial assistance.
    (d) Effect of compliance with HEW regulations. If a recipient is 
covered by the title IX regulations issued by HEW, 45 CFR part 86, and 
has already complied with the HEW requirements corresponding to 
Sec. Sec. 15a.3(c), 15a.4(a), 15a.7 (a) and (b), and 15a.8 (a) and (b), 
then the requirements of those sections need not be duplicated in order 
to comply with this part. However, if the requirements have not been 
applied to all programs funded by this Department, then the requirements 
will have to be met as to those programs.



Sec. 15a.6  Effect of employment opportunities.

    The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for members of one sex than for 
members of the other sex.



Sec. 15a.7  Designation of responsible employee and adoption of 
grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under this part, including any 
investigation of any complaint communicated to such recipient alleging 
its noncompliance with this part or alleging any actions which would be 
prohibited by this part. The recipient shall notify all its students and 
employees of the name, office address and telephone number of the 
employee or employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt, and equitable 
resolution of student and employee complaints alleging any action which 
would be prohibited by this part.



Sec. 15a.8  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities which it operates, and that it is required by 
title IX and this part not to discriminate in such a manner. Such 
notification shall contain such information, and be made in such manner, 
as the Secretary finds necessary to apprise such persons of the 
protections against discrimination assured them by title IX and this 
part, but shall state at least that the requirement not to discriminate 
in education programs and activities extends to employment therein and 
to admission thereto unless subpart C does not apply to the recipient, 
and that inquiries concerning the application of title IX and this part 
to such recipient may be referred to the employee designated pursuant to 
Sec. 15a.7 or to the Secretary.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of the effective date of 
this part or of the date this part first applies to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Local newspapers,
    (ii) newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (iii) memoranda or other written communications distributed to every 
student and employees of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form which it makes 
available to any person of a type described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in this paragraph which suggests, by text or 
illustration, that such

[[Page 408]]

recipient treats applicants, students, employees differently on the 
basis of sex except as such treatment is permitted by this part.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b) of this section, and shall apprise each of its admission 
and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec. 15a.11  Application.

    Except as provided in this subpart, this part 15a applies to every 
recipient and to each education program or activity operated by such 
recipient which receives or benefits from Federal financial assistance.



Sec. 15a.12  Educational institutions controlled by religious 
organizations.

    (a) Application. This part does not apply to an educational 
institution which is controlled by a religious organization to the 
extent application of this part would not be consistent with the 
religious tenets of such organization.
    (b) Exemption. An educational institution which wishes to claim the 
exemption set forth in paragraph (a) of this section shall do so by 
submitting in writing to the Secretary a statement by the highest 
ranking official of the institution identifying the provisions of this 
part which conflict with a specific tenet of the religious organization.



Sec. 15a.13  Military and merchant marine educational institution.

    This part does not apply to an educational institution whose primary 
purpose is the training of individuals for a military service of the 
United States or for the merchant marines.



Sec. 15a.14  Membership practices of certain organizations.

    (a) Social fraternities and sororities. This part does not apply to 
the membership sororities which are exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, the active membership of 
which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire Girls. This 
part does not apply to the membership practices of the Young Men's 
Christian Association, the Young Women's Christian Association, the Girl 
Scouts, the Boy Scouts and Camp Fire Girls.
    (c) Voluntary youth service organizations. This part does not apply 
to the membership practices of voluntary youth service organizations 
which are exempt from taxation under section 501(a) of the Internal 
Revenue Code of 1954 and the membership of which has been traditionally 
limited to members of one sex and principally to persons of less than 
nineteen years of age.



Sec. 15a.15  Exempt activities.

    (a) These regulations shall not apply to:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Girls State 
Conference, Girls Nation Conference, Boys State Conference, Boys Nation 
Conference, or
    (2) The selection of students to attend any such conference.
    (b) These regulations shall not preclude father-son or mother-
daughter activities at an educational institution, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided for students of the 
other sex.
    (c) These regulations shall not apply with respect to any 
scholarship or other financial assistance awarded by an institution of 
higher education to any individual because such individual has received 
such award in any pageant in which the attainment of such award is based 
upon a combination of factors related to the personal appearance, poise, 
and talent of such individual and in which participation is limited to 
individuals of one sex only, so long as such pageant is in compliance 
with other nondiscrimination provisions of Federal law.

[[Page 409]]



Sec. 15a.16  Admission.

    (a) Admission to educational institutions prior to June 24, 1973, 
are not covered by this part.
    (b) Administratively separate units. For the purpose only of this 
section, Sec. Sec. 15a.17 and 15a.18, and subpart C, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of subpart C. Except as provided in paragraphs (c) 
and (d) of this section, subpart C applies to each recipient. A 
recipient to which subpart C applies shall not discriminate on the basis 
of sex in admission or recruitment in violation of that subpart.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients which are educational institutions, 
subpart C applies only to institutions of vocational education, 
professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. Subpart C 
does not apply to any public institution of undergraduate higher 
education which traditionally and continually from its establishment has 
had a policy of admitting only students of one sex.



Sec. 15a.17  Education institutions eligible to submit transition plans.

    (a) Applications. This section applies to each educational 
institution to which subpart C applies which:
    (1) Admitted only students of one sex as regular students as of June 
23, 1972; or
    (2) Admitted only students of one sex as regular students as of June 
23, 1965, but thereafter admitted as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of subpart C unless it is carrying 
out a transition plan approved by the United States Commissioner of 
Education as described in Sec. 15a.18, which plan provides for the 
elimination of such discrimination by the earliest practicable date but 
in no event later than June 23, 1979.



Sec. 15a.18  Transition plans.

    (a) Submission of plans. An institution to which Sec. 15a.17 
applies and which is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the United States 
Commissioner of Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education (FICE) Code of the educational institution submitting such 
plan, the administratively separate units to which the plan is 
applicable, and the name, address, and telephone number of the person to 
whom questions concerning the plan may be addressed. The person who 
submits the plan shall be the chief administrator or president of the 
institution, or another individual legally authorized to bind the 
institution to all actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes, as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 15a.17 applies shall result in treatment of applicants to or 
students of such recipient in violation of subpart C unless such 
treatment is necessitated by an obstacle identified in paragraph (b)(3) 
of this section and a schedule for eliminating that obstacle has been 
provided as required by paragraph (b)(4) of this section.

[[Page 410]]

    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 15a.17 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs which emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 15a.21  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which this subpart applies, except as provided in 
Sec. Sec. 15a.17 and 15a.18.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which this subpart applies shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise,
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission which has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria which do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
this subpart applies:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant which 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice which so 
discriminates or excludes;
    (3) Shall treat disabilities related to pregnancy, childbirth, 
termination of pregnancy, or recovery therefrom in the same manner and 
under the same policies as any other temporary disability or physical 
condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by this part.



Sec. 15a.22  Preference in admission.

    A recipient to which the subpart applies shall not give preference 
to applicants for admission, on the basis of attendance at any 
educational institution or other school or entity which admits as 
students only or predominantly members of one sex, if the giving of such 
preference has the effect of discriminating on the basis of sex in 
violation of this subpart.



Sec. 15a.23  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which this subpart 
applies shall not discriminate on the basis of sex in the recruitment 
and admission of students. A recipient may be required to undertake 
additional recruitment efforts for one sex as remedial action pursuant 
to Sec. 15a.3(a), and may choose to undertake such efforts as 
affirmative action pursuant to Sec. 15a.3(b).
    (b) Recruitment at certain institutions. A recipient to which this 
sub part applies shall not recruit primarily or exclusively at education 
institutions, schools or entities which admit as students only or 
predominantly members

[[Page 411]]

of one sex, if such actions have the effect of discriminating on the 
basis of sex in violation of this subpart.



 Subpart D_Discrimination on the Basis of Sex in Education Programs and 
                          Activities Prohibited



Sec. 15a.31  Education programs and activities.

    (a) General. Except as provided elsewhere in the part, no person 
shall, on the basis of sex, be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, or other education 
program or activity operated by a recipient which receives or benefits 
from Federal financial assistance. This subpart does not apply to 
actions of a recipient in connection with admission of its students to 
an education program or activity of (1) a recipient to which subpart C 
does not apply, or (2) an entity, not a recipient, to which subpart C 
would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in this subpart, in 
providing any aid, benefit, or service to a student, a recipient shall 
not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules or behavior, 
sanctions, or other treatment;
    (5) Discriminate against any person in the application of any rules 
of appearance;
    (6) Apply any rule concerning the domicile or residence of a 
student, or applicant, including eligibility for in-State fees and 
tuitions;
    (7) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person which 
discriminates on the basis of sex in providing any aid, benefit or 
service to students or employees;
    (8) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist, in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, which are designed to provide 
opportunities to study abroad, and which are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution, provided a recipient educational institution which 
administers or assists in the administration of such scholarships, 
fellowships, or other awards which are restricted to members of one sex 
provides, or otherwise makes available reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Programs not operated by recipient. (1) This paragraph applies 
to any recipient which requires participation by any applicant, student, 
or employee in any education program or activity not operated wholly by 
such recipient, or which facilitates, permits, or considers such 
participation as part of or equivalent to an education program or 
activity operated by such recipient, including participation in 
education consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient: (i) Shall develop and implement a procedure 
designed to assure itself that the operator or sponsor of such other 
education program or activity takes no action affecting any applicant, 
student or employee of such recipient which this part would prohibit 
such recipient from taking; and (ii) shall not facilitate, require, 
permit, or consider such participation if such action occurs.



Sec. 15a.32  Housing.

    (a) General. A recipient shall not, on the basis of sex, apply 
different rules or

[[Page 412]]

regulations, impose different fees or requirements, or offer different 
services or benefits related to housing, except as provided in this 
section (including housing provided only to married students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than provided by such recipient.
    (2) A recipient which through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole: (i) Proportionate in quantity 
and (ii) comparable in quality and cost to the student. A recipient may 
render such assistance to any agency, organization, or person which 
provides all or part of such housing to students only of one sex.



Sec. 15a.33  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 15a.34  Access to course offerings.

    A recipient shall not provide any course or otherwise carry out any 
of its education program or activity separately on the basis of sex, or 
require or refuse participation therein by any of its students on such 
basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music and adult education 
courses.
    (a) With respect to classes and activities in physical education at 
the elementary school level, the recipient shall comply fully with this 
section as expeditiously as possible but in no event later than one year 
from the effective date of this regulation. With respect to physical 
education classes and activities at the secondary and post-secondary 
levels, the recipient shall comply fully with this section as 
expeditiously as possible but in no event later than three years from 
the effective date of this regulation.
    (b) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (c) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball and other 
sports, the purpose or major activity of which involves bodily contact.
    (d) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards which do not have such 
effect.
    (e) Portions of classes in elementary and secondary schools which 
deal exclusively with human sexuality may be conducted in separate 
sessions for boys and girls.
    (f) Recipients may make requirements based on vocal range or quality 
which may result in a chorus or choruses of one or predominantly one 
sex.



Sec. 15a.35  Access to schools operated by L.E.A.s.

    A recipient which is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the

[[Page 413]]

same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 15a.36  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient which 
uses testing or other materials for appraising or counseling students 
shall not use different materials for students on the basis of their sex 
or use materials which permit or require different treatment of students 
on such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 15a.37  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance which is of any 
particular type or source, apply different criteria or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of facilities 
or other services, assist any foundation, trust, agency, organization, 
or person which provides assistance to any of such recipient's students 
in a manner which discriminates on the basis of sex; or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance which treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests or 
similar legal instruments or by acts of a foreign government which 
require that awards be made to members of a particular sex specified 
therein: Provided, That the overall effect of the award of such sex-
restricted scholarships, fellowships and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designed for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aids, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students

[[Page 414]]

of each sex participating in interscholastic or intercollegiate 
athletics.
    (2) Separate athletic scholarships or grants-in-aid for members of 
each sex may be provided as part of separate athletic teams for members 
of each sex to the extent consistent with this paragraph and Sec. 
15a.41.



Sec. 15a.38  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient which assists any agency, organization or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person which discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient which employs 
any of its students shall not do so in a manner which violates subpart 
E.



Sec. 15a.39  Health and insurance benefits and services.

    In providing a medical, hospital, accident, or life insurance 
benefit, service, policy, or plan to any of its students, a recipient 
shall not discriminate on the basis of sex, or provide such benefit, 
service, policy, or plan in a manner which would violate subpart E if it 
were provided to employees of the recipient. This section shall not 
prohibit a recipient from providing any benefit or service which may be 
used by a different proportion of students of one sex than of the other, 
including family planning services. However, any recipient which 
provides full coverage health service shall provide gynecological care.



Sec. 15a.40  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status which treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation in the normal education 
program or activity so long as such a certification is required of all 
students for other physical or emotional conditions requiring the 
attention of a physician.
    (3) A recipient which operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section shall ensure that the instructional program in 
the separate program is comparable to that offered to non-pregnant 
students.
    (4) A recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy and recovery therefrom in the same manner and 
under the same policies as any other temporary disability with respect 
to any medical or hospital benefit, service, plan or policy which such 
recipient administers, operates, offers, or participates in with respect 
to students admitted to the recipient's educational program or activity.
    (5) In the case of a recipient which does not maintain a leave 
policy for its students, or in the case of a student who does not 
otherwise qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy and 
recovery therefrom as a justification for a leave of absence for so long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status which she held when the leave began.



Sec. 15a.41  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person

[[Page 415]]

or otherwise be discriminated against in any interscholastic, 
intercollegiate, club or intramural athletics, offered by the recipient, 
and no recipient shall provide any such athletics separately on such 
basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try-out for the team offered unless the sport involved is a contact 
sport. For the purposes of this part, contact sports include boxing, 
wrestling, rugby, ice hockey, football, basketball, and other sports the 
purpose or major activity of which involves bodily contact.
    (c) Equal opportunity. A recipient which operates or sponsors 
interscholastic, intercollegiate, club or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available the Secretary will 
consider, among other factors:
    (1) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (2) The provision of equipment and supplies;
    (3) Scheduling of games and practice time;
    (4) Travel and per diem allowance;
    (5) Opportunity to receive coaching and academic tutoring;
    (6) Assignment and compensation of coaches and tutors;
    (7) Provision of locker rooms, practice and competitive facilities;
    (8) Provision of medical and training facilities and services;
    (9) Provision of housing and dining facilities and services;
    (10) Publicity.

Unequal aggregate expenditures for members of each sex or unequal 
expenditures for male and female teams if a recipient operates or 
sponsors separate teams will not constitute noncompliance with this 
section, but the Secretary may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient which operates or sponsors 
interscholastic, intercollegiate, club or intramural athletics at the 
elementary school level shall comply fully with the section as 
expeditiously as possible but in no event later than one year from the 
effective date of this regulation. A recipient which operates or 
sponsors interscholastic, intercollegiate, club or intramural athletics 
at the secondary or post-secondary school level shall comply fully with 
this section as expeditiously as possible but in no event later than 
three years from the effective date of this regulation.



Sec. 15a.42  Textbooks and curricular material.

    Nothing in this regulation shall be interpreted as requiring or 
prohibiting or abridging in any way the use of particular textbooks or 
curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                   Programs and Activities Prohibited



Sec. 15a.51  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient which receives or benefits 
from Federal financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way which could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.

[[Page 416]]

    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by this subpart, 
including relationships with employment and referral agencies, with 
labor unions, and with organizations providing or administering fringe 
benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity which admits as students only or predominantly members of one 
sex, if the giving of such preferences has the effect of discriminating 
on the basis of sex in violation of this part.
    (b) Application. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 15a.52  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity which has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 15a.53  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have in the past so discriminated, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities which furnish as applicants only or 
predominantly members of one sex if such actions have the effect of 
discriminating on the basis of sex in violation of this subpart.



Sec. 15a.54  Compensation.

    A recipient shall not make or enforce any policy or practice which, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and which are performed under similar working 
conditions.



Sec. 15a.55  Job classification and structure.

    A recipient shall not:

[[Page 417]]

    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements which classify persons on the basis of 
sex, unless sex is a bona-fide occupational qualification for the 
positions in question as set forth in Sec. 15a.61.



Sec. 15a.56  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of this part, fringe 
benefits means: Any medical, hospital, accident, life insurance or 
retirement benefit, service, policy or plan, any profit-sharing or bonus 
plan, leave and any other benefit or service of employment not subject 
to the provision of Sec. 15a.54.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan which does not provide either for equal periodic benefits for 
members of each sex or for equal contributions to the plan by such 
recipient for members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan which establishes different optional or compulsory 
retirement ages based on sex or which otherwise discriminates in 
benefits on the basis of sex.



Sec. 15a.57  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment which treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. A recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom and any temporary disability resulting therefrom as 
any other temporary disability for all job-related purposes, including 
commencement, duration and extensions of leave, payment of disability 
income, accrual of seniority and any other benefit or service, and 
reinstatement, and under any fringe benefit offered to employees by 
virtue of employment.
    (d) Pregnancy leave. In the case of a recipient which does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status which she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 15a.58  Effect of State or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with this 
subpart is not obviated or alleviated by the existence of any State or 
local law or other requirement which imposes prohibitions or limits upon 
employment of members of one sex which are not imposed upon members of 
the other sex.
    (b) Benefits. A recipient which provides any compensation service, 
or benefit to members of one sex pursuant to

[[Page 418]]

a State or local law or other requirement shall provide the same 
compensation, service, or benefit to members of the other sex.



Sec. 15a.59  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona-fide occupational qualification for the 
particular job in question.



Sec. 15a.60  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss or Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by this part.



Sec. 15a.61  Sex as a bona-fide occupational qualification.

    A recipient may take action otherwise prohibited by this subpart 
provided it is shown that sex is a bona fide occupational qualification 
for that action, such that consideration of sex with regard to such 
action is essential to successful operation of the employment function 
concerned. A recipient shall not take action pursuant to this section 
which is based upon alleged comparative employment characteristics or 
stereotyped characterizations of one or the other sex, or upon 
preference based on sex of the recipient, employees, students, or other 
persons, but nothing contained in this section shall prevent a recipient 
from considering an employee's sex in relation to employment in a locker 
room or toilet facility used only by members of one sex.



                     Subpart F_Procedures (Interim)



Sec. 15a.71  Interim procedures.

    For the purposes of implementing this part during the period between 
its effective date and the final issuance by the Department of a 
consolidated procedural regulation applicable to title IX and other 
civil rights authorities administered by the Department, the procedural 
provisions applicable to title VI of the Civil Rights Act of 1964 are 
hereby adopted and incorporated herein by reference. These procedures 
may be found at 7 CFR 15.5--15.11 and 7 CFR 15.60 et seq.

                    Appendix to Subpart F of Part 15a

    Programs covered by Title IX include, but are not limited to, the 
following:
1. Community Facilities Program. 7 U.S.C. 1926(a)(1).
2. Permits for use of National Forests. 16 U.S.C. 497; 16 U.S.C. 432; 7 
U.S.C. 1011(c), (d).
3. Permits for use of Government-owned improvements and land used 
therewith by other than individuals at a nominal charge. 16 U.S.C. 580d.

4. Revenue sharing payment to States: (a) Payment of 25 percent of 
National Forest receipts to States for schools and roads. 16 U.S.C. 500. 
(b) Payment to New Mexico and Arizona of proportion of National Forest 
receipts for common-school fund. Sections 6 and 24, Act of June 20, 
1910. 36 Stat. 557, 562, 573. (c) Payment of 25 percent of net revenues 
from Title III, Bankhead-Jones Farm Tenant Act, lands to counties for 
school and road purposes. 7 U.S.C. 1012.
5. Technical assistance in forest management. 16 U.S.C. 568c, 568d.
6. General forestry assistance. Annual Appropriation Acts commencing 
with the Department Appropriation Act of 1905; Organic Act of 1862, 7 
U.S.C. 2201.
7. Financial assistance to private timber organizations to carry out 
timber development programs. 40 U.S.C. 204.
8. Advance of funds for cooperative research. 16 U.S.C. 581i-l.
9. Research cooperation. 16 U.S.C. 581 et seq.
10. Grants for research. 7 U.S.C. 450i.
11. Food Distribution Program. 7 U.S.C. 612c, 1431; 42 U.S.C. 1755, 
1758, 1761; 42 U.S.C. 1777.
12. National School Lunch Program. 42 U.S.C. 1751 et seq.
13. Special Milk Program. 42 U.S.C. 1772.
14. School Breakfast Program. 42 U.S.C. 1773.
15. Special Food Service Program for Children. 42 U.S.C. 1761.
16. Special Supplemental Food Program for Women, Infants, and Children. 
42 U.S.C. 1786.
17. Cash grants to States for nutrition education. 42 U.S.C. 1787, 1788.
18. Advisory services studies for farmers cooperatives. 7 U.S.C. 451-
457.
19. Cooperative Agricultural Extension Service. 7 U.S.C. 341-349; D.C. 
Code 31-1609.
20. Resource Conservation and Development Program. 16 U.S.C. 590a.
21. Educational Aspects of Agricultural Marketing Act, 7 U.S.C. 1623-
1624.

[[Page 419]]

22. Hatch Act research programs. 7 U.S.C. 361a-i.
23. Experiment Station Research Facilities. 7 U.S.C. 390a-k.
24. McIntire-Stennis Cooperative Forestry Research Program. 16 U.S.C. 
582a-582a-7.
25. Rural Development and Small Farm Research and Education Program, 7 
U.S.C. 2661 et seq.
26. Youth Conservation Corps. 16 U.S.C. 1701 et seq.
27. Young Adult Conservation Corps. 29 U.S.C. 993 et seq.
28. Agricultural Research and Education Grants Program. 7 U.S.C. 3151 et 
seq.
29. National Food and Human Nutrition Research and Extension Program. 7 
U.S.C. 3171 et seq.
30. Animal Health and Disease Research Program. 7 U.S.C. 3191 et seq.
31. The 1890 Land-Grant College Funding Program. 7 U.S.C. 3221 et seq.
32. Solar Energy Research and Development Program. 7 U.S.C. 3241, 3261-
62, 3271.



PART 15b_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                      Subpart A_General Provisions

Sec.
15b.1 Purpose.
15b.2 Applicability.
15b.3 Definitions.
15b.4 Discrimination prohibited.
15b.5 Assurances required.
15b.6 Designation of responsible employee and adoption of grievance 
          procedures.
15b.7 Notice of nondiscrimination and accessible services.
15b.8 Remedial action, voluntary action, and self-evaluation.
15b.9 Effect of State or local law or other requirements, and effect of 
          employment opportunities.
15b.10 Effect of compliance with regulations of other Federal agencies.

                     Subpart B_Employment Practices

15b.11 Applicability.
15b.12 Discrimination prohibited.
15b.13 Reasonable accommodation.
15b.14 Employment criteria.
15b.15 Preemployment inquiries.

                         Subpart C_Accessibility

15b.16 Applicability.
15b.17 Discrimination prohibited.
15b.18 Existing facilities.
15b.19 New construction.

    Subpart D_Preschool, Elementary, Secondary, Adult, and Extension 
                                Education

15b.20 Applicability
15b.21 Location and notification.
15b.22 Free appropriate public education.
15b.23 Educational setting.
15b.24 Evaluation and placement.
15b.25 Procedural safeguards.
15b.26 Nonacademic services.
15b.27 Extension education.
15b.28 Private education.

                    Subpart E_Postsecondary Education

15b.29 Applicability.
15b.30 Admissions and recruitment.
15b.31 Treatment of students.
15b.32 Academic adjustments.
15b.33 Housing.
15b.34 Financial and employment assistance to students.
15b.35 Nonacademic services.

               Subpart F_Other Aid, Benefits, or Services

15b.36 Applicability.
15b.37 Auxiliary aids.
15b.38 Health care facilities.
15b.39 Education of institutionalized persons.
15b.40 Food services.
15b.41 Multi-family rental housing.

                          Subpart G_Procedures

15b.42 Procedures.

Appendix A to Part 15b--List of Federal Financial Assistance From USDA

    Authority: 29 U.S.C. 794.

    Source: 47 FR 25470, June 11, 1982, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 15b.1  Purpose.

    The purpose of this part is to implement section 504 of the 
Rehabilitation Act of 1973, as amended, to the end that no otherwise 
qualified handicapped individual in the United States shall solely by 
reason of his or her handicap be excluded from the participation in, be 
denied the benefits of, or be subjected to discrimination under any 
program or activity receiving Federal financial assistance.



Sec. 15b.2  Applicability.

    This part applies to all programs or activities that receive Federal 
financial assistance extended by the Department of Agriculture after the 
effective

[[Page 420]]

date of this part whether or not the assistance was approved after the 
effective date. Subparts A, B, and C are of general applicability. 
Subparts D, E, and F are more specifically tailored. Subpart G is 
procedural.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51342, Aug. 26, 2003]



Sec. 15b.3  Definitions.

    As used in this part, the term or phrase:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
87 Stat. 390 (1973), as amended by the Rehabilitation Act Amendments of 
1974, Public Law 93-651, 89 Stat. 2 (1974) and Public Law 93-516, 88 
Stat. 1617 (1974) and the Rehabilitation, Comprehensive Services and 
Developmental Disabilities Amendments of 1978, Public Law 95-602, 92 
Stat. 2955 (1978). The Act appears at 29 U.S.C. 701-794.
    (b) Section 504 means section 504 of the Act, 29 U.S.C. 794.
    (c) Education of the Handicapped Act means the Education of the 
Handicapped Act, Public Law 92-230, Title VI, 84 Stat. 175 (1970), as 
amended by the Education of the Handicapped Amendments of 1974, Public 
Law 93-380, Title VI, 88 Stat. 576 (1974), the Education for All 
Handicapped Children Act of 1975, Public Law 94-142, 89 Stat. 773 
(1975), and the Education of the Handicapped Amendments of 1977, Public 
Law 95-49, 91 Stat. 230 (1977). The Education of the Handicapped Act 
appears at 20 U.S.C. 1401-1461.
    (d) Department means the Department of Agriculture and includes each 
of its operating agencies and other organizational units.
    (e) Secretary means the Secretary of Agriculture or any officer or 
employee of the Department to whom the Secretary has delegated or may 
delegate the authority to act under the regulations of this part.
    (f) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (g) Federal financial assistance or assistance means any grant, 
contract (other than a procurement contract or a contract of insurance 
or guaranty), cooperative agreement, formula allocation, loan, or any 
other arrangement by which the Department provides or otherwise makes 
available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal Federal property or any interest in Federal 
property, including:
    (i) A sale, transfer, lease or use (on other than a casual or 
transient basis) of Federal property for less than fair market value, 
for reduced consideration or in recognition of the public nature of the 
recipient's program or activity; and
    (ii) Proceeds from a subsequent sale, transfer or lease of Federal 
property if the Federal share of its fair market value is not returned 
to the Federal Government.
    (4) Any other thing of value.
    (h) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (i) Handicapped person means any person who has a physical or mental 
impairment which substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    (j) Physical or mental impairment means (1) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular; reproductive; digestive; genitourinary; hemic 
and lymphatic; skin; and endocrine; or (2) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities. The term physical 
or mental impairment includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments; 
cerebral palsy; epilepsy;

[[Page 421]]

muscular dystrophy; multiple sclerosis, cancer; heart disease; diabetes; 
mental retardation; emotional illness; and drug addiction and 
alcoholism.
    (k) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning and working.
    (l) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (m) Is regarded as having an impairment means (1) has a physical or 
mental impairment that does not substantially limit major life 
activities but that is treated by a recipient as constituting such a 
limitation; (2) has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
towards such impairments, or (3) has none of the impairments defined in 
paragraph (j) of this section but is treated by a recipient as having 
such an impairment.
    (n) Qualified handicapped person (used synonymously with otherwise 
qualified handicapped individual) means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question, but the term does not include any individual who is an 
alcoholic or drug abuser whose current use of alcohol or drugs prevents 
such individual from performing the duties of the job in question or 
whose employment, by reason of such current alcohol or drug abuse, would 
constitute a direct threat to property or the safety of others;
    (2) With respect to public preschool, elementary, secondary, or 
adult educational services, a handicapped person, (i) of an age during 
which non-handicapped persons are provided such services, (ii) of an age 
during which it is mandatory under State law to provide such services to 
handicapped persons, or (iii) to whom a State is required to provide a 
free appropriate public education under section 612 of the Education of 
the Handicapped Act; and
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets all academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity;
    (4) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (o) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (i) of this section.
    (p) For purposes of Sec. 15b.18(d), Historic Preservation Programs 
are those that receive Federal financial assistance that has 
preservation of historic properties as a primary purpose.
    (q) For purposes of Sec. 15b.18(e), Historic properties means those 
buildings or facilities that are eligible for listing in the National 
Register of Historic Places, or such properties designated as historic 
under a statute of the appropriate State or local government body.
    (r) For purposes of Sec. 15b.18(d), Substantial impairment means a 
significant loss of the integrity of finished materials, design quality 
or special character which loss results from a permanent alteration.
    (s) Program or activity means all of the operations of any entity 
described in paragraphs (s)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;

[[Page 422]]

    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (s)(1), (2), or (3) of this section.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51342, Aug. 26, 2003]



Sec. 15b.4  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity receiving assistance from this Department.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit or services;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit or services that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit or 
service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit or to reach the same 
level of achievement in the most integrated setting appropriate as that 
provided to others;
    (iv) Provide a different or separate aid, benefit or service to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with an 
aid, benefit or service that are as effective as those provided to 
others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit or service to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any rights, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit or service.
    (2) For purposes of this part, aids, benefits and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for handicapped and nonhandicapped persons, but 
must afford handicapped persons equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement, in the most integrated setting appropriate to the person's 
needs.
    (3) Despite the existence of separate or different aid, benefits, or 
services provided in accordance with this part, a recipient may not deny 
a qualified handicapped person the opportunity to participate in such 
programs or activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration (i) that 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the recipient's program or activity with respect to 
handicapped persons, or (iii) that perpetuate the discrimination of 
another recipient if both recipients are subject to common 
administrative control or are agencies of the same State.

[[Page 423]]

    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections (i) that have the 
effect of excluding handicapped persons, from denying them the benefits 
of, or otherwise subjecting them to discrimination under any program or 
activity that receives Federal financial assistance or (ii) that have 
the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the program or activity with respect 
to handicapped persons.
    (6) As used in this section, an aid, benefit or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of nonhandicapped persons from aid, benefits, or services limited by 
Federal statute or executive order to handicapped persons or the 
exclusion of a specific class of handicapped persons from aid, benefits, 
or services limited by Federal statute or executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) Communications. Recipients shall take appropriate steps to 
ensure that communications with their applicants, employees, and 
beneficiaries are available to persons with impaired vision and hearing.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]



Sec. 15b.5  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance, on a form specified 
by the Secretary, that the program or activity will be operated in 
compliance with this part. An applicant may incorporate these assurances 
by reference in subsequent applications to the Department.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide real 
property or structures on the property, the assurance will obligate the 
recipient, or, in the case of a subsequent transfer, the transferee, for 
the period during which the real property or structures are used for the 
purpose for which Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (2) In the case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases, the assurance will obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Department, the instrument effecting or recording this transfer shall 
contain a covenant running with the land to assure nondiscrimination for 
the period during which the real property is used for the purpose for 
which the Federal financial assistance is extended or for another 
purpose involving the provision of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant shall also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a breach of the covenant. If a transferee of real property proposes 
to mortgage or otherwise encumber the real property as security for 
financing construction of new, or improvement of existing, facilities on 
the property for the purposes for which the property was transferred, 
the Secretary may, upon request of the transferee and if necessary to 
accomplish such financing and upon such conditions as the Secretary 
deems appropriate, agree to forebear the exercise of

[[Page 424]]

such right to revert title for so long as the lien of such mortgage or 
other encumbrance remains effective.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]



Sec. 15b.6  Designation of responsible employee and adoption of 
grievance procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or more persons shall designate at least one person to 
coordinate its efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more persons shall adopt grievance procedures that 
incorporate appropriate due process standards and that provide for the 
prompt and equitable resolution of complaints alleging any action 
prohibited by this part. Such procedures need not be established with 
respect to complaints from applicants for employment or from applicants 
for admission to postsecondary educational institutions.
    (c) The Secretary may require any recipient with fewer than fifteen 
employees to designate a responsible employee and adopt grievance 
procedures when the Secretary finds a violation of this part or finds 
that complying with these administrative requirements will not 
significantly impair the ability of the recipient to provide benefits or 
services.



Sec. 15b.7  Notice of nondiscrimination and accessible services.

    (a) A recipient shall take appropriate initial and continuing steps 
to notify participants, beneficiaries, applicants, and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient that it does not discriminate on the basis 
of handicap in violation of section 504 and this part. The notification 
shall state, where appropriate, that the recipient does not discriminate 
in admission or access to, or treatment or employment in, its programs 
or activities. The recipient shall also identify the responsible 
employee designated pursuant to Sec. 15b.6(a), and identify the 
existence and location of accessible services, activities, and 
facilities. A recipient shall make the initial notification required by 
this paragraph within 90 days of the effective date of this part. 
Methods of initial and continuing notification may include but are not 
limited to the posting of notices, placement of notices in the 
recipient's publications, radio announcements, and the use of other 
visual and aural media.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]



Sec. 15b.8  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Secretary finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this part, the recipient shall take such remedial action 
as the Secretary deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this part and 
where another recipient exercises control over the recipient that has 
discriminated, the Secretary, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Secretary may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this part, require a 
recipient to take remedial action (i) with respect to handicapped 
persons who are no longer participants in the recipient's program or 
activity but who were participants in the program when such 
discrimination occurred or (ii) with respect to handicapped persons who 
would have

[[Page 425]]

been participants in the program or activity had the discrimination not 
occurred, or (iii) with respect to handicapped persons presently in the 
program or activity, but not receiving full benefits or equal and 
integrated treatment within the program.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this part.
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient shall, for at least three years following completion 
of the evaluation required under paragraph (c)(1) of this section, 
maintain on file, make available for public inspection, and provide to 
the Secretary upon request: (i) A list of the interested persons 
consulted, (ii) a description of areas examined and any problems 
identified, and (iii) a description of any modifications made and of any 
remedial steps taken.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]



Sec. 15b.9  Effect of State or local law or other requirements, and 
effect of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any State or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped persons to receive 
services or to practice any occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped persons than for 
nonhandicapped persons.



Sec. 15b.10  Effect of compliance with regulations of other Federal 
agencies.

    A recipient that has designated a responsible official and 
established a grievance procedure, provided notice, completed a self-
evaluation, or prepared a transition plan in the course of complying 
with regulations issued by other Federal agencies under section 504 will 
be in compliance with Sec. 15b.6, Sec. 15b.7, Sec. 15b.8(c), or Sec. 
15b.18(f), respectively, if all requirements of those sections have been 
met in regard to programs or activities assisted by this Department.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]



                     Subpart B_Employment Practices



Sec. 15b.11  Applicability.

    This subpart applies to all programs or activities that receive 
Federal financial assistance provided by the Department of Agriculture 
after the effective date of this part.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51342, Aug. 26, 2003]



Sec. 15b.12  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicapped, be subjected to discrimination in employment under any 
program or activity receiving assistance from this Department.
    (2) A recipient shall make all decisions concerning employment in a 
manner which ensures that discrimination on the basis of handicap does 
not occur and may not limit, segregate, or classify applicants or 
employees in any

[[Page 426]]

way that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractural or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
This includes relationships with employment and referral agencies, with 
labor unions with organizations providing or administering fringe 
benefits to employees of the recipient, and with organizations providing 
training and apprenticeships.
    (4) All provisions of this subpart pertaining to employment, apply 
equally to volunteer service.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right to return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (c) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.13  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include (1) Making facilities used 
by employees readily accessible to and useable by handicapped persons, 
and (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provisions of 
readers or interpreters, and other similar actions.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's programs or activities, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of recipient's workforce;
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for the denial 
is the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.14  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
persons or any class of handicapped persons unless: (1) The recipient 
shows that the test score or other selection criterion, as used by the 
recipient, is job-related for the position in question, and (2) the 
Secretary cannot show that alternative job-related tests or criteria are 
available that do not screen out or tend to screen out as many 
handicapped persons.

[[Page 427]]

    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude, or whatever other factor the test 
purports to measure, rather than reflecting the applicant's or 
employee's impaired sensory, manual, or speaking skills (except where 
those skills are the factors that the test purports to measure).



Sec. 15b.15  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or may not 
make preemployment inquiry of an applicant as to whether the applicant 
is a handicapped person or as to the nature or severity of a handicap. A 
recipient may, however, make preemployment inquiry into an applicant's 
ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 15b.8(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 15b.8(b), or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are handicapped: Provided, That (1) the 
recipient states clearly on any written questionnaire used for this 
purpose or makes clear orally if no written questionnaire is used that 
the information requested is intended for use solely in connection with 
its remedial action obligations or its voluntary affirmative action 
efforts; and (2) the recipient states clearly that the information is 
being requested on a voluntary basis, that it will be kept confidential 
as provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient for 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty: 
Provided, That (1) all entering employees are subjected to such an 
examination regardless of handicap; and (2) the results of such an 
examination are used only in accordance with the requirements of this 
part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded the same 
confidentiality as medical records except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Governement officials investigating compliance with the Act 
shall be provided relevant information upon request.



                         Subpart C_Accessibility



Sec. 15b.16  Applicability.

    This subpart applies to all programs or activities that receive 
Federal financial assistance provided by the Department of Agriculture 
after the effective date of this part.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51343, Aug. 26, 2003]



Sec. 15b.17  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusuable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity receiving 
assistance from this Department.



Sec. 15b.18  Existing facilities.

    (a) Accessibility. A recipient shall operate each assisted program 
or activity

[[Page 428]]

so that when each part is viewed in its entirety it is readily 
accessible to and usable by qualified handicapped persons. This 
paragraph does not necessarily require a recipient to make each of its 
existing facilities or every part of an existing facility accessible to 
and usable by qualified handicapped persons.
    (b) Method. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aides to beneficiaries, home visits, delivery 
of services at alternate accessible sites, alteration of exiting 
facilities and construction of new facilities in conformance with the 
requirements of Sec. 15b.19, or any other method that results in making 
its program or activity accessible to qualified handicapped persons. A 
recipient is not required to make structural changes in existing 
facilities where other methods are effective in achieving compliance 
with paragraph (a) of this section. In choosing among available methods 
for meeting the requirement of paragraph (a) of this section, a 
recipient shall give priority to those methods that serve qualified 
handicapped persons in the most intergrated setting appropriate.
    (c) Small providers. If a recipient with fewer than fifteen 
employees finds, after consultation with a handicapped person seeking 
its services, that there is no method of complying with paragraph (a) of 
this section other than by making a significant alteration in its 
existing facilities, the recipient may, as an alternative, refer the 
handicapped person to other providers of those services that are 
accessible at no additional cost to handicapped persons.
    (d) Application for modification of requirements. Recipients that 
determine after a self-evaluation conducted according to the 
requirements of Sec. 15b.8(c), that accessibility can only be 
accomplished through substantial modifications which would result in a 
fundamental alteration in the nature of the program or activity, may 
apply to the Secretary for a modification of the requirements of this 
section.
    (e) Historic Preservation Programs; Application for waiver of 
program accessibility requirements. (1) A recipient shall operate each 
assisted program or activity involving Historic Preservation Programs so 
that when each part is viewed in its entirety it is readily accessible 
to and usable by handicapped persons. This paragraph does not 
necessarily require a recipient to make each of its existing historic 
properties or every part of an historic property accessible to and 
usable by handicapped persons. Methods of achieving accessibility 
include:
    (i) Making physical alterations which enable handicapped persons to 
have access to otherwise inaccessible areas or features of historic 
properties;
    (ii) Using audio-visual materials and devices to depict otherwise 
inaccessible areas or features of historic properties;
    (iii) Assigning persons to guide handicapped persons into or through 
otherwise inaccessible portions of historic properties;
    (iv) Adopting other innovative methods to achieve accessibility. 
Because the primary benefit of an Historic Preservation Program is the 
experience of the historic property itself, in taking steps to achieve 
accessibility, recipients shall give priority to those means which make 
the historic property, or portions thereof physicially accessible to 
handicapped individuals.
    (2) Where accessibility cannot be achieved without causing a 
substantial impairment of significant historic features, the Secretary 
may grant a waiver of the accessibility requirement. In determining 
whether accessibility can be achieved without causing a substantial 
impairment, the Secretary shall consider the following factors:
    (i) Scale of property, reflecting its ability to absorb alterations;
    (ii) Use of the property, whether primarily for public or private 
purpose;
    (iii) Importance of the historic features of the property to the 
conduct of the program or activity; and,
    (iv) Cost of alterations in comparison to the increase in 
accessibility.

The Secretary shall periodically review any waiver granted under this 
section and may withdraw it if technological advances or other changes 
so warrant.
    (3) Where the property is federally owned or where Federal funds may 
be used for alterations, the comments of

[[Page 429]]

the Advisory Council on Historic Preservation shall be obtained when 
required by section 106 of the National Historic Preservation Act of 
1966, as amended (16 U.S.C. 470), and 36 CFR part 800, prior to 
effectuation of structural alterations.
    (f) Time period. A recipient shall comply with the requirements of 
paragraph (a) of this section within sixty days of the effective date of 
this part except that where structural changes in facilities are 
necessary, such changes shall be made within three years of the 
effective date of this part and as expeditiously as possible.
    (g) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section, a recipient shall develop, within one year of the 
effective date of this part, a transition plan setting forth the steps 
necessary to complete such changes. The plan shall be developed with the 
assistance of interested persons, including handicapped persons or 
organizations representing handicapped persons. A copy of the transition 
plan shall be made available for public inspection. The plan shall, at a 
minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under paragraph (a) of this section and if the time 
period of the transition plan is longer than one year, identify steps 
that will be taken during each year of the transition period; and
    (4) Identify the person responsible for implementation of the plan.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, 51343, Aug. 26, 
2003]



Sec. 15b.19  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by handicapped persons, if 
the construction is commenced after the effective date of this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part in a manner that affects or could affect the usability of 
the facility or part of the facility shall to the maximum extent 
feasible, be altered in such manner that the altered portion of the 
facility is readily accessible to and usable by handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.
    (d) Compliance with the Architectural Barriers Act of 1968. Nothing 
in this section of Sec. 15b.18 relieves recipients, whose facilities 
are covered by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157) from their responsibility of complying with the 
requirements of that Act and any implementing regulations.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52138, 52139, Dec. 19, 
1990]

[[Page 430]]



    Subpart D_Preschool, Elementary, Secondary, Adult, and Extension 
                                Education



Sec. 15b.20  Applicability.

    Except as otherwise noted, this subpart applies to public and 
private schools, elementary, secondary, adult, and extension education 
programs or activities that receive Federal financial assistance 
provided by the Department of Agriculture after the effective date of 
this part and to recipients that operate, or that receive Federal 
financial assistance for the operation of, such programs or activities.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51343, Aug. 26, 2003]



Sec. 15b.21  Location and notification.

    A recipient that operates a public elementary or secondary education 
program or activity shall annually:
    (a) Undertake to identify and locate every qualified handicapped 
person residing in the recipient's jurisdiction who is not receiving a 
public education; and
    (b) Take appropriate steps to notify handicapped persons and their 
parents or guardians of the recipient's duty under this subpart.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.22  Free appropriate public education.

    (a) General. A recipient that operates a public elementary or 
secondary education program or activity shall provide a free appropriate 
public education to each qualified handicapped person who is in the 
recipient's jurisdiction, regardless of the nature or severity of the 
person's handicap.
    (b) Appropriate education. (1) For the purpose of this subpart, the 
provision of an appropriate education is the provision of regular or 
special education and related aids and services that (i) are designed to 
meet individual educational needs of handicapped persons as adequately 
as the needs of nonhandicapped persons are met and (ii) are based upon 
adherence to procedures that satisfy the requirements of Sec. 15b.23, 
Sec. 15b.24, and Sec. 15b.25.
    (2) Implementation of an Individualized Education Program developed 
in accordance with the Education of the Handicapped Act is one means of 
meeting the standard established in paragraph (b)(1)(i) of this section.
    (3) A recipient may place a handicapped person or refer such person 
for aid, benefits, or services other than those that it operates or 
provides as its means of carrying out the requirements of this subpart. 
If so, the recipient remains responsible for ensuring that the 
requirements of this subpart are met with respect to any handicapped 
person so placed or referred.
    (c) Free education--(1) General. For the purpose of this section, 
the provision of a free education is the provision of educational and 
related services without cost to handicapped persons or their parents or 
guardians, except for those fees that are imposed on nonhandicapped 
persons or their parents or guardians. It may consist either of the 
provision of free services or, if a recipient places a handicapped 
person in or refers such person for aid, benefits, or services not 
operated or provided by the recipient as its means of carrying out the 
requirements of this subpart, payment for the costs of the aid, 
benefits, or services. Funds available from any public or private agency 
may be used to meet the requirements of this subpart. Nothing in this 
section shall be construed to relieve an insurer or similar third party 
from an otherwise valid obligation to provide or pay for services 
provided to a handicapped person.
    (2) Transportation. If a recipient places a handicapped person or 
refers such person for aid, benefits, or services not operated or 
provided by the recipient as its means of carrying out the requirements 
of this subpart, the recipient shall ensure that adequate transportation 
to and from aid, benefits, or services is provided at no greater cost 
than would be incurred by the person or his or her parents or guardian 
if the person were placed in the program operated by the recipient.
    (3) Residential placement. If a public or private residential 
placement is necessary to provide a free appropriate public education to 
a handicapped person because of their handicap, the

[[Page 431]]

placement, including nonmedical care and room and board, shall be 
provided at no cost to the person or his or her parents or guardian.
    (4) Placement of handicapped persons by parents. If a recipient has 
made available in conformance with the requirements of this section and 
Sec. 15b.23, a free appropriate public education to a handicapped 
person and the person's parents or guardian choose to place the person 
in a private school, the recipient is not required to pay for the 
person's education in the private school. Disagreements between a parent 
or guardian and a recipient regarding whether the recipient has made a 
free appropriate education available or otherwise regarding the question 
of financial responsibility are subject to the due process procedures of 
Sec. 15b.25.
    (d) Compliance. A recipient may not exclude any qualified 
handicapped person from a public elementary or secondary education after 
the effective date of this regulation. A recipient that is not, on the 
effective date of this regulation, in full compliance with the other 
requirements of the preceding paragraphs of this section shall meet such 
requirements at the earliest practicable time but in no event later than 
September 1, 1982.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.23  Educational setting.

    (a) Academic setting. A recipient to which this subpart applies 
shall educate, or shall provide for the education of each qualified 
handicapped person in its jurisdiction with persons who are not 
handicapped to the maximum extent appropriate to the needs of the 
handicapped person. A recipient shall place a handicapped person in the 
regular educational environment operated by the recipient unless it is 
demonstrated by the recipient that the education of the person in the 
regular environment with the use of supplementary aids and services 
cannot be achieved satisfactorily. Whenever a recipient places a person 
in a setting other than the regular educational environment pursuant to 
this paragraph, it shall take into account the proximity of the 
alternate setting to the person's home.
    (b) Nonacademic setting. In providing or arranging for the provision 
of nonacademic and extracurricular services and activities, including 
meals, recess periods, and the services and activities set forth in 
Sec. 15b.26(a)(2), a recipient shall ensure that handicapped persons 
participate with nonhandicapped persons in such activities and services 
to the maximum extent appropriate to the needs of the handicapped person 
in question.
    (c) Comparable facilities. If a recipient, in compliance with 
paragraph (a) of this section, operates a facility that is identifiable 
as being for handicapped persons, the recipient shall ensure that the 
facility and the services and activities provided therein are comparable 
to the other facilities, services, and activities of the recipient.



Sec. 15b.24  Evaluation and placement.

    (a) Placement evaluation. A recipient that operates a public 
elementary or secondary education program or activity shall conduct an 
evaluation in accordance with the requirements of paragraph (b) of this 
section of any person who, because of handicap, needs or is believed to 
need special education or related services before taking any action with 
respect to the initial placement of the person in regular or special 
education and any subsequent significant change in placement.
    (b) Evaluation procedures. A recipient to which this section applies 
shall establish standards and procedures for the evaluation and 
placement of persons who, because of handicap, need or are believed to 
need special education or related services which ensure that:
    (1) Tests and other evaluation materials have been validated for the 
specific purpose for which they are used and are administered by trained 
personnel in conformance with the instructions provided by their 
producer;
    (2) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those which are 
designed to provide a single general intelligence quotient; and
    (3) Tests are selected and administered so as best to ensure that, 
when a test is administered to a student with impaired sensory, manual, 
or speaking

[[Page 432]]

skills, the test results accurately reflect the student's aptitude or 
achievement level or whatever other factor the test purports to measure, 
rather than reflecting the student's impaired sensory, manual or 
speaking skills (except where those skills are the factors that the test 
purports to measure).
    (c) Placement procedures. In interpreting evaluation data and in 
making placement decisions, a recipient shall (1) draw upon information 
from a variety of sources, including aptitude and achievement tests, 
teacher recommendations, physical conditions, social or cultural 
background, and adaptive behavior, (2) establish procedures to ensure 
that information obtained from all such sources is documented and 
carefully considered, (3) ensure that the placement decision is made by 
a group of persons, including persons knowledgeable about the child, the 
meaning of the evaluation data, and the placement options, and (4) 
ensure that the placement decision is made in conformity with Sec. 
15b.23.
    (d) Reevaluation. A recipient to which this section applies shall 
establish procedures, in accordance with paragraph (b) of this section, 
for periodic reevaluation of students who have been provided special 
education and related services. A reevaluation procedure consistent with 
the Education for the Handicapped Act is one means of meeting this 
requirement.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.25  Procedural safeguards.

    A recipient that provides a public elementary or secondary education 
shall establish and implement, with respect to action regarding the 
identification, evaluation, or educational placement of persons who, 
because of handicap, need or are believed to need special instruction or 
related services, a system of procedural safeguards that includes 
notice, an opportunity for the parents or guardian of the person to 
examine relevant records, an impartial hearing with opportunity for 
participation by the person's parents or guardian and representation by 
counsel, and a review procedure. Compliance with the procedural 
safeguards of section 615 of the Education of the Handicapped Act is one 
means of meeting this requirement.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.26  Nonacademic services.

    (a) General. (1) Recipients to which this subpart applies shall 
provide nonacademic and extracurricular services and activities in such 
a manner as is necessary to afford handicapped students an equal 
opportunity for participation in such services and activities.
    (2) Nonacademic and extracurricular services and activities may 
include counseling services, physical education and athletics, food 
services, transportation, health services, recreational activities, 
special interest groups or clubs sponsored by the recipient, referrals 
to agencies which provide assistance to handicapped persons, and 
assistance in obtaining outside employment.
    (b) Counseling services. A recipient to which this subpart applies 
that provides personal, academic, or vocational counseling, guidance, or 
placement services to its students shall provide these services without 
discrimination on the basis of handicap. The recipient shall ensure that 
qualified handicapped students are not counseled toward more restrictive 
career objectives than are nonhandicapped students with similar 
interests and abilities.
    (c) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, and services 
to any of its students, a recipient to which this subpart applies may 
not discriminate on the basis of handicap. A recipient that offers 
physical education courses or that operates or sponsors interscholastic, 
club, or intramural athletics shall provide to qualified handicapped 
students an equal opportunity for participation.
    (2) A recipient may offer handicapped students physical education 
and athletic activities that are separate or different from those 
offered to nonhandicapped students only if separation or differentiation 
is consistent with requirements of Sec. 15b.23, and only if no 
qualified handicapped student is denied the opportunity to compete for 
teams or to participate in courses that are not separate or different.

[[Page 433]]

    (d) Food services. In providing food services to any of its 
students, a recipient to which this subpart applies may not discriminate 
on the basis of handicap. (1) Recipients shall serve special meals, at 
no extra charge, to students whose handicap restricts their diet. 
Recipients may require students to provide medical certification that 
special meals are needed because of their handicap.
    (2) Where existing food service facilities are not completely 
accessible and usable, recipients may provide aides or use other equally 
effective methods to serve food to handicapped persons. Recipients shall 
provide all food services in the most intergrated setting appropriate to 
the needs of handicapped persons as required by Sec. 15b.23(b).

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.27  Extension education.

    (a) General. A recipient to which this subpart applies that provides 
extension education may not, on the basis of handicap, exclude qualified 
handicapped persons. A recipient shall take into account the needs of 
such persons in determining the benefits or services to be provided.
    (b) Delivery sites. (1) Where existing extension office facilities 
are inaccessible, recipients may make aid, benefits, or services 
normally provided at those sites available to qualified handicapped 
persons through other methods which are equally effective. These methods 
may include meetings in accessible locations, home visits, written or 
telephonic communications, and other equally effective alternatives.
    (2) For aid, benefits, or services delivered at other publicly-owned 
facilities, recipients shall select accessible facilities wherever 
possible. If accessible facilities cannot be selected because they are 
unavailable or infeasible due to the nature of the activity, recipients 
shall use other methods to deliver aid, benefits, or services to 
qualified handicapped persons. These methods may include the redesign of 
activities or some sessions of activities, the provision of aides, home 
visits, or other equally effective alternatives.
    (3) For aid, benefits, or services delivered at privately-owned 
facilities, such as homes and farm buildings, recipients shall use 
accessible facilities whenever qualified handicapped persons requiring 
such accessibility are participating, have expressed an interest in 
participating, or are likely to participate. If accessible facilities 
cannot be selected because they are unavailable or infeasible due to the 
nature of the activity, recipients shall use other methods to deliver 
aid, benefits, or services to qualified handicapped persons. These 
methods may include the redesign of activities or some sessions of 
activities, the provision of aides, home visits, or other equally 
effective alternatives.
    (4) Recipients shall make camping activities accessible to qualified 
handicapped persons. Recipients are not required to make every existing 
camp, all existing camp facilities, or all camp sessions accessible, but 
recipients who operate more than one camp or session may not limit 
qualified handicapped persons to one camp or session.
    (c) Materials. Recipients shall make materials accessible to 
qualified handicapped persons with sensory or mental impairments. 
Commonly-used materials shall be readily available in alternate forms 
such as Braille or tape. Upon request, recipients shall make other 
materials available through appropriate means such as Braille, tape, 
readers, large print formats, simplified versions, written scripts, or 
interpreters. Recipients need not provide individually prescribed 
devices, readers for personal use or study, or other devices or services 
of a personal nature.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, 51343, Aug. 26, 
2003]



Sec. 15b.28  Private education.

    (a) A recipient that provides private elementary or secondary 
education may not, on the basis of handicap, exclude a qualified 
handicapped person if the person can, with minor adjustments, be 
provided an appropriate education, as defined by Sec. 15b.22(b)(1)(i). 
Each recipient to which this section applies is also subject to the 
provisions of Sec. 15b.23 and Sec. 15b.26.
    (b) A recipient to which this section applies may not charge more 
for the provision of an appropriate education

[[Page 434]]

to handicapped persons than to nonhandicapped persons except to the 
extent that any additional charge is justified by a substantial increase 
in cost to the recipient.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



                    Subpart E_Postsecondary Education



Sec. 15b.29  Applicability.

    Subpart E applies to public and private postsecondary education 
programs or activities, including postsecondary vocational education 
programs and activities, that receive Federal financial assistance 
provided by the Department of Agriculture after the effective date of 
this part.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51343, Aug. 26, 2003]



Sec. 15b.30  Admissions and recruitment.

    (a) General. Qualified handicapped persons may not, on the basis of 
handicap, be denied admission or be subjected to discrimination in 
admission or recruitment by a recipient to which this subpart applies.
    (b) Admissions. In administering its admission policies, a recipient 
to which this subpart applies:
    (1) May not apply limitations upon the number or proportion of 
handicapped persons who may be admitted;
    (2) May not make use of any test or criterion for admission that has 
a disproportionate, adverse effect on handicapped persons or any class 
of handicapped persons unless (i) the test or criterion, as used by the 
recipient, has been validated as a predictor of success in the education 
program or activity in question and (ii) alternate tests or criteria 
that have a less disproportionate, adverse effect are not shown by the 
Secretary to be available.
    (3) Shall assure itself that (i) admissions tests are selected and 
administered so as best to ensure that, when a test is administered to 
an applicant who has a handicap that impairs sensory, manual, or 
speaking skills, the test results accurately reflect the applicant's 
aptitude or achievement level or whatever other factor the test purports 
to measure, rather than reflecting the applicant's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the test purports to measure); (ii) admissions tests that are 
designed for persons with impaired sensory, manual, or speaking skills 
are offered as often and in as timely a manner as are other admissions 
tests; and (iii) admissions tests are administered in facilities that, 
on the whole, are accessible to handicapped persons; and
    (4) Except as provided in paragraph (c) of this section, may not 
make preadmission inquiry as to whether an applicant for admission is a 
handicapped person but, after admission, may take inquiries on a 
confidential basis as to handicaps that may require accommodation.
    (c) Preadmission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination pursuant 
to Sec. 15b.8(a) or when a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity pursuant to 
Sec. 15b.8(b), the recipient may invite applicants for admissions to 
indicate whether and to what extent they are handicapped: Provided, That 
(1) the recipient states clearly on any written questionnaire used for 
this purpose or makes clear orally if no written questionnaire is used 
that the information requested is intended for use solely in connection 
with its remedial action obligations or its voluntary action efforts; 
and (2) the recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential, that 
refusal to provide it will not subject the applicant to any adverse 
treatment, and that it will be used only in accordance with this part.
    (d) Validity studies. For the purpose of paragraph (b)(2) of this 
section, a recipient may base prediction equations on first year grades, 
but shall conduct periodic validity studies against the criterion of 
overall success in the education program or activity in question in 
order to monitor the general validity of the test scores.

[[Page 435]]



Sec. 15b.31  Treatment of students.

    (a) General. No qualified handicapped student shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any academic, 
research, occupational training, housing, health, insurance, counseling, 
financial aid, physical education, athletics, recreation, 
transportation, other extracurricular, other postsecondary education 
aid, benefits, or services to which this subpart applies.
    (b) A recipient to which this subpart applies that considers 
participation by students in education programs or activities not 
operated wholly by the recipient as part of, or equivalent to, an 
education program or activity operated by the recipient shall assure 
itself that the other education program or activity, as a whole, 
provides an equal opportunity for the participation of qualified 
handicapped persons.
    (c) A recipient to which this subpart applies may not, on the basis 
of handicap, exclude any qualified handicapped student from any course, 
course of study, or other part of its education program or activity.
    (d) A recipient to which this subpart applies shall operate its 
programs or activities in the most integrated setting appropriate.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.32  Academic adjustments.

    (a) Academic requirements. A recipient to which this subpart applies 
shall make such modifications to its academic requirements as are 
necessary to ensure that such requirements do not discriminate or have 
the effect of discriminating on the basis of handicap, against a 
qualified handicapped applicant or student. Academic requirements that 
the recipient can demonstrate are essential to the instruction being 
pursued by such student or to any directly related licensing requirement 
will not be regarded as discriminatory within the meaning of this 
section. Modifications may include changes in the length of time 
permitted for the completion of degree requirements, substitution of 
specific courses required for the completion of degree requirements, and 
adaptation of the manner in which specific courses are conducted.
    (b) Other rules. A recipient to which this subpart applies may not 
impose upon handicapped students other rules, such as the prohibition of 
tape recorders in classrooms or of dog guides in campus buildings, that 
have the effect of limiting the participation of handicapped students in 
the recipient's education program or activity.
    (c) Course examinations. In its course examinations or other 
procedures for evaluating students' academic achievement, a recipient to 
which this subpart applies shall provide such methods for evaluating the 
achievement of students who have a handicap that impairs sensory, 
manual, or speaking skills as will best ensure that the results of the 
evaluation represent the students' achievements in the course, rather 
than reflecting the students' impaired sensory, manual, or speaking 
skills (except where such skills are the factors that the test purports 
to measure).
    (d) Auxiliary aids. (1) A recipient to which this subpart applies 
shall take such steps as are necessary to ensure that no handicapped 
student is denied the benefits of, excluded from participation in, or 
otherwise subjected to discrimination because of the absence of 
educational auxiliary aids for students with impaired sensory, manual, 
or speaking skills.
    (2) Auxiliary aids may include taped texts, interpreters or other 
effective methods of making orally delivered materials available to 
students with hearing impairments, readers in libraries for students 
with visual impairments, classroom equipment adapted for use by students 
with manual impairments, and other similar services and actions. 
Recipients need not provide attendants, individually prescribed devices, 
readers for personal use or study, or other devices or services of a 
personal nature.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.33  Housing.

    (a) Housing provided by the recipient. A recipient that provides 
housing to its nonhandicapped students shall provide

[[Page 436]]

comparable, convenient, and accessible housing to handicapped students 
at the same cost as to others. At the end of the transition period 
provided for in subpart C, such housing shall be available in sufficient 
quantity and variety so that the scope of handicapped students' choice 
of living accommodations is, as a whole, comparable to that of 
nonhandicapped students.
    (b) Other housing. A recipient that assists any agency, 
organization, or person in making housing available to any of its 
students shall take such action as may be necessary to assure itself 
that such housing is, as a whole, made available in a manner that does 
not result in discrimination on the basis of handicap.



Sec. 15b.34  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped persons, a recipient to which this 
subpart applies may not, (i) on the basis of handicap, provide less 
assistance than is provided to nonhandicapped persons, limit eligibility 
for assistance, or otherwise discriminate or (ii) assist any entity or 
person that provides assistance to any of the recipient's students in a 
manner that discriminates against qualified handicapped persons on the 
basis of handicap.
    (2) A recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established under wills, trusts, bequests, or similar legal instruments 
that require awards to be made on the basis of factors that discrimate 
or have the effect of discriminating on the basis of handicap only if 
the overall effect of the award of scholarships, fellowships, and other 
forms of financial assistance is not discriminatory on the basis of 
handicap.
    (b) Assistance in making available outside employment. A recipient 
that assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that such 
employment opportunities, as a whole, are made available in a manner 
that would not violate subpart B if they were provided by the recipient.
    (c) Employment of students by recipients. A recipient that employs 
any of its students may not do so in a manner that violates subpart B.



Sec. 15b.35  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
to any of its students, a recipient to which this subpart applies may 
not discriminate on the basis of handicap. A recipient that offers 
physical education courses or that operates or sponsors intercollegiate, 
club, or intramural athletics shall provide to qualified handicapped 
students an equal opportunity for participation in these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different only if 
separation or differentiation is consistent with the requirements of 
Sec. 15b.31(d) and only of no qualified handicapped student is denied 
the opportunity to compete for teams or to participate in courses that 
are not separate or different.
    (b) Counseling and placement services. A recipient to which this 
subpart applies that provides personal, academic, or vocational 
counseling, guidance, or placement services to its students shall 
provide these services without discrimination on the basis of handicap. 
The recipient shall ensure that qualified handicapped students are not 
counseled toward more restrictive career objectives than are 
nonhandcapped students with similar interests and abilities. This 
requirement does not preclude a recipient from providing factual 
information about licensing and certification requirements that may 
present obstacles to handicapped persons in their pursuit of particular 
careers.
    (c) Social organizations. A recipient that provides significant 
assistance to fraternities, sororities, or similar organizations shall 
assure itself that the membership practices of such organizations do not 
permit discrimination otherwise prohibited by this subpart.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]

[[Page 437]]



               Subpart F_Other Aid, Benefits, or Services



Sec. 15b.36  Applicability.

    Subpart F applies to aid, benefits, or services, other than those 
covered by subparts D and E, that receive Federal financial assistance 
provided by the Department of Agriculture after the effective date of 
this part.

[47 FR 25470, June 11, 1982, as amended at 55 FR 52139, Dec. 19, 1990; 
68 FR 51343, Aug. 26, 2003]



Sec. 15b.37  Auxiliary aids.

    (a) A recipient to which this subpart applies that employs fifteen 
or more persons shall provide appropriate auxiliary aids to persons with 
impaired sensory, manual, or speaking skills, where necessary to afford 
such persons an equal opportuntiy to benefit from the service in 
question.
    (b) The Secretary may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (c) For the purpose of this section, auxiliary aids may include 
Brailled and taped material, interpreters, and other aids for persons 
with impaired hearing or vision.



Sec. 15b.38  Health care facilities.

    (a) Communications. A recipient that provides notice concerning 
benefits or services or written material concerning waivers of rights or 
consent to treatment shall take such steps as are necessary to ensure 
that qualified handicapped persons, including those with impaired 
sensory or speaking skills, are not denied effective notice because of 
their handicap.
    (b) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall establish a 
procedure for effective communication with persons with impaired hearing 
for the purpose of providing emergency health care.
    (c) Drug and alcohol addicts. A recipient to which this subpart 
applies that operates a general hospital or outpatient facility may not 
discriminate in admission or treatment against a drug or alcohol abuser 
or alcoholic who is suffering from a medical condition, because of the 
person's drug or alcohol abuse or alcoholism.



Sec. 15b.39  Education of institutionalized persons.

    A recipient to which this subpart applies that operates or 
supervises a program or activity that provides aid, benefits, or 
services for persons who are institutionalized because of handicap shall 
ensure that each qualified handicapped person, as defined in Sec. 
15b.3(n)(2), in its program or activity is provided an appropriate 
education, as defined in Sec. 15b.22(b). Nothing in this section shall 
be interpreted as altering in any way the obligations of recipients 
under subpart D.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.40  Food services.

    (a) Recipients which provide food services shall serve special 
meals, at no extra charge, to persons whose handicap restricts their 
diet. Recipients may require handicapped persons to provide medical 
certification that special meals are needed because of their handicap.
    (b) Where existing food service facilities are not completely 
accessible and usable, recipients may provide aides or use other equally 
effective methods to serve food to handicapped persons. Recipients shall 
provide all food services in the most integrated setting appropriate to 
the needs of handicapped persons.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



Sec. 15b.41  Multi-family rental housing.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination in multi-family rental 
housing.
    (b) New construction. (1) Recipients receiving assistance from the 
Department for multi-family rental housing projects constructed after 
the effective date of this part shall construct at least five percent of 
the units in the

[[Page 438]]

project or one unit, whichever is greater, to be accessible to or 
adaptable for physically handicapped persons. The requirement that five 
percent of the units in the project or at least one unit, whichever is 
greater, be accessible or adaptable may be modified if a recipient 
shows, through a market survey approved by the Department, that a 
different percentage of accessible or adaptable units is appropriate for 
a particular project and its service area.
    (i) The variety of units accessible to or adaptable for physically 
handicapped persons shall be comparable to the variety of units 
available in the project as a whole.
    (ii) No extra charge may be made for use of accessible or adaptable 
units.
    (iii) A recipient that operates multi-family rental housing projects 
on more than one site may not locate all accessible or adaptable units 
at one site unless only one accessible or adaptable unit is required.
    (2) Standards for accessibility are contained in subpart C and in 
appropriate regulations.
    (c) Existing facilities. Recipients receiving assistance from the 
Department for multi-family rental housing projects constructed prior to 
the effective date of this part shall assure that their facilities 
comply with the accessibility requirements established in Sec. 15b.18 
if a qualified handicapped person applies for admission. Necessary 
physical alterations made pursuant to such requirements shall be 
completed within a reasonable amount of time after the unit becomes 
available for occupancy by the qualified handicapped person. Subject to 
the availability of funds and fulfillment by the recipient of all 
program eligibility requirements, the Department may assist recipients 
to comply with accessibility requirements through methods such as (1) 
consideration of subsequent loan applications for purposes of making 
existing facilities accessible or for the construction of additional 
units which are accessbile and (2) consideration of approval to commit 
project reserve account funds for minor modifications in order to make 
existing facilities accessible.

[47 FR 25470, June 11, 1982, as amended at 68 FR 51343, Aug. 26, 2003]



                          Subpart G_Procedures



Sec. 15b.42  Procedures.

    The procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in 7 CFR 
15.5--15.11 and 15.60--15.143.

 Appendix A to Part 15b--List of Federal Financial Assistance From USDA

    The types of Federal financial assistance administered by the U.S. 
Department of Agriculture include but are not limited to the following:

------------------------------------------------------------------------
 Type of Federal Financial Assistance              Authority
------------------------------------------------------------------------
          Administered by the Agricultural Cooperative Service
 
------------------------------------------------------------------------
1. Technical assistance for            Cooperative Marketing Act of
 agricultural cooperatives.             1926, 7 U.S.C., Secs. 451-457.
 
--------------------------------------
           Administered by the Agricultural Marketing Service
 
------------------------------------------------------------------------
2. Federal-State marketing             Sec. 204(b) of the Agricultural
 improvement program.                   Marketing Act of 1946, 7 U.S.C.
                                        1623(b).
3. Market news service...............  Sec. 203(g) of the Agricultural
                                        Marketing Act of 1946, 7 U.S.C.
                                        1622(g); the Cotton Statistics
                                        and Estimates Act, as amended, 7
                                        U.S.C. 471-476; the Tobacco
                                        Statistics Act, as amended, 7
                                        U.S.C. 501-508; the Tobacco
                                        Inspection Act, 7 U.S.C. 511-
                                        511(q); the Naval Stores Act, 7
                                        U.S.C. 91-99; the Turpentine and
                                        Rosin Statistics Act, 7 U.S.C.
                                        2248; the United States Cotton
                                        Futures Act, 7 U.S.C. 15b; and
                                        the Peanut Statistics Act as
                                        amended, 7 U.S.C. 951-957.
 
------------------------------------------------------------------------

[[Page 439]]

 
            Administered by the Agricultural Research Service
 
------------------------------------------------------------------------
4. Agriculture research grants.......  Secs. 1 and 10 of the Act of June
                                        29, 1935, as amended, 7 U.S.C.
                                        427 and 427i; and 202-208 of the
                                        Agricultural Marketing Act of
                                        1946, as amended, 7 U.S.C. 1621-
                                        1627.
 
--------------------------------------
   Administered by the Agricultural Stabilization Conservation Service
 
------------------------------------------------------------------------
5. Price support programs operating    Agricultural Act of 1949, as
 through producer associations,         amended; 7 U.S.C. 1421-1447.
 cooperatives, and other recipients
 in which the recipient is required
 to furnish specified benefits to
 producers (e.g., tobacco, peanuts,
 sugar, cotton, rice, honey and
 soybeans price support programs).
6. Disaster feed donation programs...  Section 407 of the Agricultural
                                        Act of 1949, as amended, 7
                                        U.S.C. 1427.
 
------------------------------------------------------------------------
         Administered by the Cooperative State Research Service
 
------------------------------------------------------------------------
7. Payments under the Hatch Act......  Hatch Act of 1887, as amended, 7
                                        U.S.C. 361a-361i.
8. McIntire-Stennis cooperative        Act of October 10, 1962, as
 forestry research.                     amended, 16 U.S.C. 582a-582a-7.
9. Payments to 1890 colleges and       Sec. 1445 of the Food and
 Tuskegee Institute for research.       Agriculture Act of 1977, as
                                        amended, 7 U.S.C. 3222.
10. Native latex research............  Native Latex Commercialization
                                        and Economic Development Act of
                                        1978, 7 U.S.C. 178 et seq.
11. Alcohol Fuels research...........  Sec. 1419 of the Food and
                                        Agriculture Act of 1977, as
                                        amended, 7 U.S.C. 3154.
12. Animal Health Research...........  Sec. 1433 of the Food and
                                        Agriculture Act of 1977, as
                                        amended, 7 U.S.C. 3195.
13. Competitive research grants......  Sec. 2(b) of the Act of August 4,
                                        1965, as amended, 7 U.S.C.
                                        450i(b).
14. Experiment station research        Act of July 22, 1963, as amended,
 facilities.                            7 U.S.C. 390-390j.
15. Special research grants..........  Sec. 2(c) of the Act of August 4,
                                        1965, as amended, 7 U.S.C.
                                        450i(c).
16. Rural development research.......  Title V of the Rural Development
                                        Act of 1972, as amended, 7
                                        U.S.C. 2661 et. seq.
 
------------------------------------------------------------------------
                    Administered by Extension Service
 
------------------------------------------------------------------------
17. Cooperative extension work.......  Smith-Lever Act, as amended, 7
                                        U.S.C. 341-349; District of
                                        Columbia Public Postsecondary
                                        Education Reorganization Act,
                                        D.C. Code Secs. 31-1719; Rural
                                        Development Act of 1972, as
                                        amended, 7 U.S.C. 2661 et. seq.;
                                        Sec. 1444 of the Food and
                                        Agriculture Act of 1977, 7
                                        U.S.C. 3221.
 
--------------------------------------
               Administered by Farmers Home Administration
 
------------------------------------------------------------------------
18. Farm ownership loans to install    Sec. 303 of the Consolidated Farm
 or improve recreational facilities     and Rural Development Act, as
 or other nonfarm enterprises.          amended, 7 U.S.C. 1923.
19. Operating loans to install or      Sec. 312 of the Consolidated Farm
 improve recreational facilities or     and Rural Development Act, as
 other nonfarm enterprises.             amended, 7 U.S.C. 1942.
20. Soil and water conservation,       Sec. 304 of the Consolidated Farm
 (including pollution abatement         and Rural Development Act, as
 facilities), and recreational          amended, 7 U.S.C. 1924.
 facilities.
21. Financial and other assistance to  Sec. 203 of the Appalachian
 landowners, operators, or occupiers    Regional Development Act of
 to carry out land uses and             1965, as amended, 40 U.S.C. App.
 conservation.                          203.
22. Rural renewal, resource,           Secs. 31-35 of the Bankhead-Jones
 conservation development, land         Farm Tenant Act, as amended, 7
 conservation and utilization.          U.S.C. 1010-1035.
23. Watershed protection and flood     Watershed Protection and Flood
 prevention program.                    Prevention Act, as amended, 16
                                        U.S.C. 1001-1008.
24. Resource conservation and          Sec. 32(e) of the Bankhead-Jones
 development loans.                     Farm Tenant Act, as amended, 7
                                        U.S.C. 1011(e).
25. Farm labor housing loans.........  Sec. 514 of the Housing Act of
                                        1949, 42 U.S.C. 1484.
26. Farm labor housing grants........  Sec. 516 of the Housing Act of
                                        1949, as amended, 42 U.S.C.
                                        1486.
27. Rural rental housing for the       Sec. 515 of the Housing Act of
 elderly and families of low and        1949, as amended, 42 U.S.C.
 moderate income persons.               1485.
28. Rural cooperative housing........  Sec. 515 of the Housing Act of
                                        1949, as amended, 42 U.S.C.
                                        1485.
29. Rural housing site loans.........  Sec. 524 of the Housing Act of
                                        1949, as amended, 42 U.S.C.
                                        1490d.
30. Technical and supervisory          Sec. 525 of the Housing Act of
 assistance grants.                     1949, as amended, 42 U.S.C.
                                        1490e.

[[Page 440]]

 
31. Technical assistance grants......  Sec. 523 of the Housing Act of
                                        1949, as amended, 42 U.S.C.
                                        1490c.
32. Rural housing self-help site       Sec. 523 of the Housing Act of
 loans.                                 1949, as amended, 42 U.S.C.
                                        1490c.
33. Mutual self-help housing.........  Sec. 523 of the Housing Act of
                                        1949, as amended, 42 U.S.C.
                                        1490c.
34. Water and waste facility loans     Sec. 306 of the Consolidated Farm
 and grants and community facility      and Rural Development Act, as
 loans and grants.                      amended, 7 U.S.C. 1926.
35. Rural and industrial loan program  Sec. 310(a) of the Consolidated
                                        Farm and Rural Development Act,
                                        as amended, 7 U.S.C. 1932(a).
36. Private business enterprise        Sec. 310(c) of the Consolidated
 grants.                                Farm and Rural Development Act,
                                        as amended, 7 U.S.C. 1932(c).
37. Area development assistance        Sec. 306(a)(11) of the
 planning grant program.                Consolidated Farm and Rural
                                        Development Act, as amended, 7
                                        U.S.C. 1926(a)(11).
38. Energy impacted area development   Sec. 601 of the Power Plant and
 assistance program.                    Industrial Fuel Use Act of 1978,
                                        42 U.S.C. 8401.
 
------------------------------------------------------------------------
          Administered by the Federal Grain Inspection Service
 
------------------------------------------------------------------------
39. Inspection administration and      U.S. Grain Standards Act, as
 supervision.                           amended, 7 U.S.C. 71-87; and,
                                        Sec. 203(h) of the Agricultural
                                        Marketing Act of 1946, 7 U.S.C.
                                        1621-1630.
 
--------------------------------------
             Administered by the Food and Nutrition Service
 
------------------------------------------------------------------------
40. Food stamp program...............  Food Stamp Act of 1964, as
                                        amended, 7 U.S.C. 2011-2027.
41. Special supplemental food program  Sec. 17 of the Child Nutrition
 for women, infants, and children       Act of 1966, as amended, 42
 (WIC).                                 U.S.C. 1786.
42. Commodity supplemental food        Sec. 32 of the Act of August 24,
 program.                               1935, as amended, 7 U.S.C. 612c;
                                        Sec. 416 of the Agricultural Act
                                        of 1949, as amended, 7 U.S.C.
                                        1431.
43. Food distribution program........  Sec. 416 of the Agricultural Act
                                        of 1949, as amended, 7 U.S.C.
                                        1431; Sec. 32 of the Act of
                                        August 24, 1935, as amended, 7
                                        U.S.C. 612c; Secs. 6, 13 and 17
                                        of the National School Lunch
                                        Act, as amended, 42 U.S.C. 1755,
                                        1761, 1766; Sec. 8 of the Child
                                        Nutrition Act of 1966, 42 U.S.C.
                                        1777; Sec. 709 of the Food and
                                        Agriculture Act of 1965, as
                                        amended, 7 U.S.C. 1446a-1.
44. National school lunch program....  National School Lunch Act, as
                                        amended, 42 U.S.C. 1751-1769a.
45. School breakfast program.........  Sec. 4 of the Child Nutrition Act
                                        of 1966, as amended, 42 U.S.C.
                                        1773.
46. Special milk program.............  Sec. 3 of the Child Nutrition Act
                                        of 1966, as amended, 42 U.S.C.
                                        1772.
47. Food service equipment assistance  Sec. 5 of the Child Nutrition Act
                                        of 1966, as amended, 42 U.S.C.
                                        1774; Sec. 5 of the National
                                        School Lunch Act, as amended, 42
                                        U.S.C. 1754.
48. Summer food service program......  Sec. 13 of the National School
                                        Lunch Act, as amended, 42 U.S.C.
                                        1761.
49. Child care food program..........  Sec. 17 of the National School
                                        Lunch Act, as amended, 42 U.S.C.
                                        1766.
50. Nutrition education and training   Secs. 18 and 19 of the Child
 program.                               Nutrition Act of 1966, 42 U.S.C.
                                        1787, 1788.
 
------------------------------------------------------------------------
         Administered by the Food Safety and Inspection Service
 
------------------------------------------------------------------------
51. Payments to States for the         Egg Products Inspection Act, 21
 inspection of egg handlers to insure   U.S.C. 1031-1056.
 that they are properly disposing of
 restricted eggs.
52. Financial and technical            Federal Meat Inspection Act, as
 assistance to States for meat          amended, 21 U.S.C. 601-695.
 inspection activities.
53. Financial and technical            Poultry Products Inspection Act,
 assistance to States for poultry       as amended, 21 U.S.C. 451-470.
 inspection activities.
54. Financial and technical            Talmadge-Aiken Act, 7 U.S.C. 450.
 assistance to States for meat and
 poultry inspection activities.
 
------------------------------------------------------------------------
                   Administered by the Forest Service
 
------------------------------------------------------------------------
55. Permits for use of National        Act of June 4, 1897, as amended,
 Forests and National Grasslands by     16 U.S.C. 551; Sec. 501 of the
 other than individuals at a nominal    Federal Land Policy Management
 or no charge.                          Act of 1976, 43 U.S.C. 1761;
                                        Term Permit Act of March 4,
                                        1915; as amended, 16 U.S.C. 497;
                                        Secs. 3 and 4 of the American
                                        Antiquities Act of June 8, 1906,
                                        16 U.S.C. 432; Sec. 32 of the
                                        Bankhead-Jones Farm Tenant Act,
                                        as amended, 7 U.S.C. 1011.
56. Permit for land use of Government- Sec. 7 of the Granger-Thye Act of
 owned improvements by other than       April 24, 1950, 16 U.S.C. 580d.
 individuals at a nominal charge.
57. Permits for disposal of common     Secs. 1-4 of the Act of July 31,
 varieties of mineral materials from    1947, as amended, 30 U.S.C. 601-
 lands under the Forest Service         603, 611.
 jurisdiction for use by other than
 individuals at a nominal or no
 charge.
58. Easements for use of National      Sec. 32 of the Bankhead-Jones
 Forests and Grasslands by other than   Farm Tenant Act, as amended, 7
 individuals at a nominal or no         U.S.C. 1011; Sec. 501 of the
 charge.                                Federal Land Policy and
                                        Management Act of 1976, 43
                                        U.S.C. 1761.
59. Easements for road rights-of-way   Sec. 2 of the Act of October 13,
 over lands administered by the         1964, 16 U.S.C. 533.
 Forest Service.

[[Page 441]]

 
60. Road rights-of-way...............  Federal Highway Act of 1958, 23
                                        U.S.C. 107, 317.
61. Rights-of-ways for wagon roads or  Sec. 501 of the Act of March 3,
 railroads.                             1899, 16 U.S.C. 525.
62. Timber granted free or at nominal  Sec. 1 of the Act of June 4,
 cost to any group.                     1897, as amended, 16 U.S.C. 551;
                                        Sec. 32 of the Bankhead-Jones
                                        Farm Tenant Act, as amended, 7
                                        U.S.C. 1011.
63. Transfer for fire-lookout towers,  Sec. 5 of the Act of June 20,
 improvements and land to States        1958, 16 U.S.C. 565b.
 political subdivisions.
64. Payment of 25 percent of National  Act of May 23, 1908, as amended,
 Forest receipts to States for          16 U.S.C. 500.
 schools and roads.
65. Payment to Minnesota from          Sec. 5 of the Act of June 22,
 National Forest receipts of a sum      1948, as amended, 16 U.S.C.
 based on a formula.                    577g, 577g-1.
66. Payment of 25 percent of net       Sec. 33 of the Bankhead-Jones
 revenues from Title III, Bankhead-     Farm Tenant Act, as amended, 7
 Jones Farm Tenant Act lands to         U.S.C. 1012.
 counties for schools and road
 purposes.
67. Cooperative action to protect,     Cooperative Forestry Assistance
 develop, manage, and utilize forest    Act of 1978, 16 U.S.C. 2101-
 resources on State and private lands.  2111.
68. Advance of funds for cooperative   Sec. 20 of the Granger-Thye Act
 research.                              of April 24, 1950, 16 U.S.C.
                                        581i-1.
69. Grants for support of scientific   Act of September 6, 1958, 42
 research.                              U.S.C. 1891-1893.
70. Research cooperation.............  Forest and Rangeland Renewable
                                        Resources Research Planning Act
                                        of 1974, as amended, 16 U.S.C.
                                        1600-1614.
71. Youth conservation corps State     Act of August 13, 1970, as
 grant program.                         amended, 16 U.S.C. 1701-1706.
72. Young adult conservation corps     Secs. 801-809 of the
 State grant program.                   Comprehensive Employment and
                                        Training Act, as amended, 29
                                        U.S.C. 991-999.
73. Grants to Maine, Vermont, and New  Older Americans Act of 1965, as
 Hampshire for the purpose of           amended, 42 U.S.C. 3001-3057g.
 assisting economically disadvantaged
 citizens over 55 years of age.
74. Senior community service           Sec. 902(b)(2) of Title IX of the
 employment program (SCSEP).            Older Americans Amendments of
                                        1975, 42 U.S.C.
 
------------------------------------------------------------------------
        Administered by the Rural Electrification Administration
 
------------------------------------------------------------------------
75. Rural electrification and rural    Rural Electrification Act of
 telephone programs.                    1963, as amended, 7 U.S.C. 901-
                                        950b.
76. CATV, community facilities         Secs. 306 and 310B of the
 program.                               Consolidated Farm and Rural
                                        Development Act of 1979, 7
                                        U.S.C. 1926, 1932.
 
------------------------------------------------------------------------
           Administered by Science and Education Program Staff
 
------------------------------------------------------------------------
77. Higher education.................  Sec. 22 of the Act of June 29,
                                        1935, as amended, 7 U.S.C. 329;
                                        Sec. 1417 of the Food and
                                        Agriculture Act of 1977, 7
                                        U.S.C. 3152.
 
--------------------------------------
              Administered by the Soil Conservation Service
 
------------------------------------------------------------------------
78. Soil and water conservation......  Secs. 1-6 and 17 of the Soil
                                        Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q.
79. Plant materials for conservation.  Secs. 1-6 and 17 of the Soil
                                        Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q.
80. Resource, conservation and         Secs. 31 and 32 of the Bankhead-
 development.                           Jones Farm Tenant Act, as
                                        amended, 7 U.S.C. 1010, 1111;
                                        Secs. 1-6 and 17 of the Soil
                                        Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q.
81. Watershed protection and flood     Watershed Protection and Flood
 prevention.                            Prevention Act, as amended, 16
                                        U.S.C. 1001-1008.
82. Great plains conservation........  Secs. 1-6 and 17 of the Soil
                                        Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q.
83. Soil survey......................  Secs. 1-6 and 17 of the Soil
                                        Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q.
84. River basin surveys and            Sec. 6 of the Watershed
 investigations.                        Protection and Flood Prevention
                                        Act, 16 U.S.C. 1006.
85. Snow survey and water supply       Secs. 1-6 and 17 of the Soil
 forecasting.                           Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q.
86. Land inventory and monitoring....  Secs. 1-6 and 17 of the Soil
                                        Conservation and Domestic
                                        Allotment Act, as amended, 16
                                        U.S.C. 590a-590f, 590q; Sec. 302
                                        of the Rural Development Act of
                                        1972, 7 U.S.C. 1010a.
87. Resource appraisal and program     Soil and Water Resources
 development.                           Conservation Act of 1977, 16
                                        U.S.C. 2001-2009.
88. Rural clean water program........  Clean Water Act, 33 U.S.C. 1251-
                                        1376.
89. Rural abandoned mine program.....  Secs. 406-413 of the Surface
                                        Mining Control and Reclamation
                                        Act of 1977, 30 U.S.C. 1236-
                                        1243.

[[Page 442]]

 
90. Emergency watershed protection...  Sec. 7 of the Act of June 28,
                                        1938, as amended, 33 U.S.C. 701b-
                                        1; Sec. 403, Agriculture Credit
                                        Act of 1978, 16 U.S.C. 2203.
91. Eleven authorized watershed        Sec. 13 of the Act of December
 projects.                              22, 1944, 58 Stat. 905.
 
------------------------------------------------------------------------
              Administered by the Office of Transportation
 
------------------------------------------------------------------------
92. Transportation services..........  Sec. 201 of the Agricultural
                                        Adjustment Act of 1938, 7 U.S.C.
                                        1291; Sec. 203(j) of the
                                        Agricultural Marketing Act of
                                        1946, as amended, 7 U.S.C.
                                        1622(l); Sec. 104 of the
                                        Agricultural Trade Development
                                        and Assistance Act of 1954, as
                                        amended, 7 U.S.C. 1704.
------------------------------------------------------------------------


[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]



PART 15d_NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE 
UNITED STATES DEPARTMENT OF AGRICULTURE--Table of Contents




Sec.
15d.1 Purpose.
15d.2 Discrimination prohibited.
15d.3 Compliance.
15d.4 Complaints.

    Authority: 5 U.S.C. 301.

    Source: 64 FR 66709, Nov. 30, 1999, unless otherwise noted.



Sec. 15d.1  Purpose.

    The purpose of this part is to set forth the nondiscrimination 
policy of the United States Department of Agriculture in programs or 
activities conducted by the Department, including such programs and 
activities in which the Department or any agency thereof makes available 
any benefit directly to persons under such programs and activities.



Sec. 15d.2  Discrimination prohibited.

    (a) No agency, officer, or employee of the United States Department 
of Agriculture shall, on the ground of race, color, religion, sex, age, 
national origin, marital status, familial status, sexual orientation, or 
disability, or because all of part of an individual's income is derived 
from any public assistance program, exclude from participation in, deny 
the benefits of, or subject to discrimination any person in the United 
States under any program or activity conducted by the United States 
Department of Agriculture.
    (b) No person shall be subjected to reprisal for opposing any 
practice prohibited by this part or for filing a complaint or 
participating in any other manner in a proceeding under this part.



Sec. 15d.3  Compliance.

    The Director of the Office of Civil Rights shall evaluate each 
agency's efforts to comply with this part and shall make recommendations 
for improving such efforts.



Sec. 15d.4  Complaints.

    (a) Any person who believes that he or she (or any specific class of 
individuals) has been, or is being, subjected to practices prohibited by 
this part may file on his or her own, or through an authorized 
representative, a written complaint alleging such discrimination. No 
particular form of complaint is required. The written complaint must be 
filed within 180 calendar days from the date the person knew or 
reasonably should have known of the alleged discrimination, unless the 
time is extended for good cause by the Director of the Office of Civil 
Rights or his or her designee. Any person who complains of 
discrimination under this part in any fashion shall be advised of his or 
her right to file a complaint as herein provided.
    (b) All complaints under this part should be filed with the Director 
of the Office of Civil Rights, United States Department of Agriculture, 
Washington, D.C. 20250, who will investigate the complaints. The 
Director of the Office of Civil Rights will make final determinations as 
to the merits of complaints under this part and as to the corrective 
actions required to resolve program complainants. The complaint

[[Page 443]]

will be notified of the final determination on his or her complaint.
    (c) Any complaint filed under this part alleging discrimination on 
the basis of disability will be processed under 7 CFR part 15e.



PART 15e_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE UNITED STATES DEPARTMENT OF 
AGRICULTURE--Table of Contents




Sec.
15e.101 Purpose.
15e.102 Application.
15e.103 Definitions.
15e.104-15e.109 [Reserved]
15e.110 Self-evaluation.
15e.111 Notice.
15e.112-15e.129 [Reserved]
15e.130 General prohibitions against discrimination.
15e.131-15e.139 [Reserved]
15e.140 Employment.
15e.141-15e.148 [Reserved]
15e.149 Program accessibility: Discrimination prohibited.
15e.150 Program accessibility: Existing facilities.
15e.151 Program accessibility: New construction and alterations.
15e.152-15e.159 [Reserved]
15e.160 Communications.
15e.161-15e.169 [Reserved]
15e.170 Compliance procedures
15e.171-15e.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 58 FR 57697, 57699, Oct. 26, 1993, unless otherwise noted.



Sec. 15e.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 15e.102  Application.

    This part (Sec. Sec. 15e.101--15e.170) applies to all programs or 
activities conducted by the agency, except for programs or activities 
conducted outside the United States that do not involve individuals with 
handicaps in the United States.



Sec. 15e.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TTD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a

[[Page 444]]

record of such an impairment, or is regarded as having such an 
impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
HIV disease (whether symptomatic or asymptomatic), and drug addiction 
and alcoholism.
    (2) Major life activities include functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1614.203(a)(6), which is made 
applicable to this part by Sec. 15e.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended. As used in 
this part, section 504 applies only to programs or activities conducted 
by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 15e.104-15e.109  [Reserved]



Sec. 15e.110  Self-evaluation.

    (a) The agency shall, by November 28, 1994, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.

[[Page 445]]

    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 15e.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this part.



Sec. Sec. 15e.112-15e.129  [Reserved]



Sec. 15e.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in according equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are no 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use

[[Page 446]]

criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 15e.131-15e.139  [Reserved]



Sec. 15e.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1614, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec. 15e.141-15e.148  [Reserved]



Sec. 15e.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 15e.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 15e.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 15e.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that result in such an 
alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods.--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing

[[Page 447]]

facilities and construction of new facilities, use of accessible rolling 
stock, or any other methods that result in making its programs or 
activities readily accessible to and usable by individuals with 
handicaps. The agency is not required to make structural changes in 
existing facilities where other methods are effective in achieving 
compliance with this section. The agency, in making alterations to 
existing buildings, shall meet accessibility requirements to the extent 
compelled by the Architectural Barriers Act of 1968, as amended (42 
U.S.C. 4151-4157), and any regulations implementing it. In choosing 
among available methods for meeting the requirements of this section, 
the agency shall give priority to those methods that offer programs and 
activities to qualified individuals with handicaps in the most 
integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 15e.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with handicaps. In cases where a physical alteration to an historic 
property is not required because of Sec. 15e.150(a)(2) or (a)(3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by January 24, 1994, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by November 26, 1996, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by May 26, 1994, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 15e.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 15e.152-15e.159  [Reserved]



Sec. 15e.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall

[[Page 448]]

give primary consideration to the requests of the individual with 
handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 15e.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, individuals with handicaps receive the benefits and 
services of the program or activity.



Sec. Sec. 15e.161-15e.169  [Reserved]



Sec. 15e.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Office of Advocacy and Enterprise, shall be 
responsible for coordinating implementation of this section and shall 
make the determinations described in paragraph (g) of this section. 
Complaints may be sent to Office of Advocacy and Enterprise, U.S. 
Department of Agriculture, Washington, DC 20250.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and

[[Page 449]]

    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 15e.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[58 FR 57697, 57699, Oct. 26, 1993, as amended at 58 FR 57697, Oct. 26, 
1993]



Sec. Sec. 15e.171-15e.999  [Reserved]



PART 15f_ADJUDICATIONS UNDER SECTION 741--Table of Contents




 Subpart A_What Is the Purpose of These Regulations and to Whom and to 
                      What Programs Do They Apply?

Sec.
15f.1 What is the purpose of these regulations?
15f.2 Who may use these procedures for processing their discrimination 
          complaint with USDA?
15f.3 If I want to use these procedures to have USDA consider my 
          complaint, how long will it take for USDA to make a decision?
15f.4 What do certain words and phrases in these regulations mean?

Subpart B_I Filed a Complaint With USDA Prior to July 1, 1997, How Do I 
     Request That USDA Consider My Complaint Using These Procedures?

15f.5 How do I request that USDA consider my complaint under these 
          procedures?
15f.6 What must I say or include in my Section 741 Complaint Request?
15f.7 May I be represented by an attorney?

Subpart C_What Happens After I Send in My Request? May I Seek To Resolve 
                    My Complaint Informally With OCR?

15f.8 What does the Docketing Clerk do with my request?
15f.9 What will the Director do to settle my Section 741 Complaint 
          Request when it is received?
15f.10 What if I do not want the Director to review my Section 741 
          Complaint Request and I want to proceed directly to a hearing?

Subpart D_If I Request a Hearing, What Will Happen? How Will the Hearing 
                              Be Conducted?

15f.11 Where must I file a hearing request and what happens to it?
15f.12 Am I entitled to a hearing in all circumstances?
15f.13 What is the function of the ALJ and who may communicate with him?
15f.14 What happens after I file a request for a hearing?
15f.15 What Happens after the Docketing Clerk notifies all parties?
15f.16 Although I request a hearing, may I request the ALJ to issue a 
          decision without a hearing?
15f.17 What happens before the hearing?
15f.18 May I depose potential witnesses?
15f.19 Other than myself, OCR, and the agency, may any other interested 
          party participate in the proceeding?
15f.20 May I subpoena witnesses to the hearing?
15f.21 What rules are applicable to the actual conduct of the hearing?
15f.22 What happens after the hearing?
15f.23 What will constitute the record for the final determination?
15f.24 When and in what form will a final determination be made on my 
          complaint by USDA?
15f.25 Will USDA pay my attorneys fees if I win?

[[Page 450]]

 Subpart E_What if I Do Not Agree With the Final Determination by USDA?

15f.26 May I seek judicial review of the final determination?

Subpart F_How Do I Count Days for Purposes of Deadlines and What Happens 
                  if I Miss a Deadline in These Rules?

15f.27 When is something considered ``filed'' as required by these rules 
          and to whom do I need to give copies of what I file?
15f.28 When I or someone else has to do something within a certain 
          number of days, how will USDA or the ALJ count the days?
15f.29 May I request an extension of a deadline or may I get relief for 
          missing a deadline in these rules?

    Authority: 5 U.S.C. 301; section 101(a) of Pub. L. 105-277, 112 
Stat. 2681; Reorganization Plan No. 2 of 1953 (5 U.S.C. App.).

    Source: 63 FR 67394, Dec. 4, 1998, unless otherwise noted.



 Subpart A_What Is the Purpose of These Regulations and to Whom and to 
                      What Programs Do They Apply?



Sec. 15f.1  What is the purpose of these regulations?

    These regulations provide the rights of complainants and the 
procedures for the processing of certain nonemployment related 
complaints alleging discrimination by USDA that were filed with USDA 
prior to July 1, 1997, as authorized under section 741(b) of the 
Agriculture, Rural Development, Food and Drug Administration, and 
Related Agencies Appropriations Act, 1999, enacted in Division A, 
section 101(a) of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act, 1999, Pub. L. 105-277.



Sec. 15f.2  Who may use these procedures for processing their 
discrimination complaint with USDA?

    A person may use these procedures if he or she filed a nonemployment 
related discrimination complaint with USDA prior to July 1, 1997, that 
alleged discrimination by USDA at any time during the period beginning 
January 1, 1981 and ending December 31, 1996 :
    (a) In violation of the Equal Credit Opportunity Act (15 U.S.C. 1691 
et seq.) in administering--
    (1) A farm ownership, farm operating, or emergency loan funded from 
the Agricultural Credit Insurance Program Account; or
    (2) A housing program established under title V of the Housing Act 
of 1949; or
    (b) In the administration of a commodity program or a disaster 
assistance program.



Sec. 15f.3  If I want to use these procedures to have USDA consider my 
complaint, how long will it take for USDA to make a decision?

    To the maximum extent practicable, a final determination under these 
procedures will be issued within 180 days after you have filed your 
request.



Sec. 15f.4  What do certain words and phrases in these regulations mean?

    Agency means the USDA agency, office, or committee that the 
complainant alleges has discriminated against the complainant in the 
administration of a covered program.
    ALJ means an Administrative Law Judge appointed pursuant to the 
Administrative Procedure Act (5 U.S.C. 557(b)(3), 3105) who presides 
over a hearing if requested by a complainant.
    ASCR means the Assistant Secretary for Civil Rights.
    Complainant means a person who requests that USDA consider his or 
her complaint under the procedures of this part.
    Complaint means a written document filed with USDA by a person 
alleging discrimination by USDA under a covered program.
    Covered program means:
    (1) A farm ownership, farm operating, or emergency loan funded from 
the Agricultural Credit Insurance Program Account;
    (2) A housing program established under title V of the Housing Act 
of 1949; or
    (3) A commodity program or disaster assistance program.
    Director means the Director of USDA, OCR, or his or her subordinate 
designee.
    Docketing clerk means an employee of the USDA Office of Civil 
Rights, designated to serve in this capacity.
    Eligible complaint means a complaint that was filed with the 
Department of

[[Page 451]]

Agriculture before July 1, 1997, and that alleges discrimination 
occurring at any time during the period beginning on January 1, 1981 and 
ending December 31, 1996--
    (1) In violation of the Equal Credit Opportunity Act (15 U.S.C. 1691 
et seq.) in administering--
    (i) A farm ownership, farm operating, or emergency loan funded from 
the Agricultural Credit Insurance Program Account; or
    (ii) A housing program established under title V of the Housing Act 
of 1949; or
    (2) In the administration of a commodity program or a disaster 
assistance program.
    Ex parte communication means a prohibited communication between a 
party to a proceeding and the ALJ outside of the presence of, or without 
notice to, the other parties to the proceeding, as explained more fully 
in Sec. 15f.13.
    Final determination means the final USDA decision made on your 
complaint under these rules.
    Hearing means a proceeding in which you may present your case before 
the ALJ.
    Interested party means a person, other than the complainant, OCR, 
and the agency, who has an interest in a proceeding under these rules 
and is admitted to the proceeding under Sec. 15f.20.
    OCR means the USDA Office of Civil Rights.
    Party or parties means the complainant, OCR, the agency, or a person 
admitted to the proceeding as an interested party.
    Secretary means the Secretary of Agriculture.
    Section 741 means section 741 of the Agriculture, Rural Development, 
Food and Drug Administration, and Related Agencies Appropriations Act, 
1999, enacted in Division A, section 101(a) of the Omnibus Consolidated 
and Emergency Supplemental Appropriations Act, 1999, Pub. L. 105-277.
    Section 741 Complaint Request (or Request) means a request by a 
complainant to consider his complaint under these rules.
    USDA means the United States Department of Agriculture.

[63 FR 67394, Dec. 4, 1998, as amended at 68 FR 27449, May 20, 2003]



Subpart B_I Filed a Complaint With USDA Prior to July 1, 1997, How Do I 
     Request That USDA Consider My Complaint Using These Procedures?



Sec. 15f.5  How do I request that USDA consider my complaint under 
these procedures?

    In order for USDA to consider your complaint under these procedures, 
a Section 741 Complaint Request must be docketed with the Docketing 
Clerk in the USDA OCR.
    (a) Do I have to file a ``Section 741 Complaint Request'' if USDA is 
already working on my complaint? Do I have to file again? If USDA OCR 
already reviewed or is working on your complaint, you will receive a 
notice by March 1, 1999, indicating that your complaint automatically 
has been docketed as a Section 741 Complaint Request for consideration 
under these procedures. The notice will provide you with the docket 
number assigned your Request and will give you further instructions with 
respect to what options you have or what actions you must take.
    (b) What if USDA is not working on my complaint? If I think USDA has 
reviewed or is working on my complaint, but do not receive a letter by 
March 1, 1999, what should I do? If USDA is not already working on your 
complaint, or you do not receive a letter from USDA by March 1, 1999, or 
within 30 days thereafter, you should file a Section 741 Complaint 
Request with the Docketing Clerk at USDA OCR.
    (c) How long do I have to file my Section 741 Complaint Request? You 
have until October 21, 2000 to file your Section 741 Complaint Request. 
If you did not receive a notice form USDA by October 21, 2000, that your 
Section 741 Complaint Request had been docketed automatically under 
paragraph (a) of this section, and you did not file a Section 741 
Complaint Request prior to October 21, 2000, under paragraph (b) of

[[Page 452]]

this section, then any Section 741 Complaint Request received by USDA 
after October 21, 2000, will not be accepted.

[63 FR 67394, Dec. 4, 1998, as amended at 68 FR 7412, Feb. 14, 2003]



Sec. 15f.6  What must I say or include in my Section 741 Complaint 
Request?

    If you must file a Section 741 Complaint Request, it should include 
a copy of your original complaint, a request in writing that USDA 
consider the complaint in accordance with these procedures, a statement 
as to when your complaint was filed with USDA, and any other evidence 
you consider necessary to prove that your complaint is an eligible 
complaint suitable for consideration under these procedures.



Sec. 15f.7  May I be represented by an attorney?

    (a) If your Section 741 Complaint Request is automatically docketed 
as set forth in Sec. 15f.5(a), and you already are represented by 
counsel of whom you have notified USDA, then this section does not 
apply.
    (b) If you are filing your Section 741 Complaint Request with USDA, 
and if you are represented by an attorney, your Section 741 Complaint 
Request should also include an authorization signed by you indicating 
that the attorney is entitled to represent you on your behalf. If USDA 
receives such an authorization, all documents in connection with 
consideration of your complaint under these procedures will be sent to 
your attorney and not to you.
    (c) Once your Section 741 Complaint Request is docketed with USDA, 
and you afterwards retain an attorney, you should forward an 
authorization to USDA signed by you indicating that the attorney is 
entitled to represent you on your behalf. If USDA receives such an 
authorization, all documents in connection with consideration of your 
complaint under these procedures will be sent to your attorney and not 
to you.



Subpart C_What Happens After I Send in My Section 741 Complaint Request? 
         May I Seek To Resolve My Complaint Informally With OCR?



Sec. 15f.8  What does the Docketing Clerk do with my Section 741 
Complaint Request?

    All Section 741 Complaint Requests docketed by the OCR Docketing 
Clerk will be referred to the Director for an informal review. The 
Director will determine if the complaint is one that can be resolved 
informally, and, if so, the Director will seek to resolve the complaint 
informally with the complainant.



Sec. 15f.9  What will the Director do to settle my Section 741 Complaint 
Request when it is received?

    The Director will review each Section 741 Complaint Request. If the 
Director finds that your complaint is an eligible complaint, the 
Director will: review all documents and evidence submitted by you; 
review all agency or CR files, if any exist, regarding the circumstances 
surrounding the alleged discrimination; review any damage claims; and 
seek any further clarification, if necessary, from either you or the 
agency. CR also may refer your eligible complaint for a formal 
investigation by the CR Program Investigation Division or by an outside 
contractor. Based on his or her review, the Director will either 
undertake negotiations with you to resolve the complaint; or inform you 
that CR will not settle the complaint and explain to you your options, 
including your right to request formal proceedings before an ALJ under 
subpart D of this part within 30 days of receipt of notice from the 
Director that CR will not settle the complaint. If the complaint is 
successfully resolved or settled, the Director will issue a final 
determination disposing of the matter. If you have received a notice 
that the Director will not settle the complaint prior to February 14, 
2003, you have until 90 days after February 14, 2003 to request formal 
proceedings under subpart D of this part. Any request for formal 
proceedings received by USDA after the deadlines set

[[Page 453]]

forth in this section will not be accepted.

[68 FR 7412, Feb. 14, 2003]



Sec. 15f.10  What if I do not want the Director to review my Section 741 
Complaint Request and I want to proceed directly to a hearing?

    If you do not want the Director to review your Section 741 Complaint 
Request, you may request a hearing following the procedures below in 
subpart D. You may request a hearing at any time during informal review 
or negotiations with the Director, or at any time during USDA 
consideration of your Section 741 Complaint Request.



Subpart D_If I Request a Hearing, What Will Happen? How Will the Hearing 
                              Be Conducted?



Sec. 15f.11  Where must I file a hearing request and what happens to it?

    If you desire a hearing, you must file a request for a hearing with 
the Docketing Clerk, citing the docket number assigned to your Section 
741 Complaint Request. When the Docketing Clerk receives your request 
for a hearing, your Section 741 Complaint Request will be assigned to an 
ALJ. The Docketing Clerk will send a notice of your hearing request to 
OCR and the agency, notifying them of the docket number and the assigned 
ALJ. The Docketing Clerk also will send you a notice of receipt of the 
hearing request that will inform you of the name of the assigned ALJ.



Sec. 15f.12  Am I entitled to a hearing in all circumstances?

    Under section 741, you have a right to a hearing as part of the 
process for USDA to render a final determination on your eligible 
complaint. However, if at any time the ALJ determines that your 
complaint is not an eligible complaint, he or she may dismiss your 
complaint with a final determination and USDA review of your complaint 
will then have been completed. You also are not entitled to a hearing if 
there are no material issues of fact in dispute between you and USDA. In 
other words, if the only dispute remaining is a question of law, you 
will not receive a hearing and the ALJ will make a final determination 
under Sec. 15f.16.



Sec. 15f.13  What is the function of the ALJ and who may communicate 
with him?

    (a) What are the powers of the ALJ? The ALJ is responsible for 
conducting a hearing at your request on your Section 741 Complaint 
Request. He or she will have all powers prescribed in these rules and 
will make a proposed determination on your complaint. The proposed 
determination then will become the final determination after 35 days, 
unless the ASCR reviews the proposed determination.
    (b) What is an ex parte communication? An ex parte communication is 
a communication by one party to a proceeding with the ALJ outside of the 
presence of, or without notice to, the other parties to a proceeding. Ex 
parte communications in the proceedings on your complaint are prohibited 
and will be handled as follows:
    (1) The ALJ will not engage in ex parte communications regarding the 
merits of a complaint with any party or with any person having any 
interest in the proceedings on the complaint, including OCR and any 
person in an advocacy or investigative capacity, at any time between the 
assignment of a hearing to him or her and the issuance of a proposed 
determination. This prohibition does not apply to:
    (i) Discussions of procedural matters related to the complaint; or
    (ii) Discussions of the merits of the complaint where all parties to 
the proceeding on the complaint have been given notice and an 
opportunity to participate.
    (2) In the case of a communication described in paragraph (b)(1)(ii) 
of this section, a memorandum of any such discussion shall be included 
in the hearing record.
    (3) No party to the proceeding or other interested person shall make 
or knowingly cause to be made to the ALJ an ex parte communication 
relevant to the merits of the complaint.
    (4) If the ALJ receives an ex parte communication in violation of 
this section, the ALJ will place in the written record:
    (i) All such written communications;

[[Page 454]]

    (ii) Memoranda stating the substance of all such oral 
communications; and
    (iii) All written responses to such communications, and memoranda 
stating the substance of any oral responses to such communications.
    (c) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section the ALJ may, 
to the extent consistent with the interests of justice and the policy 
underlying these proceedings, require the party or other interested 
person making the communication to show cause why such party's claim or 
interest in the complaint should not be dismissed, denied, disregarded, 
or otherwise adversely affected on account of such violation.

[63 FR 67394, Dec. 4, 1998, as amended at 68 FR 27449, May 20, 2003]



Sec. 15f.14  What happens after I file a request for a hearing?

    Within 20 days after you have filed your request for a hearing, ALJ 
shall file with the Docketing Clerk a notice stating the time, place, 
and manner of the hearing. The ALJ will have due regard for the public 
interest and the convenience and necessity of the parties in determining 
the time, place, and manner of the hearing. The notice will state 
whether the hearing will be conducted by telephone, audiovisual 
telecommunication, or personal attendance of any individual expected to 
participate in the hearing. The Docketing Clerk will send copies of the 
notice to the complainant and to all other parties to the proceeding.



Sec. 15f.15  What happens after the Docketing Clerk notifies all parties?

    The first step in this process involves a response to your hearing 
request by OCR. OCR will turn over its entire file on your complaint to 
the ALJ. OCR also will file a report with the ALJ stating its position 
with respect to whether or not your complaint is an eligible complaint, 
with reasons for its position, as well as stating its position with 
respect to the merits of your complaint. OCR must turn over its file and 
make its report on its position on your complaint within 35 days. OCR 
must provide a copy to you of anything it provides to the ALJ.



Sec. 15f.16  Although I request a hearing, may I request the ALJ to issue 
a decision without a hearing?

    (a) At any time after the parties have been notified of your hearing 
request, you may file a request with the ALJ to make a determination 
based on the written record. With your request, you should file any 
other arguments or evidence that you wish the ALJ to consider. The 
agency and OCR will have 35 days after you file your request to file any 
additional information, arguments, or evidence for the consideration of 
the ALJ. The ALJ may recommend dismissal of your complaint on the basis 
of a finding that it is not an eligible complaint; recommend denial of 
your eligible complaint on the merits; or make a proposed finding of 
discrimination on your eligible complaint and recommend to award you 
such relief as would be afforded under the applicable statute or 
regulation under which the eligible complaint was filed. The ALJ will 
make a proposed determination on your complaint based on the original 
complaint, the Section 741 Complaint Request, the OCR report, and any 
other evidence or written documents filed by the parties. The proposed 
determination will become the final determination 35 days after it is 
filed unless you request review of the proposed determination by the 
ASCR. The ASCR also may review the proposed determination on his or her 
own initiative. If the ASCR reviews the decision, he or she will allow 
the parties a reasonable opportunity to file briefs in support of or 
opposition to the proposed determination, and afterwards will issue a 
final determination within 35 days after you request review of the 
proposed determination.
    (b) To the maximum extent practicable, a final determination will be 
made within 180 days of your filing of the Section 741 Complaint 
Request.

[63 FR 67394, Dec. 4, 1998, as amended at 68 FR 27449, May 20, 2003]



Sec. 15f.17  What happens before the hearing?

    (a) Do I need to file another answer or pre-hearing brief? You may 
file a pre-hearing brief in support of your complaint.

[[Page 455]]

    (b) Will there be a pre-hearing conference? The ALJ may hold a pre-
hearing conference. If such a conference is to be held, the notice of 
the pre-hearing conference also will contain a notice to the parties of 
a time and date for the pre-hearing conference. Pre-hearing conferences 
normally will be held by telephone. Issues that may be addressed at the 
pre-hearing conference may include: simplification of the issues; the 
possibility of obtaining stipulations of fact and of the authenticity of 
documents; limitation of the number of witnesses; exchange of copies of 
hearing exhibits; negotiation, compromise or settlement of issues; 
identification of documents of which official notice will be requested; 
a schedule for completion of the actions decided upon at the conference; 
and any other matters that may aid and expedite the conclusion of the 
proceeding. No transcript of the pre-hearing conference will be made but 
the ALJ will issue a written memorandum summarizing the results of the 
pre-hearing conference.
    (c) What else may the ALJ ask for before the hearing? Prior to the 
hearing, the ALJ may require each of the parties to furnish any or all 
of the following: an outline of a party's position with respect to the 
complaint, the facts upon which the party intends to rely, the legal 
theories upon which the party intends to rely, copies of or a list of 
the documents and exhibits which the party anticipates on introducing at 
the hearing, and a list of anticipated witnesses.



Sec. 15f.18  May I depose potential witnesses?

    (a) A party may request an order from the ALJ to take the testimony 
of any person by deposition upon oral examination or written 
interrogatories before any officer authorized to administer oaths at the 
place of examination, for use as evidence. The application for the order 
must specify the reason and need for taking testimony by deposition.
    (b) The time, place, and manner of taking depositions will be as 
mutually agreed by the parties, or failing agreement, by order of the 
ALJ.
    (c) No testimony taken by depositions will be considered as part of 
the evidence in the hearing until such testimony is offered and received 
in evidence at the hearing, and ordinarily it will not be received into 
evidence if the deponent is present and can testify at the hearing. 
However, when the deponent is present and can testify, the deposition 
may be used to contradict or impeach the testimony of the deponent given 
at the hearing. Where you have requested a final determination by the 
ALJ based on the written record without a hearing, the ALJ, in his or 
her discretion, may receive depositions to supplement the record.
    (d) Each party will bear its own expenses associated with the taking 
of any deposition.



Sec. 15f.19  Other than myself, OCR, and the agency, may any other 
interested party participate in the proceeding?

    In most cases, there will be no parties to a proceeding under these 
rules, other than the complainant, OCR, and, and if it so desires, the 
agency. However, if there are circumstances in which additional parties 
have an interest in the proceeding, such as a bank which participated in 
a case involving a guaranteed loan, such other interested parties may be 
permitted to participate in the proceeding at the discretion of the ALJ.



Sec. 15f.20  May I subpoena witnesses to the hearings?

    No. USDA has no statutory authority to subpoena witnesses to testify 
at the hearing.



Sec. 15f.21  What rules are applicable to the actual conduct of the 
hearing?

    (a) Who may appear at the hearing? You may appear at the hearing in 
person or through your attorney. OCR or the agency will appear through a 
designated representative, which may include a USDA attorney. Any person 
who appears as counsel must conform to the standards of ethical conduct 
required of practitioners before the courts of the United States.
    (b) What happens if I fail to show up? If, after having received 
notice of the

[[Page 456]]

hearing under Sec. 15f.14, you fail to appear at the hearing without 
good cause, you will have waived your right to a hearing in the 
proceeding and the ALJ may proceed to issue a final determination based 
on the written record as provided for under Sec. 15f.16.
    (c) Which party presents its case first at the hearing? You, as the 
complainant, will proceed first at the proceeding, unless otherwise 
determined by the ALJ.
    (d) What kind of evidence will be admitted and how will it be 
handled?--(1) In general. The hearing will be conducted by the ALJ in 
the manner he or she determines most likely to obtain the facts relevant 
to the matter or matters at issue. The ALJ may confine the presentation 
of facts and evidence to pertinent matters and exclude irrelevant, 
immaterial, or unduly repetitious evidence, information, or questions. 
Each party will have the opportunity to present oral and documentary 
evidence, oral testimony of witnesses, and arguments in support of the 
party's position; controvert evidence relied on by any other party; and 
question all witnesses. The testimony of witnesses at a hearing will be 
on oath or affirmation and will be subject to cross-examination. Any 
evidence may be received by the ALJ without regard to whether that 
evidence could be admitted in judicial proceedings. Upon a finding of 
good cause, the ALJ may order that any witness be examined separately 
and apart from all other witnesses except those who may be parties to 
the proceeding.
    (2) Objections. (i) If a party objects to the admission of any 
evidence or to the limitation of the scope of any examination or cross-
examination or to any other ruling of the ALJ, the party must state 
briefly the grounds of such objection.
    (ii) Only objections made before the ALJ may subsequently be relied 
upon in the proceeding.
    (3) Depositions. The deposition of any witness will be admitted in 
the manner provided in and subject to the provisions of Sec. 15f.18(c) 
of these rules.
    (4) Exhibits. Unless the ALJ finds that the furnishing of copies is 
impracticable, two copies of each exhibit must be filed with the ALJ. A 
party submitting an exhibit must provide every other party (except 
interested parties) a copy of the exhibit one week before the hearing. A 
true copy of an exhibit may be substituted for the original.
    (5) Official records or documents. An official government record or 
document or entry therein, if admissible for any purpose, will be 
admissible in evidence without the production of the person who made or 
prepared the same, and will be prima facie evidence of the relevant 
facts stated therein. Such record or document must be evidenced by an 
official publication thereof or a copy certified by a person having 
legal authority to make such certification.
    (6) Official notice. Official notice will be taken of such matters 
as are judicially noted by the courts of the United States and of any 
other matter of technical, scientific, or commercial fact of established 
character if the parties are given adequate notice of matters so 
noticed, and the parties will be given adequate opportunity to show that 
such facts are erroneously noticed.
    (7) Offer of proof. Whenever evidence is excluded by the ALJ, the 
party offering such evidence may make an offer of proof, which must be 
included in the transcript. The offer of proof should consist of a brief 
statement describing the evidence excluded. If the evidence consists of 
a brief oral statement, it must be included in the transcript in its 
entirety. If the evidence consists of an exhibit, it must be marked for 
identification and inserted in the hearing record.
    (8) Interlocutory review. Interlocutory review of rulings by the ALJ 
will not be permitted.
    (9) Transcript or recording. (i) Hearings to be conducted by 
telephone will be recorded verbatim by electronic recording device. 
Hearings conducted by audio-visual telecommunication or by the personal 
attendance of parties and witnesses must be transcribed, unless the ALJ 
finds that recording the hearing verbatim would expedite the proceeding 
and the ALJ orders the hearing to be recorded verbatim. The ALJ must 
certify that to the best of his or her knowledge and belief any 
recording made pursuant to this paragraph with exhibits that were 
accepted into evidence is the record of the hearing.

[[Page 457]]

    (ii) If a hearing is recorded verbatim, a party requests the 
transcript of a hearing or part of a hearing, and the ALJ determines 
that the disposition of the proceeding would be expedited by a 
transcript of the hearing or part of a hearing, the ALJ shall order the 
verbatim transcription of the recording as requested by the party.
    (iii) The costs of transcription or verbatim recordings will be paid 
for by USDA and charged to the agency whose action gave rise to the 
complaint at issue. Copies of recordings or transcripts of hearings will 
be made available to any party at the actual cost of duplication.



Sec. 15f.22  What happens after the hearing?

    The ALJ will fix a reasonable time for filing posthearing briefs, 
proposed findings of fact and conclusions of law, and if permitted, 
reply briefs. Briefs should include a summary of evidence relied upon 
together with references to exhibit numbers and citations to the 
transcript and authorities relied upon. Briefs must be filed with the 
Docketing Clerk with copies to all parties.



Sec. 15f.23  What will constitute the record for the final determination?

    The original complaint, the Section 741 Complaint Request, the OCR 
report, the agency answer, the transcript of testimony, exhibits, 
affidavits, depositions, briefs, memoranda of law, and all pleadings, 
motions, papers, and requests filed in the proceeding, including 
rulings, and the proposed determination by an ALJ (if applicable) shall 
constitute the exclusive record for the final determination.



Sec. 15f.24  When and in what form will a final determination be made 
on my complaint by USDA?

    (a) The ALJ will make a proposed determination orally at the close 
of a hearing, or in writing within 35 days. The ALJ may recommend 
dismissal of your complaint on the basis of a finding that it is not an 
eligible complaint; recommend denial of your eligible complaint on the 
merits; or make a proposed finding of discrimination on your eligible 
complaint and recommend to award you such relief as would be afforded 
under the applicable statute or regulation under which the eligible 
complaint was filed. The proposed determination will become the final 
determination 35 days after it is made, unless you request review of the 
proposed determination by the ASCR. The ASCR also may review the 
proposed determination on his or her own initiative. If the ASCR reviews 
the proposed determination, he or she will allow the parties a 
reasonable opportunity to file briefs in support or opposition to the 
proposed determination, and afterwards file a final determination within 
35 days after you request review of the proposed determination.
    (b) To the maximum extent practicable, a final determination will be 
filed within 180 days after you filed your Section 741 Complaint 
Request.

[63 FR 67394, Dec. 4, 1998, as amended at 68 FR 27449, May 20, 2003]



Sec. 15f.25  Will USDA pay my attorneys fees if I win?

    If you prevail on your eligible complaint, either in whole or in 
part, after a proceeding before an ALJ under the procedures in this 
subpart, you may be eligible for an award of attorneys fees as a 
prevailing party under the Equal Access to Justice Act (EAJA), 5 U.S.C. 
504. To get an EAJA award, you must file an application for such fees 
with the ALJ within 30 days after the final determination is made. 
Instructions for filing an EAJA application and obtaining an EAJA award 
are contained in 7 CFR part 1, subpart J. The ALJ must follow those 
rules, and not these Section 741 Complaint Request rules, in making any 
EAJA award.



 Subpart E_What if I Do Not Agree With the Final Determination by USDA?



Sec. 15f.26  May I seek judicial review of the final determination?

    Section 741 provides that you have at least 180 days after a final 
determination denying your eligible complaint under these rules to seek 
judicial review in the United States Court of Federal Claims or a United 
States District Court of competent jurisdiction.

[[Page 458]]



Subpart F_How Do I Count Days for Purposes of Deadlines and What Happens 
                  if I Miss a Deadline in These Rules?



Sec. 15f.27  When is something considered ``filed'' as required by 
these rules and to whom do I need to give copies of what I file?

    A document, or other item, that must be ``filed'' under these rules 
is considered filed when postmarked or when it is received and date-
stamped by the Docketing Clerk.



Sec. 15f.28  When I or someone else has to do something within a 
certain number of days, how will USDA or the ALJ count the days?

    Unless otherwise specifically noted, a ``day'' refers to a calendar 
day and a document that must be filed by a certain date must either be 
postmarked on that date or received by the Docketing Clerk on that date. 
For documents that must be or are ``filed'' under these regulations, you 
count the number of days after filing starting with the day after the 
filing date as day one. For other time periods, you calculate the time 
period by counting the day after receipt by the party as day one. If the 
last day of a time period expires on a Saturday, a Sunday, or a Federal 
holiday, the last day of the time period will expire on the next 
business day.



Sec. 15f.29  May I request an extension of a deadline or may I get 
relief for missing a deadline in these rules?

    You may request that the ALJ extend a deadline in these rules, or 
afford you relief for missing a deadline, which he or she may do, 
consistent with the principles of sovereign immunity, the terms of any 
applicable statute, these rules, and the necessity of expeditious 
completion of the public business. It is the intent of USDA that the 
time deadlines expressed in these regulations be construed equitably to 
ensure resolution of eligible complaints, to the extent permitted by 
law.



PART 16_EQUAL OPPORTUNITY FOR RELIGIOUS ORGANIZATIONS--Table of Contents




Sec.
16.1 Purpose and applicability.
16.2 Rights of religious organizations.
16.3 Responsibilities of participating organizations.
16.4 Effect on State and local funds.
16.5 Compliance.

    Authority: 5 U.S.C. 301; E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., 
p. 258; E.O. 13280, 67 FR 77145, 3 CFR, 2002 Comp., p. 262.

    Source: 69 FR 41382, July 9, 2004, unless otherwise noted.



Sec. 16.1  Purpose and applicability.

    (a) The purpose of this part is to set forth USDA policy regarding 
equal opportunity for religious organizations to participate in USDA 
assistance programs for which other private organizations are eligible.
    (b) Except as otherwise specifically provided in this part, the 
policy outlined in this part applies to all recipients and subrecipients 
of USDA assistance to which 7 CFR parts 3015, 3016, or 3019 apply, and 
to recipients and subrecipients of Commodity Credit Corporation 
assistance that is administered by agencies of USDA.



Sec. 16.2  Rights of religious organizations.

    (a) A religious organization is eligible, on the same basis as any 
other eligible private organization, to access and participate in USDA 
assistance programs. Neither the Federal government nor a State or local 
government receiving USDA assistance shall, in the selection of service 
providers, discriminate for or against a religious organization on the 
basis of the organization's religious character or affiliation.
    (b) A religious organization that participates in USDA assistance 
programs will retain its independence and may continue to carry out its 
mission, including the definition, practice, and expression of its 
religious beliefs, provided that it does not use USDA direct assistance 
to support any inherently religious activities, such as worship, 
religious instruction, or proselytization. Among other things, a 
religious organization may:


[[Page 459]]


    (1) Use space in its facilities to provide services and programs 
without removing religious art, icons, scriptures, or other religious 
symbols,
    (2) Retain religious terms in its organization's name,
    (3) Select its board members and otherwise govern itself on a 
religious basis, and
    (4) Include religious references in its organizations' mission 
statements and other governing documents.

    (c) In addition, a religious organization's exemption from the 
Federal prohibition on employment discrimination on the basis of 
religion, set forth in section 702(a) of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-1, is not forfeited when an organization receives USDA 
assistance.



Sec. 16.3  Responsibilities of participating organizations.

    (a) An organization that participates in programs and activities 
supported by direct USDA assistance programs shall not discriminate 
against a program beneficiary or prospective program beneficiary on the 
basis of religion or religious belief.
    (b) Organizations that receive direct USDA assistance under any USDA 
program may not engage in inherently religious activities, such as 
worship, religious instruction, or proselytization, as part of the 
programs or services supported with direct USDA assistance. If an 
organization conducts such activities, the activities must be offered 
separately, in time or location, from the programs or services supported 
with direct assistance from USDA, and participation must be voluntary 
for beneficiaries of the programs or services supported with such direct 
assistance. These restrictions on inherently religious activities do not 
apply where USDA funds or benefits are provided to religious 
organizations as a result of a genuine and independent private choice of 
a beneficiary or through other indirect funding mechanisms, provided the 
religious organizations otherwise satisfy the requirements of the 
program.
    (c) Nothing in paragraphs (a) or (b) shall be construed to prevent 
religious organizations that receive USDA assistance under the Richard 
B. Russell National School Lunch Act, 42 U.S.C. 1751 et seq., the Child 
Nutrition Act of 1966, 42 U.S.C. 1771 et seq., or USDA international 
school feeding programs from considering religion in their admissions 
practices or from imposing religious attendance or curricular 
requirements at their schools.
    (d)(1) Direct USDA assistance may be used for the acquisition, 
construction, or rehabilitation of structures only to the extent that 
those structures are used for conducting USDA programs and activities 
and only to the extent authorized by the applicable program statutes and 
regulations. Direct USDA assistance may not be used for the acquisition, 
construction, or rehabilitation of structures to the extent that those 
structures are used by the USDA funding recipients for inherently 
religious activities. Where a structure is used for both eligible and 
inherently religious activities, direct USDA assistance may not exceed 
the cost of those portions of the acquisition, construction, or 
rehabilitation that are attributable to eligible activities in 
accordance with the cost accounting requirements applicable to USDA 
funds. Sanctuaries, chapels, or other rooms that an organization 
receiving direct assistance from USDA uses as its principal place of 
worship, however, are ineligible for USDA-funded improvements. 
Disposition of real property after the term of the grant or any change 
in use of the property during the term of the grant is subject to 
government-wide regulations governing real property disposition (see 7 
CFR parts 3015, 3016 and 3019).
    (2) Any use of direct USDA assistance funds for equipment, supplies, 
labor, indirect costs and the like shall be prorated between the USDA 
program or activity and any use for other purposes by the religious 
organization in accordance with applicable laws, regulations, and 
guidance.
    (3) Nothing in this section shall be construed to prevent the 
residents of housing receiving direct USDA assistance funds from 
engaging in religious exercise within such housing.



Sec. 16.4  Effect on State and local funds.

    If a State or local government voluntarily contributes its own funds 
to supplement activities carried out under programs governed by this 
part, the

[[Page 460]]

State or local government has the option to separate out the direct USDA 
assistance funds or commingle them. If the funds are commingled, the 
provisions of this part shall apply to all of the commingled funds in 
the same manner, and to the same extent, as the provisions apply to the 
direct USDA assistance.



Sec. 16.5  Compliance.

    USDA agencies will monitor compliance with this part in the course 
of regular oversight of USDA programs.



PART 17_SALES OF AGRICULTURAL COMMODITIES MADE AVAILABLE UNDER TITLE 
I OF THE AGRICULTURAL TRADE DEVELOPMENT AND ASSISTANCE ACT OF 1954, 
AS AMENDED--Table of Contents




Sec.
17.1 General.
17.2 Definition of terms.
17.3 Purchase authorizations.
17.4 Agents of the participant or importer.
17.5 Contracts between commodity suppliers and importers.
17.6 Discounts, fees, commissions and payments.
17.7 Notice of sale procedures.
17.8 Ocean transportation.
17.9 CCC payment to suppliers.
17.10 Refunds and insurance.
17.11 Recordkeeping and access to records.

    Authority: 7 U.S.C. 1701-1704, 1731-1736b, 1736f, 5676; E.O. 12220, 
45 FR 44245.

    Source: 62 FR 52932, Oct. 10, 1997, unless otherwise noted.



Sec. 17.1  General.

    (a) What this part covers. This part contains the regulations 
governing the financing of the sale and exportation of agricultural 
commodities by the Commodity Credit Corporation (CCC), through private 
trade channels to the maximum extent practicable, under the authority of 
title I of the Agricultural Trade Development and Assistance Act of 
1954, as amended (hereinafter called ``the Act'').
    (b) Agricultural commodities agreements. (1) Under the Act, the 
Government of the United States enters into Agricultural Commodities 
Agreements with governments of foreign countries or with private 
entities. These agreements cover financing of the sale and exportation 
of agricultural commodities, including certain ocean transportation 
costs.
    (2) Agricultural Commodities Agreements may provide that a 
participant will repay CCC for the financing extended by CCC either in 
dollars or in local currencies.
    (3) A private entity must maintain a bona fide business office in 
the United States and have a person, principal, or agent on whom service 
of judicial process may be had in the United States unless the General 
Sales Manager determines that there are adequate assurances of repayment 
to CCC for the financing extended by CCC.
    (c) Purchase authorizations. This part covers, among other things, 
the issuance by the General Sales Manager of purchase authorizations 
which authorize the participant to:
    (1) Purchase agricultural commodities; and
    (2) Procure ocean transportation therefor.
    (d) Financing. For amounts to be financed by CCC, CCC will pay the 
supplier of commodity or of ocean transportation in accordance with 
Sec. 17.9(a)(3). The cost of ocean freight or ocean freight 
differential will be financed by CCC only when specifically provided for 
in the purchase authorization.
    (e) Where information is available. General information about 
operations under this part is available from the Director, Pub. L. 480 
Operations Division, Foreign Agricultural Service, USDA, Washington, DC 
20250-1033. Information about financing operations under this part, 
including forms prescribed for use thereunder, is available from the 
Controller, Commodity Credit Corporation, USDA, 1400 Independence 
Avenue, SW, Washington, DC 20250-0581.

[62 FR 52932, Oct. 10, 1997, as amended at 63 FR 59692, Nov. 5, 1998]



Sec. 17.2  Definition of terms.

    Terms used in the regulations in this part are defined or identified 
as follows, subject to amplification in subsequent sections:
    Affiliate and associated company. Any legal entity which owns or 
controls, or

[[Page 461]]

is owned or controlled by, another legal entity. For a corporation, 
ownership of the voting stock is the controlling criterion. A legal 
entity is considered to own or control a second legal entity if--
    (1) The legal entity owns an interest of 50 percent or more in the 
second legal entity; or
    (2) The legal entity and one or more other legal entities, in which 
it owns an interest of 50 percent or more, together own an interest of 
50 percent or more in the second legal entity; or
    (3) The legal entity owns an interest of 50 percent or more in 
another legal entity which in turn owns an interest of 50 percent or 
more in the second legal entity.
    CCC. The Commodity Credit Corporation, USDA.
    Commodity. An agricultural commodity produced in the United States, 
or product thereof produced in the United States, as specified in the 
applicable purchase authorization.
    Controller. The Controller, Commodity Credit Corporation, or the 
Controller's designee.
    Copy. A photocopy or other type of copy of an original document 
showing all data shown on the original, including signature or the name 
of the person signing the original or, if the signature or name is not 
shown on the copy, a statement that the original was signed.
    Delivery. The transfer to or for the account of an importer of 
custody and right of possession of the commodity at U.S. ports or 
Canadian transshipment points in accordance with the delivery terms of 
the contract and purchase authorization. For purposes of financing, 
delivery is deemed to occur as of the on-board date shown on the ocean 
bill of lading.
    Destination country The foreign country to which the commodity is 
exported.
    Director. The Director, Pub. L. 480 Operations Division, Foreign 
Agricultural Service.
    Expediting services. Services provided to the vessel owner at the 
discharge port in order to facilitate the discharge and sailing of the 
vessel; this may include assisting with paperwork, obtaining permits and 
inspections, supervision and consultation.
    FAS. The Foreign Agricultural Service, USDA.
    FSA. The Farm Service Agency, USDA.
    FSA Office. The office designated in the purchase authorization to 
administer this financing operation on behalf of CCC.
    Finance. To expend CCC funds, whether or not the participant is 
required to repay the funds to CCC. For example, this part refers to CCC 
``financing'' both the ocean freight differential, which the participant 
does not repay, and the commodity cost, which the participant does 
repay.
    Form CCC-106. The form entitled ``Advice of Vessel Approval.''
    Form CCC-329. The signed original of the form entitled ``Supplier's 
Certificate.''
    General Sales Manager and GSM. The General Sales Manager, FAS, or 
the General Sales Manager's designee.
    Importer. The person that contracts with the supplier for the 
importation of the commodity. The importer may be the participant or any 
person to which a participant has issued a subauthorization.
    Importing country. Any nation with which an agreement has been 
signed under the Act.
    Invitation for bids and IFB. A publicly advertised request for 
offers.
    Legal entity includes, but is not limited to, an individual (except 
that an individual and his or her spouse and their minor children are 
considered as one legal entity), partnership, association, company, 
corporation and trust.
    Letter of credit. An irrevocable commercial letter of credit issued, 
confirmed, or advised by a banking institution in the United States and 
payable in U.S. dollars.
    Local currency. The currency of the importing or destination 
country.
    Notice of arrival. A written notice in accordance with Sec. 17.8(g) 
stating that the vessel has arrived at the first port of discharge.
    Ocean bill of lading--(1) In the case of cargo carried on a vessel 
other than LASH barges: An ``on-board'' bill of lading, or a bill of 
lading with an ``on-board'' endorsement, which is dated and signed or 
initialed on behalf of the carrier; or

[[Page 462]]

    (2) In the case of cargo carried in a LASH barge: (i) For the 
purpose of financing commodity price, an ``on-board'' bill of lading 
showing the date the commodity was loaded on board barges, which is 
dated and signed or initialed on behalf of the carrier, or a bill of 
lading or a LASH barge bill of lading with an ``on-board barge'' 
endorsement which is dated and signed or initialed on behalf of the 
carrier.
    (ii) For the purpose of financing ocean freight or ocean freight 
differential, a bill of lading which is dated and signed or initialed on 
behalf of the carrier indicating that the barge containing the cargo was 
placed aboard the vessel named in the Form CCC-106 not later than eight 
running days after the last LASH barge loading date (contract layday) 
specified in the Form CCC-106. This may be either an ``on board'' bill 
of lading or a bill of lading or a LASH barge bill of lading with an 
``on-board ocean vessel'' endorsement.
    (3) Documentary requirements for a copy of an ``ocean bill of 
lading'' refer to a non-negotiable copy thereof.
    Ocean freight contract. A charter party or liner booking note.
    Ocean transportation. Interchangeable with the term ``ocean 
freight''.
    Ocean transportation brokerage. Services provided by shipping agents 
related to their engagement to arrange ocean transportation and services 
provided by ships brokers related to their engagement to arrange 
employment of vessels.
    Ocean transportation-related services. Furnishing the following 
services: lightening, stevedoring, and bagging (whether these services 
are performed at load or discharge), and inland transportation, i.e., 
transportation from the discharge port to the designated inland point of 
entry in the destination country, if the discharge port is not located 
in the destination country.
    Participant. The collective term used to denote the importing 
country or the private entity with which an agreement has been 
negotiated under the Act.
    Person. An individual or other legal entity.
    Private entity. The nongovernmental legal entity with which an 
agreement has been signed under the Act.
    Purchase authorization. Form FAS-480, ``Authorization to Purchase 
Agricultural Commodities,'' issued to a participant under this part.
    Purchasing agent. Any person engaged by a participant to procure 
agricultural commodities.
    Secretary. The Secretary of Agriculture of the United States, or the 
Secretary's designee.
    Selling agent. A representative for the supplier of the commodity, 
who is not employed by or otherwise connected with the importer or the 
participant.
    Shipping agent. Any person engaged by a participant to arrange ocean 
transportation.
    Ships broker. Any person engaged by a supplier of ocean 
transportation to arrange employment of vessels.
    Supplier. Any person who sells a commodity to an importer under the 
terms of a purchase authorization, or who sells ocean transportation to 
an importer or supplier of the commodity under the terms of a purchase 
authorization.
    USDA. The U.S. Department of Agriculture.
    United States. The 50 States, the District of Columbia, and Puerto 
Rico.



Sec. 17.3  Purchase authorizations.

    (a) Issuance. After an agreement is signed, the GSM will issue a 
purchase authorization to the participant for each commodity included in 
the agreement.
    (b) Contents. Each purchase authorization includes the following 
information:
    (1) The commodity to be purchased and specifications, approximate 
quantity and maximum dollar amount authorized;
    (2) Contracting requirements;
    (3) The contracting period, during which suppliers and importers 
must enter into contracts; and the delivery period, during which the 
commodity must be delivered;
    (4) The terms of delivery to the importer;
    (5) Documentation required for CCC financing in addition to or in 
lieu of the documentation specified in Sec. 17.9;
    (6) Provisions relating to payment to CCC, if applicable;

[[Page 463]]

    (7) The address of the FSA office administering the financing 
operation on behalf of CCC;
    (8) The method of financing provided under the Agricultural 
Commodities Agreement;
    (9) Any provisions relating to financing by CCC in addition to or in 
lieu of those specified in this part;
    (10) Authorization to procure ocean transportation, and provisions 
relating to the financing of ocean freight or ocean freight 
differential, as applicable;
    (11) Any other provisions considered necessary by the General Sales 
Manager.
    (c) Applicability of this part. In addition to the provisions of a 
particular purchase authorization, each purchase authorization, unless 
otherwise provided, is subject to the provisions of this part to the 
same extent as if the provisions were fully set forth in the purchase 
authorization.
    (d) Modification or revocation. The General Sales Manager reserves 
the right at any time for any reason or cause whatsoever to supplement, 
modify or revoke any purchase authorization, including the termination 
of deliveries, if it is determined to be in the interest of the U.S. 
Government. CCC shall reimburse suppliers who would otherwise be 
entitled to be financed by CCC for costs which were incurred as a result 
of such action by the GSM in connection with firm sales or shipping 
contracts, and which were not otherwise recovered by the supplier after 
a reasonable effort to minimize such costs: Provided, however, That such 
reimbursement shall not be made to a supplier if the GSM determines that 
the GSM's action was taken because the supplier failed to comply with 
the requirements of the regulations in this part or the applicable 
purchase authorization; Provided further, That reimbursement to 
suppliers of ocean transportation shall not exceed the ocean freight 
differential when the purchase authorization provides only for financing 
the differential.
    (e) Subauthorizations. The participant may issue subauthorizations 
to importers consistent with the terms of the applicable purchase 
authorization. The participant, in subauthorizing, shall specify to 
importers all the provisions of the applicable purchase authorization 
which apply to the subauthorization.
    (f) Cotton textiles. (1) Except as provided in paragraph (f)(2) of 
this section, financing of textiles under this part is limited to cotton 
yarns and fabrics processed up to and including the dyed and printed 
state, and preshrinking. Any processing of such yarns and fabrics beyond 
this stage will be at the expense of the participant.
    (2) Purchase authorizations may permit cotton textiles processed 
beyond the stage described in paragraph (f)(1) of this section to be 
purchased, but the maximum financing by CCC is limited to the equivalent 
value of the cotton yarns and fabrics described in paragraph (f)(1) of 
this section, contained in the textiles, plus eligible ocean 
transportation costs.
    (3) Financing is available only for textiles manufactured entirely 
of U.S. cotton in the United States.



Sec. 17.4  Agents of the participant or importer.

    (a) General. (1) A participant or importer is not required to use a 
purchasing agent or shipping agent, or employ the services of any other 
agent, broker, consultant, or other representative (hereafter ``agent'') 
in connection with arranging the purchase of agricultural commodities 
under title I of the Act and arranging ocean transportation for such 
commodities. However, if an agent is used, the participant shall submit 
a written nomination of the agent to the Deputy Administrator, Export 
Credits, FAS, along with a copy of the proposed agreement between the 
participant or importer and such agent. The written nomination shall 
also specify the period of time to be covered by the nomination. A 
person may not act as agent for a participant or importer unless the 
Deputy Administrator, Export Credits, FAS, has provided a written 
statement that the nomination is accepted in accordance with the 
provisions of this section.
    (2) See Sec. 17.6(c) regarding commissions, fees, or other 
compensation of any kind to agents of a participant or importer.

[[Page 464]]

    (3) A freight agent employed by the Agency for International 
Development under titles II and III is not eligible to act as an agent 
for the participant or importer during the period of such employment. A 
subcontractor of such freight agent is not eligible to act as an agent 
for the participant or importer during the period of its subcontract.
    (b) Affiliate defined. For purposes of this section, the term 
affiliate has the meaning provided in Sec. 17.2 and, in addition, 
persons will also be considered to be affiliates if any of the following 
conditions are met:
    (1) There are any common officers or directors.
    (2) There is any investment by eligible commodity suppliers, selling 
agents, or persons engaged in furnishing ocean transportation or ocean 
transportation-related services for commodities provided under any title 
of the Act, section 416(b) of the Agricultural Act of 1949, or the Food 
for Progress Act of 1985, whether or not any part of the ocean 
transportation is financed by the U.S. Government, or by agents of such 
persons, or their officers or directors, in the agent of the participant 
or importer.
    (3) There is any investment by the agent of the participant or 
importer, or its officers or directors, in approved commodity suppliers; 
selling agents; or persons engaged in furnishing ocean transportation or 
ocean transportation-related services for commodities provided under any 
title of the Act, section 416(b) of the Agricultural Act of 1949, or the 
Food for Progress Act of 1985, whether or not any part of the ocean 
transportation is financed by the U.S. Government, or in agents of such 
persons. These conditions include those cases in which investment has 
been concealed by the utilization of any scheme or device to circumvent 
the purposes of this section but does not include investment in any 
mutual fund.
    (c) Information to be furnished. A person nominated to act as an 
agent of the participant or importer, and any independent contractor 
that may be hired by such person to perform functions of a shipping 
agent, shall furnish to the Deputy Administrator, Export Credits, FAS, 
the following information or documentation as may be applicable:
    (1) The names of all incorporators;
    (2) The names and titles of all officers and directors;
    (3) The names of all affiliates, including the names and titles of 
all officers and directors of each affiliate, and a description of the 
type of business in which the affiliate is engaged;
    (4) The names and proportionate share interest of all stockholders;
    (5) If beneficial interest in stock is held by other than the named 
shareholders, the names of the holders of the beneficial interest and 
the proportionate share of each;
    (6) The amount of the subscribed capital;
    (7) For USDA acceptance of a nomination covering services provided 
during each U.S. fiscal year (October 1-September 30), a written 
statement signed by such person:
    (i) Certifying that, during the U.S. fiscal year covered by USDA's 
acceptance of the nomination, the person has not engaged in, and will 
not engage in, supplying commodities under any title of the Act or the 
Food for Progress Act of 1985 or furnishing ocean transportation or 
ocean transportation-related services for commodities provided under any 
title of the Act, section 416(b) of the Agricultural Act of 1949, or the 
Food for Progress Act of 1985, whether any part of the ocean 
transportation is financed by the U.S. Government; and that the person 
has not served and will not serve as an agent of firms engaged in 
providing such commodities, ocean transportation and ocean 
transportation-related services;
    (ii) Certifying that, for ocean transportation brokerage services 
provided during the U.S. fiscal year covered by USDA's acceptance of the 
nomination, the person has not shared and will not share freight 
commissions with the participant, the importer, or any agent of the 
participant or the importer, whether CCC finances any part of the ocean 
freight. CCC will consider as sharing a commission a situation where the 
agent forgoes part or all of a commission and the supplier of ocean 
transportation pays a commission directly to the participant, the 
importer,

[[Page 465]]

or any other person on behalf of the participant or the importer; and
    (iii) Undertaking that, during the U.S. fiscal year covered by 
USDA's acceptance of the nomination, affiliates of such person have not 
engaged in and will not engage in the activities or actions prohibited 
in this paragraph (c)(7).
    (8) A certification that neither the person nor any affiliates has 
arranged to give or receive any payment, kickback, or illegal benefit in 
connection with the person's selection as agent of the participant or 
importer.
    (d) USDA acceptance. (1) USDA will consider accepting the nomination 
of a person to act as an agent of the participant or importer when the 
documents required to be submitted by this section are received by the 
Deputy Administrator, Export Credits, FAS.
    (2) USDA's acceptance of such nomination shall remain in effect for 
the period of time requested by the participant or such shorter period 
as the Deputy Administrator, Export Credits, FAS, may determine. USDA 
will withdraw such acceptance if the agent of the participant or 
importer, or any of the affiliates of such agent, violates the 
certifications or undertakings made pursuant to paragraphs (c) (7) and 
(8) of this section.
    (3) A person is required to submit the information and documentation 
required by Sec. 17.4(c) to support the person's first nomination to 
act as an agent of any participant or importer for each fiscal year. For 
subsequent nominations covering the same fiscal year, the person must 
provide a written certification that the information and documentation 
provided earlier are still accurate and complete, or must provide the 
details of any changes to previously submitted information.
    (e) Notification. The Deputy Administrator, Export Credits, FAS, 
shall promptly notify persons nominated as agents of the participant or 
importer, of the determination or of the need for further inquiry, and 
shall provide a written response within 30 calendar days of receipt of 
all the required documents. If USDA will not accept the nomination, the 
notification shall state the reasons therefor. The determination of the 
Deputy Administrator, Export Credits, FAS, is effective immediately and 
continues in effect pending the result of any appeal to the General 
Sales Manager.
    (f) Non-acceptance or withdrawal. (1) If USDA does not accept the 
nomination of a person, or if acceptance has been withdrawn pursuant to 
the provisions of this section, the person may, within 30 calendar days, 
present to the General Sales Manager, orally or in writing, any reasons 
as to why such action should not stand. Nothing in this paragraph shall 
be construed as to prohibit a person whose nomination has not been 
accepted or whose acceptance has been withdrawn by USDA from being 
nominated at a later time.
    (2) If, in the procurement of commodities made available under title 
I, Pub. L. 480, a participant or importer uses an agent whose nomination 
has not been accepted in writing by the Deputy Administrator, Export 
Credits, FAS, USDA may withhold sales approval.
    (3) If, in the shipping of commodities made available under title I, 
Pub. L. 480, a participant or importer uses an agent whose nomination 
has not been accepted in writing by the Deputy Administrator, Export 
Credits, FAS, USDA may withhold vessel approval or may deduct from the 
ocean freight differential to be paid, the amount of any commission to 
the agent in connection with the shipment.
    (g) No competitive advantage. A shipping agent may not take any 
action which would give a competitive advantage to any supplier of 
commodities or ocean transportation. This includes, but is not limited 
to, providing advance notice of IFB's or amendments, or selectively 
enforcing IFB or contract requirements.

[62 FR 52932, Oct. 10, 1997; 62 FR 63606, Dec. 1, 1997]



Sec. 17.5  Contracts between commodity suppliers and importers.

    (a) Commodity suppliers and selling agents. (1) Commodity suppliers 
must be determined to be eligible under the Pub. L. 480, title I program 
in order for their contracts to be eligible for CCC financing. A 
prospective commodity supplier must be engaged in the business of 
selling agricultural commodities for export from the United States.

[[Page 466]]

The commodity supplier must maintain a bona fide business office in the 
United States, and must have a person, principal or agent on whom 
service of judicial process may be had in the United States.
    (2) Persons who wish to participate as commodity suppliers shall 
submit the following information to the Foreign Agricultural Service, 
Stop 1033, USDA, 1400 Independence Ave., SW, Washington, DC 20250-1033:
    (i) A current financial statement of the prospective supplier, 
preferably an audited statement, as evidence of financial 
responsibility. Submission of a letter of reference from a bank is also 
encouraged.
    (ii) A statement containing general background information about the 
firm, including the names and titles of the chief executive officers and 
a description of the firm's experience as an exporter of U.S. 
agricultural commodities. Copies of bills of lading supporting this 
statement are also requested.
    (iii) Any other information requested relating to whether the 
prospective supplier is responsible and is able to perform its 
obligations under this part and the purchase authorization.
    (3) If, at the time the commodity supplier reports the sale it is 
determined that an agent employed or engaged by a commodity supplier to 
obtain a contract is not a selling agent as defined in Sec. 17.2, the 
sale will not be eligible for financing.
    (b) Eligibility for financing. To be eligible for financing, 
commodity contracts must comply with the following requirements unless 
otherwise specified in the purchase authorization.
    (1) Commodity contracts between suppliers and importers are 
considered to be conditioned on the approval by USDA of the contract 
price; conformance of the sale to the provisions of the purchase 
authorization; responsiveness of the offer to IFB terms; and compliance 
by the supplier and the selling agent, if any, with paragraph (a) of 
this section.
    (2) Importers and suppliers must enter into contracts within the 
contracting period specified in the purchase authorization. The 
contracts must provide for deliveries to the importer in accordance with 
the delivery terms and during the delivery period specified in the 
purchase authorization, or any amendment or modification thereto.
    (3) Contracts for a commodity, under a purchase authorization which 
limits delivery terms to f.o.b. or f.a.s., must be separate and apart 
from the contracts for ocean transportation of the commodity.
    (4) The supplier's sales price may not exceed the prevailing range 
of export market prices as applied to the terms of sale at the time of 
sale, as determined by USDA. The ``time of sale'' is the date and time 
specified in the IFB for receipt of offers; or the date of the contract 
amendment if the amendment affects the sale price, as determined by 
USDA. The contract price may not be on a cost plus a percentage-of-cost 
basis.
    (c) Contracting procedures--(1) Purchasing--general. (i) Importers 
must purchase commodities on the basis of IFB's.
    (ii) The participant shall maintain a record of all offers received 
from suppliers until the expiration of three years after final payment 
under contracts awarded under the purchase authorization. The GSM may 
examine these records or request specific information in connection with 
the offers.
    (2) Invitations for bids. The following conditions shall apply on 
all purchases of commodities on the basis of IFB's:
    (i) The General Sales Manager must approve the terms of the IFB 
before it is issued by the importer.
    (ii) The importer shall issue the IFB in the United States and shall 
open all offers in public in the United States at the time and place 
specified in the IFB.
    (iii) The IFB must permit submission of offers from all suppliers 
who meet the requirements of this subpart.
    (iv) The IFB may not preclude offers for shipment from any United 
States port(s) unless the purchase authorization provides for 
exportation only from certain ports.
    (v) The IFB may not establish minimum quantities to be offered or 
which will be considered.
    (vi) The IFB must stipulate the responsibility for each party for 
payment

[[Page 467]]

of any costs not eligible for financing by CCC.
    (vii) The IFB must be in compliance with this part, the purchase 
authorization, and sound commercial standards.
    (3) Contract awards. (i) The importer shall consider only offers 
which are responsive to the IFB and shall make awards either on the 
basis of the lowest commodity price(s) offered or on the basis of lowest 
landed cost. However, when vessels offered under the flag of the 
participant, the importing country or the destination country; or 
vessels controlled by the participant, the importing country or the 
destination country are to be used, the participant must purchase 
commodities for shipment on such vessels only on the basis of the lowest 
commodity price(s) offered. This limitation may, however, be waived by 
the GSM:
    (A) When the lowest commodity price(s) offered are in locations 
where vessels cannot reasonably be made available without a substantial 
increase in freight costs to the participant;
    (B) For small quantities offered at additional loading points (in 
aggregate not more than 15 percent of the total tonnage offered by a 
vessel); or
    (C) Where this limitation would conflict with the purposes of the 
program.
    (ii) For purposes of this section, ``lowest commodity price(s)'' 
means the lowest commodity price(s) offered for loading onto the type of 
vessel (dry bulk carrier, tanker, etc.) to be utilized to carry the 
commodity purchased.
    (iii) For purposes of this section, ``lowest landed cost'' means the 
combination of commodity price and ocean freight rate resulting in the 
lowest total cost to deliver the commodity to the importing country, 
considering the quantity which must be shipped on privately owned U.S.-
flag commercial vessels, as determined by the Director. Lowest landed 
cost may be defined on either a foreign flag or U.S. flag basis. Awards 
may not be made on the lowest landed cost basis unless IFB's are issued 
for commodity and ocean freight so that all commodity and ocean freight 
offers are reviewed simultaneously.
    (iv) Participants are encouraged to purchase commodities on the 
basis of lowest landed cost when U.S. flag vessels are to be used. If 
such commodity purchases are not made on the basis of lowest landed cost 
(U.S. flag), ocean freight differential payments will nonetheless be 
calculated on the rates of U.S. flag vessels which would represent the 
lowest landed cost.
    (v) Announcement of awards shall be made in the United States. The 
importer shall promptly submit to the Director copies of all offers 
received with a copy of the IFB which was issued. No sale can be 
approved for financing until this information has been received by FAS. 
The decision of the GSM shall be final regarding the responsiveness of 
offers to IFB terms in the awarding of contracts.
    (d) Contract quantity eligible for financing. The quantity eligible 
for financing in the contract between the supplier and the importer may 
not exceed that quantity approved by the Pub. L. 480 Operations 
Division, FAS, including any approved contract tolerance.
    (e) Contract disputes. Contracts between suppliers and importers 
should stipulate the responsibility of each party for payment of any 
costs not eligible for financing by CCC. Questions as to payment of 
ineligible costs should be resolved between the contracting parties.
    (f) Contract provisions. Each contract entered into for financing 
under this part is deemed to include all terms and conditions required 
by the regulations in this part.
    (g) Export Trade Act (Webb-Pomerene Law). A supplier who is a member 
of a Webb-Pomerene association and who enters into contracts with 
importers as a member of such an association shall so indicate in a 
statement on, or attached to, the copy of the supplier's detailed 
invoice referred to in Sec. 17.9(c)(2).



Sec. 17.6  Discounts, fees, commissions and payments.

    For purposes of this section, the term ``payment'' means a 
commission, fee or other compensation of any kind. The term ``other 
compensation of any kind'' includes anything given in return for any 
consideration, services, or benefits received or to be received.

[[Page 468]]

    (a) Discounts. If a contract provides for one or more discounts 
(including but not limited to trade or quantity discounts and discounts 
for prompt payment) whether expressed as such or as ``commissions'' to 
the importer, CCC will only pay the invoice amount after the discount 
(supplier's contracted price less all discounts).
    (b) Selling agents. (1) A supplier may not make a payment to a 
selling agent employed or engaged by the supplier to obtain a contract. 
This prohibition applies to any payment to a person who has acted as a 
selling agent to obtain a contract even though the payment may be for 
services performed that are not themselves services to obtain a 
contract.
    (2) A person is deemed to act ``to obtain a contract'' if the person 
acts on behalf of a commodity supplier to:
    (i) Influence a buyer to award a contract to the supplier;
    (ii) Give the supplier a competitive advantage in relation to other 
potential suppliers; or
    (iii) Influence CCC to approve a contract for financing under this 
part.
    (3) CCC will not consider acts which are purely ministerial in 
nature and do not require the exercise of personal influence, judgment, 
or discretion (such as attending bid openings or presenting offers at 
bid openings), or services to implement a contract after it has been 
entered into by the parties (such as handling documentation problems or 
contract disputes), as acts to obtain a contract.
    (c) Other prohibitions. (1) Suppliers of commodities or ocean 
transportation may not:
    (i) Pay a commission to the participant or importer; to any agency, 
including an agency of the government of the importing country or the 
destination country; or to a corporation owned or controlled by the 
participant or the government of the importing country or the 
destination country.
    (ii) Pay a commission to any affiliate of the participant, if the 
participant is a private entity;
    (iii) Make any payment to an agent of the participant or importer, 
in the person's capacity as such agent, other than ocean transportation 
brokerage commissions.
    (iv) Pay an address commission or payment.
    (2) For ocean transportation, in addition to this paragraph, see 
also Sec. 17.8(j).
    (3) When any portion of the ocean freight is financed by CCC, total 
ocean transportation brokerage commissions earned on U.S. and non-U.S.-
flag bookings by all parties arranging vessel fixtures shall not exceed 
2\1/2\ percent of the total freight costs.
    (4) If a payment is made in violation of this section, CCC may 
demand dollar refund of the entire amount financed by CCC under the 
contract.



Sec. 17.7  Notice of sale procedures.

    (a) Telephonic notice of sale. The supplier shall, immediately upon 
making a firm sale, telephone a notice of sale to Pub L. 480 Operations 
Division, FAS. A sale is considered firm when the supplier has been 
notified by the importer of an award, even though the contract is 
conditioned on approval by FAS (see Sec. 17.5(b)(1).) If the supplier 
fails to furnish a notice of sale within 3 working days after the date 
of sale, CCC has the right to refuse to finance the sale.
    (b) Sale approval. (1) Pub. L. 480 Operations Division will notify 
the supplier by telephone of approval of the notice of sale.
    (2) The supplier will prepare Form FAS-359, ``Declaration of Sale,'' 
and submit it to Pub. L. 480 Operations Division promptly as soon as FAS 
has provided the CCC Registration Number to the supplier. The supplier 
or the supplier's authorized representative must sign the form.
    (3) Each Form FAS-359 shall cover only a single sale contract. If a 
sale is made under two or more purchase authorizations, the supplier 
will prepare separate forms for each purchase authorization.
    (4) If any correction is needed to the Form FAS-359, the supplier 
must immediately notify FAS. If a contract is amended, the supplier 
should present the original Form FAS-359 for payment along with a copy 
of the written USDA approval of the contract amendment.
    (c) Sale disapproval. (1) Pub. L. 480 Operations Division, FAS, will 
notify the supplier by telephone when a sale is disapproved for 
financing. The related

[[Page 469]]

contract between the supplier and importer shall, for purposes of 
financing, be considered null and void.
    (2) On receipt of a notice of disapproval, the supplier shall 
promptly notify the importer.
    (d) Contract delivery period. Price approval is limited to exports 
made during the delivery period stated in the notice of sale or any 
contract amendment approved by the Pub. L. 480 Operations Division, FAS. 
If the supplier cannot complete delivery by the terminal delivery date 
of the contract delivery period, the supplier and the participant or 
importer shall submit a notice of contract amendment as provided in 
paragraph (e) of this section. If the supplier fails to comply, Sec. 
17.10(d) shall apply.
    (e) Contract amendments. (1) The supplier and the participant or 
importer shall each submit a written notice of each contract amendment 
to the Director immediately after the amendment to the contract is made. 
This includes not only any change in the contract delivery period or any 
other terms and conditions of the contract as provided in the 
information given in the original notice of sale or any amendment 
thereto, but also any change in any other terms and conditions of the 
contract.
    (2) The notice of contract amendment must contain the following:
    (i) A request that USDA approve an amendment to the specifically 
identified sale contract between (the participant or importer) and (the 
commodity supplier).
    (ii) A statement of what the amendment consists of (as, extension of 
delivery period through (date)) and a detailed explanation of the 
reasons for the amendment.
    (iii) A statement that the contract amendment has been agreed to by 
both buyer and seller.
    (3) Pub. Law 480 Operations Division, FAS, will notify the supplier 
as to whether the amendment is approved or disapproved.
    (4) The supplier shall furnish a copy of the USDA approval of the 
amendment with other documentation submitted to obtain payment.
    (5) If the supplier fails to furnish notice of a contract amendment 
to Pub. L. 480 Operations Division, FAS, within 3 working days after the 
date of such amendment, CCC has the right to refuse to finance the sale 
or any portion of the sale.
    (6) Any amendment must be consistent with the provisions of the 
purchase authorization and this part and must otherwise be acceptable to 
Pub. L. 480 Operations Division, FAS.



Sec. 17.8  Ocean transportation.

    (a) General. (1) This section applies to the financing of ocean 
freight or ocean freight differential. Ocean freight will be financed by 
CCC only to the extent specifically provided for in the purchase 
authorization. The purchase authorization may provide requirements in 
addition to or in lieu of those specified in this section.
    (2) The supplier of ocean transportation must be engaged in the 
business of furnishing ocean transportation from the United States and 
must have a person, principal or agent, on whom service of judicial 
process may be had in the United States.
    (3) The quantity of the commodity which must be shipped on privately 
owned U.S.-flag commercial vessels will be determined by the Director.
    (4) The supplier of ocean transportation shall release copies of the 
ocean bills of lading to the supplier of the commodity promptly upon 
completion of loading of the vessel.
    (5) When CCC finances any part of the ocean freight or the ocean 
freight differential, the participant must open an operable irrevocable 
letter of credit for the portion of the ocean freight not financed by 
CCC. All banking institution charges, such as commissions, expenses, 
etc., are for the account of the participant. The amount of the letter 
of credit shall be computed using the information provided in the Form 
CCC-106. The letter of credit shall provide for sight payment or 
acceptance of a draft, payable in U.S. dollars, on the basis of the 
quantities specified in the applicable ocean freight contract. If the 
supplier of ocean transportation accepts the commodity before receipt of 
an acceptable letter of credit from a bank, the supplier takes such 
action at its own risk. This action in itself does not affect 
eligibility for CCC financing.

[[Page 470]]

    (b) Contracting procedures--(1) Invitations for Bids (IFB's). (i) 
Public freight ``Invitations for Bids'' are required in the solicitation 
of freight offers from all U.S. and non-U.S. flag vessels when CCC is 
financing any portion of the ocean freight.
    (ii) For non-U.S. flag vessels when CCC is not financing any portion 
of the ocean freight, public freight IFB's are also required unless 
otherwise authorized by the Director, or unless the participant requires 
the use of vessels under its flag, the flag of the destination country, 
or other non-U.S. flag vessels under its control. Vessels considered to 
be under the control of the participant or the destination country 
include vessels under time charters, bare boat charters, consecutive 
voyage charters, or other contractual arrangements for the carriage of 
commodities which provide guaranteed access to vessels.
    (iii) Prior to release to the trade, all freight IFB's must be 
submitted to the Director for approval. Freight IFB's must be issued by 
means of Bridge News, New York, plus at least one other means of 
communication.
    (iv) All freight IFB's must:
    (A) Specify a closing time for the receipt of offers and state that 
late offers will not be considered;
    (B) Provide that offers are required to have a canceling date no 
later than the last contract layday specified in the IFB;
    (C) Provide the same deadline for receipt of offers from both U.S. 
flag vessels and non-U.S. flag vessels;
    (D) Stipulate the responsibility for each party for payment of any 
costs not eligible for financing by CCC (in the IFB or the pro forma 
charter party).
    (2) Competitive bidding. When CCC is financing any portion of the 
freight, all offers shall be opened in public in the United States at 
the time and place specified in the IFB. Offers shall be opened prior to 
receipt of offers for the sale of commodities as the Director determines 
appropriate. Only offers which are responsive to the IFB may be 
considered, and no negotiation shall be permitted.
    (3) Records of offers. Copies of all offers received must be 
promptly furnished to the Director, who may require the participant, or 
its shipping agent, to submit a written certification to the GSM that 
all offers received (with the times of receipt designated thereon) were 
transmitted to the Department. For purposes of this paragraph ``time of 
receipt'' shall be the time a hand-carried offer or a mailed offer was 
received at the designated location for presentation or, if transmitted 
electronically, the time the offer was received, as supported by 
evidence satisfactory to the Director.
    (4) Re-tenders. The Director may permit or require a participant to 
refuse any and all bids, and in such case a participant may conduct a 
re-tender with the approval of the Director. The Director shall not 
approve or require freight re-tenders unless they will increase the 
likelihood of meeting U.S. flag cargo preference requirements, will 
permit the desired quantity to be shipped, will likely result in reduced 
CCC expenditures, or are otherwise determined to be in the best interest 
of the program.
    (c) Request for vessel approval. The pertinent terms of all proposed 
charters and all proposed liner bookings, regardless of whether any 
portion of ocean freight is financed by CCC, must be submitted to the 
Director for review and approval before fixture of the vessel. Tentative 
advance vessel approvals may be obtained by telephone provided Form CCC-
105, ``Ocean Shipment Data--Pub. L. 480 (Request for Vessel Approval)'', 
is furnished promptly confirming the information supplied by telephone. 
The Form CCC-105 shall be submitted in duplicate to the Director.
    (d) Advice of vessel approval. (1) USDA will give written approval 
of charters and liner bookings on Form CCC-106, ``Advice of Vessel 
Approval.'' The Form CCC-106 will state whether CCC will finance any 
part of the ocean freight. For f.a.s. or f.o.b. shipments, CCC will 
issue a signed original of Form CCC-106 to the ocean carrier when CCC 
finances any part of the ocean freight. For c.& f. or c.i.f. shipments, 
CCC will issue Form CCC-106 to the supplier of commodity.
    (2) If CCC agrees to finance any portion of the ocean freight, the 
participant or its agent shall forward a copy

[[Page 471]]

of the ocean freight contract immediately after execution to the 
Director for review and approval prior to issuance of Form CCC-106.
    (3) CCC may also require the supplier of ocean transportation to 
submit copies of lightening, stevedoring, or bagging contracts for any 
voyage for which CCC finances ocean freight or ocean freight 
differential.
    (e) Special charter party provisions required when any part of ocean 
freight is financed by CCC. This paragraph applies when CCC finances any 
part of the ocean freight for commodities booked on charter terms. In 
the event of any conflict between the provisions of the regulations in 
this part and the charter party or ocean bills of lading issued pursuant 
thereto, the provisions of the regulations in this part shall prevail. 
The charter party shall contain or, for the purpose of financing 
pursuant to the regulations in this part, be deemed to contain the 
following provisions:
    (1) That if there is any failure on the part of the supplier of 
ocean transportation to perform the charter party after the vessel has 
tendered at the loading port, the charterer shall be entitled to incur 
all expenses which in the judgment of the General Sales Manager are 
required to enable the vessel to carry out her obligations under the 
charter party including, but not limited to, expenses for lifting any 
liens asserted against the vessel.
    (2) That, notwithstanding any prior assignments of freight made by 
the owner or operator, the expenses authorized in paragraph (e)(1) of 
this section may be deducted from the freight earned under the charter 
party.
    (3) That ocean freight is earned and that 100% thereof is payable by 
the charterers when the vessel and cargo arrive at the first port of 
discharge, subject to paragraph (e)(4) of this section, and to the 
further condition that if a force majeure as described in paragraph 
(l)(1) of this section results in the loss of part of the vessel's 
cargo, 100% of the ocean freight is payable on the part so lost. This 
provision does not relieve the carrier of the obligation to carry to 
other points of discharge if so required by the charter party.
    (4) That if a force majeure as described in paragraph (l)(1) of this 
section prevents the vessel's arrival at the first port of discharge, 
the freight shall be payable by the charterer at the time the General 
Sales Manager determines that such force majeure was the cause of 
nonarrival.
    (5) That laydays are non-reversible.
    (6) That in a dispute involving any rights and obligations of CCC, 
including rights and obligations as successor or assignee, which cannot 
be settled by agreement, the dispute shall not be subject to 
arbitration.
    (f) Special charter party information required when any part of 
ocean freight is financed by CCC. When CCC finances any part of the 
ocean freight for commodities booked on charter terms, the charter party 
shall contain the following information:
    (1) The name of each party participating in the ocean freight 
brokerage commission, if any, and the percentage thereof payable to each 
party;
    (2) The name of the vessel and the name of the substitute vessel, if 
any.
    (g) Notice of arrival. Each Form CCC-106 will indicate whether a 
notice of arrival is required. A notice of arrival, when required, must 
be furnished promptly by the participant or its designated agent or 
other source acceptable to CCC (excluding the carrier or its agent) and 
must include the name of the vessel, the purchase authorization number, 
the first port of discharge, and the date of arrival. The notice of 
arrival of the vessel also constitutes prima facie evidence of arrival 
of the cargo.
    (h) Foreign flag vessels. The cost of ocean transportation will be 
financed by CCC on non-U.S. flag vessels only when, and to the extent, 
specifically provided in the applicable purchase authorization.
    (i) U.S.-flag vessels. When a commodity is required to be shipped on 
a privately owned U.S.-flag commercial vessel, Form CCC-106 will set 
forth:
    (1) The rate of the ocean freight differential, if any, which the 
Director determines to exist between the prevailing foreign-flag vessel 
rate and the U.S.-flag vessel rate; and
    (2) The approximate tonnage for which CCC will authorize 
reimbursement of ocean freight or ocean freight differential, as 
appropriate.

[[Page 472]]

    (j) Items not eligible for financing by CCC. The following costs 
will not be financed by CCC, either separately or as part of the 
commodity contract price:
    (1) Loading, trimming, and other related shipping expenses unless 
included in the ocean freight rate;
    (2) Discharge costs unless included in the ocean freight rate;
    (3) The cost of ``dead freight'';
    (4) Cargo dues and taxes assessed by the importing or recipient 
country;
    (5) Surcharges assessed by steamship conferences or carriers, unless 
specifically authorized by the Director;
    (6) General average contributions;
    (7) Stevedoring overtime and vessel crew overtime;
    (8) Ship's disbursements;
    (9) Any payments prohibited in Sec. 17.6 (b) and (c); and
    (10) Detention.
    (k) General financing provisions. When any part of ocean freight 
will be financed either separately or as part of the commodity contract 
price, the following shall apply:
    (1) Ocean freight contracts must show the ocean freight rate from 
one loading port to one discharge port, and may provide for an increase 
in rate for an additional port of loading or discharge, or other option. 
CCC, however, will finance initially the lowest such rate or OFD, as 
appropriate. Increased amounts due because of the exercise of such 
option will be financed only after receipt of an ocean bill of lading or 
other evidence showing that the option was exercised.
    (2) In the case of transshipment to a foreign flag vessel, CCC will 
finance the ocean freight or OFD, as appropriate, only to the point of 
transshipment, at a rate determined by the GSM, and CCC will not finance 
any part of the ocean freight beyond the point of transshipment unless 
specifically approved by the GSM. If the commodity was transported from 
a U.S. port and was transshipped at another U.S. port, CCC will not 
finance, without prior approval of the GSM, any part of the ocean 
freight incurred before transshipment.
    (3) The ocean freight rate eligible for CCC financing and the rate 
used for the U.S.-flag vessel in calculating ocean freight differential 
shall not exceed the following rates for the category of the vessel 
concerned:
    (i) For commodities covered by published tariff rates--the published 
conference contract rate;
    (ii) For other commodities--the market rate prevailing at the time 
of request for approval as determined by the Director, but in any event 
not in excess of rates charged other shippers (irrespective of booking 
dates) for like commodities on the voyage concerned.
    (4) Payment will be made for ocean freight or OFD, as appropriate, 
from loading points to discharge points at rates approved by the 
Director on Form CCC-106 in conformity with paragraph (k)(3) of this 
section.
    (5) Freight for a vessel designated on Form CCC-106 as a U.S. flag 
vessel shall not be eligible for financing unless such vessel complies 
with the provisions of Pub. L. 87-266.
    (6) Ocean freight contracts must specify that the participant shall 
be liable for detention of the vessel for loading delays attributable 
solely to the decision of the supplier of ocean transportation not to 
commence loading because of the failure of the participant to establish 
an ocean freight letter of credit in accordance with paragraph (a)(5) of 
this section. However, ocean freight contracts may not contain a 
specified detention rate. The ocean transportation supplier shall be 
entitled to reimbursement for detention costs for all time so lost, for 
each calendar day or any part of the calendar day, including Saturdays, 
Sundays and holidays. The period of such delay shall not commence 
earlier than upon presentation of the vessel at the designated loading 
port within the laydays specified in the ocean freight contract, and 
upon notification of the vessel's readiness to load in accordance with 
the terms of the applicable ocean freight contract. The period of such 
delay shall end at the time that operable irrevocable letters of credit 
have been established for the applicable ocean freight or the time the 
vessel begins loading, whichever is earlier. Time calculated as 
detention shall not count as laytime. Reimbursement for such detention 
shall be payable no later than upon the vessel's arrival at the first 
port of discharge.

[[Page 473]]

    (l) Force majeure. (1) The GSM will waive the requirement for the 
notice of arrival required by Form CCC-106 by a written notice to the 
supplier of ocean transportation on the receipt of evidence satisfactory 
to the General Sales Manager that the vessel is lost or unable to 
proceed to destination after completion of loading as a result of one or 
more of the following causes: Damage caused by perils of the sea or 
other waters; collisions; wrecks; stranding without the fault of the 
carrier; jettison; fire from any cause; Act of God; public enemies or 
pirates; arrest or restraint of princes, rulers or peoples without the 
fault of the supplier of ocean transportation; wars; public disorders; 
captures; or detention by public authority in the interest of public 
safety. The supplier may substitute such waiver for the notice of 
arrival.
    (2) The determination of a force majeure by the GSM shall not 
relieve the participant from its obligation under the Agricultural 
Commodities Agreement to pay CCC, when due, the dollar amount of ocean 
freight, plus interest (exclusive of ocean freight differential), 
financed by CCC.
    (m) Demurrage/despatch. CCC will not finance demurrage and CCC will 
not share in despatch earnings. Owners and commodity suppliers will 
settle laytime accounts at load port(s) and owners and charterers will 
settle laytime accounts at discharge port(s). Under no circumstances 
shall CCC be responsible for resolving disputes involving calculation of 
laytime or the payment of demurrage or despatch.
    (n) Ocean freight included in the commodity contract price. For cost 
and freight or c.i.f. contracts the ocean freight, or the ocean freight 
differential, as appropriate, will be financed only to the extent 
specifically provided in the applicable purchase authorization.
    (o) Separate freight contracts. Contracts for ocean transportation, 
under a purchase authorization which limits delivery terms to f.o.b. or 
f.a.s., must be separate and apart from the contracts for the commodity.



Sec. 17.9  CCC payment to suppliers.

    (a) General. (1) The supplier shall request payment from CCC for the 
amount of the commodity price or the ocean freight or ocean freight 
differential to be financed by CCC.
    (2) The supplier shall support such a request for payment by 
presenting to CCC the documents required by this section, the purchase 
authorization, and the IFB, unless such documents were previously 
submitted to CCC. Such documents, however, need not be submitted when 
and to the extent that the Controller determines that the intended 
purpose of a document is served by documents otherwise available to or 
under the control of CCC or by alternate documents specified in such 
determination.
    (3) CCC will examine each document to ascertain that it is in 
accordance with this part, the purchase authorization, and the IFB. CCC 
will audit all the required documents to ensure accuracy, completeness, 
and consistency. When CCC has determined that all required documents 
have been submitted and that the documents are acceptable for payment, 
CCC will pay the supplier for the commodity price or the ocean freight 
or ocean freight differential to be financed by CCC which is supported 
by the documents.
    (4) CCC is required to issue all payments by electronic transfer. 
Each supplier submitting documents to CCC for payment must provide the 
name of the company, the bank ABA number to which payment is to be made, 
the account number for the company at the bank, the company's Taxpayer 
Identification Number, and the type of account being used.
    (b) General documentation requirements. The supplier must put the 
appropriate purchase authorization number on all required documents 
which are prepared under the supplier's control, and should arrange for 
the appropriate purchase authorization number to be put on all other 
required documents at the time of their preparation.
    (c) Documents required for payment--commodity. The general 
provisions relating to such documents are as follows. Additional 
requirements for payment to commodity suppliers for

c.& f. or c.i.f. sales are contained in paragraph (c)(8) of this 
section.
    (1) Supplier's certificate. A signed original of Form CCC-329 
``Supplier's

[[Page 474]]

Certificate'' from the commodity supplier covering the net invoice price 
for the commodity.
    (2) Supplier's detailed invoice. Two copies of the supplier's 
detailed invoice showing quantity, description, contracted price, net 
total invoice price expressed in dollars, the amount for which financing 
is requested from CCC, the amount not eligible for financing by CCC, and 
basis of delivery of the commodity (e.g., f.o.b. vessel). In arriving at 
the net invoice price there shall be deducted:
    (i) All discounts from the supplier's contracted price through 
payments, credits, or other allowances made or to be made to the 
importer, the importer's agent or consignee;
    (ii) All purchasing agents' commissions;
    (iii) All other amounts not eligible for financing.
    (3) Additional payment. A request for an additional payment 
submitted for a transaction for which all or part of the required 
documents have been previously submitted to CCC shall be supported by a 
Form CCC-329 ``Supplier's Certificate'' and the supplier's detailed 
invoice, covering the additional amount requested. The supplier's 
invoice must show the date, serial number and the amount of the original 
invoice and the basis for the additional amount claimed.
    (4) Weight certificate. The weight certificate shall be issued by or 
on authority of a State or other governmental weighing department, 
Chamber of Commerce, Board of Trade, Grain Exchange, or other 
independent organization or firm providing public weighing services. 
Such organization or firm must have:
    (i) Qualified, impartial, paid employees who are stationed at the 
port facility or, if authorized under the applicable purchase 
authorization, other facility where weights customarily are determined, 
one of whom performed the weighing covered by the certificate; or
    (ii) Qualified, independent, impartial, supervised, weighmasters 
stationed at the port facility or, if authorized under the applicable 
purchase authorization, other facility where weights are customarily 
determined, one of whom supervised the employee of such a facility in 
the performance of the weighing covered by the certificate.
    (5) Federal appeal inspection. The official certificate representing 
the results of an appeal inspection, when included in the documents 
presented for payment, shall supersede any other inspection certificate 
required by this part, the applicable purchase authorization, the IFB or 
the contract.
    (6) Form CCC-359. (i) Form FAS-359, ``Declaration of Sale,'' signed 
for the GSM, is the written document by which USDA notified the supplier 
that the sale was approved for financing. The supplier shall submit Form 
FAS-359 to CCC with the documents covering the first transaction under 
the contract. The unit price shown on the supplier's invoice must not 
exceed the approved unit price shown on the Form FAS-359.
    (ii) For subsequent transactions under the same contract, the 
supplier shall certify on the CCC copy of the detailed invoice as 
follows:

    I hereby certify that the applicable Form FAS-359 was submitted to 
CCC with documents covering Invoice No. ------------ dated ------------ 
for $------------.

    (7) Bill of lading. Four copies of the ocean bill of lading.
    (8) C.&.f. or c.i.f. sales. In addition to the requirements of 
paragraph (c)(1) through (7) of this section, the following requirements 
apply for c.&f. or c.i.f. sales:
    (i) Signed original of Form CCC-106.
    (ii) The supplier's detailed invoice shall show a computation of the 
dollar amount of ocean freight differential, whenever the Form CCC-106 
provides for an ocean freight differential on a cost and freight or 
c.i.f. sale and authorizes financing of any portion of ocean freight by 
CCC. In arriving at the net invoice price the supplier shall deduct the 
ocean freight, or portion thereof which is not being financed by CCC.
    (iii) One nonnegotiable copy of the insurance certificate or policy 
where the cost of insurance is included in the price of the commodity to 
be financed by CCC.
    (iv) A request for an additional payment shall also include a 
statement signed by the ship's master or owner

[[Page 475]]

(or agent of either of them) showing exercise of the higher-rated 
option, if the payment is stated to be due because of the exercise of a 
higher-rated option provided in an ocean freight contract.
    (d) Documents required for payment--ocean freight financed 
separately from commodity price--(1) Supplier's certificate. A signed 
original of Form CCC-329, ``Supplier's Certificate'', executed by the 
carrier or its agent, covering the dollar cost of ocean freight or ocean 
freight differential.
    (2) Ocean bill of lading. One copy of the ocean bill of lading and, 
if required by the related Form CCC-106, a notice of arrival at the 
first port of discharge of the vessel named in the Form CCC-106. In lieu 
of a notice of arrival the carrier may present a waiver of the notice of 
arrival signed by the GSM or Controller.
    (3) Invoice. One copy of the carrier's invoice which shows the total 
freight costs, the amount not eligible for financing by CCC, and the 
amount for which payment is requested from CCC. If the invoice relates 
to a U.S.-flag vessel, such invoice shall contain the following typed or 
stamped certification, executed by the supplier:

    The undersigned hereby certifies that the vessel named herein and 
for which ocean freight is claimed, qualifies as a privately owned U.S.-
flag commercial vessel within the requirements of Pub. L. 87-266 and is 
an eligible U.S.-flag vessel for the purposes of Pub. L. 664, 83rd 
Congress.

    (4) Form CCC-106. Signed original of Form CCC-106.
    (5) Ocean freight contract. One copy of the ocean freight contract.
    (6) Higher rated option. A request for payment of any amounts 
claimed because of the exercise of a higher rated option following 
payment of a lower rated option pursuant to Sec. 17.8(k)(1) shall be 
supported by the following documents:
    (i) One copy of the carrier's invoice as described in paragraph 
(d)(3) of this section except for the certification required therein.
    (ii) The Form CCC-329, ``Supplier's Certificate'', for the balance 
claimed.
    (iii) A statement signed by the ship's master, owner, or owner's 
agent, and signed laytime statements or other written concurrence of 
charterer or the charterer's agent showing the exercise of the higher 
rated option.
    (e) Payment of freight by CCC prior to the vessel's arrival at the 
discharge port. (1) Upon request by the supplier, CCC may pay the ocean 
freight or ocean freight differential to be financed by CCC before the 
vessel arrives at the first port of discharge if the supplier furnishes 
CCC financial coverage in the form of an acceptable letter of credit 
from a U.S. bank.
    (2) The amount of security required by CCC under paragraph (e)(1) of 
this section may be computed by multiplying the ocean freight rate or 
ocean freight differential rate financed by CCC as shown on the related 
Form CCC-106 times either:
    (i) The tonnage shown on the related bill of lading, if the bill of 
lading is furnished to CCC; or
    (ii) The tonnage stated in the ocean freight contract (without 
tolerance).
    (3) On receipt of an acceptable letter of credit, the Controller 
will issue a waiver of the notice of arrival which is required under 
paragraph (d)(2) of this section.
    (f) Advice of amount financed. CCC will forward advice of payment to 
the participant.



Sec. 17.10  Refunds and insurance.

    (a) Participant--failure to comply. The participant shall pay in 
U.S. dollars promptly to CCC on demand by the General Sales Manager the 
entire amount financed by CCC (or such lesser amount as the GSM may 
demand) whenever the GSM determines that the participant has failed to 
comply with any agreement or commitment made by the participant in 
connection with the transaction financed or with the applicable 
Agricultural Commodities Agreement between the U.S. and the participant.
    (b) Adjustment refunds. All claims by importers for adjustment 
refunds arising out of terms of the contract or out of the normal 
customs of the trade, including arbitration and appeal awards, 
allowances, and claims for overpayment of ocean transportation, if such 
refunds relate to amounts financed by CCC, shall be settled by payment 
in U.S. dollars and such payment shall be remitted by the supplier to 
CCC. The

[[Page 476]]

remittance shall be identified with the date and amount of the original 
payment and the applicable purchase authorization number.
    (c) Insurance on c.i.f. sales. The provisions of this paragraph 
apply only to transactions under purchase authorizations that 
specifically authorize c.i.f. sales in which the cost of insurance is 
included in the net c.i.f. invoice price of the commodity financed. When 
the supplier furnishes insurance in favor of or for the account of the 
importer, the policies or certificates of insurance shall include a loss 
payable clause which provides that all claims shall be paid in U.S. 
dollars to the Controller. Such payments shall be accompanied by advice 
of the purchase authorization number, the names and addresses of the 
supplier and importer, the nature of the claim, the quantity of the 
commodity involved in the claim, the date of shipment, the bill of 
lading number, and the name of the vessel. CCC will credit the account 
of the participant or will refund local currency in accordance with 
paragraph (e) of this section.
    (d) Refund of ineligible amounts. If a sale has been financed and 
CCC determines that the sales price exceeds the price permissible under 
Sec. 17.5(b)(4), or that the sale is otherwise ineligible for 
financing, in whole or in part, the supplier shall refund in dollars 
such excess price or ineligible amount to CCC promptly on demand. If not 
promptly refunded, such amount may be set off by CCC against monies it 
owes to the supplier. The making of any such refund to CCC, or any such 
setoff by CCC shall not prejudice the right of the supplier to challenge 
such determination in a court action brought against CCC for recovery of 
the amount refunded or set off.
    (e) Refund of local currency or reduction of amount due. Immediately 
after receipt by CCC of U.S. dollar payment from suppliers, or from or 
for the account of the participant under this section, CCC will provide 
for payment to the participant of the local currency equivalent of 
dollars received, if such local currency has been deposited for the 
particular transaction, or will credit the participant's account as 
follows:
    (1) For payments under this section, except paragraph (a), the local 
currency refunded will be at the exchange rate agreed to by the 
Government of the United States and the participant in effect at the 
time the local currency is paid to or for the account of the importer, 
except that if there has been a change in the exchange system or 
structure of the importing country or the destination country, such 
payment shall be made at the agreed exchange rate which was in effect on 
the date of dollar disbursement for the transaction financed, and except 
further that local currency shall not be paid when the dollars are to be 
reauthorized for replacement of the commodity.
    (2) For payment under paragraph (a) of this section, the local 
currency refunded will be at the agreed exchange rate in effect on the 
date of the dollar disbursement for the transaction financed: Provided, 
that local currency will not be refunded to the extent that deposits of 
such currency have been made available to the participant on a grant 
basis.
    (3) For refunds received by CCC under long-term credit agreements 
the participant's account shall be credited with the dollar amount 
refunded or otherwise recovered, and the participant notified 
accordingly.



Sec. 17.11  Recordkeeping and access to records.

    Suppliers and agents of the participant or importer shall keep 
accurate books, records and accounts with respect to all contracts 
entered into hereunder, including those pertaining to ocean 
transportation-related services and records of all payments by suppliers 
to representatives of the importer or participant, if CCC finances any 
part of the ocean freight. Suppliers and agents shall permit authorized 
representatives of the U.S. Government to have access to their premises 
during regular hours to inspect, examine, audit and make copies of such 
books, records and accounts. Suppliers and agents shall retain such 
records until the expiration of three years after final payment under 
such contracts.

[[Page 477]]



PART 18_EQUAL EMPLOYMENT OPPORTUNITY IN THE STATE COOPERATIVE EXTENSION 
SERVICES--Table of Contents




Sec.
18.1 Definitions.
18.2 Purpose, applicability and coverage.
18.3 Development and adoption of equal employment opportunity programs.
18.4 Elements of program.
18.5 Formal complaint procedure.
18.6 [Reserved]
18.7 Reports.
18.8 Noncompliance.
18.9 Sanctions.

    Authority: 5 U.S.C. 301, and secs. 1-10, 38 Stat. 372, as amended; 7 
U.S.C. 341-349.

    Source: 33 FR 12173, Aug. 29, 1968, unless otherwise noted.



Sec. 18.1  Definitions.

    For the purpose of this part:
    (a) Secretary means the Secretary of Agriculture of the United 
States or his designee.
    (b) Cooperative Extension Service means the Cooperative Extension 
Service of each Land-Grant University.
    (c) President means the President or chief executive of each Land-
Grant University or his designee.
    (d) Discrimination includes discrimination on the basis of race, 
color, national origin, sex, or religion.
    (e) Employment includes hiring, assignment, transfer, promotion, 
compensation, discipline, and discharge and all other conditions, terms 
and privileges of employment.
    (f) Program means a comprehensive Equal Employment Opportunity plan 
submitted by a President in satisfaction of the requirements of Sec. 
18.3.



Sec. 18.2  Purpose, applicability and coverage.

    (a) Purpose. This part provides a cooperative procedure involving 
the President and Secretary to assure that the Cooperative Extension 
Service provides equal opportunity in employment to each individual 
without regard to race, color, national origin, sex, or religion.
    (b) Applicability. The regulations in this part apply to every Land-
Grant University operating a Cooperative Extension Service.
    (c) Coverage. This part applies to all positions in all units of the 
Cooperative Extension Service but does not apply to employees provided 
by county and other political subdivisions in support of Cooperative 
Extension Service programs.

[33 FR 12173, Aug. 29, 1968, as amended at 38 FR 14154, May 8, 1973]



Sec. 18.3  Development and adoption of equal employment opportunity 
programs.

    (a) Submission. Within 90 days after the effective date of this 
part, the President shall furnish to the Secretary a positive continuing 
program to assure that employment is provided without discrimination.
    (b) Development. The President and the Secretary may consult with 
each other at any time regarding the development and evaluation of the 
program in order to better effectuate the purpose of this part. The 
program may be a part of a general program establishing employment 
procedures for employees of the university and may cover other rights 
and privileges of employees.
    (c) Concurrence. The Secretary may concur with the program proposed 
by the President. If the Secretary does not concur with the proposed 
program, he shall inform the President and make suggestions for 
improvement. The President will have 30 days thereafter to furnish a 
satisfactory proposal.
    (d) Amendment. After concurrence has been obtained on the program, 
the President may make recommendations to amend the program to improve 
its effectiveness and furnish them to the Secretary for concurrence. If 
the Secretary, at any time finds that a program, as implemented, does 
not achieve the purposes described in Sec. 18.2, he shall confer with 
the President concerning needed improvements and changes. The President 
will furnish a satisfactory amendment to the Secretary within 30 days 
for concurrence.
    (e) Effective date. The program or amendments to it shall be made 
effective by the President not later than 30 days from the date of 
concurrence.



Sec. 18.4  Elements of program.

    A satisfactory program shall include:

[[Page 478]]

    (a) A statement of policy prohibiting discrimination in employment;
    (b) An administrative procedure enforcing that policy;
    (c) A positive affirmative action plan designed to assure equal 
opportunity in employment;
    (d) A procedure for identifying and eliminating employment practices 
tending to create or continue discrimination in employment;
    (e) A procedure for evaluating the success of the program;
    (f) Adequate provision for publicizing the program including 
dissemination of information to all those covered by these regulations;
    (g) A procedure for prompt processing of complaints assuring no less 
than minimum rights prescribed in Sec. 18.5;
    (h) Adequate provisions for the protection of complainants, 
employees, witnesses, and representatives from interference, harassment, 
intimidation and reprisal;
    (i) A procedure for the informal resolution of complaints; and,
    (j) A procedure for recording receipt and disposition of all 
complaints. A report of the receipt and a report of the disposition of 
all formal complaints will be sent promptly to the Secretary.



Sec. 18.5  Formal complaint procedure.

    A procedure shall be provided for the filing of a formal written 
complaint if a complainant is not satisfied with the result of informal 
procedure or if the complainant does not desire to follow the informal 
procedure. A complaint procedure shall contain the following minimum 
provisions for the processing of formal complaints.
    (a) Elements of the formal complaint. The formal complaint shall be 
in writing and state the name and address of the complainant; the basis 
of the claim; and indicate whether the alleged discrimination was based 
on race, color, national origin, sex, or religion.
    (b) Time limits for processing. The procedure will include time 
limits for the orderly processing of complaints.
    (c) Who may file. A complaint may be filed by an employee, a former 
employee, or an applicant for employment who believes that 
discrimination in employment has been practiced against him or that an 
employment practice in the Cooperative Extension Service has or will 
result in discrimination in employment against him. An employee, a 
former employee, or an applicant for employment, or an organization may 
file a complaint of general discriminatory practices: Provided, however, 
That upon request of the President, the complainant shall furnish to him 
names of individuals who are adversely affected by those practices.
    (d) Right of representation. A complainant may designate in writing, 
an individual or an organization to represent him in the processing of 
his complaint, and is entitled to the advice of counsel at his expense 
at all stages of the proceeding. If the representative designated by the 
complainant is an employee of the U.S. Department of Agriculture, or of 
a Cooperative Extension Service, such employee, as well as an employee-
complainant, shall have a reasonable amount of official time with pay, 
if he is in a pay status, for the purpose of appearing at any hearing on 
the complaint or conciliation effort. The rights and privileges set 
forth in this paragraph shall also be available to any person whose 
alleged conduct is the cause of the complaint.
    (e) Where filed. The procedure shall clearly state the persons, and 
their locations, with whom complaints may be filed. It shall also state 
that complaints may be filed with the Secretary. Complaints filed with 
the Secretary shall be promptly forwarded to the President or his 
designee for processing.
    (f) When filed. A complaint shall be submitted within 90 days of the 
conduct giving rise to the complaint. The President may extend the 
prescribed time limit for good cause shown by the complainant.
    (g) Hearing. A complainant or the President may request a hearing 
which shall be transcribed or recorded. The hearing shall be conducted 
promptly during regular working hours in the county where the alleged 
discrimination occurred or at a time and place agreed to by the 
President and the complainant. The President, the complainant and any 
person whose alleged conduct is the cause of the complaint shall have 
the right to call and cross-examine witnesses under oath. The

[[Page 479]]

hearing shall be provided by the President, and shall be conducted by an 
impartial board or hearing officer who shall promptly submit a proposed 
decision including findings of fact, conclusions, and recommendations 
for action to the President.
    (h) Decision by the President. The President shall review the entire 
file on the complaint, including the record of the hearing if a hearing 
was held, and shall promptly:
    (1) Remand to the hearing board or officer for further action; or
    (2) Make a decision on the complaint; or
    (3) Otherwise dispose of the complaint.

The President shall notify the complainant of his decision or 
disposition.

[33 FR 12173, Aug. 29, 1968, as amended at 38 FR 14154, May 30, 1973]



Sec. 18.6  [Reserved]



Sec. 18.7  Reports.

    Within 6 months of the program going into effect and thereafter at 
least annually, the President shall submit a summary report to the 
Secretary on implementation and operation of the program. The Secretary 
may request additional reports as he deems advisable.



Sec. 18.8  Noncompliance.

    A university conducting a Cooperative Extension Service will be in 
violation of this part:
    (a) If the President fails to file a program in which the Secretary 
concurs under Sec. 18.3, or fails to file an appropriate amendment in 
accordance with Sec. 18.3(d);
    (b) If after concurrence in the President's program the Secretary 
finds that a university has failed to administer such program according 
to its terms;
    (c) If the Secretary finds that any officer of the university has 
intimidated, coerced, or improperly pressured a complainant, employee, 
representative, or witness exercising the rights given him by this part 
or any program adopted pursuant thereto, and that corrective action has 
not been taken.

[33 FR 12173, Aug. 29, 1968, as amended at 38 FR 14154, May 30, 1973]



Sec. 18.9  Sanctions.

    (a) When the Secretary finds that any noncompliance with this part 
has occurred, he may initiate action to refuse to authorize payment of 
funds for the Cooperative Extension Service, or take other appropriate 
action provided by law.
    (b) The remedies available to the Secretary under this part, and 
remedies made available to any person under a program adopted pursuant 
to this part do not exclude any others which may be available under law.

                           PART 19 [RESERVED]



PART 20_EXPORT SALES REPORTING REQUIREMENTS--Table of Contents




Sec.
20.1 General.
20.2 Administration.
20.3 Delegation of authority.
20.4 Definitions.
20.5 Announcements.
20.6 Submission of reports.
20.7 Confidentiality of reports.
20.8 Failure to report.
20.9 Records.
20.10 Place of submission of reports.
20.11 Additional reports and information.
20.12 OMB control number assigned pursuant to Paperwork Reduction Act.

Appendix I to Part 20--Commodities Subject to Reports, Units of Measure 
          To Be Used in Reporting, and Beginning and Ending Dates of 
          Marketing Years

    Authority: 7 U.S.C. 5712.

    Source: Rev. 2, 40 FR 23839, June 3, 1975, unless otherwise noted.



Sec. 20.1  General.

    The regulations of this part 20 are issued under section 404 of the 
Agricultural Trade Act of 1978, as amended, to implement the export 
sales reporting requirements of section 602 of the Agricultural Trade 
Act of 1978, as amended.

[56 FR 32951, July 18, 1991]



Sec. 20.2  Administration.

    The regulations of this part will be administered by the Foreign 
Agricultural Service (FAS) under the general supervision of the 
Administrator, FAS.

[[Page 480]]

Information pertaining to these regulations may be obtained from the 
office specified in Sec. 20.10.

[Amdt. 3, 45 FR 8562, Feb. 8, 1980]



Sec. 20.3  Delegation of authority.

    Authority has been delegated to the Administrator to promulgate 
amendments and revisions to the regulations in this part.

[Amdt. 3, 45 FR 8562, Feb. 8, 1980]



Sec. 20.4  Definitions.

    As used in these regulations and in all instructions, forms, and 
documents pertaining hereto, the words and phrases defined in this 
section shall have the meaning assigned to them as follows:
    (a) Administrator. The Administrator, Foreign Agricultural Service, 
U.S. Department of Agriculture.
    (b) Buy-back contract. A transaction under which a reporting 
exporter having sold a commodity for export to a foreign buyer 
liquidates the export sale contract by making an offsetting purchase of 
the same kind of commodity from the same foreign buyer.
    (c) Commodity. Wheat and wheat flour, feed grains, oilseeds, cotton, 
rice, cattle hides and skins, beef, and any products thereof, and any 
other agricultural commodity the Secretary may designate. ``Commodity'' 
shall also mean a commodity having identifying characteristics as 
described in any announcement issued pursuant to Sec. 20.5 such as 
class(es) of wheat, or staple length(s) of cotton. Mixed wheat shall be 
considered to be the predominant wheat class of the blend. This 
definition excludes commodities to be used for seed which have been 
treated in such a manner that their use is limited to seed for planting 
purposes or on which a certificate has been issued by a recognized seed 
testing laboratory setting forth variety, germination and purity.
    (d) Country of destination. (1) Any country outside the United 
States or (2) any territory or possession of the United States. Country 
of destination shall be the ultimate destination of the export, and 
shall not be deemed to be the country through which any transshipment 
takes place.
    (e) Export. A shipment of a commodity from the United States 
destined to a country specified in paragraph (d) of this section. The 
commodity shall be deemed to have been exported on the date of the 
applicable export carrier onboard bill of lading or the date the 
commodity is received for shipment, as specified on the bill of lading, 
in the case of a commodity received for shipment in a lash barge or 
containerized van if a through on-board bill of lading is issued for 
shipment to a country specified in paragraph (d) of this section.
    (f) Export carrier. The vessel on which a commodity is exported from 
the United States to a country specified in paragraph (d) of this 
section, or if export is by railcar, truck, or airplane, ``export 
carrier'' means such railcar, truck, or airplane.
    (g) Exports for exporter's own account. A transaction involving 
shipments made by the reporting exporter which are unsold at the time of 
export, shipments on consignment to selling agents of the reporting 
exporter for subsequent sale for the account of the reporting exporter, 
shipments by the reporting exporter that have not been allocated to any 
outstanding export sale, and shipments from the United States to any 
foreign country in bond for subsequent shipment to a third country.
    (h) Export sale. A transaction entered into between a reporting 
exporter and a foreign buyer. The transaction must be represented by a 
written document evidencing that (1) the exporter agrees to export the 
commodity, (2) the foreign buyer agrees to receive the commodity, (3) a 
fixed price or an agreed upon mechanism by which such a price can be 
determined is established, and (4) payment will be made to or for the 
account of the reporting exporter by or on the behalf of the foreign 
buyer for delivery of the commodity. The quantity of ``outstanding 
export sale'' means the quantity not yet exported under an export sale. 
The terms of delivery specified in the written agreement, such as FAS 
vessel, FOB vessel, C&F, CIF, etc., do not determine whether a 
transaction is an export sale which must be reported. A transaction 
which otherwise meets this definition

[[Page 481]]

and is subject to the posting of an exporter performance bond or letter 
of credit from the foreign buyer is included in this definition and such 
a transaction shall be reported under these regulations. However, a 
transaction which becomes operative only upon the imposition of export 
controls is excluded from this definition of ``export sale'' and such a 
transaction shall not be reported under these regulations.
    (i) Foreign buyer and foreign seller. A person whose place of doing 
business with respect to the transaction is outside the United States. 
Foreign buyer or foreign seller includes a person who maintains a place 
of doing business outside the United States even though the transaction 
is concluded in the United States by his agent who has a place of 
business in the United States or by his employee who does not maintain a 
place of doing business in the United States. (If such employee 
maintains a place of doing business in the United States with respect to 
the transaction, the resulting contract is construed to be a domestic 
sale.) Notwithstanding the foregoing, all foreign governments, agencies 
and instrumentalities are considered foreign buyers or foreign sellers 
even though transactions are concluded by their employees in the United 
States or they maintain a place of business with respect to the 
transaction in the United States.
    (j) Marketing year. The reporting period specified for a commodity 
in appendix 1.
    (k) Optional origin contracts. A transaction involving an export 
sale contract between a reporting exporter and a foreign buyer under 
which the reporting exporter has the option of exporting the commodity 
from the United States or from one or more other exporting countries or 
an export sale contract under which no origin is specified.
    (l) Person. An individual, partnership, corporation, association or 
other legal entity.
    (m) Purchases from foreign sellers. A transaction involving the 
purchase of a commodity from a seller whose place of business with 
respect to the transaction is outside the United States.
    (n) Quantity. The actual contract quantity (exclusive of any upward 
or downward tolerance) specified in the agreement between the reporting 
exporter and foreign buyer or seller.
    (o) Reporting exporter. A person who enters into a transaction 
referred to in this section whose place of doing business with respect 
to such transaction is in the United States. A reporting exporter shall 
include any person who sells a commodity to a foreign buyer irrespective 
of whether or not such person may appear as the shipper on the export 
documentation or whether or not such person is required to file a 
Shipper's Export Declaration. A reporting exporter would not normally 
include agents of either the reporting exporter or foreign buyer, 
brokers, or freight forwarders unless such agents, brokers or freight 
forwarders are acting in the capacity of a principal. (See examples 
Sec. 20.6(c).)
    (p) United States. All of the 50 States, the District of Columbia 
and Puerto Rico.

[Rev. 2, 40 FR 23839, June 3, 1975, as amended by Amdt. 1, 41 FR 19950, 
May 14, 1976; Amdt. 3, 45 FR 8562, Feb. 8, 1980; Amdt. 4, 45 FR 24104, 
Apr. 9, 1980; 68 FR 62214, Nov. 3, 2003]



Sec. 20.5  Announcements.

    Commodities for which reports are required under these regulations 
are set forth in appendix 1 to this part. Any change therein will be 
made by publication in the Federal Register of an amendment thereto, 
and, in addition, announcement of such change will be made through the 
press service. The unit of measure to be used in reporting the 
commodity, the beginning and ending dates of the marketing year for each 
commodity, and any other information deemed necessary to be included in 
the report will be specified in appendix 1 to this part and amendments 
thereto and in the announcements through press service.

[Rev. 2, 40 FR 23839, June 3, 1975, as amended at 68 FR 62214, Nov. 3, 
2003]



Sec. 20.6  Submission of reports.

    (a) Weekly reports. For each commodity for which reports are 
required under these regulations, the reporting exporter shall file 
weekly with the office specified in Sec. 20.10 and not later

[[Page 482]]

than the time specified in paragraph (k) of this section, a report by 
marketing year on the applicable forms contained in appendix 2 (FAS-97, 
``Report of Optional Origin Sales,'' FAS-98, ``Report of Export Sales 
and Exports,'' and on FAS-100, ``Report of Exports for Exporter's Own 
Account''), setting forth the following information and that required by 
such forms. Information for each applicable item on the respective form 
shall be reported. If the reporting exporter determines that the report 
forms cannot be received in the office specified in ``20.10 by the time 
specified in paragraph (k) of this section, the exporter shall transmit 
the information contained in the report forms by the use of FAX, 
telephone, or electronic submission. The required form must be 
subsequently submitted in accordance with Sec. 20.6(k)(2). Exporters 
have the option to submit the weekly reports using an electronic 
reporting system (forms 97e, 98e, and 100e) which may be accessed via a 
secured Internet website. Reporting exporters should contact the Export 
Sales Reporting staff to obtain passwords and access to the Internet 
reporting site. Exporters also have the option of satisfying the 
requirements of Forms FAS-97, FAS-98, and FAS-100 by submitting ASCII 
comma delimited files via e-mail to the ESR mailbox at [email protected].
    (1) United States origin sales only. (i) Total quantity of 
outstanding export sales from the previous report by country of 
destination.
    (ii) Quantity of new export sales made during the week expressed in 
the specified unit of measure (do not include any tolerance). Include 
the quantity of any optional original export sale for which an option 
was exercised during the week to export the commodity from the United 
States.
    (iii) Quantity of any purchases of the same kind of commodity made 
from foreign sellers during the week.
    (iv) Quantity of export sales cancelled and quantity of buyback 
contracts made during the week.
    (v) Changes in destination during the week for export sales 
previously reported.
    (vi) Changes in the marketing year during the week for export sales 
previously reported.
    (vii) Exports made against export sales during the week.
    (viii) Total outstanding balance of export sales at the close of 
business for the current report.
    (2) Optional origin sales (United States and other countries). (i) 
Total quantity of outstanding export sales from the previous report by 
country of destination.
    (ii) Quantity of new export sales made during the week expressed in 
the specified unit of measure (do not include any tolerance) by country 
of destination.
    (iii) Quantity of export sales for which an option was exercised 
during the week which would determine the origin of the commodity to be 
exported with the origin indicated as the United States or other than 
the United States.
    (iv) Quantity of optional export sales cancelled and the quantity of 
optional buy-back contracts made during the week.
    (v) Changes in destination during the week for sales previously 
reported.
    (vi) Changes in the marketing year during the week for sales 
previously reported.
    (vii) Total outstanding balance of optional export sales for which 
an option has not been exercised at the time of compiling the report.
    (3) Exports for exporter's own account. (i) Total outstanding 
balance of exports for exporter's own account that has been shipped from 
the United States as shown on the previous report by country where 
located or, if in transit, by country of intermediate destination.
    (ii) Quantity of new exports for exporter's own account exported 
during the week.
    (iii) Quantity of previously reported exports for exporter's own 
account that was applied to outstanding or new export sales during the 
week.
    (iv) Quantity of previously reported exports for exporter's own 
account sold to other U.S. exporters during the week.
    (v) Changes in destination during the week for exports previously 
reported.

[[Page 483]]

    (vi) The total outstanding balance of exports for exporter's own 
account at the close of business for the current report.
    (b) Monthly reports. The information described in paragraph (a) of 
this section shall be reported monthly when specified by an announcement 
issued pursuant to Sec. 20.5. The forms specified in paragraph (a) of 
this section shall be utilized to furnish the information required to be 
reported monthly and such information shall be filed in the manner and 
at the time required by Sec. 20.6(k).
    (c) Exporters who are required to report. The reporting exporter has 
the sole responsibility of reporting any and all information required by 
these regulations. The following are examples of who shall be considered 
the reporting exporter for the purpose of these regulations. (Firm A in 
each example is a firm whose place of doing business with respect to the 
transaction is in the United States, and the commodity to be delivered 
under the purchase contract is subject to these regulations. See Sec. 
20.4(i) for definition of a foreign buyer and foreign seller.)
    (1) Firm A makes an export sale to Firm B whose place of doing 
business with respect to the transaction is also in the United States. 
Firm B has made or will make an export sale to a foreign buyer. In this 
case Firm A cannot report the sale to Firm B since Firm B's place of 
doing business with respect to the transaction is located in the United 
States. In this example, Firm B is required to report the sale to the 
foreign buyer.
    (2) Firm A makes an export sale to a foreign buyer through the 
foreign buyer's agent and the agent's place of doing business with 
respect to the transaction is in the United States. In this example Firm 
A is required to report the export sale since the resulting contract is 
between Firm A and the foreign buyer.
    (3) Firm A consigns an export to his agent (other than an employee 
of Firm A). When the agent makes a sale to a foreign buyer, Firm A is 
required to report the sale. If the agent makes the sale to a firm whose 
place of doing business with respect to the transaction is in the United 
States, Firm A will not report the sale.
    (4) Firm A makes a purchase from a foreign seller. In this example, 
Firm A is required to report the purchase.
    (5) Firm A makes a purchase from an agent of a foreign seller and 
the agent's place of doing business with respect to the transaction is 
in the United States. In this example, Firm A is required to report the 
purchase. The agent is not a principal party in interest in the contract 
and cannot report the sale to Firm A. The foreign seller is not a 
reporting exporter and is not required to make a report of the sale.
    (6) Firm A, the agent of the foreign buyer, whose place of doing 
business with respect to the transaction is in the United States, 
purchases commodities domestically at interior warehouses and arranges 
for exportation to its principal, the foreign buyer. In this example, 
Firm A is required to report the sale and export.
    (7) If a reporting exporter has a transaction not described in 
paragraphs (1) through (6) of this paragraph (c) and is in doubt whether 
a transaction should be reported, the exporter should request a decision 
from the office specified in Sec. 20.10.
    (d) Contract terms. Reports of contract terms shall be filed when 
requested in accordance with Sec. 20.11. The report showing contract 
terms shall be filed on FAS-99, ``Contract Terms Supporting Export Sales 
and Foreign Purchases,'' and shall include the following:
    (1) Reporting exporter's contract number.
    (2) Date of export sale or purchase.
    (3) Name of foreign buyer or foreign seller.
    (4) Delivery period specified in the export sale or purchase.
    (5) Delivery terms specified in the export sale or purchase (F.O.B., 
C. & F., etc.).
    (6) Actual quantity of the export sale or purchase.
    (7) Quantity not exported against the sale or foreign purchase (do 
not include any tolerance).
    (8) Country of destination.
    (9) On purchases from foreign sellers, show separately from export 
sales all items of this paragraph (d).

[[Page 484]]

    (e) Reporting of destination. The reporting exporters shall report 
the country of destination specified in the export sale contract or 
otherwise declared in writing by the foreign buyer. (Where a government, 
or agency of such government, is the sole importer of the commodity in a 
country, the exporter shall report that country as the country of 
destination only if the exporter or foreign buyer has made a direct sale 
to that foreign government or agency.) If the country of destination is 
not so specified or declared, the exporter shall report the destination 
as ``unknown.'' If by the time of exportation the exporter has not so 
ascertained the country of destination, the name of the country reported 
to the Bureau of Customs of the Shipper's Export Declaration for such 
export shipment should be reported, even though it may be an 
intermediate destination. The reporting exporter is not expected to 
report destination changes made after reporting the export on FAS-98, 
``Report of Export Sales and Exports.''
    (f) Optional class or kind of commodity. If the export sale provides 
for an option as to the class or kind of commodity to be delivered under 
the export sale, the reporting exporter should report the particular 
class or kind of commodity expected to be exported.
    (g) Range in contract quantity. If the export sale provides for a 
range in quantity (e.g. 10,000 metric tons to 12,000 metric tons with or 
without a loading tolerance) with the reporting exporter or buyer having 
the option to declare a firm quantity at a later date, the reporting 
exporter shall report the maximum export sale quantity (exclusive of any 
loading tolerance). If an option is exercised for a lesser quantity at a 
later date, the reporting exporter shall report the reduction as an 
amendment to an export sale previously reported.
    (h) Transfer of unexported balances from one marketing year to the 
next marketing year. If exports against an export sale are not complete 
by the end of the marketing year in which the commodity is being 
reported for export, the reporting exporter shall transfer the quantity 
not exported against the export sale to the next marketing year on the 
first report submitted after the beginning of the new marketing year.
    (i) Errors on previous reports. Whenever an exporter discovers an 
error or is advised by the office specified in Sec. 20.10 of an error 
on a prior report, the error shall be corrected in the current weekly 
report to reflect the proper outstanding export sales and exports. The 
exporter shall also furnish a complete written explanation of such 
reporting error.
    (j) When reports are required. (1) A reporting exporter shall submit 
reports for those commodities for which there are new export sales, 
outstanding export sales, exports for exporter's own account for which 
an offsetting export sale has not been made and reported, or purchases 
from foreign sellers.
    (2) A reporting exporter may discontinue reporting for a commodity 
only when actual exports and other required reporting of changes have 
reduced to zero all export sales, exports for exporter's own account and 
purchases from foreign sellers. The reporting exporter shall report a 
zero balance prior to discontinuing reporting for the commodity 
involved.
    (3) If a reporting exporter discontinues making reports because a 
zero balance has been reached for a particular commodity, the exporter 
shall be responsible to commence reporting again once a new export sale, 
a new export for exporter's own account, or a new purchase from a 
foreign seller for that commodity is made.
    (k) Manner and time of reporting--(1) Manner. An original of all 
report forms, other than electronic forms and ASCII comma delimited 
files, must be filed with the office specified in Sec. 20.10. Each 
report form shall contain the full business name, address and telephone 
number of the reporting exporter and the name and original signature of 
the person submitting the report form on behalf of the reporting 
exporter. Computer generated printouts may be used in lieu of standard 
reporting forms when approved by the office specified in Sec. 20.10.
    (2) Time of filing reports. Information required to be reported 
weekly (either via fax, telephone, or electronically) must be received 
in the office specified

[[Page 485]]

in Sec. 20.10 no later than 11:59 p.m. eastern time, on each Monday or 
such other time as may be approved in advance by that office. Such 
weekly report must set forth the required information as to export sales 
transactions made during the seven day period ending the preceding 
Thursday, midnight. If Friday or Monday is a national holiday, the due 
date shall be Tuesday. If information is transmitted by other than use 
of forms specified in Sec. 20.6(a) (such as by use of telephone or 
electronic transmission) the required forms containing such information 
shall be transmitted by first class mail the next business day. It is 
the responsibility of the reporting exporter to arrange the most 
efficient and expeditious manner for the office specified in Sec. 20.10 
to receive the reported information. Information required to be reported 
monthly must be received in the office specified in Sec. 20.10 no later 
than 5:00 p.m., Eastern time, the fourth business day following the end 
of the reporting month, or such other time as may be approved in advance 
by that office, setting forth the required information as to export 
sales transactions made during the reporting month ending midnight the 
last day of such month.

[Rev. 2, 40 FR 23839, June 3, 1975, as amended by Amdt. 3, 45 FR 8562, 
Feb. 8, 1980; Amdt. 4, 45 FR 24104, Apr. 9, 1980; 45 FR 24439, Apr. 10, 
1980; Amdt. 5, 45 FR 24439, Apr. 10, 1980; 47 FR 746, Jan. 7, 1982; 68 
FR 62214, Nov. 3, 2003]



Sec. 20.7  Confidentiality of reports.

    A reporting exporter's individual reports shall remain confidential 
and subject to examination only by designatees of the Administrator. 
Information from reports filed by exporters on a weekly basis will be 
compiled and published in compilation form each week following the week 
of reporting. Information from daily reports filed by exporters will be 
made available to the public on the following business day at 9 a.m., 
eastern time. Information from monthly reports filed by exporters will 
be compiled and published in compilation form in the weekly report no 
later than the week following the time of filing specified in Sec. 
20.6(k).

[43 FR 5497, Feb. 9, 1978, as amended by Amdt. 3, 45 FR 8562, Feb. 8, 
1980; Amdt. 5, 45 FR 24440, Apr. 10, 1980; 68 FR 62215, Nov. 3, 2003]



Sec. 20.8  Failure to report.

    Any person who knowingly fails to report export sales pursuant to 
the requirements of these regulations shall be fined not more than 
$25,000 or imprisoned not more than one year, or both.



Sec. 20.9  Records.

    Each reporting exporter shall establish and maintain accurate 
records as to all export sales of commodities subject to these 
regulations. Such records shall include, but shall not be limited to, 
export sales contracts or other agreements with the foreign buyer or 
foreign seller pursuant to which any export has or will be made; bills 
of lading or delivery documents evidencing all such exports and 
inspection and weight certificates relating thereto. Such records shall 
be available during regular business hours for inspection and audit by 
authorized employees of the United States Department of Agriculture and 
shall be preserved for three years after the date of export to which 
they relate.



Sec. 20.10  Place of submission of reports.

    Weekly reports and information required to be submitted in 
connection therewith shall be addressed to or delivered to the following 
office FAX: (202) 690-3270 or (202) 690-3273:

Foreign Agricultural Service, Export Sales Reporting Division, U.S. 
Department of Agriculture, Washington, DC 20250.

[Amdt. 4, 45 FR 8562, Feb. 8, 1980, as amended at 68 FR 62215, Nov. 3, 
2003]



Sec. 20.11  Additional reports and information.

    (a) Daily reports. The reporting exporter shall report daily to the 
Administrator information with respect to sales of agricultural 
commodities as requested. Daily reports shall be made by telephone no 
later than 3 p.m., E.s.t., on the next business day following the 
calendar day of the sale.

[[Page 486]]

    (b) Additional information. The reporting exporter shall furnish 
such other additional reports and information, including price data, as 
may be requested with respect to export sales of agricultural 
commodities.

[Rev. 2, 40 FR 23839, June 3, 1975, as amended by Amdt. 3, 45 FR 8562, 
Feb. 8, 1980]



Sec. 20.12  OMB control number assigned pursuant to Paperwork Reduction 
Act.

    The information collection requirements contained in these 
regulations have been approved by the Office of Management and Budget 
(OMB) under the provisions of 44 U.S.C. chapter 35 and have been 
assigned OMB control number 0551-0007.

[51 FR 30203, Aug. 25, 1986]

Appendix 1 to Part 20--Commodities Subject to Reports, Units of Measure 
  To Be Used in Reporting, and Beginning and Ending Dates of Marketing 
                                  Years

----------------------------------------------------------------------------------------------------------------
                                        Unit of measure to be    Beginning of marketing
       Commodity to be reported           used in reporting               year            End of marketing year
----------------------------------------------------------------------------------------------------------------
Wheat, hard red winter...............  Metric tons............  June 1.................  May 31.
Wheat, soft red winter...............  ......do...............  ......do...............   Do.
Wheat, hard red spring...............  ......do...............  ......do...............   Do.
Wheat, white.........................  ......do...............  ......do...............   Do.
Wheat, durum.........................  ......do...............  ......do...............   Do.
Wheat products, all wheat flours       ......do...............  ......do...............   Do.
 (including clears), bulgur,
 semolina, farina, and rolled,
 cracked, and crushed wheat.
Barley, unmilled.....................  ......do...............  ......do...............   Do.
Corn, unmilled.......................  ......do...............  Sept. 1................  Aug. 31.
Rye, unmilled........................  ......do...............  June 1.................  May 31.
Oats, unmilled.......................  ......do...............  ......do...............   Do.
Grain sorghums, unmilled.............  ......do...............  Sept. 1................  Aug. 31.
Soybeans.............................  ......do...............  Sept. 1................  Aug. 31.
Soybean oil cake and meal............  ......do...............  Oct. 1.................  Sept. 30.
Soybean oil, including, crude          ......do...............  ......do...............   Do.
 (including degummed), once refined,
 soybean salad oil (including refined
 and further processed by bleaching,
 deodorizing, or winterizing),
 hydrogenated.
Flaxseed.............................  ......do...............  June 1.................  May 31.
Linseed oil, including raw, boiled...  ......do...............  ......do...............   Do.
Sunflowerseed oil, including: crude    ......do...............  Oct. 1.................  Sept. 30.
 (including degummed), once refined,
 sunflowerseed salad oil (including
 refined and further processed by
 bleaching, deodorizing, or
 winterizing), hydrogenated.
Cottonseed...........................  ......do...............  Aug. 1.................  July 31.
Cottonseed oil cake and meal.........  ......do...............  Oct. 1.................  Sept. 30.
Cottonseed oil, including: crude,      ......do...............  ......do...............   Do.
 once refined, cottonseed salad oil
 (refined and further processed by
 bleaching, deodorizing, or
 winterizing), hydrogenated.
Cotton, American pima, raw, extra      Running bales..........  Aug. 1.................  July 31.
 long staple.
Cotton, upland, raw, staple length     ......do...............  ......do...............   Do.
 1\1/16\ in and over.
Cotton, upland, raw, staple length 1   ......do...............  ......do...............   Do.
 in up to 1\1/16\ in.
Cotton, upland, raw, staple length     ......do...............  ......do...............   Do.
 under 1 in.
Rice, long grain, brown (including     Metric tons............  ......do...............   Do.
 parboiled).
Rice, medium, short and other          ......do...............  ......do...............   Do.
 classes, brown (including parboiled).
Rice, long grain, milled (including    ......do...............  ......do...............   Do.
 parboiled).
Rice, medium, short and other          ......do...............  ......do...............   Do.
 classes, milled (including
 parboiled).
Cattle hides and skins--Whole cattle   Pieces.................  Jan. 1.................  Dec. 31.
 hides, excluding wet blues.
Cattle hides and skins--Whole calf     Pieces.................  Jan. 1.................  Dec. 31.
 skins, excluding wet blues.
Cattle hides and skins--Whole kip      Pieces.................  Jan. 1.................  Dec. 31.
 skins, excluding wet blues.
Cattle hides and skins--Cattle, calf   Number.................  Jan. 1.................  Dec. 31.
 and kip, excluding wet blues, cut
 into croupons, crops, dossets,
 sides, butts or butt bends (hide
 equivalent).
Cattle hides and skins--Cattle, calf   Pounds.................  Jan. 1.................  Dec. 31.
 and kip, excluding wet blues, in
 cuts not otherwise specified.
Cattle, calf and kip, wet blues--      Number.................  Jan. 1.................  Dec. 31.
 unsplit (whole or sided) hide
 equivalent.
Cattle, calf and kip, wet blues--      Number.................  Jan. 1.................  Dec. 31.
 grain splits (whole or sided) hide
 equivalent.

[[Page 487]]

 
Cattle, calf and kip, wet blues--      Pounds.................  Jan. 1.................  Dec. 31.
 splits, excluding grain splits.
Beef, fresh, chilled or frozen:        Metric tons............  Jan. 1.................  Dec. 31.
 muscle cuts of beef.
----------------------------------------------------------------------------------------------------------------


[Amdt. 1, 41 FR 19951, May 14, 1976, as amended by Amdt. 5, 45 FR 24440, 
Apr. 10, 1980; Amdt. 6, 45 FR 83192, Dec. 18, 1980; 46 FR 32228, June 
22, 1981; 48 FR 13955, Apr. 1, 1983; 51 FR 30203, Aug. 25, 1986; 62 FR 
10412, Mar. 7, 1997; 66 FR 38527, July 25, 2001]



PART 21_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION 
FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Sec. 231, Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 21.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601) as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (title IV 
of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48017, Dec. 17, 1987 and 54 FR 8912, 8913, Mar. 2, 1989]



PART 22_RURAL DEVELOPMENT COORDINATION--Table of Contents




                            Subpart A_General

Sec.
22.101 The Rural Development Act of 1972 (Pub. L. 92-419).
22.102 Summary of authorities.
22.103 Purpose.
22.104 General policy.

       Subpart B_Roles and Responsibilities of Federal Government

22.201 Coordination.
22.202 Federal unit responsibilities.
22.203 Major responsibilities under title VI, Sec. 603.
22.204 Rural development committees.
22.205 Allocation of loan and grant funds.

        Subpart C_Roles and Responsibilities of State Governments

22.301 Selection and designation.
22.302 Area eligibility.
22.303 Cooperation with Federal Regional Councils.
22.304 Multiyear planning and programming.
22.305 Conformance with OMB Circular No. A-95.
22.306 Financing rural development planning.
22.307 Program evaluation.
22.308 Project approval.
22.309 Seeking Federal review.

    Authority: Sec. 301, 80 Stat. 379, 5 U.S.C. 301 and delegations of 
authority by the Secretary of Agriculture, 38 FR 14944-14948, 7 CFR 
2.23, as amended by 38 FR 24633.

    Source: 38 FR 29020, Oct. 18, 1973, unless otherwise noted.



                            Subpart A_General



Sec. 22.101  The Rural Development Act of 1972 (Pub. L. 92-419).

    The Rural Development Act of 1972 (Pub. L. 92-419), herein called 
the Act consists of six titles designed to facilitate the development of 
rural communities through a series of authorizations including grants, 
loans, and administrative provisions. This Act adds new statutory rural 
development coordination responsibilities to certain Federal departments 
and agencies to be carried out under the leadership of the Secretary of 
Agriculture.



Sec. 22.102  Summary of authorities.

    The purpose of this section is to give notice that certain 
authorities have been delegated by the Secretary of USDA agencies for 
implementation. New Secretarial delegations covering the Rural 
Development Act were effective May 31, 1973, and were published in the 
Federal Register June 7, 1973 (38 FR 14944-14953). These are as follows:

[[Page 488]]

    (a) Title I (38 FR 14948). Responsibility delegated to the Assistant 
Secretary for Rural Development. The responsibility for administering 
loan and grant authorities is redelegated to the Farmers Home 
Administration, except the responsibility for administering loan 
authorities with respect to rural electrification and telephone 
facilities and service which has been redelegated to the Rural 
Electrification Administration.
    (b) Titles II (38 FR 14945-14948), III (38 FR 14945-14948), and V 
(38 FR 14945-14948. Responsibility delegated to the Assistant Secretary 
for Conservation, Research and Education and redelegated as follows:
    (1) Titles II (38 FR 14951-14952) and III (38 FR 14951-14952) to the 
Administrator, Soil Conservation Service.
    (2) Title V (38 FR 14949-14950) to the Administrators, Cooperative 
State Research Service and the Extension Service respectively.
    (c) Title IV (38 FR 14945-14948). Responsibility delegated to the 
Assistant Secretary for Conservation, Research and Education and 
redelegated (38 FR 14950-14951) to the Chief of the Forest Service.
    (d) Title VI, section 603 (38 FR 14948). Responsibility delegated to 
Assistant Secretary for Rural Development and redelegated (38 FR 14953) 
to the Administrator, Rural Development Service.

The Rural Development Act recognizes that many Federal departments and 
agencies of the executive branch of government administer programs and 
provide services which are applicable to the needs of rural communities. 
Section 603 of the Rural Development Act charges the Secretary of 
Agriculture with providing governmentwide leadership for, and with 
coordinating a nationwide rural development program. In such 
coordination, the Secretary shall seek measures that will achieve 
effective integration of relevant Federal services in rural areas as 
provided by Agriculture agencies and other Departments and agencies. 
This section also requires that the Secretary shall establish goals and 
report to the Congress on progress in complying with specified purposes 
of the Act. The Federal Regional Council will play a major role in 
coordination at the field level. An organic Act of the Department (7 
U.S.C. 2201) has been amended to require the Secretary to add Rural 
Development to those purposes for which he is authorized to acquire and 
diffuse useful information.



Sec. 22.103  Purpose.

    The purpose of these regulations is to establish the policies, 
procedures, and responsibilities required by section 603 of the Rural 
Development Act.



Sec. 22.104  General policy.

    Federal implementation of the Act will be consistent with the 
President's policy of decentralized decisionmaking and administrative 
responsibility which gives fullest possible consideration to State and 
local rural development goals and priorities. As a result of section 
817(4) of the Agriculture and Consumer Protection Act of 1973 (Pub. L. 
93-86) which prohibits prior approval by any State officials of any loan 
or grant under any program authorized by title I of the Rural 
Development Act of 1972 (Pub. L. 92-419), it has been necessary to 
substantially modify the planned administration of programs under 
section 603 of the Rural Development Act.



       Subpart B_Roles and Responsibilities of Federal Government



Sec. 22.201  Coordination.

    The following identifies types and levels of coordination:
    (a) Washington level interdepartmental and interagency coordination 
for purposes of the Act.
    (b) Coordination for purposes of the Act among agencies within the 
U.S. Department of Agriculture.
    (c) Coordination among and between the field operations of Federal 
agencies for purposes of the Act.
    (d) Coordination for purposes of the Act between levels of field 
operations of the Federal government and State governments.



Sec. 22.202  Federal unit responsibilities.

    The following Federal units have major responsibilities in 
implementing the Act.

[[Page 489]]

    (a) Rural Development policy questions requiring resolution by the 
Committee on Community Development of the President's Domestic Council 
may be so referred by the Secretary of Agriculture, who will sit as a 
member and as Chairman of the Rural Development Committee.
    (b) The Under Secretary of Agriculture will represent the Secretary 
in matters pertaining to rural development policy when such matters are 
of mutual concern to the Under Secretaries' Group for Regional 
Operations (Executive Order 11647 as amended by E.O. 11731) and the 
Federal Regional Councils, or at such other times that he or the 
Secretary may deem appropriate.
    (c) The Assistant Secretary of Agriculture for Rural Development 
will chair an Assistant Secretaries' Working Group consisting of 
interdepartmental and interagency members from Agriculture, Health, 
Education, and Welfare, Housing and Urban Development, Defense, Labor, 
Commerce, Transportation, Environmental Protection Agency, Small 
Business Administration and others as appropriate. This working group 
will operate under the aegis of the Rural Development Committee of the 
Domestic Council. The purpose of this working group is:
    (1) To develop and recommend rural development policy applicable to 
more than one executive department or agency.
    (2) To develop cooperative procedures between and among executive 
departments and agencies in matters pertaining to rural development.
    (3) To devise effective rural development strategies and to bring 
Federal resources and services to bear toward their realization.
    (4) To advise the Under Secretaries' Group on involvement of Federal 
Regional Councils in rural development activities.

The Secretary of Agriculture may utilize the services of the Assistant 
Secretaries' Working Group in performing his rural development functions 
for the Rural Development Committee of the Domestic Council.
    (d) The Administrator, Rural Development Service, under the policy 
direction of the Assistant Secretary for Rural Development shall 
coordinate rural development activities under section 603 of the Rural 
Development Act as directed by the Secretary. In the fulfillment of such 
responsibilities, he is authorized to communicate directly with other 
Federal department and agency officials of corresponding levels of 
authority and with State and Federal Regional Council officials.
    (e) The Federal Regional Councils shall have primary responsibility 
for interagency program coordination at the field level and will provide 
assistance to and liaison with States in promoting rural development. 
Federal attention to this type of cooperation and coordination will be 
emphasized. In addition, the Federal Regional Councils, operating within 
policy determined at the Washington level, shall be responsible for 
performing an oversight function to assess how well the machinery is 
working in carrying out the Rural Development Act authorities. Each 
Federal Regional Council shall create an appropriate management 
structure to accomplish the foregoing. This may include the creation of 
a Rural Development Committee. The Department of Agriculture will chair 
such Rural Development Committees or otherwise assume the lead in 
managing rural development activities of the Federal Regional Councils.
    (1) Procedures for the coordination of rural development activities 
will be consistent with the policies expressed herein and with any 
specific Federal guideline based on these regulations or on Executive 
Order 11647, as amended by Executive Order 11731.
    (2) Councils shall exercise authority under Executive Order 11647, 
as amended by Executive Order 11731, to promote in rural areas 
integrated program and funding plans involving several Federal agencies.



Sec. 22.203  Major responsibilities under title VI, Sec. 603.

    (a) Title VI, section 603(b). (1) Section 603(b) of the Rural 
Development Act charges the Secretary of Agriculture with providing 
leadership in the development of a nationwide rural development program. 
Included in this program would be pertinent Federal departments and 
agencies which might

[[Page 490]]

contribute to this rural development mission. In carrying out his 
responsibilities, the Secretary shall report annually, prior to 
September 1, to the Congress on rural development goals for employment, 
income, population, housing, and quality of community services and 
facilities. To carry out the provisions of the Act specified above, the 
following major responsibilities are identified:
    (i) The Rural Development Committee of the Domestic Council will 
assume responsibility for interdepartmental policy formulation and 
resolution of issues pertaining to this section of the Act as determined 
by the Secretary of Agriculture. This committee consists of members of 
the Community Development Committee of the Domestic Council, to wit: The 
Secretary of Agriculture, Chairman of the Rural Development Committee; 
the Secretary of HUD, Chairman of the Urban Development Committee; the 
Secretary of Transportation, Chairman of the Transportation Policy 
Development Committee; the Secretaries of Treasury, Commerce, and Labor 
and the Director of OMB.
    (ii) The Secretary of Agriculture shall be responsible for 
Washington level coordination pursuant to this section of the Act.
    (iii) At the regional level, the Federal Regional Councils shall 
develop and implement procedures designed to identify and facilitate 
access to Federal resources appropriate for rural development purposes 
within States. Such procedures will be consistent with policies 
expressed or endorsed by the Under Secretaries' Group. The Councils 
shall also be responsible for monitoring the effectiveness with which 
the Rural Development Act is implemented within their respective 
regions.
    (2) The Secretary of Agriculture is also authorized to initiate or 
expand research and development efforts related to solution of rural 
development problems including problems of rural water supply, rural 
sewage and solid waste management, and rural industrialization.
    (3) The Rural Development Service will operate a rural development 
research program and may also participate in rural development research 
in cooperation with Federal, State, and private research units.
    (b) Title VI, section 603(c) of the Rural Development Act. (1) Under 
guidance by the Under Secretaries' Group, and under the leadership of 
the U.S. Department of Agriculture member on each of the Federal 
Regional Councils, the Rural Development Committees of the Federal 
Regional Councils or other Federal Regional Council mechanisms assigned 
to work with rural development, shall be responsible for proposing to 
the appropriate Federal and State agencies actions in such areas as:
    (i) Adjustment, where appropriate, of administrative boundaries used 
by field staffs of Federal and federally supported agencies to conform 
with boundaries of multicounty jurisdictions. ``Multicounty 
jurisdictions'' as used means substate planning districts or other 
combinations of county jurisdictions as designated by States for State 
planning purposes.
    (ii) Co-location of field units of Federal agencies and 
consolidation of offices in the vicinity of principal centers of local 
government administration (including multicounty jurisdictional 
administration), to encourage increased cooperation within and among 
different governmental levels.
    (iii) Exchange of personnel between Federal and State agencies under 
the Intergovernmental Personnel Act (Pub. L. 91-648), to supplement and 
broaden staffs administering rural development programs, and provide 
specific technical expertise for certain projects.
    (iv) Interchange of personnel among Federal agencies for the 
purposes expressed in paragraph (b)(1)(ii) of this section.
    (2) In addition, the U.S. Department of Agriculture member on the 
Federal Regional Councils shall, by July 31, of each year, report to the 
Assistant Secretary for Rural Development who shall in turn report to 
the Under Secretaries' Group and the Congress on progress made in 
carrying out the programs outlined in paragraphs (b)(1)(ii) through (iv) 
of this section and plans for programs to be implemented during the 
following fiscal year. The first report will be due to the Assistant 
Secretary by July 31, 1974.

[[Page 491]]



Sec. 22.204  Rural development committees.

    State rural development committees, consisting of USDA agency 
members and, in most instances, State governments and other Federal 
agency representatives are available to assist States in accomplishing 
their rural development objectives. Such assistance if requested by the 
State can take the form of technical assistance and cooperative services 
to States in carrying out their rural development priorities.



Sec. 22.205  Allocation of loan and grant funds.

    (a) Title I grant funds and approved loan funding levels will be 
allocated among States by a formula designed to ensure equitable 
treatment. This applies to amounts made available for business and 
industrial loans, water, sewer and other community facilities except 
electrical and telephone facilities provided by or through the Rural 
Electrification Administration.
    (b) During the second half of the fiscal year, the Secretary of 
Agriculture shall review State and multicounty jurisdictional rural 
development programs and projects so that unused allocations may be 
shifted from one State to another so as to enable the obligation of all 
available funds prior to the end of the fiscal year.
    (c) The formula used for fund allocation will ensure that a minimum 
loan and grant level is established so that no State receives an amount 
too small to serve the purposes of the Act. A percentage of total loan 
and grant authority will be withheld from initial allocation to allow 
subsequent appropriate technical adjustments in amounts allocated to 
individual States.
    (d) Title V funds shall be distributed by the Secretary under the 
formula specified in the Act. Title V activities will be consistent with 
the principle that States and multicounty jurisdictions have 
responsibility for the rural development planning and priority setting 
functions.



        Subpart C_Roles and Responsibilities of State Governments



Sec. 22.301  Selection and designation.

    Procedures for implementing the Act are designed to give the fullest 
possible consideration to planning and development goals and strategies 
at the State and multicounty jurisdictional levels. The governing bodies 
of multicounty organizations should include representatives of local 
governments contained within the respective multicounty jurisdictions. 
State development strategies and priorities shall be fully considered in 
the Federal administration of Rural Development Act authorities.



Sec. 22.302  Area eligibility.

    Eligibility for programs under the Act will be based on the criteria 
of community size and location of population as specified in the Act. 
State designations of eligible areas will be duly considered by the 
Federal government in the determination of eligibility for loan and 
grant assistance.



Sec. 22.303  Cooperation with Federal Regional Councils.

    States are urged to establish and maintain close and cooperative 
relationships with the Federal Regional Councils which will be in a 
position to assist the States and multicounty jurisdictions in the 
identification and application of available resources. States may 
authorize direct communications and liaison between the Regional 
Councils and multicounty jurisdictions within States.



Sec. 22.304  Multiyear planning and programming.

    State and multicounty jurisdictions are encouraged to adopt 
multiyear planning and development programs. As administrative 
procedures for implementing the Act support the feasibility of such a 
process, these programs should consider joint State, Federal, and local 
budget planning factors and be refined to conform to the actual fund 
availability as annual budgets are finalized and allocated. Such 
programs, once initiated, will be extended by the annual addition of a 
new planning year until programs are completed or terminated.

[[Page 492]]



Sec. 22.305  Conformance with OMB Circular No. A-95.

    The State and multicounty jurisdictional rural development planning 
process must conform to the review requirements expressed in OMB 
Circular No. A-95 under parts I, III, and IV as appropriate.



Sec. 22.306  Financing rural development planning.

    States will be required to finance rural development planning 
through their own resources, revenue-sharing allocations, or the 
Department of Housing and Urban Development planning and management 
assistance program or other available Federal planning programs.



Sec. 22.307  Program evaluation.

    The Department of Agriculture is responsible for continuous program 
evaluation to determine if individual projects and the entire program is 
cost effective in terms of reaching rural development goals. As a 
result, USDA is responsible for conducting and reporting an annual 
evaluation of selected rural development projects and the overall rural 
development program. USDA shall include as a part of its evaluation 
Federal Regional Council assessment of the effectiveness of interagency 
coordination and delivery of services within the overall rural 
development program. States and multicounty districts are encouraged to 
participate in the joint preparation of such program evaluations. Copies 
of such evaluations should be supplied to the Administrator, Rural 
Development Service, Department of Agriculture and to the Federal 
Regional Councils, in sufficient time so as to arrive not later than 
July 1. The initial evaluation, due July 1, 1974, in addition to the 
requirements listed below, should include a background statement and 
should summarize first year program efforts and results. Annual 
evaluation should:
    (a) Describe the process used in planning, project selection and 
priority setting, and the criteria and process used in evaluating 
program effectiveness.
    (b) Describe the specific objectives of the programs.
    (c) Describe and assess the cost and effectiveness of projects being 
pursued within individual multicounty jurisdictions.
    (d) Express observations, conclusions and recommendations based on 
such evaluations which may contribute to the development of better 
management, coordination and planning procedures.



Sec. 22.308  Project approval.

    State and multicounty jurisdictional planning is a State and local 
prerogative. Federal agencies will be responsive to State rural 
development strategies and priorities. However, determination of 
eligibility and feasibility and final approval of individual projects 
involving Federal funds must remain with the Federal government 
consistent with the Act and implementing regulations.



Sec. 22.309  Seeking Federal review.

    States may, if they elect, submit multicounty development plans and 
proposals to the Federal Regional Councils and to the Rural Development 
Service, USDA, for review and comment. Such review will neither obligate 
the Federal government with respect to such programs nor require States 
to conform with suggestions supplied by the USDA or the Federal Regional 
Council.



PART 23_STATE AND REGIONAL ANNUAL PLANS OF WORK--Table of Contents




                         Subpart A_State Program

Sec.
23.1 General.
23.2 Administration.
23.3 Coordination.
23.4 State Rural Development Advisory Council.
23.5 Availability of funds.
23.6 Plan of Work.

                       Subpart B_Regional Program

23.9 General.
23.10 Administration.
23.11 Board of Directors.
23.12 Availability of funds.
23.13 Plan of Work.

    Authority: Sec. 508, 86 Stat. 674 (7 U.S.C. 2668).

[[Page 493]]


    Source: 38 FR 29023, Oct. 18, 1973, unless otherwise noted.



                         Subpart A_State Program



Sec. 23.1  General.

    (a) Title V of the Rural Development Act of 1972 (Pub. L. 92-419) 
hereafter referred to as ``Title V'' is the Research and Education 
component of the Rural Development Act of 1972. Title V provides the 
opportunity to utilize and build upon the research, extension, and 
community service capability of public and private institutions of 
higher education in each State to expand scientific inquiry and 
education backup for rural development. The higher educational and 
research institutions in each State, including the Land Grant 
Institutions of 1890, are authorized to assist in developing and 
disseminating through the most appropriate manner, scientific 
information, technical assistance, and feasibility studies required to 
improve the rural development capability of local citizens, agencies, 
and governments. Programs authorized under title V shall be organized 
and conducted by one or more colleges or universities in each State to 
provide a coordinated program in each State which will have the greatest 
impact on accomplishing the objectives of rural development in both the 
short and longer term and the use of these studies to support the 
State's comprehensive program to be supported under title V.
    (b) Title V operations will be consonant with the purpose that all 
Federal rural development activities be coordinated with other federally 
assisted rural development activities and with the State's ongoing rural 
development program. To effectuate such purpose, the Assistant Secretary 
for Conservation, Research and Education will implement title V plans 
and activities in close coordination with the Assistant Secretary for 
Rural Development.



Sec. 23.2  Administration.

    (a) Title V will be administered by the Administrators of the 
Extension Service and the Cooperative State Research Service for 
extension and research programs respectively, in cooperation with the 
chief administrative officer of the State Land Grant University who will 
administer the program within his respective State. To assure national 
and State coordination with programs under the Smith-Lever Act of 1914 
and the Hatch Act (as amended), August 11, 1955, the administration of 
the programs shall be in association with the programs conducted under 
the Smith-Lever Act and the Hatch Act as required by section 504(b) of 
the Act.
    (b) Programs authorized under title V shall be conducted as mutually 
agreed upon by the Secretary and the chief administrative officer of the 
State Land Grant University responsible for administering said programs 
in a memorandum of understanding which shall provide for the 
coordination of the programs, coordination of these programs with other 
rural development programs of Federal, State, and local government, and 
such other matters as the Secretary shall determine.



Sec. 23.3  Coordination.

    The chief administrative officer of the administratively responsible 
State Land Grant University will designate an official who will be 
responsible for the overall coordination of the authorized programs for 
the State. The designated official will be responsible for the overall 
coordination of planning, organizing, funding, conducting and evaluating 
programs in association with the person responsible for the 
administration of research programs, the person responsible for the 
administration of the extension programs, and the administrative head of 
agriculture of the University (chairman of the State Rural Development 
Advisory Council).



Sec. 23.4  State Rural Development Advisory Council.

    (a) The chief administrative officer of the administratively 
responsible State Land Grant University will appoint a State Rural 
Development Advisory Council with membership as set forth in section 
504(e) of title V. The function of the Council shall be to review and 
approve annual program plans conducted under title V. The Council will

[[Page 494]]

also advise the chief administrative officer on all matters pertaining 
to the authorized programs.
    (b) The Chairman of the State Rural Development Advisory Council 
will insure that programs proposed under title V including regional 
programs applicable within the State are not inconsistent with and are, 
to a maximum extent practicable, in consonance with other rural 
development programs and activities approved in that State.
    (c) Those elements of the research and extension plan which would 
impact directly on rural development activities being developed or 
pursued by States will be considered jointly by the State Rural 
Development Advisory Council and appropriate State agencies to assure a 
constructive reinforcement of those State activities.



Sec. 23.5  Availability of funds.

    Funds available under title V for extension and research programs 
shall be allocated to, and following approval of a State Annual Plan of 
Work, paid to the official of the State Land Grant University designated 
to receive funds under the Smith-Lever and Hatch Acts respectively. 
Funds will be available for State programs for expenditures authorized 
by section 503(c) of title V, in the fiscal year for which the funds 
were appropriated and the next fiscal year.



Sec. 23.6  Plan of Work.

    (a) A State Annual Plan of Work for carrying out the programs 
authorized under title V shall be prepared. The Plan of Work should 
include:
    (1) Identification of major problems and needs which can be met by 
each related extension and research program in the geographic or problem 
area.
    (2) The relationship of this program to ongoing planning and 
development efforts.
    (3) The organizational structure for planning, conducting, and 
evaluating each pilot program, including the names and title of the 
members of the Rural Development Advisory Council and the composition of 
major committees and work groups.
    (4) A separate concise statement describing specific extension 
projects to be funded under each program. The statement should contain 
the following elements: Title, objectives, organization and operational 
procedures, probable duration, personnel, institutions involved, and 
relation to the research effort. In addition, a brief description of 
each regular or special extension project which is complementary and 
supports the title V pilot program, but which is funded from other 
sources shall be included.
    (5) A separate concise statement describing specific research 
projects to be funded under each program. The statement should contain 
the following elements: Title, objectives, organization, and operational 
procedures, probable duration, personnel, institutions involved, and 
relation to the extension effort. In addition, a brief description of 
each regular or special research project which is complementary and 
supports the title V program, but which is funded from other sources, 
shall be included.
    (6) A plan for evaluating the impact of each program on the 
development of the area, including the effectiveness of the extension 
and research program techniques, and organizational structure for 
planning and conducting each program. Appraisals by community leaders in 
the area should be included in the evaluation.
    (7) Provisions for making an annual progress report to the Assistant 
Secretary for Conservation, Research, and Education which will document 
achievements pertaining to the goals and objectives as stated in the 
Plan of Work.
    (8) A budget statement for each program to be submitted on forms 
provided by the Assistant Secretary for Conservation, Research, and 
Education.
    (b) The Plan of Work shall include plans for all programs to be 
conducted with funds authorized under section 503(b)(3) and (4) of title 
V. The Plan of Work shall include plans for the programs to be conducted 
by each cooperating and participating university or college and such 
other information as included in these guidelines. Each State program 
must include research and extension activities directed toward 
identification of programs which are likely to have the greatest impact 
upon accomplishing the objectives of

[[Page 495]]

rural development in both the short and longer terms and the use of 
these studies to support the State's comprehensive program to be 
supported under section 505(b) of title V. In addition, all other rural 
development extension and research efforts funded from other sources 
that contribute directly to the proposed programs shall be described in 
the Plan of Work.
    (c) Since the appropriation authorization for title V is limited to 
a three-year period the Plan of Work should be developed to demonstrate 
extension and research program techniques and organizational structures 
for providing essential knowledge to assist and support rural 
development efforts within that time.
    (1) In accordance with the above criteria, the Plan of Work should:
    (i) Concentrate on limited geographic or problem areas where title V 
efforts would be expected to have high impact within the three-year 
authorization.
    (ii) Give emphasis to rural areas, including towns and cities with 
populations of less than 50,000.
    (iii) Involve the administratively responsible Land Grant University 
and other public or private colleges and universities, as appropriate, 
in meeting with high priority extension and research needs of the 
area(s).
    (iv) Give priority to education and research assistance leading to 
increasing job and income opportunities, improving quality of life, 
improving essential community services and facilities, improving housing 
and home improvements, and enhancing those social processes necessary to 
achieve these goals.
    (v) Be consistent with Statewide comprehensive planning and 
development efforts and objectives. Procedures set forth under Sec. 
23.4(c) are designed to achieve attainment of this requirement.
    (d) Four copies of the Plan of Work approved by the State Rural 
Development Advisory Council shall be submitted by the person 
responsible for the overall coordination of the title V programs in the 
State to the Assistant Secretary for Conservation, Research and 
Education, U.S. Department of Agriculture, Washington, DC 20250, within 
60 days after enactment of the annual Appropriation Act for the 
Department of Agriculture.
    (e) Plans of Work not meeting the above criteria will not be 
approved by the Assistant Secretary for Conservation, Research and 
Education.



                       Subpart B_Regional Program



Sec. 23.9  General.

    (a) Section 503(b)(2), title V, of the Rural Development Act of 1972 
(Pub. L. 92-419) hereafter referred to as ``Title V'' authorizes funds 
to finance work authorized under title V which serve two or more States; 
in which universities in two or more States cooperate; or which is 
conducted by one University serving two or more States. The authorized 
funding under section 503(b)(2) is hereafter referred to as the 
``Regional Programs.''
    (b) The Regional Programs shall develop and provide knowledge 
essential to assist and support rural development in the region, and 
shall provide for technical consultation and personnel development for 
the research and extension staff in the several States of the region to 
help them to be more responsive to rural development needs and 
activities.
    (c) The Regional Programs will concentrate on the high priority 
knowledge, training, and personnel needs required for the research and 
extension staff in the several States to conduct effective rural 
development research and extension to carry out the provisions of title 
V. These efforts may include personnel development and consultation; 
synthesis of existing research knowledge and the interpretation of this 
knowledge for rural development program and policy purposes; the 
development of strategies and procedures on high priority rural 
development problems of regional significance; as funds permit, the 
conduct of research on one of two high priority problems for which 
information is lacking but is urgently needed for rural development, and 
the evaluation of rural development programs and policies.
    (d) Regional Programs will be consonant with all rural development 
activities under the Act and other pertinent Federal development 
programs.

[[Page 496]]

To effectuate such purpose, the Assistant Secretary for Conservation, 
Research and Education will implement title V plans and activities in 
close cooperation with the Assistant Secretary for Rural Development. In 
order to insure such consonance, the Director of each Regional Center 
will insure that regional programs having an impact within one or more 
States are brought to the attention of the appropriate State overall 
coordinator for consideration pursuant to procedures in Sec. 23.4(c).



Sec. 23.10  Administration.

    (a) The Regional Programs will be administered through four Regional 
Rural Development Centers hereafter referred to as ``Regional Centers'' 
in cooperation with the Extension Service and the Cooperative State 
Research Service. The Director of each Regional Center shall be 
responsible for compliance with all appropriate provisions of title V 
and the regulations of this subpart. Regions as delineated for purposes 
under section 503(b)(2) will be coterminous with the regional 
delineation by the National Association of State Universities and Land 
Grant Colleges. Each Regional Center will be established by the regional 
association of State Agricultural Experiment Station Directors and the 
regional organization of Cooperative Extension Directors in the region 
to be served by the Regional Center. These associations and 
organizations will designate the location of the Regional Center.
    (b) Although the Regional Center will administer the program, it is 
also expected that it will draw on expertise from outside the Regional 
Center. The Director of each Regional Center shall seek advice and 
assistance from regional and subregional committees, groups or persons 
who can contribute to the Regional Center's program.



Sec. 23.11  Board of Directors.

    (a) For each Regional Center there shall be a Board of Directors 
selected by the Regional Association of Agricultural Experiment Station 
Directors and the Regional Organization of Cooperative State Extension 
Directors. Membership on the Board of Directors shall include 
representatives from State Cooperative Extension Services and State 
Agricultural Experiment Stations from the States in the region and/or 
other State administrators of programs carried out under title V in the 
region.
    (b) The Director of each Regional Center will be responsible to the 
Board of Directors for the Regional Program conducted at that Regional 
Center. The Regional Annual Plan of Work will be developed by the 
Director and reviewed and approved by the Board of Directors.



Sec. 23.12  Availability of funds.

    Available funds will be allocated equally and following approval of 
a Regional Annual Plan of Work paid to the Directors of the four 
Regional Centers. Funds will be available for Regional Programs for 
expenditures authorized by section 503(c) of title V, in the fiscal year 
for which the funds were appropriated and the next fiscal year.



Sec. 23.13  Plan of Work.

    (a) A Regional Plan of Work for carrying out the programs authorized 
to be funded under section 503(b)(2) of title V shall be prepared. The 
Plan of Work should include:
    (1) A brief narrative statement including identification of high 
priority knowledge, skill, and organization needs for rural development 
program and policy purposes in the region and identification of 
technical consultation, training, and personnel needs of research and 
extension workers in support of rural development programs.
    (2) A statement indicating:
    (i) The types of personnel to be trained, technical consultation to 
be conducted, the estimated number of participants, the location or 
locations where the program will be conducted, and the staff who will 
conduct the work;
    (ii) The types of topical areas of rural development for which the 
synthesis of available research knowledge for rural development purposes 
is planned;
    (iii) The type of high priority rural development research which 
will be undertaken as funds permit and the staff which would do the 
research;

[[Page 497]]

    (iv) The type of evaluation studies which will be made and the staff 
which will do the evaluation; and
    (v) The relationship of the Plan of Work to priorities activated 
under subpart A of this part, which in turn support State development 
strategies.
    (3) A concise statement of the organization structure for planning 
and conducting the program funded under section 503(b)(2).
    (4) A plan for evaluating the usefulness of the program and the 
effectiveness of the organizational structure.
    (5) Provision for making an annual progress report to the Assistant 
Secretary for Conservation, Research and Education which will document 
achievements pertaining to the goals and objectives as stated in the 
Plan of Work.
    (6) A budget statement to be submitted on forms provided by the 
Assistant Secretary for Conservation, Research and Education.
    (b) The Plan of Work shall be coordinated with the work program of 
other pertinent multi-State organizations or bodies for those activities 
of the Regional Rural Development Centers which go beyond direct 
assistance to individual State programs conducted under title V.
    (c) The Director of the Center will forward four copies of the Plan 
of Work to the Assistant Secretary for Conservation, Research and 
Education, U.S. Department of Agriculture, Washington, D.C. 20250, by a 
time to be specified by the Assistant Secretary for Conservation, 
Research and Education.
    (d) Regional Annual Plans of Work not meeting the above criteria 
will not be approved by the Assistant Secretary for Conservation, 
Research and Education.



PART 24_BOARD OF CONTRACT APPEALS, DEPARTMENT OF AGRICULTURE--Table 
of Contents




                  Subpart A_Organization and Functions

Sec.
24.1 General.
24.2 Composition of the Board.
24.3 Presiding Administrative Judge.
24.4 Jurisdiction.
24.5 Time for filing notice of appeal.
24.6 Board location and address.
24.7 Public information.
24.8 Rules of procedure.
24.9 Definitions.

                      Subpart B_Rules of Procedure

24.21 Rules of Procedure of Agriculture Board of Contract Appeals--
          AGBCA.

Appendix to Subpart B--Rule of Procedure

    Authority: 5 U.S.C. 301; 15 U.S.C. 714b, 714g, and 714h; 16 U.S.C. 
551; 40 U.S.C. 486(c); 41 U.S.C. 601-613.

    Source: 60 FR 56207, Nov. 7, 1995, unless otherwise noted.



                  Subpart A_Organization and Functions



Sec. 24.1  General.

    The Board of Contract Appeals, United States Department of 
Agriculture (referred to as the ``Board'') is an agency of the 
Department established by the Secretary of Agriculture in accordance 
with the requirements of the Contract Disputes Act of 1978 (41 U.S.C. 
601-613). The provisions of 5 U.S.C. 551-559 (Administrative Procedure 
Act) are not applicable to proceedings before the Board except for the 
requirements under 5 U.S.C. 552 respecting public information, agency 
rules, opinions, orders, and records.



Sec. 24.2  Composition of the Board.

    The Board consists of a Chair, Vice Chair, and other members, all of 
whom are attorneys at law duly licensed by a state, commonwealth, 
territory, or the District of Columbia. The Board members are designated 
Administrative Judges. The Chair shall manage the business and 
operations of the Board, assign cases to members, and establish panels 
for cases. Except as provided in Rule 12.2, the Small Claims (Expedited) 
Procedure, and Rule 12.3, the Accelerated procedure, decisions of the 
Board will be rendered by a panel of three Administrative Judges, and 
the decision of the majority of the panel will constitute the decision 
of the Board. The Vice Chair shall perform the functions of the Chair 
upon request of the Chair or in the event of absence or unavailability 
of the Chair to act.

[[Page 498]]



Sec. 24.3  Presiding Administrative Judge.

    The Chair acts as presiding Administrative Judge, or designates a 
member of the Board or an examiner to so act, in each proceeding. The 
Presiding Administrative Judge or the examiner has power to:
    (a) Rule upon motions and request;
    (b) Adjourn the hearing from time to time and change the time and 
place of hearing;
    (c) Administer oaths and affirmations and take affidavits;
    (d) Receive evidence;
    (e) Order the taking of depositions;
    (f) Admit or exclude evidence;
    (g) Hear oral argument on facts or law;
    (h) Consolidate appeals filed by two or more appellants; and
    (i) Do all acts and take all measures necessary for the maintenance 
of order at the hearing and the efficient conduct of the proceeding.

In cases considered by the Board under Sec. 24.4(b), (c), and (d) the 
Chair is hereby delegated authority to request subpoenas pursuant to 5 
U.S.C. 304.



Sec. 24.4  Jurisdiction.

    (a) Contract Disputes Act. Pursuant to the Contract Disputes Act of 
1978 (41 U.S.C. 601-613), the Board shall consider and determine appeals 
from decisions of contracting officers relating to contracts entered 
into on or after March 1, 1979, and, at the contractor's election, 
contracts entered into prior to March 1, 1979, with respect to claims 
pending before the contracting officer on March 1, 1979, or initiated 
thereafter. For purposes of this paragraph (a) the term ``contracts'' 
shall mean express or implied contracts made by the Department of 
Agriculture, agencies of the Department, or by any other executive 
agency when such agency or the Administrator for Federal Procurement 
Policy has designated the Board to decide the appeal, for:
    (1) The procurement of property, other than real property in being;
    (2) The procurement of services;
    (3) The procurement of construction, alternation, repair, or 
maintenance of real property; or
    (4) The disposal of personal property.
    (b) Federal Crop Insurance Corporation. The Board shall have 
jurisdiction of appeals of final administrative determinations of the 
Corporation pertaining to standard reinsurance agreements under 7 CFR 
400.169(d). Decisions of the Board shall be final within the Corporation 
and the Department.
    (c) Suspension and debarment. (1) The Board shall have jurisdiction 
to hear and determine the issue of suspension or debarment, and the 
period thereof, on an appeal by a person suspended or debarred by:
    (i) An authorized official of the Department of Agriculture under 48 
CFR 409.470; or
    (ii) An authorized official of the Commodity Credit Corporation 
under 7 CFR part 1407.
    (2) In addition, the Board shall have jurisdiction to hear and 
determine the issue of debarment, and the period thereof, on an appeal 
by a timber purchaser debarred by an authorized official of the Forest 
Service under 36 CFR 223.138.
    (3) Decisions of the Board shall be final within the Department.
    (d) Contract Work Hours and Safety Standards Act. The Board shall 
have jurisdiction to act for the head of the agency in appeals of the 
administrative determinations of liquidated damages under the Contract 
Work Hours and Safety Standards Act (40 U.S.C. 327-333), 40 U.S.C. 330.



Sec. 24.5  Time for filing notice of appeal.

    A notice of appeal under Sec. 24.4(a), (c)(1)(i), or (c)(1)(ii) 
shall be filed within 90 days from the date of receipt of a contracting 
officer's or suspending or debarring official's decision. A notice of 
appeal under Sec. 24.4(b) shall be filed within 90 days from the date 
of receipt of the Corporation's final determination. A notice of appeal 
under Sec. 24.4(c)(2) shall be filed within 30 days from the date of 
receipt of the debarring official's decision. A notice of appeal under 
Sec. 24.4(d) shall be filed within 60 days from the date of withholding 
of liquidated damages. The time for filing a notice of appeal shall not 
be extended by the Board.



Sec. 24.6  Board location and address.

    The Board of Contract Appeals is located in Washington, DC. All 
correspondence and all documents to be

[[Page 499]]

filed with the Board should be addressed to the Board of Contract 
Appeals, United States Department of Agriculture, Washington, DC 20250-
0600. The Board's telephone number is 202-720-7023; the Board's 
facsimile number is 202-720-3059.



Sec. 24.7  Public information.

    (a) The records of the Board are open to the public for inspection 
and copying at the Office of the Board. Decisions and rulings of the 
Board shall be published from time to time and copies made available to 
the public upon request at cost of duplication except that the Board 
shall, in its discretion, have authority to make copies of decisions and 
rulings available at no charge in accordance with Department policy, 
appendix A to 7 CFR part 1, subpart A. Hearings before the Board shall 
be open to the public.
    (b) Information that is to be made available for public inspection 
and copying under provisions of 5 U.S.C. 552(a)(2) and 7 CFR 1.5 may be 
obtained at the office of the Board. The address of the Board is set 
forth in Sec. 24.6. Except for such information as is generally 
available to the public, requests should be in writing and submitted in 
accordance with 7 CFR 1.6 and paragraphs (c) and (d) of this Sec. 24.7.
    (c) Facilities for copying are available at the office of the Board.
    (d) Facilities for inspection and copying are available during 
established office hours for the Board, usually 8:30 a.m. to 5:00 p.m. 
Monday through Friday. The Department of Agriculture has established a 
schedule of fees for copies of information. The Board charges for copies 
of records in accordance with the Department fee schedule, appendix A to 
7 CFR part 1, subpart A.
    (e) The Vice Chair is authorized to receive requests for records 
submitted in accordance with 7 CFR 1.6(a), and to make determinations 
regarding whether to grant or deny requests for records exempt from 
mandatory disclosure under the provisions of 5 U.S.C. 552(b). This 
official is authorized to
    (1) Extend the ten-day administrative deadline for reply pursuant to 
7 CFR 1.14,
    (2) Make discretionary releases pursuant to 7 CFR 1.17(b) of records 
except from mandatory disclosure, and
    (3) Make determinations regarding the charging of fees.
    (f) Appeals from denials of request submitted under paragraph (e) of 
this section shall be submitted in accordance with 7 CFR 1.6(e) to the 
Chair, Board of Contract Appeals, United States Department of 
Agriculture, Washington, DC 20250-0600. The Chair shall determine 
whether to grant or deny the appeal and shall also make all necessary 
determinations relating to an extension of the twenty-day administrative 
deadline for reply pursuant to 7 CFR 1.14, discretionary release 
pursuant to 7 CFR 1.17(b) of records exempt from mandatory disclosure 
under 5 U.S.C. 552(b), and the charging of appropriate fees.



Sec. 24.8  Rules of procedure.

    The Chair of the Board shall prescribe its Rules of Procedure and 
publish such Rules in subpart B of this part 24 and may prescribe and so 
publish amendments from time to time. The Rules of Procedure and any 
amendments thereto shall be consistent with this subpart.



Sec. 24.9  Definitions.

    Board means the Board of Contract Appeals established under this 
subpart.
    Contract means any agreement entered into by the Department or its 
agencies or authorized officials with any person having the legal effect 
of a contract between the Department and such person.
    Contracting officer means any person who, by appointment in 
accordance with applicable regulations, has the authority to enter into 
and administer contracts and make determinations and findings with 
respect thereto and includes the authorized representative of the 
contracting officer, acting within the limits of his/her authority.
    Days means calendar days. Except as otherwise provided by law, in 
computing any period of time prescribed by the rules in this part or any 
order of the Board, the day of the event from which the designated 
period of time begins to run shall not be included, but

[[Page 500]]

the last day of the period shall be included unless it is a Saturday, 
Sunday, or a legal holiday, in which even the period shall run to the 
end of the next business day. If mailing is required, the date of the 
postmark shall be treated as the date action was taken.
    Department means the United States Department of Agriculture.
    Government attorney means the attorney of the Department designated 
to handle a particular appeal on behalf of the contracting officer.
    Person means any individual, partnership, public or private 
corporation, association, agency or other legal entity.



                      Subpart B_Rules of Procedure



Sec. 24.21  Rules of Procedure of Agriculture Board of Contract 
Appeals--AGBCA.

    (a) Preface to Rules. Time, computation and extensions. All time 
limitations specified for various procedural actions are computed as 
maximums and are not to be fully exhausted if the action described can 
be accomplished in a lesser period. Where appropriate and justified, 
however, extensions of time will be granted. All requests for extensions 
of time by either party shall be in writing and state good cause for the 
requested extension. The Board may grant such extensions on good cause 
shown except that the Board shall not extend the time prescribed under 
Sec. 24.5 for taking an appeal.
    (b) Ex parte communications. No member of the Board or of the 
Board's staff shall entertain, nor shall any person directly or 
indirectly involved in an appeal submit to the Board or the Board's 
staff, off the record, any evidence, explanation, analysis, or advice, 
whether written or oral, regarding any matter at issue in an appeal. 
This provision does not apply to consultation among Board members or to 
ex parte communication concerning the Board's administrative functions 
or procedures.

          Appendix to Subpart B of Part 24--Rules of Procedure

                                  Index

                         Preliminary Procedures

Rule 1. Appeals, How and When Taken.
Rule 2. Notice of Appeal, Contents of.
Rule 3. Docketing of Appeals.
Rule 4. Preparation, Content, Organization, Forwarding, and Status of 
          Appeal File.
Rule 5. Dismissal for Lack of Jurisdiction.
Rule 6. Pleadings.
Rule 7. Amendments of Pleadings or Record.
Rule 8. Hearing Election.
Rule 9. Prehearing Briefs.
Rule 10. Prehearing or Presubmission Conference.
Rule 11. Submission Without a Hearing.
Rule 12. Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED Procedures.
Rule 12.1. Elections to Utilize SMALL CLAIMS (EXPEDITED) and ACCELERATED 
          Procedures.
Rule 12.2. The SMALL CLAIMS (EXPEDITED) Procedure.
Rule 12.3. The ACCELERATED Procedure.
Rule 12.4. Motions for Reconsideration in Rule 12 cases.
Rule 13. Settling the Record.
Rule 14. Discovery--Depositions.
Rule 15. Interrogatories to Parties, Admission of Facts, and Production 
          and Inspection of Documents.
Rule 16. Service of Papers other than Subpoenas.

                                Hearings

Rule 17. Where and When Held.
Rule 18. Notice of Hearings.
Rule 19. Unexcused Absence of a Party.
Rule 20. Hearings: Nature; Examination of Witnesses.
Rule 21. Subpoenas for CDA Appeals.
Rule 21.1. Subpoenas for Non-CDA Appeals.
Rule 22. Copies of Papers.
Rule 23. Posthearing Briefs.
Rule 24. Transcript of Proceedings.
Rule 25. Withdrawal of Exhibits.

                             Representation

Rule 26. The Appellant.
Rule 27. The Government.

                              Miscellaneous

Rule 28. Decisions.
Rule 29. Motion for Reconsideration.
Rule 30. Dismissal Without Prejudice.
Rule 31. Dismissal for Failure to Prosecute or Defend.
Rule 32. Remand from Court.
Rule 33. Sanctions.
Rule 34. Alternative Dispute Resolution.
Rule 35. Application for Attorneys' Fees and Expenses Under the Equal 
          Access to Justice Act.

                      Rules--Preliminary Procedures

                   Rule 1. Appeals, How and When Taken

    (a) Notice of Appeal--90 days. Notice of an appeal shall be in 
writing and mailed or otherwise furnished to the Board within 90 days

[[Page 501]]

from the date of receipt of a contracting officer's decision. A copy of 
the notice of appeal shall be furnished to the contracting officer from 
whose decision the appeal is taken.
    (b) Failure to Issue CO Decision--60 days--$100,000 or less. Where 
the contractor has submitted a claim of $100,000 or less to the 
contracting officer and has requested a written decision within 60 days 
from receipt of the request, and the contracting officer has not done 
so, the contractor may file a notice of appeal as provided in paragraph 
(a) of this Rule 1, citing the failure of the contracting officer to 
issue a decision.
    (c) Failure to Issue CO Decision--Reasonable Time--More than 
$100,000. Where the contractor has submitted a certified claim in excess 
of $100,000 to the contracting officer and the contracting officer has 
failed to issue a decision within a reasonable time, the contractor may 
file a notice of appeal as provided in paragraph (a) of this Rule 1, 
citing the failure to issue a decision.
    (d) Stay Pending Final CO Decision. Upon docketing of appeals filed 
pursuant to paragraphs (b) or (c) of this Rule 1, the Board may, at its 
option, stay further proceedings pending issuance of a final decision by 
the contracting officer within such period of time as is determined by 
the Board.

                  Rule 2. Notice of Appeal. Contents of

    A notice of appeal should indicate that an appeal is being taken and 
should identify the contract (by number), the department and agency or 
bureau involved in the dispute, the decision from which the appeal is 
taken, and the amount in dispute, if known. The notice of appeal should 
be signed by the appellant (the contractor making the appeal), or by the 
appellant's duly authorized representative or attorney. The Complaint 
referred to in Rule 6 may be filed with the notice of appeal, or the 
appellant may designate the notice of appeal as a Complaint.

                      Rule 3. Docketing of Appeals

    When a notice of appeal in any form has been received by the Board, 
it shall be docketed promptly. Notice in writing shall be given to the 
appellant, with a copy of these rules and information on Alternative 
Dispute Resolution. Notice in writing shall be given also to the 
contracting officer and to the Office of the General Counsel.

 Rule 4. Preparation, Content, Organization, Forwarding, and Status of 
                               Appeal File

    (a) Duties of Contracting Officer. Within 30 days of receipt of a 
letter from the Board transmitting the Complaint, the contracting 
officer shall assemble and transmit to the Board through agency channels 
and appeal file, and shall transmit copies thereof to the appellant and 
the Government attorney. The appeal file shall consist of all documents 
pertinent to the appeal, including:
    (1) The decision from which the appeal is taken;
    (2) The contract, including specifications and pertinent amendments, 
plans, and drawings;
    (3) All correspondence between the parties relevant to the appeal; 
including the letter or letters of claim in response to which the 
decision was issued;
    (4) Transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witnesses on the matter 
in dispute made prior to the filing of the notice of appeal with the 
Board; and
    (5) Any additional information considered relevant to the appeal.
    (b) Duties of the Appellant. Within 30 days after receipt of a copy 
of the appeal file assembled by the contracting officer, the appellant 
shall transmit to the Board any documents not contained therein which 
the appellant considers relevant to the appeal, and shall transmit 
copies of such documents to the Government attorney and the contracting 
officer.
    (c) Organization of Appeal File. Documents in the appeal file may be 
originals or legible facsimiles or authenticated copies, and shall be 
arranged in chronological order where practicable, numbered 
sequentially, tabbed, and indexed to identify the contents of the file.
    (d) Lengthy Documents. Upon request by either party, the Board may 
waive the requirement to furnish to the other party copies of bulky, 
lengthy, or out-of-size documents in the appeal file when inclusion 
would be burdensome. At the time a party files with the Board a document 
as to which such a waiver has been granted such party shall notify the 
other party that the document or a copy is available for inspection at 
the offices of the Board or of the party filing same.
    (e) Status of Documents in Appeal File. Documents contained in the 
appeal file are considered, without further action by the parties, as 
part of the record upon which the Board will render its decision. 
However, a party may object, for reasons stated, to consideration of a 
particular document or documents reasonably in advance of hearing, or if 
there is no hearing, of settling the record. If such objection is made 
the Board shall remove the document or documents from the appeal file 
and permit the party offering the document to move its admission as 
evidence either prior to hearing or prior to closing the record if there 
is no hearing, in accordance with Rules 13 and 20.
    (f) Dispensing with Appeal File Requirements. Notwithstanding the 
foregoing, the filing of the Rule 4 (a) and (b) documents may be 
dispensed with by the Board either upon request of the appellant in the 
notice of appeal or thereafter upon stipulation of the parties.

[[Page 502]]

               Rule 5. Dismissal for Lack of Jurisdiction

    Any motion addressed to the jurisdiction of the Board shall be 
promptly filed. Hearing on the motion shall be afforded on application 
of either party. However, the Board may defer its decision on the motion 
pending hearing on both the merits and the motion. The Board shall have 
the right to any time and on its own initiative to raise the issue of 
its jurisdiction to proceed with a particular case, and shall do so by 
an appropriate order, affording the parties an opportunity to be heard 
thereon.

                            Rule 6. Pleadings

    (a) Appellant--Complaint. Except as provided in Rule 12.2(b) and 
Rule 12.3(b), within 30 days after receipt of notice of docketing of the 
appeal, the appellant shall file with the Board an original and two 
copies of a Complaint setting forth simple, concise and direct 
statements of each of its claims. Appellant shall also set forth the 
basis, with appropriate reference to contract provisions, of each claim 
and the dollar amount claimed, to the extent known. This pleading shall 
fulfill the generally recognized requirements of a Complaint, although 
no particular form is required. Upon receipt of the Complaint, the Board 
shall serve a copy of it upon the Government and the contracting 
officer. Should the Complaint not be filed within 30 days, appellant's 
claim and appeal may, if in the opinion of the Board the issues before 
the Board are sufficiently defined, be deemed to set forth its Complaint 
and the Government shall be so notified.
    (b) Government--Answer. Within 30 days from receipt of the 
Complaint, or the aforesaid notice from the Board, the Government shall 
prepare and file with the Board an original and one copy of an Answer 
thereto. The Answer shall set forth simple, concise, and direct 
statements of Government's defenses to each claim asserted by appellant, 
including any affirmative defenses available, and shall be served on the 
appellant and the contracting officer. Should the Answer not be filed 
within 30 days, the Board may, in its discretion, enter a general denial 
on behalf of the Government, and the appellant shall be so notified.

                Rule 7. Amendments of Pleadings or Record

    The Board upon its own initiative or upon application by a party may 
order a party to make a more definite statement of the Complaint or 
Answer, or to reply to an Answer. The Board may, in its discretion, and 
within the proper scope of the appeal, permit either party to amend its 
pleading upon conditions fair to both parties. When issues within the 
proper scope of the appeal, but not raised by the pleadings, are tried 
by express or implied consent of the parties, or by permission of the 
Board, they shall be treated in all respects as if they had been raised 
therein. In such instances, motions to amend the pleadings to conform to 
the proof may be entered, but are not required. If evidence is objected 
to at a hearing on the ground that it is not within the issues raised by 
the pleadings, it may be admitted within the proper scope of the appeal, 
provided, however, that the objecting party may be granted a continuance 
if necessary to enable it to meet such evidence.

                        Rule 8. Hearing Election

    After filing of the Government's Answer or notice from the Board 
that it has entered a general denial on behalf of the Government, each 
party shall advise whether it desires a hearing as prescribed in Rules 
17 through 25, or whether it elects to submit its case on the record 
without a hearing, as prescribed in Rule 11.

                        Rule 9. Prehearing Briefs

    Based on an examination of the pleadings, and its determination of 
whether the arguments and authorities addressed to the issues are 
adequately set forth therein, the Board may, in its discretion, require 
the parties to submit prehearing briefs in any case in which a hearing 
has been elected pursuant to Rule 8. If the Board does not require 
prehearing briefs either party may, in its discretion and upon 
appropriate and sufficient notice to the other party, furnish a 
prehearing brief to the Board. In any case where a prehearing brief is 
submitted, it shall be furnished so as to be received by the Board at 
least 15 days prior to the date set for hearing, and a copy shall 
simultaneously be furnished to the other party as previously arranged.

             Rule 10. Prehearing or Presubmission Conference

    (a) Conference. Whether the case is to be submitted pursuant to Rule 
11, or heard pursuant to Rules 17 through 25, the Board may upon its own 
initiative, or upon the application of either party, arrange a telephone 
conference or call upon the parties to appear before an Administrative 
Judge or examiner of the Board of a conference to consider:
    (1) Simplification, clarification, or severing of the issues;
    (2) The possibility of obtaining stipulations, admissions, 
agreements and rulings on admissibility of documents, understandings on 
matters already of record, or similar agreements that will avoid 
unnecessary proof;
    (3) Agreements and rulings to facilitate discovery;
    (4) Limitation of the number of expert witnesses, or avoidance of 
similar cumulative evidence;

[[Page 503]]

    (5) The possibility of agreement disposing of any or all of the 
issues in dispute; and
    (6) Such other matters as may aid in the disposition of the appeal.
    (b) Written Results of Conference. The Administrative Judge or 
examiner of the Board shall make such rulings and orders as may be 
appropriate to achieve settlement by agreement of the parties or to aid 
in the disposition of the appeal. The results of pretrial conferences, 
including any rulings and orders, shall be reduced to writing by the 
Administrative Judge or examiner and this writing shall thereafter 
constitute a part of the record.

                  Rule 11. Submission Without a Hearing

    Either party may elect to waive a hearing and to submit its case 
upon the record before the Board, as settled pursuant to Rule 13. 
Submission of a case without hearing does not receive the parties from 
the necessity of proving the facts supporting their allegations or 
defenses. Affidavits, depositions, admissions, answer to 
interrogatories, and stipulations may be employed to supplement other 
documentary evidence in the Board record. The Board may permit such 
submission to be supplemented by oral argument (transcribed if 
requested), and by briefs arranged in accordance with Rule 23.

  Rule 12. Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED Procedures

    Notwithstanding any other provisions of these Rules of Procedure, 
the SMALL CLAIMS (EXPEDITED) and ACCELERATED procedures shall be 
available solely at the election of the appellant.

Rule 12.1. Elections to Utilize SMALL CLAIMS (EXPEDITED) and ACCELERATED 
                               Procedures

    (a) SMALL CLAIMS (EXPEDITED)--$50,000 or less. In appeals where the 
amount in dispute is $50,000 or less, the appellant may elect to have 
the appeal processed under a SMALL CLAIMS (EXPEDITED) procedure 
requiring decision of the appeal, whenever possible, within 120 days 
after the Board receives written notice of the appellant's election. The 
details of this procedure appear in Rule 12.2.
    (b) ACCELERATED--$100,000 or less. In appeals where the amount in 
dispute is $100,000 or less, the appellant may elect to have the appeal 
processed under an ACCELERATED procedure requiring decision of the 
appeal, whenever possible, within 180 days after the Board receives 
written notice of the appellant's election. The details of this 
procedure appear in Rule 12.3.
    (c) Time for Election. The appellant's election of either the SMALL 
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure may be made by 
written notice within 60 days after receipt of notice of docketing the 
appeal unless such period is extended by the Board for good cause. The 
election may not be withdrawn except with permission of the Board and 
for good cause.
    (d) Board Determines Amount in Dispute. In deciding whether the 
SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure is 
applicable to a given appeal, the Board shall determine the amount in 
dispute.

            Rule 12.2. The SMALL CLAIMS (EXPEDITED) Procedure

    (a) Time Periods for Proceedings. In cases proceeding under the 
SMALL CLAIMS (EXPEDITED) procedure, the following time periods shall 
apply: (1) Within ten days from the Government's first receipt from 
either the appellant or the Board of a copy of the appellant's notice of 
election of the SMALL CLAIMS (EXPEDITED) procedure, the Government shall 
send the Board a copy of the contract, the contracting officer's final 
decision, and the appellant's claim letter or letters, if any; remaining 
documents required under Rule 4 shall be submitted in accordance with 
times specified in that rule unless the Board otherwise directs;
    (2) Within 15 days after the Board has acknowledged receipt of 
appellant's notice of election, the assigned Administrative Judge shall 
take the following actions, if feasible, in an informal meeting or a 
telephone conference with both parties: (i) Identify and simplify the 
issues; (ii) establish a simplified procedure appropriate to the 
particular appeal involved; (iii) determine whether the appellant wants 
a hearing, and if so, fix a time and place therefore; (iv) require the 
Government to furnish all the additional documents relevant to the 
appeal, and (v) establish an expedited schedule for resolution of the 
appeal.
    (b) Decisions--120 Days). Pleadings, discovery and other prehearing 
activity will be allowed only as consistent with the requirement to 
conduct the hearing on the date scheduled, or if no hearing is 
scheduled, to close the record on a date that will allow decisions 
within the 120-day limit. The Board, in its discretion, may impose 
shortened time periods for any actions prescribed or allowed under these 
rules, as necessary to enable the Board to decide the appeal within the 
120-day limit, allowing whatever time, up to 30 days, that the Board 
considers necessary for the preparation of the decision after closing 
the record and the filing of briefs, if any.
    (c) Form of Decisions. Written decision by the Board in cases 
processed under the SMALL CLAIMS (EXPEDITED) procedure will be short and 
contain only summary findings of fact and conclusions. Decisions will be 
rendered for the Board by a single Administrative Judge. If there has 
been a hearing, the Administrative Judge presiding at the hearing may, 
in the Judge's discretion, at

[[Page 504]]

the conclusion of the hearing and after entertaining such oral arguments 
as deemed appropriate, render on the record oral summary findings of 
fact, conclusions, and a decision of the appeal. Whenever such an oral 
decision is rendered, the Board will subsequently furnish the parties a 
typed copy of such oral decision for record and payment purposes and to 
establish the starting date for the period for filing a motion for 
reconsideration under Rule 29.
    (d) No Precedent--Not Appealable. A decision against the Government 
or the contractor shall have no value as precedent, and in the absence 
of fraud shall be final and conclusive and may not be appealed or set 
aside.

                  Rule 12.3. The ACCELERATED Procedure

    (a) Time Periods for Proceedings. In cases proceeding under the 
ACCELERATED procedure, the parties are encouraged, to the extent 
possible consistent with adequate presentation of their factual and 
legal positions, to waive pleadings, discovery, and briefs. The Board, 
in its discretion, may shorten time periods prescribed elsewhere in 
these Rules, including Rule 4, as necessary to enable the Board to 
decide the appeal within 180 days after the Board has received the 
appellant's notice of election of the ACCELERATED procedure, any may 
reserve 30 days for preparation of the decision.
    (b) Decisions--180 Days. Pleadings, discovery and other prehearing 
activity will be allowed only as consistent with the requirement to 
conduct the hearing on the dates scheduled, or if no hearing is 
scheduled, to close the record on a date that will allow decision within 
the 180-day limit. The Board, in its discretion, may impose shortened 
time periods for any actions prescribed or allowed under these rules, as 
necessary to enable the Board to decide the appeal within the 180-day 
limit, allowing whatever time, up to 30 days, that the Board considers 
necessary for the preparation of the decision after closing the record 
and the filing of briefs, if any.
    (c) Form of Decisions. Written decisions by the Board in cases 
processed under the ACCELERATED procedure will normally be short and 
contain only summary findings of fact and conclusions. Decisions will be 
rendered for the Board by a single Administrative Judge with the 
concurrence of the Chair or a Vice Chair or other designated 
Administrative Judge, or by a majority among these two and an additional 
designated member in case of disagreement. Alternatively, in cases where 
the amount in dispute is $50,000 or less as to which the ACCELERATED 
procedure has been elected and in which there has been a hearing, the 
single Administrative Judge presiding at the hearing may, with the 
concurrence of both parties, at the conclusion of the hearing and after 
entertaining such oral arguments as deemed appropriate, render on the 
record oral summary findings of fact, conclusions, and a decision of the 
appeal. Whenever such an oral decision is rendered, the Board will 
subsequently furnish the parties a typed copy of such oral decision for 
record and payment purposes and to establish the starting date for the 
period for filing a motion for reconsideration under Rule 29.

         Rule 12.4. Motions for Reconsideration in Rule 12 Cases

    Motions for Reconsideration of cases decided under either the SMALL 
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be 
decided within the original 120-day or 180-day limit, but all such 
motions shall be processed and decided rapidly so as to fulfill the 
intent of this Rule.

                      Rule 13. Settling the Record

    (a) Components of the Record. The record upon which the Board's 
decision will be rendered consists of the documents furnished under 
Rules 4 and 12, to the extent admitted in evidence, and the following 
items, if any: pleadings, prehearing conference memoranda or orders, 
prehearing briefs, depositions or interrogatories received in evidence, 
admissions, stipulations, transcripts of conferences and hearings, 
hearings exhibits, posthearing briefs, and documents which the Board has 
specifically designated be made a part of the record. The record will, 
at all reasonable times, be available for inspection by the parties at 
the office of the Board.
    (b) Closing Dates for Inclusion of Material. Except as the Board may 
otherwise order in its discretion, no proof shall be received in 
evidence after completion of an oral hearing or, in cases submitted on 
the record, after notification by the Board that the case is ready for 
decision.
    (c) Weight Given to Evidence. The weight to be attached to any 
evidence of record will rest within the sound discretion of the Board. 
The Board may in any case require either party, with appropriate notice 
to the other party, to submit additional evidence on any matter relevant 
to the appeal.

                     Rule 14. Discovery--Depositions

    (a) General Policy and Protective Orders. The parties are encouraged 
to engage in voluntary discovery procedures. In connection with any 
deposition or other discovery procedure, the Board may make any order 
required to protect a party or person from annoyance, embarrassment, or 
undue burden or expense. Those orders may include limitations on the 
scope, method, time and place for discovery, and provisions for 
protecting the secrecy of confidential information or documents.
    (b) When Depositions Permitted. After an appeal has been docketed 
and Complaint filed, the parties may mutually agree, or the Board may, 
upon application of either party,

[[Page 505]]

order the taking of testimony of any person by deposition upon oral 
examination or written interrogatories before any officer authorized to 
administer oaths at the place of examination, for use as evidence or for 
purpose of discovery. The application for order shall specify whether 
the purpose of the deposition is discovery or for use as evidence.
    (c) Orders on Depositions. The time, place, and manner of taking 
depositions shall be as mutually agreed by the parties, or failing such 
agreement, governed by order of the Board.
    (d) Use as Evidence. No testimony taken by depositions shall be 
considered as part of the evidence in the hearing of an appeal until 
such testimony is offered and received in evidence at such hearing. It 
will not ordinarily be received in evidence if the deponent is present 
and can testify at the hearing. In such instances, however, the 
deposition may be used to contradict or impeach the testimony of the 
deponent given at the hearing. In cases submitted on the record, the 
Board may, in its discretion, receive depositions to supplement the 
record.
    (e) Expenses. Each party shall bear its own expenses associated with 
the taking of any deposition.
    (f) Subpoenas. Where appropriate, a party may request the issuance 
of a subpoena under the provisions of Rule 21.

Rule 15. Interrogatories to Parties, Admission of Facts, and Production 
                       and Inspection of Documents

    After an appeal has been docketed and Complaint filed with the 
Board, a party may serve on the other party: (a) Written interrogatories 
to be answered separately in writing, signed under oath and answered or 
objected to within 30 days; (b) a request for the admission of specified 
facts and the authenticity of any documents, to be answered or objected 
to within 30 days after service (the factual statements and the 
authenticity of the documents to be deemed admitted upon failure of a 
party to respond to the request); and (c) a request for the production, 
inspection and copying of any documents or objects not privileged, which 
reasonably may lead to the discovery of admissible evidence. Any 
discovery engaged in under this Rule shall be subject to the provisions 
of Rule 14(a) with respect to general policy and protective orders and 
of Rule 33 with respect to sanctions.

             Rule 16. Service of Papers Other Than Subpoenas

    (a) Service of Papers. Papers shall be served personally or by 
certified mail, return receipt requested, addressed to the Board or to 
the party upon whom service is to be made. Parties shall furnish three 
copies of Complaints directly to the Board. Parties shall furnish two 
copies of Answers and briefs directly with the Board, with one copy 
being served on the opposing party and the Board's copies containing a 
notation to that effect. The party filing any other paper with the Board 
shall send a copy thereof to the opposing party, noting on the paper 
filed with the Board that a copy has been so furnished. Subpoenas shall 
be served as provided in Rule 21.
    (b) Facsimle Transmissions. Facsimile transmissions to the Board and 
the parties are permitted. Parties are expected to submit their 
facsimile machine numbers with their filings. The Board's facsimile 
number is (202) 720-3059. The filing of a document by facsimile 
transmission occurs upon receipt by the Board of the entire printed 
submission. Parties are specifically cautioned that deadlines for the 
filing of appeals will not be extended merely because the Board's 
facsimile machine is busy or otherwise unavailable at the time the 
filing is due. A document submitted by facsimile should be followed by a 
copy of the document sent by U.S. Postal Service or other delivery 
method.

                                Hearings

                      Rule 17. Where and When Held

    Hearings will be held at such places determined by the Board to best 
serve the interests of the parties and the Board. Hearings will be 
scheduled at the discretion of the Board with due consideration to the 
regular order of appeals, Rule 12 requirements, and other pertinent 
factors. On request on motion by either party and for good cause, the 
Board may, in its discretion, adjust the date of a hearing.

                       Rule 18. Notice of Hearings

    The parties shall be given at least 15 days notice of the time and 
place set for hearings. In scheduled hearings, the Board will consider 
the desires of the parties and the requirement for just and inexpensive 
determination of appeals without unnecessary delay.

                  Rule 19. Unexcused Absence of a Party

    The unexcused absence of a party at the time and place set for 
hearing will not be occasion for delay. In the event of such absence, 
the hearing will proceed and the case will be regarded as submitted by 
the absent party as provided in Rule 11.

           Rule 20. Hearings: Nature; Examination of Witnesses

    (a) Nature of Hearings. Hearings shall be as informal as may be 
reasonable and appropriate under the circumstances. Appellant and the 
Government may offer such evidence

[[Page 506]]

as they deem appropriate and as would be admissible under the Federal 
Rules of Evidence. Stipulations of fact agreed upon by the parties may 
be regarded and used as evidence at the hearing. The parties may 
stipulate the testimony that would be given by a witness if the witness 
were present. The Board may require evidence in addition to that offered 
by the parties.
    (b) Examination of Witnesses. Witnesses before the Board will be 
examined orally under oath or affirmation, unless the presiding 
Administrative Judge or examiner shall otherwise order. If the testimony 
of a witness is not given under oath, the Board may advise the witness 
that his statements may be subject to the provisions of 18 U.S.C. 287 
and 1001, and any other provision of law imposing penalties for 
knowingly making false representations in connection with claims against 
the United States or in any matter within the jurisdiction of any 
department or agency thereof.

                   Rule 21. Subpoenas for CDA Appeals

    (a) General. For appeals under Sec. 24.4(a), upon written request 
of either party filed with the recorder, or on the initiative of the 
Administrative Judge to whom a case is assigned, or who is otherwise 
designated by the Chair, such Administrative Judge may issue a subpoena 
requiring:
    (1) Testimony at a deposition--the deposing of a witness in the city 
or county where such witness resides or is employed or transacts 
business in person, or at another location convenient for such witness 
that is specifically determined by the Board;
    (2) Testimony at a hearing--the attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of books and papers--in addition to (1) or (2), the 
production by the witness at the deposition or hearing of books and 
papers designated in the subpoena.
    (b) Voluntary Cooperation. Each party is expected (1) to cooperate 
and make available witnesses and evidence under its control as requested 
by the other party, without issuance of a subpoena, and (2) to secure 
voluntary attendance of desired third-party witnesses and production of 
desired third-party books, papers, documents, or tangible things 
whenever possible.
    (c) Requests for Subpoenas. (1) A request for a subpoena shall 
normally be filed at least:
    (i) 15 days before a scheduled deposition where the attendance of a 
witness at a deposition is sought;
    (ii) 30 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought.
    In its discretion the Board may honor requests for subpoenas not 
made within these time limitations.
    (2) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books and 
papers sought.
    (d) Requests to Quash or Modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may (1) quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or (2) require the person in 
whose behalf the subpoena was issued to advance the reasonable cost of 
producing subpoenaed books and papers. Where circumstances require, the 
Board may act upon such a request at any time after a copy has been 
served upon the opposing party.
    (e) Form; Issuance. (1) Every subpoena shall state the name of the 
Board and the title of the appeal, and shall command each person to whom 
it is directed to attend and give testimony, and if appropriate, to 
produce specified books and papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge shall sign the subpoena and may, in the Judge's 
discretion, enter the name of the witness and otherwise leave it blank. 
The party to whom the subpoena is issued shall complete the subpoena 
before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the manner provided in 28 U.S.C. 1781-1784.
    (f) Service. (1) The party requesting issuance of a subpoena shall 
arrange for service.
    (2) A subpoena requiring the attendance of a witness at a deposition 
or hearing may be served at any place. A subpoena may be served by a 
United States marshal or deputy marshal, or by any other person who is 
not a party and not less than 18 years of age. Service of a subpoena 
upon a person named therein shall be made by personally delivering a 
copy to that person and tendering the fees for one day's attendance and 
the mileage provided by 28 U.S.C. 1821 or other applicable law; however, 
where the subpoena is issued on behalf of the Government, money payments 
need not be tendered in advance of attendance.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the Board as sufficient ground for 
striking the testimony of the witness and the evidence the witness has 
produced.
    (g) Contumacy or Refusal to Obey a Subpoena. In case of contumacy or 
refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a United States District 
Court, the Board will apply to the Court through the

[[Page 507]]

Attorney General of the United States for an order requiring the person 
to appear before the Board or a member thereof to give testimony or 
produce evidence or both. Any failure of any such person to obey the 
order of the Court may be punished by the Court as a contempt thereof.

                Rule 21.1. Subpoenas for Non-CDA Appeals

    For appeals under Sec. Sec. 24.4(b), (c), and (d), the Chair has 
authority by delegation from the Secretary to request the appropriate 
United States Attorney to apply to the appropriate United States 
District Court for the issuance of subpoenas pursuant to 5 U.S.C. 304.

                        Rule 22. Copies of Papers

    When books, records, papers, or documents have been received in 
evidence, a true copy thereof or of such part thereof as may be material 
or relevant may be substituted therefor, during the hearing or at the 
conclusion thereof.

                       Rule 23. Posthearing Briefs

    Posthearing briefs may be submitted upon such terms as may be agreed 
upon by the parties and the presiding Administrative Judge or examiner 
at the conclusion of the hearing.

                   Rule 24. Transcript of Proceedings

    Testimony and argument at hearings shall be reported verbatim, 
unless the Board otherwise orders. Waiver of transcript may be 
especially suitable for hearings under Rule 12.2. Transcripts or copies 
of the proceedings shall be made available by the Board to the 
Government attorney. Appellant may order transcripts of the proceedings 
from the contract reporter at the hearing.

                     Rule 25. Withdrawal of Exhibits

    After a decision has become final, the Board may, upon request and 
after notice to the other party, in its discretion permit the withdrawal 
of original exhibits, or any part thereof, by the party entitled 
thereto. The substitution of true copies of exhibits or any part thereof 
may be required by the Board in its discretion as a condition of 
granting permission for such withdrawal.

                             Representation

                         Rule 26. The Appellant

    An individual appellant may appear before the Board in person; a 
corporation by one of its officers; and a partnership or joint venture 
by one of its members; or any of these by an attorney at law duly 
licensed in any state, commonwealth, territory, the District of 
Columbia, or in a foreign country. An attorney representing an appellant 
shall file a written notice of appearance with the Board.

                         Rule 27. The Government

    Government counsel may, in accordance with their authority, 
represent the interest of the Government before the Board. They shall 
file notices of appearance with the Board, and notice thereof will be 
given appellant or appellant's attorney in the form specified by the 
Board from time to time. Whenever appellant and the Government counsel 
are in agreement as to disposition of the controversy, the Board may 
suspend further processing of the appeal. However, if the Board is 
advised thereafter by either party that the controversy has not been 
disposed of by agreement, the case shall be restored to the Board's 
calendar without loss of position.

                              Miscellaneous

                           Rule 28. Decisions

    Decisions of the Board will be made in writing and authenticated 
copies of the decision will be forwarded simultaneously to both parties. 
The rules of the Board and all final orders and decisions (except those 
required for good cause to be held confidential and not cited as 
precedents) shall be open for public inspection at the offices of the 
Board in Washington, D.C. Decisions of the Board will be made solely 
upon the record, as described in Rule 13.

                   Rule 29. Motion for Reconsideration

    A motion for reconsideration may be filed by either party. It shall 
set forth specifically the grounds relied upon to sustain the motion. 
The motion shall be filed within 30 days from the date of the receipt of 
a copy of the decision of the Board by the party filing the motion.

                  Rule 30. Dismissal Without Prejudice

    In certain cases, appeals docketed before the Board are required to 
be placed in a suspense status and the Board is unable to proceed with 
disposition thereof for reasons not within the control of the Board. 
Where the suspension has continued, or may continue, for an inordinate 
length of time, the Board may, in its discretion, dismiss such appeals 
from its docket without prejudice to their restoration when the cause 
for suspension has been removed. Unless either party or the Board acts 
within three years, or such shorter time as ordered by the Board, to 
reinstate any appeal dismissed without prejudice, the dismissal shall be 
deemed with prejudice.

          Rule 31. Dismissal for Failure to Prosecute or Defend

    Whenever a record discloses the failure of either party to file 
documents required by these rules, respond to notices of correspondence 
from the Board, comply with orders of

[[Page 508]]

the Board or otherwise indicates an intention not to continue the 
prosecution of defense of an appeal, the Board may, in the case of a 
default by the appellant, issue an order to show cause why the appeal 
should not be dismissed or, in the case of a default by the Government, 
issue an order to show cause why the Board should not act thereon 
pursuant to Rule 33. If good cause is not shown, the Board may take 
appropriate action.

                       Rule 32. Remand From Court

    Whenever any court remands a case to the Board for further 
proceedings, each of the parties shall, within 20 days of such remand, 
submit a report to the Board recommending procedures to be followed so 
as to comply with the court's order. The Board shall consider the 
reports and enter special orders governing the handling of the remanded 
case. To the extent the court's directive and tie limitations permit, 
such orders shall conform to these rules.

                           Rule 33. Sanctions

    If any party fails or refuses to obey an order issued by the Board, 
the Board may then make such order as it considers necessary to the just 
and expeditious conduct of the appeal.

                 Rule 34. Alternative Dispute Resolution

    Upon joint motion or with the consent of both parties, the Board may 
permit the use of methods of Alternative Dispute Resolution (ADR). The 
Board shall notify parties of the availability of ADR methods by 
transmitting information with its notice of docketing (Rule 3).

 Rule 35. Application for Attorneys' Fees and Expenses Under the Equal 
                          Access to Justice Act

    The Equal Access to Justice Act (EAJA), 5 U.S.C. 504, allows payment 
of attorneys' fees and expenses to certain prevailing parties in 
administrative adjudications with the Government unless the Government's 
position was substantially justified. Rules governing applications for 
fees and expenses under EAJA can be found in 7 CFR 1.180 et seq.



PART 25_RURAL EMPOWERMENT ZONES AND ENTERPRISE COMMUNITIES--Table 
of Contents




                      Subpart A_General Provisions

Sec.
25.1 Applicability and scope.
25.2 Objective and purpose.
25.3 Definitions.
25.4 Secretarial review and designation.
25.5 Waivers.
25.6-25.9 [Reserved]

                       Subpart B_Area Requirements

25.100 Eligibility requirements.
25.101 Data utilized for eligibility determinations.
25.102 Pervasive poverty, unemployment and general distress.
25.103 Area size and boundary requirements.
25.104 Poverty rate.
25.105-25.199 [Reserved]

                     Subpart C_Nomination Procedure

25.200 Nominations by State and local governments.
25.201 Application.
25.202 Strategic plan.
25.203 Submission of applications.
25.204 Evaluation of the strategic plan.
25.205-25.299 [Reserved]

                      Subpart D_Designation Process

25.300 USDA action and review of nominations for designation.
25.301 Selection factors for designation of nominated rural areas.
25.302-25.399 [Reserved]

                 Subpart E_Post-Designation Requirements

25.400 Reporting.
25.401 Responsibility of lead managing entity.
25.402 Periodic performance reviews.
25.403 Ongoing 2-year work plan requirement.
25.404 Validation of designation.
25.405 Revocation of designation.
25.406-25.499 [Reserved]

                         Subpart F_Special Rules

25.500 Indian reservations.
25.501 Governments.
25.502 Nominations by State-chartered economic development corporations.
25.503 Rural areas.
25.504-25.999 [Reserved]

                 Subpart G_Round II and Round IIS Grants

25.600 Purpose.
25.601 Delegation of authority.
25.602 Eligible recipients.
25.603 Grant approval and obligation of funds.
25.604 Disbursement of grant funds.
25.605 Grant program reporting requirements.
25.606 Financial management and records.
25.607 Suspension or termination of grant funds.
25.608-25.619 [Reserved]
25.620 Eligible grant purposes.
25.621 Ineligible grant purposes.
25.622 Other considerations.
25.623 Programmatic changes.

[[Page 509]]

25.624-25.999 [Reserved]

    Authority: 5 U.S.C. 301; 26 U.S.C. 1391; Pub. L. 103-66, 107 Stat. 
543; Pub L. 105-34, 111 Stat. 885; Sec. 766, Pub. L. 105-277, 112 Stat. 
2681-37; Pub. L. 106-554 [Title I of H.R. 5562], 114 Stat. 2763.

    Source: 63 FR 19114, Apr. 16, 1998, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 25.1  Applicability and scope.

    (a) Applicability. This part contains policies and procedures 
applicable to rural empowerment zones and enterprise communities, 
authorized under the Omnibus Budget Reconciliation Act of 1993, title 
XIII, subchapter C, part I (Round I), the Taxpayer Relief Act of 1997, 
title IX, subtitle F (Round II), the Agriculture, Rural Development, 
Food and Drug Administration, and Related Agencies Appropriations Act, 
1999 (Public Law 105-277) (Round IIS), and the Community Renewal Tax 
Relief Act of 2000 (Public Law 106-554) (Round III).
    (b) Scope. This part contains provisions relating to area 
requirements, the nomination process for rural Empowerment Zones and 
rural Enterprise Communities, and the designation of these Zones and 
Communities by the Secretary of the U.S. Department of Agriculture 
(Secretary) (USDA). Provisions dealing with the nominations and 
designation of urban Empowerment Zones and Enterprise Communities are 
promulgated by the U.S. Department of Housing and Urban Development 
(HUD). This part also contains provisions relating to granting certain 
nominated areas status as Champion communities.

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13556, Apr. 24, 2002]



Sec. 25.2  Objective and purpose.

    The purpose of this part is to provide for the establishment of 
Empowerment Zones and Enterprise Communities in rural areas in order to 
facilitate the empowerment of the disadvantaged and long-term unemployed 
such that they may become economically self-sufficient, and to promote 
revitalization of economically distressed areas, primarily by 
facilitating:
    (a) Coordination of economic, human services, health, 
transportation, education, community, and physical development plans, 
and other plans and related activities at the local level;
    (b) Local partnerships fully involving affected communities and 
local institutions and organizations in developing and implementing a 
comprehensive multi-sectoral strategic plan for any nominated rural 
Empowerment Zone or Enterprise Community;
    (c) Tax incentives and credits; and
    (d) Distribution of other federal resources including grants from 
USDA and other federal departments, including Empowerment Zone and 
Enterprise Community Social Services Block Grant (EZ/EC SSBG) funds as 
may be available from the U.S. Department of Health and Human Services 
(HHS).



Sec. 25.3  Definitions.

    As used in this part--
    Annual report means the report submitted to USDA by all rural 
Empowerment Zones and Enterprise Communities pursuant to Sec. 25.400.
    Applicant means the entity that is submitting the community's 
strategic plan for accomplishing comprehensive economic, human 
community, and physical development within the area; such an entity may 
include, but is not limited to, State governments, local governments, 
tribal governments, regional planning agencies, non-profit 
organizations, community-based organizations, or a partnership of 
community members and other entities. The applicant may be the same as 
or different from the lead managing entity.
    Baseline condition means a measurable condition or problem at the 
time of designation for which benchmark goals have been established for 
improvement.
    Benchmark activity means a program, project, task or combination 
thereof which is designed to achieve a benchmark goal.
    Benchmark goal means a measurable goal targeted for achievement in 
the strategic plan.
    Brownfield means a ``qualified contaminated site'' meeting the 
requirements of section 941 of the Taxpayer Relief Act of 1997, (26 
U.S.C. 198(c)),

[[Page 510]]

where the site is located in an empowerment zone or enterprise 
community.
    Census tract means a population census tract, or, if census tracts 
are not defined for the area, a block numbering area (BNA) as 
established by the Bureau of the Census, U.S. Department of Commerce. 
BNAs are areas delineated by state officials or (lacking state 
participation) by the Census Bureau, following Census Bureau guidelines, 
for the purpose of grouping and numbering decennial census blocks in 
counties or statistically equivalent entities in which census tracts 
have not been established. A BNA is equivalent to a census tract in the 
Census Bureau's geographic hierarchy.
    Champion Community means a rural area granted such status by the 
Secretary pursuant to this part from among those communities which 
applied for designation as either a rural Empowerment Zone or Enterprise 
Community and which were not so designated.
    Designation means the process by which the Secretary designates 
rural areas as empowerment zones or enterprise communities pursuant to 
eligibility criteria established by subchapter U of the Internal Revenue 
Code (26 U.S.C. 1391 et seq.).
    Designation date means December 21, 1994, in the case of Round I 
designations, December 24, 1998, in the case of Round II and Round IIS 
designations and January 11, 2002, in the case of Round III designations
    Designation period means, in the case of empowerment zones, the 
lesser of such time as has elapsed from the designation date to December 
31, 2009 or from the designation date to the effective date of an 
applicable notice of revocation pursuant to 7 CFR 25.405(e) and, in the 
case of enterprise communities, the lesser of ten years or such time as 
has elapsed from the designation date to the effective date of an 
applicable notice of revocation pursuant to 7 CFR 25.405(e).
    Developable site means a parcel of land in a nominated area which 
may be developed for commercial or industrial purposes.
    Empowerment Zone means a rural area so designated by the Secretary 
pursuant to this part.
    Enterprise Community means a rural area so designated by the 
Secretary pursuant to this part.
    EZ/EC SSBG funds or EZ/EC Social Services Block Grant funds means 
any funds that may be provided to states or tribal governments by HHS in 
accordance with section 2007(a) of the Social Security Act (42 U.S.C. 
1397f), for use by designated Empowerment Zones or Enterprise 
Communities.
    Funding official means the state director in the state where the 
designated rural area is located, or if the designated rural area is 
located in more than one state, the state where the headquarters office 
of the lead managing entity is located.
    HHS means the U.S. Department of Health and Human Services.
    HUD means the U.S. Department of Housing and Urban Development.
    Indian reservation means a reservation as defined in section 
168(j)(6) of the Internal Revenue Code, 26 U.S.C. 168(j)(6).
    Lead managing entity means the entity that will administer and be 
responsible for the implementation of the strategic plan.
    Local government means any county, city, town, township, parish, 
village, or other general purpose political subdivision of a state, and 
any combination of these political subdivisions that is recognized by 
the Secretary.
    Nominated area means an area which is nominated by one or more local 
governments and the state or states in which it is located for 
designation in accordance with this part.
    Office of Community Development or OCD means the office of the 
Deputy Administrator, Community Development, as identified in 7 CFR 
2003.26(b)(4).
    Outmigration means the negative percentage change reported by the 
Bureau of the Census, U.S. Department of Commerce, for the sum of:
    (1) Net Domestic Migration;
    (2) Net Federal Movement; and
    (3) Net International Migration, as such terms are defined for 
purposes of the 1990 Census.

[[Page 511]]

    Poverty rate means, for a given Census tract, the poverty rate 
reported in Table 19 of the Bureau of the Census CPH-3 series of 
publications from the 1990 Census of Population and Housing: Population 
and Housing Characteristics for Census Tracts and Block Numbering Areas.
    Revocation of designation means the process by which the Secretary 
may revoke the designation of an area as an Empowerment Zone or 
Enterprise Community pursuant to Sec. 25.405.
    Round I identifies designations of rural Empowerment Zones and 
Enterprise Communities pursuant to subchapter C, part I (Empowerment 
Zones, Enterprise Communities and Rural Development Investment Areas) of 
Title XIII of the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 
103-66).
    Round II identifies designations of rural Empowerment Zones pursuant 
to subtitle F (Empowerment Zones, Enterprise Communities, Brownfields, 
and Community Development Financial Institutions) of Title IX of the 
Taxpayer Relief Act of 1997 (Pub. L. 105-34).
    Round IIS identifies designations of rural enterprise communities 
pursuant to section 766 of the Agriculture, Rural Development, Food and 
Drug Administration, and Related Agencies Appropriations Act, 1999 
(Public Law 105-277).
    Round III identifies designations of empowerment zones pursuant to 
section 111 of the Community Renewal Tax Relief Act of 2000 (Public Law 
106-554).
    Rural area means any area defined pursuant to Sec. 25.503.
    Secretary means the Secretary of the U.S. Department of Agriculture.
    State means any state in the United States.
    State director means the state director for the Rural Development 
mission area within USDA, as identified in 7 CFR 2003.10.
    Strategic plan means a plan for achieving benchmark goals evidencing 
improvement over identified baseline conditions, developed with the 
participation and commitment of local governments, tribal governments, 
state governments, private sector, community members and others, 
pursuant to the provisions of Sec. 25.202.
    USDA means the U.S. Department of Agriculture.
    USDA EZ/EC grant program means the grant program authorized by 
section 766 of the Agriculture, Rural Development, Food and Drug 
Administration, and Related Agencies Appropriations Act, 1999 (Public 
Law 105-277).

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13556, Apr. 24, 2002; 
68 FR 16170, Apr. 3, 2003]



Sec. 25.4  Secretarial review and designation.

    (a) Designation. The Secretary will review applications for the 
designation of nominated rural areas to determine the effectiveness of 
the strategic plans submitted by applicants; such designations of rural 
empowerment zones and enterprise communities as are made shall be from 
the applications submitted in response to the notice inviting 
applications or other applicable notice published in the Federal 
Register. The Secretary may elect to designate as champion communities 
those nominated areas which are not designated as either a rural 
empowerment zone or enterprise community and whose applications meet the 
criteria contained in Sec. 25.301.
    (b) Number of rural empowerment zones, enterprise communities and 
champion communities--(1) Round I. The Secretary may designate up to 
three rural Empowerment Zones and up to thirty rural Enterprise 
Communities prior to December 31, 1996.
    (2) Round II. The Secretary may, prior to January 1, 1999, designate 
up to five rural empowerment zones in addition to those designated in 
Round I.
    (3) Round IIS. The Secretary may designate up to 20 rural enterprise 
communities in addition to those designated in Round I.
    (4) Round III. The Secretary may, prior to January 1, 2002, 
designate up to two rural empowerment zones in addition to those 
designated in Round I and Round II.
    (5) Champion communities. The number of champion communities is 
limited to the number of applicants which are not designated empowerment 
zones or enterprise communities.

[[Page 512]]

    (c) Period of designation. The designation of a rural area as an 
Empowerment Zone or Enterprise Community shall remain in effect during 
the period beginning on the designation date and ending on the earliest 
of the:
    (1) End of the tenth calendar year beginning on or after the 
designation date;
    (2) Termination date designated by the state and local governments 
in their application for nomination;
    (3) Date the Secretary revokes the designation; or
    (4) Date the Empowerment Zone or Enterprise Community modifies its 
boundary without first obtaining the written approval of the Secretary.

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13556, Apr. 24, 2002]



Sec. 25.5  Waivers.

    The Secretary may waive any provision of this part in any particular 
case for good cause, where it is determined that application of the 
requirement would produce a result adverse to the purpose and objectives 
of this part.



Sec. Sec. 25.6-25.99  [Reserved]



                       Subpart B_Area Requirements



Sec. 25.100  Eligibility requirements.

    A nominated rural area may be eligible for designation pursuant to 
this part only if the area:
    (a) Has a maximum population of 30,000;
    (b) Is one of pervasive poverty, unemployment, and general distress, 
as described in Sec. 25.102;
    (c) Meets the area size and boundary requirements of Sec. 25.103;
    (d) Is located entirely within the jurisdiction of the general local 
government making the nomination; and
    (e) Meets the poverty rate criteria contained in Sec. 25.104.
    (f) Provision for Alaska and Hawaii. A nominated area in Alaska or 
Hawaii shall be presumed to meet the criteria of paragraphs (b), (c), 
and (e) of this section if, for each Census tract or block group in the 
area, at least 20 percent of the families in such tract have an income 
which is 50 percent or less of the statewide median family income.



Sec. 25.101  Data utilized for eligibility determinations.

    (a) Source of data. The data to be employed in determining 
eligibility pursuant to this part shall be based on the 1990 Census, and 
from information published by the Bureau of Census and the Bureau of 
Labor Statistics, provided, however, that for purposes of demonstrating 
outmigration pursuant to Sec. 25.104(b)(2)(iii), data from the 1980 
Census and interim data collected by the Bureau of Census for the 1990-
1994 period may be used. The data shall be comparable in point or period 
of time and methodology employed.
    (b) Use of statistics on boundaries. The boundary of a rural area 
nominated for designation as an Empowerment Zone or Enterprise Community 
must coincide with the boundaries of Census tracts, or, where tracts are 
not defined, with block numbering areas, except:
    (1) Nominated areas in Alaska and Hawaii shall coincide with the 
boundaries of census tracts or block groups as such term is used for 
purposes of the 1990 Census;
    (2) Developable sites are not required to coincide with the 
boundaries of Census tracts; and
    (3) Nominated areas wholly within an Indian reservation are not 
required to adhere to census tract boundaries if sufficient credible 
data are available to show compliance with other requirements of this 
part. The requirements of Sec. 25.103 are otherwise applicable.

[63 FR 19114, Apr. 16, 1998, as amended at 63 FR 53780, Oct. 7, 1998]



Sec. 25.102  Pervasive poverty, unemployment and general distress.

    (a) Pervasive poverty. Conditions of poverty must be reasonably 
distributed throughout the entire nominated area. The degree of poverty 
shall be demonstrated by citing available statistics on low-income 
population, levels of public assistance, numbers of persons or families 
in poverty or similar data.
    (b) Unemployment. The degree of unemployment shall be demonstrated 
by the provision of information on the number of persons unemployed, 
underemployed (those with only a seasonal or part-time job) or 
discouraged workers (those capable of working but who have dropped out 
of the labor market--

[[Page 513]]

hence are not counted as unemployed), increase in unemployment rate, job 
loss, plant or military base closing, or other relevant unemployment 
indicators having a direct effect on the nominated area.
    (c) General distress. General distress shall be evidenced by 
describing adverse conditions within the nominated area other than those 
of pervasive poverty and unemployment. Below average or decline in per 
capita income, earnings per worker, per capita property tax base, 
average years of school completed; outmigration and population decline, 
a high or rising incidence of crime, narcotics use, abandoned housing, 
deteriorated infrastructure, school dropouts, teen pregnancy, incidents 
of domestic violence, incidence of certain health conditions and 
illiteracy are examples of appropriate indicators of general distress. 
The data and methods used to produce such indicators that are used to 
describe general distress must all be stated.



Sec. 25.103  Area size and boundary requirements

    (a) General eligibility requirements. A nominated area:
    (1) May not exceed one thousand square miles in total land area;
    (2) Must have one continuous boundary if located in more than one 
State or may consist of not more than three noncontiguous parcels if 
located in only one State;
    (3) If located in more than one State, must be located within no 
more than three contiguous States;
    (4) May not include any portion of a central business district (as 
such term is used for purposes of the most recent Census of Retail 
Trade) unless the poverty rate for each Census tract in such district is 
not less than 35 percent for an Empowerment Zone (30 percent in the case 
of an Enterprise Community);
    (5) Subject to paragraph (b)(4) of this section, may not include any 
portion of an area already included in an Empowerment Zone or Enterprise 
Community or included in an area otherwise nominated to be designated 
under this section;
    (b) Eligibility requirements specific to different rounds.
    (1) For purposes of Round I designations only, a nominated area may 
not include any area within an Indian reservation;
    (2) For purposes of applying paragraph (a)(1) of this section to 
Round II, Round IIS and Round III designations:
    (i) A Census tract larger than 1,000 square miles shall be reduced 
to a 1,000 square mile area with a continuous boundary, if necessary, 
after application of Sec. Sec. 25.103(b)(2) (ii) and (iii);
    (ii) Land owned by the Federal, State or local government may (and 
in the event the Census tract exceeds 1,000 square miles, will) be 
excluded in determining the square mileage of a nominated area; and
    (iii) Developable sites, in the aggregate not exceeding 2,000 acres, 
may (and in the event the Census tract exceeds 1,000 square miles, will) 
be excluded in determining the square mileage of the nominated area;
    (3) For purposes of applying paragraph (a)(2) of this section to 
Round II, Round IIS and Round III designations, the following shall not 
be treated as violating the continuous boundary requirement nor the 
limit on the number of noncontiguous parcels:
    (i) Exclusion of excess area pursuant to paragraph (b)(2)(i) of this 
section;
    (ii) Exclusion of government owned land pursuant to paragraph 
(b)(2)(ii) of this section; or
    (iii) Exclusion of developable sites pursuant to paragraph 
(b)(2)(iii) of this section; and
    (4) Paragraph (a)(5) of this section shall not apply where a Round I 
Enterprise Community is applying either in its entirety or together with 
an additional area for a Round II Empowerment Zone designation.

[63 FR 19114, Apr. 16, 1998, as amended at 63 FR 53780, Oct. 7, 1998; 67 
FR 13557, Mar. 25, 2002]



Sec. 25.104  Poverty rate.

    (a) General. Eligibility of an area on the basis of poverty shall be 
established in accordance with the following poverty rate criteria 
specific to Round I, Round II, Round IIS and Round III nominated areas:
    (1) Round I--(i) In each Census tract, the poverty rate may not be 
less than 20 percent;

[[Page 514]]

    (ii) For at least 90 percent of the Census tracts within the 
nominated area, the poverty rate may not be less than 25 percent; and
    (iii) For at least 50 percent of the Census tracts within the 
nominated area, the poverty rate may not be less than 35 percent.
    (2) Round II, Round IIS and Round III--(i) In each Census tract, the 
poverty rate may not be less than 20 percent;
    (ii) For at least 90 percent of the Census tracts within the 
nominated area, the poverty rate may not be less than 25 percent;
    (iii) Up to three noncontiguous developable sites, in the aggregate 
not exceeding 2,000 acres, may be excluded in determining whether the 
requirements of paragraphs (a)(2)(i) and (a)(2)(ii) of this section are 
met; and
    (iv) The Secretary may designate not more than one rural Empowerment 
Zone without regard to paragraphs (a)(2)(i) and (a)(2)(ii) of this 
section if such nominated area satisfies the emigration criteria 
specified in paragraph (b)(2)(iii) of this section.
    (b) Special rules. The following special rules apply to the 
determination of poverty rate for Round I, Round II, Round IIS and Round 
III nominated areas:
    (1) Round I--(i) Census tracts with no population. Census tracts 
with no population shall be treated as having a poverty rate that meets 
the requirements of paragraphs (a)(1)(i) and (a)(1)(ii) of this section, 
but shall be treated as having a zero poverty rate for purposes of 
applying paragraph (a)(1)(iii) of this section;
    (ii) Census tracts with populations of less than 2,000. A Census 
tract with a population of less than 2,000 shall be treated as having a 
poverty rate which meets the requirements of paragraphs (a)(1) (i) and 
(ii) of this section if more than 75 percent of the tract is zoned for 
commercial or industrial use;
    (iii) Adjustment of poverty rates for Round I Enterprise 
Communities. For Round I Enterprise Communities only, the Secretary may, 
where necessary to carry out the purposes of this part, apply one of the 
following alternatives:
    (A) Reduce by 5 percentage points one of the following thresholds 
for not more than 10 percent of the Census tracts (or, if fewer, five 
Census tracts) in the nominated area:
    (1) The 20 percent threshold in paragraph (a)(1)(i) of this section;
    (2) The 25 percent threshold in paragraph (a)(1)(ii) of this 
section;
    (3) The 35 percent threshold in paragraph (a)(1)(iii) of this 
section; or
    (B) Reduce the 35 percent threshold in paragraph (a)(1)(iii) of this 
section by 10 percentage points for three Census tracts.
    (2) Round II, Round IIS and Round III--(i) Census tracts with no 
population. Census tracts with no population shall be treated the same 
as those Census tracts having a population of less than 2,000;
    (ii) Census tracts with populations of less than 2,000. A Census 
tract with a population of less than 2,000 shall be treated as having a 
poverty rate of not less than 25 percent if:
    (A) More than 75 percent of such tract is zoned for commercial or 
industrial use; and
    (B) Such tract is contiguous to 1 or more other Census tracts which 
have a poverty rate of 25 percent or more, where such determination is 
made without applying Sec. 25.104(b)(2)(ii).
    (iii) Emigration criteria. For purposes of the discretion as may be 
exercised by the Secretary pursuant to paragraph (a)(2)(iv) of this 
section, a nominated area must demonstrate outmigration of not less than 
15 percent over the period 1980-1994 for each census tract. The 
outmigration for each census tract in the nominated area shall be as 
reported for the county in which the census tract is located: Provided, 
however, That the nominated area may include not more than one census 
tract where the reported outmigration is less than 15 percent, which 
tract shall be contiguous to at least one other census tract in the 
nominated area.
    (c) General rules. The following general rules apply to the 
determination of poverty rate for Round I, Round II, Round IIS and Round 
III nominated areas.
    (1) Rounding up of percentages. In making the calculations required 
by this section, the Secretary shall round all fractional percentages of 
one-half

[[Page 515]]

percentage point or more up to the next highest whole percentage point 
figure.
    (2) Noncontiguous parcels. Each such parcel (excluding, in the case 
of Round II, Round IIS and Round III, up to three noncontiguous 
developable sites not exceeding 2,000 acres in the aggregate) must 
separately meet the poverty criteria contained in this section.
    (3) Areas not within census tracts. In the case of an area which is 
not tracted for Census tracts, the block numbering area shall be used 
for purposes of determining poverty rates. Block groups may be used for 
Alaska and Hawaii.

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13557, Apr. 24, 2002]



Sec. Sec. 25.105-25.199  [Reserved]



                     Subpart C_Nomination Procedure



Sec. 25.200  Nominations by State and local governments.

    (a) Nomination criteria. One or more local governments and the 
States in which an area is located must nominate such area for 
designation as an Empowerment Zone or Enterprise Community. Nominated 
areas can be considered for designation only if:
    (1) The rural area meets the applicable requirements for eligibility 
identified in Sec. 25.100;
    (2) The Secretary determines such governments have the authority to 
nominate the area for designation and to provide the assurances 
described in paragraph (b) of this section; and
    (3) The Secretary determines all information furnished by the 
nominating States and local governments is reasonably accurate.
    (b) Required certifications and assurances. The State and local 
governments nominating an area for designation must:
    (1) Submit the following certifications:
    (i) Each nominating governmental entity has the authority to:
    (A) Nominate the rural area for designation as an Empowerment Zone 
or Enterprise Community and make the assurances required under this 
part;
    (B) Make the State and local commitments contained in the strategic 
plan or otherwise required under this part; and
    (C) Provide written assurances satisfactory to the Secretary that 
these commitments will be met; and
    (ii) The nominated area satisfies the eligibility criteria 
referenced in Sec. 25.100, inclusive of the requirement that either;
    (A) No portion of the area nominated is already included in a 
designated Empowerment Zone or Enterprise Community or in an area 
otherwise nominated to be designated under this section; or
    (B) Where an existing Round I Enterprise Community is seeking to be 
designated as a Round II Empowerment Zone, that the nominated area 
includes the entirety of the applicable Round I Enterprise Community and 
that any other areas as may be included in the application do not 
comprise any portion of a designated Empowerment Zone or Enterprise 
Community or part of an area otherwise nominated to be designated under 
this section; and
    (2) Provide written assurance that:
    (i) The strategic plan will be implemented;
    (ii) The nominating governments will make available, or cause to be 
made available, all information requested by USDA to aid in the 
evaluation of progress in implementing the strategic plan; and
    (iii) EZ/EC SSBG funds, as applicable, will be used to supplement, 
not supplant, other Federal or non-Federal funds available for financing 
services or activities which promote the purposes of section 2007 of the 
Social Security Act.



Sec. 25.201  Application.

    No rural area may be considered for designation pursuant to this 
part unless the application:
    (a) Demonstrates that the nominated rural area satisfies the 
eligibility criteria contained in Sec. 25.100;
    (b) Includes a strategic plan, which meets the requirements 
contained in Sec. 25.202;
    (c) Includes the written commitment of the applicant, as applicable, 
that EZ/EC SSBG funds will be used to supplement, not replace, other 
Federal and non-Federal funds available for financing services or 
activities that promote

[[Page 516]]

the purposes of section 2007 of the Social Security Act; and
    (d) Includes such other information as may be required by USDA.



Sec. 25.202  Strategic plan.

    (a) Principles of strategic plan. The strategic plan included in the 
application must be developed in accordance with the following four key 
principles:
    (1) Strategic vision for change, which identifies what the community 
will become and a strategic map for revitalization. The vision should 
build on assets and coordinate a response to community needs in a 
comprehensive fashion. It should also set goals and performance 
benchmarks for measuring progress and establish a framework for 
evaluating and adjusting the revitalization plan.
    (2) Community-based partnerships, involving the participation of all 
segments of the community, including the political and governmental 
leadership, community groups, local public health and social service 
departments and nonprofit groups providing similar services, 
environmental groups, local transportation planning entities, public and 
private schools, religious organizations, the private and nonprofit 
sectors, centers of learning, and other community institutions and 
individual citizens.
    (3) Economic opportunity, including job creation within the 
community and throughout the region, entrepreneurial initiatives, small 
business expansion, job training and other important services such as 
affordable childcare and transportation services that may enable 
residents to be employed in jobs that offer upward mobility.
    (4) Sustainable community development, to advance the creation of 
livable and vibrant communities through comprehensive approaches that 
coordinate economic, physical, environmental, community, and human 
development. These approaches should preserve the environment and 
historic landmarks--they may include ``brownfields'' clean-up and 
redevelopment, and promote transportation, education, and public safety.
    (b) Minimum requirements. The strategic plan must:
    (1) Describe the coordinated economic, human, community, and 
physical development plan and related activities proposed for the 
nominated area;
    (2) Describe the process by which the affected community is a full 
partner in the process of developing and implementing the plan and the 
extent to which local institutions and organizations have contributed to 
the planning process;
    (3) Identify the amount of State, local, and private resources that 
will be available in the nominated area and the private and public 
partnerships to be used, which may include participation by, and 
cooperation with, universities, medical centers, and other private and 
public entities;
    (4) Identify the funding requested under any Federal program in 
support of the proposed economic, human, community, and physical 
development and related activities, including details about proposed 
uses of EZ/EC SSBG funds that may be available from HHS;
    (5) Identify the baselines, methods, and benchmarks for measuring 
the success of carrying out the strategic plan, including the extent to 
which poor persons and families will be empowered to become economically 
self-sufficient;
    (6) Must not include any action to assist any establishment in 
relocating from one area outside the nominated area to the nominated 
area, except that assistance for the expansion of an existing business 
entity through the establishment of a new branch, affiliate, or 
subsidiary is permitted if:
    (i) The establishment of the new branch, affiliate, or subsidiary 
will not result in a decrease in employment in the area of original 
location or in any other area where the existing business entity 
conducts business operations; and
    (ii) There is no reason to believe that the new branch, affiliate, 
or subsidiary is being established with the intention of closing down 
the operations of the existing business entity in the area of its 
original location or in any other area where the existing business 
entity conducts business operation; and

[[Page 517]]

    (7) Include such other information as required by USDA in the notice 
inviting applications or other applicable notice.
    (c) Implementation of strategic plan. The strategic plan may be 
implemented by State governments, tribal governments, local governments, 
regional planning agencies, non-profit organizations, community-based 
organizations, or other nongovernmental entities. Activities included in 
the strategic plan may be funded from any source, Federal, State, local, 
or private, which agrees to provide assistance to the nominated area.
    (d) Public access to materials and proceedings. The applicant or the 
lead managing entity, as applicable, must make available to the public 
copies of the strategic plan and supporting documentation and must 
conduct its meetings in accordance with the applicable open meetings 
acts.

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13557, Apr. 24, 2002]



Sec. 25.203  Submission of applications.

    General. A separate application for designation as an empowerment 
zone or enterprise community must be submitted for each rural area for 
which such designation is requested. The application shall be submitted 
in a form to be prescribed by USDA in the notice inviting applications 
or other applicable notice as published in the Federal Register and must 
contain complete and accurate information.

[67 FR 13557, Apr. 24, 2002]



Sec. 25.204  Evaluation of the strategic plan.

    The strategic plan will be evaluated for effectiveness as part of 
the designation process for nominated rural areas described in subpart D 
of this part. On the basis of this evaluation, USDA may request 
additional information pertaining to the plan and the proposed area and 
may, as part of that request, suggest modifications to the plan, 
proposed area, or term that would enhance its effectiveness. The 
effectiveness of the strategic plan will be determined in accordance 
with the four key principles contained in Sec. 25.202(a). USDA will 
review each plan submitted in terms of the four equally weighted 
principal objectives, and of such other elements of these principal 
objectives as are appropriate to address the opportunities and problems 
of each nominated area, which may include:
    (a) Strategic vision for change--(1) Goals and coordinated strategy. 
The extent to which the strategic plan reflects a projection for the 
community's revitalization which links economic, human, physical, 
community development and other activities in a mutually reinforcing, 
synergistic way to achieve ultimate goals;
    (2) Creativity and innovation. The extent to which the activities 
proposed in the plan are creative, innovative and promising and will 
promote the civic spirit necessary to revitalize the nominated area;
    (3) Building on assets. The extent to which the vision for 
revitalization realistically addresses the needs of the nominated area 
in a way that takes advantage of its assets; and
    (4) Benchmarks and learning. The extent to which the plan includes 
performance benchmarks for measuring progress in its implementation, 
including an on-going process for adjustments, corrections and building 
on what works.
    (b) Community-based partnerships--(1) Community partners. The extent 
to which residents of the community participated in developing the 
strategic plan and their commitment to implementing it, the extent to 
which community-based organizations in the nominated area have 
participated in the development of the nominated area, and their record 
of success measured by their achievements and support for undertakings 
within the nominated area;
    (2) Private and nonprofit organizations as partners. The extent to 
which partnership arrangements include commitments from private and 
nonprofit organizations, including corporations, utilities, banks and 
other financial institutions, human services organizations, health care 
providers, and educational institutions supporting implementation of the 
strategic plan;
    (3) State and local government partners. The extent to which States 
and local

[[Page 518]]

governments are committed to providing support to the strategic plan, 
including their commitment to ``reinventing'' their roles and 
coordinating programs to implement the strategic plan; and
    (4) Permanent implementation and evaluation structure. The extent to 
which a responsible and accountable implementation structure or process 
has been created to ensure that the plan is successfully carried out and 
that improvements are made throughout the period of the zone or 
community's designation.
    (c) Economic opportunity. (1) The extent to which businesses, jobs, 
and entrepreneurship will increase within the zone or community;
    (2) The extent to which residents will achieve a real economic stake 
in the zone or community;
    (3) The extent to which residents will be employed in the process of 
implementing the plan and in all phases of economic, community and human 
development;
    (4) The extent to which residents will be linked with employers and 
jobs throughout the entire area and the way in which residents will 
receive training, assistance, and family support to become economically 
self-sufficient;
    (5) The extent to which economic revitalization in the zone or 
community interrelates with the broader regional economies; and
    (6) The extent to which lending and investment opportunities will 
increase within the zone or community through the establishment of 
mechanisms to encourage community investment and to create new economic 
growth.
    (d) Sustainable community development--(1) Consolidated planning. 
The extent to which the plan is part of a larger strategic community 
development plan for the nominating localities and is consistent with 
broader regional development strategies;
    (2) Public safety. The extent to which strategies such as community 
policing will be used to guarantee the basic safety and security of 
persons and property within the zone or community;
    (3) Amenities and design. The extent to which the plan considers 
issues of design and amenities that will foster a sustainable community, 
such as open spaces, recreational areas, cultural institutions, 
transportation, energy, land and water uses, waste management, 
environmental protection and the vitality of life of the community;
    (4) Sustainable development. The extent to which economic 
development will be achieved in a manner consistent that protects public 
health and the environment;
    (5) Supporting families. The extent to which the strengths of 
families will be supported so that parents can succeed at work, provide 
nurture in the home, and contribute to the life of the community;
    (6) Youth development. The extent to which the development of 
children, youth, and young adults into economically productive and 
socially responsible adults will be promoted and the extent to which 
young people will be:
    (i) Provided with the opportunity to take responsibility for 
learning the skills, discipline, attitude, and initiative to make work 
rewarding;
    (ii) Invited to take part as resources in the rebuilding of their 
community; and
    (iii) Provided the opportunity to develop a sense of industry and 
competency and a belief they might exercise some control over the course 
of their lives.
    (7) Education goals. The extent to which schools, religious 
organizations, non-profit organizations, for-profit enterprises, local 
governments and families will work cooperatively to provide all 
individuals with the fundamental skills and knowledge they need to 
become active participants and contributors to their community, and to 
succeed in an increasingly competitive global economy;
    (8) Affordable housing. The extent to which a housing component, 
providing for adequate safe housing and ensuring that all residents will 
have equal access to that housing is contained in the strategic plan;
    (9) Drug abuse. The extent to which the plan addresses levels of 
drug abuse and drug-related activity through the expansion of drug 
treatment services, drug law enforcement initiatives, and community-
based drug abuse education programs;

[[Page 519]]

    (10) Health care. The extent to which the plan promotes a community-
based system of health care that facilitates access to comprehensive, 
high quality care, particularly for the residents of EZ/EC 
neighborhoods;
    (11) Equal opportunity. The extent to which the plan offers an 
opportunity for diverse residents to participate in the rewards and 
responsibilities of work and service. The extent to which the plan 
ensures that no business within a nominated zone or community will 
directly or through contractual or other arrangements subject a person 
to discrimination on the basis of race, color, creed, national origin, 
gender, handicap or age in its employment practices, including 
recruitment, recruitment advertising, employment, layoff, termination, 
upgrading, demotion, transfer, rates of pay or the forms of 
compensation, or use of facilities. Applicants must comply with the 
provisions of Title VI of the Civil Rights Act of 1964, section 504 of 
the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.



Sec. Sec. 25.205-25.299  [Reserved]



                      Subpart D_Designation Process



Sec. 25.300  USDA action and review of nominations for designation.

    (a) Establishment of submission procedures. USDA will establish a 
time period and procedure for the submission of applications for 
designation as empowerment zones or enterprise communities, including 
submission deadlines and addresses, in a notice inviting applications or 
other applicable notice, to be published in the Federal Register.
    (b) Acceptance for processing. USDA will accept for processing those 
applications as empowerment zones and enterprise communities which USDA 
determines have met the criteria required under this part. USDA will 
notify the states and local governments whether or not the nomination 
has been accepted for processing. The application must be received by 
USDA on or before the close of business on the date established by the 
notice inviting applications or other applicable notice published in the 
Federal Register. The applications must be complete, inclusive of the 
strategic plan, as required by Sec. 25.202, and the certifications and 
written assurances required by Sec. 25.200(b).
    (c) Site visits. In the process of reviewing each application 
accepted for processing, USDA may undertake site visits to any nominated 
area to aid in the process of evaluation.
    (d) Modification of the strategic plan, boundaries of nominated 
rural areas, or period during the application review period. Subject to 
the limitations imposed by Sec. 25.100.
    (1) USDA may request additional information pertaining to the 
strategic plan and proposed area and may, as a part of that request, 
suggest modifications to the strategic plan or nominated area that would 
enhance the effectiveness of the strategic plan;
    (2) Enlargement of a nominated area will not be allowed if the 
inclusion of the additional area will result in an average poverty rate 
less than the average poverty rate at the time of initial application; 
and
    (3) An applicant may modify the nominated area or strategic plan 
during the application review period with USDA approval.
    (e) Designations. Final determination of the boundaries of areas and 
the term for which the designations will remain in effect will be made 
by the Secretary.

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13557, Apr. 24, 2002]



Sec. 25.301  Selection factors for designation of nominated rural areas.

    In choosing among nominated rural areas eligible for designation as 
Empowerment Zone, Enterprise Community or Champion Community, the 
Secretary shall consider:
    (a) The potential effectiveness of the strategic plan, in accordance 
with the key principles in Sec. 25.202(a);
    (b) The strength of the assurances made pursuant to Sec. 25.200(b) 
that the strategic plan will be implemented;
    (c) The extent to which an application proposes activities that are 
creative and innovative;
    (d) The extent to which areas consisting of noncontiguous parcels 
are not so widely separated as to compromise achievement by the 
nominated

[[Page 520]]

area of a cohesive community or regional identity; and
    (e) Such other factors as established by the Secretary, which 
include the degree of need demonstrated by the nominated area for 
assistance under this part and the diversity within and among the 
nominated areas. If other factors are established by USDA, a Federal 
Register Notice will be published identifying such factors, along with 
an extension of the application due date if necessary.



Sec. Sec. 25.302-25.399  [Reserved]



                 Subpart E_Post-Designation Requirements



Sec. 25.400  Reporting.

    (a) Periodic reports. Empowerment Zones, Enterprise Communities and 
Champion Communities shall submit to USDA periodic reports which 
identify the community, local government and State actions which have 
been taken in accordance with the strategic plan. In addition to these 
reports, such other information relating to designated Empowerment 
Zones, Enterprise Communities and Champion communities as USDA may 
request from time to time shall be submitted promptly. On the basis of 
this information and of on-site reviews, USDA will prepare and issue 
periodic reports on the effectiveness of the Empowerment Zones/
Enterprise Communities Program.
    (b) Annual report. All rural Empowerment Zones and Enterprise 
Communities shall submit an annual report to USDA for each calendar year 
which includes an executive summary and benchmark progress report as 
follows:
    (1) Executive summary. The executive summary shall identify the 
progress and setbacks experienced in efforts to achieve benchmark goals. 
Activities other than those expressly included in the strategic plan 
should also be noted in order to provide an understanding of where the 
community stands with respect to implementation of the strategic plan. 
Furthermore, the executive summary should address the following:
    (i) Identify the most significant accomplishments to date.
    (ii) Describe the level of community participation and overall 
support for the EZ/EC initiative.
    (iii) List and describe new partnerships or alliances formed.
    (iv) Identify problems or obstacles not otherwise anticipated in the 
strategic plan.
    (v) Describe solutions developed or efforts to address the problems 
and obstacles.
    (vi) Identify practices or concepts which were found especially 
effective in implementing the strategic plan.
    (2) Benchmark progress report. For each benchmark goal the community 
will provide a current measure of the baseline condition which is the 
subject of targeted improvement and whether the current measure 
represents an improvement from the baseline condition as initially 
stated in the strategic plan. For each benchmark activity the community 
will provide a status report in form and substance acceptable to USDA.
    (c) Timely State data. Where not prevented by State law, nominating 
State governments must provide the timely release of data requested by 
USDA for the purposes of monitoring and assisting the success of 
Empowerment Zones and Enterprise Communities.



Sec. 25.401  Responsibility of lead managing entity.

    (a) Financial. The lead managing entity will be responsible for 
strategic plan program activities and monitoring the fiscal management 
of the funds of the Empowerment Zone or Enterprise Community.
    (b) Reporting. The lead managing entity will be responsible for 
developing the reports required under this subpart.
    (c) Cooperation. All entities with significant involvement in 
implementing the strategic plan shall cooperate with the lead managing 
entity in its compliance with paragraphs (a) and (b) of this section.



Sec. 25.402  Periodic performance reviews.

    USDA will regularly evaluate the progress in implementing the 
strategic plan in each designated Empowerment Zone and Enterprise 
Community on the

[[Page 521]]

basis of performance reviews to be conducted on site and using other 
information submitted. USDA may also commission evaluations of the 
Empowerment Zone program as a whole by an impartial third party. 
Evidence of continual involvement of all segments of the community, 
including low income and disadvantaged residents, must be evidenced in 
the implementation of the strategic plan.



Sec. 25.403.  Ongoing 2-year work plan requirement.

    (a) Each Empowerment Zone and Enterprise Community shall prepare and 
submit annually, work plans for the subsequent 2-year interval of the 
designation period.
    (b) The 2-year work plan shall be submitted to USDA 45 days prior to 
the start of the applicable 2-year period.
    (c) The 2-year work plan must include the following sections and 
content:
    (1) Section 1--Work Plan. Identify the benchmark goals to be 
achieved in the applicable 2 years of the strategic plan, together with 
the benchmark activities to be undertaken during the applicable 2 years 
of implementation. Include references to the applicable baseline 
conditions and performance indicators to be used in assessing 
performance.
    (2) Section 2--Operational Budget. For each benchmark activity to be 
undertaken in the applicable 2 years of the strategic plan, set forth 
the following information:
    (i) Expected implementation costs;
    (ii) Proposed sources of funding and whether actual commitments have 
been obtained;
    (iii) Technical assistance resources and other forms of support 
pledged by Federal, State and local governments, non-profit 
organizations, foundations, private businesses, and any other entity to 
assist in implementation of the community's strategic plan, and whether 
this support is conditional upon the designation of the community as an 
Empowerment Zone; and
    (iv) Documentation of applications for assistance and commitments 
identified as proposed funding and other resources.



Sec. 25.404  Validation of designation.

    (a) Maintaining the principles of the program. The empowerment zone, 
enterprise community or champion community (the designated community) 
must maintain a process for ensuring ongoing broad-based participation 
by community residents consistent with the approved application and 
planning process outlined in the strategic plan.
    (1) Continuous improvement. The designated community must maintain a 
process for evaluating and learning from its experiences. It must detail 
the methods by which the community will assess its own performance in 
implementing its benchmarks, the process it will use for reviewing goals 
and benchmarks and revising its strategic plan.
    (2) Participation. The designated community must develop as part of 
its strategic plan a written plan for assuring continuous broad-based 
community participation in the implementation of the strategic plan and 
the means by which the strategic plan is implemented, including board 
membership in the lead entity and other key partnership entities.
    (b) Administration of the strategic plan. The strategic plan must be 
administered in a manner consistent with the principles of the program 
contained in Sec. 25.202(a).
    (1) Lead entity. The lead entity must have legal status and 
authority to receive and administer funds pursuant to Federal, state and 
other government or nonprofit programs.
    (2) Capacity. The lead entity must have the capacity to implement 
the strategic plan, as demonstrated by audited financial statements as 
of the most recent fiscal year or other documentation that may be 
requested by USDA.
    (3) Board membership. The membership of the board must be 
representative of the entire socio-economic spectrum in the designated 
community including business, social service agencies, health and 
education entities, low income and minority residents. Board membership 
may be determined by either broad-based election or by appointment to 
meet this diversity requirement; however, not more than 45 percent of 
board members may be selected by appointment. Elections of

[[Page 522]]

community residents to the board may be done by any locally acceptable 
process; however, at least one board member from each of the designated 
community's census tracts must be elected and representative of the low 
income residents in their census tract. The Deputy Administrator, Office 
of Community Development, may waive the 45 percent maximum appointment 
limit only for Tribal Governmental Organizations where the Deputy 
Administrator determines, in writing, that a more representative board 
would be obtained through the appointment process.
    (4) Partnerships. The relationship between the designated 
community's lead entity board and local governments and other major 
regional and community organizations operating in the same geographic 
area is critical to the community's success in implementing its 
strategic plan. Every effort should be made to identify and maintain 
relationships with local partners. Documentation including, but not 
limited to, minutes of meetings, benchmark activity reports and annual 
reports of the lead entity must reflect the contributions of local 
partnership entities.
    (5) Public information. The designated community must have written 
procedures in place describing the means by which citizens of the 
community and partnership organizations will be kept informed of the 
community's activities and progress in implementing the strategic plan, 
consistent with the principal objective of community based partnerships 
pursuant to Sec. 25.202(a)(2). These procedures must be kept current 
and compliance with them documented on an ongoing basis.
    (c) Reevaluation of designations. On the basis of the performance 
reviews described in Sec. 25.402, and subject to the provisions 
relating to the revocation of designation appearing at Sec. 25.405, 
USDA will make findings as to the continuing eligibility for and the 
validity of the designation of any Empowerment Zone, Enterprise 
Community, or Champion Community.
    (d) Modification of designation. Based on a rural zone or 
community's success in carrying out its strategic plan, and subject to 
the provisions relating to revocation of designation in accordance with 
Sec. 25.405 and the requirements as to the number, maximum population 
and other characteristics of rural Empowerment Zones referenced in Sec. 
25.100, the Secretary may modify designations by reclassifying rural 
Empowerment Zones as Enterprise Communities or Enterprise Communities as 
Empowerment Zones.

[63 FR 19114, Apr. 16, 1998, as amended at 67 FR 13557, Apr. 24, 2002]



Sec. 25.405  Revocation of designation.

    (a) Basis for revocation. The Secretary may revoke the designation 
of a rural area as an Empowerment Zone or Enterprise Community, or 
withdraw status as a Champion Community, if the Secretary determines, on 
the basis of the periodic monitoring and assessments described in Sec. 
25.402, that the applicant, lead managing entity, or the States or local 
governments in which the rural area is located have:
    (1) Modified the boundaries of the area without written approval 
from USDA;
    (2) Failed to make progress in implementing the strategic plan; or
    (3) Not complied substantially with the strategic plan (which may 
include failing to apply funds as contained in the strategic plan 
without advance written approval from USDA).
    (b) Letter of Warning. Before revoking the designation of a rural 
area as an Empowerment Zone or Enterprise Community, the Secretary will 
issue a letter of warning to the applicant, the lead managing entity (if 
different from the applicant) and the nominating States and local 
governments, with a copy to all affected Federal agencies of which USDA 
is aware:
    (1) Advising that the Secretary has determined that the applicant 
and/or lead managing entity and/or the nominating local governments and 
State:
    (i) Have modified the boundaries of the area without written 
approval from USDA; or
    (ii) Are not complying substantially with, or have failed to make 
satisfactory progress in implementing the strategic plan; and
    (2) Requesting a reply from all involved parties within 90 days of 
the receipt of this letter of warning.

[[Page 523]]

    (c) Notice of revocation. To revoke the designation, the Secretary 
must issue a final notice of revocation of the designation of the rural 
area as an Empowerment Zone or Enterprise Community, after:
    (1) Allowing 90 days from the date of receipt of the letter of 
warning for response; and
    (2) Making a determination pursuant to paragraph (a) of this 
section.
    (d) Notice to affected Federal agencies. USDA will notify all 
affected Federal agencies of which it is aware of its determination to 
revoke any designation pursuant to this section or to modify a 
designation pursuant to Sec. 25.404(b).
    (e) Effective date. The final notice of revocation of designation 
will be published in the Federal Register, and the revocation will be 
effective on the date of publication.



Sec. Sec. 25.406-25.499  [Reserved]



                         Subpart F_Special Rules



Sec. 25.500  Indian reservations.

    (a) An area in an Indian reservation shall be treated as nominated 
by a State and a local government if it is nominated by the reservation 
governing body.
    (b) For purposes of paragraph (a) of this section, a reservation 
governing body must be the governing body of an Indian entity recognized 
and eligible to receive services from the United States Bureau of Indian 
Affairs, U.S. Department of Interior.
    (c) Where two or more governing bodies have joint jurisdiction over 
an Indian reservation, the nomination of a reservation area must be a 
joint nomination.



Sec. 25.501  Governments.

    If more than one State or local government seeks to nominate an area 
under this part, any reference to or requirement of this part shall 
apply to all such governments.



Sec. 25.502  Nominations by State-chartered economic development 
corporations.

    Any rural area nominated by an economic development corporation 
chartered by a State and qualified to do business in the State in which 
it is located shall be treated as nominated by a State and local 
government.



Sec. 25.503  Rural areas.

    (a) What constitutes ``rural''. A rural area may consist of any area 
that lies outside the boundaries of a Metropolitan Area, as designated 
by the Office of Management and Budget, or, is an area that has a 
population density less than or equal to 1,000 persons per square mile, 
the land use of which is primarily agricultural.
    (b) Exceptions to the definition. On a case by case basis, the 
Secretary may grant requests for waiver from the definition of ``rural'' 
stated in paragraph (a) of this section upon a showing of good cause. 
Applicants seeking to apply for a rural designation who do not satisfy 
the definition in paragraph (a) of this section must submit a request 
for waiver in writing to the Deputy Administrator, USDA Office of 
Community Development, Reporters Building, Room 701, STOP 3203, 300 7th 
Street, SW., Washington, DC 20024-3202. Requests must include:
    (1) The name, address and daytime phone number of the contact person 
for the applicant seeking the waiver; and
    (2) Sufficient information regarding the area that would support the 
infrequent exception from the definition.
    (c) Waiver process. The Secretary, in consultation with the 
Department of Commerce, will have discretion to permit rural 
applications for communities that do not meet the above rural criteria.



Sec. Sec. 25.504-25.999  [Reserved]



                 Subpart G_Round II and Round IIS Grants

    Source: 67 FR 13558, Mar. 25, 2002, unless otherwise noted.



Sec. 25.600  Purpose.

    This subpart outlines USDA policies and authorizations and contains 
procedures for the USDA EZ/EC grant program.

[[Page 524]]



Sec. 25.601  Delegation of authority.

    (a) Program administration. The Deputy Administrator, Office of 
Community Development, shall be responsible for the overall development 
of policy and administration of the USDA EZ/EC grant program.
    (b) Funding official. Unless otherwise provided, the state director 
is responsible for implementing the authorities in this subpart, 
consistent with the guidance issued by the Office of Community 
Development. Except for grant approval and environmental determination 
authorities, state directors may re-delegate their duties to qualified 
staff members.
    (c) Environmental review determinations. The funding official is 
responsible for making environmental review determinations.
    (d) Authority to issue regulations. The Under Secretary, Rural 
Development, may promulgate regulations under this part.



Sec. 25.602  Eligible recipients.

    (a) General. The grants made under this subpart shall be made to the 
lead managing entities on behalf of the Round II rural empowerment zones 
and Round IIS rural enterprise communities, respectively, in accordance 
with an approved strategic plan. Such grants shall be available to 
successor entities approved in writing by USDA.
    (b) Exception. The funding official, with the approval of the Office 
of Community Development, may elect to award all or part of the 
available grant funds to an alternate grantee.
    (c) Subrecipients. The grantee shall relay funds to subrecipients, 
as provided in the approved strategic plan, as soon as practicable.



Sec. 25.603  Grant approval and obligation of funds.

    Grants may be made at such time as the nominated area has been 
designated and such other prerequisites as USDA shall determine have 
been met, including but not limited to:
    (a) The empowerment zone or enterprise community has entered into a 
memorandum of agreement satisfactory to USDA;
    (b) The empowerment zone or enterprise community has conformed its 
strategic plan to be consistent with the level of federal grant aid 
available and such conforming amendments (if any) have met with the 
approval of the Office of Community Development and the funding 
official;
    (c) Completion of the environmental review process, including all 
appropriate public notices;
    (d) The proposed grantee has agreed, in form and substance 
satisfactory to the Office of Community Development, to any funding 
conditions imposed by USDA;
    (e) The grantee has submitted a request for obligation of funds, in 
form and substance satisfactory to the Office of Community Development, 
inclusive of the following certification:

    ``The grantee certifies that it and all direct or substantial 
subrecipients are in compliance and will continue to comply with all 
applicable laws, regulations, executive orders and other generally 
applicable requirements, including those contained in 7 CFR parts 25, 
3015, 3016, 3017, 3018, 3019 and 3052 and any agreement to meet funding 
conditions, in effect at the time of the grant or as subsequently 
amended.''



Sec. 25.604  Disbursement of grant funds.

    (a) The funding official will determine, based on 7 CFR parts 3015, 
3016 and 3019, as applicable, whether disbursement of a grant will be by 
advance or reimbursement.
    (b) A ``request for advance or reimbursement,'' in form and 
substance satisfactory to USDA, must be completed by the grantee on 
behalf of itself and all applicable subrecipients and submitted to the 
funding official.
    (c) Requests for advance or reimbursement must identify:
    (1) The amount requested for each benchmark activity;
    (2) The cumulative amount advanced to date (not inclusive of the 
current amount requested) for each benchmark activity;
    (3) The total USDA EZ/EC grant obligated for each benchmark 
activity;
    (4) The total approved budget for the applicable project or program 
(inclusive of non USDA EZ/EC grant program sources);
    (5) An estimated percentage of completion or progress made in 
accomplishing the benchmark goal associated with each benchmark 
activity;

[[Page 525]]

    (6) Certification that the lead managing entity and the 
subrecipients (where applicable) are in compliance with all applicable 
laws and regulatory requirements; and
    (7) Such other information as the funding official may require.
    (d) Requests for advance or reimbursement may include only 
activities or projects which are identified in an approved strategic 
plan.



Sec. 25.605  Grant program reporting requirements.

    Grantees may incorporate grant reporting requirements in the reports 
submitted pursuant to Sec. 25.400, or submit them separately. In 
complying with the requirements of 7 CFR parts 3015, 3016, or 3019, as 
applicable, grantees must submit, in lieu of the forms prescribed 
therein, the equivalent of such forms prescribed by the Office of 
Community Development pursuant to this subpart as such may be adapted to 
the USDA EZ/EC grant program and which may be submitted and retained in 
electronic form.



Sec. 25.606  Financial management and records.

    (a) In complying with the requirements of 7 CFR parts 3015, 3016, or 
3019, as applicable, grantees must submit, in lieu of the forms 
prescribed therein, the equivalent of such forms prescribed by the 
Office of Community Development pursuant to this subpart as such may be 
adapted to the USDA EZ/EC grant program and which may be submitted and 
retained in electronic form.
    (b) Grantees must retain financial records, supporting documents, 
statistical records and all other records pertinent to the grant for a 
period of at least 3 years after the end of the designation period, 
except that the records shall be retained beyond the 3 year period if 
audit findings have not been resolved or if directed by the United 
States. Records may be retained and submitted in electronic form if 
allowed by Generally Accepted Government Accounting Principles.



Sec. 25.607  Suspension or termination of grant funds.

    (a) Grants under this subpart may be suspended or terminated by the 
funding official, in all or in part, in accordance with this subpart and 
the applicable provisions of 7 CFR parts 3015, 3016 and 3019, as 
applicable.
    (b) The funding official may elect to suspend or terminate the 
entirety of a grant, or funding of a particular benchmark activity, but 
nevertheless fund the remainder of a request for advance or 
reimbursement, where the funding official has determined:
    (1) That grantee or subrecipient of the grant funds has demonstrated 
insufficient progress toward achieving the related benchmark goal or in 
any other way failed to comply with the strategic plan;
    (2) There is reason to believe that other sources of joint funding 
have not been or will not be forthcoming on a timely basis;
    (3) The strategic plan calls for a revised use of the grant funds; 
or
    (4) Such other cause as the funding official identifies in writing 
to the grantee (including but not limited to the use of federal grant 
funds for ineligible purposes).



Sec. Sec. 25.608-25.619  [Reserved]



Sec. 25.620  Eligible grant purposes.

    Eligible grant purposes are:
    (a) Services directed at the goals of--
    (1) Achieving or maintaining economic self-support to prevent, 
reduce, or eliminate dependency;
    (2) Achieving or maintaining self sufficiency, including reduction 
or prevention of dependency;
    (3) Preventing or remedying neglect, abuse, or exploitation of 
children and adults unable to protect their own interests, or 
preserving, rehabilitating or reuniting families;
    (b) Projects and activities identified in the strategic plan for the 
area; and
    (c) Activities that benefit residents of the area for which the 
grant is made.



Sec. 25.621  Ineligible grant purposes.

    Grant funds may not be used:
    (a) As a source of local matching funds required for other federal 
grants;
    (b) To fund political activities;
    (c) To duplicate current services or replace or substitute for 
financial support provided from other sources. If the current service is 
inadequate, however,

[[Page 526]]

grant funds may be used to augment financial support or service levels 
beyond what is currently provided;
    (d) To pay costs of preparing the application package for 
designation under this program;
    (e) To pay costs of a project which were incurred prior to the 
execution date of the applicable memorandum of agreement;
    (f) To pay for assistance to any private business enterprise which 
does not have at least 51 percent ownership by those who are either 
citizens of the United States or reside in the United States after being 
legally admitted for permanent residence;
    (g) To pay any judgment or debt owed to the United States;
    (h) To assist in the relocation of businesses;
    (i) To support or promote gambling; or
    (j) For political lobbying.



Sec. 25.622  Other considerations.

    (a) Civil rights compliance requirements. All grants made under this 
subpart are subject to Title VI of the Civil Rights Act of 1964 and 7 
CFR part 1901, subpart E.
    (b) Environmental review. All grants made under this subpart are 
subject to the environmental requirements in effect for the water and 
environmental programs of the Rural Utilities Service at 7 CFR part 
1794. The threshold levels of environmental review, for projects funded 
by the USDA EZ/EC grant program (or EZ/EC SSBG funds where the Secretary 
is authorized to execute the responsibilities under the National 
Environmental Policy Act of 1969), which projects, by their nature, 
would qualify for assistance under any program administered by the Rural 
Housing Service or Rural Business Service within USDA, shall be 
determined in accordance with 7 CFR part 1940, subpart G as follows:
    (1) Projects meeting the descriptions found at 7 CFR 1940.310(b), 
(c), (d) and (e) shall be considered categorically excluded (without an 
environmental report) for purposes of 7 CFR 1794.21.
    (2) Projects meeting the descriptions found at 7 CFR 1940.311 shall 
be considered categorically excluded (with an environmental report) for 
purposes of 7 CFR 1794.22.
    (3) Projects meeting the description found at 7 CFR 1940.312 shall 
require the preparation of an environmental assessment (EA) for purposes 
of 7 CFR 1794.23.
    (4) Projects which would normally require the preparation of an 
environmental impact statement (EIS) for purposes of 7 CFR 1940.313 
shall require an EIS for purposes of 7 CFR 1794.25.
    (c) Other USDA regulations. This program is subject to the 
provisions of the following regulations, as applicable:
    (1) 7 CFR part 3015, ``Uniform Federal Assistance Regulations'';
    (2) 7 CFR part 3016, ``Uniform Administrative Requirements for 
Grants and Cooperative Agreements to State and Local Governments'';
    (3) 7 CFR part 3017, ``Governmentwide Debarment and Suspension 
(Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace 
(Grants)'';
    (4) 7 CFR part 3018, ``New Restrictions on Lobbying'';
    (5) 7 CFR part 3019, ``Uniform Administrative Requirements for 
Grants and Agreements with Institutions of Higher Education, Hospitals, 
and other Non-Profit Organizations; and
    (6) 7 CFR part 3052, ``Audits of States, Local Governments, and Non-
Profit Organizations.''



Sec. 25.623  Programmatic changes.

    Prior approval from USDA is required for all changes to the scope or 
objectives of an approved strategic plan or benchmark activity. Failure 
to obtain prior approval of changes to the strategic plan or benchmarks, 
including changes to the scope of work or a project budget may result in 
suspension, termination, and recovery of USDA EZ/EC grant funds.



Sec. Sec. 25.624-25.999  [Reserved]

                           PART 26 [RESERVED]


[[Page 527]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 529]]

            Material Approved for Incorporation by Reference

                     (Revised as of January 1, 2006)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR Part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


7 CFR (PARTS 1-26)

OFFICE OF THE SECRETARY OF AGRICULTURE
                                                                   7 CFR


Soil Conservation Service, U.S. Department of Agriculture

  P.O. Box 2890, Washington, DC 20013
``Hydric Soils of the United States,'' 1985.......           12.31(a)(3)

[[Page 531]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2006)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100-199)
        II  Office of Management and Budget Circulars and Guidance 
                (200-299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 532]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 533]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Part 9901)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)

[[Page 534]]

     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 535]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

[[Page 536]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 537]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 538]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 539]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 540]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 541]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 542]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 543]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 544]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 545]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 546]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 547]]

        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 548]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 549]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2006)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 550]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Acquisition Regulations System            48, 2
Defense Contract Audit Agency                     32, I

[[Page 551]]

Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 1
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III

[[Page 552]]

  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105

[[Page 553]]

  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII

[[Page 554]]

Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I

[[Page 555]]

  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV

[[Page 556]]

Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
   Office of
[[Page 557]]

Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 559]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

7 CFR
                                                                   66 FR
                                                                    Page
Chapter I
1.29 (a)(3) added..................................................36907
1.130--1.151 (Subpart H) Authority citation revised................36908
1.131 (a) amended..................................................36908
2 Authority citation revised.......................................16593
2.17 (a)(21)(xi) revised...........................................31107
2.25 (a)(2) and (6) corrected.......................................8149
2.45--2.49 (Subpart G) Heading revised.............................31107
2.47 (a)(4)(vi) through (x) redesignated as (a)(4)(vii) through 
        (xi); new (a)(4)(vi) added.................................16593
2.48 (a)(27) added.................................................31107
2.49 (a)(1)(i) revised.............................................16593
6.20--6.37 (Subpart) Appendices 1, 2 and 3 revised.................21047
20 Appendix 1 amended..............................................38527
    Regulation at 66 FR 38527 effective date delayed to 1-11-02....44291

                                  2002

7 CFR
                                                                   67 FR
                                                                    Page
Subtitle A
1.29 (a)(3) amended................................................70674
1.30--1.151 (Subpart H) Authority citation revised.................70674
1.131 (a) amended..................................................70674
1.180--1.203 (Subpart J) Revised...................................63237
1.183 (a)(2) amended...............................................70674
2.20 (a)(2)(xxxix) added...........................................59135
2.24 (a)(13) revised...............................................65689
2.60 (a)(48) added.................................................59135
2.87 Revised.......................................................65690
2.95 Revised.......................................................65690
6.20--6.37 (Subpart) Appendix 1, 2 and 3 revised...................20881
25 Authority citation revised......................................13556
25.1 (a) revised...................................................13556
25.3 Amended.......................................................13556
25.4 (a) and (b)(2) revised; (b)(3), (4) and (5) added.............13556
25.103 (b)(2) introductory text and (3) introductory text revised 
                                                                   13557
25.104 (a)(2) and (b)(2) headings amended; (a) introductory text, 
        (b) introductory text and (c) introductory text and (2) 
        revised....................................................13557
25.202 (b)(7) revised..............................................13557
25.203 Revised.....................................................13557
25.300 (a) and (b) revised.........................................13557
25.404 (a) and (b) redesignated as (c) and (d); new (a) and (b) 
        added......................................................13557
26.600--25.999 (Subpart G) Added...................................13558

                                  2003

7 CFR
                                                                   68 FR
                                                                    Page
Subtitle A
1.131 (a) text, (b)(1) and (2) amended; Footnote 2 removed..........6340
1.132 Amended.......................................................6340
1.133 (b)(2) amended................................................6340
1.136 (c) amended...................................................6340
1.137 (b) amended...................................................6340

[[Page 560]]

1.141 (b)(1) Footnote 3 redesignated as (b)(1) Footnote 2; (b)(1) 
        Footnote 2 and (e)(2) amended...............................6340
1.142 (c)(4) amended................................................6340
1.143 (d) amended...................................................6340
1.144 (c) introductory text and (13) amended........................6340
1.145 (a) revised...................................................6341
1.147 (h) amended...................................................6341
1.148 (a)(3) amended................................................6341
1.149 Footnote 4 redesignated as Footnote 3.........................6341
1.189 Revised......................................................27435
2.4 Revised........................................................27435
2.16 (a)(1)(xxv), (xxvi), (2)(xiv), (xv), (3)(xliii) and (xliv) 
        added......................................................27435
2.17 (a)(20)(iv), (21)(ii), (xi) and (22)(i) revised; (a)(20)(x), 
        (21)(xxi), (xxii), (xxiii), (22)(vi), (24), (25) and (26) 
        added......................................................27436
2.18 (a)(1)(ii)(F) and (G) revised; (a)(1)(ii)(H) added............27436
2.19 (a)(1)(i) revised; (a)(1)(vi) added...........................27436
2.20 (a)(3)(iv)(E), (xiii), (xvi), and (xviii) revised; 
        (a)(3)(xix) and (9) removed; (a)(3)(xx) and (xxii) 
        redesignated as (a)(3)(xix) and (xii)......................27437
2.21 (a)(1)(xxvi), (lxiii), (lxxxvii), (cxxii), and (cxlii) 
        removed; (a)(1)(x), (xxxi), (xxxv), (liii), (ciii), 
        (cxli), (clvii) and (clxiv) revised; (a)(1)(lv), 
        (lxxviii), (lxxxii), (lxxxiii), (clxxii) through 
        (clxxxii), and (a)(8)(xiv), (xv) and (xvi) added...........27437
2.22 Heading, (a) introductory text, (5) and (b)(2) revised; 
        (a)(1)(viii)(CCC) through (FFF), (2)(xlvii), (xlviii), 
        (xlix) and (xlx) added.....................................27439
2.23 (a)(2)(v) and (3) removed.....................................27439
2.24 (a)(4)(viii), (5)(i), (6)(vii), (ix)(L), (M), (9), (10) and 
        (17) revised; (a)(3), (4)(ii), (6)(x)(T), (7)(xv), (14) 
        and second (14) removed; (a)(6)(xxv), (xxvi), (18), (19) 
        and (20) added.............................................27439
    Corrected......................................................35256
2.25 Transferred to Subpart C and revised..........................27441
2.29 (a)(11)(vii), (viii), and (ix) added..........................27442
2.32 Revised.......................................................27442
2.34 (c) added.....................................................27442
2.35 Revised.......................................................27443
2.42 (a)(12) revised; (a)(45) through (48) added...................27443
2.43 (a)(43) and (44) revised......................................27443
2.47 (a)(4) revised; (a)(15) added.................................27443
2.48 (a)(27) revised; (a)(2)(vii), (viii), (28), (29) and (30) 
        added......................................................27444
2.49 (a)(1)(iv), (v), (vi) and (11) added..........................27444
2.53 (a)(9) added..................................................27444
2.57 (a)(1) revised; (a)(14) added.................................27444
2.61 (a)(4)(v), (13), (18) and (25) revised; (a)(19) removed.......27444
2.65 (a)(40) and (104) revised.....................................27445
2.66 (a)(58), (59), (60), (66) through (71), (75), (77), (87), 
        (94), (103) and (112) removed; (a)(9), (10), (20), (39), 
        (51), (102) and (124) revised; (a)(21), (38), (40), and 
        (131) through (140) added..................................27445
2.67 (a)(12)and (18) added.........................................27446
2.68 (a)(10) and (11) added........................................27446
2.73 (a)(8) and (9) added..........................................27446
2.77--2.81 (Subpart N) Heading revised.............................27446
2.77 Revised.......................................................27446
2.79 (a) introductory text revised; (a)(8)(lxiii) through (lxvi) 
        added......................................................27446
2.80 (a) introductory text and (b) introductory text revised; new 
        (a)(52) through (56) added.................................27446
2.85 (a)(7) and (8) removed........................................27447
2.89 Redesignated as 2.300; transferred to Subpart R...............27449
2.90 (a) introductory text and (8) revised; (a)(2) removed.........27447
2.91 (a) introductory text and (1) revised; (a)(7) and (8) added 
                                                                   27447
2.92 (a) introductory text, (7), (9)(xii) and (xiii) revised; 
        (a)(10)(xx) removed; (a)(24), (25) and (26) added..........27447
2.93 Heading, (a) introductory text, (2)(i), (11), (12) and (17) 
        revised; (a)(1)(vii), (6) and (9) removed; (a)(18) added 
                                                                   27447
    Corrected......................................................35256
2.94 (a) introductory text revised; (a)(5) removed.................27449

[[Page 561]]

2.300 (Subpart R) Redesignated from 2.89; (a) introductory text 
        revised....................................................27449
6.20--6.37 (Subpart) Appendices 1, 2 and 3 revised.................25479
15.1 (b)(3) amended................................................51341
15.2 (k) revised...................................................51340
    (e) and (f) amended............................................51341
15.3 (b)(3), (d) introductory text, (1)(ii), (3)(i), (iii), 
        (4)(i), (ii), (5)(i), (6)(i), (iv), (7)(v) and (10)(ii) 
        amended; (d)(1) heading, (2) heading, (3) heading, (4) 
        heading, (5) heading, (6) heading, (7) heading, (8) 
        heading, (9) heading and (10) heading revised..............51341
15.4 (a)(1) and (b) amended; (c) revised...........................51341
15.5 (a), (b) and (d) amended......................................51341
15.6 Amended.......................................................27449
15.9 (e) amended...................................................51341
15.10 (f) amended..................................................51341
15.12 (a) introductory text amended................................51341
15.1--15.12 (Subpart A) Appendix amended...........................51341
15b Heading revised................................................51342
15b.2 Amended......................................................51342
15b.3 (p) revised; (s) added.......................................51342
15b.4 (b)(1)(v), (3), (4)(ii), (5)(i), (6) and (c) amended.........51342
15b.5 (a) amended..................................................51342
15b.7 (a) amended..................................................51342
15b.8 (a)(3)(i), (ii) and (iii) amended............................51342
15b.10 Amended.....................................................51342
15b.11 Amended.....................................................51342
15b.12 (a)(3) and (b)(8) amended...................................51343
15b.13 (a), (c) introductory text and (1) amended..................51343
15b.16--15b.19 (Subpart C) Heading revised.........................51342
15b.16 Amended.....................................................51343
15b.18 (a) heading and (e) heading revised; (a), (b), (d), (e)(1) 
        introductory text, (iv), (2) introductory text, (iii) and 
        (g)(3) amended.............................................51343
15b.20 Amended.....................................................51343
15b.21 Introductory text amended...................................51343
15b.22 (a), (b)(2), (3), (c)(1), (2), (3) and (4) amended..........51343
15b.24 (a) amended.................................................51343
15b.25 Amended.....................................................51343
15b.26 (c)(1) amended..............................................51343
15b.27 (a), (b) heading, (b)(1), (2), (3) and (c) amended..........51343
15b.28 Heading and (a) amended.....................................51342
15b.29 Amended.....................................................51343
15b.31 (a) and (d) amended.........................................51343
15b.32 (a), (c) and (d)(1) amended.................................51343
15b.35 (a)(1) amended..............................................51343
15b.36--15b.41 (Subpart F) Heading revised.........................51342
15b.36 Amended.....................................................51343
15b.39 Amended.....................................................51343
15b.40 (a) amended.................................................51343
15b.41 (a), (b)(2) and (c) amended.................................51343
15b Appendix A amended.............................................51342
15f.4 Amended......................................................27449
15f.5 (c) amended...................................................7412
15f.9 Revised.......................................................7412
15f.13 (a) amended.................................................27449
15f.16 (a) amended.................................................27449
15f.24 (a) amended.................................................27449
20.4 (c) and (d) amended; (g) revised..............................62214
20.5 Amended.......................................................62214
20.6 (a) introductory text, (1)(ii), (2)(ii), (3)(ii), (k)(1) and 
        (2) amended................................................62214
20.7 Amended.......................................................62215
20.10 Amended......................................................62215
25 Authority citation revised......................................16170
25.3 Amended.......................................................16170

                                  2004

7 CFR
                                                                   69 FR
                                                                    Page
Title 7 Nomenclature change........................................18803
Subtitle A
1.501 (Subpart N) Added............................................28042
2.5 Revised........................................................34252
2.20 (a)(9) added..................................................34252
2.23 (a)(2)(v) added...............................................34252
2.24 (a)(4), (12), (18) and (19) removed; (a)(20) redesignated as 
        new (a)(18)................................................34252
2.25 Revised.......................................................34252
2.42 (a)(3)(ix) removed; (a)(3)(x) redesignated as new (a)(3)(ix) 
                                                                   34254
2.43 (a)(45) added.................................................34254
2.85 Heading and (a) revised.......................................34254
2.90 Removed.......................................................34255

[[Page 562]]

2.92 (a)(24) removed; (a)(25) and (26) redesignated as new (a)(24) 
        and (25)...................................................34255
2.300 Revised......................................................34255
6.20--6.37 (Subpart) Appendices 1, 2 and 3 revised.................27819
6.24 (a), (b)(1) and (c) introductory text revised.................59763
6.26 (a) and (c) introductory text revised.........................59764
6.28 (b) revised...................................................59764
6.33 (b), (c) and (d) revised......................................59764
6.36 (b) revised...................................................59764
16 Added...........................................................41382

                                  2005

7 CFR
                                                                   70 FR
                                                                    Page
Subtitle A
1.131 (b)(3) amended; (b)(4) redesignated as (b)(5); new (b)(4) 
        added......................................................24936
    (b)(4) amended; (b)(5) redesignated as (b)(6); new (b)(5) 
added..............................................................47077
1.601--1.674 (Subpart O) Added; interim............................69817
1c.101 (i) and Footnote 1 amended..................................36328
1c.103 (a) and (b)(3) amended; OMB number..........................36328
1c.109 OMB number..................................................36328
1c.110 (a) amended; OMB number.....................................36328
1c.113 OMB number..................................................36328
1c.115 OMB number..................................................36328
1c.116 OMB number..................................................36328
1c.117 OMB number..................................................36328
2.22 (a)(2)(ii) through (vi), (ix) through (xvii) and (xix) 
        removed; (a)(2)(vii), (viii), (xviii) and (xx) through 
        (xlx) redesignated as (a)(2)(ii) through (xxxv); new 
        (a)(2)(iv), (xi), (xv) and (xxxi) revised..................55706
2.31 (a) revised............................................23927, 30610
2.80 (a)(2) through(6), (9) through (17) and (19) removed; (a)(7), 
        (8), (18) and (20) through (56) redesignated as (a)(2) 
        through (41); new (a)(4), (11), (16) and (36) revised......55706
3.91 (Subpart E) Revised...........................................29575
6.20--6.37 (Subpart) Appendices 1, 2 and 3 revised.................32219


                                  [all]