Vous êtes sur la page 1sur 592

Title 7

Agriculture
Parts 1 to 26

Revised as of January 1, 2012

Containing a codification of documents


of general applicability and future effect

As of January 1, 2012

Published by the Office of the Federal Register


National Archives and Records Administration
as a Special Edition of the Federal Register
pmangrum on DSK3VPTVN1PROD with CFR

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00001 Fmt 8091 Sfmt 8091 Y:\SGML\226012.XXX 226012
U.S. GOVERNMENT OFFICIAL EDITION NOTICE

Legal Status and Use of Seals and Logos


The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established under
the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the
contents of the CFR, a special edition of the Federal Register, shall
be judicially noticed. The CFR is prima facie evidence of the origi-
nal documents published in the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA’s official seal and the stylized Code
of Federal Regulations logo on any republication of this material
without the express, written permission of the Archivist of the
United States or the Archivist’s designee. Any person using
NARA’s official seals and logos in a manner inconsistent with the
provisions of 36 CFR part 1200 is subject to the penalties specified
in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix


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

U.S. GOVERNMENT PRINTING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001


e:\seals\gpologo.eps</GPH>
pmangrum on DSK3VPTVN1PROD with CFR

http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
e:\seals\archives.ai</GPH>

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00002 Fmt 8092 Sfmt 8092 Y:\SGML\226012.XXX 226012
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 ....................................................... 547

Alphabetical List of Agencies Appearing in the CFR ......................... 567

List of CFR Sections Affected ............................................................. 577


pmangrum on DSK3VPTVN1PROD with CFR

iii

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00003 Fmt 8092 Sfmt 8092 Y:\SGML\226012.XXX 226012
Cite this Code: CFR

To cite the regulations in


this volume use title,
part and section num-
ber. Thus, 7 CFR 1.1 re-
fers to title 7, part 1,
section 1.
pmangrum on DSK3VPTVN1PROD with CFR

iv

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00004 Fmt 8092 Sfmt 8092 Y:\SGML\226012.XXX 226012
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 agen-
cies 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 sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
of the Federal Register. These two publications must be used together to deter-
mine the latest version of any given rule.
To determine whether a Code volume has been amended since its revision date
(in this case, January 1, 2012), consult the ‘‘List of CFR Sections Affected (LSA),’’
which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which
appears in the Reader Aids section of the daily Federal Register. These two lists
will identify the Federal Register page number of the latest amendment of any
given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Reg-
ister since the last revision of that volume of the Code. Source citations for
the regulations are referred to by volume number and page number of the Federal
Register and date of publication. Publication dates and effective dates are usu-
ally not the same and care must be exercised by the user in determining the
actual effective date. In instances where the effective date is beyond the cut-
off date for the Code a note has been inserted to reflect the future effective
date. In those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be inserted following
the text.
pmangrum on DSK3VPTVN1PROD with CFR

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.

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\226012.XXX 226012
Many agencies have begun publishing numerous OMB control numbers as amend-
ments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before April 1, 2001, consult either the List of
CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in
eleven separate volumes. For the period beginning April 1, 2001, a ‘‘List of CFR
Sections Affected’’ is published at the end of each CFR volume.
‘‘[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]’’ loca-
tion at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that
a portion of the CFR was left vacant and not accidentally dropped due to a print-
ing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was established
by statute and allows Federal agencies to meet the requirement to publish regu-
lations in the Federal Register by referring to materials already published else-
where. For an incorporation to be valid, the Director of the Federal Register
must approve it. The legal effect of incorporation by reference is that the mate-
rial is treated as if it were published in full in the Federal Register (5 U.S.C.
552(a)). This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the Federal Register
will approve an incorporation by reference only when the requirements of 1 CFR
part 51 are met. Some of the elements on which approval is based are:
(a) The incorporation will substantially reduce the volume of material pub-
lished 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 an approved incorpora-
tion by reference, please contact the agency that issued the regulation containing
that incorporation. If, after contacting the agency, you find the material is not
available, please notify the Director of the Federal Register, National Archives
and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or
call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Authorities and Rules. A list of CFR
pmangrum on DSK3VPTVN1PROD with CFR

titles, chapters, subchapters, and parts and an alphabetical list of agencies pub-
lishing in the CFR are also included in this volume.
An index to the text of ‘‘Title 3—The President’’ is carried within that volume.

vi

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\226012.XXX 226012
The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing in the
Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this volume,
contact the issuing agency. The issuing agency’s name appears at the top of
odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202–741–6000 or write
to the Director, Office of the Federal Register, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail
fedreg.info@nara.gov.
SALES
The Government Printing Office (GPO) processes all sales and distribution of
the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202-
512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours
a day. For payment by check, write to: US Government Printing Office – New
Orders, P.O. Box 979050, St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of CFR Sections
Affected), The United States Government Manual, the Federal Register, Public
Laws, Public Papers of the Presidents of the United States, Compilation of Presi-
dential Documents and the Privacy Act Compilation are available in electronic
format via www.ofr.gov. For more information, contact the GPO Customer Con-
tact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800
(toll-free). E-mail, gpo@custhelp.com.
The Office of the Federal Register also offers a free service on the National
Archives and Records Administration’s (NARA) World Wide Web site for public
law numbers, Federal Register finding aids, and related information. Connect
to NARA’s web site at www.archives.gov/federal-register.

RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
January 1, 2012.
pmangrum on DSK3VPTVN1PROD with CFR

vii

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00007 Fmt 8008 Sfmt 8092 Y:\SGML\226012.XXX 226012
pmangrum on DSK3VPTVN1PROD with CFR

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00008 Fmt 8008 Sfmt 8092 Y:\SGML\226012.XXX 226012
THIS TITLE

Title 7—AGRICULTURE is composed of fifteen volumes. The parts in these vol-


umes 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, 2012.

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 vol-
ume 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 Michael L. White, as-
sisted by Ann Worley.
pmangrum on DSK3VPTVN1PROD with CFR

ix

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00009 Fmt 8092 Sfmt 8092 Y:\SGML\226012.XXX 226012
pmangrum on DSK3VPTVN1PROD with CFR

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00010 Fmt 8092 Sfmt 8092 Y:\SGML\226012.XXX 226012
Title 7—Agriculture
(This book contains parts 1 to 26)

Part

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE .. 1


pmangrum on DSK3VPTVN1PROD with CFR

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00011 Fmt 8008 Sfmt 8008 Y:\SGML\226012.XXX 226012
pmangrum on DSK3VPTVN1PROD with CFR

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00012 Fmt 8008 Sfmt 8008 Y:\SGML\226012.XXX 226012
Subtitle A—Office of the
Secretary of Agriculture

Part Page
1 Administrative regulations ..................................... 5
1a Law enforcement authorities .................................. 118
1b National Environmental Policy Act ....................... 119
1c Protection of human subjects ................................. 121
2 Delegations of authority by the Secretary of Agri-
culture and general officers of the Department ... 132
3 Debt management ................................................... 300
4 [Reserved]
5 Determination of parity prices ............................... 329
6 Import quotas and fees ............................................ 334
7 Selection and functions of Agricultural Stabiliza-
tion and Conservation State, county and commu-
nity committees ................................................... 352
8 4-H Club name and emblem ..................................... 366
9–10 [Reserved]
11 National Appeals Division ....................................... 368
12 Highly erodible land and wetland conservation ...... 380
13 [Reserved]
14 Determining the primary purpose of certain pay-
ments for Federal tax purposes ............................ 403
15 Nondiscrimination .................................................. 406
15a Education programs or activities receiving or ben-
efitting from Federal financial assistance ........... 432
15b Nondiscrimination on the basis of handicap in pro-
grams or activities receiving Federal financial
assistance ............................................................. 448
15d Nondiscrimination in programs or activities con-
ducted by the United States Department of Agri-
culture .................................................................. 471
15e Enforcement of nondiscrimination on the basis of
pmangrum on DSK3VPTVN1PROD with CFR

handicap in programs or activities conducted by


the United States Department of Agriculture ..... 472
15f Adjudications under section 741 .............................. 478
3

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00013 Fmt 8008 Sfmt 8008 Y:\SGML\226012.XXX 226012
7 CFR Subtitle A (1–1–12 Edition)

Part Page
16 Equal opportunity for religious organizations ........ 487
17 Sales of agricultural commodities made available
under Title I of the Agricultural Trade Develop-
ment and Assistance Act of 1954, as amended ...... 489
18 Equal employment opportunity in the State Coop-
erative Extension Services ................................... 506
19 [Reserved]
20 Export sales reporting requirements ....................... 508
21 Uniform relocation assistance and real property
acquisition for Federal and federally assisted
programs .............................................................. 516
22 Rural development coordination ............................. 516
23 State and regional annual plans of work ................ 521
24 [Reserved]
25 Rural empowerment zones and enterprise commu-
nities .................................................................... 526
26 [Reserved]
pmangrum on DSK3VPTVN1PROD with CFR

VerDate Mar<15>2010 14:38 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00014 Fmt 8008 Sfmt 8008 Y:\SGML\226012.XXX 226012
PART 1—ADMINISTRATIVE Subpart E—Cooperative Production of
REGULATIONS Television Films
1.71 Purpose.
Subpart A—Official Records 1.72 Policy.
1.73 Responsibility.
Sec. 1.74 Basis for special working relationships.
1.1 Purpose and scope. 1.75 General stipulations.
1.2 Policy. 1.76 Department cooperation.
1.3 Agency implementing regulations. 1.77 Assignment of priorities.
1.4 Public access to certain materials. 1.78 Development of special working rela-
1.5 Requests for records. tionships.
1.6 Aggregating requests. 1.79 Credits.
1.7 Agency response to requests for records.
Subpart G—Privacy Act Regulations
1.8 Multitrack processing.
1.9 Expedited processing. 1.110 Purpose and scope.
1.10 Search services. 1.111 Definitions.
1.11 Review services. 1.112 Procedures for requests pertaining to
1.12 Handling information from a private individual records in a record system.
business. 1.113 Times, places, and requirements for
1.13 Date of receipt of requests or appeals. identification of individuals making re-
1.14 Appeals. quests.
1.15 General provisions respecting release of 1.114 Disclosure of requested information to
records. individuals.
1.16 Extension of administrative deadlines. 1.115 Special procedures: Medical records.
1.116 Request for correction or amendment
1.17 Failure to meet administrative dead-
to record.
lines.
1.117 Agency review of request for correc-
1.18 Fee schedule. tion or amendment of record.
1.19 Exemptions and discretionary release. 1.118 Appeal of initial adverse agency deter-
1.20 Annual report. mination on correction or amendment.
1.21 Compilation of new records. 1.119 Disclosure of record to person other
1.22 Authentication. than the individual to whom it pertains.
1.23 Records in formal adjudication pro- 1.120 Fees.
ceedings. 1.121 Penalties.
1.24 Preservation of records. 1.122 General exemptions.
1.25 Implementing regulations for the Office 1.123 Specific exemptions.
of the Secretary and the Office of Com- APPENDIX A TO SUBPART G—INTERNAL DIREC-
munications. TIVES
APPENDIX A TO SUBPART A—FEE SCHEDULE
Subpart H—Rules of Practice Governing
AUTHORITY: 5 U.S.C. 301 and 552, Appendix
Formal Adjudicatory Proceedings Insti-
A is also issued under 7 U.S.C. 2244; 31 U.S.C.
9701, and 7 CFR 2.75 (a)(6)(xiii). tuted by the Secretary Under Various
Statutes
SOURCE: 52 FR 49386, Dec. 31, 1987, unless
otherwise noted. 1.130 Meaning of words.
1.131 Scope and applicability of this sub-
Subpart B—Departmental Proceedings part.
1.132 Definitions.
1.26 Representation before the Department 1.133 Institution of proceedings.
of Agriculture. 1.134 Docket number.
1.27 Rulemaking and other notice proce- 1.135 Contents of complaint or petition for
dures. review.
1.28 Petitions. 1.136 Answer.
1.29 Subpoenas relating to investigations 1.137 Amendment of complaint, petition for
under statutes administered by the Sec- review, or answer; joinder of related mat-
retary of Agriculture. ters.
1.138 Consent decision.
Subpart C—Judicial Proceedings 1.139 Procedure upon failure to file an an-
swer or admission of facts.
1.41 Service of process. 1.140 Conferences and procedure.
1.141 Procedure for hearing.
pmangrum on DSK3VPTVN1PROD with CFR

Subpart D—Claims 1.142 Post-hearing procedure.


1.143 Motions and requests.
1.51 Claims based on negligence, wrongful 1.144 Judges.
act or omission. 1.145 Appeal to Judicial Officer.

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00015 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Pt. 1 7 CFR Subtitle A (1–1–12 Edition)
1.146 Petitions for reopening hearing; for re- 1.201 Department review.
hearing or reargument of proceeding; or 1.202 Judicial review.
for reconsideration of the decision of the 1.203 Payment of award.
Judicial Officer.
1.147 Filing; service; extensions of time; and Subpart K—Appearance of USDA Employ-
computation of time. ees as Witnesses in Judicial or Admin-
1.148 Depositions. istrative Proceedings
1.149 Subpoenas.
1.150 Fees of witnesses. 1.210 Purpose.
1.151 Ex parte communications. 1.211 Definitions.
1.212 General.
Subpart I—Rules of Practice Governing 1.213 Appearance as a witness on behalf of
Cease and Desist Proceedings Under the United States.
Section 2 of the Capper-Volstead Act 1.214 Appearance as a witness on behalf of a
party other than the United States where
1.160 Scope and applicability of rules in this the United States is not a party.
part. 1.215 Subpoenas duces tecum for USDA
1.161 Definitions. records in judicial or administrative pro-
1.162 Institution of proceedings. ceedings in which the United States is
1.163 The complaint. not a party.
1.164 Answer. 1.216 Appearance as a witness or production
1.165 Amendments. of documents on behalf of a party other
1.166 Consent order. than the United States where the United
1.167 Conference. States is a party.
1.168 Procedure for hearing. 1.217 Witness fees and travel expenses.
1.169 Post-hearing procedure and decision. 1.218 Penalty.
1.170 Appeal to the Judicial Officer. 1.219 Delegations.
1.171 Intervention.
1.172 Motions and requests. Subpart L—Procedures Related to Adminis-
1.173 Judges. trative Hearings Under the Program
1.174 Filing; service; extensions of time; and Fraud Civil Remedies Act of 1986
computation of time.
1.175 Procedure following entry of cease and 1.301 Basis, purpose and scope.
desist order. 1.302 Definitions.
1.303 Basis for civil penalties and assess-
Subpart J—Procedures Relating to Awards ments.
Under the Equal Access to Justice Act 1.304 Investigation.
in Proceedings Before the Department 1.305 Review by the reviewing official.
1.306 Prerequisites for issuing a complaint.
GENERAL PROVISIONS 1.307 Complaint.
1.308 Service of complaint and notice of
1.180 Definitions.
hearing.
1.181 Purpose of these rules.
1.309 Answer and request for hearing.
1.182 When EAJA applies.
1.310 Default upon failure to file an answer.
1.183 Proceedings covered.
1.311 Referral of complaint and answer to
1.184 Eligibility of applicants.
the ALJ.
1.185 Standards for awards.
1.312 Procedure where respondent does not
1.186 Allowable fees and expenses.
request a hearing.
1.187 Rulemaking on maximum rates for at-
1.313 Procedure where respondent requests a
torney fees.
hearing; notice of hearing.
1.188 Awards against other agencies.
1.314 Parties to the hearing.
1.189 Delegations of authority.
1.315 Separation of functions.
INFORMATION REQUIRED FROM APPLICANTS 1.316 Ex parte contacts.
1.317 Disqualification of reviewing official
1.190 Contents of application. or ALJ.
1.191 Net worth exhibit. 1.318 Rights of parties.
1.192 Documentation of fees and expenses. 1.319 Authority of the ALJ.
1.193 Time for filing application. 1.320 Prehearing conferences.
1.321 Disclosure of documents.
PROCEDURES FOR CONSIDERING APPLICATIONS
1.322 Discovery.
1.194 Filing and service of documents. 1.323 Subpoenas for attendance at hearing.
1.195 Answer to application. 1.324 Fees.
1.196 Reply. 1.325 Form, filing and service of papers.
pmangrum on DSK3VPTVN1PROD with CFR

1.197 Comments by other parties. 1.326 Computation of time.


1.198 Settlement. 1.327 Motions.
1.199 Further proceedings. 1.328 Sanctions.
1.200 Decision. 1.329 The hearing and burden of proof.

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00016 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA Pt. 1
1.330 Location of hearing. Subpart O—Conditions in FERC
1.331 Witnesses. Hydropower Licenses
1.332 Evidence.
1.333 The record. GENERAL PROVISIONS
1.334 Post-hearing briefs. 1.601 What is the purpose of this subpart,
1.335 Determining the amount of penalties and to what license proceedings does it
and assessments. apply?
1.336 Initial decision of the ALJ. 1.602 What terms are used in this subpart?
1.337 Reconsideration of initial decision. 1.603 How are time periods computed?
1.338 Appeal to the judicial officer. 1.604 What deadlines apply to pending appli-
1.339 Stays ordered by the Department of cations?
Justice.
HEARING PROCESS
1.340 Stay pending appeal.
1.341 Judicial review. REPRESENTATIVES
1.342 Collection of civil penalties and as-
1.610 Who may represent a party, and what
sessments.
requirements apply to a representative?
1.343 Right to administrative offset.
1.344 Deposit to Treasury of the United DOCUMENT FILING AND SERVICE
States.
1.611 What are the form and content re-
1.345 Settlement. quirements for documents under §§ 1.611
1.346 Limitation. through 1.660?
1.612 Where and how must documents be
Subpart M—Rules of Practice Governing filed?
Adjudication of Sourcing Area Appli- 1.613 What are the requirements for service
cations and Formal Review of Sourcing of documents?
Areas Pursuant to the Forest Resources
INITIATION OF HEARING PROCESS
Conservation and Shortage Relief Act
of 1990 (16 U.S.C. 620 et seq.) 1.620 What supporting information must the
Forest Service provide with its prelimi-
1.410 Meaning of words. nary conditions?
1.411 Definitions. 1.621 How do I request a hearing?
1.412 Institution of proceedings. 1.622 How do I file a notice of intervention
1.413 Submission of a sourcing area applica- and response?
tion. 1.623 When will hearing requests be consoli-
1.414 Docket number. dated?
1.415 Notification of proceedings. 1.624 How will the Forest Service respond to
any hearing requests?
1.416 Comment period.
1.625 What will the Forest Service do with
1.417 Review period.
any hearing requests?
1.418 Procedure upon no request for hearing. 1.626 What regulations apply to a case re-
1.419 Amendment of a sourcing area appli- ferred for a hearing?
cation.
1.420 Consent recommendation. GENERAL PROVISIONS RELATED TO HEARINGS
1.421 Prehearing conferences and proce- 1.630 What will OALJ do with a case refer-
dures. ral?
1.422 Conduct of the hearing. 1.631 What are the powers of the ALJ?
1.423 Post-hearing procedure. 1.632 What happens if the ALJ becomes un-
1.424 Motions and requests. available?
1.425 Judges. 1.633 Under what circumstances may the
1.426 Appeal to Judicial Officer. ALJ be disqualified?
1.427 Filing; identification of parties of 1.634 What is the law governing ex parte
record; service; and computation of time. communications?
1.428 Depositions. 1.635 What are the requirements for mo-
tions?
1.429 Ex parte communications.
PREHEARING CONFERENCES AND DISCOVERY
Subpart N—Policy With Regard to Indem-
nification of Department of Agriculture 1.640 What are the requirements for pre-
hearing conferences?
Employees
1.641 How may parties obtain discovery of
pmangrum on DSK3VPTVN1PROD with CFR

1.501 Policy on employee indemnification. information needed for the case?


1.642 When must a party supplement or
amend information it has previously pro-
vided?

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00017 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.1 7 CFR Subtitle A (1–1–12 Edition)
1.643 What are the requirements for written pursuant to compulsory process. This
interrogatories? subpart also serves as the imple-
1.644 What are the requirements for deposi- menting regulations (referred to in
tions?
§ 1.3, ‘‘Agency implementing regula-
1.645 What are the requirements for re-
quests for documents or tangible things tions’’) for the Office of the Secretary
or entry on land? (the immediate offices of the Sec-
1.646 What sanctions may the ALJ impose retary, Deputy Secretary, Under Secre-
for failure to comply with discovery? taries and Assistant Secretaries) and
1.647 What are the requirements for sub- for the Office of Communications. The
poenas and witness fees? Office of Communications has the pri-
HEARING, BRIEFING, AND DECISION mary responsibility for implementa-
tion of the FOIA in the Department of
1.650 When and where will the hearing be Agriculture (‘‘USDA’’ or ‘‘Depart-
held?
ment’’). The term ‘‘agency’’ or ‘‘agen-
1.651 What are the parties’ rights during the
hearing? cies’’ is used throughout this subpart
1.652 What are the requirements for pre- to include both USDA program agen-
senting testimony? cies and staff offices.
1.653 How may a party use a deposition in
[65 FR 46336, July 28, 2000]
the hearing?
1.654 What are the requirements for exhib-
§ 1.2 Policy.
its, official notice, and stipulations?
1.655 What evidence is admissible at the (a) Agencies of USDA shall comply
hearing? with the time limits set forth in the
1.656 What are the requirements for tran- FOIA and in this subpart for respond-
scription of the hearing? ing to and processing requests and ap-
1.657 What is the standard of proof?
peals for agency records, unless there
1.658 When will the hearing record close?
1.659 What are the requirements for post- are unusual circumstances within the
hearing briefs? meaning of 5 U.S.C. 552(a)(6)(B) and
1.660 What are the requirements for the § 1.16(b). An agency shall notify a re-
ALJ’s decision? quester in writing whenever it is un-
able to respond to or process a request
ALTERNATIVES PROCESS
or appeal within the time limits estab-
1.670 How must documents be filed and lished by the FOIA.
served under §§ 1.670 through 1.673? (b) All agencies of the Department
1.671 How do I propose an alternative? shall comply with the fee schedule pro-
1.672 What will the Forest Service do with a
vided as appendix A to this subpart,
proposed alternative?
1.673 How will the Forest Service analyze a with regard to the charging of fees for
proposed alternative and formulate its providing copies of records and related
modified conditions? services to requesters.
1.674 Has OMB approved the information
[65 FR 46337, July 28, 2000]
collection provisions of §§ 1.670 through
1.673?
§ 1.3 Agency implementing regula-
AUTHORITY: 5 U.S.C. 301, unless otherwise tions.
noted.
Each agency of the Department shall
promulgate regulations setting forth
Subpart A—Official Records the following:
(a) The location and hours of oper-
AUTHORITY: 5 U.S.C. 301, 552; 7 U.S.C. 3125a; ation of the agency office or offices
31 U.S.C. 9701; and 7 CFR 2.28(b)(7)(viii). where members of the public may gain
access to those materials required by 5
§ 1.1 Purpose and scope. U.S.C. 552(a)(2) and § 1.4 to be made
This subpart establishes policy, pro- available for public inspection and
cedures, requirements, and responsibil- copying.
ities for administration and coordina- (b) Information regarding the publi-
tion of the Freedom of Information Act cation and distribution (by sale or oth-
pmangrum on DSK3VPTVN1PROD with CFR

(‘‘FOIA’’), 5 U.S.C. 552, pursuant to erwise) of indexes and supplements to


which any person may obtain official indexes that are maintained in accord-
records. It also provides rules per- ance with the requirements of 5 U.S.C.
taining to the disclosure of records 552(a)(2) and § 1.4(c);

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00018 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.4

(c) The title and mailing address of (4) Copies of all records, regardless of
the official or officials of the agency form or format, which have been re-
authorized to receive requests for leased pursuant to a FOIA request
records submitted in accordance with under 5 U.S.C. 552(a)(3), and which be-
§ 1.5(a), and to make determinations re- cause of the nature of their subject
garding whether to grant or deny such matter, have become or are likely to
requests. Authority to make such de- become the subject of subsequent re-
terminations includes authority to: quests for substantially the same
(1) Extend the 20 working day admin- records. Agencies shall decide on a case
istrative deadline for reply pursuant to by case basis whether records fall into
§ 1.16; this category, based on the following
(2) Make discretionary releases pur- factors:
suant to § 1.19(b); (i) Previous experience with similar
(3) Make determinations regarding records;
the charging of fees pursuant to appen- (ii) The particular characteristics of
dix A to this subpart; the records involved, including their
(d) The title and mailing address of nature and the type of information
the agency official who is authorized to contained in them; and
receive appeals submitted in accord- (iii) The identity and number of re-
ance with § 1.14 and to make determina- questers and whether there is wide-
tions regarding whether to grant or spread media, historical, academic, or
deny such appeals. Authority to deter- commercial interest in the records.
mine appeals includes authority to: (5) A general index of the records re-
(1) Extend the 20 working day admin- ferred to in paragraph (a)(4) of this sec-
istrative deadline for reply pursuant to tion.
§ 1.16 (to the extent the maximum ex- (b) Records encompassed within para-
tension authorized by § 1.16(c) was not graphs (a)(1) through (a)(5) of this sec-
used with regard to the initial request; tion created on or after November 1,
(2) Make discretionary releases pur- 1996, shall be made available to the
suant to § 1.19(b); public by computer telecommuni-
(3) Make determinations regarding cations or, if computer telecommuni-
the charging of fees pursuant to appen- cations means have not been estab-
dix A to this subpart; and lished by the agency, by other elec-
(e) Other information which would be tronic means.
of concern to a person wishing to re- (c) Each agency of the Department
quest records from that agency in ac- shall maintain and make available for
cordance with this subpart. public inspection and copying current
indexes providing identifying informa-
[65 FR 46337, July 28, 2000] tion regarding any matter issued,
adopted or promulgated after July 4,
§ 1.4 Public access to certain mate- 1967, and required by paragraph (a) of
rials.
this section to be make available or
(a) In accordance with 5 U.S.C. published. Each agency shall publish
552(a)(2), each agency within the De- and make available for distribution
partment shall make the following ma- copies of such indexes and supplements
terials available for public inspection to such indexes at least quarterly, un-
and copying (unless they are promptly less it determines by notice published
published and copies offered for sale): in the FEDERAL REGISTER that publica-
(1) Final opinions, including concur- tion would be unnecessary and imprac-
ring and dissenting opinions, as well as ticable. After issuance of such notice,
orders, made in the adjudication of each agency shall provide copies of any
cases; index upon request at a cost not to ex-
(2) Those statements of policy and in- ceed the direct cost of duplication.
terpretation which have been adopted (d) Each agency is responsible for
by the agency and are not published in preparing reference material or a guide
pmangrum on DSK3VPTVN1PROD with CFR

the FEDERAL REGISTER; for requesting records or information


(3) Administrative staff manuals and from that agency. This guide shall also
instructions to staff that affect a mem- include an index of all major informa-
ber of the public; tion systems, and a description of

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00019 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.5 7 CFR Subtitle A (1–1–12 Edition)

major information and record locator may help identify the records. If the re-
systems. quest relates to a matter in pending
(e) Each agency shall also prepare a litigation, the requester should iden-
handbook for obtaining information tify the court and its location.
from that agency. The handbook (c) If an agency determines that a re-
should be a short, simple explanation quest does not reasonably describe the
to the public of what the FOIA is de- records, the agency shall inform the re-
signed to do, and how a member of the quester of this fact and extend the re-
public can use it to access government quester an opportunity to clarify the
records. The handbook should be avail- request or to confer promptly with
able on paper and through electronic knowledgeable agency personnel to at-
means, and it should identify how a re- tempt to identify the records the re-
quester can access agency Freedom of quester is seeking. The ‘‘date of re-
Information Act annual reports. Simi- ceipt’’ in such instances, for purposes
larly, the annual reports should refer of § 1.13, shall be the date of receipt of
to the handbook and how to obtain it. the amended or clarified request.
(f) It is appropriate to make fre- (d) If a request for records or a fee
quently requested records available in waiver made under this subpart is de-
accordance with paragraph (a)(4) of nied, the requester shall have the right
this section in situations where public to appeal the denial. Requesters also
access in a timely manner is impor- may appeal agency determinations of a
tant, and it is not intended to apply requester’s status for purposes of fee
where there may be a limited number levels under sec. 5 of appendix A to this
of requests over a short period of time subpart. All appeals must be in writing
from a few requesters. Agencies may and addressed to the official designated
remove a record from this access me- in regulations promulgated by the
dium when the appropriate official de- agency which denied the request. To fa-
termines that it is unlikely there will cilitate processing of an appeal, the re-
be substantial further requests for that quester should place the phrase ‘‘FOIA
document. APPEAL’’ in capital letters on the
[65 FR 46337, July 28, 2000] front of the envelope or on the cover
sheet of the fax transmittal.
§ 1.5 Requests for records. (e) Requests that are not addressed
(a) Any person who wishes to inspect to a specific agency in USDA, or which
or obtain copies of any record of any pertain to more than one USDA agen-
agency of the Department shall submit cy, or which are sent to the wrong
a request in writing and address the re- agency of USDA, should be forwarded
quest to the official designated in regu- to the Department’s FOIA Officer in
lations promulgated by that agency. the Office of Communications, U.S. De-
The requester may ask for a fee waiver. partment of Agriculture, Washington,
All such requests for records shall be DC 20250.
deemed to have been made pursuant to (f) The Department FOIA Officer will
the Freedom of Information Act, re- determine which agency or agencies
gardless of whether the request specifi- should process the request, and, where
cally mentions the Freedom of Infor- necessary, refer the request to the ap-
mation Act. To facilitate processing of propriate agency or agencies. The De-
a request, the requester should place partment FOIA Officer will also notify
the phrase ‘‘FOIA REQUEST’’ in cap- the requester of the referral and of the
ital letters on the front of the envelope name of each agency to which the re-
or on the cover sheet of the facsimile quest has been referred.
transmittal. (g) A request will be properly re-
(b) A request must reasonably de- ceived when it is in the possession of
scribe the records to enable agency per- the component agency that has respon-
sonnel to locate them with reasonable sibility for maintaining the requested
effort. Where possible, a requester records.
pmangrum on DSK3VPTVN1PROD with CFR

should supply specific information re- (h) Each agency shall develop and
garding dates, titles, names of individ- maintain a record of all written re-
uals, names of offices, and names of quests and appeals received in that
agencies or other organizations that agency. The record shall include the

10

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00020 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.8

names of the requester; a brief sum- (2) The name and title or position of
mary of the information requested; each person responsible for denial of
whether the request or appeal was the request;
granted, denied, or partially denied; (3) The requester’s right to appeal
the exemption from mandatory disclo- such denial and the title and address of
sure under 5 U.S.C. 552(b) upon which the official to whom such appeal is to
any denial was based; and the amount be addressed; and
of any fees associated with the request (4) The requirement that such appeal
or appeal. be made within 45 days of the date of
the denial.
[65 FR 46337, July 28, 2000]
(b) If the reason for not fulfilling a
§ 1.6 Aggregating requests. request is that the records requested
are in the custody of another agency
When an agency reasonably believes outside USDA, other than in the per-
that a requester, or a group of request- manent custody of the National Ar-
ers acting in concert, is attempting to chives and Records Administration
break a request down into a series of (‘‘NARA’’), the agency shall inform the
requests for the purpose of evading the requester of this fact and shall forward
assessment of fees, the agency may ag- the request to that agency or Depart-
gregate any such requests and charge ment for processing in accordance with
accordingly. One element that may be its regulations. If the records are in the
considered in determining whether permanent custody of NARA, the agen-
such a belief would be reasonable is the cy shall so inform the requester. Infor-
brevity of the time period during which mation about obtaining access to
the requests have been made. records at NARA may be obtained
[65 FR 46338, July 28, 2000] through the NARA Archival Informa-
tion Locator (NAIL) Database at http://
§ 1.7 Agency response to requests for www/nara.gov/nara.nail.html, or by call-
records. ing NARA at (301) 713–6800. If the agen-
(a) 5 U.S.C. 552(a)(6)(A)(i) provides cy has no knowledge of requested
that each agency of the Department to records or if no records exist, the agen-
which a request for records is sub- cy shall notify the requester of that
mitted in accordance with § 1.5(a) shall fact.
inform the requester of its determina- [65 FR 46338, July 28, 2000]
tion concerning that request within 20
working days of its date of receipt (ex- § 1.8 Multitrack processing.
cepting Saturdays, Sundays, and legal (a) When an agency has a significant
public holidays), plus any extension au- number of requests, the nature of
thorized under § 1.16. If the agency de- which precludes a determination with-
termines to grant the request, it shall in 20 working days, the requests may
inform the requester of any conditions be processed in a multitrack processing
surrounding the granting of the re- system, based on the date of receipt,
quest (e.g., payment of fees) and the the amount of work and time involved
approximate date upon which the agen- in processing the request, and whether
cy will provide the requested records. If the request qualifies for expedited
the agency grants only a portion of the processing.
request, it shall treat the portion not (b) Agencies may establish as many
granted as a denial, and make a reason- processing tracks as appropriate; proc-
able effort to estimate the volume of essing within each track shall be based
the records denied and provide this es- on a first-in, first-out concept, and
timate to the requester, unless pro- rank-ordered by the date of receipt of
viding such an estimate would harm an the request.
interest protected by an exemption of (c) Agencies may provide a requester
the FOIA. If the agency determines to whose request does not qualify for the
deny the request in part or in whole, it fastest track an opportunity to limit
pmangrum on DSK3VPTVN1PROD with CFR

shall immediately inform the requester the scope of the request in order to
of that decision and provide the fol- qualify for a faster track. This multi-
lowing: track processing system does not less-
(1) The reasons for the denial; en agency responsibility to exercise

11

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.9 7 CFR Subtitle A (1–1–12 Edition)

due diligence in processing requests in news breaking nature of the informa-


the most expeditious manner possible. tion.
(d) Agencies shall process requests in (c) A requester who seeks expedited
each track on a ‘‘first-in, first-out’’ processing must provide a written
basis, unless there are unusual cir- statement that the requester has cer-
cumstances as set forth in § 1.16, or the tified to be true and correct to the best
requester is entitled to expedited proc- of the requester’s knowledge, explain-
essing as set forth in § 1.9. ing in detail the basis for requesting
[65 FR 46338, July 28, 2000] expedited processing. The agency will
not consider the request to have been
§ 1.9 Expedited processing. received unless accompanied by a writ-
(a) A requester may apply for expe- ten, certified statement, and will be
dited processing at the time of the ini- under no obligation to consider the re-
tial request for records. Within ten cal- quest for expedited processing until it
endar days of its receipt of a request receives such a written, certified state-
for expedited processing, an agency ment.
shall decide whether to grant it, and (d) the same procedures apply to re-
shall notify the requester of the deci- quests for expedited processing of ad-
sion. Once the determination has been ministrative appeals.
made to grant expedited processing, an
agency shall process the request as [65 FR 46338, July 28, 2000]
soon as practicable. If a request for ex-
pedited processing is denied, the agen- § 1.10 Search services.
cy shall act expeditiously on any ap- Search services are services of agen-
peal of that decision. cy personnel—clerical or professional—
(b) A request or appeal will be taken used in trying to find the records, that
out of order and given expedited treat- are responsive to a request. Search
ment whenever the agency determines services includes both manual and elec-
that the requester has established ei- tronic searches and time spent exam-
ther of the following criteria: ining records for the purpose of finding
(1) Circumstances in which the lack information that is within the scope of
of expedited treatment could reason- the request. Search services also in-
ably be expected to pose an imminent
clude services to transport personnel to
threat to the life or physical safety of
places of record storage, or records to
an individual; or
the location of personnel for the pur-
(2) An urgency to inform the public
about an actual or alleged federal gov- pose of the search, if such services are
ernment activity, if made by an indi- reasonably necessary.
vidual primarily engaged in dissemi- [65 FR 46339, July 28, 2000]
nating information. Representatives of
the news media would normally qualify § 1.11 Review services.
as individuals primarily engaged in dis-
(a) Review services are services of
seminating information; however,
agency personnel—clerical or profes-
other requesters must demonstrate
sional—in examining records, both
that their primary activity involves
publishing or otherwise disseminating paper and electronic, located in re-
information to the public as a whole, sponse to a request that is for a com-
and not just a particular segment or mercial use (as specified in sec. 6 of ap-
group. ‘‘Urgency’’ contemplates that pendix A to this subpart) to determine
the information has a particular value whether any portion of any record lo-
that will be lost if not disseminated cated is exempt from mandatory dis-
quickly. Ordinarily this means a break- closure.
ing news story of general public inter- (b) Review services include proc-
est. Information of historical interest essing any records for disclosure e.g.,
only or information sought for litiga- doing all that is necessary to redact ex-
empt portions and otherwise prepare
pmangrum on DSK3VPTVN1PROD with CFR

tion or commercial activities would


not meet the test of urgency, nor records for release.
would a news media publication or (c) Review services do not include the
broadcast deadline unrelated to the time spent resolving general legal or

12

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.14

policy issues regarding the application matter may be considered for possible
of exemptions. judicial intervention; and
(e) Notify business information sub-
[65 FR 46339, July 28, 2000]
mitters promptly of all instances in
§ 1.12 Handling information from a which FOIA requesters bring suit seek-
private business. ing to compel disclosure of submitted
information.
Each USDA agency is responsible for
making the final determination with [65 FR 46339, July 28, 2000]
regard to the disclosure or nondisclo-
sure of information in agency records § 1.13 Date of receipt of requests or ap-
that has been submitted by a business. peals.
When, in the course of responding to an The date of receipt of a request or ap-
FOIA request, an agency cannot read- peal shall be the date it is received in
ily determine whether the information the agency and office responsible for
obtained from a person is privileged or the administrative processing of FOIA
confidential business information, the requests or appeals.
policy of USDA is to obtain and con-
sider the views of the submitter of the [65 FR 46339, July 28, 2000]
information and to provide the sub-
§ 1.14 Appeals.
mitter an opportunity to object to any
decision to disclose the information. If (a) Requesters seeking administra-
a request (including a subpoena duces tive appeal of a denial of a request for
tecum as described in § 1.215) is re- records or denial of a fee waiver must
ceived in USDA for information that ensure that the appeal is received by
has been submitted by a business, the the agency within 45 days of the date of
agency shall: the denial letter.
(a) Provide the business information (b) Each agency shall provide for re-
submitter with prompt notification of view of appeals by an official different
a request for that information (unless from the official or officials designated
it is readily determined by the agency to make initial denials.
that the information requested should (c) 5 U.S.C. 552(a)(6)(A)(ii) provides
not be disclosed or, on the other hand, that each agency in the Department to
that the information is not exempt by which an appeal of a denial is sub-
law from disclosure). Afford business mitted shall inform the requester of its
information submitter reasonable time determination concerning that appeal
in which to object to the disclosure of within 20 working days (excepting Sat-
any specified portion of the informa- urdays, Sundays, and legal public holi-
tion. The submitter must explain fully days), plus any extension authorized by
all grounds upon which disclosure is § 1.16, of its date of receipt. If the agen-
opposed. For example, if the submitter cy determines to grant the appeal, it
maintains that disclosure is likely to shall inform the requester of any con-
cause substantial harm to it competi- ditions surrounding the granting of the
tive position, the submitter must ex- request (e.g., payment of fees) and the
plain item-by-item why disclosure approximate date upon which compli-
would cause such harm. Information ance will be effected. If the agency
provided by a business submitter pur- grants only a portion of the appeal, it
suant to this paragraph may itself be shall treat the portion not granted as a
subject to disclosure under FOIA; denial. If it determines to deny the ap-
(b) Notify the requester of the need peal either in part or in whole, it shall
to inform the submitter of a request inform the requester of that decision
for submitted business information; and of the following:
(c) Determine whether the requested (1) The reasons for denial;
records are exempt from disclosure or (2) The name and title or position of
must be released; each person responsible for denial of
the appeal; and
pmangrum on DSK3VPTVN1PROD with CFR

(d) Provide business information sub-


mitters with notice of any determina- (3) The right to judicial review of the
tion to disclose such records prior to denial in accordance with 5 U.S.C.
the disclosure date, in order that the 552(a)(4).

13

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00023 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.15 7 CFR Subtitle A (1–1–12 Edition)

(d) Each agency, upon a determina- would reasonable demonstrate the ex-
tion that it wishes to deny an appeal, tent of the deletion. In the case of elec-
shall send a copy of the records re- tronic deletion, or deletion in audio-
quested and of all correspondence re- visual or microfiche records, if tech-
lating to the request to the Assistant nically feasible, the amount of re-
General Counsel, General Law Divi- dacted information shall be indicated
sion, Office of the General Counsel at the place in the records, if tech-
(‘‘Assistant General Counsel’’). When nically feasible, the amount of re-
the volume of records is so large as to dacted information shall be indicated
make sending a copy impracticable, at the place in the record where such
the agency shall enclose an inform- deletion was made. This may be done
ative summary of those records. The by use of brackets, shaded areas, or
agency shall not deny an appeal until some other identifiable technique
it receives concurrence from the As- which will clearly show the limits of
sistant General Counsel the deleted information.
(e) The Assistant General Counsel
shall promptly review the matter (in- (c) If, in connection with a request or
cluding necessary coordination with an appeal, a charge is to be made in ac-
the agency) and render all necessary cordance with sec. 8 of appendix A to
assistance to enable the agency to re- this subpart, agencies shall inform the
spond to the appeal within the admin- requester of the fee amount and of the
istrative deadline or any extension of basis for the charge. Each agency, in
the administrative deadline. accordance with sec. 8 of appendix A to
this subpart, may require payment of
[65 FR 46339, July 28, 2000] the entire fee, or a portion of the fee,
before it provides the requested
§ 1.15 General provisions respecting
release of records. records. An agency shall require full
payment of any delinquent fee owed by
(a) When releasing documents, agen- the requester plus any applicable inter-
cies shall provide the record in any est prior to releasing records on a sub-
form or format the requester specifies, sequent request or appeal. If a re-
if the record is readily reproducible in
quester refuses to remit payment in ad-
that form of format. Agencies shall
vance, an agency may refuse to process
make reasonable efforts to maintain
the request or appeal with written no-
their records in forms or formats that
tice to that effect forwarded to the re-
are reproducible. In responding to re-
quests for records, agencies shall make quester. The ‘‘date of receipt’’ appeal
reasonable efforts to search for records for which advance payment has been
in electronic form or format, except required shall be the date that pay-
when such efforts would significantly ment is received.
interfere with the operation of an agen- (d) In the event compliance with the
cy’s automated information system. request or appeal involves inspection of
Such determinations shall be made on records by the requester rather than
a case-by-case basis. providing copies of the records, the
(b) In the event a requested record agency response shall include the
contains some portions that are ex- name, mailing address, and telephone
empt from mandatory disclosure and number of the person to be contacted
others that are not, the official re- to arrange a mutually convenient time
sponding to the request shall ensure for such inspection.
that all reasonably segregable non- (e) Whenever duplication fees, or
exempt portions are disclosed, and that search fees for unsuccessful searches
all exempt portions are identified ac- (see sec. 4(f) of appendix A to this sub-
cording to the specific exemption or part), are anticipated to exceed $25.00,
exemptions which are applicable. The and the requester has not indicated, in
amount of deleted information shall be advance, a willingness to pay fees as
indicated on the released portion of high as those anticipated, agencies
pmangrum on DSK3VPTVN1PROD with CFR

paper records. Deletions may be shall notify the requester of the


marked by use of brackets or darkened amount of the anticipated fee. If an ex-
areas indicating removal of informa- tensive and therefore costly successful
tion, or by any other method that search is anticipated, agencies also

14

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00024 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.17

should notify requesters of the antici- (1) The need to search for and collect
pated fees. The notification shall offer the requested records from field facili-
the requester the opportunity to confer ties or other establishments that are
with agency personnel to reform the separate from the office processing the
request to meet the requester’s needs request;
at a lower fee. In appropriate cases, an (2) The need to search for, collect,
advance deposit in accordance with sec. and appropriately examine a volumi-
8 of appendix A to this subpart may be nous amount of separate and distinct
required. records which are demanded in a single
[65 FR 46340, July 28, 2000] request; or
(3) The need for consultation, which
§ 1.16 Extension of administrative shall be conducted with all practicable
deadlines. speed, with another Department or
(a) In unusual circumstances as spec- agency having a substantial interest in
ified in this section, when additional the determination of the request or
time is needed to respond to the initial among two or more components of
request or to an appeal, agencies shall agency having substantial subject-mat-
acknowledge the request or the appeal ter interest in the request.
in writing within the 20 working day
time period, describe the unusual cir- NOTE TO PARAGRAPH (b): Consultation re-
cumstances requiring the delay, and in- garding policy or legal issues between an
dicate the anticipated date for a sub- agency and the Office of the General Coun-
sel, Office of Communications, or the De-
stantive response that may not exceed
partment of Justice is not a basis for exten-
10 additional working days, except as sion under this section.
provided in the following:
(1) In instances in which the agency, (c) The 10-day extension authorized
with respect to a particular request, by this section may be divided between
has extended the response date by 10 the initial and appellate reviews, but in
additional working days, if the agency no event shall the total extension ex-
finds that it cannot make a response ceed 10 working days.
determination within the additional 10 (d) Nothing in this section shall pre-
working day period, the agency shall clude the agency and the requester
notify the requester and provide the re- from agreeing to an extension of time.
quester an opportunity to limit the Any such agreement should be con-
scope of the request to allow the agen- firmed in writing and should specify
cy to process the request within the ex- clearly the total time agreed upon.
tended time limit, or an alternative
time frame for processing the request [65 FR 46340, July 28, 2000]
or a modified request.
(2) If the requester refuses to reason- § 1.17 Failure to meet administrative
ably modify the request or arrange for deadlines.
an alternative time frame for proc- In the event an agency fails to meet
essing the request, the FOIA provides the administrative deadlines set forth
that such refusal shall be considered as in § 1.7 or § 1.14, plus any extension au-
a factor in determining whether there thorized by § 1.16, it shall notify the re-
are exceptional circumstances that quester, state the reasons for the
warrant granting additional time for delay, and the date by which it expects
the agency to complete its review of to dispatch a determination. Although
the records, as set forth in 5 U.S.C. the requester may be deemed to have
552(a)(6)(C)(iii). The term ‘‘exceptional exhausted his or her administrative
circumstances’’ does not include a remedies under 5 U.S.C. 552(a)(6)(C), the
delay that results from a predictable agency shall continue processing the
agency backlog, unless the agency request as expeditiously as possible and
demonstrates reasonable progress in dispatch the determination when it is
reducing its backlog of pending re- reached in the same manner and form
pmangrum on DSK3VPTVN1PROD with CFR

quests. as if it had been reached within the ap-


(b) As used in this section, ‘‘unusual
plicable deadline.
circumstances’’ that may justify delay
are: [65 FR 46341, July 28, 2000]

15

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00025 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.18 7 CFR Subtitle A (1–1–12 Edition)

§ 1.18 Fee schedule. (5) The number of requests for


Pursuant to § 2.28 of this title, the records pending before the agency as of
Chief Financial Officer is delegated au- September 30 of the preceding year,
thority to promulgate regulations pro- and the median number of days that
viding for a uniform fee schedule appli- such requests had been pending before
cable to all agencies of the Department the agency as of that date:
regarding requests for records under (6) The median number of days taken
this subpart. The regulations providing by the agency to process different
for a uniform fee schedule are found in types of requests;
appendix A to this subpart. (7) The total amount of fees collected
by the agency for processing requests;
[65 FR 46341, July 28, 2000]
(8) The number of full-time staff of
§ 1.19 Exemptions and discretionary the agency devoted to processing re-
release. quests for records under this section,
and the total amount expended by the
(a) All agency records, except those
agency for processing such requests.
specifically exempted from mandatory
disclosure by one or more provisions of (b) Each agency shall compile the in-
5 U.S.C. 552(b), shall be made promptly formation required by paragraph (a) of
available to any person submitting a this section for the preceding fiscal
request under this subpart. year into a report and submit this re-
(b) Agencies are authorized, in their port to the Director of Communica-
sole discretion, to make discretionary tions, Office of Communications, no
releases when such release is not other- later than November 30 following the
wise specifically prohibited by Execu- fiscal year’s close.
tive Order, statute, or regulation. (c) The Director of Communications,
Office of Communications, shall com-
[65 FR 46341, July 28, 2000] bine the reports from all the agencies
§ 1.20 Annual report. within USDA into a Departmental re-
port, and shall submit to the Attorney
(a) Each agency of the Department General on or before February 1 of each
shall compile the following Freedom of year in accordance with 5 U.S.C. 552(e).
Information Act statistics on a fiscal (d) Each agency shall make the re-
year basis beginning October 1, 1997, port available to the public including
and report the following information to by computer telecommunications, or if
the Office of Communications no later computer telecommunications means
than November 30 following the fiscal have not been established by the agen-
year’s close: cy, by other electronic means.
(1) The number of requests for
records received and the number of re- [65 FR 46341, July 28, 2000]
quests which were processed;
(2) The number of determinations § 1.21 Compilation of new records.
made not to comply with initial re- Nothing in 5 U.S.C. 552 or this sub-
quests for records made to it under part requires that any agency create a
§ 1.5(a), and the reasons for each such new record in order to fulfill a request
determinations; for records. However, an agency is re-
(3) The number of appeals made by quired to provide a record in a form or
persons under § 1.14(b), the result of format specified by a requester, if the
such appeals, and the reason for the ac- record is readily reproducible by the
tion upon each appeal that results in a agency in the form or format re-
denial of information. quested. Creation of records may be un-
(4) A complete list of all statutes dertaken voluntarily if the agency de-
that the agency relies upon to author- termines this action to be in the public
ize the agency to withhold information interest or the interest of USDA.
under 5 U.S.C. 552(b)(3), a description of
whether a court has upheld the deci- [65 FR 46341, July 28, 2000]
pmangrum on DSK3VPTVN1PROD with CFR

sion of the agency to withhold informa-


tion under each such statute, and a § 1.22 Authentication.
concise description of the scope of any When a request is received for an au-
information withheld; thenticated copy of a document that

16

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00026 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.25

the agency determines to make avail- in Room 536–A, Jamie L. Whitten Fed-
able to the requesting party, the agen- eral Building, USDA, Washington, DC
cy shall cause a correct copy to be pre- 20250 during the hours of 9 a.m. to 5
pared and sent to the Office of the Gen- p.m. by prior appointment;
eral Counsel, which shall certify the (2) Any indexes and supplements
same and cause the seal of the Depart- which are maintained in accordance
ment to be affixed, except that the with the requirements of 5 U.S.C.
Hearing Clerk in the Office of Adminis- 552(a)(2) and § 1.5(b) will also be avail-
trative Law Judges may authenticate able in Room 536–A, Jamie L. Whitten
copies of documents in the records of Federal Building, USDA, Washington,
the Hearing Clerk, the Director of the DC 20250 during the hours of 9 a.m. to
National Appeals Division may authen- 5 p.m.;
ticate copies of documents in the (3) The person authorized to receive
records of the National Appeals Divi- Freedom of Information Act requests
sion, and the Inspector General may and to determine whether to grant or
authenticate copies of documents in deny such requests is the FOIA Officer,
the records of the Office of Inspector Office of Communications, USDA,
General. Washington, DC 20250;
[72 FR 66042, Nov. 27, 2007] (4) The official authorized to receive
appeals from denial of FOIA requests
§ 1.23 Records in formal adjudication and to determine whether to grant or
proceedings. deny such appeals is the Director of
Records in formal adjudication pro- Communications, Office of Commu-
ceedings are on file in the Hearing nications, USDA, Washington, DC
Clerk’s office, Office of Administrative 20250.
Law Judges, U.S. Department of Agri- (b) The organization and functions of
culture, Washington, DC 20250, and the Office of the Secretary and the Of-
shall be made available to the public. fice of Communications is as follows:
[65 FR 46341, July 28, 2000]
(1) The Office of the Secretary pro-
vides the overall policy guidance and
§ 1.24 Preservation of records. direction of the activities of the De-
partment of Agriculture. Department-
Agencies shall preserve all cor-
wide policy statements and announce-
respondence relating to the requests it
ments are made from this office.
receives under this subpart, and all
records processed pursuant to such re- (2) The Office of the Secretary con-
quests, until such time as the destruc- sists of the Secretary, Deputy Sec-
tion of such correspondence and retary, Under Secretaries, Assistant
records is authorized pursuant to Title Secretaries, and other staff members.
44 of the United States Code, and ap- (3) In the absence of the Secretary
propriate records disposition authority and the Deputy Secretary, responsi-
granted by NARA. Under no cir- bility for the operation of the Depart-
cumstances shall records be sent to a ment of Agriculture is as delegated at
Federal Records Center, transferred to part 2, subpart A, of this title.
the permanent custody of NARA, or de- (4) The Office of Communications
stroyed while they are the subject of a provides policy direction, review, and
pending request, appeal, or civil action coordination of public information pro-
under the FOIA. grams of the Department of Agri-
culture. The Office of Communications
[65 FR 46341, July 28, 2000] has responsibility for maintaining the
flow of information to the mass com-
§ 1.25 Implementing regulations for
the Office of the Secretary and the munications media, various constitu-
Office of Communications. ency groups, and the general public.
(5) The Office of Communications is
(a) For the Office of the Secretary
headed by the Director of Communica-
and for the Office of Communications,
tions. In the Director’s absence, the Of-
pmangrum on DSK3VPTVN1PROD with CFR

the regulations required by § 1.3 are as


fice of Communications is headed by
follows:
the Deputy Director.
(1) Records available for public in-
spection and copying may be obtained [65 FR 46341, July 28, 2000]

17

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00027 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Pt. 1, Subpt. A, App. A 7 CFR Subtitle A (1–1–12 Edition)

APPENDIX A TO SUBPART A OF PART 1— (d) Records shall also be furnished without


FEE SCHEDULE charge under the following conditions:
(1) When filling requests from other De-
Section 1. General. partments or Government agencies for offi-
cial use, provided quantities requested are
This schedule sets forth fees to be charged reasonable in number;
for providing copies of records—including (2) When members of the public provide
photographic reproductions, microfilm, maps their own copying equipment, in which case
and mosaics, and related services—under the no copying fee will be charged (although
Freedom of Information Act (FOIA). Records search and review fees may still be assessed);
and related services are available at the lo- or
cations specified by agencies in their FOIA (3) When any notices, decisions, orders, or
implementing regulations. The fees set forth other materials are required by law to be
in this schedule are applicable to all agen- served on a party in any proceeding or mat-
cies of the Department of Agriculture, and ter before any Department agency.
are based upon guidelines prescribed by the
Office of Management and Budget (OMB) Section 4. Fees for records and related services.
issued at 52 FR 10012 (March 27, 1987). No
higher fees or charges in addition to those (a) The fee for photocopies of pages 81⁄2″×14″
provided for in this schedule may be charged or smaller shall be $0.20 per page (per indi-
a party requesting services under the Free- vidual side of sheet).
dom of Information Act. (b) The fee for photocopies larger than
81⁄2″×14″ shall be $0.50 per linear foot of the
Section 2. Types of services for which fees may longest side of the copy.
be charged. (c) The fee for other forms of duplicated
records, such as microform, audio-visual ma-
Subject to the criteria set forth in section terials, or machine-readable documentation
5 of this appendix, fees may be assessed (i.e., magnetic tape or disk), shall be the ac-
under the Freedom of Information Act on all tual direct cost of producing the records.
requests involving such services as record (d) Manual searches shall be charged for in
search, duplication, and review. Fees may one of the two following manners in the
also be charged in situations involving spe- given order:
cial service to a request, such as certifying (1) When feasible, at the salary rate of the
that records requested are true copies, or employee conducting the search, plus 16 per-
sending records by special methods such as cent of the employee’s basic pay; or
express mail, etc. For services not covered (2) Where a homogeneous class of personnel
by the FOIA or by this appendix, agencies is used exclusively, at the rate of $10.00 per
may set their own fees in accordance with hour for clerical time, and $20.00 per hour for
applicable law, or costs incurred will be as- supervisory or professional time. Charges
sessed the requester at the actual cost to the should be computed to the nearest quarter
Government. For example, where records are hour required for the search. A homogeneous
required to be shipped from one office to an- class of personnel, for purposes of conducting
other by commercial carrier in order to manual searches and where more than one
timely answer a request, the actual freight individual is involved, is a group of employ-
charge will be assessed the requester. ees of like rank, grade, pay or position. A
heterogeneous class of personnel is a group
Section 3. Instances in which fees will not be of employees of unlike rank, grade, pay, or
charged. position. If a heterogeneous class of per-
(a) Except for requests seeking records for sonnel is involved in a search then the
a commercial use (as specified in section 5 of search shall be charged for at the salary rate
this appendix), no charge shall be made for of the individuals.
either: (1) The first 100 pages of duplicated (e) Mainframe computer searches and serv-
records (81⁄2″×14″ or smaller-size paper); or (2) ices shall be charged for at the rates estab-
The first two hours of manual search time, lished in the Users Manual or Handbook pub-
or the equivalent value of computer search lished by the computer center at which the
time as defined in section 4(e) of this appen- work will be performed. Where the rate has
dix. not been established, the rate shall be $27.00
(b) No charge shall be made—even to com- per minute. Searches using computers other
mercial use requesters—if the cost of col- than mainframes shall be charged for at the
lecting a fee would be equal to or greater manual search rate.
than the fee itself. For USDA, this figure has (1) Other rates are published and may be
been calculated to be $25.00. examined at the following places:
(c) Fees may not be charged for time spent Fort Collins Computer Center Users Manual
pmangrum on DSK3VPTVN1PROD with CFR

by an agency employee in resolving legal or Fort Collins Computer Center, U.S. De-
policy issues, or in monitoring a requester’s partment of Agriculture, 3825 East Mul-
inspection of agency records. No charge shall berry Street (P.O. Box 1206), Fort Collins,
be made for normal postage costs. Colo. 80521.

18

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00028 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA Pt. 1, Subpt. A, App. A
National Finance Center, Cost, Productivity prescribes specific levels of fees for each cat-
& Analysis Section, U.S. Department of egory:
Agriculture, 13800 Old Gentilly Road, (a) Commercial use requesters—For com-
New Orleans, La. 70129. mercial use requesters, agencies shall assess
Kansas City Computer Center Users Manual charges which recover the full direct costs of
Kansas City Computer Center, U.S. De- searching for, reviewing for release, and du-
partment of Agriculture, 8930 Ward Park- plicating the records sought. Commercial
way (P.O. Box 205), Kansas City, MO. use requesters are not entitled to the free
64141. search time or duplication referenced in sec-
Washington Computer Center Users Hand- tion 3(a) of this appendix. Agencies may re-
book: Washington Computer Center, U.S. cover the cost of searching for and reviewing
Department of Agriculture, Room S–100, records for commercial use requesters even if
South Building, 12th Street and Inde- there is ultimately no disclosure of records.
pendence Avenue, SW., Washington, DC (1) A commercial use requester is defined
20250. as one who seeks information for a use or
St. Louis Computer Center, U.S. Department purpose that furthers the commercial, trade,
or profit interests of the requester or the
of Agriculture, 1520 Market Street, St.
person on whose behalf the request is made.
Louis, MO. 63103.
(2) In determining whether a requester
(f) Charges for unsuccessful searches, or properly belongs in this category, agencies
searches which fail to locate records or must determine whether the requester will
which locate records which are exempt from put the records to a commercial use. Where
disclosure, shall be assessed at the same fee an agency has reasonable cause to doubt the
rate as searches which result in disclosure of use to which a requester will put the records
records. sought, or where that use is not clear from
(g) The fee for providing review services the request itself, the agency may seek addi-
shall be the hourly salary rate (i.e., basic tional clarification from the requester.
pay plus 16 percent) of the employee con- (b) Educational and non-commercial sci-
ducting the review to determine whether any entific institution requesters—Fees for this
information is exempt from mandatory dis- category of requesters shall be limited to the
closure. cost of providing duplication service alone,
(h) The fee for Certifications shall be $5.00 minus the charge for the first 100 reproduced
each; Authentications under Department pages. No charge shall be made for search or
Seal (including aerial photographs), $10.00 review services. To qualify for this category,
each. requesters must show that the request is
(i) All other costs incurred by USDA agen- being made as authorized by and under the
cies will be assessed the requester at the ac- auspices of an eligible institution and that
tual cost to the Government. the records are not sought for a commercial
(j) The fees specified in paragraphs (a) use, but are sought in furtherance of schol-
through (g) of this section apply to all re- arly research (if the request is from an edu-
quests for services under the FOIA, unless no cational institution) or scientific research (if
fee is to be charged, or the agency has deter- the request is from a non-commercial sci-
mined to waive or reduce those fees pursuant entific institution).
to section 6 of this appendix. No higher fees (1) The term educational institution refers to
or charges in addition to those provided for a preschool, a public or private elementary
in this appendix may be charged for services or secondary school, an institution of grad-
under the FOIA. uate higher education, an institution of un-
dergraduate higher education, an institution
(k) The fees specified in paragraphs (h) and
of professional education, and an institution
(i) of this section and in section 17 of this ap-
of vocational education, which operates a
pendix apply to requests for services other
program or programs of scholarly research.
than those subject to the FOIA. The author-
(2) The term non-commercial scientific insti-
ity for establishment of these fees is at 31
tution refers to institution that is not oper-
U.S.C. 9701 and other applicable laws.
ated on a ‘‘commercial’’ (see section 5(a)(1))
(l) Except as provided in section 11 of this of this appendix basis, and which is operated
appendix, for services not subject to the solely for the purpose of conducting sci-
FOIA, and not covered by paragraph (h) of entific research the results of which are not
this section, agencies may set their own fees intended to promote any particular product
in accordance with applicable law. or industry.
Section 5. Levels of fees for each category of (c) Requesters who are representatives of
requesters. the news media—Fees for this category of re-
questers shall also be limited to the cost of
Under the FOIA, there are four categories providing duplication service alone, minus
pmangrum on DSK3VPTVN1PROD with CFR

of FOIA requesters: Commercial use request- the charge for the first 100 reproduced pages.
ers, educational and non-commercial sci- No charge shall be made for providing search
entific institutions; representatives of the or review services. Requests in this category
news media; and all other requesters. FOIA must not be made for a commercial use.

19

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00029 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Pt. 1, Subpt. A, App. A 7 CFR Subtitle A (1–1–12 Edition)
(1) The term representative of the news media (vi) The primary interest in disclosure, i.e.,
refers to any person actively gathering news whether the magnitude of the identified
for an entity that is organized and operated commercial interest of the requester is suffi-
to publish or broadcast news to the public. ciently large, in comparison with the public
(2) The term news means information that interest in disclosure, that disclosure is
is about current events or that would be of ‘‘primarily in the commercial interest of the
current interest to the public. requester.’’
(3) Examples of news media entities in- (2) An agency may, in its discretion, waive
clude television or radio stations broad- or reduce fees associated with a request for
casting to the public at large, and publishers disclosure, regardless of whether a waiver or
of periodicals which disseminate news and reduction has been requested, if the agency
who make their products available for pur- determines that disclosure will primarily
chase or subscription by the general public. benefit the general public.
(4) Freelance journalists may be regarded as (3) Agencies may also waive or reduce fees
working for a news organization if they can under the following conditions:
demonstrate a solid basis for expecting pub- (i) Where the furnishings of records or a
lication through that organization, even service without charge or at a reduced rate
though not actually employed by it. is an appropriate courtesy to a foreign coun-
(d) All other requesters—Fees for request- try or international organization, or where
ers who do not fit into the categories de- comparable fees are set on a reciprocal basis
scribed in paragraphs (a), (b), or (c) of this with a foreign country or an international
section shall be assessed for the full reason- organization;
able direct cost of searching for and dupli- (ii) Where the requester is engaged in a
cating records that are responsive to a re- nonprofit activity designed for the public
quest. No charge, however, shall be made to safety, health, or welfare; or
requesters in this category for: (1) The first (iii) Where it is determined that payment
100 duplicated pages; or (2) the first two of the full fee by a State or local government
hours of manual search time, or the equiva- or nonprofit group would not be in the inter-
lent value of computer search time as de- est of the program involved.
fined in section 4(e) of this appendix. (4) Fees shall be waived, however, without
Section 6. Fee waivers and reductions. discretion in all circumstances where the
amount of the fee is $25.00 or less.
(a) Agencies shall waive or reduce fees on
request for records if disclosure of the infor- Section 7. Restrictions regarding copies.
mation in the records is deemed to be in the (a) Agencies may restrict numbers of pho-
public interest. A request is in the public in- tocopies and directives furnished the public
terest if it is likely to contribute signifi- to one copy of each page. Copies of forms
cantly to public understanding of the oper- provided the public shall also be held to the
ations or activities of the government, and is
minimum practical. Persons requiring any
not primarily in the commercial interest of
large quantities should be encouraged to
the requester.
take single copies to commercial sources for
(1) In determining when fees shall be
further appropriate reproduction.
waived or reduced, agencies should consider
(b) Single or multiple copies of transcripts,
the following six factors:
provided to the Department under a report-
(i) The subject of the request, i.e., whether
ing service contract, may be obtained by the
the subject of the requested records concerns
public from the contractor at a cost not to
‘‘the operations or activities of the govern-
ment’’; exceed the cost per page charged to the De-
(ii) The informative value of the informa- partment for extra copies. The contractor
tion to be disclosed, i.e., whether the disclo- may add a postage charge when mailing or-
sure is ‘‘likely to contribute’’ to an under- ders to the public, but no other charge may
standing of government operations or activi- be added.
ties; Section 8. Payments of fees and charges.
(iii) The contribution to an understanding
of the subject by the general public likely to (a) Payments should be billed for to the
result from disclosure, i.e., whether disclo- fullest extent possible at the time the re-
sure of the requested information will con- quested materials are furnished. Payments
tribute to ‘‘public understanding’’; should be made by requesters within 30 days
(iv) The significance of the contribution to of the date of the billing.
public understanding, i.e., whether the dis- (b) Payments shall be made by check,
closure is likely to contribute ‘‘signifi- draft, or money order made payable to the
cantly’’ to public understanding of govern- Treasury of the United States, although pay-
ment operations or activities; ments may be made in cash, particularly
pmangrum on DSK3VPTVN1PROD with CFR

(v) The existence and magnitude of a com- where services are performed in response to
mercial interest, i.e., whether the requester a visit to a Department office. All payments
has a commercial interest that would be should be sent to the address indicated by
furthered by the requested disclosure; and, the agency responding to the request.

20

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00030 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA Pt. 1, Subpt. A, App. A
(c) Where the estimated fees to be charged Section 13. Circumstances under which
exceed $250.00, agencies may require an ad- reproductions may be provided free.
vance payment of an amount up to the full Reproductions may be furnished free at the
estimated charges (but not less than 50 per- discretion of the agency, if it determines
cent) from the requester before any of the re- that furnishing free reproductions is in the
quested materials are reproduced. public interest, to:
(d) In instances where a requester has pre- (a) Representatives of the news media for
viously failed to pay a fee, an agency may re- dissemination to the general public.
quire the requester to pay the full amount (b) Agencies of State and local govern-
owed, plus any applicable interest as pro- ments carrying on a function related to that
vided in section 9 of this appendix, as well as of the Department when it will help to ac-
the full estimated fee associated with any complish an objective of the Department.
new request before the agency begins to (c) Cooperators and others furthering agri-
process that new or subsequent request. cultural programs. Generally, only one print
of each photograph should be provided free.
Section 9. Interest charges.
Section 14. Loans.
On requests that result in fees being as-
Aerial photographic film negatives or re-
sessed, agencies may begin levying interest
productions may not be loaned outside the
charges on an upaid bill starting on the 31st Federal Government.
day following the day on which the billing
was sent. Interest will be at the rate pre- Section 15. Sales of positive prints under
scribed in 31 U.S.C. 3717, and will accrue from government contracts.
the date of the billing.
The annual contract for furnishing single
Section 10. Effect of the Debt Collection Act on and double frame slide film negatives and
positive prints to agencies of the Depart-
fees.
ment, County Extension Agents, and others
In attempting to collect fees levied under cooperating with the Department, carries a
the FOIA, agencies shall abide by the provi- stipulation that the successful bidder must
sions of 31 U.S.C. 3701, 3711–3720A, in dis- agree to furnish slide film positive prints to
closing information to consumer reporting such persons, organizations, and associations
agencies and in the use of collection agen- as may be authorized by the Department to
cies, where appropriate, to encourage pay- purchase them.
ment. Section 16. Procedure for handling orders.
Section 11. Photographic and digital reproduc- In order to expedite handling, all orders
tions of microfilm, aerial imagery, and should contain adequate identifying infor-
maps. mation. Agencies furnishing aerial photo-
graphic reproductions require that all such
Microfilm, aerial imagery, and maps that orders identify the photographs. Each agen-
have been obtained in connection with the cy has its own procedure and order forms.
authorized work of this Department may be
sold at the estimated cost of furnishing re- Section 17. Reproduction prices.
productions of these records, using photo- The prices for reproductions listed in this
graphic, digital, or other methods of repro- section are for the most generally requested
duction as prescribed in this appendix. items.
(a) National Agricultural Library. The fol-
Section 12. Agencies which furnish lowing prices are applicable to National Ag-
photographic reproductions. ricultural Library items only: Reproduction
(a) Aerial Photographic reproductions. The of electrostatic, microfilm, and microfiche
following agency of the Department fur- copy—$5.00 for the first 10 pages or fraction
nishes aerial photographic reproductions: thereof, and $3.00 for each additional 10 pages
Farm Service Agency (FSA), Aerial Pho- or fraction thereof. Duplication of NAL-
owned microfilm—$10.00 per reel. Duplica-
tography Field Office (APFO), USDA, 2222
tion of NAL-owned microfiche—$5.00 for the
West 2300 South, Salt Lake City, Utah 84119–
first fiche, and $0.50 for each additional fiche.
2020. Charges for manual and automated data base
(b) Other photographic reproductions. Other searches for bibliographic or other research
types of reproductions may be obtained from information will be made in accordance with
the following agency of the Department: section 4, paragraphs (c)-(e) of this appendix.
National Agricultural Library, Agricul- The contract rate charged by the commer-
pmangrum on DSK3VPTVN1PROD with CFR

tural Research Service, USDA, Office of the cial source to the National Agricultrual Li-
Deputy Director, Technical Information Sys- brary for computer services is available at
tems, Room 200, NAL Building, Beltsville, the National Agricultural Library, Agricul-
MD 20705. tural Research Service, USDA, Document

21

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00031 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.26 7 CFR Subtitle A (1–1–12 Edition)
Delivery Services Branch, 10301 Baltimore Size Price
Boulevard, Beltsville, Maryland 20705–2351
(301–504–6503). Microfilm (Photo Indexes): Aperture Cards ............. 10.00
(b) General photographic reproductions. Min- Microfilm (Photo Indexes): Microfiche ..................... 10.00
imum charge $1 per order. An extra charge
Color Negative Reproductions
may be necessary for excessive laboratory
time caused by any special instructions from 10×10 Paper Quantities:
the purchaser. 1–50 .................................................................. $7.00
51–1000 ............................................................ 5.00
Class of work and unit Price 1001 & Over ..................................................... 2.50
10×10 Film Positive ................................................. 33.00
1. Black and white line negatives: 20×20 Paper ............................................................ 40.00
4 by 5 (each ......................................................... $6.00 24×24 Paper ............................................................ 55.00
8 by 10 (each) ...................................................... 8.50 38×38 Paper ............................................................ 70.00
11 by 14 (each) .................................................... 11.00
2. Black and white continuous tone negatives: Color Infrared Positive Reproductions
4 by 5 (each) ........................................................ 8.50
8 by 10 (each) ...................................................... 11.00 10×10 Paper ............................................................ $12.00
3. Black and white enlargements: 8 by 10 and small- 10×10 Film Positive ................................................. 15.00
er (each) ................................................................... 6.50 10×10 Film Positive AT ........................................... 15.00
11 by 14 (each) .................................................... 11.00 10×10 Film Positive Scan ........................................ 20.00
Larger sizes and quantities .................................. (1) 20×20 Paper ............................................................ 32.00
4. Black and white slides: 24×24 Paper ............................................................ 40.00
2×2 cardboard mounted (from copy negative) 38×38 Paper ............................................................ 70.00
(each) ................................................................ 4.00
Blue ozalid slides (each) ...................................... 5.00
5. Color slides: (2×2 cardboard mounted): (d) [Reserved]
Duplicate color slides: (e) Special needs. For special needs not cov-
Display quality (each) (Display color slides ered elsewhere in this section, persons desir-
are slides copied from 35mm color slides ing aerial photographic reproductions should
only) ........................................................... .65 contact the aerial photography coordinator,
Repro quality (each) ...................................... (1) Farm Service Agency (FSA), Aerial Photog-
Original color slides (from flat copy) (each) .. 6.50 raphy Field Office, USDA-FSA, 2222 West
6. Color enlargements and transparencies: 4 by 5
and larger ................................................................. (1)
2300 South, P.O. Box 30010, Salt Lake City,
7. Slide sets: Utah 84125.
1 to 50 frames ...................................................... 14.50 (f) Audio and videotape reproductions. For
51 to 60 frames .................................................... 16.50 reproductions of audio-videotapes, request-
61 to 75 frames .................................................... 18.50 ers must supply their own recording tape,
76 to 95 frames .................................................... 21.50 and will be assessed a fee of $25.00 an hour for
96 to 105 frames .................................................. 23.00 copying work requested. There is a one-hour
106 to 130 frames (Prices include printed nar-
rative guide) ...................................................... 26.50
minimum charge. Payment is required at the
8. Cassettes: (for the corresponding slide sets time video or audiotapes are accepted by the
above) ...................................................................... 3.00 requester.
1 By quotation. [52 FR 49386, Dec. 31, 1987, as amended at 62
FR 33980, June 24, 1997; 64 FR 3395, Jan. 22,
(c) General aerial photographic reproductions.
1999]
The prices for various types of aerial photo-
graphic reproductions are set forth in this
paragraph. Size measurements refer to the Subpart B—Departmental
approximate size in inches of the paper re- Proceedings
quired to produce the reproduction.
§ 1.26 Representation before the De-
Size Price
partment of Agriculture.
Black and White Reproductions (a) Applicability. This section applies
10×10 Paper ............................................................ $5.00 to all hearings and other proceedings
10×10 Film Positive ................................................. 10.00 before the Department of Agriculture,
10×10 Film Positive AT ........................................... 10.00 except to the extent that any other
10×10 Film Positive Scan ........................................ 15.00
10×10 Film Duplicate Negative ............................... 3.00
regulation of the Department may spe-
10×10 Film Internegative ......................................... 4.50 cifically make this section, or any part
12×12 Paper ............................................................ 12.00 of this section, inapplicable as to par-
17×17 Paper ............................................................ 13.00 ticular hearings or other proceedings.
17×17 Film Positive ................................................. 25.00
24×24 Paper ............................................................ 16.00 (b) Administrative provisions. (1) In any
24×24 Film Positive ................................................. 40.00 hearing or other proceeding before the
Department of Agriculture, the parties
pmangrum on DSK3VPTVN1PROD with CFR

38×38 Paper ............................................................ 50.00


38×38 Film Positive ................................................. 55.00 may appear in person or by counsel or
20×24 Paper Photo Index ....................................... 20.00
Paper Line Index ..................................................... 15.00 other representative. Persons who ap-
Mylar Line Index ...................................................... 35.00 pear as counsel or in a representative

22

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00032 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.27

capacity in any hearing or proceeding (3) Advance notices of proposed rule-


must conform to the standards of eth- making; and
ical conduct required of practitioners (4) Any other published notice that
before the U.S. District Court for the solicits, or affords interested members
District of Columbia, and to any appli- of the public an opportunity to submit,
cable standards of ethical conduct es- written views with respect to any pro-
tablished by statutes, executive orders posed action relating to any program
and regulations. administered in the Department re-
(2) Whenever the Secretary finds, gardless of the fact that the issuance of
after notice and opportunity for hear- a rule may not be contemplated.
ing, that a person who is acting or has (b) Each notice identified in para-
acted as counsel or representative in graph (a) of this section shall indicate
any hearing or other proceeding before the procedure to be followed with re-
the Department has not conformed to
spect to the notice, unless the proce-
any such standards of ethical conduct,
dure is prescribed by statute or by pub-
the Secretary may order that such per-
lished rule of the Department. Each no-
son be precluded from acting as counsel
tice shall contain a statement that ad-
or representative in any hearing or
vises the public of the policy regarding
other proceeding before the Depart-
ment for such period of time as the the availability of written submissions
Secretary deems warranted. Whenever by indicating whether paragraph (c),
the Secretary has probable cause to be- (d), or (e) of this section is applicable
lieve that any person who is acting or to written submissions made pursuant
has acted as counsel or representative to the notice.
in any such hearing or other pro- (c) All written submissions made pur-
ceeding has not conformed to any such suant to the notice shall be made avail-
standards of ethical conduct, the Sec- able for public inspection at times and
retary may, by written notice to such places and in a manner convenient to
person, suspend the person from acting the public business.
as such a counsel or representative (d)(1) Any written submission, pursu-
pending completion of the procedures ant to a notice, may be held confiden-
specified in the preceding sentence. tial if the person making the submis-
(3) No employee or former employee sion requests that the submission be
of the Department shall be permitted held confidential, the person making
to represent any person before the De- the submission has shown that the
partment in connection with any par- written submission may be withheld
ticular matter as to which by reason of under the Freedom of Information Act,
employment with the Department the and the Department official authorized
employee or former employee acquired to issue the notice determines that the
personal knowledge of such a nature submission may be withheld under the
that it would be improper, unethical, Freedom of Information Act.
or contrary to the public interest for (2) If a request is made in accordance
the employee or former employee so to with paragraph (d)(1) of this section for
act. confidential treatment of a written
(4) This section shall not be con- submission, the person making the re-
strued to prevent an employee or quest shall be informed promptly in
former employee of the Department the event the request is denied and af-
from appearing as a witness in any forded an opportunity to withdraw the
hearing or other proceeding before the submission.
Department. (3) If a determination is made to
(18 U.S.C. 203, 205, 207) grant a request for confidential treat-
[32 FR 5458, Apr. 1, 1967, as amended at 60 FR ment under paragraph (d)(1) of this sec-
66480, Dec. 22, 1995] tion, a statement of the specific basis
for the determination that will not be
§ 1.27 Rulemaking and other notice susceptible of identifying the person
procedures. making the request will be made avail-
pmangrum on DSK3VPTVN1PROD with CFR

(a) This section shall apply to: able for public inspection.
(1) Notices of proposed rulemaking; (e) If the subject of the notice is such
(2) Interim final rules; that meaningful submissions cannot be

23

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00033 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.28 7 CFR Subtitle A (1–1–12 Edition)

expected unless they disclose informa- (2) The Administrator, Grain Inspec-
tion that may be withheld under the tion, Packers and Stockyards Adminis-
Freedom of Information Act, the notice tration, may delegate the authority to
shall so indicate and contain a state- issue subpoenas in connection with in-
ment that written submissions pursu- vestigations being conducted under the
ant to the notice will be treated as con- Packers and Stockyards Act (7 U.S.C.
fidential and withheld under the Free- 181–229), to the Deputy Administrator,
dom of Information Act. Provided, That Packers and Stockyards Programs.
the policy regarding availability of (3) In the case of a subpoena issued
written submissions set forth in this under the Animal Health Protection
paragraph may only be used with the Act (7 U.S.C. 8301–8317), Plant Protec-
prior approval of the Secretary, or the tion Act (7 U.S.C. 7701–7772), or Title V
Under Secretary or Assistant Sec- of the Agricultural Risk Protection
retary that administers the program Act of 2000 (7 U.S.C. 2279e–2279f), the
that is the subject of the notice. subpoena will be reviewed for legal suf-
[60 FR 66480, Dec. 22, 1995] ficiency by the Office of the General
Counsel, USDA.
§ 1.28 Petitions. (b) Service of subpoena. (1) A subpoena
issued pursuant to this section may be
Petitions by interested persons in ac-
served by:
cordance with 5 U.S.C. 553(e) for the
(i) A U.S. Marshal or Deputy Mar-
issuance, amendment or repeal of a
shal,
rule may be filed with the official that
(ii) Any other person who is not less
issued or is authorized to issue the
than 18 years of age, or
rule. All such petitions will be given
(iii) Certified or registered mailing of
prompt consideration and petitioners
a copy of the subpoena addressed to the
will be notified promptly of the dis-
person to be served at his, her, or its
position made of their petitions.
last known residence or principal place
[11 FR 177A–233, Sept. 11, 1946. Redesignated of business or residence.
at 13 FR 6703, Nov. 16, 1948, as amended at 60 (2) Proof of service may be made by
FR 66481, Dec. 22, 1995] the return of service on the subpoena
§ 1.29 Subpoenas relating to investiga- by the U.S. Marshal, or Deputy Mar-
tions under statutes administered shal; or, if served by an individual
by the Secretary of Agriculture. other than a U.S. Marshal or Deputy
Marshal, by an affidavit or certifi-
(a) Issuance of subpoena. (1) When the
cation of such person stating that he or
Secretary is authorized by statute to
issue a subpoena in connection with an she personally served a copy of the sub-
investigation being conducted by the poena upon the person named in the
Department, the attendance of a wit- subpoena; or, if service was by certified
ness and the production of evidence re- or registered mail, by the signed Postal
lating to the investigation may be re- Service receipt.
quired by subpoena at any designated (3) In making personal service, the
place, including the witness’ place of person making service shall leave a
business. Upon request of any rep- copy of the subpoena with the person
resentative of the Secretary involved subpoenaed; and the original, bearing
in connection with the investigation, or accompanied by the required proof
the subpoena may be issued by the Sec- of service, shall be returned to the offi-
retary, the Inspector General, or any cial who issued the subpoena.
Department official authorized pursu- [39 FR 15277, May 2, 1974, as amended at 40
ant to part 2 of this title to administer FR 58281, Dec. 16, 1975; 42 FR 65131, Dec. 30,
the program to which the subpoena re- 1977; 43 FR 12673, Mar. 27, 1978; 60 FR 66481,
lates, if the official who is to issue the Dec. 22, 1995; 66 FR 36907, July 16, 2001; 67 FR
subpoena is satisfied as to the reason- 70674, Nov. 26, 2002]
ableness of the grounds, necessity, and
scope of the subpoena. Except as pro- Subpart C—Judicial Proceedings
pmangrum on DSK3VPTVN1PROD with CFR

vided in paragraph (a)(2) of this sec-


tion, the authority to issue subpoenas § 1.41 Service of process.
may not be delegated or redelegated by Process in any suit brought in Wash-
the head of an agency. ington, District of Columbia, against

24

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00034 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.72

the United States or any officer of the Damage or Injury, may be obtained
U.S. Department of Agriculture in any from the agency within USDA that em-
matter involving the activities of this ploys the employee who allegedly com-
Department, shall be served on the mitted the negligent or wrongful act or
General Counsel of the Department. A omission. The completed claim form,
U.S. Marshal or other process server together with appropriate evidence and
attempting to serve process in such a information, as specified in 28 CFR 14.4,
suit on any officer of the Department shall be filed with the agency from
shall be referred to the Office of the which it was obtained.
General Counsel, in order that service (c) Determination of claims—(1) Delega-
of process may be made. In the event tion of authority to determine claims. The
an officer of the Department of Agri- General Counsel, and such employees
culture is served with process in such a of the Office of the General Counsel as
suit, the officer shall immediately no- may be designated by the General
tify the General Counsel. Any sub- Counsel, are hereby authorized to con-
poena, summons, or other compulsory sider, ascertain, adjust, determine,
process requiring an officer or em- compromise, and settle claims pursu-
ployee to give testimony, or to produce ant to the FTCA, as amended, and the
or disclose any record or material of regulations contained in 28 CFR part 14
the U.S. Department of Agriculture, and in this section.
shall be served on the officer or em- (2) Disallowance of claims. If a claim is
ployee of the U.S. Department of Agri- denied, the General Counsel, or his or
culture named in the subpoena, sum- her designee, shall notify the claimant,
mons, or other compulsory process. or his or her duly authorized agent or
[19 FR 4052, July 3, 1954, as amended at 33 FR legal representative.
10273, July 18, 1968; 43 FR 6202, Feb. 14, 1978;
60 FR 66481, Dec. 22, 1995] [61 FR 57577, Nov. 7, 1996]

Subpart D—Claims Subpart E—Cooperative


Production of Television Films
§ 1.51 Claims based on negligence,
wrongful act or omission.
SOURCE: 22 FR 2904, Apr. 25, 1957, unless
(a) Authority of the Department. Under otherwise noted.
the provisions of the Federal Tort
Claims Act (FTCA), as amended, 28 § 1.71 Purpose.
U.S.C. 2671–2680, and the regulations
issued by the Department of Justice This subpart establishes procedures
(DOJ) contained in 28 CFR part 14, the for developing special working rela-
United States Department of Agri- tionships with the Department of Agri-
culture (USDA) may, subject to the culture requested by producers of films
provisions of the FTCA and DOJ regu- for television use. These procedures are
lations, consider, ascertain, adjust, de- designed to guide Department employ-
termine, compromise, and settle claims ees and producers of commercial tele-
for money damages against the United vision pictures in entering into such
States for personal injury, death, or arrangements.
property loss or damage caused by the
§ 1.72 Policy.
negligent or wrongful act or omission
of any employee of USDA while acting (a) General. It is a basic policy of the
within the scope of his or her office or Department of Agriculture to make in-
employment, under circumstances formation freely available to the pub-
where the United States, if it were a lic.
private person, would be liable, in ac- (b) Cooperation with television film pro-
cordance with the law of the place ducers. The Department recognizes that
where the act or omission occurred. its people and programs constitute a
(b) Procedure for filing claims. Claims rich source of materials on public serv-
pmangrum on DSK3VPTVN1PROD with CFR

must be presented by the claimant, or ices, often dramatic and interesting for
by his or her duly authorized agent or their human values, which are suitable
legal representative as specified in 28 for production of films for television
CFR 14.3. Standard Form 95, Claim for showings. The Department welcomes

25

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00035 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.73 7 CFR Subtitle A (1–1–12 Edition)

the interest of television film pro- technical advisors and similar aids will
ducers in its activities and maintains be covered in the agreement, which
an ‘‘open door’’ policy with respect to shall delineate the general stipulations
the availability of factual information listed in § 1.75.
to such producers, as it does to rep-
resentatives of other media. As its re- § 1.75 General stipulations.
sources will permit, the Department In requesting special working ar-
will work with producers at their re- rangements the producer must agree to
quest, to assure technical accuracy of the following stipulations:
scripts and story treatments. (a) The producer must show that he
(c) Special working relationships. In has legal authority to the literary
those instances where a producer of property concerned.
films for television seeks special De- (b) The producer must show access to
partment participation such as the use a distribution channel recognized by
of official insignia of the Department, the motion picture or television indus-
or who request special assistance such try. In lieu of complete distribution
as the services of technical advisors, plans for a television series, a producer
use of Government equipment and must produce satisfactory evidence of
similar aids which require a material financial responsibility (showing finan-
expenditure of public funds, and where cial resources adequate for the
the proposed film will further the pub- defrayment of costs for the proposed
lic service of the Department, the De- undertaking).
partment will consider entering into a (c) The commercial advertising of
special working relationship with such any show produced, using oral or writ-
producer. ten rights granted to the producer,
(d) News film reporting exempted. Tele- shall not indicate any endorsement, ei-
vision and news film reporting of De- ther direct or implied, by the U.S. De-
partment activities is not covered by partment of Agriculture or its agen-
this subpart. cies, of the sponsor’s product.
(d) Commercial sponsorship shall be
§ 1.73 Responsibility. only by a person, firm, or corporation
The Director of Information or his acceptable under the terms of the 1954
designee will be the authority for the Television Code of the National Asso-
approval of special working relation- ciation of Radio and Television Broad-
ships on the part of the Department of casters, and all subsequent amend-
Agriculture and its agencies. The Di- ments thereto. Political sponsorship
rector or his designee shall not commit shall not be permitted.
the Department to such special ar- (e) That no production costs shall be
rangements without proper concur- chargeable to the U.S. Department of
rence and coordination with interested Agriculture.
agencies and approval by the appro- (f) That such cooperation will not
priate Assistant Secretary or Group interfere with the conduct of Depart-
Director. ment programs.
(g) All damages, losses and personal
§ 1.74 Basis for special working rela- liability incurred by producer will be
tionships. his responsibility.
The Department and its agencies (h) That mutual understanding and
may lend special assistance on tele- agreement will be reached upon story,
vision films when it is clearly evident script and film treatment with the De-
that public interests are served. Where partment before film production is
special assistance is sought, an indi- begun.
vidual cooperative agreement will be
drawn up between the Department with § 1.76 Department cooperation.
the Director of Information as its When the producer agrees to meet
agent, and the producer. Details on the above stipulations to the satisfac-
pmangrum on DSK3VPTVN1PROD with CFR

such assistance as reviewing stories tion of the Director of Information, the


and scripts, loan of material, arrange- U.S. Department of Agriculture and its
ments for locations, use of official mo- agencies will be available for consulta-
tion picture footage, assignment of tion on story ideas and give guidance

26

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00036 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.110

through the services of a technical ad- assist the producer in determining his
visor to insure technical authenticity. course of action.
Equipment, locations, and personnel (b) Request for special working arrange-
will be available to the extent that ments. Once the decision is made to go
such availability is concurrent with ahead with an agreement, either the
normal and usual conduct of the oper- interested agency or the producer will
ations of the Department. The Depart- make a written submission to the Di-
ment will check and work with the co- rector of Information, requesting that
operators to arrange shooting sched- special working arrangements be es-
ules in order to avoid interferences tablished.
with working schedules. (1) In submitting scripts prior or sub-
sequent to executing a written agree-
§ 1.77 Assignment of priorities. ment under a special working relation-
(a) Authority. (1) The Director of In- ship four (4) copies of the completed
formation or his designee will make as- script shall be submitted to the Direc-
signment of priorities for the U.S. De- tor of Information or his designee,
partment of Agriculture for a tele- along with a statement of specific re-
vision film company’s and/or individual quirements and the anticipated produc-
producer’s story treatment of the sub- tion schedule.
ject matter, but no such priority shall (2) No script will be used under a spe-
limit use of the subject matter itself. cial working relationship without the
(2) A priority will be given in writing specific approval of the Director of In-
upon acceptance in writing by the pro- formation.
ducer of the stipulations in § 1.75(b). (3) Upon approval of the script, the
The U.S. Department of Agriculture agency of the Department concerned
will hold the producer’s treatment of with subject matter will endeavor to
the story material in confidence until arrange for the desired assistance with
the producer has made a public release the stipulations of this policy.
pertaining to the subject.
(b) Time and scope. A priority will be § 1.79 Credits.
given on the producer’s story treat- On films on which the Department or
ment for an agreed upon period of time. one of its agencies provides special as-
Requests for cooperation with similar sistance it shall be mutually agreed by
or conflicting ideas and backgrounds the producer and the Director of Infor-
will be considered only after holder of mation what credits shall be given to
the first priority has used the agreed the Department, and the form these
upon time to develop the materials. credits will take.
(1) Details on priorities will be writ-
ten into the agreements. Subpart G—Privacy Act
(2) The Director of Information will
retain the right to cancel priorities
Regulations
when the producer at any stage vio-
lates the provisions of the regulations AUTHORITY: 5 U.S.C. 301 and 552a; 31 U.S.C.
or of a particular agreement, or when 9701.
public interest is no longer served. SOURCE: 40 FR 39519, Aug. 28, 1975, unless
(3) No priority will be canceled until otherwise noted.
the producer has had an opportunity to
appear before the Secretary of Agri- § 1.110 Purpose and scope.
culture or his designee. This subpart contains the regulations
of the U.S. Department of Agriculture
§ 1.78 Development of special working (USDA) implementing the Privacy Act
relationships. of 1974 (5 U.S.C. 552a). This subpart sets
(a) Preliminary. Prior to the sub- forth the basic responsibilities of each
mittal of a script or the rendering of an agency of USDA with regard to USDA’s
pmangrum on DSK3VPTVN1PROD with CFR

agreement, assistance may be given by compliance with the requirements of


the Department or one of its agencies the Privacy Act, and offers guidance to
in outlining story plans, visits to field members of the public who wish to ex-
points, and other incidentals that will ercise any of the rights established by

27

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00037 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.111 7 CFR Subtitle A (1–1–12 Edition)

the Privacy Act with regard to records or her, and the agency has granted that
maintained by an agency of USDA. request, the requester shall present
[40 FR 39519, Aug. 28, 1975, as amended at 62 himself or herself at the time and place
FR 33981, June 24, 1997] specified in the agency’s response or
arrange another, mutually convenient,
§ 1.111 Definitions. time with the appropriate agency offi-
For purposes of this subpart the cial.
terms individual, maintain, record, sys- (b) Prior to inspection of the records,
tem of records, statistical record, and rou- the requester shall present sufficient
tine use shall have the meanings set identification (e.g., driver’s license,
forth in 5 U.S.C. 552a(a). The term employee identification card, social se-
agency shall mean an agency of USDA, curity card, credit cards) to establish
unless otherwise indicated. that the requester is the individual to
whom the records pertain. If the re-
§ 1.112 Procedures for requests per- quester is unable to provide such iden-
taining to individual records in a tification, the requester shall complete
record system.
and sign in the presence of an agency
(a) Any individual who wishes to be official a signed statement asserting
notified if a system of records main- the requester’s identity and stipulating
tained by an agency contains any that the requester understands that
record pertaining to him or her, or to knowingly or willfully seeking or ob-
request access to such records, shall taining access to records about another
submit a written request in accordance individual under false pretenses is a
with the instructions set forth in the misdemeanor punishable by fine up to
system notice for that system of $5,000. No identification shall be re-
records. This request shall include: quired, however, if the records are re-
(1) The name of the individual mak- quired by 5 U.S.C. 552 to be released.
ing the request;
(c) Any individual who has requested
(2) The name of the system of records
(as set forth in the system notice to access to records about himself or her-
which the request relates); self by personal inspection, and who
(3) Any other information specified in wishes to have another person or per-
the system notice; and sons accompany the requester during
(4) When the request is one for ac- this inspection, shall submit a written
cess, a statement as to whether the re- statement authorizing disclosure of the
quester desires to make a personal in- record in the presence of such other
spection of the records, or be supplied person or persons.
with copies by mail. (d) Any individual having made a per-
(b) Any individual whose request sonal inspection of records pertaining
under paragraph (a) of this section is to the requester may request the agen-
denied may appeal that denial to the cy to provide the requester copies of
head of the agency which maintains those records or any portion of those
the system of records to which the re- records. Each agency shall grant such
quest relates. requests but may charge fees in accord-
(c) In the event that an appeal under ance with § 1.120.
paragraph (b) of this section is denied, (e) If an individual submitting a re-
the requester may bring a civil action quest for access under § 1.112 wishes to
in federal district court to seek review be supplied with copies of the records
of the denial. by mail, the requester shall include
[40 FR 39519, Aug. 28, 1975, as amended at 62 with his or her request sufficient data
FR 33981, June 24, 1997] for the agency to verify the requester’s
identity. If the sensitivity of the
§ 1.113 Times, places, and require- records warrant it, however, the agen-
ments for identification of individ- cy to which the request is directed may
uals making requests. require the requester to submit a
pmangrum on DSK3VPTVN1PROD with CFR

(a) If an individual submitting a re- signed, notarized statement indicating


quest for access under § 1.112 has asked that the requester is the individual to
that an agency authorize a personal in- whom the records pertain and stipu-
spection of records pertaining to him lating the requester understands that

28

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00038 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.116

knowingly or willfully seeking or ob- less that system is exempted from the
taining access to records about another requirements of 5 U.S.C. 552a(d) in
individual under false pretenses is a § 1.123.
misdemeanor punishable by fine up to (d) If any agency receives a request
$5,000. No identification shall be re- pursuant to § 1.112(a) for access to
quired, however, if the records are re- records in a system of records it main-
quired by 5 U.S.C. 552 to be released. If tains which is so exempted, the system
the agency to which this request is di- manager shall determine if the exemp-
rected determines to grant the re- tion is to be asserted. If the system
quested access, it may charge fees in manager determines to deny the re-
accordance with § 1.120 before making quest, the system manager shall in-
the necessary copies. form the requester of that determina-
[40 FR 39519, Aug. 28, 1975, as amended at 62
tion, the reason for the determination,
FR 33981, June 24, 1997] and the title and address of the agency
head to whom the denial can be ap-
§ 1.114 Disclosure of requested infor- pealed.
mation to individuals. (e) If the head of an agency deter-
(a) Any agency which receives a re- mines that an appeal pursuant to
quest or appeal under § 1.112 should ac- § 1.112(b) is to be denied, the head of the
knowledge the request or appeal within agency shall inform the requester of
10 days of its receipt (excluding Satur- that determination, the reason for the
days, Sundays, and legal public holi- determination, and the requester’s
days). Wherever practicable, the ac- right under 5 U.S.C. 552a(g) to seek ju-
knowledgment should indicate whether dicial review of the denial in Federal
or not access will be granted and, if so, district court.
when and where. When access is to be (f) Nothing in 5 U.S.C. 552a or this
granted, the agency should provide the subpart shall allow an individual ac-
access within 30 days of receipt of the cess to any information compiled in
request or appeal (excluding Saturdays, reasonable anticipation of a civil ac-
Sundays and legal public holidays) un- tion or proceeding.
less, for good cause shown, it is unable [40 FR 39519, Aug. 28, 1975, as amended at 62
to do so. If the agency is unable to FR 33981, June 24, 1997]
meet this deadline, it shall inform the
requester of this fact, the reasons for § 1.115 Special procedures: Medical
its inability to do so, and an estimate records.
of the date on which access will be In the event an agency receives a re-
granted. quest pursuant to § 1.112 for access to
(b) Nothing in 5 U.S.C. 552a or this medical records (including psycho-
subpart shall be interpreted to require logical records) whose disclosure it de-
that an individual making a request termines would be harmful to the indi-
under § 1.112 be granted access to the vidual to whom they relate, it may
physical record itself. The form in refuse to disclose the records directly
which a record is kept (e.g., on mag- to the requester but shall transmit
netic tape), or the content of the them to a doctor designated by that in-
record (e.g., a record indexed under the dividual.
name of the requester may contain
records which are not about the re- § 1.116 Request for correction or
quester) may require that the record be amendment to record.
edited or translated in some manner. (a) Any individual who wishes to re-
Neither of these procedures may be uti- quest correction or amendment of any
lized, however, to withhold information record pertaining to him or her con-
in a record about the requester. tained in a system of records main-
(c) No agency shall deny any request tained by an agency shall submit that
under § 1.112 for information concerning request in writing in accordance with
the existence of records about the re- the instructions set forth in the system
pmangrum on DSK3VPTVN1PROD with CFR

quester in any system of records it notice for that system of records. This
maintains, or deny any request for ac- request shall include:
cess to records about the requester in (1) The name of the individual mak-
any system of records it maintains, un- ing the request;

29

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00039 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.117 7 CFR Subtitle A (1–1–12 Edition)

(2) The name of the system of records Sundays and legal public holidays), it
(as set forth in the system notice to should inform the requester of that
which the request relates); fact, the reasons for the inability to
(3) A description of the nature (e.g., comply with paragraphs (a)(1) or (a)(2)
modification, addition or deletion) and of this section within 30 days, and the
substance of the correction or amend- approximate date on which a deter-
ment requested; and mination will be reached.
(4) Any other information specified in
(c) In conducting its review of a re-
the system notice.
quest for correction or amendment,
(b) Any individual submitting a re-
quest pursuant to paragraph (a) of this each agency shall be guided by the re-
section shall include sufficient infor- quirements of 5 U.S.C. 552a(e)(1) and
mation in support of that request to (5).
allow the agency to which it is ad- (d) If an agency determines to grant
dressed to apply the standards set forth all or any portion of a request for cor-
in 5 U.S.C. 552a(e) (1) and (5). rection or amendment, it shall:
(c) Any individual whose request (1) Advise the individual of that de-
under paragraph (a) of this section is termination;
denied may appeal that denial to the (2) Make the requested correction or
head of the agency which maintains amendment; and
the system of records to which the re- (3) Inform any person or agency out-
quest relates. side USDA to whom the record has
(d) In the event that an appeal under been disclosed, if an accounting of that
paragraph (c) of this section is denied, disclosure is maintained in accordance
the requester may bring a civil action with 5 U.S.C. 552a(c), of the occurrence
in federal district court to seek review
and substance of the correction or
of the denial.
amendments.
[40 FR 39519, Aug. 28, 1975, as amended at 62 (e) If an agency determines not to
FR 33981, June 24, 1997] grant all or any portion of a request for
§ 1.117 Agency review of request for correction or amendment, it shall:
correction or amendment of record. (1) Comply with paragraph (d) of this
(a) Any agency which receives a re- section with regard to any correction
quest for amendment or correction or amendment which is made;
under § 1.116 shall acknowledge that re- (2) Advise the requester of its deter-
quest within 10 days of its receipt (ex- mination and the reasons for the deter-
cluding Saturdays, Sundays and legal mination not to grant all or a portion
public holidays). The agency shall also of the request for a correction or
promptly, either: amendment;
(1) Make any correction, deletion or (3) Inform the requester that he or
addition with regard to any portion of she may appeal this determination to
a record which the requester believes is the head of the agency which main-
not accurate, relevant, timely or com- tains the system of records; and
plete; or (4) Describe the procedures for mak-
(2) Inform the requester of its refusal ing such an appeal, including the title
to amend the record in accordance with and business address of the official to
the request; the reason for the refusal; whom the appeal is to be addressed.
the procedures whereby the requester
(f) In the event that an agency re-
can appeal the refusal to the head of
ceives a notice of correction or amend-
the agency; and the title and business
ment to information in a record con-
address of that official. If the agency
informs the requester of its determina- tained in a system of records which it
tion within the 10-day deadline, a sepa- maintains, it shall comply with para-
rate acknowledgement is not required. graphs (d)(2) and (3) of this section in
(b) If an agency is unable to comply the same manner as if it had made the
correction or amendment itself.
pmangrum on DSK3VPTVN1PROD with CFR

with either paragraphs (a)(1) or (2) of


this section within 30 days of its re- [40 FR 39519, Aug. 28, 1975, as amended at 62
ceipt of a request for correction or FR 33981, June 24, 1997]
amendment, (excluding Saturdays,

30

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00040 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.121

§ 1.118 Appeal of initial adverse agen- to whom the record is subsequently


cy determination on correction or disclosed, together with (if the agency
amendment. deems it appropriate) a brief statement
(a) Any individual whose request for by the agency summarizing its reasons
correction or amendment under § 1.116 for refusing to amend the record;
is denied, and who wishes to appeal (5) That prior recipients of the dis-
that denial, shall address such appeal puted record will be provided with a
to the head of the agency which main- copy of the statement of disagreement,
tains the system of records to which together with (if the agency deems it
the request relates, in accordance with appropriate) a brief statement of the
the procedures set forth in the agency’s agency’s reasons for refusing to amend
initial denial of the request. the record, to the extent that an ac-
(b) The head of each agency shall counting of disclosures is maintained
make a final determination with re- under 5 U.S.C. 552a(c); and
gard to an appeal submitted under (6) Of the requester’s right to seek ju-
paragraph (a) of this section not later dicial review of the agency’s deter-
than 30 days (excluding Saturdays, mination in accordance with 5 U.S.C.
Sundays, and legal public holidays) 552a(g). The agency shall insure that
from the date on which the individual any statements of disagreement sub-
requests a review, unless, for good mitted by a requester are handled in
cause shown, the head of the agency accordance with paragraphs (e)(4) and
extends this 30-day period and so noti- (5) of this section.
fies the requester, together with an es- [40 FR 39519, Aug. 28, 1975, as amended at 62
timate of the date on which a final de- FR 33981, June 24, 1997]
termination will be made. Such exten-
sion should be utilized only in excep- § 1.119 Disclosure of record to person
other than the individual to whom
tional circumstances and should not it pertains.
normally exceed 30 days. The delega-
tion of authority set forth in this para- No agency shall disclose any record
graph may not be redelegated. which is contained in a system of
(c) In conducting a review of an ap- records it maintains, by any means of
peal submitted under paragraph (a) of communication to any person, or to
this section, the head of an agency another agency outside USDA, except
shall be guided by the requirements of pursuant to a written request by, or
5 U.S.C. 552a(e)(1) and (5). with the prior written consent of, the
(d) If the head of an agency deter- individual to whom the record per-
mines to grant all or any portion of an tains, unless the disclosure is author-
appeal submitted under paragraph (a) ized by one or more provisions of 5
of this section, the head of the agency U.S.C. 552a(b).
shall inform the requester and the
§ 1.120 Fees.
agency shall comply with the proce-
dures set forth in § 1.117(d)(2) and (d)(3). Any agency which provides copies of
(e) If the head of an agency deter- records pursuant to a request under
mines in accordance with paragraph (c) this subpart may charge fees for the di-
of this section not to grant all or any rect costs of producing such copies in
portion of an appeal submitted under accordance with appendix A to subpart
paragraph (a) of this section, the head A of this part. No agency, however,
of the agency shall inform the re- shall charge any fee for searches nec-
quester: essary to locate records. Nor shall an
(1) Of this determination and the rea- agency charge any fees for copies or
sons for the determination; searches, when the requester sought to
(2) Of the requester’s right to file a make a personal inspection but was
concise statement of the requester’s provided copies instead at the discre-
reasons for disagreeing with the agen- tion of the agency.
cy’s decision;
§ 1.121 Penalties.
pmangrum on DSK3VPTVN1PROD with CFR

(3) Of the procedures for filing such a


statement of disagreement; The criminal penalties which have
(4) That such statements of disagree- been established for violations of the
ments will be made available to anyone Privacy Act of 1974 are set forth in 5

31

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00041 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.122 7 CFR Subtitle A (1–1–12 Edition)

U.S.C. 552a(i). These penalties are ap- ANIMAL AND PLANT HEALTH INSPECTION
plicable to any officer or employee of SERVICE
an agency who commits any of the acts Plant Protection and Quarantine Program—
enumerated in 5 U.S.C. 552a(i). These Regulatory Actions, USDA/APHIS–1.
penalties also apply to contractors and Veterinary Services Programs—Records of
employees of such contractors who Accredited Veterinarians, USDA/APHIS–2.
enter into contracts with an agency of Veterinary Services Programs—Animal
USDA and who are considered to be Quarantine Regulatory Actions, USDA/
employees of the agency within the APHIS–3.
meaning of 5 U.S.C. 552a(m)(1). Veterinary Services Programs—Animal Wel-
fare and Horse Protection Regulatory Ac-
[40 FR 39519, Aug. 28, 1975, as amended at 62 tions, USDA/APHIS–4.
FR 33982, June 24, 1997]
FARMERS HOME ADMINISTRATION
§ 1.122 General exemptions. Credit Report File, USDA/FmHA–3.
Pursuant to 5 U.S.C. 552a(j), and for
the reasons set forth in 54 FR 11204– FEDERAL CROP INSURANCE CORPORATION
11206 (March 17, 1989), the systems of FCIC Compliance Review Cases, USDA/FCIC–
records (or portions of systems of 2.
records) maintained by agencies of
USDA identified in this section are ex- FEDERAL GRAIN INSPECTION SERVICE
empted from the provisions of 5 U.S.C. Investigations Undertaken by the Govern-
552a, except subsections (b), (c)(1) and ment Pursuant to the United States Grain
(2), (e)(4)(A) through (F), (e)(6), (7), (9), Standards Act of 1976, as amended, or the
(10), and (11), and (i). Agricultural Marketing Act of 1946, as
amended, USDA/FGIS–2.
Office of Inspector General
FOOD AND NUTRITION SERVICE
Informant and Undercover Agent Records,
USDA/OIG–2. Civil Rights Complaints and Investigations,
Investigative Files and Automated Inves- USDA/FNS–1.
tigative Indices System, USDA/OIG–3. Claims Against Food Stamp Recipients,
OIG Hotline Complaint Records, USDA/OIG– USDA/FNS–3.
4. Investigations of Fraud, Theft, or Other Un-
Consolidated Assignments, Personnel Track- lawful Activities of Individuals Involving
ing, and Administrative Information Net- Food Stamps, USDA/FNS–5.
work (CAPTAIN), USDA/OIG–5.
FOOD SAFETY AND INSPECTION SERVICE
[54 FR 39517, Sept. 27, 1989, as amended at 62
FR 33982, June 24, 1997; 62 FR 61209, Nov. 17, Meat and Poultry Inspection Program—
1997] Slaughter, Processing and Allied Indus-
tries Compliance Records System, USDA/
§ 1.123 Specific exemptions. FSIS–1.
Pursuant to 5 U.S.C. 552a(k), the sys- FOREST SERVICE
tems of records (or portions thereof)
maintained by agencies of USDA iden- Law Enforcement Investigation Records,
tified below are exempted from the pro- USDA/FS–33.
visions of 5 U.S.C. 552a (c)(3), (d), (e)(1), OFFICE OF THE GENERAL COUNSEL
(e)(4)(G), (H) and (I), and (f). The rea-
sons for exempting each system are set Regulatory Division
out in the notice for that system pub- Cases by the Department under the Federal
lished in the FEDERAL REGISTER. Meat Inspection Act, the Poultry Products
Inspection Act, and the voluntary inspec-
AGRICULTURAL MARKETING SERVICE
tion and certification provisions of the Ag-
AMS Office of Compliance Review Cases, ricultural Marketing Act of 1946, USDA/
USDA/AMS–11. OGC–6.
Cases by the Department under the Humane
AGRICULTURAL STABILIZATION AND Methods of Livestock Slaughter Law (i.e.,
CONSERVATION SERVICE the Act of August 27, 1958), USDA/OGC–7.
EEO Complaints and Discrimination Inves- Cases by the Department under the 28 Hour
pmangrum on DSK3VPTVN1PROD with CFR

tigation Reports, USDA/ASCS–12. Law, as amended, USDA/OGC–8.


Investigation and Audit Reports, USDA/ Cases by the Department under the various
ASCS–18. Animal Quarantine and related laws,
Producer Appeals, USDA/ASCS–21. USDA/OGC–9.

32

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00042 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA Pt. 1, Subpt. G, App. A
Cases by the Department under the various Court cases brought by the Government pur-
Plant Protection Quarantine and related suant to either the Naval Stores Act, or
laws, USDA/OGC–10. the Tobacco Seed and Plant Exportation
Cases by the Department under Horse Pro- Act, USDA/OGC–29.
tection Act of 1970, USDA/OGC–41. Court cases brought by the Government pur-
Cases by the Department under the Labora- suant to either the Peanut Statistics Act
tory Animal Welfare Act, USDA/OGC–42. or the Tobacco Statistics Act, USDA/OGC–
30.
Community Development Division Court cases brought by the Government pur-
Community Development Division Litiga- suant to either the Plant Variety Protec-
tion, USDA/OGC–11. tion Act or the Egg Products Inspection
Farmers Home Administration (FmHA) Gen- Act, USDA/OGC–31.
eral Case Files, USDA/OGC–12. Court cases brought by the Government pur-
suant to either the Produce Agency Act, or
Food and Nutrition Division the Process of Renovated Butter Provi-
sions of the Internal Revenue Code of 1954,
Claims by and against USDA under the Food
USDA/OGC–32.
Assistance Legislation, USDA/OGC–13.
Court cases brought by the Government pur-
Perishable Agricultural Commodities,
suant to either the United States Grain
USDA/OGC–14.
Standards Act or the Federal Seed Act,
Foreign Agriculture and Commodity USDA/OGC–33.
Stabilization Division Court cases brought by the Government pur-
suant to the Agricultural Fair Practices
Agricultural Stabilization and Conservation Act, USDA/OGC–34.
Service (ASCS), Foreign Agricultural Serv- Cases by and against the Department under
ice (FAS), and Commodity Credit Corpora- the Virus-Serum Toxin Act, USDA/OGC–44.
tion Cases, USDA/OGC–15.
Federal Crop Insurance Corporation (FCIC) Office of Inspector General
Cases, USDA/OGC–16.
Informant and Undercover Agent Records,
Administrative proceedings brought by the
USDA/OIG–2.
Department, court cases in which the gov-
Investigative Files and Automated Inves-
ernment is plaintiff and court cases in
tigative Indices System, USDA/OIG–3.
which the government is a defendant OIG Hotline Complaint Records, USDA/OIG–
brought pursuant to the United States 4.
Warehouse Act, USDA/OGC–43. Consolidated Assignments, Personnel Track-
Marketing Division ing, and Administrative Information Net-
work (CAPTAIN), USDA/OIG–5.
Administrative proceedings brought by the
Department pursuant to the Plant Variety Packers and Stockyards Division
Protection Act, the Federal Seed Act, or Packers and Stockyards Act, Administrative
the Agricultural Marketing Act of 1946, Cases, USDA/OGC–69.
USDA/OGC–18. Packers and Stockyards Act, Civil and
Cases brought by the Government pursuant Criminal Cases, USDA/OGC–70.
to the Cotton Futures provisions of the In-
ternal Revenue Code of 1954, USDA/OGC–22. Research and Operations Division
Court cases brought by the Government pur-
Personnel Irregularities, USDA/OGC–75.
suant to either the Agricultural Marketing
Act of 1946 or the Tobacco Inspection Act, Office of the Secretary
USDA/OGC–24.
Court cases brought by the Government pur- Non-Career Applicant File, USDA/SEC–1.
suant to either the Agricultural Marketing [40 FR 45103, Sept. 30, 1975, as amended at 41
Agreement Act of 1937, as amended, or the FR 22333, June 3, 1976; 53 FR 5969, Feb. 29,
Anti-Hog-Cholera Serum and Hog Cholera 1988; 54 FR 5073, Feb. 1, 1989; 55 FR 41179, Oct.
Virus Act, USDA/OGC–25. 10, 1990; 62 FR 61209, Nov. 17, 1997]
Court cases brought by the Government pur-
suant to either the Cotton Research and APPENDIX A TO SUBPART G OF PART 1—
Promotion Act, Potato Research and Pro- INTERNAL DIRECTIVES
motion Act, the Egg Research and Con-
sumer Information Act, USDA/OGC–26. SECTION 1 General requirements. Each agen-
Court cases brought by the Government pur- cy that maintains a system of records sub-
suant to either the Export Apple and Pear ject to 5 U.S.C. 552a and the regulations of
Act or the Export Grape and Plum Act, this subpart shall:
USDA/OGC–27. (a) Maintain in its records only such infor-
pmangrum on DSK3VPTVN1PROD with CFR

Court cases brought by the Government pur- mation about an individual as is relevant
suant to either the Cotton Statistics and and necessary to accomplish a purpose of the
Estimates Act of 1927 or the United States agency required to be accomplished by stat-
Cotton Standards Act, USDA/OGC–28. ute or by executive order of the President;

33

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00043 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Pt. 1, Subpt. G, App. A 7 CFR Subtitle A (1–1–12 Edition)
(b) Collect information to the greatest ex- accurate, complete, timely, and relevant for
tent practicable directly from the subject in- agency purposes;
dividual when the information may result in (g) Maintain no record describing how any
adverse determinations about an individual’s individual exercises rights guaranteed by the
rights, benefits, and privileges under Federal First Amendment unless expressly author-
programs; ized by statute or by the individual about
(c) Inform each individual whom it asks to whom the record is maintained, or unless
supply information, on the form which it pertinent to and within the scope of an au-
uses to collect the information, or on a sepa- thorized law enforcement activity;
rate form that can be retained by the indi- (h) Make reasonable efforts to serve notice
vidual, of: on an individual when any record on such in-
(1) The authority (whether granted by stat- dividual is made available to any person
ute, or by executive order of the President) under compulsory legal process when such
which authorizes the solicitation of the in- process becomes a matter of public record;
formation and whether disclosure of such in- (i) Establish rules of conduct for persons
formation is mandatory or voluntary; involved in the design, development, oper-
(2) The principal purpose or purposes for ation, or maintenance of any system of
which the information is intended to be used; records, or in maintaining any record, and
(3) The routine uses which may be made of instruct each such person with respect to
the information, as published pursuant to such rules and the requirements of this sec-
paragraph (d)(4) of this section; and tion, including any other rules and proce-
(4) The effects on the individual, if any, of dures adopted pursuant to this section and
not providing all or any part of the requested the penalties for noncompliance;
information; (j) Establish appropriate administrative,
(d) Subject to the provisions of section 2 of technical, and physical safeguards to insure
this appendix, prepare for publication in the the security and confidentiality of records
FEDERAL REGISTER at least annually a notice and to protect against any anticipated
of the existence and character of each sys- threats or hazards to their security or integ-
tem it maintains, which notice shall include: rity which could result in substantial harm,
(1) The name and location(s) of the system; embarrassment, inconvenience, or unfairness
(2) The categories of individuals on whom to any individual on whom information is
records are maintained in the system; maintained.
(3) The categories of records maintained in SEC. 2 Amendment of routine uses for an ex-
the system; isting system of records, or establishment of a
(4) Each routine use of the records con- new system of records.
tained in the system, including the cat- (a) Any agency which intends to add a rou-
egories of uses and the purpose of such use; tine use, or amend an existing one, in a sys-
(5) The policies and practices of the agency tem of records it maintains, shall, in accord-
regarding storage, retrievability, access con- ance with 5 U.S.C. 552a(e)(11), ensure that at
trols, retention, and disposal of the records; least 30 days advance notice of such action is
(6) The title and business address of the given by publication in the FEDERAL REG-
agency official who is responsible for the sys- ISTER and an opportunity provided for inter-
tem of records; ested persons to submit written data, views
(7) The agency procedures whereby an indi- or arguments to the agency.
vidual can be notified at his or her request if (b) Any agency which intends to establish
the system of records contains a record per- a new system of records, or to alter any ex-
taining to the individual; isting system of records, shall insure that
(8) The agency procedures whereby an indi- adequate advance notice is provided to Con-
vidual can be notified at his or her request gress and the Office of Management and
how the individual can gain access to any Budget to permit an evaluation of the prob-
record pertaining to him or her contained in able or potential effect of such action on the
the system of records, and how he can con- privacy and other personal or property
test its content; and rights of individuals or the disclosure of in-
(9) The categories of sources of records in formation relating to such individuals, and
the system; its effect on the preservation of the constitu-
(e) Maintain all records which are used by tional principles of federalism and separa-
the agency in making any determination tion of powers. Such notice is required for
about any individual with such accuracy, any new system of records and for any alter-
relevance, timeliness, and completeness as is ation in an existing one which will:
reasonably necessary to assure fairness to (1) Increase the number or types of individ-
the individual in the determination; uals on whom records are maintained;
(f) Prior to disseminating any record about (2) Expand the type or amount of informa-
pmangrum on DSK3VPTVN1PROD with CFR

an individual to any person other than an tion maintained;


agency, unless the dissemination is made (3) Increase the number or categories of
pursuant to 5 U.S.C. 552a(b)(2), make reason- agencies or other persons who may have ac-
able efforts to assure that such records are cess to those records;

34

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00044 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA Pt. 1, Subpt. G, App. A
(4) Alter the manner in which the records (1) Any disclosure required by Federal stat-
are organized so as to change the nature or ute; or
scope of those records (e.g., the combining of (2) Any disclosure to any agency relating
two or more existing systems); to a system of records it maintained prior to
(5) Modify the way the system operates at January 1, 1975, if such disclosure was re-
its location(s) in such a manner as to alter quired under statute or regulation adopted
the procedures by which individuals can ex- prior to that date, to verify the identity of
ercise their rights under this subpart; or an individual.
(6) Change the equipment configuration on (c) Any agency in the Department which
which the system is operated so as to create
requests an individual to disclose his or her
the potential for greater access (e.g., adding
social security account number shall inform
a telecommunications capability).
that individual whether the disclosure is
SEC. 3 Accounting of certain disclosures.
mandatory or voluntary, by what statutory
Each agency, with respect to each system of
or other authority the number is solicited,
records under its control, shall:
and what uses will be made of it. The agency
(a) Except for disclosures made under 5
U.S.C. 552a(b)(1) and (2), keep an accurate ac- shall also insure that this information is
count of: provided by a State or local government
(1) The date, nature, and purpose of each with whom it is involved in a cooperative
disclosure of a record to any person or agen- agreement.
cy outside the Department; and SEC. 7. Annual report. Each agency in the
(2) The name and address of the person or Department shall submit to the Office of the
agency to whom the disclosure is made; General Counsel prior to March 30 of each
(b) Retain the accounting made under year a report containing the following infor-
paragraph (a) of this section for the longer of mation related to implementation of 5 U.S.C.
a period of five years, after the date of the 552a:
disclosure for which the accounting is made, (a) A summary of major accomplishments;
or the life of the record disclosed; (b) A summary of major plans for activities
(c) Except for disclosures made under 5 in the upcoming year;
U.S.C. 552a(b)(7), make the accounting re- (c) A list of the systems which were ex-
quired under paragraph (a) of this section empted during the year from any of the oper-
available to the individual named in the ative provisions of this subpart pursuant to 5
record at his or her request. U.S.C. 552a (j) and (k), whether or not the ex-
SEC. 4 Government contractors. When an emption was effected during that year, the
agency within the Department provides by a
number of instances with respect to each
contract for the operation by or on behalf of
system exempted in which the exemption
the agency of a system of records to accom-
was invoked to deny access, and the reasons
plish an agency function, the agency shall,
consistent with its authority, cause the re- for invoking the exemption;
quirements of this subpart to be applied to (d) A brief summary of changes to the total
such system. For purposes of 5 U.S.C. 552a(i) inventory of personal data system subject to
any such contractor or any employee of such this subpart including reasons for major
contractor shall be considered to be an em- changes; and
ployee of an agency and therefore subject to (e) A general description of operational ex-
the criminal penalties set forth in 5 U.S.C. periences including estimates of the number
552a(i). of individuals (in relation to the total num-
SEC. 5 Mailing lists. No agency within the ber of records in the system):
Department shall sell or rent any individ- (1) Requesting information on the exist-
ual’s name and address unless such action is ence of records pertaining to them;
specifically authorized by law. This section (2) Refusing to provide information;
shall not be construed to require, or to au-
(3) Requesting access to their records;
thorize, the withholding of names and ad-
dresses whose disclosure is required by 5 (4) Appealing initial refusals to amend
U.S.C. 552. records; and
SEC. 6 Social security account numbers. (a) (5) Seeking redress through the courts.
No agency shall deny, or permit any State or SEC. 8. Effect of 5 U.S.C. 552. No agency in
local government with whom it is involved the Department shall rely on any exemption
in a cooperative venture to deny, to any in- in 5 U.S.C. 552 to withhold from an individual
dividual any right, benefit, or privilege pro- any record which is otherwise accessible to
vided by law because of such individual’s re- such individual under 5 U.S.C. 552a and this
pmangrum on DSK3VPTVN1PROD with CFR

fusal to disclose his or her social security ac- subpart.


count number.
(b) Paragraph (a) of this section shall not [40 FR 44480, Sept. 26, 1975, as amended at 62
apply with respect to: FR 33982, June 24, 1997]

35

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00045 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.130 7 CFR Subtitle A (1–1–12 Edition)

Subpart H—Rules of Practice Gov- Federal Land Policy and Management Act of
1976, section 506 (43 U.S.C. 1766).
erning Formal Adjudicatory Federal Meat Inspection Act, sections 4, 6,
Proceedings Instituted by the 7(e), 8, and 401 (21 U.S.C. 604, 606, 607(e), 608,
Secretary Under Various Stat- 671).
utes Federal Seed Act, section 409 (7 U.S.C. 1599).
Fluid Milk Promotion Act of 1990, section
1999L [7 U.S.C. 6411].
AUTHORITY: 5 U.S.C. 301; 7 U.S.C. 61, 87e, Forest Resources Conversation and Shortage
228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2279e, Relief Act of 1990, section 492 (16 U.S.C.
2621, 2714, 2908, 3812, 4610, 4815, 4910, 6009, 6107, 620d)
6207, 6307, 6411, 6519, 6520, 6808, 7107, 7734, 8313; Fresh Cut Flowers and Fresh Cut Greens
15 U.S.C. 1828; 16 U.S.C. 620d, 1540(f), 3373; 21 Promotion and Consumer Information Act
U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f, of 1993, section 9 [7 U.S.C. 6808].
135a, 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 Honey Research, Promotion, and Consumer
CFR 2.35, 2.41. Information Act, section 11 (7 U.S.C. 4610).
Horse Protection Act of 1970, sections 4(c)
SOURCE: 42 FR 743, Jan. 4, 1977, unless oth-
and 6 (15 U.S.C. 1823(c), 1825).
erwise noted. Lacey Act Amendments of 1981, section 4 (a)
and (b) (16 U.S.C. 3373 (a) and (b)).
§ 1.130 Meaning of words. Lime Research, Promotion, and Consumer
As used in this subpart, words in the Information Act of 1990, as amended, sec-
singular form shall be deemed to im- tion 1958 [7 U.S.C. 6207]
port the plural, and vice versa, as the Mushroom Promotion, Research, and Con-
sumer Information Act of 1990, section 1928
case may require.
[7 U.S.C. 6107]
Organic Foods Production Act of 1990, sec-
§ 1.131 Scope and applicability of this tions 2119 and 2120 (7 U.S.C. 6519, 6520).
subpart. Packers and Stockyards Act, 1921, as supple-
(a) The rules of practice in this sub- mented, sections 203, 312, and 401 of the
part shall be applicable to all adjudica- Act, and section 1, 57 Stat. 422, as amended
tory proceedings under the statutory by section 4, 90 Stat. 1249 (7 U.S.C. 193, 204,
provisions listed below as those provi- 213, 221)
Pecan Promotion and Research Act of 1990,
sions have been or may be amended section 1914 [7 U.S.C. 6009]
from time to time, 1 except that those Perishable Agricultural Commodities Act,
rules shall not be applicable to repara- 1930, sections 1(b)(9), 3(c), 4(d), 6(c), 8(a),
tion proceedings under section 6(c) of 8(b), 8(c), 8(e), 9, and 13(a) (7 U.S.C.
the Perishable Agricultural Commod- 499a(b)(9), 499c(c), 499d(d), 499f(c), 499h(a),
ities Act, 1930. Section 1.26 shall be in- 499h(b), 499h(c), 499h(e), 499i, 499m(a))
applicable to the proceedings covered Plant Protection Act, section 424 (7 U.S.C.
7734).
by this subpart. Pork Promotion, Research, and Consumer
Agricultural Bioterrorism Protection Act of Information Act of 1985, section 1626 (7
2002, section 212(i) (7 U.S.C. 8401(i)). U.S.C. 4815).
Agricultural Marketing Agreement Act of Potato Research and Promotion Act, as
1937, as amended, section 8c(14), 7 U.S.C. amended, 7 U.S.C. 2621, Pub. L. 97–244, 96
608c(14). Stat. 310.
Animal Health Protection Act, section 10414 Poultry Products Inspection Act, sections 6,
(7 U.S.C. 8313). 7, 8(d), and 18 (21 U.S.C. 455, 456, 457(d), 467).
Animal Welfare Act, section 19 (7 U.S.C. Sheep Promotion, Research, and Information
2149). Act of 1994 [7 U.S.C. 7107].
Beef Promotion and Research Act of 1985, Soybean Promotion, Research, and Con-
section 9 (7 U.S.C. 2908). sumer Information Act, section 1972 [7
Egg Products Inspection Act, section 18 (21 U.S.C. 6307].
U.S.C. 1047). Swine Health Protection Act, sections 5 and
Endangered Species Act of 1973, as amended, 6 (7 U.S.C. 3804, 3805).
section 11(a) (16 U.S.C. 1540(a)). Title V of the Agricultural Risk Protection
Egg Research and Consumer Information Act of 2000, section 501(a) (7 U.S.C. 2279e).
Act, as amended, 7 U.S.C. 2714, Pub. L. 96– United States Cotton Standards Act, as sup-
276, 94 Stat. 541. plemented, section 3 of the Act and section
2 of 47 Stat. 1621 (7 U.S.C. 51b, 53).
United States Grain Standards Act, sections
pmangrum on DSK3VPTVN1PROD with CFR

1 See also the regulations promulgated 7(g)(3), 9, 10, and 17A(d) (7 U.S.C. 79(g)(3),
under these statutes for any supplemental 85, 86, 87f-1(d)).
rules relating to particular circumstances United States Warehouse Act, sections 12
arising thereunder. and 25 (7 U.S.C. 246, 253).

36

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00046 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.132
Virus-Serum-Toxin Act (21 U.S.C. 156). ployee of the Agency to whom author-
Watermelon Research and Promotion Act, ity has heretofore been delegated, or to
section 1651 (7 U.S.C. 4910). whom authority may hereafter be dele-
(b) These rules of practice shall also gated, to act for the Administrator.
be applicable to: Complainant means the party insti-
(1) Adjudicatory proceedings under tuting the proceeding.
the regulations promulgated under the Complaint means the formal com-
Agricultural Marketing Act of 1946 (7 plaint, order to show cause, or other
U.S.C. 1621 et seq.) for the denial or document by virtue of which a pro-
withdrawal of inspection, certification, ceeding is instituted.
or grading service; 1 Decision means: (1) The Judge’s ini-
(2) Adjudicatory proceedings under tial decision made in accordance with
the regulations promulgated under the the provisions of 5 U.S.C. 556 and 557,
Animal Health Protection Act (7 U.S.C. and includes the Judge’s (i) findings
8301 et seq.) for the suspension or rev- and conclusions and the reasons or
ocation of accreditation of veterinar- basis therefor on all material issues of
ians (9 CFR parts 160, 161); fact, law or discretion, (ii) order, and
(3) Proceedings for debarment of (iii) rulings on proposed findings, con-
counsel under § 1.141(d) of this subpart; clusions and orders submitted by the
(4) Adjudicatory proceedings under parties; and
the regulations promulgated under the (2) The decision and order by the Ju-
Animal Welfare Act (7 U.S.C. 2131 et dicial Officer upon appeal of the
seq.) for the denial of an initial license Judge’s decision.
application (9 CFR 2.11) or the termi- Hearing means that part of the pro-
nation of a license during the license ceeding which involves the submission
renewal process or at any other time (9 of evidence before the Judge for the
CFR 2.12); record in the proceeding.
(5) Adjudicatory proceedings under Hearing Clerk means the Hearing
the regulations promulgated under sec- Clerk, United States Department of
tions 901–905 of the Federal Agriculture Agriculture, Washington, DC 20250.
Improvement and Reform Act of 1996 (7 Judge means any Administrative Law
U.S.C. 1901 note) pertaining to the com- Judge appointed pursuant to 5 U.S.C.
mercial transportation of equines to 3105 and assigned to the proceeding in-
slaughtering facilities (9 CFR part 88); volved.
and Judicial Officer means an official of
(6) Other adjudicatory proceedings in the United States Department of Agri-
which the complaint instituting the culture delegated authority by the Sec-
proceeding so provides with the concur- retary of Agriculture, pursuant to the
rence of the Assistant Secretary for Act of April 4, 1940 (7 U.S.C. 450c–450g)
Administration. and Reorganization Plan No. 2 of 1953 (5
[42 FR 743, Jan. 4, 1977] U.S.C. App. (1988)), to perform the func-
EDITORIAL NOTE: For FEDERAL REGISTER ci-
tion involved (§ 2.35(a) of this chapter),
tations affecting § 1.131 see the List of CFR or the Secretary of Agriculture if the
Sections Affected, which appears in the authority so delegated is exercised by
Finding Aids section of the printed volume the Secretary.
and at www.fdsys.gov. Mail means to deposit an item in the
United States Mail with postage af-
§ 1.132 Definitions. fixed and addressed as necessary to
As used in this subpart, the terms as cause it to be delivered to the address
defined in the statute under which the shown by ordinary mail, or by certified
proceeding is conducted and in the reg- or registered mail if specified.
ulations, standards, instructions, or or- Petitioner means an individual who
ders issued thereunder, shall apply has filed a petition for review of a de-
with equal force and effect. In addition termination that the individual is re-
and except as may be provided other- sponsibly connected to a licensee with-
pmangrum on DSK3VPTVN1PROD with CFR

wise in this subpart: in the meaning of 7 U.S.C. 499a(b)(9).


Administrator means the Adminis- Re-mail means to mail by ordinary
trator of the Agency administering the mail to an address an item that has
statute involved, or any officer or em- been returned after being sent to the

37

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00047 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.133 7 CFR Subtitle A (1–1–12 Edition)

same address by certified or registered transaction complained about, includ-


mail. ing shipping documents, letters, tele-
Respondent means the party pro- grams, invoices, manifests, inspection
ceeded against. certificates, accounts of sales and any
[42 FR 743, Jan. 4, 1977, as amended at 55 FR
special contracts or agreements.
30673, July 27, 1990; 60 FR 8455, Feb. 14, 1995; (3) Upon receipt of the information
61 FR 11503, Mar. 21, 1996; 68 FR 6340, Feb. 7, and supporting evidence, the Adminis-
2003] trator shall cause such investigation to
be made as, in the opinion of the Ad-
§ 1.133 Institution of proceedings. ministrator, is justified by the facts. If
(a) Submission of information con- such investigation discloses that no
cerning apparent violations. (1) Any in- violation of the Act or of the regula-
terested person desiring to submit in- tions, standards, instructions, or orders
formation regarding an apparent viola- issued pursuant thereto, has occurred,
tion of any provision of a statute listed no further action shall be taken and
in § 1.131 or of any regulation, standard, the person submitting the information
instruction, or order issued pursuant shall be so informed.
thereto, may file the information with (4) The person submitting the infor-
the Administrator of the agency ad- mation shall not be a party to any pro-
ministering the statute involved in ac- ceeding which may be instituted as a
cordance with this section and any ap- result thereof and such person shall
plicable statutory or regulation provi- have no legal status in the proceeding,
sions. Such information may be made except as a subpoenaed witness or as a
the basis of any appropriate proceeding deponent in a deposition taken without
covered by the rules in this subpart, or expense to such person.
any other appropriate proceeding au- (b) Filing of complaint or petition for
thorized by the particular statute or review. (1) If there is reason to believe
the regulations promulgated there- that a person has violated or is vio-
under. lating any provision of a statute listed
(2) The information may be sub- in § 1.131 or of any regulation, standard,
mitted by telegram, by letter, or by a instruction or order issued pursuant
preliminary statement of facts, setting thereto, whether based upon informa-
forth the essential details of the trans- tion furnished under paragraph (a) of
action complained of. So far as prac- this section or other information, a
ticable, the information shall include complaint may be filed with the Hear-
such of the following items as may be ing Clerk pursuant to these rules.
applicable: (2) Any person determined by the
(i) The name and address of each per- Chief, PACA Branch, pursuant to
son and of the agent, if any, rep- §§ 47.47–47.49 of this title to have been
resenting such person in the trans- responsibly connected within the
action involved; meaning of 7 U.S.C. 499a(b)(9) to a li-
(ii) Place where the alleged violation censee who is subject or potentially
occurred; subject to license suspension or revoca-
(iii) Quantity and quality or grade of tion as the result of an alleged viola-
each kind of product or article in- tion of 7 U.S.C. 499b or 499h(b) or as
volved; provided in 7 U.S.C. 499g(d) shall be en-
(iv) Date of alleged violation; titled to institute a proceeding under
(v) Car initial and number, if carlot; this section and to have determined
(vi) Shipping and destination points; the facts with respect to such respon-
(vii) If a sale, the date, sale price, and sibly connected status by filing with
amount actually received; the Hearing Clerk a petition for review
(viii) If a consignment, the date, re- of such determination.
ported proceeds, gross, net; (3) As provided in 5 U.S.C. 558, in any
(ix) Amount of damage claimed, if case, except one of willfulness or one in
any; which public health, interest, or safety
pmangrum on DSK3VPTVN1PROD with CFR

(x) Statement of other material otherwise requires, prior to the institu-


facts, including terms of contract; and tion of a formal proceeding which may
(xi) So far as practicable, true copies result in the withdrawal, suspension,
of all available papers relating to the or revocation of a ‘‘license’’ as that

38

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00048 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.137

term is defined in 5 U.S.C. 551(8), the the proceeding. The attorney may file
Administrator, in an effort to effect an an appearance of record prior to or si-
amicable or informal settlement of the multaneously with the filing of the an-
matter, shall give written notice to the swer. The answer shall be served upon
person involved of the facts or conduct the complainant, and any other party
concerned and shall afford such person of record, by the Hearing Clerk. As re-
an opportunity, within a reasonable sponse to a petition for review of re-
time fixed by the Administrator, to sponsibly connected status, the Chief,
demonstrate or achieve compliance PACA Branch, shall within ten days
with the applicable requirements of the after being served by the Hearing Clerk
statute, or the regulation, standard, in- with a petition for review, file with the
struction or order promulgated there- Hearing Clerk a certified copy of the
under. agency record upon which the Chief,
[42 FR 743, Jan. 4, 1977, as amended at 60 FR
PACA Branch, made the determination
8455, Feb. 14, 1995; 61 FR 11503, Mar. 21, 1996; that the individual was responsibly
68 FR 6340, Feb. 7, 2003] connected to a licensee under the Per-
ishable Agricultural Commodities Act,
§ 1.134 Docket number. 7 U.S.C. 499a et seq., and such agency
Each proceeding, immediately fol- record shall become part of the record
lowing its institution, shall be assigned in the review proceeding.
a docket number by the Hearing Clerk, (b) Contents. The answer shall:
and thereafter the proceeding shall be (1) Clearly admit, deny, or explain
referred to by such number. each of the allegations of the Com-
plaint and shall clearly set forth any
§ 1.135 Contents of complaint or peti- defense asserted by the respondent; or
tion for review. (2) State that the respondent admits
(a) Complaint. A complaint filed pur- all the facts alleged in the complaint;
suant to § 1.133(b) shall state briefly or
and clearly the nature of the pro- (3) State that the respondent admits
ceeding, the identification of the com- the jurisdictional allegations of the
plainant and the respondent, the legal complaint and neither admits nor de-
authority and jurisdiction under which nies the remaining allegations and con-
the proceeding is instituted, the allega- sents to the issuance of an order with-
tions of fact and provisions of law out further procedure.
which constitute a basis for the pro- (c) Default. Failure to file an answer
ceeding, and the nature of the relief within the time provided under para-
sought. graph (a) of this section shall be
(b) Petition for review. The Petition deemed, for purposes of the proceeding,
for Review of responsibly connected an admission of the allegations in the
status shall describe briefly and clearly Complaint, and failure to deny or oth-
the determination sought to be re- erwise respond to an allegation of the
viewed and shall include a brief state- Complaint shall be deemed, for pur-
ment of the factual and legal matters poses of the proceeding, an admission
that the petitioner believes warrant of said allegation, unless the parties
the reversal of the determination. have agreed to a consent decision pur-
[42 FR 743, Jan. 4, 1977, as amended at 61 FR
suant to § 1.138.
11503, Mar. 21, 1996] [42 FR 743, Jan. 4, 1977, as amended at 61 FR
11504, Mar. 21, 1996; 68 FR 6340, Feb. 7, 2003]
§ 1.136 Answer.
(a) Filing and service. Within 20 days § 1.137 Amendment of complaint, peti-
after the service of the complaint tion for review, or answer; joinder
(within 10 days in a proceeding under of related matters.
section 4(d) of the Perishable Agricul- (a) Amendment. At any time prior to
tural Commodities Act, 1930), or such the filing of a motion for a hearing, the
pmangrum on DSK3VPTVN1PROD with CFR

other time as may be specified therein, complaint, petition for review, answer,
the respondent shall file with the Hear- or response to petition for review may
ing Clerk an answer signed by the re- be amended. Thereafter, such an
spondent or the attorney of record in amendment may be made with consent

39

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00049 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.138 7 CFR Subtitle A (1–1–12 Edition)

of the parties, or as authorized by the the Hearing Clerk. Within 20 days after
Judge upon a showing of good cause. service of such motion and proposed de-
(b) Joinder. The Judge shall consoli- cision, the respondent may file with
date for hearing with any proceeding the Hearing Clerk objections thereto. If
alleging a violation of the Perishable the Judge finds that meritorious objec-
Agricultural Commodities Act, 7 U.S.C. tions have been filed, complainant’s
499a et seq., any petitions for review of Motion shall be denied with supporting
determination of status by the Chief, reasons. If meritorious objections are
PACA Branch, that individuals are re- not filed, the Judge shall issue a deci-
sponsibly connected, within the mean- sion without further procedure or hear-
ing of 7 U.S.C. 499a(b)(9), to the licensee ing. Copies of the decision or denial of
during the period of the alleged viola- complainant’s Motion shall be served
tions. In any case in which there is no by the Hearing Clerk upon each of the
pending proceeding alleging a violation parties and may be appealed pursuant
of the Perishable Agricultural Com- to § 1.145. Where the decision as pro-
modities Act, 7 U.S.C. 499a et seq., but posed by complainant is entered, such
there have been filed more than one pe- decision shall become final and effec-
tition for review of determination of tive without further proceedings 35
responsible connection to the same li- days after the date of service thereof
censee, such petitions for review shall upon the respondent, unless there is an
be consolidated for hearing. appeal to the Judicial Officer by a
[61 FR 11504, Mar. 21, 1996, as amended at 68 party to the proceeding pursuant to
FR 6340, Feb. 7, 2003] § 1.145: Provided, however, That no deci-
sion shall be final for purposes of judi-
§ 1.138 Consent decision. cial review except a final decision of
At any time before the Judge files the Judicial Officer upon appeal.
the decision, the parties may agree to
the entry of a consent decision. Such § 1.140 Conferences and procedure.
agreement shall be filed with the Hear- (a) Purpose and scope. (1) Upon mo-
ing Clerk in the form of a decision tion of a party or upon the Judge’s own
signed by the parties with appropriate motion, the Judge may direct the par-
space for signature by the Judge, and ties or their counsel to attend a con-
shall contain an admission of at least ference at any reasonable time, prior
the jurisdictional facts, consent to the to or during the course of the hearing,
issuance of the agreed decision without when the Judge finds that the pro-
further procedure and such other ad- ceeding would be expedited by a con-
missions or statements as may be ference. Reasonable notice of the time,
agreed between the parties. The Judge place, and manner of the conference
shall enter such decision without fur- shall be given. The Judge may order
ther procedure, unless an error is ap- each of the parties to furnish at or sub-
parent on the face of the document. sequent to the conference any or all of
Such decision shall have the same the following:
force and effect as a decision issued (i) An outline of the case or defense;
after full hearing, and shall become (ii) The legal theories upon which the
final upon issuance to become effective party will rely;
in accordance with the terms of the de- (iii) Copies of or a list of documents
cision. which the party anticipates intro-
ducing at the hearing; and
§ 1.139 Procedure upon failure to file (iv) A list of anticipated witnesses
an answer or admission of facts. who will testify on behalf of the party.
The failure to file an answer, or the At the discretion of the party fur-
admission by the answer of all the ma- nishing such list of witnesses, the
terial allegations of fact contained in names of the witnesses need not be fur-
the complaint, shall constitute a waiv- nished if they are otherwise identified
er of hearing. Upon such admission or in some meaningful way such as a
pmangrum on DSK3VPTVN1PROD with CFR

failure to file, complainant shall file a short statement of the type of evidence
proposed decision, along with a motion they will offer.
for the adoption thereof, both of which (2) The Judge shall not order any of
shall be served upon the respondent by the foregoing procedures that a party

40

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00050 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.141

can show is inappropriate or unwar- the conference by personal attendance


ranted under the circumstances of the of any individual who is expected to
particular case. participate in the conference:
(3) At the conference, the following (i) Is necessary to prevent prejudice
matters shall be considered: to a party;
(i) The simplification of issues; (ii) Is necessary because of a dis-
(ii) The necessity of amendments to ability of any individual expected to
pleadings; participate in the conference; or
(iii) The possibility of obtaining stip- (iii) Would cost less than conducting
ulations of facts and of the authen- the conference by audio-visual tele-
ticity, accuracy, and admissibility of communication.
documents, which will avoid unneces- (d) Order. Actions taken as a result of
sary proof; a conference shall be reduced to a writ-
(iv) The limitation of the number of ten appropriate order, unless the Judge
expert or other witnesses; concludes that a stenographic report
(v) Negotiation, compromise, or set- shall suffice, or, if the conference takes
tlement of issues; place within 7 days of the beginning of
(vi) The exchange of copies of pro- the hearing, the Judge elects to make
posed exhibits; a statement on the record at the hear-
(vii) The identification of documents ing summarizing the actions taken.
or matters of which official notice may (e) Related matters. Upon motion of a
be requested; respondent, the Judge may order the
(viii) A schedule to be followed by the attorney for the complainant to
parties for completion of the actions produce and permit the respondent to
decided at the conference; and inspect and copy or photograph any
(ix) Such other matters as may expe- relevant written or recorded state-
dite and aid in the disposition of the ments or confessions made by such re-
proceeding. spondent within the possession, cus-
(b) Reporting. A conference will not tody or control of the complainant.
be stenographically reported unless so [42 FR 743, Jan. 4, 1977, as amended at 60 FR
directed by the Judge. 8455, Feb. 14, 1995]
(c) Manner of Conference. (1) The con-
ference shall be conducted by tele- § 1.141 Procedure for hearing.
phone or correspondence unless the (a) Request for hearing. Any party
Judge determines that conducting the may request a hearing on the facts by
conference by audio-visual tele- including such request in the com-
communication: plaint or answer, or by a separate re-
(i) Is necessary to prevent prejudice quest, in writing, filed with the Hear-
to a party; ing Clerk within the time in which an
(ii) Is necessary because of a dis- answer may be filed. A petition for re-
ability of any individual expected to view shall be deemed a request for a
participate in the conference; or hearing. Failure to request a hearing
(iii) Would cost less than conducting within the time allowed for the filing
the conference by telephone or cor- of the answer shall constitute a waiver
respondence. If the Judge determines of such hearing. Waiver of hearing
that a conference conducted by audio- shall not be deemed to be a waiver of
visual telecommunication would meas- the right to request oral argument be-
urably increase the United States De- fore the Judicial Officer upon appeal of
partment of Agriculture’s cost of con- the Judge’s decision. In the event the
ducting the conference, the conference respondent denies any material fact
shall be conducted by personal attend- and fails to file a timely request for a
ance of any individual who is expected hearing, the matter may be set down
to participate in the conference, by for hearing on motion of the complain-
telephone, or by correspondence. ant or upon the Judge’s own motion.
(2) If the conference is not conducted (b) Time, place, and manner. (1) If any
pmangrum on DSK3VPTVN1PROD with CFR

by telephone or correspondence, the material issue of fact is joined by the


conference shall be conducted by pleadings, the Judge, upon motion of
audio-visual telecommunication unless any party stating that the matter is at
the Judge determines that conducting issue and is ready for hearing, shall set

41

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00051 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.141 7 CFR Subtitle A (1–1–12 Edition)

a time, place, and manner for hearing stating the basis for the motion and
as soon as feasible after the motion is the circumstances that require the
filed, with due regard for the public in- hearing to be conducted other than by
terest and the convenience and neces- audio-visual telecommunication.
sity of the parties. The Judge shall file (ii) Within 10 days after the Judge
with the Hearing Clerk a notice stating issues a notice stating the manner in
the time and place of the hearing. 2 which the hearing is to be conducted,
This notice shall state whether the any party may move that the Judge re-
hearing will be conducted by telephone, consider the manner in which the hear-
audio-visual telecommunication, or ing is to be conducted. Any motion for
personal attendance of any individual reconsideration must be accompanied
expected to participate in the hearing. by a memorandum in support of the
The Judge’s determination regarding motion stating the basis for the motion
the manner of the hearing shall be and the circumstances that require the
made in accordance with paragraphs hearing to be conducted other than in
(b)(3) and (b)(4) of this section. If any accordance with the Judges’s notice.
change in the time, place, or manner of (3) The hearing shall be conducted by
the hearing is made, the Judge shall audio-visual telecommunication unless
file with the Hearing Clerk a notice of the Judge determines that conducting
such change, which notice shall be the hearing by personal attendance of
served upon the parties, unless it is any individual who is expected to par-
made during the course of an oral hear- ticipate in the hearing:
ing and made part of the transcript or (i) Is necessary to prevent prejudice
recording, or actual notice is given to to a party;
the parties. (ii) Is necessary because of a dis-
(2)(i) If any material issue of fact is ability of any individual expected to
joined by the pleadings and the matter participate in the hearing; or
is at issue and is ready for hearing, any (iii) Would cost less than conducting
party may move that the hearing be the hearing by audio-visual tele-
conducted by telephone or personal at- communication. If the Judge deter-
tendance of any individual expected to mines that a hearing conducted by
attend the hearing rather than by audio-visual telecommunication would
audio-visual telecommunication. Any measurably increase the United States
motion that the hearing be conducted Department of Agriculture’s cost of
by telephone or personal attendance of conducting the hearing, the hearing
any individual expected to attend the shall be conducted by personal attend-
hearing must be accompanied by a ance of any individual who is expected
memorandum in support of the motion to participate in the hearing or by tele-
phone.
2 The place of hearing in a proceeding (4) The Judge may, in his or her sole
under the Packers and Stockyards Act shall discretion or in response to a motion
be set in accordance with the Packers and by a party to the proceeding, conduct
Stockyards Act (7 U.S.C. 228(e) and (f)). In es- the hearing by telephone if the Judge
sence, if there is only one respondent, the finds that a hearing conducted by tele-
hearing is to be held as near as possible to phone:
the respondent’s place of business or resi- (i) Would provide a full and fair evi-
dence depending on the availability of an ap-
propriate location for conducting the hear-
dentiary hearing;
ing. If there is more than one respondent and (ii) Would not prejudice any party;
they have their places of business or resi- and
dence within a single unit of local govern- (iii) Would cost less than conducting
ment, a single geographical area within a the hearing by audio-visual tele-
State, or a single State, the hearing is to be communication or personal attendance
held as near as possible to their places of of any individual who is expected to
business or residence depending on the avail- participate in the hearing.
ability of an appropriate location for con-
ducting the hearing. If there is more than
(c) Appearances. The parties may ap-
pmangrum on DSK3VPTVN1PROD with CFR

one respondent, and they have their places of pear in person or by attorney of record
business or residence distant from each in the proceeding. Any person who ap-
other, 7 U.S.C. 228(e) and (f) have no applica- pears as attorney must conform to the
bility. standards of ethical conduct required

42

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00052 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.141

of practitioners before the courts of the at the hearing without good cause,
United States. such petitioner shall be deemed to have
(d) Debarment of attorney. (1) When- waived the right to a hearing and to
ever a Judge finds that a person acting have voluntarily withdrawn the peti-
as attorney for any party to the pro- tion for review.
ceeding is guilty of unethical or con- (f) Order of proceeding. Except as may
tumacious conduct, in or in connection be determined otherwise by the Judge,
with a proceeding , the Judge may the complainant shall proceed first at
order that such person be precluded the hearing.
from further acting as attorney in the (g) Written statements of direct testi-
proceeding. An appeal to the Judicial mony. (1) Except as provided in para-
Officer may be taken from any such graph (g)(2) of this section, each party
order, but no proceeding shall be de- must exchange with all other parties a
layed or suspended pending disposition written narrative verified statement of
of the appeal: Provided, That the Judge the oral direct testimony that the
shall suspend the proceeding for a rea- party will provide at any hearing to be
sonable time for the purpose of ena- conducted by telephone; the direct tes-
bling the party to obtain another at- timony of each employee or agent of
torney. the party that the party will call to
(2) Whenever it is found, after notice provide oral direct testimony at any
and opportunity for hearing, that a hearing to be conducted by telephone;
person, who is acting or has acted as and the direct testimony of each expert
attorney for another person in any pro- witness that the party will call to pro-
ceeding before the United States De- vide oral direct testimony at any hear-
partment of Agriculture, is unfit to act ing to be conducted by telephone. The
as such counsel because of such uneth- written direct testimony of witnesses
ical or contumacious conduct, such shall be exchanged by the parties at
person will be precluded from acting as least 10 days prior to the hearing. The
counsel in any or all proceedings before oral direct testimony provided by a
the Department as found to be appro- witness at a hearing conducted by tele-
priate. phone will be limited to the presen-
(e) Failure to appear. (1) A respondent tation of the written direct testimony,
who, after being duly notified, fails to unless the Judge finds that oral direct
appear at the hearing without good testimony which is supplemental to
cause, shall be deemed to have waived the written direct testimony would fur-
the right to an oral hearing in the pro- ther the public interest and would not
ceeding and to have admitted any facts constitute surprise.
which may be presented at the hearing. (2) The parties shall not be required
Such failure by the respondent shall to exchange testimony in accordance
also constitute an admission of all the with this paragraph if the hearing is
material allegations of fact contained scheduled to begin less than 20 days
in the complaint. Complainant shall after the Judge’s notice stating the
have an election whether to follow the time of the hearing.
procedure set forth in § 1.139 or whether (h) Evidence—(1) In general. (i) The
to present evidence, in whole or in testimony of witnesses at a hearing
part, in the form of affidavits or by shall be on oath or affirmation and
oral testimony before the Judge. Fail- subject to cross-examination.
ure to appear at a hearing shall not be (ii) Upon a finding of good cause, the
deemed to be a waiver of the right to Judge may order that any witness be
be served with a copy of the Judge’s de- examined separately and apart from all
cision and to appeal and request oral other witnesses except those who may
argument before the Judicial Officer be parties to the proceeding.
with respect thereto in the manner (iii) After a witness called by the
provided in § 1.145. complainant has testified on direct ex-
(2) If the petitioner in the case of a amination, any other party may re-
pmangrum on DSK3VPTVN1PROD with CFR

Petition for Review of a determination quest and obtain the production of any
of responsibly connected status within statement, or part thereof, of such wit-
the meaning of 7 U.S.C. 499a(b)(9), hav- ness in the possession of the complain-
ing been duly notified, fails to appear ant which relates to the subject matter

43

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00053 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.141 7 CFR Subtitle A (1–1–12 Edition)

as to which the witness has testified. show that such facts are erroneously
Such production shall be made accord- noticed.
ing to the procedures and subject to (7) Offer of proof. Whenever evidence
the definitions and limitations pre- is excluded by the Judge, the party of-
scribed in the Jencks Act (18 U.S.C. fering such evidence may make an
3500). offer of proof, which shall be included
(iv) Evidence which is immaterial, ir- in the transcript or recording. The
relevant, or unduly repetitious, or offer of proof shall consist of a brief
which is not of the sort upon which re- statement describing the evidence ex-
sponsible persons are accustomed to cluded. If the evidence consists of a
rely, shall be excluded insofar as prac- brief oral statement, it shall be in-
ticable. cluded in the transcript or recording in
(2) Objections. (i) If a party objects to
toto. If the evidence consists of an ex-
the admission of any evidence or to the
hibit, it shall be marked for identifica-
limitation of the scope of any examina-
tion and inserted in the hearing record.
tion or cross-examination or to any
In either event, the evidence shall be
other ruling of the Judge, the party
shall state briefly the grounds of such considered a part of the transcript or
objection, whereupon an automatic ex- recording and hearing record if the Ju-
ception will follow if the objection is dicial Officer, upon appeal, decides the
overruled by the Judge. Judge’s ruling excluding the evidence
(ii) Only objections made before the was erroneous and prejudicial. If the
Judge may subsequently be relied upon Judicial Officer decides the Judge’s
in the proceeding. ruling excluding the evidence was erro-
(3) Depositions. The deposition of any neous and prejudicial and that it would
witness shall be admitted in the man- be inappropriate to have such evidence
ner provided in and subject to the pro- considered a part of the hearing record,
visions of § 1.148. the Judicial Officer may direct that
(4) Exhibits. Unless the Judge finds the hearing be reopened to permit the
that the furnishing of copies is imprac- taking of such evidence or for any
ticable, four copies of each exhibit other purpose in connection with the
shall be filed with the Judge: Provided, excluded evidence.
That, where there are more than two (i) Transcript or recording. (1) Hearings
parties in the proceeding, an additional to be conducted by telephone shall be
copy shall be filed for each additional recorded verbatim by electronic re-
party. A true copy of an exhibit may be cording device. Hearings conducted by
substituted for the original. audio-visual telecommunication or the
(5) Official records or documents. An of- personal attendance of any individual
ficial government record or document who is expected to participate in the
or entry therein, if admissible for any hearing shall be transcribed, unless the
purpose, shall be admissible in evi- Judge finds that recording the hearing
dence without the production of the
verbatim would expedite the pro-
person who made or prepared the same,
ceeding and the Judge orders the hear-
and shall be prima facie evidence of the
ing to be recorded verbatim. The Judge
relevant facts stated therein. Such
shall certify that to the best of his or
record or document shall be evidenced
by an official publication thereof or by her knowledge and belief any recording
a copy certified by a person having made pursuant to this paragraph with
legal authority to make such certifi- exhibits that were accepted into evi-
cation. dence is the record of the hearing.
(6) Official notice. Official notice shall (2) If a hearing is recorded verbatim,
be taken of such matters as are judi- a party requests the transcript of a
cially noticed by the courts of the hearing or part of a hearing, and the
United States and of any other matter Judge determines that the disposition
of technical, scientific, or commercial of the proceeding would be expedited
by a transcript of the hearing or part
pmangrum on DSK3VPTVN1PROD with CFR

fact of established character: Provided,


That the parties shall be given ade- of a hearing, the Judge shall order the
quate notice of matters so noticed, and verbatim transcription of the recording
shall be given adequate opportunity to as requested by the party.

44

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00054 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.143

(3) Recordings or transcripts of hear- decision shall be the date the oral deci-
ings shall be made available to any sion was announced.
person at actual cost of duplication. (3) If the decision is in writing, it
shall be filed with the Hearing Clerk
[42 FR 743, Jan. 4, 1977, as amended at 60 FR
and served upon the parties as provided
8455, Feb. 14, 1995; 61 FR 11504, Mar. 21, 1996;
68 FR 6340, Feb. 7, 2003] in § 1.147.
(4) The Judge’s decision shall become
§ 1.142 Post-hearing procedure. final and effective without further pro-
ceedings 35 days after the issuance of
(a) Corrections to transcript or record- the decision, if announced orally at the
ing. (1) Within the period of time fixed hearing, or if the decision is in writing,
by the Judge, any party may file a mo- 35 days after the date of service thereof
tion proposing corrections to the tran- upon the respondent, unless there is an
script or recording. appeal to the Judicial Officer by a
(2) Unless a party files such a motion party to the proceeding pursuant to
in the manner prescribed, the tran- § 1.145; Provided, however, that no deci-
script or recording shall be presumed, sion shall be final for purposes of judi-
except for obvious typographical er- cial review except a final decision of
rors, to be a true, correct, and com- the Judicial Officer upon appeal.
plete transcript or recording of the tes-
[42 FR 743, Jan. 4, 1977, as amended at 53 FR
timony given at the hearing and to
7177, Mar. 7, 1988; 60 FR 8456, Feb. 14, 1995; 68
contain an accurate description or ref- FR 6340, Feb. 7, 2003]
erence to all exhibits received in evi-
dence and made part of the hearing § 1.143 Motions and requests.
record, and shall be deemed to be cer- (a) General. All motions and requests
tified without further action by the shall be filed with the Hearing Clerk,
Judge. and served upon all the parties, except
(3) As soon as practicable after the (1) requests for extensions of time pur-
close of the hearing and after consider- suant to § 1.147, (2) requests for sub-
ation of any timely objections filed as poenas pursuant to § 1.149, and (3) mo-
to the transcript or recording, the tions and requests made on the record
Judge shall issue an order making any during the oral hearing. The Judge
corrections to the transcript or record- shall rule upon all motions and re-
ing which the Judge finds are war- quests filed or made prior to the filing
ranted, which corrections shall be en- of an appeal of the Judge’s decision
tered onto the original transcript or re- pursuant to § 1.145, except motions di-
cording by the Hearing Clerk (without rectly relating to the appeal. There-
obscuring the original text). after, the Judicial Officer will rule on
(b) Proposed findings of fact, conclu- any motions and requests, as well as
sions, orders, and briefs. Prior to the the motions directly relating to the ap-
Judge’s decision, each party shall be peal.
afforded a reasonable opportunity to (b) Motions entertained. (1) Any mo-
submit for consideration proposed find- tion will be entertained other than a
ings of fact, conclusions, order, and motion to dismiss on the pleading.
brief in support thereof. A copy of each (2) All motions and request con-
such document filed by a party shall be cerning the complaint must be made
served upon each of the other parties. within the time allowed for filing an
(c) Judge’s decision. (1) The Judge answer.
may, upon motion of any party or in (c) Contents. All written motions and
his or her own discretion, issue a deci- requests shall state the particular
sion orally at the close of the hearing, order, ruling, or action desired and the
or within a reasonable time after the grounds therefor.
closing of the hearing. (d) Response to motions and requests.
(2) If the decision is announced oral- Within 20 days after service of any
ly, a copy thereof, excerpted from the written motion or request, or within
pmangrum on DSK3VPTVN1PROD with CFR

transcript or recording, shall be fur- such shorter or longer period as may be


nished to the parties by the Hearing fixed by the Judge or the Judicial Offi-
Clerk. Irrespective of the date such cer, an opposing party may file a re-
copy is mailed, the issuance date of the sponse to the motion or request. The

45

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00055 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.144 7 CFR Subtitle A (1–1–12 Edition)

other party shall have no right to reply and other documentary evidence at the
to the response; however, the Judge or hearing;
the Judicial Officer, in the Judge’s or (5) Summon and examine witnesses
the Judicial Officer’s discretion, may and receive evidence at the hearing;
order that a reply be filed. (6) Take or order the taking of depo-
(e) Certification to the judicial officer. sitions as authorized under these rules;
The submission or certification of any (7) Admit or exclude evidence;
motion, request, objection, or other (8) Hear oral argument on facts or
question to the Judicial Officer prior to law;
the filing of an appeal pursuant to (9) Require each party to provide all
§ 1.145 shall be made by and in the dis- other parties and the Judge with a
cretion of the Judge. The Judge may copy of any exhibit that the party in-
either rule upon or certify the motion, tends to introduce into evidence prior
request, objection, or other question to to any hearing to be conducted by tele-
the Judicial Officer, but not both. phone or audio-visual telecommuni-
cation;
[42 FR 743, Jan. 4, 1977, as amended at 55 FR
30673, July 27, 1990; 68 FR 6340, Feb. 7, 2003] (10) Require each party to provide all
other parties with a copy of any docu-
§ 1.144 Judges. ment that the party intends to use to
examine a deponent prior to any depo-
(a) Assignment. No Judge shall be as-
sition to be conducted by telephone or
signed to serve in any proceeding who
(1) has any pecuniary interest in any audio-visual telecommunication;
(11) Require that any hearing to be
matter or business involved in the pro-
ceeding, (2) is related within the third conducted by telephone or audio-visual
degree by blood or marriage to any telecommunication be conducted at lo-
party to the proceeding, or (3) has any cations at which the parties and the
conflict of interest which might impair Judge are able to transmit and receive
the Judge’s objectivity in the pro- documents during the hearing;
(12) Require that any deposition to be
ceeding.
(b) Disqualification of Judge. (1) Any conducted by telephone or audio-visual
party to the proceeding may, by mo- telecommunication be conducted at lo-
tion made to the Judge, request that cations at which the parties are able to
the Judge withdraw from the pro- transmit and receive documents during
ceeding because of an alleged disquali- the deposition;
(13) Do all acts and take all measures
fying reason. Such motion shall set
necessary for the maintenance of order,
forth with particularity the grounds of
including the exclusion of contuma-
alleged disqualification. The Judge
cious counsel or other persons; and
may then either rule upon or certify
(14) Take all other actions authorized
the motion to the Secretary, but not
under these rules.
both.
(d) Who may act in the absence of the
(2) A Judge shall withdraw from any
Judge. In case of the absence of the
proceeding for any reason deemed by
Judge or the Judge’s inability to act,
the Judge to be disqualifying.
the powers and duties to be performed
(c) Powers. Subject to review as pro-
by the Judge under these rules of prac-
vided in this subpart, the Judge, in any
tice in connection with any assigned
assigned proceeding, shall have power
proceeding may, without abatement of
to:
(1) Rule upon motions and requests; the proceeding unless otherwise di-
(2) Set the time, place, and manner of rected by the Chief Judge, be assigned
a conference and the hearing, adjourn to any other Judge.
the hearing, and change the time, [42 FR 743, Jan. 4, 1977, as amended at 60 FR
place, and manner of the hearing; 8456, Feb. 14, 1995; 68 FR 6340, Feb. 7, 2003]
(3) Administer oaths and affirma-
tions; § 1.145 Appeal to Judicial Officer.
(4) Issue subpoenas as authorized by (a) Filing of petition. Within 30 days
pmangrum on DSK3VPTVN1PROD with CFR

the statute under which the proceeding after receiving service of the Judge’s
is conducted, requiring the attendance decision, if the decision is a written de-
and testimony of witnesses and the cision, or within 30 days after issuance
production of books, contracts, papers, of the Judge’s decision, if the decision

46

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00056 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.145

is an oral decision, a party who dis- scribed time for filing such appeal, an
agrees with the decision, any part of opportunity for oral argument before
the decision, or any ruling by the the Judicial Officer. Within the time
Judge or who alleges any deprivation allowed for filing a response, appellee
of rights, may appeal the decision to may file a request in writing for oppor-
the Judicial Officer by filing an appeal tunity for such an oral argument. Fail-
petition with the Hearing Clerk. As ure to make such request in writing,
provided in § 1.141(h)(2), objections re- within the prescribed time period, shall
garding evidence or a limitation re- be deemed a waiver of oral argument.
garding examination or cross-examina- The Judicial Officer may grant, refuse,
tion or other ruling made before the or limit any request for oral argument.
Judge may be relied upon in an appeal. Oral argument shall not be transcribed
Each issue set forth in the appeal peti- unless so ordered in advance by the Ju-
tion and the arguments regarding each dicial Officer for good cause shown
issue shall be separately numbered; upon request of a party or upon the Ju-
shall be plainly and concisely stated; dicial Officer’s own motion.
and shall contain detailed citations to (e) Scope of argument. Argument to be
the record, statutes, regulations, or au- heard on appeal, whether oral or on
thorities being relied upon in support brief, shall be limited to the issues
of each argument. A brief may be filed raised in the appeal or in the response
in support of the appeal simulta- to the appeal, except that if the Judi-
neously with the appeal petition. cial Officer determines that additional
(b) Response to appeal petition. Within issues should be argued, the parties
20 days after the service of a copy of an shall be given reasonable notice of such
appeal petition and any brief in sup- determination, so as to permit prepara-
port thereof, filed by a party to the tion of adequate arguments on all
proceeding, any other party may file issues to be argued.
with the Hearing Clerk a response in
(f) Notice of argument; postponement.
support of or in opposition to the ap-
The Hearing Clerk shall advise all par-
peal and in such response any relevant
ties of the time and place at which oral
issue, not presented in the appeal peti-
argument will be heard. A request for
tion, may be raised.
postponement of the argument must be
(c) Transmittal of record. Whenever an
made by motion filed a reasonable
appeal of a Judge’s decision is filed and
amount of time in advance of the date
a response thereto has been filed or
fixed for argument.
time for filing a response has expired,
the Hearing Clerk shall transmit to the (g) Order of argument. The appellant
Judicial Officer the record of the pro- is entitled to open and conclude the ar-
ceeding. Such record shall include: the gument.
pleadings; motions and requests filed (h) Submission on briefs. By agreement
and rulings thereon; the transcript or of the parties, an appeal may be sub-
recording of the testimony taken at mitted for decision on the briefs, but
the hearing, together with the exhibits the Judicial Officer may direct that
filed in connection therewith; any doc- the appeal be argued orally.
uments or papers filed in connection (i) Decision of the judicial officer on ap-
with a prehearing conference; such pro- peal. As soon as practicable after the
posed findings of fact, conclusions, and receipt of the record from the Hearing
orders, and briefs in support thereof, as Clerk, or, in case oral argument was
may have been filed in connection with had, as soon as practicable thereafter,
the proceeding; the Judge’s decision; the Judicial Officer, upon the basis of
such exceptions, statements of objec- and after due consideration of the
tions and briefs in support thereof as record and any matter of which official
may have been filed in the proceeding; notice is taken, shall rule on the ap-
and the appeal petition, and such briefs peal. If the Judicial Officer decides
in support thereof and responses there- that no change or modification of the
pmangrum on DSK3VPTVN1PROD with CFR

to as may have been filed in the pro- Judge’s decision is warranted, the Ju-
ceeding. dicial Officer may adopt the Judge’s
(d) Oral argument. A party bringing decision as the final order in the pro-
an appeal may request, within the pre- ceeding, preserving any right of the

47

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00057 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.146 7 CFR Subtitle A (1–1–12 Edition)

party bringing the appeal to seek judi- section, any party to the proceeding
cial review of such decision in the may file with the Hearing Clerk a reply
proper forum. A final order issued by thereto. As soon as practicable there-
the Judicial Officer shall be filed with after, the Judge or the Judicial Officer,
the Hearing Clerk. Such order may be as the case may be, shall announce the
regarded by the respondent as final for determination whether to grant or
purposes of judicial review without fil- deny the petition. The decision of the
ing a petition for rehearing, reargu- Judicial Officer shall automatically be
ment, or reconsideration of the deci- stayed pending the determination to
sion of the Judicial Officer. grant or deny a timely petition. Such
decision shall not be final for purposes
[42 FR 743, Jan. 4, 1977, as amended at 60 FR
8456, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003] of judicial review until the petition is
denied or the decision is affirmed or
§ 1.146 Petitions for reopening hear- modified pursuant to the petition and
ing; for rehearing or reargument of the time for judicial review shall begin
proceeding; or for reconsideration to run upon the filing of such final ac-
of the decision of the Judicial Offi- tion on the petition. In the event that
cer. any such petition is granted, the appli-
(a) Petition requisite—(1) Filing; serv- cable rules of practice, as set out else-
ice; ruling. A petition for reopening the where herein, shall be followed. A per-
hearing to take further evidence, or for son filing a petition under this section
rehearing or reargument of the pro- shall be regarded as the moving party,
ceeding, or for reconsideration of the although such person shall be referred
decision of the Judicial Officer, must to as the complainant or respondent,
be made by petition filed with the depending upon the designation in the
Hearing Clerk. Every such petition original proceeding.
must state specifically the grounds re-
lied upon. Any such petition filed prior § 1.147 Filing; service; extensions of
to the filing of an appeal of the Judge’s time; and computation of time.
decision pursuant to § 1.145 shall be (a) Filing; number of copies. Except as
ruled upon by the Judge, and any such otherwise provided in this section, all
petition filed thereafter shall be ruled documents or papers required or au-
upon by the Judicial Officer. thorized by the rules in this part to be
(2) Petition to reopen hearing. A peti- filed with the Hearing Clerk shall be
tion to reopen a hearing to take fur- filed in quadruplicate: Provided, That
ther evidence may be filed at any time where there are more than two parties
prior to the issuance of the decision of in the proceeding, an additional copy
the Judicial Officer. Every such peti- shall be filed for each additional party.
tion shall state briefly the nature and Any document or paper required or au-
purpose of the evidence to be adduced, thorized under the rules in this part to
shall show that such evidence is not be filed with the Hearing Clerk shall,
merely cumulative, and shall set forth during the course of an oral hearing, be
a good reason why such evidence was filed with the Judge.
not adduced at the hearing. (b) Who shall make service. Copies of
(3) Petition to rehear or reargue pro- all such documents or papers required
ceeding, or to reconsider the decision of or authorized by the rules in this part
the Judicial Officer. A petition to re- to be filed with the Hearing Clerk shall
hear or reargue the proceeding or to re- be served upon the parties by the Hear-
consider the decision of the Judicial ing Clerk, or by some other employee
Officer shall be filed within 10 days of the Department, or by a U.S. Mar-
after the date of service of such deci- shal or deputy marshal.
sion upon the party filing the petition. (c) Service on party other than the Sec-
Every petition must state specifically retary. (1) Any complaint or other docu-
the matters claimed to have been erro- ment initially served on a person to
neously decided and alleged errors make that person a party respondent
pmangrum on DSK3VPTVN1PROD with CFR

must be briefly stated. in a proceeding, proposed decision and


(b) Procedure for disposition of peti- motion for adoption thereof upon fail-
tions. Within 20 days following the serv- ure to file an answer or other admis-
ice of any petition provided for in this sion of all material allegations of fact

48

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00058 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.147

contained in a complaint, initial deci- or agent thereof, shall be deemed to be


sion, final decision, appeal petition received by such person on the date of:
filed by the Department, or other docu- (1) Delivery by certified mail or reg-
ment specifically ordered by the Judge istered mail to the last known prin-
to be served by certified or registered cipal place of business of such person,
mail, shall be deemed to be received by last known principal place of business
any party to a proceeding, other than of the attorney or representative of
the Secretary or agent thereof, on the record of such person, or last known
date of delivery by certified or reg- residence of such person if an indi-
istered mail to the last known prin- vidual;
cipal place of business of such party, (2) Delivery other than by mail to
last known principal place of business any responsible individual at, or leav-
of the attorney or representative of ing in a conspicuous place at, any such
record of such party, or last known res- location; or
idence of such party if an individual, (3) Delivery to such party if an indi-
Provided that, if any such document or vidual, to an officer or director of such
paper is sent by certified or registered party if a corporation, or to a member
mail but is returned marked by the of such party if a partnership, at any
postal service as unclaimed or refused, location.
it shall be deemed to be received by (e) Proof of service. Any of the fol-
such party on the date of remailing by lowing, in the possession of the Depart-
ordinary mail to the same address. ment, showing such service, shall be
(2) Any document or paper, other deemed to be accurate:
than one specified in paragraph (c)(1) of (1) A certified or registered mail re-
this section or written questions for a ceipt returned by the postal service
deposition as provided in § 1.148(d)(2), with a signature;
shall be deemed to be received by any (2) An official record of the postal
party to a proceeding, other than the service;
Secretary or agent thereof, on the date (3) An entry on a docket record or a
of mailing by ordinary mail to the last copy placed in a docket file by the
known principal place of business of Hearing Clerk of the Department or by
such party, last known principal place an employee of the Hearing Clerk in
of business of the attorney or rep- the ordinary course of business;
resentative of record of such party, or (4) A certificate of service, which
last known residence of such party if need not be separate from and may be
an individual. incorporated in the document or paper
(3) Any document or paper served of which it certifies service, showing
other than by mail, on any party to a the method, place and date of service
proceeding, other than the Secretary in writing and signed by an individual
or agent thereof, shall be deemed to be with personal knowledge thereof, Pro-
received by such party on the date of: vided that such certificate must be
(i) Delivery to any responsible indi- verified by oath or declaration under
vidual at, or leaving in a conspicuous penalty of perjury if the individual cer-
place at, the last known principal place tifying service is not a party to the
of business of such party, last known proceeding in which such document or
principal place of business of the attor- paper is served, an attorney or rep-
ney or representative of record of such resentative of record for such a party,
party, or last known residence of such or an official or employee of the United
party if an individual, or States or of a State or political sub-
(ii) Delivery to such party if an indi- division thereof.
vidual, to an officer or director of such (f) Extensions of time. The time for the
party if a corporation, or to a member filing of any document or paper re-
of such party if a partnership, at any quired or authorized under the rules in
location. this part to be filed may be extended
(d) Service on another. Any subpoena, by the Judge or the Judicial Officer as
pmangrum on DSK3VPTVN1PROD with CFR

written questions for a deposition provided in § 1.143, if, in the judgment


under § 1.148(d)(2), or other document or of the Judge or the Judicial Officer, as
paper, served on any person other than the case may be, there is good reason
a party to a proceeding, the Secretary for the extension. In all instances in

49

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00059 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.148 7 CFR Subtitle A (1–1–12 Edition)

which time permits, notice of the re- sition may be ordered. The order shall
quest for extension of the time shall be be filed with the Hearing Clerk and
given to the other party with oppor- shall state:
tunity to submit views concerning the (i) The time of the deposition;
request. (ii) The place of the deposition;
(g) Effective date of filing. Any docu- (iii) The manner of the deposition
ment or paper required or authorized
(telephone, audio-visual telecommuni-
under the rules in this part to be filed
cation, or personal attendance of those
shall be deemed to be filed at the time
when it reaches the Hearing Clerk; or, who are to participate in the deposi-
if authorized to be filed with another tion);
officer or employee of the Department (iv) The name of the officer before
it shall be deemed to be filed at the whom the deposition is to be made; and
time when it reaches such officer or (v) The name of the deponent. The of-
employee. ficer and the time, place, and manner
(h) Computation of time. Saturdays, need not be the same as those sug-
Sundays and Federal holidays shall be gested in the motion for the deposition.
included in computing the time al- (2) The deposition shall be conducted
lowed for the filing of any document or by telephone unless the Judge deter-
paper: Provided, That, when such time mines that conducting the deposition
expires on a Saturday, Sunday, or Fed- by audio-visual telecommunication:
eral holiday, such period shall be ex- (i) Is necessary to prevent prejudice
tended to include the next following to a party;
business day.
(ii) Is necessary because of a dis-
[42 FR 743, Jan. 4, 1977, as amended at 55 FR ability of any individual expected to
30674, July 27, 1990; 60 FR 8456, Feb. 14, 1995; participate in the deposition; or
68 FR 6341, Feb. 7, 2003]
(iii) Would cost less than conducting
§ 1.148 Depositions. the deposition by telephone. If the
Judge determines that a deposition
(a) Motion for taking deposition. Upon
conducted by audio-visual tele-
the motion of a party to the pro-
ceeding, the Judge may, at any time communication would measurably in-
after the filing of the complaint, order crease the United States Department
the taking of testimony by deposition. of Agriculture’s cost of conducting the
The Motion shall be in writing, shall be deposition, the deposition shall be con-
filed with the Hearing Clerk, and shall ducted by personal attendance of any
set forth: individual who is expected to partici-
(1) The name and address of the pro- pate in the deposition or by telephone.
posed deponent; (3) If the deposition is not conducted
(2) The name and address of the per- by telephone, the deposition shall be
son (referred to hereafter in this sec- conducted by audio-visual tele-
tion as the ‘‘officer’’) qualified under communication unless the Judge deter-
the regulations in this part to take mines that conducting the deposition
depositions, before whom the proposed by personal attendance of any indi-
examination is to be made; vidual who is expected to participate in
(3) The proposed time and place of the deposition:
the examination, which shall be at (i) Is necessary to prevent prejudice
least 15 days after the date of the mail-
to a party;
ing of the motion; and
(4) The reasons why such deposition (ii) Is necessary because of a dis-
should be taken, which shall be solely ability of any individual expected to
for the purpose of eliciting testimony participate in the deposition; or
which otherwise might not be available (iii) Would cost less than conducting
at the time of hearing, for uses as pro- the deposition by telephone or audio-
vided in paragraph (g) of this section. visual telecommunication.
(c) Qualifications of officer. The depo-
pmangrum on DSK3VPTVN1PROD with CFR

(b) Judge’s order for taking deposition.


(1) If the Judge finds that the testi- sition shall be made before the Judge
mony may not be otherwise available or before an officer authorized by the
at the hearing, the taking of the depo- law of the United States or by the law

50

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00060 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.149

of the place of the examination to ad- timony given in the deposition pro-
minister oaths, or before an officer au- ceeding and to contain an accurate de-
thorized by the Secretary to admin- scription or reference to all exhibits in
ister oaths. connection therewith, and shall be
(d) Procedure on examination. (1) The deemed to be certified correct without
deponent shall be examined under oath further procedure.
or affirmation and shall be subject to (3) At any time prior to use of the
cross-examination. Objections to ques- deposition in accordance with para-
tions or documents shall be in short graph (g) of this section and after con-
form, stating the grounds of objections sideration of any objections filed there-
relied upon. The questions proponded, to, the Judge may issue an order mak-
together with all objections made (but ing any corrections in the transcript or
not including argument or debate), recording which the Judge finds are
shall be recorded verbatim. In lieu of warranted, which corrections shall be
oral examination, parties may trans- entered onto the original transcript or
mit written questions to the officer recording by the Hearing Clerk (with-
prior to the examination and the offi- out obscuring the original text).
cer shall propound such questions to (g) Use of deposition. A deposition or-
the deponent. dered and taken in accordance with the
(2) The applicant shall arrange for provisions of this section may be used
the examination of the witness either in a proceeding under these rules if the
by oral examination, or by written Judge finds that the evidence is other-
questions upon agreement of the par- wise admissible and (1) that the wit-
ties or as directed by the Judge. If the ness is dead; (2) that the witness is un-
examination is conducted by means of able to attend or testify because of age,
written questions, copies of the appli- sickness, infirmity, or imprisonment;
cant’s questions must be received by (3) that the party offering the deposi-
the other party to the proceeding and tion has endeavored to procure the at-
the officer at least 10 days prior to the tendance of the witness by subpoena,
date set for the examination unless but has been unable to do so; or (4) that
otherwise agreed, and any cross ques- such exceptional circumstances exist
tions of a party other than the appli- as to make it desirable, in the interests
cant must be received by the applicant of justice, to allow the deposition to be
and the officer at any time prior to the used. If the party upon whose motion
time of the examination. the deposition was taken refuses to
(e) Certification by officer. The officer offer it in evidence, any other party
shall certify on the deposition that the may offer the deposition or any part
deponent was duly sworn and that the thereof in evidence. If only part of a
deposition is a true record of the depo- deposition is offered in evidence by a
nent’s testimony. The officer shall party, an adverse party may require
then securely seal the deposition, to- the introduction of any other part
gether with one copy thereof (unless which ought in fairness to be consid-
there are more than two parties in the ered with the part introduced, and any
proceeding, in which case there should party may introduce any other parts.
be another copy for each additional
party), in an envelope and mail the [42 FR 743, Jan. 4, 1977, as amended at 55 FR
same by registered or certified mail to 30674, July 27, 1990; 60 FR 8456, Feb. 14, 1995;
68 FR 6341, Feb. 7, 2003]
the Hearing Clerk.
(f) Corrections to the transcript or re-
§ 1.149 Subpoenas. 3
cording. (1) At any time prior to the
hearing, any party may file a motion (a) Issuance of subpoenas. The attend-
proposing corrections to the transcript ance and testimony of witnesses and
or recording of the deposition. the production of documentary evi-
(2) Unless a party files such a motion dence from any place in the United
in the manner prescribed, the tran- States on behalf of any party to the
pmangrum on DSK3VPTVN1PROD with CFR

script or recording shall be presumed,


except for obvious typographical er- 3 This section relates only to subpoenas for
rors, to be a true, correct, and com- the stated purpose and has no relevance with
plete transcript or recording of the tes- respect to investigatory subpoenas.

51

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00061 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.150 7 CFR Subtitle A (1–1–12 Edition)

proceeding may be required by sub- neys have been given notice and an op-
poena at any designated place of hear- portunity to participate. A memo-
ing if authorized by the statute under randum of any such discussion shall be
which the proceeding is conducted. included in the record.
Subpoenas shall be issued by the Judge (b) No interested person shall make
upon a reasonable showing by the ap- or knowingly cause to be made to the
plicant of the grounds and necessity Judge or Judicial Officer an ex parte
thereof; and with respect to subpoenas communication relevant to the merits
for the production of documents, the of the proceeding.
request shall also show their com- (c) If the Judge or the Judicial Offi-
petency, relevancy, and materiality. cer receives an ex parte communication
All requests for subpoenas shall be in in violation of this section, the one
writing, unless waived by the Judge for who receives the communication shall
good cause shown. Except for good place in the public record of the pro-
cause shown, requests for subpoenas
ceeding:
shall be received by the Judge at least
10 days prior to the date set for the (1) All such written communications;
hearing. (2) Memoranda stating the substance
(b) Service of subpoenas. Subpoenas of all such oral communications; and
may be served by any person not less (3) All written responses, and memo-
than 18 years of age. The party at randa stating the substance of all oral
whose instance a subpoena is issued responses thereto.
shall be responsible for service thereof. (d) Upon receipt of a communication
Subpoenas shall be served as provided knowingly made or knowingly caused
in § 1.147. to be made by a party in violation of
[42 FR 743, Jan. 4, 1977, as amended at 55 FR
this section, the Judge or Judicial Offi-
30674, July 27, 1990; 60 FR 8457, Feb. 14, 1995; cer may, to the extent consistent with
68 FR 6341, Feb. 7, 2003] the interests of justice and the policy
of the underlying statute, require the
§ 1.150 Fees of witnesses. party to show cause why his claim or
Witnesses summoned under these interest in the proceeding should not
rules of practice shall be paid the same be dismissed, denied, disregarded, or
fees and mileage that are paid wit- otherwise adversely affected on ac-
nesses in the courts of the United count of such violation.
States, and witnesses whose deposi- (e) To the extent consistent with the
tions are taken, and the officer taking interests of justice and the policy of
the same, shall be entitled to the same the underlying statute, a violation of
fees as are paid for like services in the this section shall be sufficient grounds
courts of the United States. Fees shall for a decision adverse to the party who
be paid by the party at whose instance knowingly commits a violation of this
the witness appears or the deposition is section or who knowingly causes such
taken. a violation to occur.
(f) For purposes of this section ex
§ 1.151 Ex parte communications. parte communication means an oral or
(a) At no stage of the proceeding be- written communication not on the pub-
tween its institution and the issuance lic record with respect to which reason-
of the final decision shall the Judge or able prior notice to all parties is not
Judicial Officer discuss ex parte the given, but it shall not include requests
merits of the proceeding with any per- for status reports on any matter or the
son who is connected with the pro- proceeding.
ceeding in an advocative or in an inves-
tigative capacity, or with any rep-
resentative of such person: Provided,
Subpart I—Rules of Practice Gov-
That procedural matters shall not be erning Cease and Desist Pro-
included within this limitation; and ceedings Under Section 2 of
the Capper-Volstead Act
pmangrum on DSK3VPTVN1PROD with CFR

Provided further, That the Judge or Ju-


dicial Officer may discuss the merits of
the case with such a person if all par- AUTHORITY: 7 U.S.C. 291, 292; 7 CFR 2.35,
ties to the proceeding, or their attor- 2.41.

52

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00062 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.162
SOURCE: 45 FR 6587, Jan. 29, 1980, unless Judge means any Administrative Law
otherwise noted. Judge appointed pursuant to 5 U.S.C.
3105 (the Administrative Procedure
§ 1.160 Scope and applicability of rules
in this part. Act) and assigned to the proceeding in-
volved.
The rules of practice in this part
Judicial Officer means an official of
shall be applicable to cease and desist
the United States Department of Agri-
proceedings, initiated upon complaint
culture delegated authority by the Sec-
by the Secretary of Agriculture, pursu-
ant to section 2 of the Capper-Volstead retary, pursuant to the Act of April 4,
Act. 1940 (7 U.S.C. 450c–450g) and Reorga-
nization Plan No. 2 of 1953 (5 U.S.C.
§ 1.161 Definitions. App. (1988)), to perform the function in-
As used in this part, words in the sin- volved (§ 2.35(a) of this chapter), or the
gle form shall be deemed to import the Secretary if he or she exercises the au-
plural, and vice versa, as the case may thority so delegated.
require. The following terms shall be Respondent means the cooperative as-
construed, respectively, to mean: sociations, or association, against
Act means the Capper-Volstead Act, whom a complaint has been issued.
approved February 18, 1922, 42 Stat. 388, [45 FR 6587, Jan. 29, 1980, as amended at 60
7 U.S.C. 291, 292. FR 8457, Feb. 14, 1995]
Association means a cooperative asso-
ciation, a federation of cooperatives, or § 1.162 Institution of proceedings.
other association of agricultural pro-
ducers, as defined in section 1 of the (a) Filing of information. Any person
Act. having information that any agricul-
Complainant or Secretary means the tural association, as defined in the
Secretary of Agriculture, United Capper-Volstead Act, is engaged in any
States Department of Agriculture, or practice which monopolizes or re-
any officer(s) or employee(s) to whom strains trade in interstate or foreign
authority has heretofore been dele- commerce to such an extent that the
gated, or whom authority may here- price of any agricultural product is un-
after be delegated, to act in his or her duly enhanced by reason thereof, may
stead. submit such information to the Sec-
Complaint means a formal complaint retary. Such information shall be in
instituted by the Secretary of Agri- writing and shall contain a complete
culture requiring respondent to show statement of facts detailing the price
cause why an order should not be made enhancement and the practices alleged.
directing it to cease and desist from (b) Consideration of information. The
acts of monopolization or restraint of Secretary shall consider all informa-
trade, which result in undue price en- tion filed under paragraph (a) of this
hancement. section, and any other information
Decision means: (1) the Judge’s deci-
which the Secretary may obtain relat-
sion, and includes (i) findings and con-
ing to a violation of section 2 of the
clusions and the reasons or basis there-
Act. If the Secretary finds that there is
for on all material issues of fact, law,
or discretion, (ii) order, and (iii) rul- reason to believe that any association
ings on proposed findings, conclusions monopolizes or restrains trade in inter-
and order submitted by the parties, and state or foreign commerce to such an
(2) the decision and order by the Judi- extent that the price of any agricul-
cial Officer upon an appeal of the tural product is unduly enhanced
Judge’s decision. thereby the Secretary shall cause a
Hearing means that part of the pro- complaint to be filed, requiring the as-
ceeding which involves the submission sociation to show cause why an order
of evidence before the Judge for the should not be made directing the asso-
ciation to cease and desist from such
pmangrum on DSK3VPTVN1PROD with CFR

record in the proceeding.


Hearing Clerk means the Hearing monopolization or restraint of trade.
Clerk, United States Department of The complaint shall be filed with the
Agriculture, Washington, DC 20250. Hearing Clerk, who shall assign to the

53

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00063 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.163 7 CFR Subtitle A (1–1–12 Edition)

proceeding a docket number and effect § 1.166 Consent order.


service upon respondent. At any time, complainant and re-
[45 FR 6587, Jan. 29, 1980, as amended at 60 spondent may agree to the entry of a
FR 8457, Feb. 14, 1995] consent order. Such order shall be en-
tered by the Judge (prior to a decision)
§ 1.163 The complaint. or the Judicial Officer (after a decision
The complaint shall state briefly all by the Judge), and become effective on
allegations of fact which constitute a the date specified therein.
basis for the proceeding, and shall des- § 1.167 Conference.
ignate a time and place for the hearing
in the matter, which shall be at least (a) Purpose. Upon motion of a party
30 days after the service of the com- or upon the Judge’s own motion, the
plaint upon the respondent. Judge may direct the parties to attend
a conference when the Judge finds that
§ 1.164 Answer. the proceeding would be expedited by
discussions on matters of procedure
(a) Filing and service. Within 20 days and/or possible stipulations. The con-
after service of the complaint, or such ference may include discussions re-
other time as may be specified therein, garding:
the respondent shall file with the Hear- (1) Simplification of the issues;
ing Clerk, an answer, signed by the re- (2) Limitation of expert or other wit-
spondent or the respondent’s attorney. nesses;
The answer shall be served upon the (3) The orderly presentation of evi-
complainant by the Hearing Clerk. dence; and
(b) Contents. The answer shall clearly (4) Any other matters that may expe-
admit, deny, or offer an explanation in dite and aid in the disposition of the
response to each of the allegations of proceeding.
the complaint, and shall clearly set (b) Manner of the Conference. (1) The
forth any affirmative defense. conference shall be conducted by tele-
(c) Default. Failure to file an answer phone or correspondence unless the
shall constitute an admission of the al- Judge determines that conducting the
legations in the complaint, and may be conference by audio-visual tele-
the basis for a decision upon the pres- communication:
entation of a prima facie case by the (i) Is necessary to prevent prejudice
complainant. to a party;
(ii) Is necessary because of a dis-
[45 FR 6587, Jan. 29, 1980, as amended at 60 ability of any individual expected to
FR 8457, Feb. 14, 1995] participate in the conference; or
(iii) Would cost less than conducting
§ 1.165 Amendments. the conference by telephone or cor-
Amendments to the complaint may respondence. If the Judge determines
be made prior to the filing of an answer that a conference conducted by audio-
in which case the time for filing the visual telecommunication would meas-
answer shall be extended 20 days or for urably increase the United States De-
other time agreed to by the parties. partment of Agriculture’s cost of con-
After the answer is filed, amendments ducting the conference, the conference
to the complaint, or to the answer or shall be conducted by personal attend-
other pleading, may be made by agree- ance of any individual who is expected
ment of the parties or allowed at the to participate in the conference, by
discretion of the Judge. In case of an telephone, or by correspondence.
(2) If the conference is not conducted
amendment which significantly
by telephone or correspondence, the
changes the issues, the hearing shall,
conference shall be conducted by
on the request of a party, be postponed
audio-visual telecommunication unless
or adjourned for a reasonable period, if
pmangrum on DSK3VPTVN1PROD with CFR

the Judge determines that conducting


the Judge determines that such action the conference by personal attendance
is necessary to avoid prejudice to the of any individual who is expected to
party. participate in the conference:

54

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00064 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.168

(i) Is necessary to prevent prejudice reconsideration must be accompanied


to a party; by a memorandum in support of the
(ii) Is necessary because of a dis- motion stating the basis for the motion
ability of any individual expected to and the circumstances that require the
participate in the conference; or hearing to be conducted other than in
(iii) Would cost less than conducting accordance with the Judges’s notice.
the conference by audio-visual tele- (3) The hearing shall be conducted by
communication. audio-visual telecommunication unless
[60 FR 8457, Feb. 14, 1995] the Judge determines that conducting
the hearing by personal attendance of
§ 1.168 Procedure for hearing. any individual who is expected to par-
(a) Time and place. The oral hearing ticipate in the hearing:
shall be held at such time and place as (i) Is necessary to prevent prejudice
specified in the complaint, and not less to a party;
than 30 days after service thereof. The (ii) Is necessary because of a dis-
time and place of the hearing may be ability of any individual expected to
changed for good cause, by the Judge, participate in the hearing; or
upon motion of either complainant or (iii) Would cost less than conducting
respondent.
the hearing by audio-visual tele-
(b) Manner of hearing. (1) The Judge
communication. If the Judge deter-
shall file with the Hearing Clerk a no-
mines that a hearing conducted by
tice stating whether the hearing will
be conducted by telephone, audio-vis- audio-visual telecommunication would
ual telecommunication, or personal at- measurably increase the United States
tendance of any individual expected to Department of Agriculture’s cost of
attend the hearing and the Judge’s de- conducting the hearing, the hearing
termination regarding the manner of shall be conducted by personal attend-
hearing shall be made in accordance ance of any individual who is expected
with paragraphs (b)(3) and (b)(4) of this to participate in the hearing or by tele-
section. If any change in the manner of phone.
the hearing is made, the Judge shall (4) The Judge may, in his or her sole
file with the Hearing Clerk a notice of discretion or in response to a motion
the change, which notice shall be by a party to the proceeding, conduct
served on the parties, unless it is made the hearing by telephone if the Judge
during the course of an oral hearing finds that a hearing conducted by tele-
and made part of the transcript or re- phone:
cording, or actual notice is given to the (i) Would provide a full and fair evi-
parties. dentiary hearing;
(2)(i) Any party may move that the (ii) Would not prejudice any party;
hearing be conducted by telephone or and
personal attendance of any individual (iii) Would cost less than conducting
expected to attend the hearing rather
the hearing by audio-visual tele-
than by audio-visual telecommuni-
communication or personal attendance
cation. Any motion that the hearing be
of any individual who is expected to
conducted by telephone or personal at-
participate in the hearing.
tendance of any individual expected to
attend the hearing must be accom- (c) Appearances. The parties may ap-
panied by a memorandum in support of pear in person or by counsel or by
the motion stating the basis for the other representative. Persons who ap-
motion and the circumstances that re- pear as counsel or in a representative
quire the hearing to be conducted other capacity must conform to the stand-
than by audio-visual telecommuni- ards of ethical conduct required of
cation. practitioners before the courts of the
(ii) Within 10 days after the Judge United States.
issues a notice stating the manner in (d) Order of proceeding. Except as oth-
erwise may be agreed by the parties
pmangrum on DSK3VPTVN1PROD with CFR

which the hearing is to be conducted,


any party may move that the Judge re- and approved by the Judge, the com-
consider the manner in which the hear- plainant shall proceed first at the hear-
ing is to be conducted. Any motion for ing.

55

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00065 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.168 7 CFR Subtitle A (1–1–12 Edition)

(e) Failure to appear. If respondent, part of the transcript or recording.


after being duly notified, fails to ap- Only objections made before the Judge
pear at the hearing, and no good cause may subsequently be relied upon in the
for such failure is established, com- proceeding.
plainant shall present a prime facie case (3) Official records or documents. An of-
on the matters denied in the answer. ficial record or document, if admissible
(f) Written statements of direct testi- for any purpose, shall be admissible in
mony. (1) Except as provided in para- evidence without the production of the
graph (f)(2) of this section, each party person who made or prepared the same,
must exchange with all other parties a and shall be prima facie evidence of the
written narrative verified statement of relevant facts stated therein. Such
the oral direct testimony that the record or document shall be evidenced
party will provide at any hearing to be by an official publication thereof, or by
conducted by telephone; the direct tes- a copy certified by a person having
timony of each employee or agent of legal authority to make such certifi-
the party that the party will call to cation.
provide oral direct testimony at any (4) Exhibits. Unless the Judge finds
hearing to be conducted by telephone; that the furnishing of multiple copies
and the direct testimony of each expert is impracticable, four copies of each ex-
witness that the party will call to pro- hibit shall be filed with the Judge un-
vide oral direct testimony at any hear- less the Judge finds that a greater or
ing to be conducted by telephone. The lesser number is desirable. A true copy
written direct testimony of witnesses of an exhibit may be substituted for
shall be exchanged by the parties at the original.
least 10 days prior to the hearing. The (5) Official notice. Official notice shall
oral direct testimony provided by a be taken of such matters as are judi-
witness at a hearing conducted by tele- cially noticed by the courts of the
phone will be limited to the presen- United States and of any other matter
tation of the written direct testimony, of technical, scientific, or commercial
unless the Judge finds that oral direct fact of established character: Provided,
testimony which is supplemental to That the opposing party shall be given
the written direct testimony would fur- adequate opportunity to show that
ther the public interest and would not such facts are erroneously noticed.
constitute surprise. (6) Offer of proof. Whenever evidence
(2) The parties shall not be required is deleted from the record, the party of-
to exchange testimony in accordance fering such evidence may make an
with this paragraph if the hearing is offer of proof, which shall be included
scheduled to begin less than 20 days in the transcript or recording. The
after the Judge’s notice stating the offer of proof shall consist of a brief
time of the hearing. statement describing the evidence ex-
(g) Evidence. (1) The testimony of wit- cluded. If the evidence consists of a
nesses at the hearing shall be upon brief oral statement or of an exhibit, it
oath or affirmation, transcribed or re- shall be inserted into the transcript or
corded verbatim, and subject to cross- recording in toto. In such event, it
examination. Evidence which is imma- shall be considered a part of the tran-
terial, irrelevant, or unduly repeti- script or recording and record if the
tious, or which is not of the sort upon Judicial Officer decides that the
which responsible persons are accus- Judge’s ruling in excluding the evi-
tomed to rely, shall be excluded insofar dence was erroneous and prejudicial.
as practicable. The Judge shall not allow the insertion
(2) Objections. If a party objects to of such excluded evidence in toto if the
the admission of any evidence or to the taking of such evidence will consume
limitation of the scope of any examina- considerable time at the hearing. In
tion or cross-examination, the party the latter event, if the Judicial Officer
shall briefly state the grounds of such decides that the Judge’s ruling exclud-
pmangrum on DSK3VPTVN1PROD with CFR

objections, whereupon an automatic ing the evidence was both prejudicial


exception will follow if the objection is and erroneous, the hearing may be re-
overruled by the Judge. The ruling of opened to permit the taking of such
the Judge on any objection shall be evidence.

56

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00066 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.170

(7) Affidavits. Affidavits may be sub- transcript or recording, the Judge may
mitted into evidence, in lieu of witness issue an order making any corrections
testimony, only to the extent, and in in the transcript or recording which
the manner agreed upon by the parties. the Judge finds are warranted, which
(h) Transcript or recording. (1) Hear- corrections shall be entered onto the
ings to be conducted by telephone shall original transcript or recording by the
be recorded verbatim by electronic re- Hearing Clerk (without obscurring the
cording device. Hearings conducted by original text).
audio-visual telecommunication or the (b) Proposed findings of fact, conclu-
personal attendance of any individual sions, order and briefs. The parties may
who is expected to participate in the file with the Hearing Clerk proposed
hearing shall be transcribed, unless the findings of fact, conclusions and orders
Judge finds that recording the hearing based solely upon the record and on
verbatim would expedite the pro- matters subject to official notice, and
ceeding and the Judge orders the hear- briefs in support thereof. The Judge
ing to be recorded verbatim. The Judge shall announce at the hearing a defi-
shall certify that to the best of his or nite period of time within which these
her knowledge and belief any recording documents may be filed.
made pursuant to this paragraph with (c) Judge’s decision. The Judge, within
exhibits that were accepted into evi- a reasonable time after the termi-
dence is the record of the hearing. nation of the period allowed for the fil-
(2) If a hearing is recorded verbatim, ing of proposed findings of fact, conclu-
a party requests the transcript of a sions and order, and briefs in support
hearing or part of a hearing, and the thereof, shall prepare, upon the basis of
Judge determines that the disposition the record and matters officially no-
of the proceeding would be expedited ticed, and shall file with the Hearing
by a transcript of the hearing or part Clerk, the Judge’s decision, a copy of
of a hearing, the Judge shall order the which shall be served by the Hearing
verbatim transcription of the recording Clerk upon each of the parties. Such
as requested by the party. decision shall become final and effec-
(3) Recordings or transcripts of hear- tive without further proceedings 35
ings shall be made available to any days after the date of service thereof
person at actual cost of duplication. upon the respondent, unless there is an
appeal to the Judicial Officer by a
[45 FR 6587, Jan. 29, 1980, as amended at 60
party to the proceeding pursuant to
FR 8457, Feb. 14, 1995]
§ 1.170: Provided, That no decision shall
§ 1.169 Post-hearing procedure and de- be final for purposes of a request for
cision. Judicial Review, as provided in
(a) Corrections to transcript or record- § 1.175(a), except a final decision of the
ing. (1) At any time, but not later than Judicial Officer on appeal.
the time fixed for filing proposed find- [45 FR 6587, Jan. 29, 1980, as amended at 60
ings of fact, conclusions and order, or FR 8458, Feb. 14, 1995]
briefs, as the case may be, any party
may file a motion proposing correc- § 1.170 Appeal to the Judicial Officer.
tions to the transcript or recording. (a) Filing of petition. Within 30 days
(2) Unless a party files such a motion after receiving service of the Judge’s
in the manner prescribed, the tran- decision, a party who disagrees with
script or recording shall be presumed, the decision, or any part thereof, or
except for obvious typographical er- any ruling by the Judge or any alleged
rors, to be a true, correct, and com- deprivation of rights, may appeal such
plete transcript or recording of the tes- decision to the Judicial Officer by fil-
timony given at the hearing and to ing an appeal petition with the Hearing
contain an accurate description or ref- Clerk. As provided in § 1.168(g)(2), objec-
erence to all exhibits received in evi- tions regarding evidence or a limita-
dence and made part of the hearing tion regarding examination or cross-ex-
pmangrum on DSK3VPTVN1PROD with CFR

record. amination or other ruling made before


(3) At any time prior to the filing of the Judge may be relied upon in an ap-
the Judge’s decision and after consider- peal. Each issue set forth in the peti-
ation of any objections filed as to the tion, and the arguments thereon, shall

57

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00067 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.171 7 CFR Subtitle A (1–1–12 Edition)

be separately numbered; shall be plain- upon request of a party or upon the Ju-
ly and concisely stated; and shall con- dicial Officer’s own motion.
tain detailed citations to the record, (e) Scope of argument. Argument to be
statutes, regulations or authorities heard on appeal, whether oral or on
being relied upon in support thereof. A brief, shall be limited to the issues
brief may be filed in support of the ap- raised in the appeal or in the response
peal simultaneously with the petition. to the appeal, except that if the Judi-
(b) Response to appeal petition. Within cial Officer determines that additional
20 days after the service of a copy of an issues should be argued, the parties
appeal petition and any brief in sup- shall be given reasonable notice of such
port thereof, filed by a party to the determination, so as to permit prepara-
proceeding, any other party may file tion of adequate arguments on all
issues to be argued.
with the Hearing Clerk a response in
(f) Notice of argument; Postponement.
support of or in opposition to the ap-
The Hearing Clerk shall advise all par-
peal and in such response any relevant
ties of the time and place at which oral
issue, not presented in the appeal peti- argument will be heard. A request for
tion, may be raised. postponement of the argument must be
(c) Transmittal of record. Whenever an made by motion filed a reasonable
appeal of a Judge’s decision is filed and amount of time in advance of the date
a response thereto has been filed or fixed for argument.
time for filing a response has expired, (g) Order of argument. The appellant
the Hearing Clerk shall transmit to the is entitled to open and conclude the ar-
Judicial Officer the record of the pro- gument.
ceeding. Such record shall include: the (h) Submission on briefs. By agreement
pleadings; motions and requests filed of the parties, an appeal may be sub-
and rulings thereon; the transcript or mitted for decision on the briefs, but
recording of the testimony taken at the Judicial Officer may direct that
the hearing, together with the exhibits the appeal be argued orally.
filed in connection therewith; any doc- (i) Decision of the judicial officer on ap-
uments or papers filed in connection peal. As soon as practicable after the
with a prehearing conference; such pro- receipt of the record from the Hearing
posed findings of fact, conclusions, and Clerk, or, in case oral argument was
orders, and briefs in support thereof, as had, as soon as practicable thereafter,
may have been filed in connection with the Judicial Officer, upon the basis of
the proceeding; the Judge’s decision; and after due consideration of the
such exceptions, statements of objec- record and any matter of which official
tions and briefs in support thereof as notice is taken, shall rule on the ap-
may have been filed in the proceeding; peal. If the Judicial Officer decides
and the appeal petition, and such briefs that no change or modification of the
in support thereof and responses there- Judge’s decision is warranted, the Ju-
to as may have been filed in the pro- dicial Officer may adopt the Judge’s
ceeding. decision as the final order in the pro-
(d) Oral argument. A party bringing ceeding, preserving any right of the
an appeal may request, within the pre- party bringing the appeal to seek judi-
scribed time for filing such appeal, an cial review of such decision in the
opportunity for oral arguments before proper forum. A final order issued by
the Judicial Officer. Within the time the Judicial Officer shall be filed with
allowed for filing a response, appellee the Hearing Clerk. Such order may be
may file a request in writing for oppor- regarded by the respondent as final for
tunity for such an oral argument. Fail- purposes of a request for judicial re-
ure to make such request in writing, view as provided in § 1.175(a).
within the prescribed time period, shall [45 FR 6587, Jan. 29, 1980, as amended at 60
be deemed a waiver of oral argument. FR 8458, Feb. 14, 1995]
The Judicial Officer may grant, refuse,
§ 1.171 Intervention.
pmangrum on DSK3VPTVN1PROD with CFR

or limit any request for oral argument.


Oral argument shall not be transcribed Intervention under these rules shall
unless so ordered in advance by the Ju- not be allowed, except that, in the dis-
dicial Officer for good cause shown cretion of the Judicial Officer, or the

58

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00068 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.173

Judge, any person showing a substan- ticipated in the investigation pre-


tial interest in the outcome of the pro- ceding the institution of the pro-
ceeding shall be permitted to partici- ceeding or in determination that it
pate in oral or written argument pur- should be instituted or in the prepara-
suant to §§ 1.169 and 1.170. tion of the moving paper or in the de-
velopment of the evidence to be intro-
[45 FR 6587, Jan. 29, 1980, as amended at 60
FR 8458, Feb. 14, 1995] duced therein.
(b) Disqualification of Judge. (1) Any
§ 1.172 Motions and requests. party to the proceeding may, by mo-
tion made to the Judge, request that
(a) General. All motions and requests
the Judge disqualify himself or herself
shall be filed with the Hearing Clerk,
and withdraw from the proceeding.
and shall be served upon the parties,
Such motion shall set forth with par-
except those made on record during the
ticularity the alleged disqualification.
oral hearing. The Judge shall rule upon
The Judge may then either rule upon
all motions and requests filed or made
or certify the motion to the Judicial
prior to the filing of the certification
Officer, but not both.
of the transcript or recording. There-
(2) A Judge will withdraw from any
after, the Judicial Officer will rule on
proceeding in which the Judge deems
any motions or requests.
himself or herself disqualified for any
(b) Motions entertained. Any motion
reason.
will be entertained except a motion to
(c) Conduct. At no stage of the pro-
dismiss on the pleadings. All motions
ceeding between its institution and the
and requests concerning the complaint
issuance of the final decision shall the
must be made within the time allowed
Judicial Officer or the Judge discuss ex
for filing an answer.
parte the merits of the proceeding with
(c) Contents. All written motions and
any person who is connected with the
requests shall state the particular
proceeding as an advocate or in an in-
order, ruling, or action desired and the
vestigative capacity, or with any rep-
grounds therefor.
resentative of such person: Provided,
(d) Response to motions in request.
That procedural matters shall not be
Within ten days after service of any
included within the limitation: and
written motion or request, or within
Provided further, That the Judicial Offi-
such shorter or longer period as may be
cer of Judge may discuss the merits of
fixed by the Judge or the Judicial Offi-
the case with such a person if all par-
cer the opposing party may file a re-
ties to the proceeding, or their rep-
sponse to the motion or request.
resentatives, have been given an oppor-
(e) Certification to the judicial officer.
tunity to be present. Any memo-
The submission or certification of any
randum or other communication ad-
motion, request, objection, or other
dressed to the Judicial Officer or a
question to the Judicial Officer prior to
Judge, during the pendency of the pro-
the time when the Judge’s certification
ceeding, and relating to the merits
of the transcript is filed with the Hear-
thereof, by or on behalf of any party or
ing Clerk, shall be made by and in the
any interested person, shall be filed
discretion of the Judge. The Judge may
with the Hearing Clerk. A copy thereof
either rule upon or certify the motion,
shall be served upon the parties to the
request, objection, or other question to
proceeding, and, in the discretion of
the Judicial Officer, but not both.
the Judge or the Judicial Officer, op-
[45 FR 6587, Jan. 29, 1980, as amended at 60 portunity may be given to file a reply
FR 8458, Feb. 14, 1995] thereto within a specified period.
(d) Powers. Subject to review by the
§ 1.173 Judges. Judicial Officer as provided elsewhere
(a) Assignment. No Judge shall be as- in this part, the Judge, in any pro-
signed to serve in any proceeding who ceeding assigned to him or her shall
(1) has any pecuniary interest in any have power to:
pmangrum on DSK3VPTVN1PROD with CFR

matter or business involved in the pro- (1) Rule upon motions and requests;
ceeding, (2) is related within the third (2) Set the time, place, and manner of
degree by blood or marriage to any any conference, set the manner of the
party to the proceeding, or (3) has par- hearing, adjourn the hearing, and

59

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00069 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
§ 1.174 7 CFR Subtitle A (1–1–12 Edition)

change the time, place, and manner of shall be served upon the parties by the
the hearing; Hearing Clerk, or by some other em-
(3) Administer oaths and affirma- ployee of the Department, or by a U.S.
tions; Marshal or his Deputy. Service shall be
(4) Examine witnesses and receive made either (1) by delivering a copy of
relevant evidence; the document or paper to the indi-
(5) Admit or exclude evidence; vidual to be served or to a member of
(6) Hear oral argument on facts or the partnership to be served, or to the
law; president, secretary, or other executive
(7) Require each party to provide all officer or any director of the corpora-
other parties and the Judge with a tion or association to be served, or to
copy of any exhibit that the party in- the attorney or agent of record of such
tends to introduce into evidence prior individual, partnership, corporation,
to any hearing to be conducted by tele- organization, or association; or (2) by
phone or audio-visual telecommuni- leaving a copy of the document or
cation; paper at the principal office or place of
(8) Require that any hearing to be business or residence of such indi-
conducted by telephone or audio-visual vidual, partnership, corporation, orga-
telecommunication be conducted at lo- nization, or association, or of his or its
cations at which the parties and the attorney or agent of record and mail-
Judge are able to transmit and receive ing by regular mail another copy to
documents during the hearing; each person at such address; or (3) by
(9) Do all acts and take all measures registering or certifying and mailing a
necessary for the orderly presentation copy of the document or paper, ad-
of evidence, maintenance of order, and dressed to such individual, partnership,
the efficient conduct of the proceeding. corporation, organization, or associa-
(e) Who may act in the absence of the tion, or to his or its attorney or agent
Judge. In case of the absence of the of record, at his or its last known resi-
Judge or upon the Judge’s inability to dence or principal office or place of
act, the powers and duties to be per- business: Provided, That if the reg-
formed by the Judge under these Rules istered or certified document or paper
of Practice in connection with a pro- is returned undelivered because the ad-
ceeding assigned to the Judge may, dressee refused or failed to accept de-
without abatement of the proceeding, livery, the document or paper shall be
be assigned to any other Judge. served by remailing it by regular mail.
[45 FR 6587, Jan. 29, 1980, as amended at 60 Proof of service hereunder shall be
FR 8458, Feb. 14, 1995] made by the certification of the person
who actually made the service: Pro-
§ 1.174 Filing; service; extensions of vided, That if the service be made by
time; and computation of time. mail, as outlined in paragraph (b)(3) of
(a) Filing; Number of Copies. Except as this section proof of service shall be
otherwise provided by the Judge or the made by the return post office receipt,
Secretary, all documents or papers re- in the case of registered or certified
quired or authorized by the rules in mail, or by the certificate of the person
this part to be filed with the Hearing who mailed the matter by regular mail.
Clerk shall be filed in quadruplicate: The certificate and post office receipt
Provided, That, where there are parties contemplated herein shall be filed with
to the proceeding in addition to com- the Hearing Clerk, and the fact of fil-
plainant and respondent, an additional ing thereof shall be noted in the record
copy shall be filed for each such addi- of the proceeding.
tional party. Any document or paper, (c) Extension of time. The time for the
required or authorized under the rules filing of any document or paper re-
in this part to be filed with the Hearing quired or authorized under the rules in
Clerk, shall, during the course of an this part to be filed may be extended
oral hearing, be filed with the Judge. by the Judge prior to the filing of the
pmangrum on DSK3VPTVN1PROD with CFR

(b) Service; proof of service. Copies of certification of the transcript or re-


all such documents or papers required cording if there is good reason for the
or authorized by the rules in this part extension. In all instances in which
to be filed with the Hearing Clerk, time permits, notice of the request for

60

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00070 Fmt 8010 Sfmt 8002 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.181

extension of the time shall be given to proceeding, together with a petition


the other party with opportunity to asking that the order be enforced.
submit views concerning the request. (c) Notice. The Secretary shall give
(d) Effective date of filing. Any docu- notice of the filing of a petition for en-
ment or paper required or authorized forcement or review to the Attorney
under the rules in this part to be filed General, and to the association, by
shall be deemed to be filed at the time service of a copy of the petition.
when it reaches the Department of Ag-
riculture in Washington, D.C.; or, if au- Subpart J—Procedures Relating to
thorized to be filed with an officer or
employee of the Department at any
Awards Under the Equal Ac-
place outside the District of Columbia, cess to Justice Act in Pro-
it shall be deemed to be filed at the ceedings Before the Depart-
time when it reaches the office of such ment
officer or employee.
(e) Computation of time. Saturdays, SOURCE: 67 FR 63237, Oct. 11, 2002, unless
Sundays and Federal holidays shall be otherwise noted.
included in computing the time al-
lowed for the filing of any document or GENERAL PROVISIONS
paper: Provided, That when such time
expires on a Saturday, Sunday or Fed- § 1.180 Definitions.
eral holiday, such period shall be ex- (a) The definitions contained in § 1.132
tended to include the next following of this part are incorporated into and
business day. made applicable to this subpart.
[45 FR 6587, Jan. 29, 1980, as amended at 60 (b) Adjudicative Officer means an ad-
FR 8459, Feb. 14, 1995] ministrative law judge, administrative
judge, or other person assigned to con-
§ 1.175 Procedure following entry of duct a proceeding covered by EAJA.
cease and desist order. (c) Agency means an organizational
(a) Request for judicial review. An as- unit of the Department whose head re-
sociation subject to a cease and desist ports to an official in the Office of the
order may, within thirty days fol- Secretary.
lowing the date of the order, request (d) Agency counsel means the attor-
the Secretary to institute proceedings ney from the Office of the General
for judicial review of the order. Such Counsel representing the agency of the
request shall, to the extent practicable, Department administering the statute
identify findings of fact, conclusions of involved in the proceeding.
law, and any part of the order which (e) Days means calendar days.
the association claims are in error. The (f) Department means the United
Secretary shall, thereupon, file in the States Department of Agriculture.
district in the judicial district in which
such association has its principal place § 1.181 Purpose of these rules.
of business, a certified copy of the The Equal Access to Justice Act, 5
order and of all records in the pro- U.S.C. 504 (called ‘‘EAJA’’ in this sub-
ceeding, including the request of the part), provides for the award of attor-
association, together with a petition ney fees and other expenses to eligible
asking that the order be affirmed and individuals and entities who are parties
enforced. to certain administrative proceedings
(b) Enforcement. If an association sub- (called ‘‘adversary adjudications’’) be-
ject to a cease and desist order fails or fore the Department. An eligible party
neglects, within thirty days of the date may receive an award when it prevails
of the order, or at any time thereafter, over the Department unless the posi-
to obey such order, and has not made a tion of the Department was substan-
request for judicial review as provided tially justified or special cir-
above, the Secretary shall file in the cumstances make an award unjust. Al-
pmangrum on DSK3VPTVN1PROD with CFR

district court in the judicial district in ternatively, an eligible party may re-
which such association has its prin- ceive an award in connection with an
cipal place of business a certified copy adversary adjudication arising from an
of the order and of all records in the agency action to enforce the party’s

61

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.182 7 CFR Subtitle A (1–1–12 Edition)

compliance with a statutory or regu- proceedings covered include adversary


latory requirement where the demand adjudications under the following stat-
by the agency is substantially in excess utory provisions.
of the decision of the adjudicative offi-
cer and is unreasonable when compared Agricultural Marketing Agreement Act of
1937 (7 U.S.C. 608c(15)(A))
with such decision under the facts and
Animal Health Protection Act, sections 10414
circumstances of the case. The rules in and 10415 (7 U.S.C. 8313 and 8314).
this subpart describe the parties eligi- Animal Quarantine Laws (21 U.S.C. 104, 117,
ble for awards and the proceedings that 122, 127, 134e, and 135a)
are covered. They also explain how to Animal Welfare Act (7 U.S.C. 2149)
apply for awards, and the procedures Archaeological Resources Protection Act (16
and standards that the Department U.S.C. 470ff)
will use to make awards. Beef Research and Information Act (7 U.S.C.
2912)
§ 1.182 When EAJA applies. Capper-Volstead Act (7 U.S.C. 292)
EAJA applies to any adversary adju- Cotton Research and Promotion Act (7
dication pending or commenced before U.S.C. 2111)
the Department on or after August 5, Egg Products Inspection Act (21 U.S.C. 1047)
1985, except with respect to a pro- Egg Research and Consumer Information Act
ceeding covered under § 1.183(a)(1)(iii) of (7 U.S.C. 2713, 2714(b))
this part, which is effective on or after Endangered Species Act (16 U.S.C. 1540(a))
October 21, 1986. In addition, the provi- Federal Land Policy and Management Act
(43 U.S.C. 1766)
sions of § 1.185(b) relating to award for
Federal Meat Inspection Act (21 U.S.C. 604,
excessive demand apply only to adver-
606, 607(e), 608, 671)
sary adjudications commenced on or
Federal Seed Act (7 U.S.C. 1599)
after March 29, 1996. Changes in max- Horse Protection Act (15 U.S.C. 1823(c), 1825)
imum rates for attorney fees are effec- Packers and Stockyards Act (7 U.S.C. 193,
tive as of October 11, 2002. 204, 213, 218d, 221)
Perishable Agricultural Commodities Act (7
§ 1.183 Proceedings covered.
U.S.C. 499c(c), 499d(d), 499f(c), 499h(a),
(a)(1) The rules in this subpart apply 499h(b), 499h(c), 499i, 499m(a))
to adversary adjudications. These are: Plant Protection Act (7 U.S.C. 7734, 7735, and
(i) Adjudications required by statute 7736)
to be conducted by the Department Potato Research and Promotion Act (7
under 5 U.S.C. 554 in which the position U.S.C. 2620)
of the Department or any other agency Poultry Products Inspection Act (21 U.S.C.
of the United States, or any component 455, 456, 457(d), 467)
of an agency, is presented by an attor- Swine Health Protection Act (7 U.S.C.
ney or other representative who enters 3804(b), 3805(a))
an appearance and participates in the Title V of the Agricultural Risk Protection
Act of 2000, section 501(a) (7 U.S.C. 2279e).
proceeding,
U.S. Cotton Standards Act (7 U.S.C. 51b, 53)
(ii) Appeals of decisions of con-
U.S. Grain Standards Act (7 U.S.C. 79(g)(3),
tracting officers made pursuant to sec- 85, 86)
tion 6 of the Contract Disputes Act of U.S. Warehouse Act (7 U.S.C. 246, 253)
1978 (41 U.S.C. 605) before the Agri- Virus-Serum-Toxin Act (21 U.S.C. 156)
culture Board of Contract Appeals as Wheat and Wheat Foods Research and Nutri-
provided in section 8 of that Act (41 tion Education Act (7 U.S.C. 3409)
U.S.C. 607), and
(iii) Any hearing conducted under (b) The failure of the Department to
chapter 38 of title 31, United States identify a type of proceeding as an ad-
Code. versary adjudication shall not preclude
(2) Any proceeding in which the De- the filing of an application by a party
partment may prescribe a lawful who believes the proceeding is covered
present or future rate is not covered by by EAJA; whether the proceeding is
EAJA. Proceedings to grant or renew covered will then be an issue for resolu-
tion in proceedings on the application.
pmangrum on DSK3VPTVN1PROD with CFR

licenses also are excluded, but pro-


ceedings to modify, suspend, or revoke (c) If a proceeding includes both mat-
licenses are covered if they are other- ters covered by EAJA and matters spe-
wise ‘‘adversary adjudications.’’ The cifically excluded from coverage, any

62

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.185

award made will include only fees and net worth and number of employees of
expenses related to covered issues. an applicant shall be determined as of
[67 FR 63237, Oct. 11, 2002, as amended at 67
the date the applicant filed its appeal
FR 70674, Nov. 26, 2002] under 41 U.S.C. 606.
(d) In interpreting the criteria set
§ 1.184 Eligibility of applicants. forth in paragraph (b) of this section,
(a) To be eligible for an award of at- the following apply:
torney fees and other expenses under (1) An applicant who owns an unin-
EAJA, the applicant must meet one of corporated business will be considered
the following conditions: as an ‘‘individual’’ rather than a ‘‘sole
(1) The applicant must be a pre- owner of an unincorporated business’’
vailing party to the adversary adju- if the issues on which the applicant
dication for which it seeks an award; or prevails are related primarily to per-
(2) The applicant must be a party to sonal interests rather than to business
an adversary adjudication arising from interests.
an agency action to enforce the party’s (2) The employees of an applicant in-
compliance with a statutory or regu- clude all persons who regularly per-
latory requirement in which the de- form services for remuneration for the
mand by the agency was substantially applicant, under the applicant’s direc-
in excess of the decision of the adju- tion and control. Part-time employees
dicative officer and the demand is un- shall be included on a proportional
reasonable when compared with such basis.
decision under the facts and cir- (3) The net worth and number of em-
cumstances of the case. ployees of the applicant and all of its
(b) In addition to the criteria set out affiliates shall be aggregated to deter-
in paragraph (a) of this section, a party mine eligibility. Any individual, cor-
seeking an award must be one of the poration, or other entity that directly
following: or indirectly controls or owns a major-
(1) An individual with a net worth of ity of the voting shares or other inter-
not more than $2 million; est of the applicant, or any corporation
(2) The sole owner of an unincor- or other entity of which the applicant
porated business who has a net worth directly or indirectly owns or controls
of not more than $7 million, including a majority of the voting shares or
both personal and business interests, other interest, will be considered an af-
and not more than 500 employees; filiate for purposes of this subpart, un-
(3) A charitable or other tax-exempt less the adjudicative officer determines
organization described in section such treatment would be unjust and
501(c)(3) of the Internal Revenue Code contrary to the purposes of EAJA in
(26 U.S.C. 501(c)(3)) with not more than light of the actual relationship be-
500 employees; tween the affiliated entities. In addi-
(4) A cooperative association as de- tion, the adjudicative officer may de-
fined in section 15(a) of the Agricul- termine that financial relationships of
tural Marketing Act (2 U.S.C. 1141j(a)) the applicant other than those de-
with not more than 500 employees; scribed in this paragraph constitute
(5) Any other partnership, corpora- special circumstances that would make
tion, association, unit of local govern- an award unjust.
ment, or organization with a net worth (4) An applicant that participates in
of not more than $7 million and nor a proceeding primarily on behalf of one
more than 500 employees; or more other person or entity that
(6) For purposes only of paragraph would be ineligible is not itself eligible
(a)(2) of this section, a small entity as for an award.
defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the § 1.185 Standards for awards.
net worth and number of employees of (a) Prevailing party. (1) A prevailing
an applicant shall be determined as of applicant may receive an award for fees
pmangrum on DSK3VPTVN1PROD with CFR

the date the adversary adjudication and expenses incurred in connection


was initiated: Provided, that for pur- with a proceeding, or in a significant
poses of eligibility in proceedings cov- and discrete substantive portion of the
ered by § 1.183(a)(1)(ii) of this part, the proceeding, unless the position of the

63

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.186 7 CFR Subtitle A (1–1–12 Edition)

Department was substantially justi- graph, no award for the fee of an attor-
fied. The position of the Department ney or agent under the rules in this
includes, in addition to the position subpart may exceed $150 per hour. No
taken by the Department in the adver- award to compensate an expert witness
sary adjudication, the action or failure may exceed the highest rate at which
to act by the Department upon which the Department pays expert witnesses,
the adversary adjudication is based. which is set out at § 1.150 of this part.
The burden of proof that an award However, an award also may include
should not be made to an eligible pre- the reasonable expenses of the attor-
vailing applicant because the position ney, agent, or witness as a separate
of the Department was substantially item, if the attorney, agent, or witness
justified is on the agency. ordinarily charges clients separately
(2) An award to a prevailing appli- for such expenses.
cant will be reduced or denied if the ap- (c) In determining the reasonableness
plicant has unduly or unreasonably of the fee sought for an attorney,
protracted the proceeding or if special agent, or expert witness, the adjudica-
circumstances make the award sought tive officer shall consider the fol-
unjust. lowing:
(b) Excessive demand. (1) If, in an ad- (1) If the attorney, agent or witness
versary adjudication arising from an is in private practice, his or her cus-
agency action to enforce a party’s com- tomary fee for similar services, or if an
pliance with a statutory or regulatory employee of the applicant, the fully al-
requirement, the demand by the agen- located cost of the services;
cy is substantially in excess of the de- (2) The prevailing rate for similar
cision of the adjudicative officer and is services in the community in which the
unreasonable when compared with such attorney, agent, or witness ordinarily
decision under the facts and cir- performs services;
cumstances of the case, the adjudica- (3) The time actually spent in the
tive officer shall award to the party representation of the applicant;
the fees and other expenses related to (4) The time reasonably spent in light
defending against the excessive de- of the difficulty or complexity of the
mand, unless the party has committed issues in the proceeding; and
a willful violation of law or otherwise (5) Such other factors as may bear on
acted in bad faith, or special cir- the value of the services provided.
cumstances make an award unjust. (d) The reasonable cost of any study,
Fees and expenses awarded under this analysis, engineering report, test,
paragraph shall be paid only as a con- project or similar matter prepared on
sequence of appropriations provided in behalf of a party may be awarded, to
advance. the extent that the charge for the serv-
(2) ‘‘Demand’’ means the express de- ice does not exceed the prevailing rate
mand of the agency which led to the for similar services, and the study or
adversary adjudication, but does not other matter was necessary for prepa-
include a recitation by the agency of ration of the applicant’s case.
the maximum statutory penalty: [67 FR 63237, Oct. 11, 2002, as amended at 76
(i) In the administrative complaint, FR 11668, Mar. 3, 2011]
or
(ii) Elsewhere when accompanied by § 1.187 Rulemaking on maximum rates
an express demand for a lesser amount. for attorney fees.
(a) If warranted by an increase in the
§ 1.186 Allowable fees and expenses. cost of living or by special cir-
(a) Awards will be based on rates cus- cumstances (such as limited avail-
tomarily charged by persons engaged ability of attorneys qualified to handle
in the business of acting as attorneys, certain types of proceedings), the De-
agents, and expert witnesses, even if partment may adopt regulations pro-
the services were made available with- viding that attorney fees may be
pmangrum on DSK3VPTVN1PROD with CFR

out charge or at reduced rate to the ap- awarded at a rate higher than $150 per
plicant. hour in some or all of the types of pro-
(b) In proceedings commenced on or ceedings covered by this part. The De-
after the effective date of this para- partment will conduct any rulemaking

64

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.190

proceedings for this purpose under the INFORMATION REQUIRED FROM


informal rulemaking procedures of the APPLICANTS
Administrative Procedure Act.
(b) Any person may file with the De- § 1.190 Contents of application.
partment a petition for rulemaking to (a) An application for an award of
increase the maximum rate for attor- fees and expenses under EAJA shall
ney fees in accordance with § 1.28 of identify the applicant and the pro-
this part. The petition should identify ceeding for which an award is sought.
the rate the petitioner believes the De- Unless the applicant is an individual,
partment should establish and the the application shall state the number
types of proceedings in which the rate of employees of the applicant and de-
should be used. It also should explain scribe briefly the type and purpose of
fully the reasons why the higher rate is its organization or business. The appli-
warranted. The Department will re- cation shall also:
(1) Show that the applicant has pre-
spond to the petition within 60 days
vailed and identify the position of the
after it is filed, by initiating a rule-
Department that the applicant alleges
making proceeding, denying the peti-
was not substantially justified and
tion, or taking other appropriate ac-
shall briefly state the basis for such al-
tion. legation; or
[67 FR 63237, Oct. 11, 2002, as amended at 76 (2) Show that the demand by the De-
FR 11668, Mar. 3, 2011] partment in the proceeding was sub-
stantially in excess of, and was unrea-
§ 1.188 Awards against other agencies. sonable when compared with, the deci-
If an applicant is entitled to an sion in the proceeding.
award because it prevails over another (b) The application also shall, as ap-
agency of the United States that par- propriate, include a declaration that
ticipates in a proceeding before the De- the applicant is a small entity as de-
fined in 5 U.S.C. 601 or a statement
partment and takes a position that is
that the applicant’s net worth does not
not substantially justified, the award
exceed $2 million (if an individual) or
or an appropriate portion of the award
$7 million (for all other applicants, in-
shall be made against that agency.
cluding their affiliates). However, an
§ 1.189 Delegations of authority. applicant may omit this statement if:
(1) It attaches a copy of a ruling by
(a) Except as provided in paragraph the Internal Revenue Service that it
(b) of this section, the Secretary of Ag- qualifies as an organization described
riculture delegates to the Judicial Offi- in section 501(c)(3) of the Internal Rev-
cer authority to take final action on enue Code (26 U.S.C. 501(c)(3)) or, in the
matters pertaining to the Act in pro- case of a tax-exempt organization not
ceedings covered by these rules. The required to obtain a ruling from the In-
Secretary by order may delegate au- ternal Revenue Service on its exempt
thority to take final action on matters status, a statement that describes the
pertaining to the Act in particular basis for the applicant’s belief that it
cases to other subordinate officials or qualifies under such section; or
bodies. (2) It states that it is a cooperative
(b)(1) The Secretary of Agriculture association as defined in section 15(a)
delegates to the Director of the Na- of the Agricultural Marketing Act (12
tional Appeals Division authority to U.S.C. 114j(a)).
take final actions on matters per- (c) The application shall state the
taining to the Act for proceedings amount of fees and expenses for which
under 7 CFR part 11. an award is sought.
(2) With respect to proceedings cov- (d) The application also may include
ered under § 1.183(b)(1)(ii) of this part, any other matters that the applicant
the Board of Contract Appeals is au- wishes the Department to consider in
pmangrum on DSK3VPTVN1PROD with CFR

thorized by statute (41 U.S.C. 607) to determining whether, and in what


amount, an award should be made.
take final action.
(e) The application shall be signed by
[68 FR 27435, May 20, 2003] the applicant or an authorized officer

65

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.191 7 CFR Subtitle A (1–1–12 Edition)

or attorney of the applicant. It also Freedom of Information Act (§§ 1.1


shall contain or be accompanied by a through 1.23 of this part).
written verification under oath or af-
firmation under penalty of perjury that § 1.192 Documentation of fees and ex-
the information provided in the appli- penses.
cation and all accompanying material (a) The application shall be accom-
is true and complete to the best of the panied by full documentation of the
signer’s information and belief. fees and expenses, including the cost of
any study, analysis, engineering re-
§ 1.191 Net worth exhibit. port, test, project, or similar matter,
(a) An applicant, except a qualified for which an award is sought.
tax-exempt organization or cooperative (b) The documentation shall include
association, must provide with its ap- an affidavit from any attorney, agent,
plication a detailed exhibit showing or expert witness representing or ap-
the net worth of the applicant and any pearing on behalf of the party, stating
affiliates (as defined in § 1.184 of this the actual time expended and the rate
part) when the proceeding was initi- at which fees and other expenses were
ated. The exhibit may be in any form computed and describing the specific
convenient to the applicant that pro- services performed.
vides full disclosure of the applicant’s (1) The affidavit shall state the serv-
and its affiliates’ assets and liabilities ices performed. In order to establish
and is sufficient to determine whether the hourly rate, the affidavit shall
the applicant qualifies under the stand- state the hourly rate which is billed
ards in this subpart. The adjudicative and paid by the majority of clients dur-
officer may require an applicant to file ing the relevant time periods.
additional information to determine (2) If no hourly rate is paid by the
its eligibility for an award. majority of clients because, for in-
(b) Ordinarily, the net worth exhibit stance, the attorney or agent rep-
will be included in the public record of resents most clients on a contingency
the proceeding. However, an applicant basis, the attorney or agent shall pro-
that objects to public disclosure of in- vide information about two attorneys
formation in any portion of the exhibit or agents with similar experience, who
and believes there are legal grounds for perform similar work, stating their
withholding it from disclosure may hourly rate.
submit that portion of the exhibit di- (c) The documentation also shall in-
rectly to the adjudicative officer in a clude a description of any expenses for
sealed envelope labeled ‘‘Confidential which reimbursement is sought and a
Financial Information,’’ accompanied statement of the amounts paid and
by a motion to withhold the informa- payable by the applicant or by any
tion from public disclosure. The mo- other person or entity for the services
tion shall describe the information provided.
sought to be withheld and explain, in (d) The adjudicative officer may re-
detail, why it falls within one or more quire the applicant to provide vouch-
of the specific exemptions from manda- ers, receipts, or other substantiation
tory disclosure under the Freedom of for any fees or expenses claimed, pursu-
Information Act, 5 U.S.C. 552(b) (1) ant to § 1.199 of this part.
through (9). The material in question
shall be served on counsel representing § 1.193 Time for filing application.
the agency against which the applicant (a) An application may be filed when-
seeks an award, but need not be served ever the applicant has prevailed in the
on any other party to the proceeding. proceeding or in a significant and dis-
If the adjudicative officer finds that crete substantive portion of the pro-
the information should not be withheld ceeding, but in no case later than 30
from disclosure, it shall be placed in days after final disposition of the pro-
the public record of the proceeding. ceeding by the Department.
pmangrum on DSK3VPTVN1PROD with CFR

Otherwise, any request to inspect or (b) For the purposes of this subpart,
copy the exhibit shall be disposed of in final disposition means the date on
accordance with the established proce- which a decision or order disposing of
dures of the Department under the the merits of the proceeding or any

66

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.199

other complete resolution of the pro- statement shall extend the time for fil-
ceeding, such as a settlement or vol- ing an answer for an additional 30 days,
untary dismissal, become final and and further extensions may be granted
unappealable, both within the Depart- by the adjudicative officer upon re-
ment and to the courts. quest by agency counsel and the appli-
(c) If review or reconsideration is cant.
sought or taken of a decision as to (c) The answer shall explain in detail
which an applicant believes it has pre- any objections to the award requested
vailed, proceedings for the award of and identify the facts relied on in sup-
fees shall be stayed pending final dis- port of agency counsel’s position. If the
position of the underlying controversy. answer is based on any alleged facts
When the United States appeals the un- not already in the record of the pro-
derlying merits of an adversary adju- ceeding, agency counsel shall include
dication to a court, no decision on an with the answer either supporting affi-
application for fees and other expenses davits or a request for further pro-
in connection with that adversary ad- ceedings under § 1.199 of this part.
judication shall be made until a final
and unreviewable decision is rendered § 1.196 Reply.
by the court on the appeal or until the Within 15 days after service of an an-
underlying merits of the case have swer, the applicant may file a reply. If
been finally determined pursuant to the reply is based on any alleged facts
the appeal. not already in the record of the pro-
ceeding, the applicant shall include
PROCEDURES FOR CONSIDERING
with the reply either supporting affida-
APPLICATIONS
vits or a request for further pro-
§ 1.194 Filing and service of docu- ceedings under § 1.199 of this part.
ments.
§ 1.197 Comments by other parties.
Any application for an award or
other pleading or document related to Any party to a proceeding other than
an application shall be filed and served the applicant and agency counsel may
on all parties to the proceeding in the file comments on an application within
same manner as other pleadings in the 30 days after it is served or on an an-
proceeding except as provided in § 1.191 swer within 15 days after it is served. A
of this part for confidential financial commenting party may not participate
information. The provisions relating to further in proceedings on the applica-
filing, service, extensions of time, and tion, unless the adjudicative officer de-
computation of time contained in termines that the public interest re-
§ 1.147 of this part are incorporated into quires such participation in order to
and made applicable to this subpart, permit full exploration of matters
except that the statutory 30 day time raised in the comments.
limit on filing the application as set
§ 1.198 Settlement.
out in § 1.193 of this part may not be ex-
tended. The applicant and agency counsel
may agree on a proposed settlement of
§ 1.195 Answer to application. the award before final action on the ap-
(a) Within 30 days after service of an plication, either in connection with a
application, agency counsel may file an settlement of the underlying pro-
answer. If agency counsel fails to time- ceeding, or after the underlying pro-
ly answer or settle the application, the ceeding has been concluded. If a pre-
adjudicative officer, upon a satisfac- vailing party and agency counsel agree
tory showing of entitlement by the ap- on a proposed settlement of an award
plicant, may make an award for the ap- before an application has been filed,
plicant’s allowable fees and expenses. the application shall be filed with the
(b) If agency counsel and the appli- proposed settlement.
pmangrum on DSK3VPTVN1PROD with CFR

cant believe that the issues in the fee


application can be settled, they may § 1.199 Further proceedings.
jointly file a statement of intent to ne- (a) Ordinarily, the determination of
gotiate a settlement. The filing of this an award will be made on the basis of

67

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.200 7 CFR Subtitle A (1–1–12 Edition)

the written record. However, on re- plicant unduly protracted the pro-
quest of either the applicant or agency ceedings, or whether special cir-
counsel, or on his or her own initiative, cumstances make an award unjust. If
the adjudicative officer may order fur- the applicant has sought an award
ther proceedings, such as an informal against more than one agency, the de-
conference, oral argument, additional cision shall allocate responsibility for
written submissions or, as to issues payment of any award made among the
other than substantial justification agencies, and shall explain the reasons
(such as the applicant’s eligibility or for the allocation made.
substantiation of fees and expenses),
pertinent discovery or an evidentiary § 1.201 Department review.
hearing. Such further proceedings shall (a) Except with respect to a pro-
be held only when necessary for full ceeding covered by § 1.183(a)(1)(ii) of
and fair resolution of the issues arising this part either the applicant or agency
from the application, and shall be con- counsel may seek review of the initial
ducted as promptly as possible. Wheth- decision on the fee application, in ac-
er the position of the Department was cordance with the provisions of
substantially justified shall be deter- §§ 1.145(a) and 1.146(a) of this part or in
mined on the basis of the administra- accordance with any delegation made
tive record, as a whole, which is made pursuant to § 1.189 of this part. If nei-
in the adversary adjudication for which ther the applicant nor agency counsel
fees and other expenses are sought. seeks review, the initial decision on
(b) A request that the adjudicative the fee application shall become a final
officer order further proceedings under decision of the Department 35 days
this section shall identify specifically after it is served upon the applicant. If
the information sought or the disputed review is taken, it will be in accord
issues, and shall explain specifically with the provisions of §§ 1.145(b)
why the additional proceedings are through (i) and 1.146(b) of this part, or
necessary to resolve the issues. (b) With respect to a proceeding cov-
(c) In the event that an evidentiary ered by § 1.183(a)(1)(ii) of this part, ei-
hearing is held, it shall be conducted ther party may seek reconsideration of
pursuant to §§ 1.130 through 1.151 of this the decision on the fee application in
part, except that any hearing in a pro- accordance with Rule 29 of the Board of
ceeding covered by § 1.183(a)(1)(ii) of Contract Appeals contained in § 24.21 of
this part shall be conducted pursuant this title. In addition, either party may
to Rules 17 through 25 of the Board of appeal a decision of the Board of Con-
Contract Appeals contained in § 24.21 of tract Appeals to the Court of Appeals
this title. for the Federal Circuit in accordance
with 41 U.S.C. 607.
§ 1.200 Decision.
The adjudicative officer or Board of § 1.202 Judicial review.
Contract Appeals shall issue an initial Judicial review of final agency deci-
decision on the application as expedi- sions on awards may be sought as pro-
tiously as possible after completion of vided in 5 U.S.C. 504(c)(2).
proceedings on the application. When-
ever possible, the decision shall be § 1.203 Payment of award.
made by the same administrative judge An applicant seeking payment of an
or panel that decided the contract ap- award shall submit to the head of the
peal for which fees are sought. The de- agency administering the statute in-
cision shall include written findings volved in the proceeding a copy of the
and conclusions on the applicant’s eli- final decision of the Department grant-
gibility and status as a prevailing ing the award, accompanied by a state-
party, and an explanation of the rea- ment that the applicant will not seek
sons for any difference between the review of the decision in the United
amount requested and the amount States courts. The agency will pay the
pmangrum on DSK3VPTVN1PROD with CFR

awarded. This decision also shall in- amount awarded to the applicant with-
clude, if at issue, findings on whether in 60 days, unless judicial review of the
the position of the Department was award or of the underlying decision of
substantially justified, whether the ap- the adversary adjudication has been

68

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.214

sought by the applicant or any other (e) USDA means the United States
party to the proceeding. Department of Agriculture.
(f) USDA agency means an organiza-
Subpart K—Appearance of USDA tional unit of USDA whose head re-
Employees as Witnesses in Ju- ports to an official within the Office of
the Secretary of Agriculture.
dicial or Administrative Pro-
(g) Valid summons, subpoena, or other
ceedings compulsory process means an order that
is served properly and within the legal
SOURCE: 55 FR 42347, Oct. 19, 1990, unless authority and the jurisdictional bound-
otherwise noted. aries of the court or administrative
agency or official that has issued it.
§ 1.210 Purpose.
(h) Witness fees means the amount of
This subpart sets forth procedures money paid to a witness as compensa-
governing the appearance of USDA em- tion for attendance at a judicial or ad-
ployees as witnesses in order to testify ministrative proceeding.
or produce official documents in judi-
cial or administrative proceedings § 1.212 General.
when such appearance is in their offi- No USDA employee may provide tes-
cial capacity or arises out of or is re- timony or produce documents in a judi-
lated to their employment with USDA. cial or administrative proceeding un-
These regulations do not apply to ap- less authorized in accordance with this
pearances by USDA employees as wit- subpart.
nesses in judicial or administrative
proceedings which are purely personal § 1.213 Appearance as a witness on be-
or do not arise out of or relate to their half of the United States.
employment with USDA. This subpart An employee of USDA may appear as
also does not apply to Congressional a witness on behalf of the United
requests or subpoenas for testimony or States in any judicial or administra-
documents. tive proceeding without the issuance of
§ 1.211 Definitions. a summons, subpoena, or other compul-
sory process. Employees should obtain
(a) Administrative proceeding means permission for such an appearance
any proceeding pending before any fed- from their immediate supervisor unless
eral, state, or local agency and under- the USDA agency or General Counsel
taken for the purpose of the issuance of has issued instructions providing oth-
any regulations, orders, licenses, per- erwise.
mits, or other rulings, or the adjudica-
tion of any matter, dispute, or con- § 1.214 Appearance as a witness on be-
troversy. half of a party other than the
(b) Appearance means testimony or United States where the United
production of documents the request States is not a party.
for which arises out of an employee’s (a) An employee of USDA served with
official duties with USDA or relates to a valid summons, subpoena, or other
his or her employment with USDA. For compulsory process demanding his or
the purpose of this subpart, an appear- her appearance, or otherwise requested
ance also includes an affidavit, deposi- to appear on behalf of a party other
tion, interrogatory, or other required than the United States in a judicial or
written submission. administrative proceeding in which the
(c) Judicial proceeding means any case United States is not a party, shall
or controversy pending before any fed- promptly notify the head of his or her
eral, state, or local court. USDA agency of the existence and na-
(d) Travel expenses means the amount ture of the order compelling his or her
of money paid to a witness for reim- appearance, or of the document re-
bursement for transportation, lodging, questing his or her attendance. He or
pmangrum on DSK3VPTVN1PROD with CFR

meals, and other miscellaneous ex- she shall also specify, if that is known,
penses in connection with attendance the nature of the judicial or adminis-
at a judicial or administrative pro- trative proceeding and the nature of
ceeding. the testimony or documents requested.

69

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00079 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.215 7 CFR Subtitle A (1–1–12 Edition)

(b)(1) An employee of USDA served (i) what interest of USDA would be


with a valid summons, subpoena, or promoted by the employee’s testimony;
other compulsory process, or requested (ii) whether an appearance would re-
to appear as a witness on behalf of a sult in an unnecessary interference
party other than the United States in a with the duties of the USDA employee;
judicial or administrative proceeding (iii) whether an employee’s testi-
in which the United States is not a mony would result in the appearance of
party, may appear only if such appear- improperly favoring one litigant over
ance has been authorized by the head another.
of his or her USDA agency, with the (2) The considerations listed in para-
concurrence of the General Counsel, graph (e)(1) of this section are illus-
based upon a determination that such trative and not exhaustive.
an appearance is in the interest of
USDA. § 1.215 Subpoenas duces tecum for
USDA records in judicial or admin-
(2) An employee of USDA requested istrative proceedings in which the
to appear as a witness on behalf of a United States is not a party.
party other than the United States in a
(a) Subpoenas duces tecum for USDA
judicial or administrative proceeding
records in judicial or administrative
in which the United States is not a
proceedings in which the United States
party, without the service of a valid
is not a party shall be deemed to be re-
summons, subpoena, or other compul-
quests for records under the Freedom
sory process, may appear only if such
of Information Act and shall be han-
appearance has been authorized by the
dled pursuant to the rules governing
head of his or her USDA agency and ap-
public disclosure under subpart A of
proved by the appropriate Assistant
this part.
Secretary, Under Secretary or other (b) Whenever a subpoena duces tecum
general officer, and by the General compelling the production of records is
Counsel, based upon a determination served on a USDA employee in a judi-
that such an appearance is in the inter- cial or administrative proceeding in
est of USDA. which the United States is not a party,
(c) Unless an appearance is author- the employee, after consultation with
ized as provided in paragraphs (b)(1) or the General Counsel or his or her des-
(b)(2) of this section, the employee ignee, shall appear in response thereto,
shall appear at the stated time and respectfully decline to produce the
place (unless advised by the General records on the grounds that it is pro-
Counsel or his or her designee that the hibited by this section and state that
summons, subpoena, or other process the production of the records involved
was not validly issued or served), will be handled in accordance with sub-
produce a copy of these regulations and part A of this part.
respectfully decline to provide any tes-
timony. As appropriate, the General § 1.216 Appearance as a witness or
Counsel or his or her designee will re- production of documents on behalf
quest the assistance of the Department of a party other than the United
of Justice or of a United States Attor- States where the United States is a
ney, in the case of a judicial pro- party.
ceeding; or of the official or attorney (a) An employee of USDA served with
representing the United States, in the a valid summons, subpoena, or other
case of an administrative proceeding, compulsory process demanding his or
to represent the interests of the em- her appearance, or otherwise requested
ployee and USDA. to appear or produce documents on be-
(d) If there is any question regarding half of a party other than the United
the validity of a summons, subpoena, States in a judicial or administrative
or other compulsory process, an em- proceeding in which the United States
ployee shall contact the Office of the is a party, shall promptly notify the
General Counsel for advice. head of his or her USDA agency and
pmangrum on DSK3VPTVN1PROD with CFR

(e)(1) In determining whether the em- the General Counsel or his or her des-
ployee’s appearance is in the interest ignee of the existence and nature of the
of USDA, authorizing officials should order compelling his or her appearance,
consider the following: or of the document requesting his or

70

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00080 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.219

her appearance. He or she shall also (e) If there is any question regarding
specify, if that is known, the nature of the validity of a summons, subpoena,
the judicial or administrative pro- or other compulsory process, an em-
ceeding and the nature of the testi- ployee shall contact the Office of the
mony or documents requested. General Counsel for advice.
(b)(1) Except as provided in para-
graph (b)(2) of this section, an em- § 1.217 Witness fees and travel ex-
penses.
ployee of USDA only may appear as a
witness or produce records on behalf of (a) Any employee of USDA who at-
a party other than the United States in tends a judicial or administrative pro-
a judicial or administrative proceeding ceeding as a witness in order to testify
in which the United States is a party if or produce official documents on behalf
such appearance or production has of the United States is entitled to trav-
been ordered by the service on the em- el expenses in connection with such ap-
ployee of a valid summons, subpoena, pearance in accordance with the Agri-
or other compulsory process issued by culture Travel Regulations.
a court, administrative agency, or (b) An employee of USDA who at-
other official authorized to compel his tends a judicial or administrative pro-
or her appearance. ceeding on behalf of the United States
(2) An employee requested to appear is not entitled to receive fees for such
as a witness or produce records on be- attendance.
half of a party other than the United (c) An employee of USDA who at-
States in a judicial or administrative tends a judicial or administrative pro-
proceeding in which the United States ceeding on behalf of a party other than
is a party, without being served a valid the United States when such appear-
summons, subpoena, or other compul- ance is in his or her official capacity or
sory process, may appear or produce arises out of or relates to his or her
records only if such appearance or pro- employment with USDA is entitled to
duction has been authorized by a rep- travel expenses in accordance with the
resentative of the Department of Jus- Agriculture Travel Regulations to the
tice, the United States Attorney, or extent that such expenses are not paid
other counsel who is representing the for by the court, agency, or official
United States in the case of a judicial compelling his or her appearance or by
proceeding; or by the official or attor- the party on whose behalf he or she ap-
ney representing the United States, in pears.
the case of an administrative pro- (d) An employee of USDA who at-
ceeding. tends a judicial or administrative pro-
(c) The head of the USDA agency ceeding on behalf of a party other than
shall consult with the General Counsel the United States when such appear-
or his or her designee as to whether ance is in his or her official capacity or
there are grounds to oppose the em- arises out of or relates to his or her
ployee’s attendance or production of employment with USDA is required to
documents and, if so, whether to seek collect the authorized fees for such
to quash the summons, subpoena, com- service and remit such fees to his or
pulsory process, or to deny authoriza- her USDA agency.
tion under paragraph (b)(2) of this sec-
§ 1.218 Penalty.
tion.
(d) As appropriate, the General Coun- An employee who testifies or pro-
sel or his or her designee will request duces records in a judicial or adminis-
the assistance of the Department of trative proceeding in violation of the
Justice, a United States Attorney, or provisions of this regulation shall be
other counsel representing the United subject to disciplinary action.
States, in the case of a judicial pro-
ceeding; or of the official or attorney § 1.219 Delegations.
pmangrum on DSK3VPTVN1PROD with CFR

representing the United States, in the (a) Except as provided in paragraphs


case of an administrative proceeding, (b), (c), or (d) of this section, the head
to represent the interest of the em- of a USDA agency may delegate his or
ployee and USDA. her responsibilities under this subpart,

71

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.301 7 CFR Subtitle A (1–1–12 Edition)

including the requirement to be noti- 3809 of Title 31, United States Code, re-
fied of the receipt of a subpoena as pro- quires the Secretary to promulgate
vided in §§ 1.214(a) and 1.216(a) of this regulations necessary to implement
part, to employees of his or her agency the provisions of the statute.
as follows: (b) Purpose. This subpart—
(1) In the National office of the agen- (1) Establishes administrative proce-
cy, to a level no lower than two levels dures for imposing civil penalties and
below the agency head; assessments against persons who make,
(2) In a field component of an agency, submit, or present, or cause to be
to a level no lower than the official made, submitted, or presented, false,
who heads a state office. fictitious, or fraudulent claims or writ-
(b) Notwithstanding paragraph (a) of ten statements to authorities or to
this section, the Chief of the Forest their agents, and
Service may delegate his responsibil- (2) Specifies the hearing and appeal
ities under this subpart as follows: rights of persons subject to allegations
(1) In the National office of the For- of liability for such penalties and as-
est Service, to a level no lower than a sessments.
Deputy Chief of the Forest Service; (c) Scope. The procedures for impos-
(2) In a field component of the Forest ing civil penalties and assessments es-
Service, to a level no lower than a Re- tablished by this subpart are intended
gional Forester or Station Director. to enhance existing administrative en-
(c) Notwithstanding paragraph (a) of forcement efforts against fraud and to
this section, the General Counsel may provide an additional remedy against
delegate his responsibilities under this false, fictitious, and fraudulent claims
subpart as follows: and statements in the programs admin-
(1) In the National office of the Office istered by this Department.
of the General Counsel, to a level no
lower than an Assistant General Coun- § 1.302 Definitions.
sel; (a) Agency means a constituent orga-
(2) In the field component of the Of- nizational unit of the USDA.
fice of the General Counsel, to Re- (b) Agency Fraud Claims Officer—
gional Attorneys who may redelegate (AFCO) means an officer or employee
their responsibilities to Associate Re- of an agency who is designated by the
gional Attorneys and Assistant Re- head of that agency to receive the re-
gional Attorneys who report to them. ports of the investigating official,
(d) The responsibilities assigned to evaluate evidence, and make a rec-
heads of agencies and to Assistant and ommendation to the reviewing official
Under Secretaries in § 1.214(b)(2) of this with respect to the determination re-
part may not be redelegated. quired under § 1.305 of this part.
[58 FR 62495, Nov. 29, 1993; 58 FR 64353, Dec. (c) ALJ means an Administrative Law
6, 1993] Judge in USDA appointed pursuant to 5
U.S.C. 3105 or detailed to the USDA
Subpart L—Procedures Related to pursuant to 5 U.S.C. 3344.
Administrative Hearings Under (d) Authority means the USDA.
(e) Benefits means, except as other-
the Program Fraud Civil Rem- wise defined in this subpart, anything
edies Act of 1986 of value, including but not limited to
any advantage, preference, privilege,
AUTHORITY: 31 U.S.C. 3801–3812. license, permit, favorable decision, rul-
SOURCE: 56 FR 9582, Mar. 7, 1991, unless oth- ing, status, or loan guarantee.
erwise noted. Correctly designated at 57 FR (f) Claim means any request, demand,
3909, Feb. 3, 1992. or submission—
(1) Made to USDA for property, serv-
§ 1.301 Basis, purpose and scope. ices, or money (including money rep-
(a) Basis. This subpart implements resenting grants, loans, insurance, or
pmangrum on DSK3VPTVN1PROD with CFR

the Program Fraud Civil Remedies Act benefits);


of 1986, Public Law No. 99–509, Sections (2) Made to a recipient of property,
6101–6104, 100 Stat. 1874 (1986). This stat- services, or money from USDA or to a
ute added 31 U.S.C. 3801–3812. Section party to a contract with USDA—

72

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.302

(i) For property or services if the cating function for the Department
United States— under § 2.35 of this title, or the Sec-
(A) Provided such property or serv- retary if he exercises the authority so
ices; or delegated.
(B) Provided any portion of the funds (o) Knows or has reason to know
for the purchase of such property or means that a person, with respect to a
services; or claim or statement—
(C) Will reimburse such recipient or (1)(i) Has actual knowledge that the
party for the purchase of such property claim or statement is false, fictitious,
or services; or or fraudulent;
(ii) For the payment of money (in- (ii) Acts in deliberate ignorance of
cluding money representing grants, the truth or falsity of the claim or
loans, insurance, or benefits) if the statement; or
United States— (iii) Acts in reckless disregard of the
(A) Provided any portion of the truth or falsity of the claim or state-
money requested or demanded; or ment; and
(B) Will reimburse such recipient or (2) No proof of specific intent to de-
party for any portion of the money fraud is required.
paid on such request or demand; or (p) Makes means presents, submits, or
(3) Made to USDA which has the ef- causes to be made, presented, or sub-
fect of decreasing an obligation to pay mitted. As the context requires,
or account for property, services, or ‘‘making’’ or ‘‘made’’ shall likewise in-
money. clude the corresponding forms of such
(g) Complaint means the written no- terms.
tice served by the reviewing official on (q) Person means any individual,
the respondent under § 1.307 of this partnership, corporation, association,
part. or private organization, and includes
(h) Days means business days for all the plural of that term.
periods referred to in these regulations (r) Representative means an attorney
of 10 days or less and calendar days for who is a member in good standing of
all periods referred to in these regula- the bar of any State, Territory, or pos-
tions in excess of 10 days. session of the United States or of the
(i) Family means the individual’s par- District of Columbia or the Common-
ents, spouse, siblings, children, and wealth of Puerto Rico. This definition
grandchildren with respect to an indi- is not intended to foreclose pro se ap-
vidual making a claim or statement for pearances. An individual may appear
benefits. for himself or herself, and a corpora-
(j) Government means the United tion or other entity may appear by an
States Government. owner, officer, or employee of the cor-
(k) Household means a family or one poration or entity.
or more individuals occupying a single (s) Respondent means any person al-
residence. leged in a complaint issued under § 1.308
(l) Individual means a natural person. of this part to be liable for a civil pen-
(m) Investigating official means the alty or assessment under § 1.303 of this
Inspector General of USDA or an offi- part.
cer or employee of the Office of Inspec- (t) Reviewing official means an officer
tor General designated by the Inspec- or employee of USDA—
tor General and serving in a position (1) Who is designated by the Sec-
for which the rate of basic pay is not retary to make the determination re-
less than the minimum rate of basic quired under § 1.305 of this part;
pay for grade GS–16 under the General (2) Who is serving in a position for
Schedule. which the rate of basic pay is not less
(n) Judicial officer means an official of than the minimum rate of basic pay for
USDA delegated authority by the Sec- grade GS–16 under the General Sched-
retary, pursuant to the Act of April 4, ule; and
pmangrum on DSK3VPTVN1PROD with CFR

1940 (7 U.S.C. 450c–450g) and Reorga- (3) Who is—


nization Plan No. 2 of 1953, 67 Stat. 633, (i) Not subject to supervision by, or
as amended by Public Law No. 97–325 (7 required to report to, the investigating
U.S.C. 2201n.), to perform the adjudi- official; and

73

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00083 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.303 7 CFR Subtitle A (1–1–12 Edition)

(ii) Not employed in the organiza- (2) Each voucher, invoice, claim
tional unit of USDA in which the in- form, or other individual request or de-
vestigating official is employed. mand for property, services, food cou-
(u) Secretary means the Secretary of pons, or money constitutes a separate
Agriculture. claim.
(v) Statement means any representa- (3) A claim shall be considered made
tion, certification, affirmation, docu- to the USDA, recipient, or party when
ment, record, or accounting or book- such claim is actually made to an
keeping entry made— agent, fiscal intermediary, or other en-
(1) With respect to a claim or to ob- tity, including any State or political
tain the approval or payment of a
subdivision thereof, acting for or on be-
claim (including relating to eligibility
half of the USDA, recipient, or party.
to make a claim); or
(2) With respect to (including relat- (4) Each claim for property, services,
ing to eligibility for)— food coupons, or money is subject to a
(i) A contract with, or a bid or pro- civil penalty regardless of whether
posal for a contract with; or such property, services, food coupons,
(ii) A grant, loan, or benefit from, or money is actually delivered or paid.
USDA, or any State, political subdivi- (5) If the Government has made pay-
sion of a State, or other party, if the ment (including transferred property
United States Government provides or provided services) on a claim, a per-
any portion of the money or property son subject to a civil penalty under
under such contract or for such grant, paragraph (a)(1) of this section shall
loan, or benefit, or if the Government also be subject to an assessment of not
will reimburse such State, political more than twice the amount of such
subdivision, or party for any portion of claim or that portion thereof that is
the money or property under such con- determined to be in violation of para-
tract or for such grant, loan, or ben- graph (a)(1) of this section. Such as-
efit. sessment shall be in lieu of damages
(w) USDA means the U.S. Depart- sustained by the Government because
ment of Agriculture. of such claim.
§ 1.303 Basis for civil penalties and as- (b) Statements. (1) Except as provided
sessments. in paragraph (c) of this section, any
(a) Claims. (1) Except as provided in person who makes a written statement
paragraph (c) of this section, any per- that—
son who makes a claim that the person (i) The person knows or has reason to
knows or has reason to know— know—
(i) Is false, fictitious, or fraudulent; (A) Asserts a material fact which is
(ii) Includes or is supported by any false, fictitious, or fraudulent; or
written statement which asserts a ma- (B) Is false, fictitious, or fraudulent
terial fact which is false, fictitious, or because it omits a material fact that
fraudulent; the person making the statement had a
(iii) Includes or is supported by any duty to include in such statement; and
written statement that— (ii) Contains or is accompanied by an
(A) Omits a material fact; express certification or affirmation of
(B) Is false, fictitious, or fraudulent the truthfulness and accuracy of the
as a result of such omission; and contents of the statement, shall be sub-
(C) Is a statement in which the per- ject, in addition to any other remedy
son making such statement has a duty that may be prescribed by law, to a
to include such material fact; or
civil penalty of not more than the
(iv) Is for payment for the provision
amount specified at § 3.91(b)(11)(ii) of
of property or services which the per-
son has not provided as claimed,shall this title for each such statement.
be subject, in addition to any other (2) Each written representation, cer-
tification, or affirmation constitutes a
pmangrum on DSK3VPTVN1PROD with CFR

remedy that may be prescribed by law,


to a civil penalty of not more than the separate statement.
amount specified at § 3.91(b)(11)(i) of
this title for each such claim.

74

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00084 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.304

(3) A statement shall be considered cluding transferred property or pro-


made to the USDA when such state- vided services), an assessment may be
ment is actually made to an agent, fis- imposed against any such person or
cal intermediary, or other entity, in- jointly and severally against any com-
cluding any State or political subdivi- bination of such persons. The aggre-
sion thereof, acting for or on behalf of gate amount of the assessments col-
the USDA. lected with respect to such claim shall
(c) Benefits. (1) In the case of any not exceed twice the portion of such
claim or statement made by any indi- claim determined to be in violation of
vidual relating to any of the benefits paragraph (a)(1) of this section.
listed in paragraph (c)(2) of this section
[56 FR 9582, Mar. 7, 1991. Correctly designated
received by such individual, such indi- at 57 FR 3909, Feb. 3, 1992, as amended at 75
vidual may be held liable for penalties FR 17556, Apr. 7, 2010]
and assessments under this section
only if such claim or statement is § 1.304 Investigation.
made by such individual in making ap-
plication for such benefits with respect (a) The investigating official may in-
to such individual’s eligibility to re- vestigate allegations that a person is
ceive such benefits. liable under § 1.303 of this part.
(2) For purposes of this paragraph, (b) If an investigating official con-
the term benefits means— cludes that a subpoena pursuant to the
(i) Benefits under the food stamp pro- authority conferred by 31 U.S.C. 3804(a)
gram established under the Food is warranted, the investigating officer
Stamp Act of 1977 which are intended may issue a subpoena, which shall no-
as food assistance for the personal use tify the person to whom it is addressed
of the individual who receives the ben- of the authority under which it is
efits or for a member of the individ- issued and shall identify the informa-
ual’s family or household (as defined in tion, documents, reports, answers,
section 3(h) of the Food Stamp Act of records, accounts, papers, or data
1977); sought.
(ii) Benefits under the National (c) The investigating official may
School Lunch Act; designate a person to act on his behalf
(iii) Benefits under any housing as- to receive the documents or other ma-
sistance program for lower income terials sought by a subpoena issued
families or elderly or handicapped per- under paragraph (b) of this section.
sons which is administered by the Sec- (d) The person receiving such sub-
retary or USDA; poena shall be required to tender to the
(iv) Benefits under the special supple- investigating official or the person des-
mental food program for women, in- ignated to receive the documents a cer-
fants, and children established under tification that the documents or other
section 17 of the Child Nutrition Act of materials sought have been produced,
1966 which are intended for the per- or that such documents or other mate-
sonal use of the individual who receives rials are not available and the reasons
the benefits or for a member of the in- therefore, or that such documents or
dividual’s family or household. other materials, suitably identified,
(d) Intent. No proof of specific intent have been withheld based upon the as-
to defraud is required to establish li- sertion of an identified privilege.
ability under this section. (e) Each agency shall develop criteria
(e) More than one person liable. In any for determining which allegations that
case in which it is determined that a person is liable under § 1.303 of this
more than one person is liable for mak- part are to be referred to the inves-
ing a claim or statement under this tigating official.
section, each person may be held liable (f) If the investigating official con-
for a civil penalty under this section. cludes that an action under the Pro-
(f) Joint and several liability. In any gram Fraud Civil Remedies Act may be
pmangrum on DSK3VPTVN1PROD with CFR

case in which it is determined that warranted, the investigating official


more than one person is liable for mak- shall submit a report containing find-
ing a claim under this section on which ings and conclusions of such investiga-
the government has made payment (in- tion to the reviewing official.

75

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00085 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.305 7 CFR Subtitle A (1–1–12 Edition)

(g) Nothing in this section shall pre- (6) A statement that there is a rea-
clude or limit an investigating offi- sonable prospect of collecting the
cial’s discretion to refer allegations di- amount specified in § 1.307(b)(2) of this
rectly to the Department of Justice for part and the reasons supporting such
suit under the False Claims Act or statement.
other civil relief, nor preclude or limit
such official’s discretion to defer or § 1.306 Prerequisites for issuing a com-
postpone a report or referral to the re- plaint.
viewing official in order to avoid inter- The reviewing official may issue a
ference with a criminal investigation complaint under § 1.307 of this part only
or prosecution. if:
(h) Nothing in this section modifies (a) The Attorney General or an As-
any responsibility of an investigating sistant Attorney General designated by
official to report violations of criminal the Attorney General approves the
law to the Attorney General. issuance of a complaint in a written
statement as provided in 31 U.S.C.
§ 1.305 Review by the reviewing offi- 3803(b)(1);
cial. (b) In the case of allegations of liabil-
(a) Upon receipt of the report of the ity under § 1.303(a) of this part with re-
investigating official, the reviewing of- spect to a claim, the reviewing official
ficial may refer the report to the ap- determines with respect to such claim,
propriate agency fraud claims officer or a group of related claims submitted
(AFCO) for a recommendation with re- at the same time, that the amount of
spect to the determination required money or the value of property or serv-
under this section. ices demanded or requested in viola-
(b) The AFCO shall evaluate the evi- tion of § 1.303(a) of this part does not
dence and make a recommendation to exceed $150,000; and
the reviewing officer within 45 days of (c) For the purposes of this section, a
receipt of the report of the inves- group of related claims submitted at
tigating official. the same time shall include only those
(c) The reviewing official is not claims arising from the same trans-
bound by the recommendation of the action (e.g., a single grant, loan, appli-
AFCO, and may accept or reject it. cation, or contract) that are submitted
(d) If, based on the report of the in- simultaneously as part of a single re-
vestigating official under § 1.304(f) of quest, demand, or submission, regard-
this part, the reviewing official deter- less of the amount of money or the
mines that there is adequate evidence value of property or services demanded
to believe that a person is liable under or requested.
§ 1.303 of this part, the reviewing offi- (d) Nothing in this section shall be
cial shall transmit to the Attorney construed to limit the reviewing offi-
General a written notice of the review- cial’s authority to join in a single com-
ing official’s intention to issue a com- plaint against a person claims that are
plaint under § 1.307 of this part. unrelated or were not submitted simul-
(e) Such notice shall include— taneously, regardless of the amount of
(1) A statement of the reviewing offi- money or the value of property or serv-
cial’s reasons for issuing a complaint; ices demanded or requested.
(2) A statement of the evidence that
supports the allegations of liability; § 1.307 Complaint.
(3) A description of the claims or (a) On or after the date the Depart-
statements upon which the allegations ment of Justice approves the issuance
of liability are based; of a complaint in accordance with 31
(4) An estimate of the amount of U.S.C. 3803(b)(1), the reviewing official
money or the value of property, serv- may serve a complaint on the respond-
ices, or other benefits requested or de- ent, as provided in § 1.308 of this part.
manded in violation of § 1.303 of this (b) The complaint shall state—
pmangrum on DSK3VPTVN1PROD with CFR

part; (1) The allegations of liability, in-


(5) A statement of any exculpatory or cluding the statutory basis for liabil-
mitigating circumstances that may re- ity, an identification of the claims or
late to the claims or statements; statements that are the basis for the

76

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00086 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.312

alleged liability, and the reasons that (5) May request a hearing.
liability allegedly arises from such
claims or statements; § 1.310 Default upon failure to file an
(2) The maximum amount of pen- answer.
alties and assessments for which the (a) If the respondent does not file an
respondent may be held liable; answer within the time prescribed in
(3) Instructions for requesting a hear- § 1.309(a) of this part, the reviewing of-
ing, including a specific advice of the ficial may refer the complaint together
respondent’s right to request a hearing with proof of service to the ALJ and re-
and to be represented by a representa- quest that the ALJ issue an order of
tive; and default imposing the penalties and as-
(4) That failure to file an answer sessments sought in the complaint. An
within 30 days of service of the com- answer must comply in all material re-
plaint may result in the imposition of spects with § 1.309(b) of this part in
the penalty and assessment sought in order to be considered filed within the
the complaint without right to appeal. time prescribed in § 1.310(a) of this part.
(c) At the same time the reviewing (b) Upon the referral of the complaint
official serves the complaint, he or she under paragraph (a) of this section, the
shall serve the respondent with a copy ALJ shall promptly serve on the re-
of these regulations. spondent, in the manner prescribed in
§ 1.308 Service of complaint and notice § 1.308 of this part, a notice that a deci-
of hearing. sion will be issued under this section.
(c) If the respondent fails to answer,
(a) Service of a complaint or notice
the ALJ shall assume the facts alleged
of hearing shall be made by certified or
in the complaint to be true and, if such
registered mail or by delivery in any
facts establish liability under § 1.303 of
manner authorized by Rule 4(d) of the
this part, the ALJ shall issue a deci-
Federal Rules of Civil Procedure.
sion imposing the penalties and assess-
(b) Proof of service, stating the name
ments sought in the complaint, not to
and address of the person on whom the
exceed the maximum amount allowed
notice was served, and the manner and
under the statute.
date of service, shall be made by:
(1) Affidavit of the individual making (d) A respondent who fails to file a
service; timely answer waives any right to a re-
(2) An acknowledged United States view of the penalty and assessment,
Postal Service return receipt card; or unless he can demonstrate extraor-
(3) Written acknowledgment by the dinary circumstances justifying the
respondent or his representative. failure to file an answer.

§ 1.309 Answer and request for hear- § 1.311 Referral of complaint and an-
ing. swer to the ALJ.
(a) Within 30 days of the date of re- Upon receipt of an answer, the re-
ceipt or refusal to accept service of the viewing official shall send to the ALJ
complaint, the respondent may file an copies of the complaint, proof of serv-
answer with the reviewing official. ice, and the answer.
(b) In the answer, the respondent—
(1) Shall admit or deny each of the § 1.312 Procedure where respondent
allegations of liability made in the does not request a hearing.
complaint; (a) If the respondent files an answer
(2) Shall state any defense upon with the reviewing official within the
which the respondent intends to rely; time period prescribed in § 1.309(a) of
(3) Shall state the name, address, and this part but does not request a hear-
telephone number of the person author- ing, the ALJ, upon receipt of the com-
ized to act as the respondent’s rep- plaint, proof of service, and answer,
resentative, if any; shall notify the respondent that a deci-
pmangrum on DSK3VPTVN1PROD with CFR

(4) May state any reasons why the re- sion will be issued under this section
spondent contends the penalty and as- and shall afford the parties 30 days in
sessment should be reduced or modi- which to submit documentary evidence
fied; and or other relevant written information,

77

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00087 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.313 7 CFR Subtitle A (1–1–12 Edition)

including briefs or other written argu- senting a particular case may, in such
ments. At the end of that period, the case or in a factually related case—
ALJ shall issue a decision based upon (1) Conduct the hearing in such case;
the pleadings and the evidence sub- (2) Participate in or advise the ALJ
mitted, or if no evidence has been sub- in the decision in such case, or partici-
mitted, upon the pleadings. The burden pate in or advise in the review of the
of proof shall be as set forth in § 1.329 of decision in such case by the judicial of-
this part. ficer, except as a witness or representa-
(b) When a decision is to be issued tive in public proceedings; or
under this section, the ALJ shall have (3) Make the collection of penalties
discretion to permit, allow, limit, or and assessments under § 1.341 of this
otherwise control discovery to the ex- part.
tent set forth under §§ 1.322 thru 1.324 of (b) The ALJ shall not be responsible
this part. to or subject to the supervision or di-
rection of the investigating official or
§ 1.313 Procedure where respondent the reviewing official.
requests a hearing; notice of hear- (c) Except to the extent limited by
ing. paragraph (a) of this section, the rep-
(a) When the ALJ receives the com- resentative for USDA may be employed
plaint, proof of service, and an answer in any constituent agency of USDA, in-
requesting a hearing, the ALJ shall cluding the offices of either the inves-
promptly serve, in accordance with tigating official or the reviewing offi-
§ 1.308 of this part, a notice of hearing cial.
on all parties.
(b) Such notice shall include: § 1.316 Ex parte contacts.
(1) The tentative time and place, and Except to the extent required for the
the nature of the hearing; disposition of ex parte matters as au-
(2) The legal authority and jurisdic- thorized by law, the ALJ shall not con-
tion under which the hearing is to be sult or be consulted by any person or
held; party (except employees of the ALJ’s
(3) The matters of fact and law to be office) on any matter in issue, unless
asserted; on notice and opportunity for all par-
(4) A description of the procedures for ties to participate.
the conduct of the hearing; § 1.317 Disqualification of reviewing
(5) The name, address, and telephone official or ALJ.
number of the representative for the
USDA and the representative for the (a) A reviewing official or ALJ in a
respondent, if any; and particular case may disqualify himself
or herself at any time.
(6) Such other matters as the ALJ
(b) A party may file with the ALJ a
deems appropriate.
motion for disqualification of a review-
§ 1.314 Parties to the hearing. ing official or an ALJ. Such motion
shall be accompanied by an affidavit
(a) The parties to the hearing shall alleging personal bias or other reason
be the respondent and USDA. The pro- for disqualification.
ceeding shall be brought in the name of (c) Such motion and affidavit shall be
the Secretary. filed promptly upon the party’s dis-
(b) Pursuant to 31 U.S.C. 3730(c)(5), a covery of reasons requiring disquali-
private party plaintiff under the False fication, or such objections shall be
Claims Act may participate in pro- deemed waived.
ceedings under this subpart to the ex- (d) Such affidavit shall state specific
tent authorized by the provisions of facts that support the party’s belief
that Act. that personal bias or other reason for
disqualification exists and the time
§ 1.315 Separation of functions. and circumstances of the party’s dis-
pmangrum on DSK3VPTVN1PROD with CFR

(a) Neither the investigating official, covery of such facts. It shall be accom-
the reviewing official, nor any em- panied by a certificate of the rep-
ployee or agent of the USDA who takes resentative of record that it is made in
part in investigating, preparing, or pre- good faith.

78

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00088 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.320

(e) Upon the filing of such a motion (5) Issue subpoenas requiring the at-
and affidavit, the ALJ shall proceed no tendance of witnesses and the produc-
further in the case until he or she re- tion of documents at depositions or at
solves the matter of disqualification in hearings;
accordance with paragraph (f). (6) Rule on motions and other proce-
(f)(1) If the ALJ determines that a re- dural matters;
viewing official is disqualified, the ALJ (7) Regulate the scope and timing of
shall dismiss the complaint without discovery;
prejudice. (8) Regulate the course of the hearing
(2) If the ALJ disqualifies himself or and the conduct of attorneys and par-
herself, the case shall be reassigned ties;
promptly to another ALJ. (9) Examine witnesses;
(3) If the ALJ denies a motion to dis- (10) Receive, rule on, exclude, or
qualify, the authority head may deter- limit evidence;
mine the matter only as part of his or (11) Upon motion of a party take offi-
her review of the initial decision upon cial notice of facts;
appeal, if any. (12) Upon motion of a party, decide
cases, in whole or in part, by summary
§ 1.318 Rights of parties. judgment where there is no disputed
All parties may: issue of material fact;
(a) Be accompanied, represented, and (13) Conduct any conference, argu-
advised by a representative; ment, or hearing on motions in person
(b) Participate in any prehearing or or by telephone; and
post-hearing conference held by the (14) Exercise such other authority as
ALJ; is necessary to carry out the respon-
(c) Agree to stipulations of fact or sibilities of the ALJ under this sub-
law, which shall be made part of the part.
record; (c) The ALJ does not have the au-
(d) Conduct discovery; thority to decide upon the validity of
(e) Make opening and closing state- Federal statutes, regulations, or legal
ments at the hearing; opinions.
(f) Present evidence relevant to the
issues at the hearing; § 1.320 Prehearing conferences.
(g) Cross examine witnesses; (a) The ALJ may schedule a pre-
(h) Present oral arguments at the hearing conference at a reasonable
hearings; and time in advance of the hearing and
(i) Submit written briefs, proposed may schedule additional prehearing
findings of fact, and proposed conclu- conferences as appropriate.
sions of law after the hearing. (b) The ALJ may conduct any pre-
hearing conference in person or by tele-
§ 1.319 Authority of the ALJ. phone.
(a) The ALJ shall conduct a fair and (c) The ALJ may use prehearing con-
impartial hearing, avoid delay, main- ferences to discuss the following mat-
tain order, and assure that a record of ters:
the proceedings is made. (1) Simplification of the issues;
(b) The ALJ may: (2) The necessity or desirability of
(1) Set and change the date, time, amendments to the pleadings, includ-
and place of the hearing upon reason- ing the need for a more definite state-
able notice to the parties; ment;
(2) Continue or recess the hearing in (3) Stipulations, admissions of fact or
whole or part for a reasonable period of as to the contents and authenticity of
time; documents;
(3) Hold conferences to identify or (4) Whether the parties can agree to
simplify the issues, or to consider submission of the case on a stipulated
pmangrum on DSK3VPTVN1PROD with CFR

other matters that may aid in the ex- record;


peditious disposition of the proceeding; (5) Whether a party chooses to waive
(4) Administer oaths and affirma- appearance at an oral hearing and to
tions; submit only documentary evidence

79

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00089 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
§ 1.321 7 CFR Subtitle A (1–1–12 Edition)

(subject to the objection of other par- (1) Requests for production, inspec-
ties) and written argument. tion and photocopying of documents;
(6) Limitation of the number of wit- (2) Requests for admission of the au-
nesses; thenticity of any relevant document or
(7) Scheduling dates for the exchange the truth of any relevant fact;
of witness lists and of proposed exhib- (3) Written interrogatories; and
its; (4) Depositions.
(8) Discovery; (b) The ALJ shall set the schedule for
(9) The time and place for the hear- discovery.
ing; and (c) Requests for production of docu-
(10) Such other matters as may tend ments and requests for admission.
to expedite the fair and just disposition (1) A party may serve requests for
of the proceedings. production of documents or requests
(d) The ALJ shall issue an order con- for admission on another party.
taining all matters agreed upon by the (2) If a party served with such re-
parties or ordered by the ALJ at a pre- quests fails to respond timely, the re-
hearing conference. questing party may file a motion to
compel production or deem admissions,
§ 1.321 Disclosure of documents. as appropriate.
(a) Upon written request to the re- (3) A party served with such a request
viewing official, the respondent may may file a motion for a protective
review any relevant and material docu- order before the date on which a re-
ments, transcripts, records, and other sponse to the discovery request is due,
materials that relate to the allegations stating reasons why discovery should
set out in the complaint and upon be limited or should not be required.
which the findings and conclusions of (4) Within 15 days of service of a mo-
the investigating official under tion to compel or to deem matter ad-
§ 1.304(f) of this part are based unless mitted or a motion for a protective
such documents are privileged under order, the opposing party may file a re-
Federal law. Upon payment of fees for sponse.
duplication, the defendant may obtain (5) The ALJ may grant a motion to
copies of such documents. compel production or deem matter ad-
(b) Upon written request to the re- mitted or may deny a motion for a pro-
viewing official, the respondent also tective order only if he finds that—
may obtain a copy of all exculpatory (i) The discovery sought is necessary
information in the possession of the re- for the expeditious, fair, and reason-
viewing official or investigating offi- able consideration of the issues;
cial relating to the allegations in the (ii) It is not unduly costly or burden-
complaint, even if it is contained in a some;
document that would otherwise be (iii) It will not unduly delay the pro-
privileged. If the document would oth- ceeding; and
erwise be privileged, only that portion (iv) The information sought is not
containing exculpatory information privileged.
must be disclosed. (d) Depositions and written interrog-
(c) The notice sent to the Attorney atories. Depositions and written inter-
General from the reviewing official as rogatories are permitted only on the
described in § 1.305 of this part is not order of the ALJ.
discoverable under any circumstances. (1) A party seeking to use depositions
(d) The respondent may file a motion or written interrogatories may file a
to compel disclosure of the documents motion with the ALJ.
subject to the provisions of this sec- (2) A party and/or the potential depo-
tion. Such a motion may be filed with nent may file an opposition to the mo-
the ALJ following the filing of the an- tion or a motion for a protective order
swer pursuant to § 1.309 of this part. within 10 days of service of the motion.
pmangrum on DSK3VPTVN1PROD with CFR

(3) The ALJ may grant a motion al-


§ 1.322 Discovery. lowing the taking of a deposition or
(a) The following types of discovery the use of interrogatories or may deny
are authorized: a motion for a protective order only if

80

VerDate Mar<15>2010 11:10 Feb 02, 2012 Jkt 226012 PO 00000 Frm 00090 Fmt 8010 Sfmt 8010 Y:\SGML\226012.XXX 226012
Office of the Secretary, USDA § 1.323

he finds that the moving party has sat- ies of prior statements of proposed wit-
isfied the standards set forth in para- nesses, and copies of proposed hearing
graph (c)(5) of this section and has exhibits, including copies of any writ-
shown that the information sought ten statements or depositions that a
cannot be obtained by any other party intends to offer in lieu of live
means. testimony in accordance with § 1.331(b)
(4) If the ALJ grants a motion per- of this part, shall be exchanged at least
mitting a deposition, he shall issue a 15 days in advance of the hearing, or at
subpoena, which may also require the such other time as may be set by the
witness to produce documents. The ALJ. A witness whose name does not
party seeking to depose shall serve the appear on the witness list shall not be
subpoena in the manner prescribed in permitted to testify and no exhibit not
§ 1.308 of this part. provided to the opposing party as pro-
(5) The party seeking to depose shall vided above shall be admitted into evi-
provide for the taking of a verbatim dence at the hearing absent a showing
transcript of the deposition, which it of good cause.
shall make available to all other par-
ties for inspection and copying. § 1.323 Subpoenas for attendance at
(e) Costs. The costs of discovery shall hearing.
be borne by the party seeking dis- (a) A party wishing to procure the
covery. appearance and testimony at the hear-
(f) In issuing a protective order, the ing of any individual may request that
ALJ may make any order which justice the ALJ issue a subpoena.
requires to protect a party or person
(b) A subpoena requiring the attend-
from annoyance, embarrassment, op-
ance and testimony of an individual
pression, or undue burden or expense,
may also require the individual to
including one or more of the following:
produce documents at such hearing.
(1) That the discovery not be had;
(2) That the discovery may be had (c) A party who desires the issuance
only on specified terms and conditions, of a subpoena shall file with the ALJ a
including a designation of the time or written request not less than 15 days
place; before the date fixed for the hearing
(3) That the discovery may be had unless otherwise allowed by the ALJ
only through a method of discovery for good cause shown. Such request
other than that requested; shall specify any documents to be pro-
(4) That certain matters not be in- duced and shall designate the witnesses
quired into, or that the scope of dis- whose attendance is sought to be re-
covery be limited to certain matters; quired and describe their addresses and
(5) That discovery be conducted with locations with sufficient particularity
no one present except persons des- to permit such witnesses to be found.
ignated by the ALJ; The subpoena shall specify the time
(6) That the contents of discovery or and place at which the witness is to ap-
evidence be sealed; pear and any documents the witness is
(7) That a deposition after being to produce. Such a request may be
sealed be opened only by order of the made ex parte.
ALJ; (d) When the ALJ issues a subpoena
(8) That a trade secret or other con- under this section, the party who re-
fidential research, development, com- quested such subpoena shall serve all
mercial information or facts pertaining other parties with notice of the names
to any criminal investigation, pro- and addresses of the individuals sub-
ceeding, or other administrative inves- poenaed and specify any documents re-
tigation not be disclosed or be dis- quired to be produced.
closed only in a designated way; or (e) A subpoena shall be served by de-
(9) That the parties simultaneously livery, or by registered mail or by cer-
file specified documents or information tified mail in the manner prescribed in
pmangrum on DSK3VPTVN1PROD with CFR

enclosed in sealed envelopes to be § 1.308 of this part. A subpoena upon a


opened as directed by the ALJ. party or upon an individual under the
(g) Exchange of witness lists, state- control of a party may be served by
ments, and exhibits. Witness lists, cop- first class mail.