[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 7
Agriculture
________________________
Parts 1 to 26
Revised as of January 1, 2020
Containing a codification of documents of general
applicability and future effect
As of January 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
SUBTITLE A--Office of the Secretary of Agriculture 3
Finding Aids:
Table of CFR Titles and Chapters........................ 581
Alphabetical List of Agencies Appearing in the CFR...... 601
List of CFR Sections Affected........................... 611
[[Page iv]]
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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
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
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the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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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.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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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 Authorities
and Rules. A list of CFR titles, chapters, subchapters, 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.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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Connect to NARA's website at www.archives.gov/federal-register.
The e-CFR is a regularly updated, unofficial editorial compilation
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2020
[[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, 1600-1759, 1760-1939, 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, 2020.
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, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 1 to 26)
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Part
SUBTITLE A--Office of the Secretary of Agriculture.......... 1
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Subtitle A--Office of the Secretary of Agriculture
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Part Page
1 Administrative regulations.................. 5
1a Law enforcement authorities................. 130
1b National Environmental Policy Act........... 131
1c Protection of human subjects................ 132
2 Delegations of authority by the Secretary of
Agriculture and general officers of the
Department.............................. 150
3 Debt management............................. 317
4
[Reserved]
5 Determination of parity prices.............. 346
6 Import quotas and fees...................... 351
7 Selection and functions of Farm Service
Agency State and county committees...... 364
8 4-H Club name and emblem.................... 373
9-10
[Reserved]
11 National Appeals Division................... 376
12 Highly erodible land conservation and
wetland conservation.................... 388
13
[Reserved]
14 Determining the primary purpose of certain
payments for Federal tax purposes....... 420
15 Nondiscrimination........................... 423
15a Education programs or activities receiving
or benefitting from Federal financial
assistance.............................. 449
15b Nondiscrimination on the basis of handicap
in programs or activities receiving
Federal financial assistance............ 465
15c Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance from the United
States Department of Agriculture........ 488
15d Nondiscrimination in programs or activities
conducted by the United States
Department of Agriculture............... 499
[[Page 4]]
15e Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the United
States Department of Agriculture........ 501
15f Adjudications under section 741............. 508
16 Equal opportunity for religious
organizations........................... 517
17 Sales of agricultural commodities made
available under Title I of the
Agricultural Trade Development and
Assistance Act of 1954, as amended...... 521
18 Equal employment opportunity in the State
Cooperative Extension Services.......... 538
19
[Reserved]
20 Export sales reporting requirements......... 541
21 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 549
22 Rural development coordination.............. 549
23 State and regional annual plans of work..... 554
24
[Reserved]
25 Rural empowerment zones and enterprise
communities............................. 559
26
[Reserved]
[[Page 5]]
PART 1_ADMINISTRATIVE REGULATIONS--Table of Contents
Subpart A_Official Records
Sec.
1.1 General provisions.
1.2 Public reading rooms.
1.3 Requirements for making a records request.
1.4 Requirements for responding to records requests.
1.5 Responses to records requests.
1.6 Timing of responses to perfected records requests.
1.7 Records responsive to records requests.
1.8 Requirements for processing records requests seeking business
information.
1.9 Administrative appeals.
1.10 Authentication under Departmental Seal and certification of
records.
1.11 Preservation of records.
1.12 Fees and fee schedule.
Appendix A to Subpart A of Part 1--Fee Schedule.
Authority: 5 U.S.C. 301 and 552, Appendix A is also issued under 7
U.S.C. 2244; 31 U.S.C. 9701, and 7 CFR 2.75 (a)(6)(xiii).
Source: 52 FR 49386, Dec. 31, 1987, unless otherwise noted.
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 of Part 1--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.
1.150 Fees of witnesses.
[[Page 6]]
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.
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.
[[Page 7]]
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
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 the trial-type hearing and alternatives
processes?
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
this subpart?
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 Will hearing requests be consolidated?
1.624 Can a hearing process be stayed to allow for settlement
discussions?
1.625 How will the Forest Service respond to any hearing requests?
1.626 What will the Forest Service do with any hearing requests?
1.627 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?
1.647 What are the requirements for subpoenas and witness fees?
[[Page 8]]
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 Who has the burden of persuasion, and what standard of proof
applies?
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 this subpart?
1.671 How do I propose an alternative?
1.672 May I file a revised proposed alternative?
1.673 When will the Forest Service file its modified condition?
1.674 How will the Forest Service analyze a proposed alternative and
formulate its modified condition?
1.675 Has OMB approved the information collection provisions of this
subpart?
Subpart P_Rules of Practice and Procedure Governing Formal Rulemaking
Proceedings Instituted by the Secretary
1.800 Words in the singular form.
1.801 Scope and applicability of this subpart.
1.802 Definitions.
1.803 Institution of proceedings.
1.804 Notification by interested persons.
1.805 Docket number.
1.806 Judge.
1.807 Direct testimony submitted as written documents.
1.808 Motions and requests.
1.809 Conduct of the hearing.
1.810 Oral and written arguments.
1.811 Certification of the transcript.
1.812 Copies of the transcript.
1.813 Administrator's recommended decision.
1.814 Submission to Secretary.
1.815 Decision by the Secretary.
1.816 Filing, extension of time, effective date of filing, and
computation of time.
1.817 Ex parte communications.
1.818 Additional documents to be filed with hearing clerk.
1.819 Hearing before Secretary.
Authority: 5 U.S.C. 301, unless otherwise noted.
Subpart A_Official Records
Source: 84 FR 56100, Oct. 21, 2019, unless otherwise noted.
Sec. 1.1 General provisions.
(a) This subpart contains the rules that the United States
Department of Agriculture (USDA) and its components follow in processing
requests for records under the Freedom of Information Act (FOIA), 5
U.S.C. 552. These rules should be read together with the FOIA, which
provides additional information about access to records maintained by
the USDA. Requests made by individuals for records about themselves
under the Privacy Act of 1974, 5 U.S.C. 552a, and 7 CFR Subpart G are
also processed under this subpart.
(b) The terms ``component'' or ``components'' are used throughout
this subpart and in appendix A of this subpart to include both USDA
program agencies and staff offices.
(c) Unless otherwise stated, references to number of days indicates
business days, excluding Saturdays, Sundays, and legal holidays.
(d) Supplemental regulations for FOIA requests and appeals relating
to records of USDA's Office of Inspector General are set forth in 7 CFR
part 2620.
Sec. 1.2 Public reading rooms.
(a) Components within the USDA maintain public reading rooms
containing the records that the FOIA requires to be made regularly
available for public inspection in an electronic format. Each component
is responsible for determining which of its records are required to be
made publicly available, as well as identifying additional records of
interest to the public that are appropriate for public disclosure, and
for posting and indexing such records. Each component shall ensure that
its reading room and indices are reviewed and updated on an ongoing
basis.
(b) A link to USDA Electronic Reading Rooms can be found on the USDA
public FOIA website.
[[Page 9]]
(c) In accordance with 5 U.S.C. 552(a)(2), each component 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 to a person pursuant to a FOIA request under 5 U.S.C.
552(a)(3), and have been requested three or more times; and
(5) Copies of all records, regardless of form or format, which have
been released to a person 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. Components shall decide on a case by
case basis whether records meet these requirements, 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.
Sec. 1.3 Requirements for making a records request.
(a) Where and how to submit a request. (1) A requester may submit a
request in writing and address the request to the designated component
within the USDA that maintains the records requested. The Departmental
FOIA Officer will maintain a list of contact information for component
FOIA offices and make this list available on the USDA public FOIA
website. Filing a FOIA request directly with the component that
maintains the records will facilitate the processing of the request. If
responsive records are likely to reside within more than one USDA
component, the requester should submit the request to the USDA
Departmental FOIA office.
(2) Alternatively, a requester may submit a request electronically
via USDA's online web portal or via the National FOIA portal. USDA
components also accept requests submitted to the email addresses of
component FOIA offices as listed on the USDA public FOIA website.
(3) If a requester cannot determine where within the USDA to send a
request, he or she should consult the USDA public FOIA website to
determine where the records might be maintained. Alternatively, he or
she may send the request to the Departmental FOIA Officer, who will
route the request to the component(s) believed most likely to maintain
the records requested.
(4) To facilitate the processing of a request, a requester should
place the phrase ``FOIA REQUEST'' in capital letters on the front of
their envelope, the cover sheet of their facsimile transmittal, or the
subject line of their email.
(b) What to include in a request. (1) A requester seeking access to
USDA records should provide sufficient information about himself or
herself to enable components to resolve, in a timely manner, any issues
that might arise as to the subject and scope of the request, and to
deliver the response and, if appropriate, any records released in
response to the request. Generally, this includes the name of the
requester, name of the institution on whose behalf the request is being
made, a phone number at which the requester might be contacted, an email
address and/or postal mailing address, and a statement indicating
willingness to pay any applicable processing fees.
(2) A requester seeking access to USDA records must also provide a
reasonable description of the records requested, as discussed in
paragraph (c)(1) of this section.
[[Page 10]]
(3) A requester who is making a request for records about himself or
herself may receive greater access if the request is accompanied by a
signed declaration of identity that is either notarized or includes a
penalty of perjury statement pursuant to 28 U.S.C. 1746.
(4) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or by
submitting proof that the individual is deceased. As an exercise of
administrative discretion, the component can require a requester to
supply additional information if necessary, in order to verify that a
particular individual has consented to disclosure.
(c) How to describe the requested records. (1) A FOIA request must
reasonably describe the requested records. This means a request must be
described in such a way as to enable component personnel familiar with
the subject of the request to locate them with reasonable effort. In
general, requesters should include as much detail as possible about the
specific records or types of records that they are seeking. To the
extent possible, supply specific information regarding dates, titles,
names of individuals, names of offices, locations, names of agencies or
other organizations, and contract or grant numbers that may help in
identifying the records requested. If the request relates to pending
litigation, the requester should identify the court and its location in
addition to a case number.
(2) If a component determines that a request is incomplete, or that
it does not reasonably describe the records sought, the component will
inform the requester of this fact and advise as to what additional
information is needed or why the request is otherwise insufficient.
Sec. 1.4 Requirements for responding to records requests.
(a) In general. Except for the instances described in paragraphs (c)
and (d) of this section, the component that first receives a request for
a record is responsible for responding to or referring the request.
(b) Authority to grant or deny requests. The head of a component or
his or her designee is authorized to grant or to deny any requests for
records originating with or maintained by that component.
(c) Handling of misdirected requests. When a component's FOIA office
receives and determines that a request was misdirected within the
Department's components or should be directed to additional Department
component(s), the receiving component's FOIA office will route the
request to the FOIA office of the proper component(s).
(d) Coordination of requests involving multiple components. When a
component becomes aware that a requester has sent a request for records
to multiple USDA components, the component will notify the Departmental
FOIA Officer to determine if some form of coordination is warranted.
(e) Consultations and referrals in the process of records review.
(1) Consultation. When records originated with the component processing
the request but contain within them information of interest to another
USDA component or other Federal Government office, the component
processing the request should consult with that other entity prior to
making a release determination.
(2) Referral. When the component processing the request believes
that another USDA component or Federal Government office is best able to
determine whether to disclose the record, the component typically should
refer the responsibility for responding to the request regarding that
record to that USDA component or Federal Government office. Ordinarily,
the component or agency that originated the record is presumed to be the
best able to make the disclosure determination. However, if the
component processing the request and the originating component or agency
jointly agree that the former is in the best position to respond
regarding the record, then the record may be handled as a consultation.
[[Page 11]]
(3) Coordination. The standard referral procedure is not appropriate
where disclosure of the identity of the component or agency to which the
referral would be made could harm an interest protected by an applicable
exemption, such as the exemptions that protect personal privacy or
national security interests. For example, if a non-law enforcement
component or agency responding to a request for records on a living
third party locates within its files records originating with a law
enforcement component or agency, and if the existence of that law
enforcement interest in the third party was not publicly known, then to
disclose that law enforcement interest could cause an unwarranted
invasion of the personal privacy of the third party. Similarly, if a
component or agency locates within its file's material originating with
an Intelligence Community agency, and the involvement of that agency in
the matter is classified and not publicly acknowledged, then to disclose
or give attribution to the involvement of that Intelligence Community
agency could cause national security harms. In such instances, in order
to avoid harm to an interest protected by an applicable exemption, the
component that received the request should coordinate with the
originating component or agency to seek its views on the disclosability
of the record. The release determination for the record that is the
subject of the coordination should then be conveyed to the requester by
the component that originally received the request.
Sec. 1.5 Responses to records requests.
(a) In general. Components should, to the extent practicable,
communicate with requesters having access to the internet by electronic
means, such as email, in lieu of first-class U.S. mail.
(b) Acknowledgements of requests. On receipt of a request, the
processing component will send an acknowledgement to the requester and
provide an assigned request tracking number for further reference.
Components should include in the acknowledgement a brief description of
the records sought, or attach a copy of the request, to allow requesters
to more easily keep track of their requests.
(c) Grants of requests. When a component makes a determination to
grant a request in whole or in part, it will notify the requester in
writing. The component will also inform the requester of any fees
charged, pursuant to Sec. 1.12, in the processing of the request.
Except in instances where advance payment of fees is required,
components may issue bills for fees charged at the same time that they
issue a determination. The component will include a statement advising
the requester that he or she has the right to seek dispute resolution
services from the component's FOIA Public Liaison.
(d) Specifying the format of records. Generally, requesters may
specify the preferred form or format (including electronic formats) for
the records sought. Components will accommodate the request if the
records are readily reproducible in that form or format.
(e) Exemptions and discretionary release. All component records,
except those specifically exempted from mandatory disclosure by one or
more provisions of 5 U.S.C. 552(a) and (b), will be made available to
any person submitting a records request under this subpart. Components
are authorized, in their sole discretion, to make discretionary releases
of their records when such releases are not otherwise specifically
prohibited by Executive Order, statute, or regulation.
(f) Reasonable segregation of records. If a requested record
contains portions that are exempt from mandatory disclosure and other
portions that are not exempt, the processing component will ensure that
all reasonably segregable nonexempt portions are disclosed, and that all
exempt portions are identified according to the specific exemption(s)
that are applicable.
(g) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect will notify the
requester of that determination in writing. The written communication to
the requester will include the name and title of the person responsible
for the adverse determination, if other than the official signing the
letter; a brief statement of the reason(s) for the determination,
including any exemption(s) applied in denying the request; an estimate
of the
[[Page 12]]
volume of records or information withheld, such as the number of pages
or some other reasonable form of estimation; a statement that the
determination may be appealed, followed by a description of the
requirements to file an appeal; and a statement advising the requester
that he or she has the right to seek dispute resolution services from
the component's FOIA Public Liaison or the Office of Government
Information Services (``OGIS''). An adverse determination includes:
(1) A determination to withhold any requested record in whole or in
part;
(2) A determination that a requested record does not exist or cannot
be found, when no responsive records are located and released;
(3) A determination that a record is not readily reproducible in the
format sought by the requester;
(4) A determination on any disputed fee matter; or
(5) A denial of a request for expedited treatment.
(h) Upon request, the component will provide an estimated date by
which the agency expects to provide a response to the requester. If a
request involves a voluminous amount of material, or searches in
multiple locations, the component may provide interim responses,
releasing the records on a rolling basis.
Sec. 1.6 Timing of responses to perfected records requests.
(a) In general. Components ordinarily will respond to requests
according to their order of receipt. In instances involving misdirected
requests that are re-routed pursuant to Sec. 1.4(c), the response time
will commence on the date that the request is received by the proper
component's office that is designated to receive requests, but in any
event not later than 10-working days after the request is first received
by any component's office that is designated to receive requests.
(b) Response time for responding to requests. Components ordinarily
will inform requesters of their determination concerning requests within
20 working days of the date of receipt of the requests, plus any
extension authorized by paragraph (d) of this section.
(c) Multitrack processing and how it affects requests. All
components must designate a specific track for requests that are granted
expedited processing in accordance with the standards set forth in
paragraph (f) of this section. A component also may designate additional
processing tracks that distinguish between simple and more complex
requests based on the estimated amount of work or time needed to process
the request. Among the factors a component may consider are the number
of pages involved in processing the request and the need for
consultations or referrals. Upon request, components will advise
requesters of the track into which their request falls and, when
appropriate, will offer the requesters an opportunity to narrow their
request so that it can be placed in a different processing track in
order to decrease the processing time.
(d) Circumstances for extending the response time. Whenever the
component cannot meet the statutory time limit for processing a request
because of ``unusual circumstances,'' as defined in the FOIA, and the
component extends the time limit on that basis, the component must,
before expiration of the 20-day period to respond, notify the requester
in writing of the unusual circumstances involved and of the date by
which the component estimates processing of the request will be
completed. Where the extension exceeds 10 working days, the component
must, as described by the FOIA, provide the requester with an
opportunity to modify the request or arrange an alternative time period
for processing the original or modified request. The component must make
available its designated FOIA contact or its FOIA Public Liaison for
this purpose. The component also must alert requesters to the
availability of the OGIS to provide dispute resolution services.
(e) Procedures for requesting expedited processing. A requester who
seeks expedited processing must submit a statement, certified to be true
and correct to the best of that person's knowledge and belief,
explaining in detail the basis for requesting expedited processing.
(1) Requests and appeals will be processed on an expedited basis
whenever it
[[Page 13]]
is determined by the component that they involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person who is primarily
engaged in disseminating information.
(2) Requests for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i) or (ii) of this section must be
submitted to the component that maintains the records requested.
Components receiving requests for expedited processing will decide
whether to grant them within 10 calendar days of their receipt of these
requests and will notify the requesters accordingly. If a request for
expedited treatment is granted, the request or appeal will be given
priority, placed in the processing track for expedited requests or
appeals, and will be processed as soon as practicable. If a request for
expedited processing is denied, any appeal of that decision will be
acted on expeditiously.
Sec. 1.7 Records responsive to records requests.
(a) In determining which records are responsive to a request, a
component ordinarily will include only records in its possession as of
the date that the component begins its search.
(b) A component is not required to create a new record in order to
fulfill a request for records. The FOIA does not require agencies to do
research, to analyze data, or to answer written questions in response to
a request.
(c) Creation of records may be undertaken voluntarily.
(d) A component will provide a record in the format specified by a
requester, if the record is readily reproducible by the component in the
format requested.
Sec. 1.8 Requirements for processing records requests seeking
business information.
(a) In general. Each component is responsible for making the final
determination with regard to the disclosure or nondisclosure of business
information in records submitted by an outside entity.
(b) Definitions. For purposes of this section:
(1) Confidential commercial information means commercial or
financial information obtained by the USDA from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, or Tribe, but not including another
Federal Government entity, that provides confidential commercial
information, either directly or indirectly, to the Federal Government.
(c) Designation of confidential commercial information. A submitter
of confidential commercial information must use good-faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations expire 10 years after
the date of the submission unless the submitter requests and provides
justification for a longer designation period.
(d) When notice to the submitter is required. (1) The component must
promptly provide written notice to the submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if the component determines that it may be
required to disclose the records, provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The component has a reason to believe that the requested
information may be protected from disclosure under Exemption 4 but has
not yet determined whether the information is protected from disclosure.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, the component may post or publish a notice in a
place or manner
[[Page 14]]
reasonably likely to inform the submitters of the proposed disclosure,
instead of sending individual notifications.
(e) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The component determines that the information is exempt under
the FOIA and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other than
the FOIA) or by a regulation issued in accordance with the requirements
of Executive Order 12,600.
(4) The designation made by the submitter under paragraph (c) of
this section appears obviously frivolous. In such case, the component
must give the submitter written notice of any final decision to disclose
the information within a reasonable number of days prior to a specified
disclosure date.
(f) Submitter's opportunity to object to disclosure. (1) The
component must specify a reasonable time period within which the
submitter must respond to the notice referenced in paragraph (d) of this
section.
(2) If a submitter objects to disclosure of any portion of the
records, the submitter must provide the component with a detailed
written statement that specifies all grounds for withholding the
particular information. The submitter must show why the information is a
trade secret or commercial or financial information that is privileged
or confidential.
(3) A submitter who fails to respond within the time period
specified in the notice will be considered to have no objection to
disclosure of the information. The component is not required to consider
any information received after the date of any disclosure decision. Any
information provided by a submitter under this subpart may itself be
subject to disclosure under the FOIA.
(g) Notice of intent to disclose over submitter's objection. If a
component decides to disclose confidential commercial information over
the objection of a submitter, the component will give the submitter
written notice, which will include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the component intends to release them; and
(3) A disclosure date subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial information,
the component will promptly notify the submitter.
(i) Corresponding notice to requester. The component must notify the
requester whenever it provides the submitter with notice and an
opportunity to object to disclosure; whenever it notifies the submitter
of its intent to disclose the requested information; and whenever a
submitter files a lawsuit to prevent the disclosure of the information.
Sec. 1.9 Administrative appeals.
(a) Appeals of adverse determinations. If a requester is
dissatisfied with a component's response to his or her request, the
requester may submit a written appeal of that component's adverse
determination denying the request in any respect.
(b) Deadline for submitting an appeal. Requesters must make the
appeal in writing. To be considered timely, the appeal must be
postmarked, or in the case of electronic submissions transmitted, within
90 calendar days of the date of the adverse determination. Components
adjudicating appeals will issue a decision on an appeal, within 20-
working days of its date of receipt, plus any extension authorized by
Sec. 1.6(d).
(c) Appeals officials. Each component will provide for review of
appeals by an official different from the official who made the initial
determination(s).
(d) Components' responses to appeals. The decision on an appeal will
be made in writing.
(1) If the component grants the appeal in part or in whole, it will
inform
[[Page 15]]
the requester of any conditions surrounding the granting of the request
(e.g., payment of fees). If the component grants only a portion of the
appeal, it will treat the portion not granted as a denial.
(2) If the component denies the appeal, either in part or in whole,
it will inform the requester of that decision and of the following:
(i) The reasons for denial, including any FOIA exemptions asserted;
(ii) The name and title or position of each official responsible for
denial of the appeal;
(iii) The availability of mediation services offered by the OGIS of
the National Archives and Records Administration as a non-exclusive
alternative to litigation; and
(iv) The right to judicial review of the denial in accordance with 5
U.S.C. 552(a)(4)(B).
(e) Legal sufficiency review of an appeal. If a component makes the
determination to deny an appeal in part or whole, that component will
send a copy of all records to the Assistant General Counsel, General Law
and Research Division, that the Office of the General Counsel (``OGC'')
would need to examine to provide a legal sufficiency review of the
component's decision.
(1) Frequently, these records will include a copy of the unredacted
records requested, a copy of the records marked to indicate information
the component proposes to withhold, all correspondence relating to the
request, and a proposed determination letter. When the volume of records
is so large as to make sending a copy impracticable, the component will
enclose an informative summary and representative sample of those
records. The component will not deny an appeal until it receives
concurrence from the Assistant General Counsel.
(2) With regard to appeals involving records of OIG, the records in
question will be referred to the OIG Office of Counsel, which will
coordinate all necessary reviews.
(f) Submission of an appeal before judicial review. Before seeking
review by a court of a component's adverse determination, a requester
generally must first submit a timely administrative appeal.
Sec. 1.10 Authentication under Departmental Seal and certification
of records.
(a) In general. Requests seeking either authenticated or certified
copies of records will generally be processed under the FOIA. FOIA
search, review, and duplication fees, where applicable, may also apply.
However, because the costs for authenticated and certified copies are
outside of the FOIA, the provisions of Sec. 1.12 that call for the
automatic waiver of FOIA fees under $25.00 do not apply.
(b) Authentication of records. (1) Authentication provides
confirmation by a USDA officer that a certified copy of a record is what
it purports to be, an accurate duplicate of the original record.
(2) When a request is received for an authenticated copy of a record
that the component determines may be made available, under the FOIA,
each component will send an authentic (i.e., correct) copy of the record
to the Assistant General Counsel in the OGC Division responsible for the
applicable component program or other designee of the Secretary of
Agriculture. The Assistant General Counsel for the applicable component
program or other designee of the Secretary of Agriculture will confirm
the authenticity of the record and affix the seal of the USDA to it.
(3) The Hearing Clerk in the Office of Administrative Law Judges may
authenticate copies of records for the Hearing Clerk. The Director of
the National Appeals Division may authenticate copies of records for the
National Appeals Division. The Inspector General is the official who
authenticates copies of records for OIG.
(4) When any component determines that a record for which
authentication is requested may be made available only in part, because
certain portions of it are exempt from release under the FOIA, the
component will process the record under the FOIA and make any needed
redactions, including notations on the record as to the FOIA
exemption(s) which require(s) the removal of the information redacted.
In such an instance, the component will supply a copy of the record both
in its unredacted state and in its redacted
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state to the party authorized to perform authentication, along with a
copy of the proposed determination letter regarding the withholding of
the information redacted.
(5) The cost for authentication of records is $10.00 each.
(c) Certification of records. (1) Certification is the procedure by
which a USDA official confirms that a copy of a record is a true
reproduction of the original.
(2) When a request is received for a certified copy of a record that
the component determines may be made available under the FOIA, each
component will prepare a correct copy and a statement attesting that the
copy is a true and correct copy.
(3) When any component determines that a record for which a
certified copy is requested may be made available only in part, because
certain portions of it are exempt from release under the FOIA, the
component will process the record under the FOIA and make any needed
redactions, including notations on the record as to the FOIA
exemption(s) which require(s) the removal of the information redacted.
(4) The cost for certification of records is $5.00 each.
Sec. 1.11 Preservation of records.
Components will preserve all correspondence and records relating to
requests and appeals received under this subpart, as well as copies of
all requested records, until disposition or destruction of such
correspondence and records is authorized pursuant to title 44 of the
United States Code or the General Records Schedule 4.2 of the NARA.
Agency records will not be disposed of, or destroyed, while they are the
subject of a pending request, appeal, or lawsuit under the FOIA.
Sec. 1.12 Fees and fee schedule.
(a) Authorization to set FOIA fees. The Chief Financial Officer is
delegated authority to promulgate regulations providing for a uniform
fee schedule applicable to all components of the USDA regarding requests
for records under this subpart. The regulations providing for a uniform
fee schedule are found in appendix A of this subpart.
(b) In general. Components will charge for processing requests under
the FOIA in accordance with the provisions of appendix A of this subpart
and the Uniform Freedom of Information Act Fee Schedule and Guidelines
published by the Office of Management and Budget (``OMB Fee
Guidelines'').
(c) Guidance for lowering FOIA fees. Components will ensure that
searches, review, and duplication are conducted in the most efficient
and least expensive manner practicable.
(d) Communicating with requesters on fee issues. In order to resolve
any fee issues that arise under this subpart, a component may contact a
requester for additional information.
(e) Notifying requesters of estimated fees. When a component
determines or estimates that the processing of a FOIA request will incur
chargeable FOIA fees, in accordance with appendix A of this subpart and
the OMB Fee Guidelines, the component will notify the requester in
writing of the actual or estimated amount of the fees, including a
breakdown of the fees for search, review, or duplication, unless the
requester has indicated a willingness to pay fees as high as those
anticipated.
(f) Requester commitment to pay estimated fees. In cases in which a
requester has been notified that the processing of his or her request
will incur chargeable FOIA fees, the component providing such
notification will not begin processing the request until the requester
commits in writing to pay the actual or estimated total fee, or
designates the amount of fees that he or she is willing to pay, or in
the case of a requester who has not yet been provided with his or her
statutory entitlements, designates that he or she seeks only that which
can be provided by these statutory entitlements. The requester must
provide the commitment or designation in writing, and must, when
applicable, designate an exact dollar amount he or she is willing to
pay.
(g) Tolling of request for fee issues. If the requester has
indicated a willingness to pay some designated amount of fees, but the
component estimates that the total fee will exceed that amount, the
component will toll the processing
[[Page 17]]
of the request when it notifies the requester of the estimated fees in
excess of the amount the requester is willing to pay. Once the requester
responds, the time to respond will resume from where it was at the date
of the notification.
(h) Assisting requesters wishing to lower fees. Components will make
available their FOIA Public Liaison or other FOIA professional to assist
any requester in reformulating a request to meet the requester's needs
at a lower cost.
(i) Timing of Bills for Collection. Except in instances where
advance payment is required, or where requesters have previously failed
to pay a properly charged FOIA fee within 30 calendar days of the
billing date, components may issue Bills for Collection for FOIA fees
owed at the same time that they issue their responses to FOIA requests.
(j) Advance payment of FOIA fees when estimated fees exceed $250.00.
When a component determines or estimates that a total fee to be charged
for the processing of a FOIA request is likely to exceed $250.00, it may
require the requester to make an advance payment up to the amount of the
entire anticipated fee before beginning to process the request. However,
a component may elect to process a request prior to collecting fees
exceeding $250.00 when it receives a satisfactory assurance of full
payment from a requester with a history of prompt payment.
(k) Special services. For services not covered by the FOIA or by
appendix A of this subpart, as described in Sec. 1.10, components may
set their own fees in accordance with applicable law. Although
components are not required to provide special services, such as
providing multiple copies of the same record, or sending records by
means other than first class mail, if a component chooses to do so as a
matter of administrative discretion, the direct costs of these services
will be charged.
(l) Aggregating requests. When a component reasonably believes that
a requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, the component may aggregate those requests and charge
accordingly. Components may presume that multiple requests of this type
made within a 30 calendar day period have been made in order to avoid
fees. For requests separated by a longer period, components will
aggregate them only where there is a reasonable basis for determining
that aggregation is warranted in view of all the circumstances involves.
Multiple requests involving unrelated matters will not be aggregated for
fee purposes.
(m) Payment of FOIA fees. Requesters must pay FOIA fees by check or
money order made payable to the Treasury of the United States.
Components are not required to accept payments in installments.
(n) Failure to pay properly charged fees. When a requester has
previously failed to pay a properly charged FOIA fee to any component
within 30 calendar days of the billing date, a component may require
that the requester pay the full amount due, plus any applicable interest
on that prior request, and the component may require that the requester
make an advance payment of the full amount of any anticipated fee before
the component begins to process a new request or continues to process a
pending request or any pending appeal. Where a component has a
reasonable basis to believe that a requester has misrepresented the
requester's identity in order to avoid paying outstanding fees, it may
require that the requester provide proof of identity.
(o) Restrictions on charging fees. (1) If a component fails to
comply with the statutory time limits in which to respond to a request,
as provided in Sec. 1.6(b), and if unusual circumstances, as that term
is defined by the FOIA, apply to the processing of the request, as
discussed in Sec. 1.6(d), it may not charge search fees for the
processing of the request, or duplication fees for the processing of the
request if the requester is classified as an educational institution
requester, a noncommercial scientific institution requester, or a
representative of the news media, as defined in appendix A of this
subpart, unless:
[[Page 18]]
(i) The component notifies the requester, in writing, within the
statutory 20-working day time period, that unusual circumstances, as
that term is defined by the FOIA, apply to the processing of the
request;
(ii) More than 5,000 pages are necessary to respond to the request;
and
(iii) The component has discussed with the requester by means of
written mail, electronic mail, or by telephone (or has made not less
than three good-faith attempts to do so) how the requester could
effectively limit the scope of the request.
(2) If a court has determined that exceptional circumstances exist,
as defined by the FOIA, a failure to comply with the time limits shall
be excused for the length of time provided by the court order.
(p) Waivers of chargeable fees. (1) In general. Records responsive
to a request will be furnished without charge or at a reduced rate below
that established in Table 1 of appendix A of this subpart, where a
component determines, based on available evidence, that the requester
has demonstrated that:
(i) Disclosure of the requested information is in the public
interest as defined in paragraph (p)(3) of this section, because it is
likely to contribute significantly to public understanding of the
operations or activities of the government, and;
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester as defined in paragraph (p)(4) of
this section.
(2) Adjudication of fee waivers. Each fee waiver request is judged
on its own merit.
(3) Factors for consideration of public interest. In deciding
whether disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government,
components will consider all four of the following factors:
(i) The subject of the request must concern identifiable operations
or activities of the Federal government, with a connection that is
direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully
informative about government operations or activities to be ``likely to
contribute'' to an increased public understanding of those operations or
activities. The disclosure of information that already is in the public
domain, in either the same or a substantially identical form, would not
contribute to such understanding where nothing new would be added to the
public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the requester's individual understanding. A requester's
expertise in the subject area as well as his or her ability and
intention to effectively convey information to the public will be
considered. It will be presumed that a representative of the news media,
as defined in appendix A of this subpart, will satisfy this
consideration.
(iv) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant degree. However, components
will not make value judgments about whether the information at issue is
``important'' enough to be made public.
(4) Factors for consideration of commercial interest. In deciding
whether disclosure of the requested information is in the requester's
commercial interest, components will consider the following two factors:
(i) Components will identify any commercial interest of the
requester, as defined in appendix A of this subpart. Requesters may be
given an opportunity to provide explanatory information regarding this
consideration.
(ii) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure. Components ordinarily will presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return will not be
presumed to primarily serve the public interest.
(5) Partial fee waivers. Where only some of the records to be
released satisfy the requirements for a waiver of
[[Page 19]]
fees, a waiver will be granted for those records only.
(6) Timing of requests for fee waivers. Requests for a waiver or
reduction of fees should be made when the request is first submitted to
the component and should address the criteria referenced in paragraph
(p)(3) of this section. A requester may submit a fee waiver request
later so long as the underlying record request is pending or on
administrative appeal. When a requester who has committed to pay fees
subsequently asks for a waiver of those fees and that waiver is denied,
the requester will be required to pay any costs incurred up to the date
the fee waiver request was received.
Sec. Appendix A to Subpart A of Part 1--Fee Schedule
Section 1. In General. This schedule sets forth fees to be charged
for providing copies of records--including photographic reproductions,
microfilm, maps and mosaics, and related services--requested under the
Freedom of Information Act (``FOIA''). The fees set forth in this
schedule are applicable to all components of the USDA. Further
information about fees and fee waivers is provided in 7 CFR 1.12 Fees
and Fee Waivers.
Section 2. Definitions.
(a) Types of FOIA fees. The FOIA defines the following types of FOIA
fees that may be charged for responding to FOIA requests.
(1) Search fees.
(i) Searching is the process of looking for and retrieving records
or information responsive to a request. Search time includes page-by-
page or line-by-line identification of information within records and
the reasonable efforts expended to locate and retrieve information from
electronic records.
(ii) Search time is charged in quarter-hour increments within the
USDA, and includes the direct costs incurred by a component in searching
for records responsive to a request. It does not include overhead
expenses such as the costs of space and heating or lighting of the
facility in which the records are maintained.
(iii) Components may charge for time spent searching for requested
records even if they do not locate any responsive records or if they
determine that the records that they locate are entirely exempt from
disclosure.
(iv) USDA components will charge for search time at the actual
salary rate of the individual who conducts the search, plus 16 percent
of the salary rate (to cover benefits). This rate was adopted for
consistency with the Uniform Freedom of Information Act Fee Schedule and
Guidelines (``OMB Fee Guidelines'') that state that agencies should
charge fees that recoup the full allowable direct costs that they incur
in searching for responsive records.
(v) Search time also includes the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. Components will notify
requesters of the costs of creating such a program, and requesters must
agree to pay the associated costs before these costs may be incurred.
(2) Review fees.
(i) Reviewing is the process of examining records located in
response to a request in order to determine whether any portion of the
records is exempt from disclosure. The process of review also includes
the process of preparing records for disclosure, for example, doing all
that is necessary to redact them and prepare them for release. Review
time also includes time spent considering any formal objection to
disclosure of responsive records made by a business submitter as
discussed in 7 CFR 1.8 Requirements for processing requests seeking
business information. However, it does not include time spent resolving
general legal or policy issues regarding the application of the nine
FOIA exemptions.
(ii) Review time is charged in quarter-hour increments within the
USDA, and includes the direct costs incurred by a component in preparing
records responsive to a request for disclosure. It does not include
overhead expenses such as the costs of space and heating or lighting of
the facility in which the records are maintained.
(iii) USDA components may charge for time spent reviewing requested
records even if they determine that the records reviewed are entirely
exempt from disclosure.
(iv) USDA components will charge for review time at the actual
salary rate of the individual who conducts the review, plus 16 percent
of the salary rate (to cover benefits). This rate was adopted for
consistency with the OMB Fee Guidelines that state that agencies should
charge fees that recoup the full allowable direct costs that they incur
in reviewing records for disclosure.
(v) Review time also includes the direct costs associated with the
cost of computer programming designed to facilitate a manual review of
the records, or to perform electronic redaction of responsive records,
particularly when records are maintained in electronic form. Components
will notify requesters of the costs performing such programming, and
requesters must agree to pay the associated costs before these costs may
be incurred.
(3) Duplication fees.
(i) Duplicating is the process of producing copies of records or
information contained in records requested under the FOIA. Copies
[[Page 20]]
can take the form of paper, audiovisual materials, or electronic
records, among other forms.
(ii) Duplication is generally charged on a per-unit basis. The
duplication of paper records will be charged at a rate of $.05 per page
within the USDA. The duplication of records maintained in other formats
will include all direct costs incurred by a component in performing the
duplication, including any costs associated in acquiring special media,
such as CDs, disk drives, special mailers, and so forth, for
transmitting the requested records or information. It does not include
overhead expenses such as the costs of space and heating or lighting of
the facility in which the records are maintained.
(iii) Duplication generally does not include the cost of the time of
the individual making the copy. This time is generally factored into the
per page cost of duplication. However, when duplication requires the
handling of fragile records, or paper records that cannot be safely
duplicated in high-speed copiers, components may also charge for the
time spent duplicating these records. In such an instance, the cost of
this time will be added to the per-page charge, and an explanation
provided to the requester in the component's itemization of FOIA fees
charges. Components may describe this time as time spent in duplicating
fragile records.
(iv) USDA components will charge for time spent in duplicating
fragile records at the actual salary rate of the individual who performs
the duplication, plus 16 percent of the salary rate (to cover benefits).
This rate was adopted for consistency with the OMB Fee Guidelines that
state that agencies should charge fees that recoup the full allowable
direct costs that they incur in duplicating requested records.
(v) Where paper records must be scanned in order to comply with a
requester's preference to receive the records in an electronic format,
duplication costs will also include the direct costs associated with
scanning those materials, including the time spent by the individual
performing the scanning. Components may describe this time as time spent
in scanning paper records.
(vi) However, when components ordinarily scan paper records in order
to review and/or redact them, the time required for scanning records
will not be included in duplication fees, but in review fees, when these
are applicable. When components that ordinarily scan paper records in
order to review and/or redact them release records in an electronic
format to requesters who are not to be charged review fees, duplication
fees will not include the time spent in scanning paper records. In such
instances, duplication fees may only include the direct costs of
reproducing the scanned records. In such instances, components may not
charge duplication fees on a per-page basis.
(b) Categories of FOIA requesters for fee purposes. The FOIA defines
the following types of requests and requesters for the charging of FOIA
fees.
(1) Commercial use requests.
(i) Commercial use requests are requests for information for a use
or a purpose that furthers commercial, trade or profit interests, which
can include furthering those interests through litigation. Components
will determine, whenever reasonably possible, the use to which a
requester will put the requested records. When it appears that the
requester will put the records to a commercial use, either because of
the nature of the request itself or because a component has reasonable
cause to doubt a requester's stated use, the component may provide the
requester a reasonable opportunity to submit further clarification. A
component's decision to place a request in the commercial use category
will be made on a case-by-case basis based on the requester's intended
use of the information.
(ii) Commercial requests will be charged applicable search fees,
review, and duplication fees.
(iii) If a component fails to comply with the statutory time limits
in which to respond to a commercial request, as provided in 7 CFR
1.6(b), and if no unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), it may not charge search fees for the
processing of the request. It may, however, still charge applicable
review and duplication fees.
(iv) If a component fails to comply with the statutory time limits
in which to respond to a commercial request, as provided in 7 CFR
1.6(b), when unusual or exceptional circumstances, as those terms are
defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), and the component notifies the requester, in
writing, within the statutory 20-working day time period, that unusual
or exceptional circumstances, as those terms are defined by the FOIA,
apply to the processing of the request, more than 5,000 pages are
necessary to respond to the request, and the component has discussed
with the requester by means of written mail, electronic mail, or by
telephone (or has made not less than three good faith attempts to do so)
how the requester could effectively limit the scope of the request, the
component may charge any search fees for the processing of the request,
as well as any applicable review and duplication fees. Otherwise, it may
only charge applicable review and duplication fees.
(2) Educational institution requesters.
(i) Educational institution requesters are requesters who are
affiliated with a school
[[Page 21]]
that operates a program of scholarly research, such as a preschool, a
public or private elementary or secondary school, an institution of
undergraduate education, an institution of graduate higher education, an
institution of professional education, or an institution of vocational
education. To be in this category, a requester must show that the
request is made under the auspices of a qualifying institution and that
the records are not sought for a commercial use but are sought to
further scholarly research. Records sought by students at an educational
institution for use in fulfilling their degree requirements may qualify
if the requester articulates a clear relationship to his or her
coursework. Students must document how the records they are requesting
will further the scholarly research aims of the institution in question.
(ii) Educational institution requesters are entitled to receive 100
pages of duplication without charge. Following the exhaustion of this
entitlement, they will be charged fees for the duplicating of any
additional pages of responsive records released. They may not be charged
search or review fees.
(iii) If a component fails to comply with the statutory time limits
in which to respond to an educational use request, as provided in 7 CFR
1.6(b), and if no unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), it may not charge duplication fees for the
processing of the request.
(iv) If a component fails to comply with the statutory time limits
in which to respond to an educational use request, as provided in 7 CFR
1.6(b), when unusual or exceptional circumstances, as those terms are
defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), and the component notifies the requester, in
writing, within the statutory 20-working day time period, that unusual
or exceptional circumstances, as those terms are defined by the FOIA,
apply to the processing of the request, more than 5,000 pages are
necessary to respond to the request, and the component has discussed
with the requester by means of written mail, electronic mail, or by
telephone (or has made not less than three good-faith attempts to do so)
how the requester could effectively limit the scope of the request, the
component may charge duplication for the processing of the request.
Otherwise, it may not charge duplication fees.
(3) Noncommercial scientific institution requesters.
(i) Noncommercial scientific institution requesters are requesters
who are affiliated with an institution that is not operated on a
``commercial'' basis, as that term is defined in paragraph (b)(1)(i) of
this section, and that is operated solely for the purpose of conducting
scientific research the results of which are not intended to promote any
particular product or industry. To be in this category, a requester must
show that the request is authorized by and is made under the auspices of
a qualifying institution and that the records are not sought for a
commercial use but are sought to further scientific research.
(ii) Noncommercial scientific institution requesters are entitled to
receive 100 pages of duplication without charge. Following the
exhaustion of this entitlement, they will be charged fees for the
duplicating of any additional pages of responsive records released. They
may not be charged search or review fees.
(iii) If a component fails to comply with the statutory time limits
in which to respond to a noncommercial scientific institution request,
as provided in 7 CFR 1.6(b), and if no unusual or exceptional
circumstances, as those terms are defined by the FOIA, apply to the
processing of the request, as discussed in 7 CFR 1.6(d), it may not
charge duplication fees for the processing of the request.
(iv) If a component fails to comply with the statutory time limits
in which to respond to a noncommercial scientific institution request,
as provided in 7 CFR 1.6(b), when unusual or exceptional circumstances,
as those terms are defined by the FOIA, apply to the processing of the
request, as discussed in 7 CFR 1.6(d), and the component notifies the
requester, in writing, within the statutory 20-working day time period,
that unusual or exceptional circumstances, as those terms are defined by
the FOIA, apply to the processing of the request, more than 5,000 pages
are necessary to respond to the request, and the component has discussed
with the requester by means of written mail, electronic mail, or by
telephone (or has made not less than three good-faith attempts to do so)
how the requester could effectively limit the scope of the request, the
component may charge duplication for the processing of the request.
Otherwise, it may not charge duplication fees.
(4) Representatives of the news media.
(i) Representative of the news media is any person or entity that
actively gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term
``news'' means information that is about current events or that would be
of current interest to the public. Examples of news media entities
include, but are not limited to, television or radio stations
broadcasting to the public at large and publishers of periodicals (but
only in those instances where they can qualify as disseminators of
``news'') who make their products available for purchase or subscription
by the general public,
[[Page 22]]
including news organizations that disseminate solely on the internet.
For ``freelance'' journalists to be regarded as working for a news
organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be
the clearest proof, but components will also look to the past
publication record of a requester in making this determination. To be in
this category, a requester must not be seeking the requested records for
a commercial use. However, a request for records supporting the news-
dissemination function of the requester will not be considered of
commercial use.
(ii) Representatives of the news media are entitled to receive 100
pages of duplication without charge. Following the exhaustion of this
entitlement, they will be charged fees for the duplication of any
additional pages of responsive records released. They may not be charged
search or review fees.
(iii) If a component fails to comply with the statutory time limits
in which to respond to a news-media use request, as provided in 7 CFR
1.6(b), and if no unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), it may not charge duplication fees for the
processing of the request.
(iv) If a component fails to comply with the statutory time limits
in which to respond to a news-media request, as provided in 7 CFR
1.6(b), when unusual or exceptional circumstances, as those terms are
defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), and the component notifies the requester, in
writing, within the statutory 20-working day time period, that unusual
or exceptional circumstances, as those terms are defined by the FOIA,
apply to the processing of the request, more than 5,000 pages are
necessary to respond to the request, and the component has discussed
with the requester by means of written mail, electronic mail, or by
telephone (or has made not less than three good-faith attempts to do so)
how the requester could effectively limit the scope of the request, the
component may charge duplication for the processing of the request.
Otherwise, it may not charge duplication fees.
(5) All other requesters.
(i) All other requesters are individuals and entities who do not
fall into any of the four categories described in Section 2(b)
paragraphs (1), (2), (3) and (4) of this appendix. Requesters seeking
information for personal use, public interest groups, and nonprofit
organizations are examples of requesters who might fall into this group.
(ii) All other requesters are entitled to receive 100 pages of
duplication without charge. Following the exhaustion of this
entitlement, they will be charged fees for the duplicating of any
additional pages of responsive records released. All other requesters
are also entitled to receive 2 hours of search time without charge.
Following the exhaustion of this entitlement, they may be charged search
fees for any remaining search time required to locate the records
requested. They may not be charged review fees.
(iii) If a component fails to comply with the statutory time limits
in which to respond to an all-other request, as provided in 7 CFR
1.6(b), and if no unusual or exceptional circumstances, as those terms
are defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), it may not charge search fees for the
processing of the request.
(iv) If a component fails to comply with the statutory time limits
in which to respond to an all-other request, as provided in 7 CFR
1.6(b), when unusual or exceptional circumstances, as those terms are
defined by the FOIA, apply to the processing of the request, as
discussed in 7 CFR 1.6(d), and the component notifies the requester, in
writing, within the statutory 20-working day time period, that unusual
or exceptional circumstances, as those terms are defined by the FOIA,
apply to the processing of the request, more than 5,000 pages are
necessary to respond to the request, and the component has discussed
with the requester by means of written mail, electronic mail, or by
telephone (or has made not less than three good-faith attempts to do so)
how the requester could effectively limit the scope of the request, the
component may charge search fees for the processing of the request as
well as any applicable duplication fees. Otherwise, it may only charge
applicable duplication fees.
Section 3. Charging fees.
(a) In general. When responding to FOIA requests, components will
charge all applicable FOIA fees that exceed the USDA charging threshold,
as provided in paragraph (b) of this section, unless a waiver or
reduction of fees has been granted under 7 CFR 1.12(p), or statutory
time limits on processing are not met, and when unusual or exceptional
circumstances apply, components do not meet all of the three conditions
for charging as set forth in 7 CFR 1.12(o).
(b) USDA fee charging threshold. The OMB Fee Guidelines state that
agencies will not charge FOIA fees if the cost of collecting the fee
would be equal to or greater than the fee itself. This limitation
applies to all requests, including those seeking records for commercial
use. At the USDA, the cost of collecting a FOIA fee is currently
established as $25.00. Therefore, when calculating FOIA fees, components
will charge requesters all applicable FOIA fees when these fees equal or
exceed $25.01.
(c) Charging interest. Components may charge interest on any unpaid
bill starting on the 31st day following the date of billing
[[Page 23]]
the requester. Interest charges will be assessed at the rate provided in
31 U.S.C. 3717 and will accrue from the billing date until payment is
received by the component. Components will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended,
and its administrative procedures, including the use of consumer
reporting agencies, collection agencies, and offset.
(d) NARA retrieval fees. For requests that require the retrieval of
records stored by a component at a Federal records center operated by
the National Archives and Records Administration (``NARA''), additional
costs will be charged in accordance with the Transactional Billing Rate
Schedule established by NARA.
(e) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires a component to set and collect fees for particular
types of records. In instances where records responsive to a request are
subject to a statutorily-based fee schedule program, the component will
inform the requester of the contact information for that program.
(f) Social Security Numbers and Tax Identification Numbers.
Components may not require requesters to provide Social Security Numbers
or Tax Identification Numbers in order to pay FOIA fees due.
Table 1 to Appendix A to Subpart A--FOIA Fee Schedule
----------------------------------------------------------------------------------------------------------------
Type of request Type of charge Price
----------------------------------------------------------------------------------------------------------------
Commercial Requesters................ Duplication charges.... $0.05 per page.
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... Actual hourly salary rate of employee involved,
plus 16% of the hourly salary rate.
Review charges......... Actual hourly salary rate of employee involved,
plus 16% of the hourly salary rate.
Educational or Non-Commercial Duplication charges.... No charge for first 100 pages, then $0.05 per
Scientific Requesters. page.
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... Free.
Review charges......... Free.
Representatives of the News Media.... Duplication charges.... No charge for first 100 pages, then $0.05 per
page
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... Free.
Review charges......... Free.
All Other Requesters................. Duplication charges.... No charge for first 100 pages, then $0.05 per
page.
When the component has to copy fragile records,
the charge is $0.05 per page plus the copying
time involved, which includes the actual hourly
salary rate of the employee involved, plus 16%
of the hourly salary rate.
Search charges......... No charge for first two (2) hours of search
time, then actual hourly salary rate of
employee involved, plus 16% of the hourly
salary rate.
Review charges......... Free.
----------------------------------------------------------------------------------------------------------------
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
[[Page 24]]
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.
(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
[[Page 25]]
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 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, 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]
[[Page 26]]
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 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
[[Page 27]]
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 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.
[[Page 28]]
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
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
[[Page 29]]
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]
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
[[Page 30]]
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 $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
[[Page 31]]
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);
(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
[[Page 32]]
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 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
[[Page 33]]
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 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
[[Page 34]]
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.
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.
[[Page 35]]
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]
Sec. 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 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
[[Page 36]]
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);
(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
[[Page 37]]
(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), 1636b, 1638b, 2151, 2279e, 2621, 2714, 2908, 3812, 4610,
4815, 4910, 6009, 6107, 6207, 6307, 6411, 6519, 6520, 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; 30 U.S.C.
185(o)(1); 43 U.S.C. 1740; 7 CFR 2.27, 2.35.
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.
Agricultural Bioterrorism Protection Act of 2002, section 212(i) (7
U.S.C. 8401(i)).
Agricultural Marketing Act of 1946, as amended, section 253 (7 U.S.C.
1636b) and section 283 (7 U.S.C. 1638b).
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]
Mineral Leasing Act, section 28(o)(1) (30 U.S.C. 185(o)(1)).
Mushroom Promotion, Research, and Consumer Information Act of 1990,
section 1928 [7 U.S.C. 6107]
Organic Foods Production Act of 1990, sections 2119 and 2120 (7 U.S.C.
6519, 6520).
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.
[[Page 38]]
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).
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 Health Protection Act (7 U.S.C. 8301 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]
Editorial Note: For Federal Register citations affecting Sec.
1.131, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.
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),
[[Page 39]]
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.
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
[[Page 40]]
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 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
[[Page 41]]
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]
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:
[[Page 42]]
(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
(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
[[Page 43]]
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 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
[[Page 44]]
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 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
[[Page 45]]
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.
(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
[[Page 46]]
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.
[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.
[[Page 47]]
(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.
(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.
[[Page 48]]
(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.
[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.
[[Page 49]]
(h) Submission on briefs. By agreement of the parties, an appeal may
be submitted for decision on the briefs, but the Judicial Officer may
direct that the appeal be argued orally.
(i) Decision of the judicial officer on appeal. As soon as
practicable after the receipt of the record from the Hearing Clerk, or,
in case oral argument was had, as soon as practicable thereafter, the
Judicial Officer, upon the basis of and after due consideration of the
record and any matter of which official notice is taken, shall rule on
the appeal. If the Judicial Officer decides that no change or
modification of the Judge's decision is warranted, the Judicial Officer
may adopt the Judge's decision as the final order in the proceeding,
preserving any right of the party bringing the appeal to seek judicial
review of such decision in the proper forum. A final order issued by the
Judicial Officer shall be filed with the Hearing Clerk. Such order may
be regarded by the respondent as final for purposes of judicial review
without filing a petition for rehearing, reargument, or reconsideration
of the decision of the Judicial Officer.
[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8456, Feb. 14, 1995; 68 FR
6341, Feb. 7, 2003]
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.
[[Page 50]]
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 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
[[Page 51]]
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, 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.
[[Page 52]]
(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;
(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
[[Page 53]]
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]
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
[[Page 54]]
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 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
[[Page 55]]
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 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-
[[Page 56]]
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.
[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
[[Page 57]]
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.
(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
[[Page 58]]
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 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]
[[Page 59]]
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 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
[[Page 60]]
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 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
[[Page 61]]
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.
(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,
[[Page 62]]
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.
(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.
[[Page 63]]
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 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)
[[Page 64]]
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 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
[[Page 65]]
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.
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) In proceedings commenced on or after the effective date of this
paragraph, no award for the fee of an attorney or agent under the rules
in this subpart may exceed $150 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
[[Page 66]]
other matter was necessary for preparation of the applicant's case.
[67 FR 63237, Oct. 11, 2002, as amended at 76 FR 11668, Mar. 3, 2011]
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 $150 per 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.
[67 FR 63237, Oct. 11, 2002, as amended at 76 FR 11668, Mar. 3, 2011]
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
[[Page 67]]
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 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.
[[Page 68]]
(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 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.
[[Page 69]]
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 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.
[[Page 70]]
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 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.
[[Page 71]]
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.
(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
[[Page 72]]
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 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
[[Page 73]]
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, 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
[[Page 74]]
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--
(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
[[Page 75]]
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
(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 the amount specified at Sec. 3.91(b)(11)(i) of this title
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--
[[Page 76]]
(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 the amount
specified at Sec. 3.91(b)(11)(ii) of this title for each such
statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(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.
[56 FR 9582, Mar. 7, 1991, as amended at 57 FR 3909, Feb. 3, 1992; 75 FR
17556, Apr. 7, 2010]
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
[[Page 77]]
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 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
[[Page 78]]
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;
(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.
[[Page 79]]
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 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.
[[Page 80]]
(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 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.
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(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.
(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.
[[Page 82]]
(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 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
[[Page 83]]
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 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.
[[Page 84]]
(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
(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
[[Page 85]]
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 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
[[Page 86]]
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, 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
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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 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.
[[Page 88]]
(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 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.
[[Page 89]]
(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 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.
[[Page 90]]
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 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
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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 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.
[[Page 92]]
(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 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
[[Page 93]]
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 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
[[Page 94]]
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.
(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).
[[Page 95]]
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 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,
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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;
(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
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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 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
[[Page 98]]
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:
(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.
[[Page 99]]
(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 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: 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
[[Page 100]]
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.
(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: 80 FR 17181, Mar. 31, 2015, 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
[[Page 101]]
licenses issued by the Federal Energy Regulatory Commission (FERC).
(2) The hearing process under this part 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 Commerce and the
Department of the Interior the authority to develop mandatory conditions
and prescriptions for inclusion in a hydropower license. Where the
Forest Service 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:
(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 1.674 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) Reserved authority. Where the Forest Service has notified or
notifies FERC that it is reserving its authority to develop one or more
conditions at a later time, the hearing and alternatives processes under
this subpart for such conditions will be available if and when the
Forest Service exercises its reserved authority.
(d) Applicability. (1) This subpart applies to any hydropower
license proceeding for which the license had not been issued as of
November 17, 2005, and for which one or more preliminary conditions have
been or are filed with FERC before FERC issues the license.
(2) This subpart also applies to any exercise of the Forest
Service's reserved authority under paragraph (c) of this section with
respect to a hydropower license issued before or after November 17,
2005.
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, OALJ, 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.
[[Page 102]]
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 part 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.
Modified condition or prescription means any modified condition or
prescription filed by a Department with FERC for inclusion in a
hydropower license.
NEPA document means an environmental document as defined at 40 CFR
1508.10 to include an environmental assessment, environmental impact
statement (EIS), finding of no significant impact, and notice of intent
to prepare an EIS. Such documents are issued to comply with the
requirements of the National Environmental Policy Act of 1969, 42 U.S.C.
4321 et seq., and the CEQ Regulations Implementing the Procedural
Requirements of NEPA (40 CFR parts 21500-1508).
NFS means the National Forest System and refers to:
(1) Federal land managed by the Forest Service; and
(2) The Deputy Chief of the National Forest System, located in the
Forest Service's Washington, DC, office.
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; 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 any preliminary
condition or prescription filed by a Department with FERC 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,
[[Page 103]]
an answer under Sec. 1.625, or any document under Sec. Sec. 1.670
through 1.674.
(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 the trial-type hearing and alternatives processes?
(a) The following table summarizes the steps in the trial-type
hearing process under this subpart and indicates the deadlines generally
applicable to each step. If the deadlines in this table are in any way
inconsistent with the deadlines as set by other sections of this subpart
or by the ALJ, the deadlines as set by those other sections or by the
ALJ control.
----------------------------------------------------------------------------------------------------------------
Process step Process day Must generally be completed See section
----------------------------------------------------------------------------------------------------------------
(1) Forest Service files preliminary 0 ............................. 1.620.
condition(s) with FERC.
(2) License party files request for 30 Within 30 days after Forest 1.621(a).
hearing. Service files preliminary
condition(s) with FERC.
(3) Any other license party files 50 Within 20 days after deadline 1.622(a).
notice of intervention and response. for filing requests for
hearing.
(4) NFS refers case to ALJ office for 85 Within 55 days after deadline 1.626(a).
hearing and issues referral notice for filing requests for
to parties. hearing.
(5) Parties may meet and agree to 86-91 Before deadline for filing 1.641(a).
discovery (optional step). motions seeking discovery.
(6) ALJ office sends docketing 90 Within 5 days after effective 1.630.
notice, and ALJ issues notice date of referral notice.
setting date for initial prehearing
conference.
(7) Party files motion seeking 92 Within 7 days after effective 1.641(d).
discovery from another party. date of referral notice.
(8) Other party files objections to 99 Within 7 days after service 1.641(e).
discovery motion or specific of discovery motion.
portions of discovery requests.
(9) Parties meet to discuss discovery 100-104 Before date set for initial 1.640(d).
and hearing schedule. prehearing conference.
(10) ALJ conducts initial prehearing 105 On or about 20th day after 1.640(a).
conference. effective date of referral
notice.
(11) ALJ issues order following 107 Within 2 days after initial 1.640(g).
initial prehearing conference. prehearing conference.
(12) Party responds to 120-22 Within 15 days after ALJ's 1.643(c).
interrogatories from another party order authorizing discovery
as authorized by ALJ. during or following initial
prehearing conference.
(13) Party responds to requests for 120-22 Within 15 days after ALJ's 1.645(c).
documents, etc., from another party order authorizing discovery
as authorized by ALJ. during or following initial
prehearing conference.
(14) Parties complete all discovery, 130 Within 25 days after initial 1.641(i).
including depositions, as authorized prehearing conference.
by ALJ.
(15) Parties file updated lists of 140 Within 10 days after deadline 1.642(b).
witnesses and exhibits. for completion of discovery.
(16) Parties file written direct 140 Within 10 days after deadline 1.652(a).
testimony. for completion of discovery.
(17) Parties complete prehearing 155 Within 25 days after deadline 1.650(a).
preparation and ALJ commences for completion of discovery.
hearing.
(18) ALJ closes hearing record....... 160 When ALJ closes hearing...... 1.658.
(19) Parties file post-hearing briefs 175 Within 15 days after hearing 1.659(a).
closes.
(20) ALJ issues decision............. 190 Within 30 days after hearing 1.660(a).
closes.
----------------------------------------------------------------------------------------------------------------
(b) The following table summarizes the steps in the alternatives
process under this subpart and indicates the deadlines generally
applicable to each step. If the deadlines in this table are in any way
inconsistent with the deadlines as set by other sections of this
[[Page 104]]
subpart, the deadlines as set by those other sections control.
----------------------------------------------------------------------------------------------------------------
Process step Process day Must generally be completed See section
----------------------------------------------------------------------------------------------------------------
(1) Forest Service files preliminary 0 ............................. 1.620.
condition(s) with FERC.
(2) License party files alternative 30 Within 30 days after Forest 1.671(a).
condition(s). Service files preliminary
condition(s) with FERC.
(3) ALJ issues decision on any 190 Within 30 days after hearing 1.660(a).
hearing request. closes (see previous table).
(4) License party files revised 210 Within 20 days after ALJ 1.672(a).
alternative condition(s) if issues decision.
authorized.
(5) Forest Service files modified 300 Within 60 days after the 1.673(a).
condition(s) with FERC. deadline for filing comments
on FERC's draft NEPA
document.
----------------------------------------------------------------------------------------------------------------
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 agent, 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. An individual representing himself or herself and
any other 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 party 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) Lead representative. If a party has more than one
representative, the ALJ may require the party to designate a lead
representative for service of documents under Sec. 1.613.
(e) 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 this subpart?
(a) Form. Each document filed in a case under Sec. Sec. 1.610
through 1.660 must:
(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 (except that service
copies may be printed on both sides of the page);
(3) Be clearly typewritten, printed, or otherwise reproduced by a
process that yields legible and permanent copies;
(4) Use 11 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:
[[Page 105]]
(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. 1.626, any
documents must be filed with NFS by directing them to the ``Deputy
Chief, NFS.''
(i) For delivery by regular mail, address to USDA Forest Service,
Attn: Lands Staff, Mail Stop 1124, 1400 Independence Ave. SW.,
Washington, DC 20250-1124.
(ii) For delivery by hand or private carrier, deliver to USDA Forest
Service, Yates Bldg. (4 SO), 201 14th Street SW., Washington, DC (SW.
corner of 14th Street and Independence Ave. SW.); phone (202) 205-1248;
facsimile (703) 605-5117. Hand deliverers must obtain an official date-
time-stamp from Lands Staff.
(2) The Forest Service will notify the parties of the date on which
NFS refers a case for docketing under Sec. 1.626. After that date, any
documents must be filed with:
(i) The Hearing Clerk, if OALJ 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. 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 and two copies;
(ii) By sending the original document and two copies by express mail
or courier service; 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 and two copies are sent by regular
mail on the same day.
(2) Parties are encouraged, and may be required by the ALJ, to
supplement any filing by providing the appropriate office with an
electronic copy of the document on compact disc or other suitable media.
With respect to any supporting material accompanying a request for
hearing, a notice of intervention and response, or an answer, the party
may submit in lieu of an original and two hard copies:
(i) An original; and
(ii) One copy on a compact disc or other suitable media.
(c) Date of filing. A document under this subpart 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 this subpart does not comply with the requirements of this subpart
or any applicable order, it may be rejected.
[[Page 106]]
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 delivered or sent to FERC and each license party, using one of
the methods of service in paragraph (c) of this section or under 18 CFR
385.2010(f)(3) for license parties that have agreed to receive
electronic service.
(2) A complete copy of any notice of intervention and response under
Sec. 1.622 must be:
(i) Delivered or sent to FERC, the license applicant, any person who
has filed a request for hearing under Sec. 1.621, and the Forest
Service office that submitted the preliminary conditions to FERC, using
one of the methods of service in paragraph (c) of this section; and
(ii) Delivered or sent to any other license party using one of the
methods of service in paragraph (c) of this section or under 18 CFR
385.2010(f)(3) for license parties that have agreed to receive
electronic service, or by regular mail.
(3) A complete copy of any answer or notice under Sec. 1.625 and
any other document filed by any party to the hearing process must be
delivered or sent to every other party to the hearing process, 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. Unless otherwise agreed to by the parties and
ordered by the ALJ, 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 means if the party to be served has consented to that means
of service in writing. However, if the serving party learns that the
document did not reach the party to be served, the serving party must
re-serve the document by another method set forth in paragraph (c) of
this section (including another electronic means, if the party to be
served has consented to that means in writing).
(d) 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 its
preliminary conditions with FERC, it must include a rationale for each
condition, explaining why the Forest Service deems the condition
necessary for the adequate protection and utilization of the affected
NFS lands, 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 its preliminary
conditions; and
(ii) Provide copies to the license applicant.
[[Page 107]]
(b) Service. The Forest Service will serve copies of its preliminary
conditions on each license party.
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 preliminary condition filed by the Forest
Service, you must:
(1) Be a license party; and
(2) File with NFS, at the appropriate address provided in Sec.
1.612(a)(1), a written request for a hearing:
(i) For a case under Sec. 1.601(d)(1), within 30 days after the
Forest Service files a preliminary condition with FERC; or
(ii) For a case under Sec. 1.601(d)(2), within 60 days after the
Forest Service files a preliminary condition 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;
(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; and
(iii) The basis for your opinion that any factual dispute is
material.
(3) 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; and
(4) A statement indicating whether or not you consent to service by
electronic means under Sec. 1.613(c)(4) and, if so, by what means.
(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, at the appropriate address provided in Sec.
1.612(a)(1), a notice of intervention and a written response to any
request for a hearing within 20 days after the deadline in Sec.
1.621(a)(2).
(2) A notice of intervention and response must be limited to one or
more of the issues of material fact raised in the hearing request and
may not raise additional issues.
(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).
(3) Your notice of intervention and response must also indicate
whether or not you consent to service by electronic means under Sec.
1.613(c)(4) and, if so, by what means.
(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.
[[Page 108]]
(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 (excluding
citations to scientific studies, literature, and other documented
information supporting your opinions) 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 Will hearing requests be consolidated?
(a) Initial Department coordination. If NFS has received a copy of a
hearing request, it must contact the other Departments and determine:
(1) Whether any of the other Departments has also filed a
preliminary condition or prescription relating to the license with FERC;
and
(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. Where more than one Department has
received a hearing request, the Departments involved must decide
jointly:
(1) Whether the cases should be consolidated for hearing under
paragraphs (c)(3)(ii) through (iv) of this section; and
(2) 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) All or any portion 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 Can a hearing process be stayed to allow for settlement
discussions?
(a) Prior to referral to the ALJ, the hearing requester and the
Forest Service may by agreement stay the hearing process under this
subpart for a period not to exceed 120 days to allow for settlement
discussions, if the stay period and any subsequent hearing process (if
required) can be accommodated within the time frame established for the
license proceeding.
(b) Any stay of the hearing process will not affect the deadline for
filing a notice of intervention and response, if any, pursuant to Sec.
1.622(a)(1)(ii).
Sec. 1.625 How will the Forest Service respond to any hearing
requests?
(a) General. NFS will determine whether to answer any hearing
request under Sec. 1.621 on behalf of the Forest Service.
(b) Content. If NFS answers a hearing request:
(1) For each of the numbered factual issues listed under Sec.
1.621(b)(1), NFS's 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
[[Page 109]]
material, explaining the basis for such belief; or
(iv) That the Forest Service agrees that the issue is factual,
material, and in dispute.
(2) NFS's 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.
(3) If the Forest Service plans to rely on any scientific studies,
literature, and other documented information that are not already in the
license proceeding record, a copy of each item must be provided with
NFS's answer.
(4) NFS's answer must also indicate whether or not the Forest
Service consents to service by electronic means under Sec. 1.613(c)(4)
and, if so, by what means.
(c) Witnesses and exhibits. NFS's answer must also contain a list of
the Forest Service's witnesses and exhibits that the Forest Service
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 NFS elects not to answer a hearing
request:
(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) NFS must include with its case referral under Sec. 1.623 a
notice in lieu of answer 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,
and the statement required by paragraph (b)(4) of this section.
Sec. 1.626 What will the Forest Service do with any hearing requests?
(a) Case referral. Within 55 days after the deadline in Sec.
1.621(a)(2) or 35 days after the expiration of any stay period under
Sec. 1.624, whichever is later, 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) Two copies of any preliminary condition under Sec. 1.620;
(2) The original and one copy of any hearing request under Sec.
1.621;
(3) The original and one copy of any notice of intervention and
response under Sec. 1.622;
(4) The original and one copy of any answer or notice in lieu of
answer under Sec. 1.625; and
(5) The original and one copy of a 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 effective date of the case referral to the appropriate
Department hearings component.
[[Page 110]]
(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) The Forest Service 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. 1.627 What regulations apply to a case referred for a hearing?
(a) If NFS refers the case to the OALJ, these regulations will
continue to apply to the hearing process.
(b) If NFS refers the case to the Department of Interior's Office of
Hearing and Appeals, the regulations at 43 CFR 45.1 et seq. will apply
from that point on.
(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 on.
General Provisions Related to Hearings
Sec. 1.630 What will OALJ do with a case referral?
Within 5 days after the effective date stated in the referral notice
under Sec. 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4):
(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 relating to Forest Service's
or other Department's condition or prescription that has been referred
to the ALJ for hearing, including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas under Sec. 1.647;
(c) Shorten or enlarge time periods set forth in these regulations,
except that the deadline in Sec. 1.660(a)(2) can be extended only if
the ALJ must be replaced under Sec. 1.632 or 1.633;
(d) Rule on motions;
(e) Authorize discovery as provided for in Sec. Sec. 1.641 through
1.647;
(f) Hold hearings and conferences;
(g) Regulate the course of hearings;
(h) Call and question witnesses;
(i) Exclude any person from a hearing or conference for misconduct
or other good cause;
(j) Summarily dispose of any hearing request or issue as to which
the ALJ determines there is no disputed issue of material fact;
(k) Issue a decision consistent with Sec. 1.660(b) regarding any
disputed issue of material fact; and
(l) 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 Hearing Clerk will 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.
[[Page 111]]
(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 15 pages, including all supporting arguments.
(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 part, any other
party may file a response to a written motion within 10 days after
service of the motion. The response may not exceed 15 pages, including
all supporting arguments. 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 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
notice under Sec. 1.630, on or about the 20th day after the effective
date stated in the referral notice under Sec. 1.626(c)(4), 43 CFR
45.26(c)(4), or 50 CFR 221.26(c)(4).
(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 deadlines for submission of written testimony under
Sec. 1.652 and exchange of exhibits to be offered as evidence under
Sec. 1.654; 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;
[[Page 112]]
(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 to discuss all issues pertinent to that party that are 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 as provided in Sec. 1.643;
(2) Depositions of witnesses 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 during a prehearing conference or in a
written order under Sec. 1.640(g). The ALJ may authorize discovery only
if 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;
[[Page 113]]
(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 the effective date
stated in the referral notice under Sec. 1.626(c)(4), 43 CFR
45.26(c)(4), or 50 CFR 221.26(c)(4).
(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 (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 through the methods set out in
paragraph (a) of this section 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 an expert or
non-expert 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 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.
(4) Unless otherwise stipulated to by the parties or authorized by
the ALJ upon a showing of extraordinary circumstances, a deposition is
limited to 1 day of 7 hours.
(i) Completion of discovery. All discovery must be completed within
25 days after the initial prehearing conference.
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 10 days after the date set
for completion of discovery, each party must file
[[Page 114]]
an updated version of the list of witnesses and exhibits required under
Sec. 1.621(c), Sec. 1.622(c), or Sec. 1.625(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.
1.621(c), Sec. 1.622(c), or Sec. 1.625(c).
(c) Failure to disclose. (1) A party will not be permitted to
introduce as evidence at the hearing testimony from a witness or other
information that it failed to disclose under Sec. 1.621(c), Sec.
1.622(c), or Sec. 1.625(c), or paragraph (a) or (b) of this section.
(2) Paragraph (c)(1) of this section does not apply if the failure
to disclose was substantially justified or is harmless.
(3) A party may object to the admission of evidence under paragraph
(c)(1) of this section before or during the hearing.
(4) The ALJ will consider the following in determining whether to
exclude evidence under paragraphs (c)(1) through (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; limitation. Except upon agreement of the parties:
(1) A party wishing to propound interrogatories must file a motion
under Sec. 1.641(c); and
(2) A party may propound no more than 25 interrogatories, counting
discrete subparts as separate interrogatories, unless the ALJ approves a
higher number upon a showing of good cause.
(b) ALJ order. 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 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.
[[Page 115]]
(b) ALJ order. 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)(4) 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 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. 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,
[[Page 116]]
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 request by written motion that the ALJ
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 request a subpoena for 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 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 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.
[[Page 117]]
(3) The ALJ may quash or modify the subpoena if it:
(i) Is unreasonable;
(ii) Requires production of information during discovery that is not
discoverable; or
(iii) Requires disclosure of irrelevant, privileged, or otherwise
protected information.
(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 25 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?
Each party has the following rights during the hearing, as necessary
to assure full and accurate disclosure of the facts:
(a) To present testimony and exhibits, consistent with the
requirements in Sec. Sec. 1.621(c), 1.622(c), 1.625(c), 1.642(b), and
1.652;
(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 for each party's initial case must be
prepared and submitted in written form. The ALJ will determine whether
rebuttal testimony, if allowed, must be 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 10 days after the date set for completion of
discovery; 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 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
[[Page 118]]
(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 (d) 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.
(b) Objections. Any party objecting to the admission or exclusion of
evidence must 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 OALJ on
an expedited basis.
[[Page 119]]
(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 Who has the burden of persuasion, and what standard of
proof applies?
(a) Any party who has filed a request for a hearing has the burden
of persuasion with respect to the issues of material fact raised by that
party.
(b) 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 15
days after the close of the hearing.
(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) 120 days after the effective date stated in the referral notice
under Sec. 1.626(c)(4), 43 CFR 45.26(c)(4), or 50 CFR 221.26(c)(4).
(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.
(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 accepted or
rejected.
(c) Service. Promptly after issuing his or her decision, the ALJ
must:
[[Page 120]]
(1) Serve the decision on each party to the hearing;
(2) Prepare a list of all documents that constitute the complete
record for the hearing process (including the decision) and certify that
the list is complete; and
(3) Forward to FERC the complete record for the hearing process,
along with the certified list prepared under paragraph (c)(2) of this
section, for inclusion in the record for the license proceeding.
Materials received in electronic form, e.g., as attachments to
electronic mail, should be transmitted to FERC in electronic form.
However, for cases in which a settlement was reached prior to a
decision, the entire record need not be transmitted to FERC. In such
situations, only the initial pleadings (hearing requests with
attachments, any notices of intervention and response, answers, and
referral notice) and any dismissal order of the ALJ need be transmitted.
(d) Finality. The ALJ's decision under this section with respect to
the disputed issues of material fact will not be subject to further
administrative review. 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 this subpart?
(a) Filing. (1) A document under this subpart 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 subpart must be
served at the same time the document is delivered or sent for filing. A
complete copy of the document must be delivered or sent to 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) regarding a certificate of
service apply to service under this subpart.
Sec. 1.671 How do I propose an alternative?
(a) General. To propose an alternative condition, you must:
(1) Be a license party; and
(2) File a written proposal with NFS, at the appropriate address
provided in Sec. 1.612(a)(1):
(i) For a case under Sec. 1.601(d)(1), within 30 days after the
Forest Service files its preliminary conditions with FERC; or
(ii) For a case under Sec. 1.601(d)(2), within 60 days after the
Forest Service files its proposed 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.
[[Page 121]]
Sec. 1.672 May I file a revised proposed alternative?
(a) Within 20 days after issuance of the ALJ's decision under Sec.
1.660, you may file with NFS, at the appropriate address provided in
Sec. 1.612(a)(1), a revised proposed alternative condition if:
(1) You previously filed a proposed alternative that met the
requirements of Sec. 1.671; and
(2) Your revised proposed alternative is designed to respond to one
or more findings of fact by the ALJ.
(b) Your revised proposed alternative must:
(1) Satisfy the content requirements for a proposed alternative
under Sec. 1.671(b); and
(2) Identify the specific ALJ finding(s) to which the revised
proposed alternative is designed to respond and how the revised proposed
alternative differs from the original alternative.
(c) Filing a revised proposed alternative will constitute a
withdrawal of the previously filed proposed alternative.
Sec. 1.673 When will the Forest Service file its modified condition?
(a) Except as provided in paragraph (b) of this section, if any
license party proposes an alternative to a preliminary condition or
prescription under Sec. 1.671,the Forest Service will do the following
within 60 days after the deadline for filing comments on FERC's draft
NEPA document under 18 CFR 5.25(c):
(1) Analyze under Sec. 1.674 any alternative condition proposed
under Sec. 1.671 or 1.672; and
(2) File with FERC:
(i) Any condition the Forest Service adopts as its modified
condition; and
(ii) The Forest Service's analysis of the modified condition and any
proposed alternative.
(b) If the Forest Service needs additional time to complete the
steps set forth in paragraphs (a)(1) and (2) of this section, it will so
inform FERC within 60 days after the deadline for filing comments on
FERC's draft NEPA document under 18 CFR 5.25(c).
Sec. 1.674 How will the Forest Service analyze a proposed alternative
and formulate its modified condition?
(a) In deciding whether to accept an alternative proposed under
Sec. 1.671 or Sec. 1.672, the Forest Service must consider evidence
and supporting material provided by any license party or otherwise
reasonably 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 or Sec. 1.672.
(b) The Forest Service must accept 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) For purposes of paragraphs (a) and (b) of this section, the
Forest Service will consider evidence and supporting material provided
by any license party by the deadline for filing comments on FERC's NEPA
document under 18 CFR 5.25(c).
(d) When the Forest Service files with FERC the condition that the
Forest Service adopts as its modified condition under Sec. 1.673(a)(2),
it must also file:
(1) A written statement explaining:
(i) The basis for the adopted condition;
(ii) If the Forest Service is not accepting any pending alternative,
its reasons for not doing so; and
[[Page 122]]
(iii) If any alternative submitted under Sec. 1.671 was
subsequently withdrawn by the license party, that the alternative was
withdrawn; and
(2) Any study, data, and other factual information relied on that is
not already part of the licensing proceeding record.
(e) The written statement under paragraph (d)(1) of this section
must demonstrate that the Forest Service gave equal consideration to the
effects of the condition adopted and any alternative not accepted 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. 1.675 Has OMB approved the information collection provisions
of this subpart?
Yes. This subpart contains provisions in Sec. Sec. 1.670 through
1.674 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.
Subpart P_Rules of Practice and Procedure Governing Formal Rulemaking
Proceedings Instituted by the Secretary
Authority: 5 U.S.C. 301.
Source: 82 FR 51149, Nov. 3, 2017, unless otherwise noted.