7 CFR Part 1 - Agriculture

Subpart E—Cooperative Production of
Television Films

PART 1—ADMINISTRATIVE
REGULATIONS

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

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

Subpart G—Privacy Act Regulations
1.110 Purpose and scope.
1.111 Definitions.
1.112 Procedures for requests pertaining to
individual records in a record system.
1.113 Times, places, and requirements for
identification of individuals making requests.
1.114 Disclosure of requested information to
individuals.
1.115 Special procedures: Medical records.
1.116 Request for correction or amendment
to record.
1.117 Agency review of request for correction or amendment of record.
1.118 Appeal of initial adverse agency determination on correction or amendment.
1.119 Disclosure of record to person other
than the individual to whom it pertains.
1.120 Fees.
1.121 Penalties.
1.122 General exemptions.
1.123 Specific exemptions.
APPENDIX A TO SUBPART G OF PART 1—INTERNAL DIRECTIVES

Subpart H—Rules of Practice Governing
Formal Adjudicatory Proceedings Instituted by the Secretary Under Various
Statutes

AUTHORITY: 5 U.S.C. 301 and 552, Appendix
A is also issued under 7 U.S.C. 2244; 31 U.S.C.
9701, and 7 CFR 2.75 (a)(6)(xiii).
SOURCE: 52 FR 49386, Dec. 31, 1987, unless
otherwise noted.

1.130 Meaning of words.
1.131 Scope and applicability of this subpart.
1.132 Definitions.
1.133 Institution of proceedings.
1.134 Docket number.
1.135 Contents of complaint or petition for
review.
1.136 Answer.
1.137 Amendment of complaint, petition for
review, or answer; joinder of related matters.
1.138 Consent decision.
1.139 Procedure upon failure to file an answer or admission of facts.
1.140 Conferences and procedure.
1.141 Procedure for hearing.
1.142 Post-hearing procedure.
1.143 Motions and requests.
1.144 Judges.
1.145 Appeal to Judicial Officer.

Subpart B—Departmental Proceedings
1.26

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

Subpart C—Judicial Proceedings

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1.41

Service of process.

Subpart D—Claims
1.51

Claims based on negligence, wrongful
act or omission.

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1.146 Petitions for reopening hearing; for rehearing or reargument of proceeding; or
for reconsideration of the decision of the
Judicial Officer.
1.147 Filing; service; extensions of time; and
computation of time.
1.148 Depositions.
1.149 Subpoenas.
1.150 Fees of witnesses.
1.151 Ex parte communications.

1.201
1.202
1.203

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

Subpart I—Rules of Practice Governing
Cease and Desist Proceedings Under
Section 2 of the Capper-Volstead Act
1.160 Scope and applicability of rules in this
part.
1.161 Definitions.
1.162 Institution of proceedings.
1.163 The complaint.
1.164 Answer.
1.165 Amendments.
1.166 Consent order.
1.167 Conference.
1.168 Procedure for hearing.
1.169 Post-hearing procedure and decision.
1.170 Appeal to the Judicial Officer.
1.171 Intervention.
1.172 Motions and requests.
1.173 Judges.
1.174 Filing; service; extensions of time; and
computation of time.
1.175 Procedure following entry of cease and
desist order.

Subpart L—Procedures Related to Administrative Hearings Under the Program
Fraud Civil Remedies Act of 1986
1.301 Basis, purpose and scope.
1.302 Definitions.
1.303 Basis for civil penalties and assessments.
1.304 Investigation.
1.305 Review by the reviewing official.
1.306 Prerequisites for issuing a complaint.
1.307 Complaint.
1.308 Service of complaint and notice of
hearing.
1.309 Answer and request for hearing.
1.310 Default upon failure to file an answer.
1.311 Referral of complaint and answer to
the ALJ.
1.312 Procedure where respondent does not
request a hearing.
1.313 Procedure where respondent requests a
hearing; notice of hearing.
1.314 Parties to the hearing.
1.315 Separation of functions.
1.316 Ex parte contacts.
1.317 Disqualification of reviewing official
or ALJ.
1.318 Rights of parties.
1.319 Authority of the ALJ.
1.320 Prehearing conferences.
1.321 Disclosure of documents.
1.322 Discovery.
1.323 Subpoenas for attendance at hearing.
1.324 Fees.
1.325 Form, filing and service of papers.
1.326 Computation of time.
1.327 Motions.
1.328 Sanctions.
1.329 The hearing and burden of proof.

Subpart J—Procedures Relating to Awards
Under the Equal Access to Justice Act
in Proceedings Before the Department
GENERAL PROVISIONS
1.180 Definitions.
1.181 Purpose of these rules.
1.182 When EAJA applies.
1.183 Proceedings covered.
1.184 Eligibility of applicants.
1.185 Standards for awards.
1.186 Allowable fees and expenses.
1.187 Rulemaking on maximum rates for attorney fees.
1.188 Awards against other agencies.
1.189 Delegations of authority.
INFORMATION REQUIRED FROM APPLICANTS
1.190
1.191
1.192
1.193

Contents of application.
Net worth exhibit.
Documentation of fees and expenses.
Time for filing application.

PROCEDURES FOR CONSIDERING APPLICATIONS

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Department review.
Judicial review.
Payment of award.

1.194 Filing and service of documents.
1.195 Answer to application.
1.196 Reply.
1.197 Comments by other parties.
1.198 Settlement.
1.199 Further proceedings.
1.200 Decision.

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Pt. 1

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

Subpart O—Conditions in FERC
Hydropower Licenses
GENERAL PROVISIONS
1.601 What is the purpose of this subpart,
and to what license proceedings does it
apply?
1.602 What terms are used in this subpart?
1.603 How are time periods computed?
1.604 What deadlines apply to pending applications?
HEARING PROCESS
REPRESENTATIVES
1.610 Who may represent a party, and what
requirements apply to a representative?
DOCUMENT FILING AND SERVICE
1.611 What are the form and content requirements for documents under §§ 1.611
through 1.660?
1.612 Where and how must documents be
filed?
1.613 What are the requirements for service
of documents?

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

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

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

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

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Subpart N—Policy With Regard to Indemnification of Department of Agriculture
Employees
1.501

1.640 What are the requirements for prehearing conferences?
1.641 How may parties obtain discovery of
information needed for the case?
1.642 When must a party supplement or
amend information it has previously provided?

Policy on employee indemnification.

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7 CFR Subtitle A (1–1–15 Edition)

1.643 What are the requirements for written
interrogatories?
1.644 What are the requirements for depositions?
1.645 What are the requirements for requests for documents or tangible things
or entry on land?
1.646 What sanctions may the ALJ impose
for failure to comply with discovery?
1.647 What are the requirements for subpoenas and witness fees?

pursuant to compulsory process. This
subpart also serves as the implementing regulations (referred to in
§ 1.3, ‘‘Agency implementing regulations’’) for the Office of the Secretary
(the immediate offices of the Secretary, Deputy Secretary, Under Secretaries and Assistant Secretaries) and
for the Office of Communications. The
Office of Communications has the primary responsibility for implementation of the FOIA in the Department of
Agriculture (‘‘USDA’’ or ‘‘Department’’). The term ‘‘agency’’ or ‘‘agencies’’ is used throughout this subpart
to include both USDA program agencies and staff offices.

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

[65 FR 46336, July 28, 2000]

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

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

[65 FR 46337, July 28, 2000]

§ 1.3 Agency
implementing
regulations.
Each agency of the Department shall
promulgate regulations setting forth
the following:
(a) The location and hours of operation of the agency office or offices
where members of the public may gain
access to those materials required by 5
U.S.C. 552(a)(2) and § 1.4 to be made
available for public inspection and
copying.
(b) Information regarding the publication and distribution (by sale or otherwise) of indexes and supplements to
indexes that are maintained in accordance with the requirements of 5 U.S.C.
552(a)(2) and § 1.4(c);

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

Subpart A—Official Records

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

§ 1.1 Purpose and scope.
This subpart establishes policy, procedures, requirements, and responsibilities for administration and coordination of the Freedom of Information Act
(‘‘FOIA’’), 5 U.S.C. 552, pursuant to
which any person may obtain official
records. It also provides rules pertaining to the disclosure of records

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§ 1.4

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

(4) Copies of all records, regardless of
form or format, which have been released pursuant to a FOIA request
under 5 U.S.C. 552(a)(3), and which because of the nature of their subject
matter, have become or are likely to
become the subject of subsequent requests for substantially the same
records. Agencies shall decide on a case
by case basis whether records fall into
this category, based on the following
factors:
(i) Previous experience with similar
records;
(ii) The particular characteristics of
the records involved, including their
nature and the type of information
contained in them; and
(iii) The identity and number of requesters and whether there is widespread media, historical, academic, or
commercial interest in the records.
(5) A general index of the records referred to in paragraph (a)(4) of this section.
(b) Records encompassed within paragraphs (a)(1) through (a)(5) of this section created on or after November 1,
1996, shall be made available to the
public by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means.
(c) Each agency of the Department
shall maintain and make available for
public inspection and copying current
indexes providing identifying information regarding any matter issued,
adopted or promulgated after July 4,
1967, and required by paragraph (a) of
this section to be make available or
published. Each agency shall publish
and make available for distribution
copies of such indexes and supplements
to such indexes at least quarterly, unless it determines by notice published
in the FEDERAL REGISTER that publication would be unnecessary and impracticable. After issuance of such notice,
each agency shall provide copies of any
index upon request at a cost not to exceed the direct cost of duplication.
(d) Each agency is responsible for
preparing reference material or a guide
for requesting records or information
from that agency. This guide shall also
include an index of all major information systems, and a description of

[65 FR 46337, July 28, 2000]

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§ 1.4 Public access to certain materials.
(a) In accordance with 5 U.S.C.
552(a)(2), each agency within the Department shall make the following materials available for public inspection
and copying (unless they are promptly
published and copies offered for sale):
(1) Final opinions, including concurring and dissenting opinions, as well as
orders, made in the adjudication of
cases;
(2) Those statements of policy and interpretation which have been adopted
by the agency and are not published in
the FEDERAL REGISTER;
(3) Administrative staff manuals and
instructions to staff that affect a member of the public;

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§ 1.5

7 CFR Subtitle A (1–1–15 Edition)
may help identify the records. If the request relates to a matter in pending
litigation, the requester should identify the court and its location.
(c) If an agency determines that a request does not reasonably describe the
records, the agency shall inform the requester of this fact and extend the requester an opportunity to clarify the
request or to confer promptly with
knowledgeable agency personnel to attempt to identify the records the requester is seeking. The ‘‘date of receipt’’ in such instances, for purposes
of § 1.13, shall be the date of receipt of
the amended or clarified request.
(d) If a request for records or a fee
waiver made under this subpart is denied, the requester shall have the right
to appeal the denial. Requesters also
may appeal agency determinations of a
requester’s status for purposes of fee
levels under sec. 5 of appendix A to this
subpart. All appeals must be in writing
and addressed to the official designated
in regulations promulgated by the
agency which denied the request. To facilitate processing of an appeal, the requester should place the phrase ‘‘FOIA
APPEAL’’ in capital letters on the
front of the envelope or on the cover
sheet of the fax transmittal.
(e) Requests that are not addressed
to a specific agency in USDA, or which
pertain to more than one USDA agency, or which are sent to the wrong
agency of USDA, should be forwarded
to the Department’s FOIA Officer in
the Office of Communications, U.S. Department of Agriculture, Washington,
DC 20250.
(f) The Department FOIA Officer will
determine which agency or agencies
should process the request, and, where
necessary, refer the request to the appropriate agency or agencies. The Department FOIA Officer will also notify
the requester of the referral and of the
name of each agency to which the request has been referred.
(g) A request will be properly received when it is in the possession of
the component agency that has responsibility for maintaining the requested
records.
(h) Each agency shall develop and
maintain a record of all written requests and appeals received in that
agency. The record shall include the

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

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[65 FR 46337, July 28, 2000]

§ 1.5 Requests for records.
(a) Any person who wishes to inspect
or obtain copies of any record of any
agency of the Department shall submit
a request in writing and address the request to the official designated in regulations promulgated by that agency.
The requester may ask for a fee waiver.
All such requests for records shall be
deemed to have been made pursuant to
the Freedom of Information Act, regardless of whether the request specifically mentions the Freedom of Information Act. To facilitate processing of
a request, the requester should place
the phrase ‘‘FOIA REQUEST’’ in capital letters on the front of the envelope
or on the cover sheet of the facsimile
transmittal.
(b) A request must reasonably describe the records to enable agency personnel to locate them with reasonable
effort. Where possible, a requester
should supply specific information regarding dates, titles, names of individuals, names of offices, and names of
agencies or other organizations that

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§ 1.8

names of the requester; a brief summary of the information requested;
whether the request or appeal was
granted, denied, or partially denied;
the exemption from mandatory disclosure under 5 U.S.C. 552(b) upon which
any denial was based; and the amount
of any fees associated with the request
or appeal.

(2) The name and title or position of
each person responsible for denial of
the request;
(3) The requester’s right to appeal
such denial and the title and address of
the official to whom such appeal is to
be addressed; and
(4) The requirement that such appeal
be made within 45 days of the date of
the denial.
(b) If the reason for not fulfilling a
request is that the records requested
are in the custody of another agency
outside USDA, other than in the permanent custody of the National Archives and Records Administration
(‘‘NARA’’), the agency shall inform the
requester of this fact and shall forward
the request to that agency or Department for processing in accordance with
its regulations. If the records are in the
permanent custody of NARA, the agency shall so inform the requester. Information about obtaining access to
records at NARA may be obtained
through the NARA Archival Information Locator (NAIL) Database at http://
www/nara.gov/nara.nail.html, or by calling NARA at (301) 713–6800. If the agency has no knowledge of requested
records or if no records exist, the agency shall notify the requester of that
fact.

[65 FR 46337, July 28, 2000]

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

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[65 FR 46338, July 28, 2000]

§ 1.7 Agency response to requests for
records.
(a) 5 U.S.C. 552(a)(6)(A)(i) provides
that each agency of the Department to
which a request for records is submitted in accordance with § 1.5(a) shall
inform the requester of its determination concerning that request within 20
working days of its date of receipt (excepting Saturdays, Sundays, and legal
public holidays), plus any extension authorized under § 1.16. If the agency determines to grant the request, it shall
inform the requester of any conditions
surrounding the granting of the request (e.g., payment of fees) and the
approximate date upon which the agency will provide the requested records. If
the agency grants only a portion of the
request, it shall treat the portion not
granted as a denial, and make a reasonable effort to estimate the volume of
the records denied and provide this estimate to the requester, unless providing such an estimate would harm an
interest protected by an exemption of
the FOIA. If the agency determines to
deny the request in part or in whole, it
shall immediately inform the requester
of that decision and provide the following:
(1) The reasons for the denial;

[65 FR 46338, July 28, 2000]

§ 1.8 Multitrack processing.
(a) When an agency has a significant
number of requests, the nature of
which precludes a determination within 20 working days, the requests may
be processed in a multitrack processing
system, based on the date of receipt,
the amount of work and time involved
in processing the request, and whether
the request qualifies for expedited
processing.
(b) Agencies may establish as many
processing tracks as appropriate; processing within each track shall be based
on a first-in, first-out concept, and
rank-ordered by the date of receipt of
the request.
(c) Agencies may provide a requester
whose request does not qualify for the
fastest track an opportunity to limit
the scope of the request in order to
qualify for a faster track. This multitrack processing system does not lessen agency responsibility to exercise

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7 CFR Subtitle A (1–1–15 Edition)

due diligence in processing requests in
the most expeditious manner possible.
(d) Agencies shall process requests in
each track on a ‘‘first-in, first-out’’
basis, unless there are unusual circumstances as set forth in § 1.16, or the
requester is entitled to expedited processing as set forth in § 1.9.

news breaking nature of the information.
(c) A requester who seeks expedited
processing must provide a written
statement that the requester has certified to be true and correct to the best
of the requester’s knowledge, explaining in detail the basis for requesting
expedited processing. The agency will
not consider the request to have been
received unless accompanied by a written, certified statement, and will be
under no obligation to consider the request for expedited processing until it
receives such a written, certified statement.
(d) the same procedures apply to requests for expedited processing of administrative appeals.

Rmajette on DSK2VPTVN1PROD with CFR

[65 FR 46338, July 28, 2000]

§ 1.9 Expedited processing.
(a) A requester may apply for expedited processing at the time of the initial request for records. Within ten calendar days of its receipt of a request
for expedited processing, an agency
shall decide whether to grant it, and
shall notify the requester of the decision. Once the determination has been
made to grant expedited processing, an
agency shall process the request as
soon as practicable. If a request for expedited processing is denied, the agency shall act expeditiously on any appeal of that decision.
(b) A request or appeal will be taken
out of order and given expedited treatment whenever the agency determines
that the requester has established either of the following criteria:
(1) Circumstances in which the lack
of expedited treatment could reasonably be expected to pose an imminent
threat to the life or physical safety of
an individual; or
(2) An urgency to inform the public
about an actual or alleged federal government activity, if made by an individual primarily engaged in disseminating information. Representatives of
the news media would normally qualify
as individuals primarily engaged in disseminating
information;
however,
other requesters must demonstrate
that their primary activity involves
publishing or otherwise disseminating
information to the public as a whole,
and not just a particular segment or
group. ‘‘Urgency’’ contemplates that
the information has a particular value
that will be lost if not disseminated
quickly. Ordinarily this means a breaking news story of general public interest. Information of historical interest
only or information sought for litigation or commercial activities would
not meet the test of urgency, nor
would a news media publication or
broadcast deadline unrelated to the

[65 FR 46338, July 28, 2000]

§ 1.10

Search services.

Search services are services of agency personnel—clerical or professional—
used in trying to find the records, that
are responsive to a request. Search
services includes both manual and electronic searches and time spent examining records for the purpose of finding
information that is within the scope of
the request. Search services also include services to transport personnel to
places of record storage, or records to
the location of personnel for the purpose of the search, if such services are
reasonably necessary.
[65 FR 46339, July 28, 2000]

§ 1.11

Review services.

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

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§ 1.14

policy issues regarding the application
of exemptions.

matter may be considered for possible
judicial intervention; and
(e) Notify business information submitters promptly of all instances in
which FOIA requesters bring suit seeking to compel disclosure of submitted
information.

[65 FR 46339, July 28, 2000]

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§ 1.12 Handling information
private business.

from

a

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

[65 FR 46339, July 28, 2000]

§ 1.13 Date of receipt of requests or appeals.
The date of receipt of a request or appeal shall be the date it is received in
the agency and office responsible for
the administrative processing of FOIA
requests or appeals.
[65 FR 46339, July 28, 2000]

§ 1.14

Appeals.

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

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§ 1.15

7 CFR Subtitle A (1–1–15 Edition)
would reasonable demonstrate the extent of the deletion. In the case of electronic deletion, or deletion in audiovisual or microfiche records, if technically feasible, the amount of redacted information shall be indicated
at the place in the records, if technically feasible, the amount of redacted information shall be indicated
at the place in the record where such
deletion was made. This may be done
by use of brackets, shaded areas, or
some other identifiable technique
which will clearly show the limits of
the deleted information.
(c) If, in connection with a request or
an appeal, a charge is to be made in accordance with sec. 8 of appendix A to
this subpart, agencies shall inform the
requester of the fee amount and of the
basis for the charge. Each agency, in
accordance with sec. 8 of appendix A to
this subpart, may require payment of
the entire fee, or a portion of the fee,
before it provides the requested
records. An agency shall require full
payment of any delinquent fee owed by
the requester plus any applicable interest prior to releasing records on a subsequent request or appeal. If a requester refuses to remit payment in advance, an agency may refuse to process
the request or appeal with written notice to that effect forwarded to the requester. The ‘‘date of receipt’’ appeal
for which advance payment has been
required shall be the date that payment is received.
(d) In the event compliance with the
request or appeal involves inspection of
records by the requester rather than
providing copies of the records, the
agency response shall include the
name, mailing address, and telephone
number of the person to be contacted
to arrange a mutually convenient time
for such inspection.
(e) Whenever duplication fees, or
search fees for unsuccessful searches
(see sec. 4(f) of appendix A to this subpart), are anticipated to exceed $25.00,
and the requester has not indicated, in
advance, a willingness to pay fees as
high as those anticipated, agencies
shall notify the requester of the
amount of the anticipated fee. If an extensive and therefore costly successful
search is anticipated, agencies also

(d) Each agency, upon a determination that it wishes to deny an appeal,
shall send a copy of the records requested and of all correspondence relating to the request to the Assistant
General Counsel, General Law Division, Office of the General Counsel
(‘‘Assistant General Counsel’’). When
the volume of records is so large as to
make sending a copy impracticable,
the agency shall enclose an informative summary of those records. The
agency shall not deny an appeal until
it receives concurrence from the Assistant General Counsel
(e) The Assistant General Counsel
shall promptly review the matter (including necessary coordination with
the agency) and render all necessary
assistance to enable the agency to respond to the appeal within the administrative deadline or any extension of
the administrative deadline.

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[65 FR 46339, July 28, 2000]

§ 1.15 General provisions respecting
release of records.
(a) When releasing documents, agencies shall provide the record in any
form or format the requester specifies,
if the record is readily reproducible in
that form of format. Agencies shall
make reasonable efforts to maintain
their records in forms or formats that
are reproducible. In responding to requests for records, agencies shall make
reasonable efforts to search for records
in electronic form or format, except
when such efforts would significantly
interfere with the operation of an agency’s automated information system.
Such determinations shall be made on
a case-by-case basis.
(b) In the event a requested record
contains some portions that are exempt from mandatory disclosure and
others that are not, the official responding to the request shall ensure
that all reasonably segregable nonexempt portions are disclosed, and that
all exempt portions are identified according to the specific exemption or
exemptions which are applicable. The
amount of deleted information shall be
indicated on the released portion of
paper records. Deletions may be
marked by use of brackets or darkened
areas indicating removal of information, or by any other method that

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§ 1.17

should notify requesters of the anticipated fees. The notification shall offer
the requester the opportunity to confer
with agency personnel to reform the
request to meet the requester’s needs
at a lower fee. In appropriate cases, an
advance deposit in accordance with sec.
8 of appendix A to this subpart may be
required.

(1) The need to search for and collect
the requested records from field facilities or other establishments that are
separate from the office processing the
request;
(2) The need to search for, collect,
and appropriately examine a voluminous amount of separate and distinct
records which are demanded in a single
request; or
(3) The need for consultation, which
shall be conducted with all practicable
speed, with another Department or
agency having a substantial interest in
the determination of the request or
among two or more components of
agency having substantial subject-matter interest in the request.

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[65 FR 46340, July 28, 2000]

§ 1.16 Extension
of
administrative
deadlines.
(a) In unusual circumstances as specified in this section, when additional
time is needed to respond to the initial
request or to an appeal, agencies shall
acknowledge the request or the appeal
in writing within the 20 working day
time period, describe the unusual circumstances requiring the delay, and indicate the anticipated date for a substantive response that may not exceed
10 additional working days, except as
provided in the following:
(1) In instances in which the agency,
with respect to a particular request,
has extended the response date by 10
additional working days, if the agency
finds that it cannot make a response
determination within the additional 10
working day period, the agency shall
notify the requester and provide the requester an opportunity to limit the
scope of the request to allow the agency to process the request within the extended time limit, or an alternative
time frame for processing the request
or a modified request.
(2) If the requester refuses to reasonably modify the request or arrange for
an alternative time frame for processing the request, the FOIA provides
that such refusal shall be considered as
a factor in determining whether there
are exceptional circumstances that
warrant granting additional time for
the agency to complete its review of
the records, as set forth in 5 U.S.C.
552(a)(6)(C)(iii). The term ‘‘exceptional
circumstances’’ does not include a
delay that results from a predictable
agency backlog, unless the agency
demonstrates reasonable progress in
reducing its backlog of pending requests.
(b) As used in this section, ‘‘unusual
circumstances’’ that may justify delay
are:

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

(c) The 10-day extension authorized
by this section may be divided between
the initial and appellate reviews, but in
no event shall the total extension exceed 10 working days.
(d) Nothing in this section shall preclude the agency and the requester
from agreeing to an extension of time.
Any such agreement should be confirmed in writing and should specify
clearly the total time agreed upon.
[65 FR 46340, July 28, 2000]

§ 1.17 Failure to meet administrative
deadlines.
In the event an agency fails to meet
the administrative deadlines set forth
in § 1.7 or § 1.14, plus any extension authorized by § 1.16, it shall notify the requester, state the reasons for the
delay, and the date by which it expects
to dispatch a determination. Although
the requester may be deemed to have
exhausted his or her administrative
remedies under 5 U.S.C. 552(a)(6)(C), the
agency shall continue processing the
request as expeditiously as possible and
dispatch the determination when it is
reached in the same manner and form
as if it had been reached within the applicable deadline.
[65 FR 46341, July 28, 2000]

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§ 1.18

7 CFR Subtitle A (1–1–15 Edition)
(5) The number of requests for
records pending before the agency as of
September 30 of the preceding year,
and the median number of days that
such requests had been pending before
the agency as of that date:
(6) The median number of days taken
by the agency to process different
types of requests;
(7) The total amount of fees collected
by the agency for processing requests;
(8) The number of full-time staff of
the agency devoted to processing requests for records under this section,
and the total amount expended by the
agency for processing such requests.
(b) Each agency shall compile the information required by paragraph (a) of
this section for the preceding fiscal
year into a report and submit this report to the Director of Communications, Office of Communications, no
later than November 30 following the
fiscal year’s close.
(c) The Director of Communications,
Office of Communications, shall combine the reports from all the agencies
within USDA into a Departmental report, and shall submit to the Attorney
General on or before February 1 of each
year in accordance with 5 U.S.C. 552(e).
(d) Each agency shall make the report available to the public including
by computer telecommunications, or if
computer telecommunications means
have not been established by the agency, by other electronic means.

§ 1.18 Fee schedule.
Pursuant to § 2.28 of this title, the
Chief Financial Officer is delegated authority to promulgate regulations providing for a uniform fee schedule applicable to all agencies of the Department
regarding requests for records under
this subpart. The regulations providing
for a uniform fee schedule are found in
appendix A to this subpart.
[65 FR 46341, July 28, 2000]

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

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[65 FR 46341, July 28, 2000]

§ 1.20 Annual report.
(a) Each agency of the Department
shall compile the following Freedom of
Information Act statistics on a fiscal
year basis beginning October 1, 1997,
and report the following information to
the Office of Communications no later
than November 30 following the fiscal
year’s close:
(1) The number of requests for
records received and the number of requests which were processed;
(2) The number of determinations
made not to comply with initial requests for records made to it under
§ 1.5(a), and the reasons for each such
determinations;
(3) The number of appeals made by
persons under § 1.14(b), the result of
such appeals, and the reason for the action upon each appeal that results in a
denial of information.
(4) A complete list of all statutes
that the agency relies upon to authorize the agency to withhold information
under 5 U.S.C. 552(b)(3), a description of
whether a court has upheld the decision of the agency to withhold information under each such statute, and a
concise description of the scope of any
information withheld;

[65 FR 46341, July 28, 2000]

§ 1.21

Compilation of new records.

Nothing in 5 U.S.C. 552 or this subpart requires that any agency create a
new record in order to fulfill a request
for records. However, an agency is required to provide a record in a form or
format specified by a requester, if the
record is readily reproducible by the
agency in the form or format requested. Creation of records may be undertaken voluntarily if the agency determines this action to be in the public
interest or the interest of USDA.
[65 FR 46341, July 28, 2000]

§ 1.22

Authentication.

When a request is received for an authenticated copy of a document that

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Office of the Secretary, USDA

§ 1.25
in Room 536–A, Jamie L. Whitten Federal Building, USDA, Washington, DC
20250 during the hours of 9 a.m. to 5
p.m. by prior appointment;
(2) Any indexes and supplements
which are maintained in accordance
with the requirements of 5 U.S.C.
552(a)(2) and § 1.5(b) will also be available in Room 536–A, Jamie L. Whitten
Federal Building, USDA, Washington,
DC 20250 during the hours of 9 a.m. to
5 p.m.;
(3) The person authorized to receive
Freedom of Information Act requests
and to determine whether to grant or
deny such requests is the FOIA Officer,
Office of Communications, USDA,
Washington, DC 20250;
(4) The official authorized to receive
appeals from denial of FOIA requests
and to determine whether to grant or
deny such appeals is the Director of
Communications, Office of Communications, USDA, Washington, DC
20250.
(b) The organization and functions of
the Office of the Secretary and the Office of Communications is as follows:
(1) The Office of the Secretary provides the overall policy guidance and
direction of the activities of the Department of Agriculture. Departmentwide policy statements and announcements are made from this office.
(2) The Office of the Secretary consists of the Secretary, Deputy Secretary, Under Secretaries, Assistant
Secretaries, and other staff members.
(3) In the absence of the Secretary
and the Deputy Secretary, responsibility for the operation of the Department of Agriculture is as delegated at
part 2, subpart A, of this title.
(4) The Office of Communications
provides policy direction, review, and
coordination of public information programs of the Department of Agriculture. The Office of Communications
has responsibility for maintaining the
flow of information to the mass communications media, various constituency groups, and the general public.
(5) The Office of Communications is
headed by the Director of Communications. In the Director’s absence, the Office of Communications is headed by
the Deputy Director.

the agency determines to make available to the requesting party, the agency shall cause a correct copy to be prepared and sent to the Office of the General Counsel, which shall certify the
same and cause the seal of the Department to be affixed, except that the
Hearing Clerk in the Office of Administrative Law Judges may authenticate
copies of documents in the records of
the Hearing Clerk, the Director of the
National Appeals Division may authenticate copies of documents in the
records of the National Appeals Division, and the Inspector General may
authenticate copies of documents in
the records of the Office of Inspector
General.
[72 FR 66042, Nov. 27, 2007]

§ 1.23 Records in formal adjudication
proceedings.
Records in formal adjudication proceedings are on file in the Hearing
Clerk’s office, Office of Administrative
Law Judges, U.S. Department of Agriculture, Washington, DC 20250, and
shall be made available to the public.
[65 FR 46341, July 28, 2000]

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

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[65 FR 46341, July 28, 2000]

§ 1.25 Implementing regulations for
the Office of the Secretary and the
Office of Communications.
(a) For the Office of the Secretary
and for the Office of Communications,
the regulations required by § 1.3 are as
follows:
(1) Records available for public inspection and copying may be obtained

[65 FR 46341, July 28, 2000]

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Pt. 1, Subpt. A, App. A

7 CFR Subtitle A (1–1–15 Edition)
(d) Records shall also be furnished without
charge under the following conditions:
(1) When filling requests from other Departments or Government agencies for official use, provided quantities requested are
reasonable in number;
(2) When members of the public provide
their own copying equipment, in which case
no copying fee will be charged (although
search and review fees may still be assessed);
or
(3) When any notices, decisions, orders, or
other materials are required by law to be
served on a party in any proceeding or matter before any Department agency.

APPENDIX A TO SUBPART A OF PART 1—
FEE SCHEDULE
Section 1. General.
This schedule sets forth fees to be charged
for providing copies of records—including
photographic reproductions, microfilm, maps
and mosaics, and related services—under the
Freedom of Information Act (FOIA). Records
and related services are available at the locations specified by agencies in their FOIA
implementing regulations. The fees set forth
in this schedule are applicable to all agencies of the Department of Agriculture, and
are based upon guidelines prescribed by the
Office of Management and Budget (OMB)
issued at 52 FR 10012 (March 27, 1987). No
higher fees or charges in addition to those
provided for in this schedule may be charged
a party requesting services under the Freedom of Information Act.

Section 4. Fees for records and related services.
(a) The fee for photocopies of pages 81⁄2″×14″
or smaller shall be $0.20 per page (per individual side of sheet).
(b) The fee for photocopies larger than
81⁄2″×14″ shall be $0.50 per linear foot of the
longest side of the copy.
(c) The fee for other forms of duplicated
records, such as microform, audio-visual materials, or machine-readable documentation
(i.e., magnetic tape or disk), shall be the actual direct cost of producing the records.
(d) Manual searches shall be charged for in
one of the two following manners in the
given order:
(1) When feasible, at the salary rate of the
employee conducting the search, plus 16 percent of the employee’s basic pay; or
(2) Where a homogeneous class of personnel
is used exclusively, at the rate of $10.00 per
hour for clerical time, and $20.00 per hour for
supervisory or professional time. Charges
should be computed to the nearest quarter
hour required for the search. A homogeneous
class of personnel, for purposes of conducting
manual searches and where more than one
individual is involved, is a group of employees of like rank, grade, pay or position. A
heterogeneous class of personnel is a group
of employees of unlike rank, grade, pay, or
position. If a heterogeneous class of personnel is involved in a search then the
search shall be charged for at the salary rate
of the individuals.
(e) Mainframe computer searches and services shall be charged for at the rates established in the Users Manual or Handbook published by the computer center at which the
work will be performed. Where the rate has
not been established, the rate shall be $27.00
per minute. Searches using computers other
than mainframes shall be charged for at the
manual search rate.
(1) Other rates are published and may be
examined at the following places:
Fort Collins Computer Center Users Manual
Fort Collins Computer Center, U.S. Department of Agriculture, 3825 East Mulberry Street (P.O. Box 1206), Fort Collins,
Colo. 80521.

Section 2. Types of services for which fees may
be charged.
Subject to the criteria set forth in section
5 of this appendix, fees may be assessed
under the Freedom of Information Act on all
requests involving such services as record
search, duplication, and review. Fees may
also be charged in situations involving special service to a request, such as certifying
that records requested are true copies, or
sending records by special methods such as
express mail, etc. For services not covered
by the FOIA or by this appendix, agencies
may set their own fees in accordance with
applicable law, or costs incurred will be assessed the requester at the actual cost to the
Government. For example, where records are
required to be shipped from one office to another by commercial carrier in order to
timely answer a request, the actual freight
charge will be assessed the requester.

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Section 3. Instances in which fees will not be
charged.
(a) Except for requests seeking records for
a commercial use (as specified in section 5 of
this appendix), no charge shall be made for
either: (1) The first 100 pages of duplicated
records (81⁄2″×14″ or smaller-size paper); or (2)
The first two hours of manual search time,
or the equivalent value of computer search
time as defined in section 4(e) of this appendix.
(b) No charge shall be made—even to commercial use requesters—if the cost of collecting a fee would be equal to or greater
than the fee itself. For USDA, this figure has
been calculated to be $25.00.
(c) Fees may not be charged for time spent
by an agency employee in resolving legal or
policy issues, or in monitoring a requester’s
inspection of agency records. No charge shall
be made for normal postage costs.

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Office of the Secretary, USDA

Pt. 1, Subpt. A, App. A

National Finance Center, Cost, Productivity
& Analysis Section, U.S. Department of
Agriculture, 13800 Old Gentilly Road,
New Orleans, La. 70129.
Kansas City Computer Center Users Manual
Kansas City Computer Center, U.S. Department of Agriculture, 8930 Ward Parkway (P.O. Box 205), Kansas City, MO.
64141.
Washington Computer Center Users Handbook: Washington Computer Center, U.S.
Department of Agriculture, Room S–100,
South Building, 12th Street and Independence Avenue, SW., Washington, DC
20250.
St. Louis Computer Center, U.S. Department
of Agriculture, 1520 Market Street, St.
Louis, MO. 63103.

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

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

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Section 5. Levels of fees for each category of
requesters.
Under the FOIA, there are four categories
of FOIA requesters: Commercial use requesters, educational and non-commercial scientific institutions; representatives of the
news media; and all other requesters. FOIA

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Pt. 1, Subpt. A, App. A

7 CFR Subtitle A (1–1–15 Edition)

(1) The term representative of the news media
refers to any person actively gathering news
for an entity that is organized and operated
to publish or broadcast news to the public.
(2) The term news means information that
is about current events or that would be of
current interest to the public.
(3) Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers
of periodicals which disseminate news and
who make their products available for purchase or subscription by the general public.
(4) Freelance journalists may be regarded as
working for a news organization if they can
demonstrate a solid basis for expecting publication through that organization, even
though not actually employed by it.
(d) All other requesters—Fees for requesters who do not fit into the categories described in paragraphs (a), (b), or (c) of this
section shall be assessed for the full reasonable direct cost of searching for and duplicating records that are responsive to a request. No charge, however, shall be made to
requesters in this category for: (1) The first
100 duplicated pages; or (2) the first two
hours of manual search time, or the equivalent value of computer search time as defined in section 4(e) of this appendix.

(vi) The primary interest in disclosure, i.e.,
whether the magnitude of the identified
commercial interest of the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is
‘‘primarily in the commercial interest of the
requester.’’
(2) An agency may, in its discretion, waive
or reduce fees associated with a request for
disclosure, regardless of whether a waiver or
reduction has been requested, if the agency
determines that disclosure will primarily
benefit the general public.
(3) Agencies may also waive or reduce fees
under the following conditions:
(i) Where the furnishings of records or a
service without charge or at a reduced rate
is an appropriate courtesy to a foreign country or international organization, or where
comparable fees are set on a reciprocal basis
with a foreign country or an international
organization;
(ii) Where the requester is engaged in a
nonprofit activity designed for the public
safety, health, or welfare; or
(iii) Where it is determined that payment
of the full fee by a State or local government
or nonprofit group would not be in the interest of the program involved.
(4) Fees shall be waived, however, without
discretion in all circumstances where the
amount of the fee is $25.00 or less.

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Section 6. Fee waivers and reductions.
(a) Agencies shall waive or reduce fees on
request for records if disclosure of the information in the records is deemed to be in the
public interest. A request is in the public interest if it is likely to contribute significantly to public understanding of the operations or activities of the government, and is
not primarily in the commercial interest of
the requester.
(1) In determining when fees shall be
waived or reduced, agencies should consider
the following six factors:
(i) The subject of the request, i.e., whether
the subject of the requested records concerns
‘‘the operations or activities of the government’’;
(ii) The informative value of the information to be disclosed, i.e., whether the disclosure is ‘‘likely to contribute’’ to an understanding of government operations or activities;
(iii) The contribution to an understanding
of the subject by the general public likely to
result from disclosure, i.e., whether disclosure of the requested information will contribute to ‘‘public understanding’’;
(iv) The significance of the contribution to
public understanding, i.e., whether the disclosure is likely to contribute ‘‘significantly’’ to public understanding of government operations or activities;
(v) The existence and magnitude of a commercial interest, i.e., whether the requester
has a commercial interest that would be
furthered by the requested disclosure; and,

Section 7. Restrictions regarding copies.
(a) Agencies may restrict numbers of photocopies and directives furnished the public
to one copy of each page. Copies of forms
provided the public shall also be held to the
minimum practical. Persons requiring any
large quantities should be encouraged to
take single copies to commercial sources for
further appropriate reproduction.
(b) Single or multiple copies of transcripts,
provided to the Department under a reporting service contract, may be obtained by the
public from the contractor at a cost not to
exceed the cost per page charged to the Department for extra copies. The contractor
may add a postage charge when mailing orders to the public, but no other charge may
be added.
Section 8. Payments of fees and charges.
(a) Payments should be billed for to the
fullest extent possible at the time the requested materials are furnished. Payments
should be made by requesters within 30 days
of the date of the billing.
(b) Payments shall be made by check,
draft, or money order made payable to the
Treasury of the United States, although payments may be made in cash, particularly
where services are performed in response to
a visit to a Department office. All payments
should be sent to the address indicated by
the agency responding to the request.

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Office of the Secretary, USDA

Pt. 1, Subpt. A, App. A
Section 13. Circumstances under which
reproductions may be provided free.

(c) Where the estimated fees to be charged
exceed $250.00, agencies may require an advance payment of an amount up to the full
estimated charges (but not less than 50 percent) from the requester before any of the requested materials are reproduced.
(d) In instances where a requester has previously failed to pay a fee, an agency may require the requester to pay the full amount
owed, plus any applicable interest as provided in section 9 of this appendix, as well as
the full estimated fee associated with any
new request before the agency begins to
process that new or subsequent request.

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

Section 9. Interest charges.

Section 14. Loans.

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

Aerial photographic film negatives or reproductions may not be loaned outside the
Federal Government.
Section 15. Sales of positive prints under
government contracts.
The annual contract for furnishing single
and double frame slide film negatives and
positive prints to agencies of the Department, County Extension Agents, and others
cooperating with the Department, carries a
stipulation that the successful bidder must
agree to furnish slide film positive prints to
such persons, organizations, and associations
as may be authorized by the Department to
purchase them.

Section 10. Effect of the Debt Collection Act on
fees.
In attempting to collect fees levied under
the FOIA, agencies shall abide by the provisions of 31 U.S.C. 3701, 3711–3720A, in disclosing information to consumer reporting
agencies and in the use of collection agencies, where appropriate, to encourage payment.

Section 16. Procedure for handling orders.

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

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

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

Section 17. Reproduction prices.
The prices for reproductions listed in this
section are for the most generally requested
items.
(a) National Agricultural Library. The following prices are applicable to National Agricultural Library items only: Reproduction
of electrostatic, microfilm, and microfiche
copy—$5.00 for the first 10 pages or fraction
thereof, and $3.00 for each additional 10 pages
or fraction thereof. Duplication of NALowned microfilm—$10.00 per reel. Duplication of NAL-owned microfiche—$5.00 for the
first fiche, and $0.50 for each additional fiche.
Charges for manual and automated data base
searches for bibliographic or other research
information will be made in accordance with
section 4, paragraphs (c)-(e) of this appendix.
The contract rate charged by the commercial source to the National Agricultrual Library for computer services is available at
the National Agricultural Library, Agricultural Research Service, USDA, Document

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Section 12. Agencies which furnish
photographic reproductions.
(a) Aerial Photographic reproductions. The
following agency of the Department furnishes aerial photographic reproductions:
Farm Service Agency (FSA), Aerial Photography Field Office (APFO), USDA, 2222
West 2300 South, Salt Lake City, Utah 84119–
2020.
(b) Other photographic reproductions. Other
types of reproductions may be obtained from
the following agency of the Department:
National Agricultural Library, Agricultural Research Service, USDA, Office of the
Deputy Director, Technical Information Systems, Room 200, NAL Building, Beltsville,
MD 20705.

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§ 1.26

7 CFR Subtitle A (1–1–15 Edition)

Delivery Services Branch, 10301 Baltimore
Boulevard, Beltsville, Maryland 20705–2351
(301–504–6503).
(b) General photographic reproductions. Minimum charge $1 per order. An extra charge
may be necessary for excessive laboratory
time caused by any special instructions from
the purchaser.
Class of work and unit

$6.00
8.50
11.00

10.00

10×10 Paper Quantities:
1–50 ..........................................................
51–1000 ....................................................
1001 & Over ..............................................
10×10 Film Positive .................................................
20×20 Paper ............................................................
24×24 Paper ............................................................

$7.00
5.00
2.50
33.00
40.00
55.00

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

70.00

10×10
10×10
10×10
10×10
20×20
24×24
38×38

4.00
5.00

Paper ............................................................
Film Positive .................................................
Film Positive AT ...........................................
Film Positive Scan ........................................
Paper ............................................................
Paper ............................................................
Paper ............................................................

.65
(1)
6.50
(1)
14.50
16.50
18.50
21.50
23.00
26.50
3.00

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

Subpart B—Departmental
Proceedings

Price

§ 1.26 Representation before the Department of Agriculture.
(a) Applicability. This section applies
to all hearings and other proceedings
before the Department of Agriculture,
except to the extent that any other
regulation of the Department may specifically make this section, or any part
of this section, inapplicable as to particular hearings or other proceedings.
(b) Administrative provisions. (1) In any
hearing or other proceeding before the
Department of Agriculture, the parties
may appear in person or by counsel or

$5.00
10.00
10.00
15.00
3.00
4.50
12.00
13.00
25.00
16.00
40.00
50.00
55.00
20.00
15.00

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$12.00
15.00
15.00
20.00
32.00
40.00
70.00

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

Black and White Reproductions

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Microfilm (Photo Indexes): Microfiche .....................

Color Infrared Positive Reproductions

6.50
11.00
(1)

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

10×10 Paper ............................................................
10×10 Film Positive .................................................
10×10 Film Positive AT ...........................................
10×10 Film Positive Scan ........................................
10×10 Film Duplicate Negative ...............................
10×10 Film Internegative .........................................
12×12 Paper ............................................................
17×17 Paper ............................................................
17×17 Film Positive .................................................
24×24 Paper ............................................................
24×24 Film Positive .................................................
38×38 Paper ............................................................
38×38 Film Positive .................................................
20×24 Paper Photo Index .......................................
Paper Line Index .....................................................

35.00
10.00

8.50
11.00

quotation.

Size

Price

Color Negative Reproductions

Price

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

Size
Mylar Line Index ......................................................
Microfilm (Photo Indexes): Aperture Cards .............

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Office of the Secretary, USDA

§ 1.27
(1) Notices of proposed rulemaking;
(2) Interim final rules;
(3) Advance notices of proposed rulemaking; and
(4) Any other published notice that
solicits, or affords interested members
of the public an opportunity to submit,
written views with respect to any proposed action relating to any program
administered in the Department regardless of the fact that the issuance of
a rule may not be contemplated.
(b) Each notice identified in paragraph (a) of this section shall indicate
the procedure to be followed with respect to the notice, unless the procedure is prescribed by statute or by published rule of the Department. Each notice shall contain a statement that advises the public of the policy regarding
the availability of written submissions
by indicating whether paragraph (c),
(d), or (e) of this section is applicable
to written submissions made pursuant
to the notice.
(c) All written submissions made pursuant to the notice shall be made available for public inspection at times and
places and in a manner convenient to
the public business.
(d)(1) Any written submission, pursuant to a notice, may be held confidential if the person making the submission requests that the submission be
held confidential, the person making
the submission has shown that the
written submission may be withheld
under the Freedom of Information Act,
and the Department official authorized
to issue the notice determines that the
submission may be withheld under the
Freedom of Information Act.
(2) If a request is made in accordance
with paragraph (d)(1) of this section for
confidential treatment of a written
submission, the person making the request shall be informed promptly in
the event the request is denied and afforded an opportunity to withdraw the
submission.
(3) If a determination is made to
grant a request for confidential treatment under paragraph (d)(1) of this section, a statement of the specific basis
for the determination that will not be
susceptible of identifying the person
making the request will be made available for public inspection.

other representative. Persons who appear as counsel or in a representative
capacity in any hearing or proceeding
must conform to the standards of ethical conduct required of practitioners
before the U.S. District Court for the
District of Columbia, and to any applicable standards of ethical conduct established by statutes, executive orders
and regulations.
(2) Whenever the Secretary finds,
after notice and opportunity for hearing, that a person who is acting or has
acted as counsel or representative in
any hearing or other proceeding before
the Department has not conformed to
any such standards of ethical conduct,
the Secretary may order that such person be precluded from acting as counsel
or representative in any hearing or
other proceeding before the Department for such period of time as the
Secretary deems warranted. Whenever
the Secretary has probable cause to believe that any person who is acting or
has acted as counsel or representative
in any such hearing or other proceeding has not conformed to any such
standards of ethical conduct, the Secretary may, by written notice to such
person, suspend the person from acting
as such a counsel or representative
pending completion of the procedures
specified in the preceding sentence.
(3) No employee or former employee
of the Department shall be permitted
to represent any person before the Department in connection with any particular matter as to which by reason of
employment with the Department the
employee or former employee acquired
personal knowledge of such a nature
that it would be improper, unethical,
or contrary to the public interest for
the employee or former employee so to
act.
(4) This section shall not be construed to prevent an employee or
former employee of the Department
from appearing as a witness in any
hearing or other proceeding before the
Department.
(18 U.S.C. 203, 205, 207)

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

§ 1.27 Rulemaking and other notice
procedures.
(a) This section shall apply to:

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§ 1.28

7 CFR Subtitle A (1–1–15 Edition)
may not be delegated or redelegated by
the head of an agency.
(2) The Administrator, Grain Inspection, Packers and Stockyards Administration, may delegate the authority to
issue subpoenas in connection with investigations being conducted under the
Packers and Stockyards Act (7 U.S.C.
181–229), to the Deputy Administrator,
Packers and Stockyards Programs.
(3) In the case of a subpoena issued
under the Animal Health Protection
Act (7 U.S.C. 8301–8317), Plant Protection Act (7 U.S.C. 7701–7772), or Title V
of the Agricultural Risk Protection
Act of 2000 (7 U.S.C. 2279e–2279f), the
subpoena will be reviewed for legal sufficiency by the Office of the General
Counsel, USDA.
(b) Service of subpoena. (1) A subpoena
issued pursuant to this section may be
served by:
(i) A U.S. Marshal or Deputy Marshal,
(ii) Any other person who is not less
than 18 years of age, or
(iii) Certified or registered mailing of
a copy of the subpoena addressed to the
person to be served at his, her, or its
last known residence or principal place
of business or residence.
(2) Proof of service may be made by
the return of service on the subpoena
by the U.S. Marshal, or Deputy Marshal; or, if served by an individual
other than a U.S. Marshal or Deputy
Marshal, by an affidavit or certification of such person stating that he or
she personally served a copy of the subpoena upon the person named in the
subpoena; or, if service was by certified
or registered mail, by the signed Postal
Service receipt.
(3) In making personal service, the
person making service shall leave a
copy of the subpoena with the person
subpoenaed; and the original, bearing
or accompanied by the required proof
of service, shall be returned to the official who issued the subpoena.

(e) If the subject of the notice is such
that meaningful submissions cannot be
expected unless they disclose information that may be withheld under the
Freedom of Information Act, the notice
shall so indicate and contain a statement that written submissions pursuant to the notice will be treated as confidential and withheld under the Freedom of Information Act. Provided, That
the policy regarding availability of
written submissions set forth in this
paragraph may only be used with the
prior approval of the Secretary, or the
Under Secretary or Assistant Secretary that administers the program
that is the subject of the notice.
[60 FR 66480, Dec. 22, 1995]

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

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

§ 1.29 Subpoenas relating to investigations under statutes administered
by the Secretary of Agriculture.
(a) Issuance of subpoena. (1) When the
Secretary is authorized by statute to
issue a subpoena in connection with an
investigation being conducted by the
Department, the attendance of a witness and the production of evidence relating to the investigation may be required by subpoena at any designated
place, including the witness’ place of
business. Upon request of any representative of the Secretary involved
in connection with the investigation,
the subpoena may be issued by the Secretary, the Inspector General, or any
Department official authorized pursuant to part 2 of this title to administer
the program to which the subpoena relates, if the official who is to issue the
subpoena is satisfied as to the reasonableness of the grounds, necessity, and
scope of the subpoena. Except as provided in paragraph (a)(2) of this section, the authority to issue subpoenas

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

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Office of the Secretary, USDA

§ 1.72
cordance with the law of the place
where the act or omission occurred.
(b) Procedure for filing claims. Claims
must be presented by the claimant, or
by his or her duly authorized agent or
legal representative as specified in 28
CFR 14.3. Standard Form 95, Claim for
Damage or Injury, may be obtained
from the agency within USDA that employs the employee who allegedly committed the negligent or wrongful act or
omission. The completed claim form,
together with appropriate evidence and
information, as specified in 28 CFR 14.4,
shall be filed with the agency from
which it was obtained.
(c) Determination of claims—(1) Delegation of authority to determine claims. The
General Counsel, and such employees
of the Office of the General Counsel as
may be designated by the General
Counsel, are hereby authorized to consider, ascertain, adjust, determine,
compromise, and settle claims pursuant to the FTCA, as amended, and the
regulations contained in 28 CFR part 14
and in this section.
(2) Disallowance of claims. If a claim is
denied, the General Counsel, or his or
her designee, shall notify the claimant,
or his or her duly authorized agent or
legal representative.

Subpart C—Judicial Proceedings
§ 1.41

Service of process.

Process in any suit brought in Washington, District of Columbia, against
the United States or any officer of the
U.S. Department of Agriculture in any
matter involving the activities of this
Department, shall be served on the
General Counsel of the Department. A
U.S. Marshal or other process server
attempting to serve process in such a
suit on any officer of the Department
shall be referred to the Office of the
General Counsel, in order that service
of process may be made. In the event
an officer of the Department of Agriculture is served with process in such a
suit, the officer shall immediately notify the General Counsel. Any subpoena, summons, or other compulsory
process requiring an officer or employee to give testimony, or to produce
or disclose any record or material of
the U.S. Department of Agriculture,
shall be served on the officer or employee of the U.S. Department of Agriculture named in the subpoena, summons, or other compulsory process.
[19 FR 4052, July 3, 1954, as amended at 33 FR
10273, July 18, 1968; 43 FR 6202, Feb. 14, 1978;
60 FR 66481, Dec. 22, 1995]

[61 FR 57577, Nov. 7, 1996]

Subpart D—Claims

Subpart E—Cooperative
Production of Television Films

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

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

(a) Authority of the Department. Under
the provisions of the Federal Tort
Claims Act (FTCA), as amended, 28
U.S.C. 2671–2680, and the regulations
issued by the Department of Justice
(DOJ) contained in 28 CFR part 14, the
United States Department of Agriculture (USDA) may, subject to the
provisions of the FTCA and DOJ regulations, consider, ascertain, adjust, determine, compromise, and settle claims
for money damages against the United
States for personal injury, death, or
property loss or damage caused by the
negligent or wrongful act or omission
of any employee of USDA while acting
within the scope of his or her office or
employment,
under
circumstances
where the United States, if it were a
private person, would be liable, in ac-

§ 1.71 Purpose.
This subpart establishes procedures
for developing special working relationships with the Department of Agriculture requested by producers of films
for television use. These procedures are
designed to guide Department employees and producers of commercial television pictures in entering into such
arrangements.
§ 1.72 Policy.
(a) General. It is a basic policy of the
Department of Agriculture to make information freely available to the public.
(b) Cooperation with television film producers. The Department recognizes that

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§ 1.73

7 CFR Subtitle A (1–1–15 Edition)

its people and programs constitute a
rich source of materials on public services, often dramatic and interesting for
their human values, which are suitable
for production of films for television
showings. The Department welcomes
the interest of television film producers in its activities and maintains
an ‘‘open door’’ policy with respect to
the availability of factual information
to such producers, as it does to representatives of other media. As its resources will permit, the Department
will work with producers at their request, to assure technical accuracy of
scripts and story treatments.
(c) Special working relationships. In
those instances where a producer of
films for television seeks special Department participation such as the use
of official insignia of the Department,
or who request special assistance such
as the services of technical advisors,
use of Government equipment and
similar aids which require a material
expenditure of public funds, and where
the proposed film will further the public service of the Department, the Department will consider entering into a
special working relationship with such
producer.
(d) News film reporting exempted. Television and news film reporting of Department activities is not covered by
this subpart.

the Director of Information as its
agent, and the producer. Details on
such assistance as reviewing stories
and scripts, loan of material, arrangements for locations, use of official motion picture footage, assignment of
technical advisors and similar aids will
be covered in the agreement, which
shall delineate the general stipulations
listed in § 1.75.
§ 1.75

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

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

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General stipulations.

§ 1.74 Basis for special working relationships.
The Department and its agencies
may lend special assistance on television films when it is clearly evident
that public interests are served. Where
special assistance is sought, an individual cooperative agreement will be
drawn up between the Department with

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Office of the Secretary, USDA
§ 1.76

§ 1.110

Department cooperation.

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

When the producer agrees to meet
the above stipulations to the satisfaction of the Director of Information, the
U.S. Department of Agriculture and its
agencies will be available for consultation on story ideas and give guidance
through the services of a technical advisor to insure technical authenticity.
Equipment, locations, and personnel
will be available to the extent that
such availability is concurrent with
normal and usual conduct of the operations of the Department. The Department will check and work with the cooperators to arrange shooting schedules in order to avoid interferences
with working schedules.

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§ 1.77

Assignment of priorities.

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

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

Subpart G—Privacy Act
Regulations
AUTHORITY: 5 U.S.C. 301 and 552a; 31 U.S.C.
9701.
SOURCE: 40 FR 39519, Aug. 28, 1975, unless
otherwise noted.

§ 1.110 Purpose and scope.
This subpart contains the regulations
of the U.S. Department of Agriculture
(USDA) implementing the Privacy Act

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§ 1.111

7 CFR Subtitle A (1–1–15 Edition)

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

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

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

§ 1.111

Definitions.

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

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§ 1.112 Procedures for requests pertaining to individual records in a
record system.
(a) Any individual who wishes to be
notified if a system of records maintained by an agency contains any
record pertaining to him or her, or to
request access to such records, shall
submit a written request in accordance
with the instructions set forth in the
system notice for that system of
records. This request shall include:
(1) The name of the individual making the request;
(2) The name of the system of records
(as set forth in the system notice to
which the request relates);
(3) Any other information specified in
the system notice; and
(4) When the request is one for access, a statement as to whether the requester desires to make a personal inspection of the records, or be supplied
with copies by mail.
(b) Any individual whose request
under paragraph (a) of this section is
denied may appeal that denial to the
head of the agency which maintains
the system of records to which the request relates.
(c) In the event that an appeal under
paragraph (b) of this section is denied,
the requester may bring a civil action
in federal district court to seek review
of the denial.
[40 FR 39519, Aug. 28, 1975, as amended at 62
FR 33981, June 24, 1997]

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Office of the Secretary, USDA

§ 1.116
(c) No agency shall deny any request
under § 1.112 for information concerning
the existence of records about the requester in any system of records it
maintains, or deny any request for access to records about the requester in
any system of records it maintains, unless that system is exempted from the
requirements of 5 U.S.C. 552a(d) in
§ 1.123.
(d) If any agency receives a request
pursuant to § 1.112(a) for access to
records in a system of records it maintains which is so exempted, the system
manager shall determine if the exemption is to be asserted. If the system
manager determines to deny the request, the system manager shall inform the requester of that determination, the reason for the determination,
and the title and address of the agency
head to whom the denial can be appealed.
(e) If the head of an agency determines that an appeal pursuant to
§ 1.112(b) is to be denied, the head of the
agency shall inform the requester of
that determination, the reason for the
determination, and the requester’s
right under 5 U.S.C. 552a(g) to seek judicial review of the denial in Federal
district court.
(f) Nothing in 5 U.S.C. 552a or this
subpart shall allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding.

records warrant it, however, the agency to which the request is directed may
require the requester to submit a
signed, notarized statement indicating
that the requester is the individual to
whom the records pertain and stipulating the requester understands that
knowingly or willfully seeking or obtaining access to records about another
individual under false pretenses is a
misdemeanor punishable by fine up to
$5,000. No identification shall be required, however, if the records are required by 5 U.S.C. 552 to be released. If
the agency to which this request is directed determines to grant the requested access, it may charge fees in
accordance with § 1.120 before making
the necessary copies.

Rmajette on DSK2VPTVN1PROD with CFR

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

§ 1.114 Disclosure of requested information to individuals.
(a) Any agency which receives a request or appeal under § 1.112 should acknowledge the request or appeal within
10 days of its receipt (excluding Saturdays, Sundays, and legal public holidays). Wherever practicable, the acknowledgment should indicate whether
or not access will be granted and, if so,
when and where. When access is to be
granted, the agency should provide the
access within 30 days of receipt of the
request or appeal (excluding Saturdays,
Sundays and legal public holidays) unless, for good cause shown, it is unable
to do so. If the agency is unable to
meet this deadline, it shall inform the
requester of this fact, the reasons for
its inability to do so, and an estimate
of the date on which access will be
granted.
(b) Nothing in 5 U.S.C. 552a or this
subpart shall be interpreted to require
that an individual making a request
under § 1.112 be granted access to the
physical record itself. The form in
which a record is kept (e.g., on magnetic tape), or the content of the
record (e.g., a record indexed under the
name of the requester may contain
records which are not about the requester) may require that the record be
edited or translated in some manner.
Neither of these procedures may be utilized, however, to withhold information
in a record about the requester.

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

§ 1.115 Special
records.

procedures:

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

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or

(a) Any individual who wishes to request correction or amendment of any

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§ 1.117

7 CFR Subtitle A (1–1–15 Edition)
address of that official. If the agency
informs the requester of its determination within the 10-day deadline, a separate acknowledgement is not required.
(b) If an agency is unable to comply
with either paragraphs (a)(1) or (2) of
this section within 30 days of its receipt of a request for correction or
amendment,
(excluding
Saturdays,
Sundays and legal public holidays), it
should inform the requester of that
fact, the reasons for the inability to
comply with paragraphs (a)(1) or (a)(2)
of this section within 30 days, and the
approximate date on which a determination will be reached.
(c) In conducting its review of a request for correction or amendment,
each agency shall be guided by the requirements of 5 U.S.C. 552a(e)(1) and
(5).
(d) If an agency determines to grant
all or any portion of a request for correction or amendment, it shall:
(1) Advise the individual of that determination;
(2) Make the requested correction or
amendment; and
(3) Inform any person or agency outside USDA to whom the record has
been disclosed, if an accounting of that
disclosure is maintained in accordance
with 5 U.S.C. 552a(c), of the occurrence
and substance of the correction or
amendments.
(e) If an agency determines not to
grant all or any portion of a request for
correction or amendment, it shall:
(1) Comply with paragraph (d) of this
section with regard to any correction
or amendment which is made;
(2) Advise the requester of its determination and the reasons for the determination not to grant all or a portion
of the request for a correction or
amendment;
(3) Inform the requester that he or
she may appeal this determination to
the head of the agency which maintains the system of records; and
(4) Describe the procedures for making such an appeal, including the title
and business address of the official to
whom the appeal is to be addressed.
(f) In the event that an agency receives a notice of correction or amendment to information in a record contained in a system of records which it

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

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

§ 1.117 Agency review of request for
correction or amendment of record.
(a) Any agency which receives a request for amendment or correction
under § 1.116 shall acknowledge that request within 10 days of its receipt (excluding Saturdays, Sundays and legal
public holidays). The agency shall also
promptly, either:
(1) Make any correction, deletion or
addition with regard to any portion of
a record which the requester believes is
not accurate, relevant, timely or complete; or
(2) Inform the requester of its refusal
to amend the record in accordance with
the request; the reason for the refusal;
the procedures whereby the requester
can appeal the refusal to the head of
the agency; and the title and business

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Office of the Secretary, USDA

§ 1.120

maintains, it shall comply with paragraphs (d)(2) and (3) of this section in
the same manner as if it had made the
correction or amendment itself.

(2) Of the requester’s right to file a
concise statement of the requester’s
reasons for disagreeing with the agency’s decision;
(3) Of the procedures for filing such a
statement of disagreement;
(4) That such statements of disagreements will be made available to anyone
to whom the record is subsequently
disclosed, together with (if the agency
deems it appropriate) a brief statement
by the agency summarizing its reasons
for refusing to amend the record;
(5) That prior recipients of the disputed record will be provided with a
copy of the statement of disagreement,
together with (if the agency deems it
appropriate) a brief statement of the
agency’s reasons for refusing to amend
the record, to the extent that an accounting of disclosures is maintained
under 5 U.S.C. 552a(c); and
(6) Of the requester’s right to seek judicial review of the agency’s determination in accordance with 5 U.S.C.
552a(g). The agency shall insure that
any statements of disagreement submitted by a requester are handled in
accordance with paragraphs (e)(4) and
(5) of this section.

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

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§ 1.118 Appeal of initial adverse agency determination on correction or
amendment.
(a) Any individual whose request for
correction or amendment under § 1.116
is denied, and who wishes to appeal
that denial, shall address such appeal
to the head of the agency which maintains the system of records to which
the request relates, in accordance with
the procedures set forth in the agency’s
initial denial of the request.
(b) The head of each agency shall
make a final determination with regard to an appeal submitted under
paragraph (a) of this section not later
than 30 days (excluding Saturdays,
Sundays, and legal public holidays)
from the date on which the individual
requests a review, unless, for good
cause shown, the head of the agency
extends this 30-day period and so notifies the requester, together with an estimate of the date on which a final determination will be made. Such extension should be utilized only in exceptional circumstances and should not
normally exceed 30 days. The delegation of authority set forth in this paragraph may not be redelegated.
(c) In conducting a review of an appeal submitted under paragraph (a) of
this section, the head of an agency
shall be guided by the requirements of
5 U.S.C. 552a(e)(1) and (5).
(d) If the head of an agency determines to grant all or any portion of an
appeal submitted under paragraph (a)
of this section, the head of the agency
shall inform the requester and the
agency shall comply with the procedures set forth in § 1.117(d)(2) and (d)(3).
(e) If the head of an agency determines in accordance with paragraph (c)
of this section not to grant all or any
portion of an appeal submitted under
paragraph (a) of this section, the head
of the agency shall inform the requester:
(1) Of this determination and the reasons for the determination;

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

§ 1.119 Disclosure of record to person
other than the individual to whom
it pertains.
No agency shall disclose any record
which is contained in a system of
records it maintains, by any means of
communication to any person, or to
another agency outside USDA, except
pursuant to a written request by, or
with the prior written consent of, the
individual to whom the record pertains, unless the disclosure is authorized by one or more provisions of 5
U.S.C. 552a(b).
§ 1.120 Fees.
Any agency which provides copies of
records pursuant to a request under
this subpart may charge fees for the direct costs of producing such copies in
accordance with appendix A to subpart
A of this part. No agency, however,
shall charge any fee for searches necessary to locate records. Nor shall an
agency charge any fees for copies or
searches, when the requester sought to

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§ 1.121

7 CFR Subtitle A (1–1–15 Edition)
AGRICULTURAL MARKETING SERVICE

make a personal inspection but was
provided copies instead at the discretion of the agency.
§ 1.121

AMS Office of Compliance Review Cases,
USDA/AMS–11.
AGRICULTURAL STABILIZATION AND
CONSERVATION SERVICE

Penalties.

The criminal penalties which have
been established for violations of the
Privacy Act of 1974 are set forth in 5
U.S.C. 552a(i). These penalties are applicable to any officer or employee of
an agency who commits any of the acts
enumerated in 5 U.S.C. 552a(i). These
penalties also apply to contractors and
employees of such contractors who
enter into contracts with an agency of
USDA and who are considered to be
employees of the agency within the
meaning of 5 U.S.C. 552a(m)(1).

EEO Complaints and Discrimination Investigation Reports, USDA/ASCS–12.
Investigation and Audit Reports, USDA/
ASCS–18.
Producer Appeals, USDA/ASCS–21.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE
Plant Protection and Quarantine Program—
Regulatory Actions, USDA/APHIS–1.
Veterinary Services Programs—Records of
Accredited Veterinarians, USDA/APHIS–2.
Veterinary
Services
Programs—Animal
Quarantine Regulatory Actions, USDA/
APHIS–3.
Veterinary Services Programs—Animal Welfare and Horse Protection Regulatory Actions, USDA/APHIS–4.

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

§ 1.122

General exemptions.

FARMERS HOME ADMINISTRATION

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

Credit Report File, USDA/FmHA–3.
FEDERAL CROP INSURANCE CORPORATION
FCIC Compliance Review Cases, USDA/FCIC–
2.
FEDERAL GRAIN INSPECTION SERVICE
Investigations Undertaken by the Government Pursuant to the United States Grain
Standards Act of 1976, as amended, or the
Agricultural Marketing Act of 1946, as
amended, USDA/FGIS–2.

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

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

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

Rmajette on DSK2VPTVN1PROD with CFR

§ 1.123

FOOD SAFETY AND INSPECTION SERVICE
Meat and Poultry Inspection Program—
Slaughter, Processing and Allied Industries Compliance Records System, USDA/
FSIS–1.

Specific exemptions.

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

FOREST SERVICE
Law Enforcement
USDA/FS–33.

Investigation

OFFICE OF THE GENERAL COUNSEL
Regulatory Division
Cases by the Department under the Federal
Meat Inspection Act, the Poultry Products

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§ 1.123
Court cases brought by the Government pursuant to either the Cotton Research and
Promotion Act, Potato Research and Promotion Act, the Egg Research and Consumer Information Act, USDA/OGC–26.
Court cases brought by the Government pursuant to either the Export Apple and Pear
Act or the Export Grape and Plum Act,
USDA/OGC–27.
Court cases brought by the Government pursuant to either the Cotton Statistics and
Estimates Act of 1927 or the United States
Cotton Standards Act, USDA/OGC–28.
Court cases brought by the Government pursuant to either the Naval Stores Act, or
the Tobacco Seed and Plant Exportation
Act, USDA/OGC–29.
Court cases brought by the Government pursuant to either the Peanut Statistics Act
or the Tobacco Statistics Act, USDA/OGC–
30.
Court cases brought by the Government pursuant to either the Plant Variety Protection Act or the Egg Products Inspection
Act, USDA/OGC–31.
Court cases brought by the Government pursuant to either the Produce Agency Act, or
the Process of Renovated Butter Provisions of the Internal Revenue Code of 1954,
USDA/OGC–32.
Court cases brought by the Government pursuant to either the United States Grain
Standards Act or the Federal Seed Act,
USDA/OGC–33.
Court cases brought by the Government pursuant to the Agricultural Fair Practices
Act, USDA/OGC–34.
Cases by and against the Department under
the Virus-Serum Toxin Act, USDA/OGC–44.

Inspection Act, and the voluntary inspection and certification provisions of the Agricultural Marketing Act of 1946, USDA/
OGC–6.
Cases by the Department under the Humane
Methods of Livestock Slaughter Law (i.e.,
the Act of August 27, 1958), USDA/OGC–7.
Cases by the Department under the 28 Hour
Law, as amended, USDA/OGC–8.
Cases by the Department under the various
Animal Quarantine and related laws,
USDA/OGC–9.
Cases by the Department under the various
Plant Protection Quarantine and related
laws, USDA/OGC–10.
Cases by the Department under Horse Protection Act of 1970, USDA/OGC–41.
Cases by the Department under the Laboratory Animal Welfare Act, USDA/OGC–42.
Community Development Division
Community Development Division Litigation, USDA/OGC–11.
Farmers Home Administration (FmHA) General Case Files, USDA/OGC–12.
Food and Nutrition Division
Claims by and against USDA under the Food
Assistance Legislation, USDA/OGC–13.
Perishable
Agricultural
Commodities,
USDA/OGC–14.
Foreign Agriculture and Commodity
Stabilization Division
Agricultural Stabilization and Conservation
Service (ASCS), Foreign Agricultural Service (FAS), and Commodity Credit Corporation Cases, USDA/OGC–15.
Federal Crop Insurance Corporation (FCIC)
Cases, USDA/OGC–16.
Administrative proceedings brought by the
Department, court cases in which the government is plaintiff and court cases in
which the government is a defendant
brought pursuant to the United States
Warehouse Act, USDA/OGC–43.

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

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Marketing Division
Administrative proceedings brought by the
Department pursuant to the Plant Variety
Protection Act, the Federal Seed Act, or
the Agricultural Marketing Act of 1946,
USDA/OGC–18.
Cases brought by the Government pursuant
to the Cotton Futures provisions of the Internal Revenue Code of 1954, USDA/OGC–22.
Court cases brought by the Government pursuant to either the Agricultural Marketing
Act of 1946 or the Tobacco Inspection Act,
USDA/OGC–24.
Court cases brought by the Government pursuant to either the Agricultural Marketing
Agreement Act of 1937, as amended, or the
Anti-Hog-Cholera Serum and Hog Cholera
Virus Act, USDA/OGC–25.

Packers and Stockyards Division
Packers and Stockyards Act, Administrative
Cases, USDA/OGC–69.
Packers and Stockyards Act, Civil and
Criminal Cases, USDA/OGC–70.
Research and Operations Division
Personnel Irregularities, USDA/OGC–75.

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7 CFR Subtitle A (1–1–15 Edition)

Office of the Secretary

(8) The agency procedures whereby an individual can be notified at his or her request
how the individual can gain access to any
record pertaining to him or her contained in
the system of records, and how he can contest its content; and
(9) The categories of sources of records in
the system;
(e) Maintain all records which are used by
the agency in making any determination
about any individual with such accuracy,
relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to
the individual in the determination;
(f) Prior to disseminating any record about
an individual to any person other than an
agency, unless the dissemination is made
pursuant to 5 U.S.C. 552a(b)(2), make reasonable efforts to assure that such records are
accurate, complete, timely, and relevant for
agency purposes;
(g) Maintain no record describing how any
individual exercises rights guaranteed by the
First Amendment unless expressly authorized by statute or by the individual about
whom the record is maintained, or unless
pertinent to and within the scope of an authorized law enforcement activity;
(h) Make reasonable efforts to serve notice
on an individual when any record on such individual is made available to any person
under compulsory legal process when such
process becomes a matter of public record;
(i) Establish rules of conduct for persons
involved in the design, development, operation, or maintenance of any system of
records, or in maintaining any record, and
instruct each such person with respect to
such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and
the penalties for noncompliance;
(j) Establish appropriate administrative,
technical, and physical safeguards to insure
the security and confidentiality of records
and to protect against any anticipated
threats or hazards to their security or integrity which could result in substantial harm,
embarrassment, inconvenience, or unfairness
to any individual on whom information is
maintained.
SEC. 2. Amendment of routine uses for an existing system of records, or establishment of a
new system of records.
(a) Any agency which intends to add a routine use, or amend an existing one, in a system of records it maintains, shall, in accordance with 5 U.S.C. 552a(e)(11), ensure that at
least 30 days advance notice of such action is
given by publication in the FEDERAL REGISTER and an opportunity provided for interested persons to submit written data, views
or arguments to the agency.
(b) Any agency which intends to establish
a new system of records, or to alter any existing system of records, shall insure that

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

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APPENDIX A TO SUBPART G OF PART 1—
INTERNAL DIRECTIVES
SECTION 1. General requirements. Each agency that maintains a system of records subject to 5 U.S.C. 552a and the regulations of
this subpart shall:
(a) Maintain in its records only such information about an individual as is relevant
and necessary to accomplish a purpose of the
agency required to be accomplished by statute or by executive order of the President;
(b) Collect information to the greatest extent practicable directly from the subject individual when the information may result in
adverse determinations about an individual’s
rights, benefits, and privileges under Federal
programs;
(c) Inform each individual whom it asks to
supply information, on the form which it
uses to collect the information, or on a separate form that can be retained by the individual, of:
(1) The authority (whether granted by statute, or by executive order of the President)
which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(2) The principal purpose or purposes for
which the information is intended to be used;
(3) The routine uses which may be made of
the information, as published pursuant to
paragraph (d)(4) of this section; and
(4) The effects on the individual, if any, of
not providing all or any part of the requested
information;
(d) Subject to the provisions of section 2 of
this appendix, prepare for publication in the
FEDERAL REGISTER at least annually a notice
of the existence and character of each system it maintains, which notice shall include:
(1) The name and location(s) of the system;
(2) The categories of individuals on whom
records are maintained in the system;
(3) The categories of records maintained in
the system;
(4) Each routine use of the records contained in the system, including the categories of uses and the purpose of such use;
(5) The policies and practices of the agency
regarding storage, retrievability, access controls, retention, and disposal of the records;
(6) The title and business address of the
agency official who is responsible for the system of records;
(7) The agency procedures whereby an individual can be notified at his or her request if
the system of records contains a record pertaining to the individual;

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Office of the Secretary, USDA

Pt. 1, Subpt. G, App. A

adequate advance notice is provided to Congress and the Office of Management and
Budget to permit an evaluation of the probable or potential effect of such action on the
privacy and other personal or property
rights of individuals or the disclosure of information relating to such individuals, and
its effect on the preservation of the constitutional principles of federalism and separation of powers. Such notice is required for
any new system of records and for any alteration in an existing one which will:
(1) Increase the number or types of individuals on whom records are maintained;
(2) Expand the type or amount of information maintained;
(3) Increase the number or categories of
agencies or other persons who may have access to those records;
(4) Alter the manner in which the records
are organized so as to change the nature or
scope of those records (e.g., the combining of
two or more existing systems);
(5) Modify the way the system operates at
its location(s) in such a manner as to alter
the procedures by which individuals can exercise their rights under this subpart; or
(6) Change the equipment configuration on
which the system is operated so as to create
the potential for greater access (e.g., adding
a telecommunications capability).
SEC. 3. Accounting of certain disclosures.
Each agency, with respect to each system of
records under its control, shall:
(a) Except for disclosures made under 5
U.S.C. 552a(b)(1) and (2), keep an accurate account of:
(1) The date, nature, and purpose of each
disclosure of a record to any person or agency outside the Department; and
(2) The name and address of the person or
agency to whom the disclosure is made;
(b) Retain the accounting made under
paragraph (a) of this section for the longer of
a period of five years, after the date of the
disclosure for which the accounting is made,
or the life of the record disclosed;
(c) Except for disclosures made under 5
U.S.C. 552a(b)(7), make the accounting required under paragraph (a) of this section
available to the individual named in the
record at his or her request.
SEC. 4. Government contractors. When an
agency within the Department provides by a
contract for the operation by or on behalf of
the agency of a system of records to accomplish an agency function, the agency shall,
consistent with its authority, cause the requirements of this subpart to be applied to
such system. For purposes of 5 U.S.C. 552a(i)
any such contractor or any employee of such
contractor shall be considered to be an employee of an agency and therefore subject to
the criminal penalties set forth in 5 U.S.C.
552a(i).
SEC. 5. Mailing lists. No agency within the
Department shall sell or rent any individ-

ual’s name and address unless such action is
specifically authorized by law. This section
shall not be construed to require, or to authorize, the withholding of names and addresses whose disclosure is required by 5
U.S.C. 552.
SEC. 6. Social security account numbers. (a)
No agency shall deny, or permit any State or
local government with whom it is involved
in a cooperative venture to deny, to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his or her social security account number.
(b) Paragraph (a) of this section shall not
apply with respect to:
(1) Any disclosure required by Federal statute; or
(2) Any disclosure to any agency relating
to a system of records it maintained prior to
January 1, 1975, if such disclosure was required under statute or regulation adopted
prior to that date, to verify the identity of
an individual.
(c) Any agency in the Department which
requests an individual to disclose his or her
social security account number shall inform
that individual whether the disclosure is
mandatory or voluntary, by what statutory
or other authority the number is solicited,
and what uses will be made of it. The agency
shall also insure that this information is
provided by a State or local government
with whom it is involved in a cooperative
agreement.
SEC. 7. Annual report. Each agency in the
Department shall submit to the Office of the
General Counsel prior to March 30 of each
year a report containing the following information related to implementation of 5 U.S.C.
552a:
(a) A summary of major accomplishments;
(b) A summary of major plans for activities
in the upcoming year;
(c) A list of the systems which were exempted during the year from any of the operative provisions of this subpart pursuant to 5
U.S.C. 552a (j) and (k), whether or not the exemption was effected during that year, the
number of instances with respect to each
system exempted in which the exemption
was invoked to deny access, and the reasons
for invoking the exemption;
(d) A brief summary of changes to the total
inventory of personal data system subject to
this subpart including reasons for major
changes; and
(e) A general description of operational experiences including estimates of the number
of individuals (in relation to the total number of records in the system):
(1) Requesting information on the existence of records pertaining to them;
(2) Refusing to provide information;
(3) Requesting access to their records;
(4) Appealing initial refusals to amend
records; and

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§ 1.130

7 CFR Subtitle A (1–1–15 Edition)
Animal Welfare Act, section 19 (7 U.S.C.
2149).
Beef Promotion and Research Act of 1985,
section 9 (7 U.S.C. 2908).
Egg Products Inspection Act, section 18 (21
U.S.C. 1047).
Endangered Species Act of 1973, as amended,
section 11(a) (16 U.S.C. 1540(a)).
Egg Research and Consumer Information
Act, as amended, 7 U.S.C. 2714, Pub. L. 96–
276, 94 Stat. 541.
Federal Land Policy and Management Act of
1976, section 506 (43 U.S.C. 1766).
Federal Meat Inspection Act, sections 4, 6,
7(e), 8, and 401 (21 U.S.C. 604, 606, 607(e), 608,
671).
Federal Seed Act, section 409 (7 U.S.C. 1599).
Fluid Milk Promotion Act of 1990, section
1999L [7 U.S.C. 6411].
Forest Resources Conversation and Shortage
Relief Act of 1990, section 492 (16 U.S.C.
620d)
Fresh Cut Flowers and Fresh Cut Greens
Promotion and Consumer Information Act
of 1993, section 9 [7 U.S.C. 6808].
Honey Research, Promotion, and Consumer
Information Act, section 11 (7 U.S.C. 4610).
Horse Protection Act of 1970, sections 4(c)
and 6 (15 U.S.C. 1823(c), 1825).
Lacey Act Amendments of 1981, section 4 (a)
and (b) (16 U.S.C. 3373 (a) and (b)).
Lime Research, Promotion, and Consumer
Information Act of 1990, as amended, section 1958 [7 U.S.C. 6207]
Mineral Leasing Act, section 28(o)(1) (30
U.S.C. 185(o)(1)).
Mushroom Promotion, Research, and Consumer Information Act of 1990, section 1928
[7 U.S.C. 6107]
Organic Foods Production Act of 1990, sections 2119 and 2120 (7 U.S.C. 6519, 6520).
Packers and Stockyards Act, 1921, as supplemented, sections 203, 312, and 401 of the
Act, and section 1, 57 Stat. 422, as amended
by section 4, 90 Stat. 1249 (7 U.S.C. 193, 204,
213, 221)
Pecan Promotion and Research Act of 1990,
section 1914 [7 U.S.C. 6009]
Perishable Agricultural Commodities Act,
1930, sections 1(b)(9), 3(c), 4(d), 6(c), 8(a),
8(b), 8(c), 8(e), 9, and 13(a) (7 U.S.C.
499a(b)(9), 499c(c), 499d(d), 499f(c), 499h(a),
499h(b), 499h(c), 499h(e), 499i, 499m(a))
Plant Protection Act, section 424 (7 U.S.C.
7734).
Pork Promotion, Research, and Consumer
Information Act of 1985, section 1626 (7
U.S.C. 4815).
Potato Research and Promotion Act, as
amended, 7 U.S.C. 2621, Pub. L. 97–244, 96
Stat. 310.
Poultry Products Inspection Act, sections 6,
7, 8(d), and 18 (21 U.S.C. 455, 456, 457(d), 467).
Sheep Promotion, Research, and Information
Act of 1994 [7 U.S.C. 7107].

(5) Seeking redress through the courts.
SEC. 8. Effect of 5 U.S.C. 552. No agency in
the Department shall rely on any exemption
in 5 U.S.C. 552 to withhold from an individual
any record which is otherwise accessible to
such individual under 5 U.S.C. 552a and this
subpart.
[40 FR 44480, Sept. 26, 1975, as amended at 62
FR 33982, June 24, 1997]

Subpart H—Rules of Practice Governing Formal Adjudicatory
Proceedings Instituted by the
Secretary Under Various Statutes
AUTHORITY: 5 U.S.C. 301; 7 U.S.C. 61, 87e,
228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2279e,
2621, 2714, 2908, 3812, 4610, 4815, 4910, 6009, 6107,
6207, 6307, 6411, 6519, 6520, 6808, 7107, 7734, 8313;
15 U.S.C. 1828; 16 U.S.C. 620d, 1540(f), 3373; 21
U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f,
135a, 154, 463(b), 621, 1043; 30 U.S.C. 185(o)(1);
43 U.S.C. 1740; 7 CFR 2.27, 2.35.
SOURCE: 42 FR 743, Jan. 4, 1977, unless otherwise noted.

§ 1.130

Meaning of words.

As used in this subpart, words in the
singular form shall be deemed to import the plural, and vice versa, as the
case may require.
§ 1.131 Scope and applicability of this
subpart.
(a) The rules of practice in this subpart shall be applicable to all adjudicatory proceedings under the statutory
provisions listed below as those provisions have been or may be amended
from time to time, 1 except that those
rules shall not be applicable to reparation proceedings under section 6(c) of
the Perishable Agricultural Commodities Act, 1930. Section 1.26 shall be inapplicable to the proceedings covered
by this subpart.

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Agricultural Bioterrorism Protection Act of
2002, section 212(i) (7 U.S.C. 8401(i)).
Agricultural Marketing Agreement Act of
1937, as amended, section 8c(14), 7 U.S.C.
608c(14).
Animal Health Protection Act, section 10414
(7 U.S.C. 8313).
1 See
also the regulations promulgated
under these statutes for any supplemental
rules relating to particular circumstances
arising thereunder.

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§ 1.132

Soybean Promotion, Research, and Consumer Information Act, section 1972 [7
U.S.C. 6307].
Swine Health Protection Act, sections 5 and
6 (7 U.S.C. 3804, 3805).
Title V of the Agricultural Risk Protection
Act of 2000, section 501(a) (7 U.S.C. 2279e).
United States Cotton Standards Act, as supplemented, section 3 of the Act and section
2 of 47 Stat. 1621 (7 U.S.C. 51b, 53).
United States Grain Standards Act, sections
7(g)(3), 9, 10, and 17A(d) (7 U.S.C. 79(g)(3),
85, 86, 87f-1(d)).
United States Warehouse Act, sections 12
and 25 (7 U.S.C. 246, 253).
Virus-Serum-Toxin Act (21 U.S.C. 156).
Watermelon Research and Promotion Act,
section 1651 (7 U.S.C. 4910).

§ 1.132

(b) These rules of practice shall also
be applicable to:
(1) Adjudicatory proceedings under
the regulations promulgated under the
Agricultural Marketing Act of 1946 (7
U.S.C. 1621 et seq.) for the denial or
withdrawal of inspection, certification,
or grading service; 1
(2) Adjudicatory proceedings under
the regulations promulgated under the
Animal Health Protection Act (7 U.S.C.
8301 et seq.) for the suspension or revocation of accreditation of veterinarians (9 CFR parts 160, 161);
(3) Proceedings for debarment of
counsel under § 1.141(d) of this subpart;
(4) Adjudicatory proceedings under
the regulations promulgated under the
Animal Welfare Act (7 U.S.C. 2131 et
seq.) for the denial of an initial license
application (9 CFR 2.11) or the termination of a license during the license
renewal process or at any other time (9
CFR 2.12);
(5) Adjudicatory proceedings under
the regulations promulgated under sections 901–905 of the Federal Agriculture
Improvement and Reform Act of 1996 (7
U.S.C. 1901 note) pertaining to the commercial transportation of equines to
slaughtering facilities (9 CFR part 88);
and
(6) Other adjudicatory proceedings in
which the complaint instituting the
proceeding so provides with the concurrence of the Assistant Secretary for
Administration.
[42 FR 743, Jan. 4, 1977]
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Definitions.

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

EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 1.131 see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

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7 CFR Subtitle A (1–1–15 Edition)

Mail means to deposit an item in the
United States Mail with postage affixed and addressed as necessary to
cause it to be delivered to the address
shown by ordinary mail, or by certified
or registered mail if specified.
Petitioner means an individual who
has filed a petition for review of a determination that the individual is responsibly connected to a licensee within the meaning of 7 U.S.C. 499a(b)(9).
Re-mail means to mail by ordinary
mail to an address an item that has
been returned after being sent to the
same address by certified or registered
mail.
Respondent means the party proceeded against.

(iii) Quantity and quality or grade of
each kind of product or article involved;
(iv) Date of alleged violation;
(v) Car initial and number, if carlot;
(vi) Shipping and destination points;
(vii) If a sale, the date, sale price, and
amount actually received;
(viii) If a consignment, the date, reported proceeds, gross, net;
(ix) Amount of damage claimed, if
any;
(x) Statement of other material
facts, including terms of contract; and
(xi) So far as practicable, true copies
of all available papers relating to the
transaction complained about, including shipping documents, letters, telegrams, invoices, manifests, inspection
certificates, accounts of sales and any
special contracts or agreements.
(3) Upon receipt of the information
and supporting evidence, the Administrator shall cause such investigation to
be made as, in the opinion of the Administrator, is justified by the facts. If
such investigation discloses that no
violation of the Act or of the regulations, standards, instructions, or orders
issued pursuant thereto, has occurred,
no further action shall be taken and
the person submitting the information
shall be so informed.
(4) The person submitting the information shall not be a party to any proceeding which may be instituted as a
result thereof and such person shall
have no legal status in the proceeding,
except as a subpoenaed witness or as a
deponent in a deposition taken without
expense to such person.
(b) Filing of complaint or petition for
review. (1) If there is reason to believe
that a person has violated or is violating any provision of a statute listed
in § 1.131 or of any regulation, standard,
instruction or order issued pursuant
thereto, whether based upon information furnished under paragraph (a) of
this section or other information, a
complaint may be filed with the Hearing Clerk pursuant to these rules.
(2) Any person determined by the
Chief, PACA Branch, pursuant to
§§ 47.47–47.49 of this title to have been
responsibly connected within the
meaning of 7 U.S.C. 499a(b)(9) to a licensee who is subject or potentially

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

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§ 1.133

Institution of proceedings.

(a) Submission of information concerning apparent violations. (1) Any interested person desiring to submit information regarding an apparent violation of any provision of a statute listed
in § 1.131 or of any regulation, standard,
instruction, or order issued pursuant
thereto, may file the information with
the Administrator of the agency administering the statute involved in accordance with this section and any applicable statutory or regulation provisions. Such information may be made
the basis of any appropriate proceeding
covered by the rules in this subpart, or
any other appropriate proceeding authorized by the particular statute or
the regulations promulgated thereunder.
(2) The information may be submitted by telegram, by letter, or by a
preliminary statement of facts, setting
forth the essential details of the transaction complained of. So far as practicable, the information shall include
such of the following items as may be
applicable:
(i) The name and address of each person and of the agent, if any, representing such person in the transaction involved;
(ii) Place where the alleged violation
occurred;

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§ 1.136
ment of the factual and legal matters
that the petitioner believes warrant
the reversal of the determination.

subject to license suspension or revocation as the result of an alleged violation of 7 U.S.C. 499b or 499h(b) or as
provided in 7 U.S.C. 499g(d) shall be entitled to institute a proceeding under
this section and to have determined
the facts with respect to such responsibly connected status by filing with
the Hearing Clerk a petition for review
of such determination.
(3) As provided in 5 U.S.C. 558, in any
case, except one of willfulness or one in
which public health, interest, or safety
otherwise requires, prior to the institution of a formal proceeding which may
result in the withdrawal, suspension,
or revocation of a ‘‘license’’ as that
term is defined in 5 U.S.C. 551(8), the
Administrator, in an effort to effect an
amicable or informal settlement of the
matter, shall give written notice to the
person involved of the facts or conduct
concerned and shall afford such person
an opportunity, within a reasonable
time fixed by the Administrator, to
demonstrate or achieve compliance
with the applicable requirements of the
statute, or the regulation, standard, instruction or order promulgated thereunder.

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

§ 1.136 Answer.
(a) Filing and service. Within 20 days
after the service of the complaint
(within 10 days in a proceeding under
section 4(d) of the Perishable Agricultural Commodities Act, 1930), or such
other time as may be specified therein,
the respondent shall file with the Hearing Clerk an answer signed by the respondent or the attorney of record in
the proceeding. The attorney may file
an appearance of record prior to or simultaneously with the filing of the answer. The answer shall be served upon
the complainant, and any other party
of record, by the Hearing Clerk. As response to a petition for review of responsibly connected status, the Chief,
PACA Branch, shall within ten days
after being served by the Hearing Clerk
with a petition for review, file with the
Hearing Clerk a certified copy of the
agency record upon which the Chief,
PACA Branch, made the determination
that the individual was responsibly
connected to a licensee under the Perishable Agricultural Commodities Act,
7 U.S.C. 499a et seq., and such agency
record shall become part of the record
in the review proceeding.
(b) Contents. The answer shall:
(1) Clearly admit, deny, or explain
each of the allegations of the Complaint and shall clearly set forth any
defense asserted by the respondent; or
(2) State that the respondent admits
all the facts alleged in the complaint;
or
(3) State that the respondent admits
the jurisdictional allegations of the
complaint and neither admits nor denies the remaining allegations and consents to the issuance of an order without further procedure.
(c) Default. Failure to file an answer
within the time provided under paragraph (a) of this section shall be
deemed, for purposes of the proceeding,
an admission of the allegations in the
Complaint, and failure to deny or otherwise respond to an allegation of the
Complaint shall be deemed, for purposes of the proceeding, an admission

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

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§ 1.134 Docket number.
Each proceeding, immediately following its institution, shall be assigned
a docket number by the Hearing Clerk,
and thereafter the proceeding shall be
referred to by such number.
§ 1.135 Contents of complaint or petition for review.
(a) Complaint. A complaint filed pursuant to § 1.133(b) shall state briefly
and clearly the nature of the proceeding, the identification of the complainant and the respondent, the legal
authority and jurisdiction under which
the proceeding is instituted, the allegations of fact and provisions of law
which constitute a basis for the proceeding, and the nature of the relief
sought.
(b) Petition for review. The Petition
for Review of responsibly connected
status shall describe briefly and clearly
the determination sought to be reviewed and shall include a brief state-

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7 CFR Subtitle A (1–1–15 Edition)
final upon issuance to become effective
in accordance with the terms of the decision.

of said allegation, unless the parties
have agreed to a consent decision pursuant to § 1.138.
[42 FR 743, Jan. 4, 1977, as amended at 61 FR
11504, Mar. 21, 1996; 68 FR 6340, Feb. 7, 2003]

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

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

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

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

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

§ 1.140

Conferences and procedure.

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

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§ 1.141

(ii) The legal theories upon which the
party will rely;
(iii) Copies of or a list of documents
which the party anticipates introducing at the hearing; and
(iv) A list of anticipated witnesses
who will testify on behalf of the party.
At the discretion of the party furnishing such list of witnesses, the
names of the witnesses need not be furnished if they are otherwise identified
in some meaningful way such as a
short statement of the type of evidence
they will offer.
(2) The Judge shall not order any of
the foregoing procedures that a party
can show is inappropriate or unwarranted under the circumstances of the
particular case.
(3) At the conference, the following
matters shall be considered:
(i) The simplification of issues;
(ii) The necessity of amendments to
pleadings;
(iii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of
documents, which will avoid unnecessary proof;
(iv) The limitation of the number of
expert or other witnesses;
(v) Negotiation, compromise, or settlement of issues;
(vi) The exchange of copies of proposed exhibits;
(vii) The identification of documents
or matters of which official notice may
be requested;
(viii) A schedule to be followed by the
parties for completion of the actions
decided at the conference; and
(ix) Such other matters as may expedite and aid in the disposition of the
proceeding.
(b) Reporting. A conference will not
be stenographically reported unless so
directed by the Judge.
(c) Manner of Conference. (1) The conference shall be conducted by telephone or correspondence unless the
Judge determines that conducting the
conference
by
audio-visual
telecommunication:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the conference; or

(iii) Would cost less than conducting
the conference by telephone or correspondence. If the Judge determines
that a conference conducted by audiovisual telecommunication would measurably increase the United States Department of Agriculture’s cost of conducting the conference, the conference
shall be conducted by personal attendance of any individual who is expected
to participate in the conference, by
telephone, or by correspondence.
(2) If the conference is not conducted
by telephone or correspondence, the
conference shall be conducted by
audio-visual telecommunication unless
the Judge determines that conducting
the conference by personal attendance
of any individual who is expected to
participate in the conference:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the conference; or
(iii) Would cost less than conducting
the conference by audio-visual telecommunication.
(d) Order. Actions taken as a result of
a conference shall be reduced to a written appropriate order, unless the Judge
concludes that a stenographic report
shall suffice, or, if the conference takes
place within 7 days of the beginning of
the hearing, the Judge elects to make
a statement on the record at the hearing summarizing the actions taken.
(e) Related matters. Upon motion of a
respondent, the Judge may order the
attorney for the complainant to
produce and permit the respondent to
inspect and copy or photograph any
relevant written or recorded statements or confessions made by such respondent within the possession, custody or control of the complainant.
[42 FR 743, Jan. 4, 1977, as amended at 60 FR
8455, Feb. 14, 1995]

§ 1.141 Procedure for hearing.
(a) Request for hearing. Any party
may request a hearing on the facts by
including such request in the complaint or answer, or by a separate request, in writing, filed with the Hearing Clerk within the time in which an
answer may be filed. A petition for review shall be deemed a request for a
hearing. Failure to request a hearing

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within the time allowed for the filing
of the answer shall constitute a waiver
of such hearing. Waiver of hearing
shall not be deemed to be a waiver of
the right to request oral argument before the Judicial Officer upon appeal of
the Judge’s decision. In the event the
respondent denies any material fact
and fails to file a timely request for a
hearing, the matter may be set down
for hearing on motion of the complainant or upon the Judge’s own motion.
(b) Time, place, and manner. (1) If any
material issue of fact is joined by the
pleadings, the Judge, upon motion of
any party stating that the matter is at
issue and is ready for hearing, shall set
a time, place, and manner for hearing
as soon as feasible after the motion is
filed, with due regard for the public interest and the convenience and necessity of the parties. The Judge shall file
with the Hearing Clerk a notice stating
the time and place of the hearing. 2
This notice shall state whether the
hearing will be conducted by telephone,
audio-visual telecommunication, or
personal attendance of any individual
expected to participate in the hearing.
The Judge’s determination regarding
the manner of the hearing shall be
made in accordance with paragraphs
(b)(3) and (b)(4) of this section. If any
change in the time, place, or manner of
the hearing is made, the Judge shall
file with the Hearing Clerk a notice of
such change, which notice shall be
served upon the parties, unless it is

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

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

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§ 1.141

the hearing by telephone if the Judge
finds that a hearing conducted by telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party;
and
(iii) Would cost less than conducting
the hearing by audio-visual telecommunication or personal attendance
of any individual who is expected to
participate in the hearing.
(c) Appearances. The parties may appear in person or by attorney of record
in the proceeding. Any person who appears as attorney must conform to the
standards of ethical conduct required
of practitioners before the courts of the
United States.
(d) Debarment of attorney. (1) Whenever a Judge finds that a person acting
as attorney for any party to the proceeding is guilty of unethical or contumacious conduct, in or in connection
with a proceeding , the Judge may
order that such person be precluded
from further acting as attorney in the
proceeding. An appeal to the Judicial
Officer may be taken from any such
order, but no proceeding shall be delayed or suspended pending disposition
of the appeal: Provided, That the Judge
shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney.
(2) Whenever it is found, after notice
and opportunity for hearing, that a
person, who is acting or has acted as
attorney for another person in any proceeding before the United States Department of Agriculture, is unfit to act
as such counsel because of such unethical or contumacious conduct, such
person will be precluded from acting as
counsel in any or all proceedings before
the Department as found to be appropriate.
(e) Failure to appear. (1) A respondent
who, after being duly notified, fails to
appear at the hearing without good
cause, shall be deemed to have waived
the right to an oral hearing in the proceeding and to have admitted any facts
which may be presented at the hearing.
Such failure by the respondent shall
also constitute an admission of all the
material allegations of fact contained
in the complaint. Complainant shall

have an election whether to follow the
procedure set forth in § 1.139 or whether
to present evidence, in whole or in
part, in the form of affidavits or by
oral testimony before the Judge. Failure to appear at a hearing shall not be
deemed to be a waiver of the right to
be served with a copy of the Judge’s decision and to appeal and request oral
argument before the Judicial Officer
with respect thereto in the manner
provided in § 1.145.
(2) If the petitioner in the case of a
Petition for Review of a determination
of responsibly connected status within
the meaning of 7 U.S.C. 499a(b)(9), having been duly notified, fails to appear
at the hearing without good cause,
such petitioner shall be deemed to have
waived the right to a hearing and to
have voluntarily withdrawn the petition for review.
(f) Order of proceeding. Except as may
be determined otherwise by the Judge,
the complainant shall proceed first at
the hearing.
(g) Written statements of direct testimony. (1) Except as provided in paragraph (g)(2) of this section, each party
must exchange with all other parties a
written narrative verified statement of
the oral direct testimony that the
party will provide at any hearing to be
conducted by telephone; the direct testimony of each employee or agent of
the party that the party will call to
provide oral direct testimony at any
hearing to be conducted by telephone;
and the direct testimony of each expert
witness that the party will call to provide oral direct testimony at any hearing to be conducted by telephone. The
written direct testimony of witnesses
shall be exchanged by the parties at
least 10 days prior to the hearing. The
oral direct testimony provided by a
witness at a hearing conducted by telephone will be limited to the presentation of the written direct testimony,
unless the Judge finds that oral direct
testimony which is supplemental to
the written direct testimony would further the public interest and would not
constitute surprise.
(2) The parties shall not be required
to exchange testimony in accordance
with this paragraph if the hearing is
scheduled to begin less than 20 days

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after the Judge’s notice stating the
time of the hearing.
(h) Evidence—(1) In general. (i) The
testimony of witnesses at a hearing
shall be on oath or affirmation and
subject to cross-examination.
(ii) Upon a finding of good cause, the
Judge may order that any witness be
examined separately and apart from all
other witnesses except those who may
be parties to the proceeding.
(iii) After a witness called by the
complainant has testified on direct examination, any other party may request and obtain the production of any
statement, or part thereof, of such witness in the possession of the complainant which relates to the subject matter
as to which the witness has testified.
Such production shall be made according to the procedures and subject to
the definitions and limitations prescribed in the Jencks Act (18 U.S.C.
3500).
(iv) Evidence which is immaterial, irrelevant, or unduly repetitious, or
which is not of the sort upon which responsible persons are accustomed to
rely, shall be excluded insofar as practicable.
(2) Objections. (i) If a party objects to
the admission of any evidence or to the
limitation of the scope of any examination or cross-examination or to any
other ruling of the Judge, the party
shall state briefly the grounds of such
objection, whereupon an automatic exception will follow if the objection is
overruled by the Judge.
(ii) Only objections made before the
Judge may subsequently be relied upon
in the proceeding.
(3) Depositions. The deposition of any
witness shall be admitted in the manner provided in and subject to the provisions of § 1.148.
(4) Exhibits. Unless the Judge finds
that the furnishing of copies is impracticable, four copies of each exhibit
shall be filed with the Judge: Provided,
That, where there are more than two
parties in the proceeding, an additional
copy shall be filed for each additional
party. A true copy of an exhibit may be
substituted for the original.
(5) Official records or documents. An official government record or document
or entry therein, if admissible for any
purpose, shall be admissible in evi-

dence without the production of the
person who made or prepared the same,
and shall be prima facie evidence of the
relevant facts stated therein. Such
record or document shall be evidenced
by an official publication thereof or by
a copy certified by a person having
legal authority to make such certification.
(6) Official notice. Official notice shall
be taken of such matters as are judicially noticed by the courts of the
United States and of any other matter
of technical, scientific, or commercial
fact of established character: Provided,
That the parties shall be given adequate notice of matters so noticed, and
shall be given adequate opportunity to
show that such facts are erroneously
noticed.
(7) Offer of proof. Whenever evidence
is excluded by the Judge, the party offering such evidence may make an
offer of proof, which shall be included
in the transcript or recording. The
offer of proof shall consist of a brief
statement describing the evidence excluded. If the evidence consists of a
brief oral statement, it shall be included in the transcript or recording in
toto. If the evidence consists of an exhibit, it shall be marked for identification and inserted in the hearing record.
In either event, the evidence shall be
considered a part of the transcript or
recording and hearing record if the Judicial Officer, upon appeal, decides the
Judge’s ruling excluding the evidence
was erroneous and prejudicial. If the
Judicial Officer decides the Judge’s
ruling excluding the evidence was erroneous and prejudicial and that it would
be inappropriate to have such evidence
considered a part of the hearing record,
the Judicial Officer may direct that
the hearing be reopened to permit the
taking of such evidence or for any
other purpose in connection with the
excluded evidence.
(i) Transcript or recording. (1) Hearings
to be conducted by telephone shall be
recorded verbatim by electronic recording device. Hearings conducted by
audio-visual telecommunication or the
personal attendance of any individual
who is expected to participate in the
hearing shall be transcribed, unless the
Judge finds that recording the hearing

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§ 1.143
ings of fact, conclusions, order, and
brief in support thereof. A copy of each
such document filed by a party shall be
served upon each of the other parties.
(c) Judge’s decision. (1) The Judge
may, upon motion of any party or in
his or her own discretion, issue a decision orally at the close of the hearing,
or within a reasonable time after the
closing of the hearing.
(2) If the decision is announced orally, a copy thereof, excerpted from the
transcript or recording, shall be furnished to the parties by the Hearing
Clerk. Irrespective of the date such
copy is mailed, the issuance date of the
decision shall be the date the oral decision was announced.
(3) If the decision is in writing, it
shall be filed with the Hearing Clerk
and served upon the parties as provided
in § 1.147.
(4) The Judge’s decision shall become
final and effective without further proceedings 35 days after the issuance of
the decision, if announced orally at the
hearing, or if the decision is in writing,
35 days after the date of service thereof
upon the respondent, unless there is an
appeal to the Judicial Officer by a
party to the proceeding pursuant to
§ 1.145; Provided, however, that no decision shall be final for purposes of judicial review except a final decision of
the Judicial Officer upon appeal.

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

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

§ 1.142 Post-hearing procedure.
(a) Corrections to transcript or recording. (1) Within the period of time fixed
by the Judge, any party may file a motion proposing corrections to the transcript or recording.
(2) Unless a party files such a motion
in the manner prescribed, the transcript or recording shall be presumed,
except for obvious typographical errors, to be a true, correct, and complete transcript or recording of the testimony given at the hearing and to
contain an accurate description or reference to all exhibits received in evidence and made part of the hearing
record, and shall be deemed to be certified without further action by the
Judge.
(3) As soon as practicable after the
close of the hearing and after consideration of any timely objections filed as
to the transcript or recording, the
Judge shall issue an order making any
corrections to the transcript or recording which the Judge finds are warranted, which corrections shall be entered onto the original transcript or recording by the Hearing Clerk (without
obscuring the original text).
(b) Proposed findings of fact, conclusions, orders, and briefs. Prior to the
Judge’s decision, each party shall be
afforded a reasonable opportunity to
submit for consideration proposed find-

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

§ 1.143

Motions and requests.

(a) General. All motions and requests
shall be filed with the Hearing Clerk,
and served upon all the parties, except
(1) requests for extensions of time pursuant to § 1.147, (2) requests for subpoenas pursuant to § 1.149, and (3) motions and requests made on the record
during the oral hearing. The Judge
shall rule upon all motions and requests filed or made prior to the filing
of an appeal of the Judge’s decision
pursuant to § 1.145, except motions directly relating to the appeal. Thereafter, the Judicial Officer will rule on
any motions and requests, as well as
the motions directly relating to the appeal.

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§ 1.144

7 CFR Subtitle A (1–1–15 Edition)

(b) Motions entertained. (1) Any motion will be entertained other than a
motion to dismiss on the pleading.
(2) All motions and request concerning the complaint must be made
within the time allowed for filing an
answer.
(c) Contents. All written motions and
requests shall state the particular
order, ruling, or action desired and the
grounds therefor.
(d) Response to motions and requests.
Within 20 days after service of any
written motion or request, or within
such shorter or longer period as may be
fixed by the Judge or the Judicial Officer, an opposing party may file a response to the motion or request. The
other party shall have no right to reply
to the response; however, the Judge or
the Judicial Officer, in the Judge’s or
the Judicial Officer’s discretion, may
order that a reply be filed.
(e) Certification to the judicial officer.
The submission or certification of any
motion, request, objection, or other
question to the Judicial Officer prior to
the filing of an appeal pursuant to
§ 1.145 shall be made by and in the discretion of the Judge. The Judge may
either rule upon or certify the motion,
request, objection, or other question to
the Judicial Officer, but not both.

(2) A Judge shall withdraw from any
proceeding for any reason deemed by
the Judge to be disqualifying.
(c) Powers. Subject to review as provided in this subpart, the Judge, in any
assigned proceeding, shall have power
to:
(1) Rule upon motions and requests;
(2) Set the time, place, and manner of
a conference and the hearing, adjourn
the hearing, and change the time,
place, and manner of the hearing;
(3) Administer oaths and affirmations;
(4) Issue subpoenas as authorized by
the statute under which the proceeding
is conducted, requiring the attendance
and testimony of witnesses and the
production of books, contracts, papers,
and other documentary evidence at the
hearing;
(5) Summon and examine witnesses
and receive evidence at the hearing;
(6) Take or order the taking of depositions as authorized under these rules;
(7) Admit or exclude evidence;
(8) Hear oral argument on facts or
law;
(9) Require each party to provide all
other parties and the Judge with a
copy of any exhibit that the party intends to introduce into evidence prior
to any hearing to be conducted by telephone or audio-visual telecommunication;
(10) Require each party to provide all
other parties with a copy of any document that the party intends to use to
examine a deponent prior to any deposition to be conducted by telephone or
audio-visual telecommunication;
(11) Require that any hearing to be
conducted by telephone or audio-visual
telecommunication be conducted at locations at which the parties and the
Judge are able to transmit and receive
documents during the hearing;
(12) Require that any deposition to be
conducted by telephone or audio-visual
telecommunication be conducted at locations at which the parties are able to
transmit and receive documents during
the deposition;
(13) Do all acts and take all measures
necessary for the maintenance of order,
including the exclusion of contumacious counsel or other persons; and
(14) Take all other actions authorized
under these rules.

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

Rmajette on DSK2VPTVN1PROD with CFR

§ 1.144

Judges.

(a) Assignment. No Judge shall be assigned to serve in any proceeding who
(1) has any pecuniary interest in any
matter or business involved in the proceeding, (2) is related within the third
degree by blood or marriage to any
party to the proceeding, or (3) has any
conflict of interest which might impair
the Judge’s objectivity in the proceeding.
(b) Disqualification of Judge. (1) Any
party to the proceeding may, by motion made to the Judge, request that
the Judge withdraw from the proceeding because of an alleged disqualifying reason. Such motion shall set
forth with particularity the grounds of
alleged disqualification. The Judge
may then either rule upon or certify
the motion to the Secretary, but not
both.

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Office of the Secretary, USDA

§ 1.145

(d) Who may act in the absence of the
Judge. In case of the absence of the
Judge or the Judge’s inability to act,
the powers and duties to be performed
by the Judge under these rules of practice in connection with any assigned
proceeding may, without abatement of
the proceeding unless otherwise directed by the Chief Judge, be assigned
to any other Judge.

and rulings thereon; the transcript or
recording of the testimony taken at
the hearing, together with the exhibits
filed in connection therewith; any documents or papers filed in connection
with a prehearing conference; such proposed findings of fact, conclusions, and
orders, and briefs in support thereof, as
may have been filed in connection with
the proceeding; the Judge’s decision;
such exceptions, statements of objections and briefs in support thereof as
may have been filed in the proceeding;
and the appeal petition, and such briefs
in support thereof and responses thereto as may have been filed in the proceeding.
(d) Oral argument. A party bringing
an appeal may request, within the prescribed time for filing such appeal, an
opportunity for oral argument before
the Judicial Officer. Within the time
allowed for filing a response, appellee
may file a request in writing for opportunity for such an oral argument. Failure to make such request in writing,
within the prescribed time period, shall
be deemed a waiver of oral argument.
The Judicial Officer may grant, refuse,
or limit any request for oral argument.
Oral argument shall not be transcribed
unless so ordered in advance by the Judicial Officer for good cause shown
upon request of a party or upon the Judicial Officer’s own motion.
(e) Scope of argument. Argument to be
heard on appeal, whether oral or on
brief, shall be limited to the issues
raised in the appeal or in the response
to the appeal, except that if the Judicial Officer determines that additional
issues should be argued, the parties
shall be given reasonable notice of such
determination, so as to permit preparation of adequate arguments on all
issues to be argued.
(f) Notice of argument; postponement.
The Hearing Clerk shall advise all parties of the time and place at which oral
argument will be heard. A request for
postponement of the argument must be
made by motion filed a reasonable
amount of time in advance of the date
fixed for argument.
(g) Order of argument. The appellant
is entitled to open and conclude the argument.

Rmajette on DSK2VPTVN1PROD with CFR

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

§ 1.145 Appeal to Judicial Officer.
(a) Filing of petition. Within 30 days
after receiving service of the Judge’s
decision, if the decision is a written decision, or within 30 days after issuance
of the Judge’s decision, if the decision
is an oral decision, a party who disagrees with the decision, any part of
the decision, or any ruling by the
Judge or who alleges any deprivation
of rights, may appeal the decision to
the Judicial Officer by filing an appeal
petition with the Hearing Clerk. As
provided in § 1.141(h)(2), objections regarding evidence or a limitation regarding examination or cross-examination or other ruling made before the
Judge may be relied upon in an appeal.
Each issue set forth in the appeal petition and the arguments regarding each
issue shall be separately numbered;
shall be plainly and concisely stated;
and shall contain detailed citations to
the record, statutes, regulations, or authorities being relied upon in support
of each argument. A brief may be filed
in support of the appeal simultaneously with the appeal petition.
(b) Response to appeal petition. Within
20 days after the service of a copy of an
appeal petition and any brief in support thereof, filed by a party to the
proceeding, any other party may file
with the Hearing Clerk a response in
support of or in opposition to the appeal and in such response any relevant
issue, not presented in the appeal petition, may be raised.
(c) Transmittal of record. Whenever an
appeal of a Judge’s decision is filed and
a response thereto has been filed or
time for filing a response has expired,
the Hearing Clerk shall transmit to the
Judicial Officer the record of the proceeding. Such record shall include: the
pleadings; motions and requests filed

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§ 1.146

7 CFR Subtitle A (1–1–15 Edition)

(h) Submission on briefs. By agreement
of the parties, an appeal may be submitted for decision on the briefs, but
the Judicial Officer may direct that
the appeal be argued orally.
(i) Decision of the judicial officer on appeal. As soon as practicable after the
receipt of the record from the Hearing
Clerk, or, in case oral argument was
had, as soon as practicable thereafter,
the Judicial Officer, upon the basis of
and after due consideration of the
record and any matter of which official
notice is taken, shall rule on the appeal. If the Judicial Officer decides
that no change or modification of the
Judge’s decision is warranted, the Judicial Officer may adopt the Judge’s
decision as the final order in the proceeding, preserving any right of the
party bringing the appeal to seek judicial review of such decision in the
proper forum. A final order issued by
the Judicial Officer shall be filed with
the Hearing Clerk. Such order may be
regarded by the respondent as final for
purposes of judicial review without filing a petition for rehearing, reargument, or reconsideration of the decision of the Judicial Officer.

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

Rmajette on DSK2VPTVN1PROD with CFR

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

§ 1.146 Petitions for reopening hearing; for rehearing or reargument of
proceeding; or for reconsideration
of the decision of the Judicial Officer.
(a) Petition requisite—(1) Filing; service; ruling. A petition for reopening the
hearing to take further evidence, or for
rehearing or reargument of the proceeding, or for reconsideration of the
decision of the Judicial Officer, must
be made by petition filed with the
Hearing Clerk. Every such petition
must state specifically the grounds relied upon. Any such petition filed prior
to the filing of an appeal of the Judge’s
decision pursuant to § 1.145 shall be
ruled upon by the Judge, and any such
petition filed thereafter shall be ruled
upon by the Judicial Officer.
(2) Petition to reopen hearing. A petition to reopen a hearing to take further evidence may be filed at any time
prior to the issuance of the decision of
the Judicial Officer. Every such petition shall state briefly the nature and

§ 1.147 Filing; service; extensions of
time; and computation of time.
(a) Filing; number of copies. Except as
otherwise provided in this section, all
documents or papers required or authorized by the rules in this part to be
filed with the Hearing Clerk shall be
filed in quadruplicate: Provided, That
where there are more than two parties
in the proceeding, an additional copy
shall be filed for each additional party.

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Rmajette on DSK2VPTVN1PROD with CFR

Office of the Secretary, USDA

§ 1.147

Any document or paper required or authorized under the rules in this part to
be filed with the Hearing Clerk shall,
during the course of an oral hearing, be
filed with the Judge.
(b) Who shall make service. Copies of
all such documents or papers required
or authorized by the rules in this part
to be filed with the Hearing Clerk shall
be served upon the parties by the Hearing Clerk, or by some other employee
of the Department, or by a U.S. Marshal or deputy marshal.
(c) Service on party other than the Secretary. (1) Any complaint or other document initially served on a person to
make that person a party respondent
in a proceeding, proposed decision and
motion for adoption thereof upon failure to file an answer or other admission of all material allegations of fact
contained in a complaint, initial decision, final decision, appeal petition
filed by the Department, or other document specifically ordered by the Judge
to be served by certified or registered
mail, shall be deemed to be received by
any party to a proceeding, other than
the Secretary or agent thereof, on the
date of delivery by certified or registered mail to the last known principal place of business of such party,
last known principal place of business
of the attorney or representative of
record of such party, or last known residence of such party if an individual,
Provided that, if any such document or
paper is sent by certified or registered
mail but is returned marked by the
postal service as unclaimed or refused,
it shall be deemed to be received by
such party on the date of remailing by
ordinary mail to the same address.
(2) Any document or paper, other
than one specified in paragraph (c)(1) of
this section or written questions for a
deposition as provided in § 1.148(d)(2),
shall be deemed to be received by any
party to a proceeding, other than the
Secretary or agent thereof, on the date
of mailing by ordinary mail to the last
known principal place of business of
such party, last known principal place
of business of the attorney or representative of record of such party, or
last known residence of such party if
an individual.
(3) Any document or paper served
other than by mail, on any party to a

proceeding, other than the Secretary
or agent thereof, shall be deemed to be
received by such party on the date of:
(i) Delivery to any responsible individual at, or leaving in a conspicuous
place at, the last known principal place
of business of such party, last known
principal place of business of the attorney or representative of record of such
party, or last known residence of such
party if an individual, or
(ii) Delivery to such party if an individual, to an officer or director of such
party if a corporation, or to a member
of such party if a partnership, at any
location.
(d) Service on another. Any subpoena,
written questions for a deposition
under § 1.148(d)(2), or other document or
paper, served on any person other than
a party to a proceeding, the Secretary
or agent thereof, shall be deemed to be
received by such person on the date of:
(1) Delivery by certified mail or registered mail to the last known principal place of business of such person,
last known principal place of business
of the attorney or representative of
record of such person, or last known
residence of such person if an individual;
(2) Delivery other than by mail to
any responsible individual at, or leaving in a conspicuous place at, any such
location; or
(3) Delivery to such party if an individual, to an officer or director of such
party if a corporation, or to a member
of such party if a partnership, at any
location.
(e) Proof of service. Any of the following, in the possession of the Department, showing such service, shall be
deemed to be accurate:
(1) A certified or registered mail receipt returned by the postal service
with a signature;
(2) An official record of the postal
service;
(3) An entry on a docket record or a
copy placed in a docket file by the
Hearing Clerk of the Department or by
an employee of the Hearing Clerk in
the ordinary course of business;
(4) A certificate of service, which
need not be separate from and may be
incorporated in the document or paper
of which it certifies service, showing
the method, place and date of service

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§ 1.148

7 CFR Subtitle A (1–1–15 Edition)

in writing and signed by an individual
with personal knowledge thereof, Provided that such certificate must be
verified by oath or declaration under
penalty of perjury if the individual certifying service is not a party to the
proceeding in which such document or
paper is served, an attorney or representative of record for such a party,
or an official or employee of the United
States or of a State or political subdivision thereof.
(f) Extensions of time. The time for the
filing of any document or paper required or authorized under the rules in
this part to be filed may be extended
by the Judge or the Judicial Officer as
provided in § 1.143, if, in the judgment
of the Judge or the Judicial Officer, as
the case may be, there is good reason
for the extension. In all instances in
which time permits, notice of the request for extension of the time shall be
given to the other party with opportunity to submit views concerning the
request.
(g) Effective date of filing. Any document or paper required or authorized
under the rules in this part to be filed
shall be deemed to be filed at the time
when it reaches the Hearing Clerk; or,
if authorized to be filed with another
officer or employee of the Department
it shall be deemed to be filed at the
time when it reaches such officer or
employee.
(h) Computation of time. Saturdays,
Sundays and Federal holidays shall be
included in computing the time allowed for the filing of any document or
paper: Provided, That, when such time
expires on a Saturday, Sunday, or Federal holiday, such period shall be extended to include the next following
business day.

(1) The name and address of the proposed deponent;
(2) The name and address of the person (referred to hereafter in this section as the ‘‘officer’’) qualified under
the regulations in this part to take
depositions, before whom the proposed
examination is to be made;
(3) The proposed time and place of
the examination, which shall be at
least 15 days after the date of the mailing of the motion; and
(4) The reasons why such deposition
should be taken, which shall be solely
for the purpose of eliciting testimony
which otherwise might not be available
at the time of hearing, for uses as provided in paragraph (g) of this section.
(b) Judge’s order for taking deposition.
(1) If the Judge finds that the testimony may not be otherwise available
at the hearing, the taking of the deposition may be ordered. The order shall
be filed with the Hearing Clerk and
shall state:
(i) The time of the deposition;
(ii) The place of the deposition;
(iii) The manner of the deposition
(telephone, audio-visual telecommunication, or personal attendance of those
who are to participate in the deposition);
(iv) The name of the officer before
whom the deposition is to be made; and
(v) The name of the deponent. The officer and the time, place, and manner
need not be the same as those suggested in the motion for the deposition.
(2) The deposition shall be conducted
by telephone unless the Judge determines that conducting the deposition
by audio-visual telecommunication:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the deposition; or
(iii) Would cost less than conducting
the deposition by telephone. If the
Judge determines that a deposition
conducted
by
audio-visual
telecommunication would measurably increase the United States Department
of Agriculture’s cost of conducting the
deposition, the deposition shall be conducted by personal attendance of any
individual who is expected to participate in the deposition or by telephone.

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

Rmajette on DSK2VPTVN1PROD with CFR

§ 1.148

Depositions.

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

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Office of the Secretary, USDA

§ 1.148

(3) If the deposition is not conducted
by telephone, the deposition shall be
conducted
by
audio-visual
telecommunication unless the Judge determines that conducting the deposition
by personal attendance of any individual who is expected to participate in
the deposition:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the deposition; or
(iii) Would cost less than conducting
the deposition by telephone or audiovisual telecommunication.
(c) Qualifications of officer. The deposition shall be made before the Judge
or before an officer authorized by the
law of the United States or by the law
of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths.
(d) Procedure on examination. (1) The
deponent shall be examined under oath
or affirmation and shall be subject to
cross-examination. Objections to questions or documents shall be in short
form, stating the grounds of objections
relied upon. The questions proponded,
together with all objections made (but
not including argument or debate),
shall be recorded verbatim. In lieu of
oral examination, parties may transmit written questions to the officer
prior to the examination and the officer shall propound such questions to
the deponent.
(2) The applicant shall arrange for
the examination of the witness either
by oral examination, or by written
questions upon agreement of the parties or as directed by the Judge. If the
examination is conducted by means of
written questions, copies of the applicant’s questions must be received by
the other party to the proceeding and
the officer at least 10 days prior to the
date set for the examination unless
otherwise agreed, and any cross questions of a party other than the applicant must be received by the applicant
and the officer at any time prior to the
time of the examination.
(e) Certification by officer. The officer
shall certify on the deposition that the
deponent was duly sworn and that the
deposition is a true record of the depo-

nent’s testimony. The officer shall
then securely seal the deposition, together with one copy thereof (unless
there are more than two parties in the
proceeding, in which case there should
be another copy for each additional
party), in an envelope and mail the
same by registered or certified mail to
the Hearing Clerk.
(f) Corrections to the transcript or recording. (1) At any time prior to the
hearing, any party may file a motion
proposing corrections to the transcript
or recording of the deposition.
(2) Unless a party files such a motion
in the manner prescribed, the transcript or recording shall be presumed,
except for obvious typographical errors, to be a true, correct, and complete transcript or recording of the testimony given in the deposition proceeding and to contain an accurate description or reference to all exhibits in
connection therewith, and shall be
deemed to be certified correct without
further procedure.
(3) At any time prior to use of the
deposition in accordance with paragraph (g) of this section and after consideration of any objections filed thereto, the Judge may issue an order making any corrections in the transcript or
recording which the Judge finds are
warranted, which corrections shall be
entered onto the original transcript or
recording by the Hearing Clerk (without obscuring the original text).
(g) Use of deposition. A deposition ordered and taken in accordance with the
provisions of this section may be used
in a proceeding under these rules if the
Judge finds that the evidence is otherwise admissible and (1) that the witness is dead; (2) that the witness is unable to attend or testify because of age,
sickness, infirmity, or imprisonment;
(3) that the party offering the deposition has endeavored to procure the attendance of the witness by subpoena,
but has been unable to do so; or (4) that
such exceptional circumstances exist
as to make it desirable, in the interests
of justice, to allow the deposition to be
used. If the party upon whose motion
the deposition was taken refuses to
offer it in evidence, any other party
may offer the deposition or any part
thereof in evidence. If only part of a
deposition is offered in evidence by a

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§ 1.149

7 CFR Subtitle A (1–1–15 Edition)
the witness appears or the deposition is
taken.

party, an adverse party may require
the introduction of any other part
which ought in fairness to be considered with the part introduced, and any
party may introduce any other parts.

§ 1.151

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

§ 1.149 Subpoenas. 3
(a) Issuance of subpoenas. The attendance and testimony of witnesses and
the production of documentary evidence from any place in the United
States on behalf of any party to the
proceeding may be required by subpoena at any designated place of hearing if authorized by the statute under
which the proceeding is conducted.
Subpoenas shall be issued by the Judge
upon a reasonable showing by the applicant of the grounds and necessity
thereof; and with respect to subpoenas
for the production of documents, the
request shall also show their competency, relevancy, and materiality.
All requests for subpoenas shall be in
writing, unless waived by the Judge for
good cause shown. Except for good
cause shown, requests for subpoenas
shall be received by the Judge at least
10 days prior to the date set for the
hearing.
(b) Service of subpoenas. Subpoenas
may be served by any person not less
than 18 years of age. The party at
whose instance a subpoena is issued
shall be responsible for service thereof.
Subpoenas shall be served as provided
in § 1.147.
[42 FR 743, Jan. 4, 1977, as amended at 55 FR
30674, July 27, 1990; 60 FR 8457, Feb. 14, 1995;
68 FR 6341, Feb. 7, 2003]

§ 1.150 Fees of witnesses.
Witnesses summoned under these
rules of practice shall be paid the same
fees and mileage that are paid witnesses in the courts of the United
States, and witnesses whose depositions are taken, and the officer taking
the same, shall be entitled to the same
fees as are paid for like services in the
courts of the United States. Fees shall
be paid by the party at whose instance
Rmajette on DSK2VPTVN1PROD with CFR

Ex parte communications.

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

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

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§ 1.162
trade, which result in undue price enhancement.
Decision means: (1) the Judge’s decision, and includes (i) findings and conclusions and the reasons or basis therefor on all material issues of fact, law,
or discretion, (ii) order, and (iii) rulings on proposed findings, conclusions
and order submitted by the parties, and
(2) the decision and order by the Judicial Officer upon an appeal of the
Judge’s decision.
Hearing means that part of the proceeding which involves the submission
of evidence before the Judge for the
record in the proceeding.
Hearing Clerk means the Hearing
Clerk, United States Department of
Agriculture, Washington, DC 20250.
Judge means any Administrative Law
Judge appointed pursuant to 5 U.S.C.
3105 (the Administrative Procedure
Act) and assigned to the proceeding involved.
Judicial Officer means an official of
the United States Department of Agriculture delegated authority by the Secretary, pursuant to the Act of April 4,
1940 (7 U.S.C. 450c–450g) and Reorganization Plan No. 2 of 1953 (5 U.S.C.
App. (1988)), to perform the function involved (§ 2.35(a) of this chapter), or the
Secretary if he or she exercises the authority so delegated.
Respondent means the cooperative associations, or association, against
whom a complaint has been issued.

section or who knowingly causes such
a violation to occur.
(f) For purposes of this section ex
parte communication means an oral or
written communication not on the public record with respect to which reasonable prior notice to all parties is not
given, but it shall not include requests
for status reports on any matter or the
proceeding.

Subpart I—Rules of Practice Governing Cease and Desist Proceedings Under Section 2 of
the Capper-Volstead Act
AUTHORITY: 7 U.S.C. 291, 292; 7 CFR 2.35,
2.41.
SOURCE: 45 FR 6587, Jan. 29, 1980, unless
otherwise noted.

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§ 1.160 Scope and applicability of rules
in this part.
The rules of practice in this part
shall be applicable to cease and desist
proceedings, initiated upon complaint
by the Secretary of Agriculture, pursuant to section 2 of the Capper-Volstead
Act.
§ 1.161 Definitions.
As used in this part, words in the single form shall be deemed to import the
plural, and vice versa, as the case may
require. The following terms shall be
construed, respectively, to mean:
Act means the Capper-Volstead Act,
approved February 18, 1922, 42 Stat. 388,
7 U.S.C. 291, 292.
Association means a cooperative association, a federation of cooperatives, or
other association of agricultural producers, as defined in section 1 of the
Act.
Complainant or Secretary means the
Secretary
of
Agriculture,
United
States Department of Agriculture, or
any officer(s) or employee(s) to whom
authority has heretofore been delegated, or whom authority may hereafter be delegated, to act in his or her
stead.
Complaint means a formal complaint
instituted by the Secretary of Agriculture requiring respondent to show
cause why an order should not be made
directing it to cease and desist from
acts of monopolization or restraint of

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

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

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§ 1.163

7 CFR Subtitle A (1–1–15 Edition)

which the Secretary may obtain relating to a violation of section 2 of the
Act. If the Secretary finds that there is
reason to believe that any association
monopolizes or restrains trade in interstate or foreign commerce to such an
extent that the price of any agricultural product is unduly enhanced
thereby the Secretary shall cause a
complaint to be filed, requiring the association to show cause why an order
should not be made directing the association to cease and desist from such
monopolization or restraint of trade.
The complaint shall be filed with the
Hearing Clerk, who shall assign to the
proceeding a docket number and effect
service upon respondent.

other time agreed to by the parties.
After the answer is filed, amendments
to the complaint, or to the answer or
other pleading, may be made by agreement of the parties or allowed at the
discretion of the Judge. In case of an
amendment
which
significantly
changes the issues, the hearing shall,
on the request of a party, be postponed
or adjourned for a reasonable period, if
the Judge determines that such action
is necessary to avoid prejudice to the
party.
§ 1.166

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

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

§ 1.167

Conference.

(a) Purpose. Upon motion of a party
or upon the Judge’s own motion, the
Judge may direct the parties to attend
a conference when the Judge finds that
the proceeding would be expedited by
discussions on matters of procedure
and/or possible stipulations. The conference may include discussions regarding:
(1) Simplification of the issues;
(2) Limitation of expert or other witnesses;
(3) The orderly presentation of evidence; and
(4) Any other matters that may expedite and aid in the disposition of the
proceeding.
(b) Manner of the Conference. (1) The
conference shall be conducted by telephone or correspondence unless the
Judge determines that conducting the
conference
by
audio-visual
telecommunication:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the conference; or
(iii) Would cost less than conducting
the conference by telephone or correspondence. If the Judge determines
that a conference conducted by audio-

§ 1.164 Answer.
(a) Filing and service. Within 20 days
after service of the complaint, or such
other time as may be specified therein,
the respondent shall file with the Hearing Clerk, an answer, signed by the respondent or the respondent’s attorney.
The answer shall be served upon the
complainant by the Hearing Clerk.
(b) Contents. The answer shall clearly
admit, deny, or offer an explanation in
response to each of the allegations of
the complaint, and shall clearly set
forth any affirmative defense.
(c) Default. Failure to file an answer
shall constitute an admission of the allegations in the complaint, and may be
the basis for a decision upon the presentation of a prima facie case by the
complainant.
[45 FR 6587, Jan. 29, 1980, as amended at 60
FR 8457, Feb. 14, 1995]

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Consent order.

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

§ 1.165 Amendments.
Amendments to the complaint may
be made prior to the filing of an answer
in which case the time for filing the
answer shall be extended 20 days or for

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§ 1.168
cation. Any motion that the hearing be
conducted by telephone or personal attendance of any individual expected to
attend the hearing must be accompanied by a memorandum in support of
the motion stating the basis for the
motion and the circumstances that require the hearing to be conducted other
than by audio-visual telecommunication.
(ii) Within 10 days after the Judge
issues a notice stating the manner in
which the hearing is to be conducted,
any party may move that the Judge reconsider the manner in which the hearing is to be conducted. Any motion for
reconsideration must be accompanied
by a memorandum in support of the
motion stating the basis for the motion
and the circumstances that require the
hearing to be conducted other than in
accordance with the Judges’s notice.
(3) The hearing shall be conducted by
audio-visual telecommunication unless
the Judge determines that conducting
the hearing by personal attendance of
any individual who is expected to participate in the hearing:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the hearing; or
(iii) Would cost less than conducting
the hearing by audio-visual telecommunication. If the Judge determines that a hearing conducted by
audio-visual telecommunication would
measurably increase the United States
Department of Agriculture’s cost of
conducting the hearing, the hearing
shall be conducted by personal attendance of any individual who is expected
to participate in the hearing or by telephone.
(4) The Judge may, in his or her sole
discretion or in response to a motion
by a party to the proceeding, conduct
the hearing by telephone if the Judge
finds that a hearing conducted by telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party;
and
(iii) Would cost less than conducting
the hearing by audio-visual telecommunication or personal attendance

visual telecommunication would measurably increase the United States Department of Agriculture’s cost of conducting the conference, the conference
shall be conducted by personal attendance of any individual who is expected
to participate in the conference, by
telephone, or by correspondence.
(2) If the conference is not conducted
by telephone or correspondence, the
conference shall be conducted by
audio-visual telecommunication unless
the Judge determines that conducting
the conference by personal attendance
of any individual who is expected to
participate in the conference:
(i) Is necessary to prevent prejudice
to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the conference; or
(iii) Would cost less than conducting
the conference by audio-visual telecommunication.

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[60 FR 8457, Feb. 14, 1995]

§ 1.168 Procedure for hearing.
(a) Time and place. The oral hearing
shall be held at such time and place as
specified in the complaint, and not less
than 30 days after service thereof. The
time and place of the hearing may be
changed for good cause, by the Judge,
upon motion of either complainant or
respondent.
(b) Manner of hearing. (1) The Judge
shall file with the Hearing Clerk a notice stating whether the hearing will
be conducted by telephone, audio-visual telecommunication, or personal attendance of any individual expected to
attend the hearing and the Judge’s determination regarding the manner of
hearing shall be made in accordance
with paragraphs (b)(3) and (b)(4) of this
section. If any change in the manner of
the hearing is made, the Judge shall
file with the Hearing Clerk a notice of
the change, which notice shall be
served on the parties, unless it is made
during the course of an oral hearing
and made part of the transcript or recording, or actual notice is given to the
parties.
(2)(i) Any party may move that the
hearing be conducted by telephone or
personal attendance of any individual
expected to attend the hearing rather
than by audio-visual telecommuni-

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§ 1.168

7 CFR Subtitle A (1–1–15 Edition)

of any individual who is expected to
participate in the hearing.
(c) Appearances. The parties may appear in person or by counsel or by
other representative. Persons who appear as counsel or in a representative
capacity must conform to the standards of ethical conduct required of
practitioners before the courts of the
United States.
(d) Order of proceeding. Except as otherwise may be agreed by the parties
and approved by the Judge, the complainant shall proceed first at the hearing.
(e) Failure to appear. If respondent,
after being duly notified, fails to appear at the hearing, and no good cause
for such failure is established, complainant shall present a prime facie case
on the matters denied in the answer.
(f) Written statements of direct testimony. (1) Except as provided in paragraph (f)(2) of this section, each party
must exchange with all other parties a
written narrative verified statement of
the oral direct testimony that the
party will provide at any hearing to be
conducted by telephone; the direct testimony of each employee or agent of
the party that the party will call to
provide oral direct testimony at any
hearing to be conducted by telephone;
and the direct testimony of each expert
witness that the party will call to provide oral direct testimony at any hearing to be conducted by telephone. The
written direct testimony of witnesses
shall be exchanged by the parties at
least 10 days prior to the hearing. The
oral direct testimony provided by a
witness at a hearing conducted by telephone will be limited to the presentation of the written direct testimony,
unless the Judge finds that oral direct
testimony which is supplemental to
the written direct testimony would further the public interest and would not
constitute surprise.
(2) The parties shall not be required
to exchange testimony in accordance
with this paragraph if the hearing is
scheduled to begin less than 20 days
after the Judge’s notice stating the
time of the hearing.
(g) Evidence. (1) The testimony of witnesses at the hearing shall be upon
oath or affirmation, transcribed or recorded verbatim, and subject to cross-

examination. Evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon
which responsible persons are accustomed to rely, shall be excluded insofar
as practicable.
(2) Objections. If a party objects to
the admission of any evidence or to the
limitation of the scope of any examination or cross-examination, the party
shall briefly state the grounds of such
objections, whereupon an automatic
exception will follow if the objection is
overruled by the Judge. The ruling of
the Judge on any objection shall be
part of the transcript or recording.
Only objections made before the Judge
may subsequently be relied upon in the
proceeding.
(3) Official records or documents. An official record or document, if admissible
for any purpose, shall be admissible in
evidence without the production of the
person who made or prepared the same,
and shall be prima facie evidence of the
relevant facts stated therein. Such
record or document shall be evidenced
by an official publication thereof, or by
a copy certified by a person having
legal authority to make such certification.
(4) Exhibits. Unless the Judge finds
that the furnishing of multiple copies
is impracticable, four copies of each exhibit shall be filed with the Judge unless the Judge finds that a greater or
lesser number is desirable. A true copy
of an exhibit may be substituted for
the original.
(5) Official notice. Official notice shall
be taken of such matters as are judicially noticed by the courts of the
United States and of any other matter
of technical, scientific, or commercial
fact of established character: Provided,
That the opposing party shall be given
adequate opportunity to show that
such facts are erroneously noticed.
(6) Offer of proof. Whenever evidence
is deleted from the record, the party offering such evidence may make an
offer of proof, which shall be included
in the transcript or recording. The
offer of proof shall consist of a brief
statement describing the evidence excluded. If the evidence consists of a
brief oral statement or of an exhibit, it
shall be inserted into the transcript or
recording in toto. In such event, it

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§ 1.169

shall be considered a part of the transcript or recording and record if the
Judicial Officer decides that the
Judge’s ruling in excluding the evidence was erroneous and prejudicial.
The Judge shall not allow the insertion
of such excluded evidence in toto if the
taking of such evidence will consume
considerable time at the hearing. In
the latter event, if the Judicial Officer
decides that the Judge’s ruling excluding the evidence was both prejudicial
and erroneous, the hearing may be reopened to permit the taking of such
evidence.
(7) Affidavits. Affidavits may be submitted into evidence, in lieu of witness
testimony, only to the extent, and in
the manner agreed upon by the parties.
(h) Transcript or recording. (1) Hearings to be conducted by telephone shall
be recorded verbatim by electronic recording device. Hearings conducted by
audio-visual telecommunication or the
personal attendance of any individual
who is expected to participate in the
hearing shall be transcribed, unless the
Judge finds that recording the hearing
verbatim would expedite the proceeding and the Judge orders the hearing to be recorded verbatim. The Judge
shall certify that to the best of his or
her knowledge and belief any recording
made pursuant to this paragraph with
exhibits that were accepted into evidence is the record of the hearing.
(2) If a hearing is recorded verbatim,
a party requests the transcript of a
hearing or part of a hearing, and the
Judge determines that the disposition
of the proceeding would be expedited
by a transcript of the hearing or part
of a hearing, the Judge shall order the
verbatim transcription of the recording
as requested by the party.
(3) Recordings or transcripts of hearings shall be made available to any
person at actual cost of duplication.

may file a motion proposing corrections to the transcript or recording.
(2) Unless a party files such a motion
in the manner prescribed, the transcript or recording shall be presumed,
except for obvious typographical errors, to be a true, correct, and complete transcript or recording of the testimony given at the hearing and to
contain an accurate description or reference to all exhibits received in evidence and made part of the hearing
record.
(3) At any time prior to the filing of
the Judge’s decision and after consideration of any objections filed as to the
transcript or recording, the Judge may
issue an order making any corrections
in the transcript or recording which
the Judge finds are warranted, which
corrections shall be entered onto the
original transcript or recording by the
Hearing Clerk (without obscurring the
original text).
(b) Proposed findings of fact, conclusions, order and briefs. The parties may
file with the Hearing Clerk proposed
findings of fact, conclusions and orders
based solely upon the record and on
matters subject to official notice, and
briefs in support thereof. The Judge
shall announce at the hearing a definite period of time within which these
documents may be filed.
(c) Judge’s decision. The Judge, within
a reasonable time after the termination of the period allowed for the filing of proposed findings of fact, conclusions and order, and briefs in support
thereof, shall prepare, upon the basis of
the record and matters officially noticed, and shall file with the Hearing
Clerk, the Judge’s decision, a copy of
which shall be served by the Hearing
Clerk upon each of the parties. Such
decision shall become final and effective without further proceedings 35
days after the date of service thereof
upon the respondent, unless there is an
appeal to the Judicial Officer by a
party to the proceeding pursuant to
§ 1.170: Provided, That no decision shall
be final for purposes of a request for
Judicial Review, as provided in
§ 1.175(a), except a final decision of the
Judicial Officer on appeal.

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

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§ 1.169 Post-hearing procedure and decision.
(a) Corrections to transcript or recording. (1) At any time, but not later than
the time fixed for filing proposed findings of fact, conclusions and order, or
briefs, as the case may be, any party

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

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§ 1.170

7 CFR Subtitle A (1–1–15 Edition)
(d) Oral argument. A party bringing
an appeal may request, within the prescribed time for filing such appeal, an
opportunity for oral arguments before
the Judicial Officer. Within the time
allowed for filing a response, appellee
may file a request in writing for opportunity for such an oral argument. Failure to make such request in writing,
within the prescribed time period, shall
be deemed a waiver of oral argument.
The Judicial Officer may grant, refuse,
or limit any request for oral argument.
Oral argument shall not be transcribed
unless so ordered in advance by the Judicial Officer for good cause shown
upon request of a party or upon the Judicial Officer’s own motion.
(e) Scope of argument. Argument to be
heard on appeal, whether oral or on
brief, shall be limited to the issues
raised in the appeal or in the response
to the appeal, except that if the Judicial Officer determines that additional
issues should be argued, the parties
shall be given reasonable notice of such
determination, so as to permit preparation of adequate arguments on all
issues to be argued.
(f) Notice of argument; Postponement.
The Hearing Clerk shall advise all parties of the time and place at which oral
argument will be heard. A request for
postponement of the argument must be
made by motion filed a reasonable
amount of time in advance of the date
fixed for argument.
(g) Order of argument. The appellant
is entitled to open and conclude the argument.
(h) Submission on briefs. By agreement
of the parties, an appeal may be submitted for decision on the briefs, but
the Judicial Officer may direct that
the appeal be argued orally.
(i) Decision of the judicial officer on appeal. As soon as practicable after the
receipt of the record from the Hearing
Clerk, or, in case oral argument was
had, as soon as practicable thereafter,
the Judicial Officer, upon the basis of
and after due consideration of the
record and any matter of which official
notice is taken, shall rule on the appeal. If the Judicial Officer decides
that no change or modification of the
Judge’s decision is warranted, the Judicial Officer may adopt the Judge’s

Appeal to the Judicial Officer.

(a) Filing of petition. Within 30 days
after receiving service of the Judge’s
decision, a party who disagrees with
the decision, or any part thereof, or
any ruling by the Judge or any alleged
deprivation of rights, may appeal such
decision to the Judicial Officer by filing an appeal petition with the Hearing
Clerk. As provided in § 1.168(g)(2), objections regarding evidence or a limitation regarding examination or cross-examination or other ruling made before
the Judge may be relied upon in an appeal. Each issue set forth in the petition, and the arguments thereon, shall
be separately numbered; shall be plainly and concisely stated; and shall contain detailed citations to the record,
statutes, regulations or authorities
being relied upon in support thereof. A
brief may be filed in support of the appeal simultaneously with the petition.
(b) Response to appeal petition. Within
20 days after the service of a copy of an
appeal petition and any brief in support thereof, filed by a party to the
proceeding, any other party may file
with the Hearing Clerk a response in
support of or in opposition to the appeal and in such response any relevant
issue, not presented in the appeal petition, may be raised.
(c) Transmittal of record. Whenever an
appeal of a Judge’s decision is filed and
a response thereto has been filed or
time for filing a response has expired,
the Hearing Clerk shall transmit to the
Judicial Officer the record of the proceeding. Such record shall include: the
pleadings; motions and requests filed
and rulings thereon; the transcript or
recording of the testimony taken at
the hearing, together with the exhibits
filed in connection therewith; any documents or papers filed in connection
with a prehearing conference; such proposed findings of fact, conclusions, and
orders, and briefs in support thereof, as
may have been filed in connection with
the proceeding; the Judge’s decision;
such exceptions, statements of objections and briefs in support thereof as
may have been filed in the proceeding;
and the appeal petition, and such briefs
in support thereof and responses thereto as may have been filed in the proceeding.

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§ 1.173

decision as the final order in the proceeding, preserving any right of the
party bringing the appeal to seek judicial review of such decision in the
proper forum. A final order issued by
the Judicial Officer shall be filed with
the Hearing Clerk. Such order may be
regarded by the respondent as final for
purposes of a request for judicial review as provided in § 1.175(a).

of the transcript is filed with the Hearing Clerk, shall be made by and in the
discretion of the Judge. The Judge may
either rule upon or certify the motion,
request, objection, or other question to
the Judicial Officer, but not both.
[45 FR 6587, Jan. 29, 1980, as amended at 60
FR 8458, Feb. 14, 1995]

§ 1.173 Judges.
(a) Assignment. No Judge shall be assigned to serve in any proceeding who
(1) has any pecuniary interest in any
matter or business involved in the proceeding, (2) is related within the third
degree by blood or marriage to any
party to the proceeding, or (3) has participated in the investigation preceding the institution of the proceeding or in determination that it
should be instituted or in the preparation of the moving paper or in the development of the evidence to be introduced therein.
(b) Disqualification of Judge. (1) Any
party to the proceeding may, by motion made to the Judge, request that
the Judge disqualify himself or herself
and withdraw from the proceeding.
Such motion shall set forth with particularity the alleged disqualification.
The Judge may then either rule upon
or certify the motion to the Judicial
Officer, but not both.
(2) A Judge will withdraw from any
proceeding in which the Judge deems
himself or herself disqualified for any
reason.
(c) Conduct. At no stage of the proceeding between its institution and the
issuance of the final decision shall the
Judicial Officer or the Judge discuss ex
parte the merits of the proceeding with
any person who is connected with the
proceeding as an advocate or in an investigative capacity, or with any representative of such person: Provided,
That procedural matters shall not be
included within the limitation: and
Provided further, That the Judicial Officer of Judge may discuss the merits of
the case with such a person if all parties to the proceeding, or their representatives, have been given an opportunity to be present. Any memorandum or other communication addressed to the Judicial Officer or a
Judge, during the pendency of the proceeding, and relating to the merits

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

§ 1.171

Intervention.

Intervention under these rules shall
not be allowed, except that, in the discretion of the Judicial Officer, or the
Judge, any person showing a substantial interest in the outcome of the proceeding shall be permitted to participate in oral or written argument pursuant to §§ 1.169 and 1.170.
[45 FR 6587, Jan. 29, 1980, as amended at 60
FR 8458, Feb. 14, 1995]

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§ 1.172

Motions and requests.

(a) General. All motions and requests
shall be filed with the Hearing Clerk,
and shall be served upon the parties,
except those made on record during the
oral hearing. The Judge shall rule upon
all motions and requests filed or made
prior to the filing of the certification
of the transcript or recording. Thereafter, the Judicial Officer will rule on
any motions or requests.
(b) Motions entertained. Any motion
will be entertained except a motion to
dismiss on the pleadings. All motions
and requests concerning the complaint
must be made within the time allowed
for filing an answer.
(c) Contents. All written motions and
requests shall state the particular
order, ruling, or action desired and the
grounds therefor.
(d) Response to motions in request.
Within ten days after service of any
written motion or request, or within
such shorter or longer period as may be
fixed by the Judge or the Judicial Officer the opposing party may file a response to the motion or request.
(e) Certification to the judicial officer.
The submission or certification of any
motion, request, objection, or other
question to the Judicial Officer prior to
the time when the Judge’s certification

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7 CFR Subtitle A (1–1–15 Edition)

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

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

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

§ 1.174 Filing; service; extensions of
time; and computation of time.
(a) Filing; Number of Copies. Except as
otherwise provided by the Judge or the

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§ 1.180
of business, a certified copy of the
order and of all records in the proceeding, including the request of the
association, together with a petition
asking that the order be affirmed and
enforced.
(b) Enforcement. If an association subject to a cease and desist order fails or
neglects, within thirty days of the date
of the order, or at any time thereafter,
to obey such order, and has not made a
request for judicial review as provided
above, the Secretary shall file in the
district court in the judicial district in
which such association has its principal place of business a certified copy
of the order and of all records in the
proceeding, together with a petition
asking that the order be enforced.
(c) Notice. The Secretary shall give
notice of the filing of a petition for enforcement or review to the Attorney
General, and to the association, by
service of a copy of the petition.

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

Subpart J—Procedures Relating to
Awards Under the Equal Access to Justice Act in Proceedings Before the Department
SOURCE: 67 FR 63237, Oct. 11, 2002, unless
otherwise noted.

GENERAL PROVISIONS
§ 1.180

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

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

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Definitions.

§ 1.175 Procedure following entry of
cease and desist order.
(a) Request for judicial review. An association subject to a cease and desist
order may, within thirty days following the date of the order, request
the Secretary to institute proceedings
for judicial review of the order. Such
request shall, to the extent practicable,
identify findings of fact, conclusions of
law, and any part of the order which
the association claims are in error. The
Secretary shall, thereupon, file in the
district in the judicial district in which
such association has its principal place

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§ 1.181

7 CFR Subtitle A (1–1–15 Edition)
(ii) Appeals of decisions of contracting officers made pursuant to section 6 of the Contract Disputes Act of
1978 (41 U.S.C. 605) before the Agriculture Board of Contract Appeals as
provided in section 8 of that Act (41
U.S.C. 607), and
(iii) Any hearing conducted under
chapter 38 of title 31, United States
Code.
(2) Any proceeding in which the Department may prescribe a lawful
present or future rate is not covered by
EAJA. Proceedings to grant or renew
licenses also are excluded, but proceedings to modify, suspend, or revoke
licenses are covered if they are otherwise ‘‘adversary adjudications.’’ The
proceedings covered include adversary
adjudications under the following statutory provisions.

§ 1.181 Purpose of these rules.
The Equal Access to Justice Act, 5
U.S.C. 504 (called ‘‘EAJA’’ in this subpart), provides for the award of attorney fees and other expenses to eligible
individuals and entities who are parties
to certain administrative proceedings
(called ‘‘adversary adjudications’’) before the Department. An eligible party
may receive an award when it prevails
over the Department unless the position of the Department was substantially
justified
or
special
circumstances make an award unjust. Alternatively, an eligible party may receive an award in connection with an
adversary adjudication arising from an
agency action to enforce the party’s
compliance with a statutory or regulatory requirement where the demand
by the agency is substantially in excess
of the decision of the adjudicative officer and is unreasonable when compared
with such decision under the facts and
circumstances of the case. The rules in
this subpart describe the parties eligible for awards and the proceedings that
are covered. They also explain how to
apply for awards, and the procedures
and standards that the Department
will use to make awards.

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

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§ 1.182 When EAJA applies.
EAJA applies to any adversary adjudication pending or commenced before
the Department on or after August 5,
1985, except with respect to a proceeding covered under § 1.183(a)(1)(iii) of
this part, which is effective on or after
October 21, 1986. In addition, the provisions of § 1.185(b) relating to award for
excessive demand apply only to adversary adjudications commenced on or
after March 29, 1996. Changes in maximum rates for attorney fees are effective as of October 11, 2002.
§ 1.183 Proceedings covered.
(a)(1) The rules in this subpart apply
to adversary adjudications. These are:
(i) Adjudications required by statute
to be conducted by the Department
under 5 U.S.C. 554 in which the position
of the Department or any other agency
of the United States, or any component
of an agency, is presented by an attorney or other representative who enters
an appearance and participates in the
proceeding,

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§ 1.184

Virus-Serum-Toxin Act (21 U.S.C. 156)
Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 3409)

(5) Any other partnership, corporation, association, unit of local government, or organization with a net worth
of not more than $7 million and nor
more than 500 employees;
(6) For purposes only of paragraph
(a)(2) of this section, a small entity as
defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the
net worth and number of employees of
an applicant shall be determined as of
the date the adversary adjudication
was initiated: Provided, that for purposes of eligibility in proceedings covered by § 1.183(a)(1)(ii) of this part, the
net worth and number of employees of
an applicant shall be determined as of
the date the applicant filed its appeal
under 41 U.S.C. 606.
(d) In interpreting the criteria set
forth in paragraph (b) of this section,
the following apply:
(1) An applicant who owns an unincorporated business will be considered
as an ‘‘individual’’ rather than a ‘‘sole
owner of an unincorporated business’’
if the issues on which the applicant
prevails are related primarily to personal interests rather than to business
interests.
(2) The employees of an applicant include all persons who regularly perform services for remuneration for the
applicant, under the applicant’s direction and control. Part-time employees
shall be included on a proportional
basis.
(3) The net worth and number of employees of the applicant and all of its
affiliates shall be aggregated to determine eligibility. Any individual, corporation, or other entity that directly
or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation
or other entity of which the applicant
directly or indirectly owns or controls
a majority of the voting shares or
other interest, will be considered an affiliate for purposes of this subpart, unless the adjudicative officer determines
such treatment would be unjust and
contrary to the purposes of EAJA in
light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of
the applicant other than those described in this paragraph constitute

(b) The failure of the Department to
identify a type of proceeding as an adversary adjudication shall not preclude
the filing of an application by a party
who believes the proceeding is covered
by EAJA; whether the proceeding is
covered will then be an issue for resolution in proceedings on the application.
(c) If a proceeding includes both matters covered by EAJA and matters specifically excluded from coverage, any
award made will include only fees and
expenses related to covered issues.
[67 FR 63237, Oct. 11, 2002, as amended at 67
FR 70674, Nov. 26, 2002]

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§ 1.184

Eligibility of applicants.

(a) To be eligible for an award of attorney fees and other expenses under
EAJA, the applicant must meet one of
the following conditions:
(1) The applicant must be a prevailing party to the adversary adjudication for which it seeks an award; or
(2) The applicant must be a party to
an adversary adjudication arising from
an agency action to enforce the party’s
compliance with a statutory or regulatory requirement in which the demand by the agency was substantially
in excess of the decision of the adjudicative officer and the demand is unreasonable when compared with such
decision under the facts and circumstances of the case.
(b) In addition to the criteria set out
in paragraph (a) of this section, a party
seeking an award must be one of the
following:
(1) An individual with a net worth of
not more than $2 million;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including
both personal and business interests,
and not more than 500 employees;
(3) A charitable or other tax-exempt
organization
described
in
section
501(c)(3) of the Internal Revenue Code
(26 U.S.C. 501(c)(3)) with not more than
500 employees;
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (2 U.S.C. 1141j(a))
with not more than 500 employees;

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7 CFR Subtitle A (1–1–15 Edition)

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special circumstances that would make
an award unjust.
(4) An applicant that participates in
a proceeding primarily on behalf of one
or more other person or entity that
would be ineligible is not itself eligible
for an award.

(i) In the administrative complaint,
or
(ii) Elsewhere when accompanied by
an express demand for a lesser amount.
§ 1.186

Allowable fees and expenses.

(a) Awards will be based on rates customarily charged by persons engaged
in the business of acting as attorneys,
agents, and expert witnesses, even if
the services were made available without charge or at reduced rate to the applicant.
(b) In proceedings commenced on or
after the effective date of this paragraph, no award for the fee of an attorney or agent under the rules in this
subpart may exceed $150 per hour. No
award to compensate an expert witness
may exceed the highest rate at which
the Department pays expert witnesses,
which is set out at § 1.150 of this part.
However, an award also may include
the reasonable expenses of the attorney, agent, or witness as a separate
item, if the attorney, agent, or witness
ordinarily charges clients separately
for such expenses.
(c) In determining the reasonableness
of the fee sought for an attorney,
agent, or expert witness, the adjudicative officer shall consider the following:
(1) If the attorney, agent or witness
is in private practice, his or her customary fee for similar services, or if an
employee of the applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar
services in the community in which the
attorney, agent, or witness ordinarily
performs services;
(3) The time actually spent in the
representation of the applicant;
(4) The time reasonably spent in light
of the difficulty or complexity of the
issues in the proceeding; and
(5) Such other factors as may bear on
the value of the services provided.
(d) The reasonable cost of any study,
analysis, engineering report, test,
project or similar matter prepared on
behalf of a party may be awarded, to
the extent that the charge for the service does not exceed the prevailing rate
for similar services, and the study or

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

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§ 1.190

other matter was necessary for preparation of the applicant’s case.

thority to take final action on matters
pertaining to the Act in particular
cases to other subordinate officials or
bodies.
(b)(1) The Secretary of Agriculture
delegates to the Director of the National Appeals Division authority to
take final actions on matters pertaining to the Act for proceedings
under 7 CFR part 11.
(2) With respect to proceedings covered under § 1.183(b)(1)(ii) of this part,
the Board of Contract Appeals is authorized by statute (41 U.S.C. 607) to
take final action.

[67 FR 63237, Oct. 11, 2002, as amended at 76
FR 11668, Mar. 3, 2011]

§ 1.187 Rulemaking on maximum rates
for attorney fees.
(a) If warranted by an increase in the
cost of living or by special circumstances (such as limited availability of attorneys qualified to handle
certain types of proceedings), the Department may adopt regulations providing that attorney fees may be
awarded at a rate higher than $150 per
hour in some or all of the types of proceedings covered by this part. The Department will conduct any rulemaking
proceedings for this purpose under the
informal rulemaking procedures of the
Administrative Procedure Act.
(b) Any person may file with the Department a petition for rulemaking to
increase the maximum rate for attorney fees in accordance with § 1.28 of
this part. The petition should identify
the rate the petitioner believes the Department should establish and the
types of proceedings in which the rate
should be used. It also should explain
fully the reasons why the higher rate is
warranted. The Department will respond to the petition within 60 days
after it is filed, by initiating a rulemaking proceeding, denying the petition, or taking other appropriate action.

[68 FR 27435, May 20, 2003]

INFORMATION REQUIRED FROM
APPLICANTS
§ 1.190 Contents of application.
(a) An application for an award of
fees and expenses under EAJA shall
identify the applicant and the proceeding for which an award is sought.
Unless the applicant is an individual,
the application shall state the number
of employees of the applicant and describe briefly the type and purpose of
its organization or business. The application shall also:
(1) Show that the applicant has prevailed and identify the position of the
Department that the applicant alleges
was not substantially justified and
shall briefly state the basis for such allegation; or
(2) Show that the demand by the Department in the proceeding was substantially in excess of, and was unreasonable when compared with, the decision in the proceeding.
(b) The application also shall, as appropriate, include a declaration that
the applicant is a small entity as defined in 5 U.S.C. 601 or a statement
that the applicant’s net worth does not
exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates). However, an
applicant may omit this statement if:
(1) It attaches a copy of a ruling by
the Internal Revenue Service that it
qualifies as an organization described
in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the
case of a tax-exempt organization not
required to obtain a ruling from the Internal Revenue Service on its exempt

[67 FR 63237, Oct. 11, 2002, as amended at 76
FR 11668, Mar. 3, 2011]

§ 1.188

Awards against other agencies.

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

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§ 1.189

Delegations of authority.

(a) Except as provided in paragraph
(b) of this section, the Secretary of Agriculture delegates to the Judicial Officer authority to take final action on
matters pertaining to the Act in proceedings covered by these rules. The
Secretary by order may delegate au-

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7 CFR Subtitle A (1–1–15 Edition)

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status, a statement that describes the
basis for the applicant’s belief that it
qualifies under such section; or
(2) It states that it is a cooperative
association as defined in section 15(a)
of the Agricultural Marketing Act (12
U.S.C. 114j(a)).
(c) The application shall state the
amount of fees and expenses for which
an award is sought.
(d) The application also may include
any other matters that the applicant
wishes the Department to consider in
determining whether, and in what
amount, an award should be made.
(e) The application shall be signed by
the applicant or an authorized officer
or attorney of the applicant. It also
shall contain or be accompanied by a
written verification under oath or affirmation under penalty of perjury that
the information provided in the application and all accompanying material
is true and complete to the best of the
signer’s information and belief.

detail, why it falls within one or more
of the specific exemptions from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b) (1)
through (9). The material in question
shall be served on counsel representing
the agency against which the applicant
seeks an award, but need not be served
on any other party to the proceeding.
If the adjudicative officer finds that
the information should not be withheld
from disclosure, it shall be placed in
the public record of the proceeding.
Otherwise, any request to inspect or
copy the exhibit shall be disposed of in
accordance with the established procedures of the Department under the
Freedom of Information Act (§§ 1.1
through 1.23 of this part).
§ 1.192 Documentation of fees and expenses.
(a) The application shall be accompanied by full documentation of the
fees and expenses, including the cost of
any study, analysis, engineering report, test, project, or similar matter,
for which an award is sought.
(b) The documentation shall include
an affidavit from any attorney, agent,
or expert witness representing or appearing on behalf of the party, stating
the actual time expended and the rate
at which fees and other expenses were
computed and describing the specific
services performed.
(1) The affidavit shall state the services performed. In order to establish
the hourly rate, the affidavit shall
state the hourly rate which is billed
and paid by the majority of clients during the relevant time periods.
(2) If no hourly rate is paid by the
majority of clients because, for instance, the attorney or agent represents most clients on a contingency
basis, the attorney or agent shall provide information about two attorneys
or agents with similar experience, who
perform similar work, stating their
hourly rate.
(c) The documentation also shall include a description of any expenses for
which reimbursement is sought and a
statement of the amounts paid and
payable by the applicant or by any
other person or entity for the services
provided.

§ 1.191 Net worth exhibit.
(a) An applicant, except a qualified
tax-exempt organization or cooperative
association, must provide with its application a detailed exhibit showing
the net worth of the applicant and any
affiliates (as defined in § 1.184 of this
part) when the proceeding was initiated. The exhibit may be in any form
convenient to the applicant that provides full disclosure of the applicant’s
and its affiliates’ assets and liabilities
and is sufficient to determine whether
the applicant qualifies under the standards in this subpart. The adjudicative
officer may require an applicant to file
additional information to determine
its eligibility for an award.
(b) Ordinarily, the net worth exhibit
will be included in the public record of
the proceeding. However, an applicant
that objects to public disclosure of information in any portion of the exhibit
and believes there are legal grounds for
withholding it from disclosure may
submit that portion of the exhibit directly to the adjudicative officer in a
sealed envelope labeled ‘‘Confidential
Financial Information,’’ accompanied
by a motion to withhold the information from public disclosure. The motion shall describe the information
sought to be withheld and explain, in

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§ 1.197

(d) The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation
for any fees or expenses claimed, pursuant to § 1.199 of this part.
§ 1.193

limit on filing the application as set
out in § 1.193 of this part may not be extended.
§ 1.195

Time for filing application.

(a) An application may be filed whenever the applicant has prevailed in the
proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30
days after final disposition of the proceeding by the Department.
(b) For the purposes of this subpart,
final disposition means the date on
which a decision or order disposing of
the merits of the proceeding or any
other complete resolution of the proceeding, such as a settlement or voluntary dismissal, become final and
unappealable, both within the Department and to the courts.
(c) If review or reconsideration is
sought or taken of a decision as to
which an applicant believes it has prevailed, proceedings for the award of
fees shall be stayed pending final disposition of the underlying controversy.
When the United States appeals the underlying merits of an adversary adjudication to a court, no decision on an
application for fees and other expenses
in connection with that adversary adjudication shall be made until a final
and unreviewable decision is rendered
by the court on the appeal or until the
underlying merits of the case have
been finally determined pursuant to
the appeal.

§ 1.196

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and

service

of

Reply.

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

PROCEDURES FOR CONSIDERING
APPLICATIONS
§ 1.194 Filing
ments.

Answer to application.

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

docu-

§ 1.197

Any application for an award or
other pleading or document related to
an application shall be filed and served
on all parties to the proceeding in the
same manner as other pleadings in the
proceeding except as provided in § 1.191
of this part for confidential financial
information. The provisions relating to
filing, service, extensions of time, and
computation of time contained in
§ 1.147 of this part are incorporated into
and made applicable to this subpart,
except that the statutory 30 day time

Comments by other parties.

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

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7 CFR Subtitle A (1–1–15 Edition)
decision on the application as expeditiously as possible after completion of
proceedings on the application. Whenever possible, the decision shall be
made by the same administrative judge
or panel that decided the contract appeal for which fees are sought. The decision shall include written findings
and conclusions on the applicant’s eligibility and status as a prevailing
party, and an explanation of the reasons for any difference between the
amount requested and the amount
awarded. This decision also shall include, if at issue, findings on whether
the position of the Department was
substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If
the applicant has sought an award
against more than one agency, the decision shall allocate responsibility for
payment of any award made among the
agencies, and shall explain the reasons
for the allocation made.

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

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

§ 1.201

Department review.

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

§ 1.200 Decision.
The adjudicative officer or Board of
Contract Appeals shall issue an initial

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§ 1.213
(b) Appearance means testimony or
production of documents the request
for which arises out of an employee’s
official duties with USDA or relates to
his or her employment with USDA. For
the purpose of this subpart, an appearance also includes an affidavit, deposition, interrogatory, or other required
written submission.
(c) Judicial proceeding means any case
or controversy pending before any federal, state, or local court.
(d) Travel expenses means the amount
of money paid to a witness for reimbursement for transportation, lodging,
meals, and other miscellaneous expenses in connection with attendance
at a judicial or administrative proceeding.
(e) USDA means the United States
Department of Agriculture.
(f) USDA agency means an organizational unit of USDA whose head reports to an official within the Office of
the Secretary of Agriculture.
(g) Valid summons, subpoena, or other
compulsory process means an order that
is served properly and within the legal
authority and the jurisdictional boundaries of the court or administrative
agency or official that has issued it.
(h) Witness fees means the amount of
money paid to a witness as compensation for attendance at a judicial or administrative proceeding.

§ 1.202 Judicial review.
Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
§ 1.203 Payment of award.
An applicant seeking payment of an
award shall submit to the head of the
agency administering the statute involved in the proceeding a copy of the
final decision of the Department granting the award, accompanied by a statement that the applicant will not seek
review of the decision in the United
States courts. The agency will pay the
amount awarded to the applicant within 60 days, unless judicial review of the
award or of the underlying decision of
the adversary adjudication has been
sought by the applicant or any other
party to the proceeding.

Subpart K—Appearance of USDA
Employees as Witnesses in Judicial or Administrative Proceedings
SOURCE: 55 FR 42347, Oct. 19, 1990, unless
otherwise noted.

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

§ 1.212

General.

No USDA employee may provide testimony or produce documents in a judicial or administrative proceeding unless authorized in accordance with this
subpart.
§ 1.213 Appearance as a witness on behalf of the United States.
An employee of USDA may appear as
a witness on behalf of the United
States in any judicial or administrative proceeding without the issuance of
a summons, subpoena, or other compulsory process. Employees should obtain
permission for such an appearance
from their immediate supervisor unless
the USDA agency or General Counsel
has issued instructions providing otherwise.

§ 1.211 Definitions.
(a) Administrative proceeding means
any proceeding pending before any federal, state, or local agency and undertaken for the purpose of the issuance of
any regulations, orders, licenses, permits, or other rulings, or the adjudication of any matter, dispute, or controversy.

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§ 1.214

7 CFR Subtitle A (1–1–15 Edition)
produce a copy of these regulations and
respectfully decline to provide any testimony. As appropriate, the General
Counsel or his or her designee will request the assistance of the Department
of Justice or of a United States Attorney, in the case of a judicial proceeding; or of the official or attorney
representing the United States, in the
case of an administrative proceeding,
to represent the interests of the employee and USDA.
(d) If there is any question regarding
the validity of a summons, subpoena,
or other compulsory process, an employee shall contact the Office of the
General Counsel for advice.
(e)(1) In determining whether the employee’s appearance is in the interest
of USDA, authorizing officials should
consider the following:
(i) what interest of USDA would be
promoted by the employee’s testimony;
(ii) whether an appearance would result in an unnecessary interference
with the duties of the USDA employee;
(iii) whether an employee’s testimony would result in the appearance of
improperly favoring one litigant over
another.
(2) The considerations listed in paragraph (e)(1) of this section are illustrative and not exhaustive.

§ 1.214 Appearance as a witness on behalf of a party other than the
United States where the United
States is not a party.
(a) An employee of USDA served with
a valid summons, subpoena, or other
compulsory process demanding his or
her appearance, or otherwise requested
to appear on behalf of a party other
than the United States in a judicial or
administrative proceeding in which the
United States is not a party, shall
promptly notify the head of his or her
USDA agency of the existence and nature of the order compelling his or her
appearance, or of the document requesting his or her attendance. He or
she shall also specify, if that is known,
the nature of the judicial or administrative proceeding and the nature of
the testimony or documents requested.
(b)(1) An employee of USDA served
with a valid summons, subpoena, or
other compulsory process, or requested
to appear as a witness on behalf of a
party other than the United States in a
judicial or administrative proceeding
in which the United States is not a
party, may appear only if such appearance has been authorized by the head
of his or her USDA agency, with the
concurrence of the General Counsel,
based upon a determination that such
an appearance is in the interest of
USDA.
(2) An employee of USDA requested
to appear as a witness on behalf of a
party other than the United States in a
judicial or administrative proceeding
in which the United States is not a
party, without the service of a valid
summons, subpoena, or other compulsory process, may appear only if such
appearance has been authorized by the
head of his or her USDA agency and approved by the appropriate Assistant
Secretary, Under Secretary or other
general officer, and by the General
Counsel, based upon a determination
that such an appearance is in the interest of USDA.
(c) Unless an appearance is authorized as provided in paragraphs (b)(1) or
(b)(2) of this section, the employee
shall appear at the stated time and
place (unless advised by the General
Counsel or his or her designee that the
summons, subpoena, or other process
was not validly issued or served),

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

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§ 1.217

will be handled in accordance with subpart A of this part.

(c) The head of the USDA agency
shall consult with the General Counsel
or his or her designee as to whether
there are grounds to oppose the employee’s attendance or production of
documents and, if so, whether to seek
to quash the summons, subpoena, compulsory process, or to deny authorization under paragraph (b)(2) of this section.
(d) As appropriate, the General Counsel or his or her designee will request
the assistance of the Department of
Justice, a United States Attorney, or
other counsel representing the United
States, in the case of a judicial proceeding; or of the official or attorney
representing the United States, in the
case of an administrative proceeding,
to represent the interest of the employee and USDA.
(e) If there is any question regarding
the validity of a summons, subpoena,
or other compulsory process, an employee shall contact the Office of the
General Counsel for advice.

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§ 1.216 Appearance as a witness or
production of documents on behalf
of a party other than the United
States where the United States is a
party.
(a) An employee of USDA served with
a valid summons, subpoena, or other
compulsory process demanding his or
her appearance, or otherwise requested
to appear or produce documents on behalf of a party other than the United
States in a judicial or administrative
proceeding in which the United States
is a party, shall promptly notify the
head of his or her USDA agency and
the General Counsel or his or her designee of the existence and nature of the
order compelling his or her appearance,
or of the document requesting his or
her appearance. He or she shall also
specify, if that is known, the nature of
the judicial or administrative proceeding and the nature of the testimony or documents requested.
(b)(1) Except as provided in paragraph (b)(2) of this section, an employee of USDA only may appear as a
witness or produce records on behalf of
a party other than the United States in
a judicial or administrative proceeding
in which the United States is a party if
such appearance or production has
been ordered by the service on the employee of a valid summons, subpoena,
or other compulsory process issued by
a court, administrative agency, or
other official authorized to compel his
or her appearance.
(2) An employee requested to appear
as a witness or produce records on behalf of a party other than the United
States in a judicial or administrative
proceeding in which the United States
is a party, without being served a valid
summons, subpoena, or other compulsory process, may appear or produce
records only if such appearance or production has been authorized by a representative of the Department of Justice, the United States Attorney, or
other counsel who is representing the
United States in the case of a judicial
proceeding; or by the official or attorney representing the United States, in
the case of an administrative proceeding.

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

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§ 1.218

7 CFR Subtitle A (1–1–15 Edition)

the United States when such appearance is in his or her official capacity or
arises out of or relates to his or her
employment with USDA is required to
collect the authorized fees for such
service and remit such fees to his or
her USDA agency.
§ 1.218

Under Secretaries in § 1.214(b)(2) of this
part may not be redelegated.
[58 FR 62495, Nov. 29, 1993; 58 FR 64353, Dec.
6, 1993]

Subpart L—Procedures Related to
Administrative Hearings Under
the Program Fraud Civil Remedies Act of 1986

Penalty.

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

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§ 1.219

AUTHORITY: 31 U.S.C. 3801–3812.
SOURCE: 56 FR 9582, Mar. 7, 1991, unless otherwise noted. Correctly designated at 57 FR
3909, Feb. 3, 1992.

Delegations.

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

(a) Except as provided in paragraphs
(b), (c), or (d) of this section, the head
of a USDA agency may delegate his or
her responsibilities under this subpart,
including the requirement to be notified of the receipt of a subpoena as provided in §§ 1.214(a) and 1.216(a) of this
part, to employees of his or her agency
as follows:
(1) In the National office of the agency, to a level no lower than two levels
below the agency head;
(2) In a field component of an agency,
to a level no lower than the official
who heads a state office.
(b) Notwithstanding paragraph (a) of
this section, the Chief of the Forest
Service may delegate his responsibilities under this subpart as follows:
(1) In the National office of the Forest Service, to a level no lower than a
Deputy Chief of the Forest Service;
(2) In a field component of the Forest
Service, to a level no lower than a Regional Forester or Station Director.
(c) Notwithstanding paragraph (a) of
this section, the General Counsel may
delegate his responsibilities under this
subpart as follows:
(1) In the National office of the Office
of the General Counsel, to a level no
lower than an Assistant General Counsel;
(2) In the field component of the Office of the General Counsel, to Regional Attorneys who may redelegate
their responsibilities to Associate Regional Attorneys and Assistant Regional Attorneys who report to them.
(d) The responsibilities assigned to
heads of agencies and to Assistant and

§ 1.302 Definitions.
(a) Agency means a constituent organizational unit of the USDA.
(b) Agency Fraud Claims Officer—
(AFCO) means an officer or employee
of an agency who is designated by the
head of that agency to receive the reports of the investigating official,
evaluate evidence, and make a recommendation to the reviewing official

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Office of the Secretary, USDA

§ 1.302
(j) Government means the United
States Government.
(k) Household means a family or one
or more individuals occupying a single
residence.
(l) Individual means a natural person.
(m) Investigating official means the
Inspector General of USDA or an officer or employee of the Office of Inspector General designated by the Inspector General and serving in a position
for which the rate of basic pay is not
less than the minimum rate of basic
pay for grade GS–16 under the General
Schedule.
(n) Judicial officer means an official of
USDA delegated authority by the Secretary, pursuant to the Act of April 4,
1940 (7 U.S.C. 450c–450g) and Reorganization Plan No. 2 of 1953, 67 Stat. 633,
as amended by Public Law No. 97–325 (7
U.S.C. 2201n.), to perform the adjudicating function for the Department
under § 2.35 of this title, or the Secretary if he exercises the authority so
delegated.
(o) Knows or has reason to know
means that a person, with respect to a
claim or statement—
(1)(i) Has actual knowledge that the
claim or statement is false, fictitious,
or fraudulent;
(ii) Acts in deliberate ignorance of
the truth or falsity of the claim or
statement; or
(iii) Acts in reckless disregard of the
truth or falsity of the claim or statement; and
(2) No proof of specific intent to defraud is required.
(p) Makes means presents, submits, or
causes to be made, presented, or submitted. As the context requires,
‘‘making’’ or ‘‘made’’ shall likewise include the corresponding forms of such
terms.
(q) Person means any individual,
partnership, corporation, association,
or private organization, and includes
the plural of that term.
(r) Representative means an attorney
who is a member in good standing of
the bar of any State, Territory, or possession of the United States or of the
District of Columbia or the Commonwealth of Puerto Rico. This definition
is not intended to foreclose pro se appearances. An individual may appear

with respect to the determination required under § 1.305 of this part.
(c) ALJ means an Administrative Law
Judge in USDA appointed pursuant to 5
U.S.C. 3105 or detailed to the USDA
pursuant to 5 U.S.C. 3344.
(d) Authority means the USDA.
(e) Benefits means, except as otherwise defined in this subpart, anything
of value, including but not limited to
any advantage, preference, privilege,
license, permit, favorable decision, ruling, status, or loan guarantee.
(f) Claim means any request, demand,
or submission—
(1) Made to USDA for property, services, or money (including money representing grants, loans, insurance, or
benefits);
(2) Made to a recipient of property,
services, or money from USDA or to a
party to a contract with USDA—
(i) For property or services if the
United States—
(A) Provided such property or services; or
(B) Provided any portion of the funds
for the purchase of such property or
services; or
(C) Will reimburse such recipient or
party for the purchase of such property
or services; or
(ii) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the
United States—
(A) Provided any portion of the
money requested or demanded; or
(B) Will reimburse such recipient or
party for any portion of the money
paid on such request or demand; or
(3) Made to USDA which has the effect of decreasing an obligation to pay
or account for property, services, or
money.
(g) Complaint means the written notice served by the reviewing official on
the respondent under § 1.307 of this
part.
(h) Days means business days for all
periods referred to in these regulations
of 10 days or less and calendar days for
all periods referred to in these regulations in excess of 10 days.
(i) Family means the individual’s parents, spouse, siblings, children, and
grandchildren with respect to an individual making a claim or statement for
benefits.

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for himself or herself, and a corporation or other entity may appear by an
owner, officer, or employee of the corporation or entity.
(s) Respondent means any person alleged in a complaint issued under § 1.308
of this part to be liable for a civil penalty or assessment under § 1.303 of this
part.
(t) Reviewing official means an officer
or employee of USDA—
(1) Who is designated by the Secretary to make the determination required under § 1.305 of this part;
(2) Who is serving in a position for
which the rate of basic pay is not less
than the minimum rate of basic pay for
grade GS–16 under the General Schedule; and
(3) Who is—
(i) Not subject to supervision by, or
required to report to, the investigating
official; and
(ii) Not employed in the organizational unit of USDA in which the investigating official is employed.
(u) Secretary means the Secretary of
Agriculture.
(v) Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made—
(1) With respect to a claim or to obtain the approval or payment of a
claim (including relating to eligibility
to make a claim); or
(2) With respect to (including relating to eligibility for)—
(i) A contract with, or a bid or proposal for a contract with; or
(ii) A grant, loan, or benefit from,
USDA, or any State, political subdivision of a State, or other party, if the
United States Government provides
any portion of the money or property
under such contract or for such grant,
loan, or benefit, or if the Government
will reimburse such State, political
subdivision, or party for any portion of
the money or property under such contract or for such grant, loan, or benefit.
(w) USDA means the U.S. Department of Agriculture.

son who makes a claim that the person
knows or has reason to know—
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any
written statement which asserts a material fact which is false, fictitious, or
fraudulent;
(iii) Includes or is supported by any
written statement that—
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent
as a result of such omission; and
(C) Is a statement in which the person making such statement has a duty
to include such material fact; or
(iv) Is for payment for the provision
of property or services which the person has not provided as claimed,shall
be subject, in addition to any other
remedy that may be prescribed by law,
to a civil penalty of not more than the
amount specified at § 3.91(b)(11)(i) of
this title for each such claim.
(2) Each voucher, invoice, claim
form, or other individual request or demand for property, services, food coupons, or money constitutes a separate
claim.
(3) A claim shall be considered made
to the USDA, recipient, or party when
such claim is actually made to an
agent, fiscal intermediary, or other entity, including any State or political
subdivision thereof, acting for or on behalf of the USDA, recipient, or party.
(4) Each claim for property, services,
food coupons, or money is subject to a
civil penalty regardless of whether
such property, services, food coupons,
or money is actually delivered or paid.
(5) If the Government has made payment (including transferred property
or provided services) on a claim, a person subject to a civil penalty under
paragraph (a)(1) of this section shall
also be subject to an assessment of not
more than twice the amount of such
claim or that portion thereof that is
determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because
of such claim.
(b) Statements. (1) Except as provided
in paragraph (c) of this section, any
person who makes a written statement
that—
(i) The person knows or has reason to
know—

§ 1.303 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in
paragraph (c) of this section, any per-

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§ 1.304

(A) Asserts a material fact which is
false, fictitious, or fraudulent; or
(B) Is false, fictitious, or fraudulent
because it omits a material fact that
the person making the statement had a
duty to include in such statement; and
(ii) Contains or is accompanied by an
express certification or affirmation of
the truthfulness and accuracy of the
contents of the statement, shall be subject, in addition to any other remedy
that may be prescribed by law, to a
civil penalty of not more than the
amount specified at § 3.91(b)(11)(ii) of
this title for each such statement.
(2) Each written representation, certification, or affirmation constitutes a
separate statement.
(3) A statement shall be considered
made to the USDA when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of
the USDA.
(c) Benefits. (1) In the case of any
claim or statement made by any individual relating to any of the benefits
listed in paragraph (c)(2) of this section
received by such individual, such individual may be held liable for penalties
and assessments under this section
only if such claim or statement is
made by such individual in making application for such benefits with respect
to such individual’s eligibility to receive such benefits.
(2) For purposes of this paragraph,
the term benefits means—
(i) Benefits under the food stamp program established under the Food
Stamp Act of 1977 which are intended
as food assistance for the personal use
of the individual who receives the benefits or for a member of the individual’s family or household (as defined in
section 3(h) of the Food Stamp Act of
1977);
(ii) Benefits under the National
School Lunch Act;
(iii) Benefits under any housing assistance program for lower income
families or elderly or handicapped persons which is administered by the Secretary or USDA;
(iv) Benefits under the special supplemental food program for women, infants, and children established under
section 17 of the Child Nutrition Act of

1966 which are intended for the personal use of the individual who receives
the benefits or for a member of the individual’s family or household.
(d) Intent. No proof of specific intent
to defraud is required to establish liability under this section.
(e) More than one person liable. In any
case in which it is determined that
more than one person is liable for making a claim or statement under this
section, each person may be held liable
for a civil penalty under this section.
(f) Joint and several liability. In any
case in which it is determined that
more than one person is liable for making a claim under this section on which
the government has made payment (including transferred property or provided services), an assessment may be
imposed against any such person or
jointly and severally against any combination of such persons. The aggregate amount of the assessments collected with respect to such claim shall
not exceed twice the portion of such
claim determined to be in violation of
paragraph (a)(1) of this section.
[56 FR 9582, Mar. 7, 1991. Correctly designated
at 57 FR 3909, Feb. 3, 1992, as amended at 75
FR 17556, Apr. 7, 2010]

§ 1.304

Investigation.

(a) The investigating official may investigate allegations that a person is
liable under § 1.303 of this part.
(b) If an investigating official concludes that a subpoena pursuant to the
authority conferred by 31 U.S.C. 3804(a)
is warranted, the investigating officer
may issue a subpoena, which shall notify the person to whom it is addressed
of the authority under which it is
issued and shall identify the information, documents, reports, answers,
records, accounts, papers, or data
sought.
(c) The investigating official may
designate a person to act on his behalf
to receive the documents or other materials sought by a subpoena issued
under paragraph (b) of this section.
(d) The person receiving such subpoena shall be required to tender to the
investigating official or the person designated to receive the documents a certification that the documents or other
materials sought have been produced,

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or that such documents or other materials are not available and the reasons
therefore, or that such documents or
other materials, suitably identified,
have been withheld based upon the assertion of an identified privilege.
(e) Each agency shall develop criteria
for determining which allegations that
a person is liable under § 1.303 of this
part are to be referred to the investigating official.
(f) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be
warranted, the investigating official
shall submit a report containing findings and conclusions of such investigation to the reviewing official.
(g) Nothing in this section shall preclude or limit an investigating official’s discretion to refer allegations directly to the Department of Justice for
suit under the False Claims Act or
other civil relief, nor preclude or limit
such official’s discretion to defer or
postpone a report or referral to the reviewing official in order to avoid interference with a criminal investigation
or prosecution.
(h) Nothing in this section modifies
any responsibility of an investigating
official to report violations of criminal
law to the Attorney General.

ing official’s intention to issue a complaint under § 1.307 of this part.
(e) Such notice shall include—
(1) A statement of the reviewing official’s reasons for issuing a complaint;
(2) A statement of the evidence that
supports the allegations of liability;
(3) A description of the claims or
statements upon which the allegations
of liability are based;
(4) An estimate of the amount of
money or the value of property, services, or other benefits requested or demanded in violation of § 1.303 of this
part;
(5) A statement of any exculpatory or
mitigating circumstances that may relate to the claims or statements;
(6) A statement that there is a reasonable prospect of collecting the
amount specified in § 1.307(b)(2) of this
part and the reasons supporting such
statement.
§ 1.306 Prerequisites for issuing a complaint.
The reviewing official may issue a
complaint under § 1.307 of this part only
if:
(a) The Attorney General or an Assistant Attorney General designated by
the Attorney General approves the
issuance of a complaint in a written
statement as provided in 31 U.S.C.
3803(b)(1);
(b) In the case of allegations of liability under § 1.303(a) of this part with respect to a claim, the reviewing official
determines with respect to such claim,
or a group of related claims submitted
at the same time, that the amount of
money or the value of property or services demanded or requested in violation of § 1.303(a) of this part does not
exceed $150,000; and
(c) For the purposes of this section, a
group of related claims submitted at
the same time shall include only those
claims arising from the same transaction (e.g., a single grant, loan, application, or contract) that are submitted
simultaneously as part of a single request, demand, or submission, regardless of the amount of money or the
value of property or services demanded
or requested.

§ 1.305 Review by the reviewing official.
(a) Upon receipt of the report of the
investigating official, the reviewing official may refer the report to the appropriate agency fraud claims officer
(AFCO) for a recommendation with respect to the determination required
under this section.
(b) The AFCO shall evaluate the evidence and make a recommendation to
the reviewing officer within 45 days of
receipt of the report of the investigating official.
(c) The reviewing official is not
bound by the recommendation of the
AFCO, and may accept or reject it.
(d) If, based on the report of the investigating official under § 1.304(f) of
this part, the reviewing official determines that there is adequate evidence
to believe that a person is liable under
§ 1.303 of this part, the reviewing official shall transmit to the Attorney
General a written notice of the review-

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§ 1.310

(d) Nothing in this section shall be
construed to limit the reviewing official’s authority to join in a single complaint against a person claims that are
unrelated or were not submitted simultaneously, regardless of the amount of
money or the value of property or services demanded or requested.

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

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§ 1.307 Complaint.
(a) On or after the date the Department of Justice approves the issuance
of a complaint in accordance with 31
U.S.C. 3803(b)(1), the reviewing official
may serve a complaint on the respondent, as provided in § 1.308 of this part.
(b) The complaint shall state—
(1) The allegations of liability, including the statutory basis for liability, an identification of the claims or
statements that are the basis for the
alleged liability, and the reasons that
liability allegedly arises from such
claims or statements;
(2) The maximum amount of penalties and assessments for which the
respondent may be held liable;
(3) Instructions for requesting a hearing, including a specific advice of the
respondent’s right to request a hearing
and to be represented by a representative; and
(4) That failure to file an answer
within 30 days of service of the complaint may result in the imposition of
the penalty and assessment sought in
the complaint without right to appeal.
(c) At the same time the reviewing
official serves the complaint, he or she
shall serve the respondent with a copy
of these regulations.

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

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

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§ 1.311 Referral of complaint and answer to the ALJ.

(6) Such other matters as the ALJ
deems appropriate.

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

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

§ 1.312 Procedure where respondent
does not request a hearing.
(a) If the respondent files an answer
with the reviewing official within the
time period prescribed in § 1.309(a) of
this part but does not request a hearing, the ALJ, upon receipt of the complaint, proof of service, and answer,
shall notify the respondent that a decision will be issued under this section
and shall afford the parties 30 days in
which to submit documentary evidence
or other relevant written information,
including briefs or other written arguments. At the end of that period, the
ALJ shall issue a decision based upon
the pleadings and the evidence submitted, or if no evidence has been submitted, upon the pleadings. The burden
of proof shall be as set forth in § 1.329 of
this part.
(b) When a decision is to be issued
under this section, the ALJ shall have
discretion to permit, allow, limit, or
otherwise control discovery to the extent set forth under §§ 1.322 thru 1.324 of
this part.

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

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

§ 1.316 Ex parte contacts.
Except to the extent required for the
disposition of ex parte matters as authorized by law, the ALJ shall not consult or be consulted by any person or
party (except employees of the ALJ’s
office) on any matter in issue, unless
on notice and opportunity for all parties to participate.
§ 1.317 Disqualification of reviewing
official or ALJ.
(a) A reviewing official or ALJ in a
particular case may disqualify himself
or herself at any time.

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(b) A party may file with the ALJ a
motion for disqualification of a reviewing official or an ALJ. Such motion
shall be accompanied by an affidavit
alleging personal bias or other reason
for disqualification.
(c) Such motion and affidavit shall be
filed promptly upon the party’s discovery of reasons requiring disqualification, or such objections shall be
deemed waived.
(d) Such affidavit shall state specific
facts that support the party’s belief
that personal bias or other reason for
disqualification exists and the time
and circumstances of the party’s discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in
good faith.
(e) Upon the filing of such a motion
and affidavit, the ALJ shall proceed no
further in the case until he or she resolves the matter of disqualification in
accordance with paragraph (f).
(f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ
shall dismiss the complaint without
prejudice.
(2) If the ALJ disqualifies himself or
herself, the case shall be reassigned
promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the authority head may determine the matter only as part of his or
her review of the initial decision upon
appeal, if any.

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

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

§ 1.320 Prehearing conferences.
(a) The ALJ may schedule a prehearing conference at a reasonable
time in advance of the hearing and
may schedule additional prehearing
conferences as appropriate.
(b) The ALJ may conduct any prehearing conference in person or by telephone.

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(c) The ALJ may use prehearing conferences to discuss the following matters:
(1) Simplification of the issues;
(2) The necessity or desirability of
amendments to the pleadings, including the need for a more definite statement;
(3) Stipulations, admissions of fact or
as to the contents and authenticity of
documents;
(4) Whether the parties can agree to
submission of the case on a stipulated
record;
(5) Whether a party chooses to waive
appearance at an oral hearing and to
submit only documentary evidence
(subject to the objection of other parties) and written argument.
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange
of witness lists and of proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend
to expedite the fair and just disposition
of the proceedings.
(d) The ALJ shall issue an order containing all matters agreed upon by the
parties or ordered by the ALJ at a prehearing conference.

containing exculpatory information
must be disclosed.
(c) The notice sent to the Attorney
General from the reviewing official as
described in § 1.305 of this part is not
discoverable under any circumstances.
(d) The respondent may file a motion
to compel disclosure of the documents
subject to the provisions of this section. Such a motion may be filed with
the ALJ following the filing of the answer pursuant to § 1.309 of this part.
§ 1.322 Discovery.
(a) The following types of discovery
are authorized:
(1) Requests for production, inspection and photocopying of documents;
(2) Requests for admission of the authenticity of any relevant document or
the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) The ALJ shall set the schedule for
discovery.
(c) Requests for production of documents and requests for admission.
(1) A party may serve requests for
production of documents or requests
for admission on another party.
(2) If a party served with such requests fails to respond timely, the requesting party may file a motion to
compel production or deem admissions,
as appropriate.
(3) A party served with such a request
may file a motion for a protective
order before the date on which a response to the discovery request is due,
stating reasons why discovery should
be limited or should not be required.
(4) Within 15 days of service of a motion to compel or to deem matter admitted or a motion for a protective
order, the opposing party may file a response.
(5) The ALJ may grant a motion to
compel production or deem matter admitted or may deny a motion for a protective order only if he finds that—
(i) The discovery sought is necessary
for the expeditious, fair, and reasonable consideration of the issues;
(ii) It is not unduly costly or burdensome;
(iii) It will not unduly delay the proceeding; and
(iv) The information sought is not
privileged.

§ 1.321 Disclosure of documents.
(a) Upon written request to the reviewing official, the respondent may
review any relevant and material documents, transcripts, records, and other
materials that relate to the allegations
set out in the complaint and upon
which the findings and conclusions of
the
investigating
official
under
§ 1.304(f) of this part are based unless
such documents are privileged under
Federal law. Upon payment of fees for
duplication, the defendant may obtain
copies of such documents.
(b) Upon written request to the reviewing official, the respondent also
may obtain a copy of all exculpatory
information in the possession of the reviewing official or investigating official relating to the allegations in the
complaint, even if it is contained in a
document that would otherwise be
privileged. If the document would otherwise be privileged, only that portion

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§ 1.323
(7) That a deposition after being
sealed be opened only by order of the
ALJ;
(8) That a trade secret or other confidential research, development, commercial information or facts pertaining
to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously
file specified documents or information
enclosed in sealed envelopes to be
opened as directed by the ALJ.
(g) Exchange of witness lists, statements, and exhibits. Witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing
exhibits, including copies of any written statements or depositions that a
party intends to offer in lieu of live
testimony in accordance with § 1.331(b)
of this part, shall be exchanged at least
15 days in advance of the hearing, or at
such other time as may be set by the
ALJ. A witness whose name does not
appear on the witness list shall not be
permitted to testify and no exhibit not
provided to the opposing party as provided above shall be admitted into evidence at the hearing absent a showing
of good cause.

(d) Depositions and written interrogatories. Depositions and written interrogatories are permitted only on the
order of the ALJ.
(1) A party seeking to use depositions
or written interrogatories may file a
motion with the ALJ.
(2) A party and/or the potential deponent may file an opposition to the motion or a motion for a protective order
within 10 days of service of the motion.
(3) The ALJ may grant a motion allowing the taking of a deposition or
the use of interrogatories or may deny
a motion for a protective order only if
he finds that the moving party has satisfied the standards set forth in paragraph (c)(5) of this section and has
shown that the information sought
cannot be obtained by any other
means.
(4) If the ALJ grants a motion permitting a deposition, he shall issue a
subpoena, which may also require the
witness to produce documents. The
party seeking to depose shall serve the
subpoena in the manner prescribed in
§ 1.308 of this part.
(5) The party seeking to depose shall
provide for the taking of a verbatim
transcript of the deposition, which it
shall make available to all other parties for inspection and copying.
(e) Costs. The costs of discovery shall
be borne by the party seeking discovery.
(f) In issuing a protective order, the
ALJ may make any order which justice
requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had
only on specified terms and conditions,
including a designation of the time or
place;
(3) That the discovery may be had
only through a method of discovery
other than that requested;
(4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
(5) That discovery be conducted with
no one present except persons designated by the ALJ;
(6) That the contents of discovery or
evidence be sealed;

§ 1.323 Subpoenas for attendance at
hearing.
(a) A party wishing to procure the
appearance and testimony at the hearing of any individual may request that
the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an individual
may also require the individual to
produce documents at such hearing.
(c) A party who desires the issuance
of a subpoena shall file with the ALJ a
written request not less than 15 days
before the date fixed for the hearing
unless otherwise allowed by the ALJ
for good cause shown. Such request
shall specify any documents to be produced and shall designate the witnesses
whose attendance is sought to be required and describe their addresses and
locations with sufficient particularity
to permit such witnesses to be found.
The subpoena shall specify the time
and place at which the witness is to appear and any documents the witness is

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that the document was sent by certified or registered mail.
(b) Service. A party filing a document
with the ALJ shall, at the time of filing, serve a copy of such document on
every other party. Service upon any
party of any document other than the
complaint or notice of hearing shall be
made by delivering or mailing a copy
to the party’s last known address.
When a party is represented by a representative, service shall be made upon
such representative in lieu of the actual party.
(c) Proof of service. A certificate of
the person serving the document by
personal delivery or by mail, setting
forth the manner of service, shall be
proof of service.

to produce. Such a request may be
made ex parte.
(d) When the ALJ issues a subpoena
under this section, the party who requested such subpoena shall serve all
other parties with notice of the names
and addresses of the individuals subpoenaed and specify any documents required to be produced.
(e) A subpoena shall be served by delivery, or by registered mail or by certified mail in the manner prescribed in
§ 1.308 of this part. A subpoena upon a
party or upon an individual under the
control of a party may be served by
first class mail.
(f) A party or the individual to whom
the subpoena is directed may file a motion to quash the subpoena within five
days of service or on or before the time
specified in the subpoena for compliance if it is less than five days after
service.

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

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§ 1.324 Fees.
The party requesting a subpoena
shall pay the cost of the fees and mileage of any witness subpoenaed in the
amounts that would be payable to a
witness in a proceeding in United
States District Court. A check for witness fees and mileage shall accompany
the subpoena when served, except that
when a subpoena is issued on behalf of
USDA, a check for witness fees and
mileage need not accompany the subpoena.
§ 1.325 Form, filing and service of papers.
(a) Form. (1) The original and two
copies of all papers in a proceeding
conducted under this subpart shall be
filed with the ALJ assigned to the case.
(2) Every pleading and paper filed in
the proceeding shall contain a caption
setting forth the title of the action, the
case number assigned by the ALJ, and
a designation of the paper (e.g., motion
to quash subpoena).
(3) Every pleading and paper shall be
signed by and shall contain the address
and telephone number of the representative for the party or the person on
whose behalf the paper was filed.
(4) Papers are considered filed when
they are mailed. Date of mailing may
be established by a certificate from the
party or his representative or by proof

§ 1.327 Motions.
(a) Motions shall state the relief
sought, the authority relied upon, and
the facts alleged, and shall be filed
with the ALJ and served on all other
parties.
(b) Except for motions made during a
prehearing conference or at the hearing, all motions shall be in writing.
The ALJ may require that oral motions be reduced to writing.
(c) The ALJ may require written motions to be accompanied by supporting
memorandums.
(d) Within 15 days after a written motion is served, or such other time as
may be fixed by the ALJ, any party
may file a response to such motion.

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§ 1.331

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(e) The ALJ may not grant a written
motion prior to expiration of the time
for filing responses thereto, except
upon consent of the parties or following a hearing, but may overrule or
deny such motion without awaiting a
response.
(f) The ALJ shall make every reasonable effort to dispose of all outstanding
motions prior to the beginning of the
hearing.

(e) The ALJ may refuse to consider
any motion or other action which is
not filed in a timely fashion.
§ 1.329 The hearing and burden of
proof.
(a) The ALJ shall conduct a hearing
on the record in order to determine
whether the respondent is liable for a
civil penalty or assessment under
§ 1.303 of this part, and if so, the appropriate amount of any such civil penalty
or assessment considering any aggravating or mitigating factors.
(b) The USDA shall prove respondent’s liability and any aggravating factors by a preponderance of the evidence.
(c) The respondent shall prove any affirmative defenses and any mitigating
factors by a preponderance of the evidence.
(d) The hearing shall be open to the
public unless otherwise ordered by the
ALJ for good cause shown.

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

§ 1.330 Location of hearing.
(a) The hearing may be held—
(1) In any judicial district of the
United States in which the respondent
resides or transacts business;
(2) In any judicial district of the
United States in which the claim or
statement in issue was made; or
(3) In such other place as may be
agreed upon by the respondent and the
ALJ.
(b) Each party shall have the opportunity to present argument with respect to the location of the hearing.
(c) The ALJ shall issue an order to
the parties designating the time and
the place of the hearing.
§ 1.331 Witnesses.
(a) Except as provided in paragraph
(b) of this section, testimony at the
hearing shall be given orally by witnesses under oath or affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the form of
a written statement or deposition. Any
such written statement must be provided to all other parties along with
the last known address of such witness,
in a manner which allows sufficient
time for other parties to subpoena such
witness for cross-examination at the
hearing. Prior written statements of

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witnesses proposed to testify at the
hearing and deposition transcripts
shall be exchanged as provided in
§ 1.322(g) of this part.
(c) The ALJ shall permit the parties
to conduct such cross-examination as
may be required for a full and true disclosure of the facts.
(d) A witness may be cross-examined
on any matter relevant to the proceeding without regard to the scope of
his or her direct examination.
(e) Upon motion of any party, the
ALJ shall order witnesses excluded so
that they cannot hear the testimony of
other witnesses. This rule does not authorize exclusion of—
(1) A party who is an individual;
(2) In the case of a party that is not
an individual, an officer or employee of
the party designated by the representative; or
(3) An individual whose presence is
shown by a party to be essential to the
presentation of its case, including an
individual employed by the USDA engaged in assisting the representative
for USDA.

open to examination by all parties unless otherwise ordered by the ALJ pursuant to § 1.322 of this part.
§ 1.333 The record.
(a) The hearing will be recorded and
transcribed. Transcripts may be obtained from the reporter by anyone at
a cost not to exceed the actual cost of
duplication.
(b) The transcript of testimony, exhibits and other evidence admitted at
the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by
the ALJ and the judicial officer.
(c) The record may be inspected and
copied (upon payment of a reasonable
fee) by anyone unless otherwise ordered by the ALJ.
§ 1.334 Post-hearing briefs.
The ALJ may require the parties to
file post-hearing briefs. In any event,
any party may file a post-hearing brief.
The ALJ shall fix the time for filing
such briefs, not to exceed 60 days from
the date the parties receive the transcript of the hearing or, if applicable,
the stipulated record. Such briefs may
be accompanied by proposed findings of
fact and conclusions of law. The ALJ
may permit the parties to file reply
briefs.

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

§ 1.335 Determining the amount of
penalties and assessments.
(a) In determining an appropriate
amount of civil penalties and assessments, the ALJ and the judicial officer,
upon appeal, should evaluate any circumstances that mitigate or aggravate
the violation and should articulate in
their opinions the reasons that support
the penalties and assessments they impose. Because of the intangible costs of
fraud, the expense of investigating
such conduct, and the need to deter
others who might be similarly tempted, ordinarily double damages and a
significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those that
may influence the ALJ and the judicial
officer in determining the amount of
penalties and assessments to impose
with respect to the misconduct (i.e.,
the false, fictitious, or fraudulent

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Office of the Secretary, USDA

§ 1.337

claims or statements) charged in the
complaint:
(1) The number of false, fictitious, or
fraudulent claims or statements;
(2) The time period over which such
claims or statements were made;
(3) The degree of the respondent’s
culpability with respect to the misconduct;
(4) The amount of money or the value
of the property, services, or benefit
falsely claimed;
(5) The value of the Government’s actual loss as a result of the misconduct,
including foreseeable consequential
damages and the costs of investigation;
(6) The relationship of the amount
imposed as civil penalties to the
amount of the Government’s loss;
(7) The potential or actual impact of
the misconduct upon national defense,
public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
(8) Whether the respondent has engaged in a pattern of the same or similar misconduct;
(9) Whether the respondent attempted to conceal the misconduct;
(10) The degree to which the respondent has involved others in the misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the respondent, the extent to which the respondent’s practices fostered or attempted to preclude such misconduct;
(12) Whether the respondent cooperated in or obstructed an investigation
of the misconduct;
(13) Whether the respondent assisted
in identifying and prosecuting other
wrongdoers;
(14) The complexity of the program
or transaction, and the degree of the
respondent’s sophistication with respect to it, including the extent of the
respondent’s prior participation in the
program or in similar transactions;
(15) Whether the respondent has been
found, in any criminal, civil, or administrative proceeding to have engaged in
similar misconduct or to have dealt
dishonestly with the government of the
United States or of a State, directly or
indirectly; and

(16) The need to deter the respondent
and others from any engaging in the
same or similar misconduct.
(c) Nothing in this section shall be
construed to limit the ALJ or the judicial officer from considering any other
factors that in any given case may
mitigate or aggravate the acts for
which penalties and assessments are
imposed.
§ 1.336

Initial decision of the ALJ.

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

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motion for reconsideration of the initial decision within 20 days of receipt
of the initial decision. If service was
made by mail, receipt will be presumed
to be five days from the date of mailing
in the absence of contrary proof.
(b) Every such motion must set forth
the matters claimed to have been erroneously decided and the nature of the
alleged errors. Such motion shall be
accompanied by a supporting brief.
(c) Responses to such motions shall
be allowed only upon request of the
ALJ.
(d) No party may file a motion for reconsideration of an initial decision
that has been revised in response to a
previous motion for reconsideration.
(e) The ALJ may dispose of a motion
for reconsideration by denying it or by
issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial decision shall
constitute the final decision of the authority head and shall be final and
binding on the parties 30 days after the
ALJ denies the motion, unless the initial decision is timely appealed to the
judicial officer in accordance with
§ 1.338 of this part.
(g) If the ALJ issues a revised initial
decision, that decision shall constitute
the final decision of the authority head
and shall be final and binding on the
parties 30 days after it is issued, unless
it is timely appealed to the judicial officer in accordance with § 1.338 of this
part.

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§ 1.338

lution of the motion for reconsideration.
(2) If a motion for reconsideration is
timely filed, a notice of appeal may be
filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies.
(c) The judicial officer may extend
the initial 30-day period during which a
notice of appeal may be filed for an additional 30 days if the respondent files
a request for an extension within the
initial 30-day period and shows good
cause.
(d) If the respondent timely files a
notice of appeal with the judicial officer and the time for filing motions for
reconsideration under § 1.337 of this
part has expired, the ALJ will forward
the record of the proceeding to the judicial officer.
(e) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(f) The representative for USDA may
file a brief in opposition to exceptions
within 30 days of receiving the brief
proposing exceptions.
(g) There is no right to appear personally before the judicial officer.
(h) There is no right to interlocutory
appeal of rulings by the ALJ.
(i) The judicial officer, in reviewing
the decision, shall not consider any objection that was not raised before the
ALJ unless a demonstration is made
that
extraordinary
circumstances
caused the failure to raise the objection.
(j) If any party demonstrates to the
satisfaction of the judicial officer that
additional evidence not presented to
the ALJ is material and that there
were reasonable grounds for the failure
to present such evidence to the ALJ,
the judicial officer shall remand the
matter to the ALJ for consideration of
such additional evidence.
(k) The judicial officer may affirm,
reduce, reverse, compromise, remand
or settle any penalty or assessment determined by the ALJ.
(l) The judicial officer shall promptly
serve each party to the appeal with a
copy of the decision of the judicial officer and a statement describing the respondent’s right to seek judicial review.

Appeal to the judicial officer.

(a) Any respondent who has filed a
timely answer and who is determined
in an initial decision to be liable for a
civil penalty or assessment may appeal
such decision to the Secretary by filing
a notice of appeal with the judicial officer in accordance with this section.
The judicial officer of USDA shall consider all appeals to the Secretary under
this subpart and render a decision on
behalf of the Secretary.
(b)(1) A notice of appeal may be filed
at any time within 30 days after the
ALJ issues an initial decision. However, if another party files a motion for
reconsideration under § 1.337 of this
part, consideration of the appeal shall
be stayed automatically pending reso-

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§ 1.345
tion to the request, the ALJ may grant
the stay without requiring respondent
to give a bond or other security.
(d) The ALJ may grant a contested
request where justice so requires and
to the extent necessary to prevent irreparable harm but only upon the respondent’s giving of a bond or other
adequate security. The ALJ shall rule
promptly on a contested request for
stay.
(e) A decision of the ALJ denying respondent’s request for a stay shall constitute final agency action.

(m) Unless a petition for review is
filed as provided in 31 U.S.C. 3805 after
a respondent has exhausted all administrative remedies under this part and
within 60 days after the date on which
the judicial officer serves the respondent with a copy of the judicial officer’s
decision, a determination that a respondent is liable under § 1.303 of this
part is final and is not subject to judicial review.

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§ 1.339 Stays ordered by the Department of Justice.
(a) If at any time the Attorney General or an Assistant Attorney General
designated by the Attorney General
transmits to the Secretary a written
finding that continuation of the administrative process described in this subpart with respect to a claim or statement may adversely affect any pending
or potential criminal or civil action related to such claim or statement, the
judicial officer shall stay the process
immediately.
(b) If the judicial officer stays the administrative process in accordance
with paragraph (a) of this section, the
judicial officer may order the process
resumed only upon receipt of the written authorization of the Attorney General.

§ 1.341

Judicial review.

Section 3805 of title 31, United States
Code, authorizes judicial review by an
appropriate United States District
Court of a final decision of the judicial
officer imposing penalties or assessments under this part and specifies the
procedures for such review.
§ 1.342 Collection of civil penalties and
assessments.
Sections 3806 and 3808(b) of title 31,
United States Code, authorize actions
for collection of civil penalties and assessments imposed under this subpart
and specify the procedures for such actions.
§ 1.343

§ 1.340 Stay pending appeal.
(a) A decision is stayed automatically pending disposition of a motion
for reconsideration or of an appeal to
the judicial officer.
(b) The respondent may file with the
ALJ a request for stay of the effective
date of a decision of the judicial officer
pending judicial review. Such request
shall state the grounds upon which respondent relies in requesting the stay,
together with a copy of the notice(s) of
appeal filed by respondent seeking review of a decision of the judicial officer. The filing of such a request shall
automatically stay the effective date
of the decision of the judicial officer
until the ALJ rules upon the request.
(c) The representative for the USDA
may file an opposition to respondent’s
request for a stay within 10 days of receipt of the request. If the representative for the USDA fails to file such an
opposition within the allotted time, or
indicates that the USDA has no objec-

Right to administrative offset.

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

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All amounts collected pursuant to
this subpart shall be deposited as miscellaneous receipts in the Treasury of
the United States.
§ 1.345

Settlement.

(a) A respondent may make offers of
compromise of settlement at any time.

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(b) The reviewing official has the exclusive authority to compromise or
settle a case under this subpart at any
time after the date on which the reviewing official is permitted to issue a
complaint and before the date on which
the ALJ issues a decision.
(c) The judicial officer has exclusive
authority to compromise or settle a
case under this subpart at any time
after the date on which the ALJ issues
a decision, except during the pendency
of any appeal under § 1.341 of this part
or during the pendency of any action to
collect penalties and assessments
under § 1.342 of this part.
(d) The Attorney General has exclusive authority to compromise or settle
a case under this subpart during the
pendency of any appeal under § 1.341 of
this part, or any action to recover penalties and assessments under § 1.342 of
this part.
(e) The investigating official may
recommend settlement terms to the reviewing official, the judicial officer, or
the Attorney General, as appropriate.
The reviewing official may recommend
settlement terms to the judicial officer, or the Attorney General, as appropriate.
(f) Any settlement must be in writing.
§ 1.346

§ 1.410 Meaning of words.
As used in these procedures, words in
the singular form shall be deemed to
import the plural, and vice versa, as
the circumstance may require.
§ 1.411 Definitions.
As used in these procedures, the
terms as defined in the Forest Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. 620 et seq.
(Act) and in the regulations issued
thereunder, shall apply with equal
force and effect. In addition and except
as may be provided otherwise in these
procedures:
(a) Applicant or Sourcing area applicant means a person who submits a
sourcing area application pursuant to
these rules, or a person who sourcing
area is subject to formal review pursuant to 36 CFR 223.191(e).
(b) Decision means:
(1) The Judge’s initial decision made
in accordance with the provisions of 5
U.S.C. 554, 556, 557, and 16 U.S.C. 620 et
seq. and 36 CFR 223.190 and 223.191(e),
which includes the Judge’s findings and
conclusions and the reasons or basis
therefore on all material issues of fact,
law or discretion, orders and rulings on
proposed findings, conclusions and orders submitted by the parties; and
(2) The decision and order by the Judicial officer upon appeal of the
Judge’s decision.
(c) Determination is synonymous with
decision.
(d) Hearing means that part of the
proceeding which may be requested by
a party of record, and which involves
the submission of additional evidence
before the Administrative Law Judge
for the record in the proceeding.
(e) Hearing Clerk means the Office of
the Hearing Clerk, United States Department of Agriculture, Washington,
D.C. 20250.
(f) Judge means any Administrative
Law Judge Appointed pursuant to 5
U.S.C. 3105 and assigned to the proceeding involved.
(g) Judicial Officer means an official
of the United States Department of Agriculture delegated authority by the
Secretary of Agriculture, pursuant to
the Act of April 4, 1940 (7 U.S.C. 450c–
459g) and Reorganization Plan No. 2 of
1953 (5 U.S.C. 1988 ed., appendix, p.

Limitation.

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

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Subpart M—Rules of Practice
Governing Adjudication of
Sourcing Area Applications
and
Formal
Review
of
Sourcing Areas Pursuant to
the Forest Resources Conservation and Shortage Relief
Act of 1990 (16 U.S.C. 620 et
seq.)
AUTHORITY: 5 U.S.C. 556 and 16 U.S.C. 620 et
seq.
SOURCE: 59 FR 8824, Feb. 24, 1994, unless
otherwise noted.

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§ 1.413

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1280), to perform the function involved
(7 CFR 235(a)), or the Secretary of Agriculture, if the authority so delegated is
exercised by the Secretary.
(h) Party of record or Party is a party
to the proceeding to determine approval or disapproval of a sourcing area
application, including the proceeding
for formal review of a sourcing area.
The sourcing area applicant and persons who submit written comments on
the sourcing area application at issue
during the 30 calendar day comment
period, including the Regional Forester, are the parties of record. For
purposes of a formal review of a
sourcing area, the holder of the
sourcing area that is the subject of the
review and persons who submit written
comments on the sourcing area application at issue during the 30 calendar
day comment period after institution
of the formal review, including the Regional Forester, are the parties of
record.
(i) Sourcing Area Application means
the application by which a person applies for a sourcing area or the application by which a sourcing area holder
applies for a formal review of a
sourcing area.

any submissions received during the informal review process, within 5 working days of the meeting convened during the informal review (36 CFR
223.191)e)). Agreement is reached when
all persons attending the meeting convened by the Regional Forester to resolve differences as to the proper
sourcing area, including the Regional
Forester, sign the document describing
the sourcing area.
(ii) Formal review. Institution by a
sourcing area holder of a formal review
of the sourcing area occurs if the informal review process does not result in
agreement among the parties, and the
sourcing
area
holder
submits
a
sourcing area application to the Office
of the Administrative Law Judges, pursuant to 36 CFR 223.190, within 10 working days after the meeting convened by
the Regional Forester as part of the informal process.
(2) Initiation of review by agency. If
the Forest Service wishes to begin a review of a sourcing area, the Regional
Forester of the region in which the
manufacturing facility being sourced is
located shall begin an informal review,
pursuant to 36 CFR 223.191(e). If no
agreement is reached in the informal
review process, the Regional Forester
of the region in which the manufacturing facility being sourced is located
shall transmit to the Office of Administrative Law Judges any submissions
received during the informal review
process, within 5 working days of the
meeting convened during the informal
review (36 CFR 223.191(e)). Agreement is
reached when all persons attending the
meeting convened by the Regional Forester to resolve differences as to the
proper sourcing area, including the Regional Forester, sign the document describing the sourcing area. Institution
by the Forest Service of a formal review of a sourcing area occurs when
the Office of Administrative Law
Judges receives the papers and documents submitted during the informal
review process.

§ 1.412 Institution of proceedings.
(a) Sourcing area applications. The
proceeding for determining sourcing
areas shall be instituted by receipt of a
sourcing area application by the Office
of Administrative Law Judges, pursuant to 36 CFR 223.190.
(b) Review of sourcing areas. Informal
review of a sourcing area precedes institution of a formal review as follows:
(1) Request by Sourcing area holder. A
sourcing area holder who wishes to
begin a review of a sourcing area shall
send a written request for a review to
the Regional Forester of the region in
which the manufacturing facility being
sourced is located. The request shall
state the reason for the request.
(i) Informal review. The Regional Forester shall begin an informal review,
pursuant to 36 CFR 223.191(e), based on
the written request. If no agreement is
reached in the informal review process,
the Regional Forester of the region in
which the manufacturing facility being
sourced is located shall transmit to the
Office of Administrative Law Judges

§ 1.413 Submission of a sourcing area
application.
A sourcing area applicant shall send
the application to the Office of Administrative Law Judges and shall, simultaneously, send a copy of the sourcing

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7 CFR Subtitle A (1–1–15 Edition)

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

the Hearing Clerk of the date of the
publication and the notice. Additional
notification will be made through
agency mailing lists. Notification shall
include the docket number, the name
of the Judge to whom the case has been
assigned and the mailing address of the
Judge. In the case of a sourcing area
review, notification will also state the
reason for the review.
§ 1.416

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

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Comment period.

Written comments on a sourcing area
application or on a formal review of a
sourcing area shall include the docket
number and may be submitted to the
Judge for 30 calendar days following
publication of the notice. Persons submitting comments shall send a copy of
the comments to the Regional Forester
of the region in which the manufacturing facility being sourced is located.
All comments must be received by the
Judge and by the Regional Forester by
the 30th day of the comment period.
§ 1.417

Review period.

(a) Review of comments. The sourcing
area applicant, the sourcing area holder whose sourcing area is the subject of
a formal review and other parties who
submitted written comments will be
allowed 10 working days from the close
of the comment period to review the
written comments at the Regional Forester’s office during regular business
hours.
(b) Recommendation to Judge to approve or disapprove a sourcing area application. During the 10 working day review period, parties who have submitted written comments on an application or on a formal review of a
sourcing area may submit a written
recommendation to the Judge, including an analysis of the facts and law as
to why the Judge should approve or
disapprove that application. A sourcing
area applicant whose sourcing area application is the subject of the proceeding, and a sourcing area holder
whose sourcing area is the subject of a
formal review, may also submit a written recommendation to the Judge. The
recommendation must be postmarked
no later than the 10th working day of
the review period.

§ 1.415 Notification of proceedings.
The Regional Forester of the region
in which the manufacturing facility
being sourced is located shall notify
prospective parties of the sourcing area
application and/or the formal review of
a sourcing area after receipt of the
docket number and the name of the
Judge to whom the proceeding has been
assigned, pursuant to § 1.414 of these
rules. Notification will consist of publication of a notice in newspapers of general circulation in the area included in
the sourcing area application. The Regional Forester shall promptly notify

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§ 1.420

(c) Request for a hearing. The sourcing
area applicant, the sourcing area holder whose sourcing area is the subject of
a formal review and persons who submitted written comments, or the attorney of record for a party in the proceeding, may review the comments and
request a hearing within 10 working
days after the comment period, pursuant to 36 CFR 233.190(h)(2). The request
must be postmarked no later than the
10th working day of the review period.
An attorney may file an appearance of
record prior to the scheduled hearing.
The request for a hearing shall be filed
with the Judge. The hearing is for the
purpose of supplementing the written
record submitted prior to the hearing.
The written record submitted prior to
the hearing consists of papers and documents submitted during the 30 calendar day comment period, the 10
working day review period, and any
motions submitted before the hearing.
For purposes of a formal review of a
sourcing area, the written record also
consists of the papers and documents
submitted during the informal review.
(1) Contents of the notice of hearing.
The Judge shall issue a notice of hearing regarding a particular sourcing
area application or regarding formal
review of a sourcing area application or
regarding formal review of a sourcing
area to all parties of record for that application or formal review. The notice
of hearing shall contain a reference to
the authority under which the sourcing
area is proposed or formally reviewed;
shall define the scope of the hearing;
shall contain a reference to the
sourcing area that is the subject of the
hearing; and shall state the date, time
and place of such hearing; and shall
state the date, time and place of such
hearing; which shall be set with due regard for the necessity and convenience
of the parties of record or their representatives. The Judge shall schedule
a hearing no later than 21 calendar
days after the 10 working day period
for reviewing written comments ends.
The Judge may consolidate requests
for a hearing regarding the same application.
(2) Giving notice of hearing. The notice
of hearing shall be served upon the parties of record for the sourcing area application at issue by the Hearing Clerk.

§ 1.418 Procedure upon no request for
hearing.
If no hearing is requested by a party
of record, the Judge shall issue an initial decision based on the written
record and without further procedure
or hearing. If no hearing is requested,
the written record consists of papers
and documents submitted during the
30-day comment period, the 10-day review period, and includes motions submitted before the Judge issues an initial decision. For purposes of a formal
review of a sourcing area, the written
record also consists of the papers and
documents submitted during the informal review. Copies of the decision shall
be served by the Hearing Clerk upon
each of the parties of record.
§ 1.419 Amendment of a sourcing area
application.
The sourcing area applicant may
move to amend the sourcing area application with clarifying and technical
amendments at any time prior to the
Judge’s initial determination if there
is no hearing, or prior to the close of
the hearing if there is a hearing.
§ 1.420 Consent recommendation.
Any time before the Judge files the
decision, the parties of record may
enter a consent recommendation. Such
consent recommendation shall be filed
with the Hearing Clerk, signed by the
parties with appropriate space for signature by the Judge. The consent recommendation shall contain an admission of the jurisdictional facts, the factual and legal basis for the recommended sourcing area, the consent
to the issuance of the recommended decision as the final decision of the agency without further procedure and such
other admissions or statements as may
be recommended by the parties. The
Judge shall review the recommendation to determine whether such recommendation conforms with the Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et
seq.), 36 CFR 223.190, 36 CFR 223.191(e)
and these procedures. If the recommendation conforms to the aforementioned Act, regulations, and procedures, the Judge may enter such decision without further procedure, unless
an error is apparent on the face of the

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§ 1.421

7 CFR Subtitle A (1–1–15 Edition)
(v) The exchange of copies of proposed exhibits;
(vi) The identification of documents
or matters of which official notice may
be requested;
(vii) A schedule to be followed by the
parties for completion of the actions
decided at the conference; and
(viii) Such other matters as may expedite and aid in the disposition of the
proceeding.
(b) Reporting. A prehearing conference will not be stenographically reported unless so directed by the Judge.
(c) Action in lieu of personal attendance at a conference. In the event the
Judge concludes that personal attendance by the Judge and the parties or
counsel at a prehearing conference is
unwarranted or impracticable, but determines that a conference would expedite the proceeding, the Judge may
conduct such conference by telephone
or correspondence.
(d) Order. Actions taken as a result of
a conference shall be reduced to an appropriate written order, unless the
Judge concludes that a stenographic
report shall suffice, or if the Judge
elects to make a statement on the
record at the hearing summarizing the
actions taken.

document. If the Judge enters the decision, such decision shall have the same
force and effect as a decision issued
after full hearing and shall become
final upon issuance to become effective
in accordance with the terms of the decision.

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§ 1.421 Prehearing
procedures.

conferences

and

(a) Purpose and scope. (1) Upon motion of a party of record or upon the
Judge’s own motion, the Judge may direct the parties or their counsel to attend a conference at any reasonable
time, prior to or during the course of
the hearing, when the Judge finds that
the proceeding would be expedited by a
prehearing conference. Reasonable notice of the time and place of the conference shall be given. The Judge may
order each of the parties to furnish at
or subsequent to the conference any or
all of the following:
(i) An outline of a party’s position;
(ii) The facts upon which the party
will rely;
(iii) The legal theories upon which
the party will rely;
(iv) Copies of or a list of documents
which the party anticipates introducing at the hearing; and
(v) A list of anticipated witnesses
who will testify on behalf of the party.
At the discretion of the party furnishing such list of witnesses, the
names of the witnesses need not be furnished if they are otherwise identified
in some meaningful way such as a
short statement of the type of evidence
they will offer.
(2) The Judge shall not order any of
the foregoing procedures that a party
can show is inappropriate or unwarranted under the circumstances of the
particular determination.
(3) At the conference, the following
matters shall be considered:
(i) The simplification of issues;
(ii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of
documents, which will avoid unnecessary proof;
(iii) The limitation of the number of
expert or other witnesses;
(iv) Negotiation, compromise, or settlement of issues;

§ 1.422 Conduct of the hearing.
(a) Time and place. The hearing shall
be held at the time and place fixed in
the notice of hearing. If any change in
the time or place of the hearing is
made, the Judge shall file with the
Hearing Clerk a notice of such change,
which notice shall be served upon the
parties, unless it is made during the
course of an oral script, or actual notice is given to the parties.
(b) Appearances. The parties may appear in person or by attorney of record
in the proceeding. Any party who desires to be heard in person shall, before
proceeding to testify, state his name,
address, and occupation. If any such
person is appearing through counsel,
such person or such counsel shall, before proceeding to testify or otherwise
to participate in the hearing, state for
the record the authority to act as such
counsel or representative, and the
names, addresses, and occupations of
such person and such counsel. Any such
person or such counsel shall give such

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§ 1.422

other information respecting his appearance as the Judge may request.
Any person who appears as counsel
must conform to the standards of ethical conduct required of practitioners
before the courts of the United States.
(c) Failure to appear. A party of
record who, after being duly notified,
fails to appear at the hearing without
good cause, shall be deemed to have
waived the right to an oral hearing in
the proceeding. Failure to appear at a
hearing shall not be deemed to be a
waiver of the right to be served with a
copy of the Judge’s decision.
(d) Order of proceeding. The Judge
shall determine the order in which the
parties shall proceed.
(e) Evidence—(1) In general. (i) The
testimony of witnesses at a hearing
shall be on oath or affirmation and
shall be subject to cross-examination.
Cross-examination shall be permitted
to the extent required for a full and
true disclosure of the facts. The Judge
may require that testimony on one
issue raised by numerous parties be
heard at one time.
(ii) Upon a finding of good cause, the
Judge may order that any witness be
examined separately and apart from all
other witnesses except those who may
be parties to the proceeding.
(iii) After a witness has testified on
direct examination, any other party
may request and obtain the production
of any statement, or part thereof, of
such witness in the possession of the
party who called the witness, which relates to the subject matter as to which
the witness has testified. Such production shall be made according to the
procedures and subject to the definitions and limitations prescribed in the
Jencks Act (18 U.S.C. 3500).
(iv) Evidence which is immaterial, or
unduly repetitious, or which is not of
the sort upon which responsible persons are accustomed to rely, shall be
excluded insofar as practicable.
(2) Objections. (i) If a party objects to
the admission of any evidence or to the
limitation of the scope of any examination or cross-examination or to any
other ruling of the Judge, the party
shall state briefly the grounds of such
objection, whereupon an automatic exception will follow if the objection is
overruled by the Judge.

(ii) Only objections made before the
Judge may subsequently be relied upon
in the proceeding.
(3) Depositions. The deposition of any
witness shall be admitted in the manner provided in and subject to the provisions of § 1.228 of these procedures.
(4) Exhibits. Unless the Judge finds
that the furnishing of copies is impracticable, two copies of each exhibit shall
be filed with the Judge. The party submitting the exhibit shall serve on
every other party of record a copy of
the exhibit, pursuant to § 1.427(c) of
these procedures. A true copy of an exhibit may be substituted for the original.
(5) Official records or documents. An official government record or document
or entry therein, if admissible for any
purpose, shall be admissible in evidence without the production of the
person who made or prepared the same,
and shall be prima facie evidence of the
relevant facts stated therein. Such
record or document shall be evidenced
by an official publication thereof or a
copy certified by a person having legal
authority to make such certification.
(6) Official notice. Official notice shall
be taken of such matters as are judicially noted by the courts of the United
States and of any other matter of technical, scientific, or commercial fact of
established character: Provided, That
the parties shall be given adequate notice of matters so noticed, and shall be
given adequate opportunity to show
that such facts are erroneously noticed.
(7) Offer of proof. Whenever evidence
is excluded by the Judge, the party offering such evidence may make an
offer of proof, which shall be included
in the transcript. The offer of proof
shall consist of a brief statement describing the evidence excluded. If the
evidence consists of a brief oral statement, it shall be included in the transcript in toto. If the evidence consists
of an exhibit, it shall be marked for
identification and inserted in the hearing record.
(f) Transcript. Hearings shall be recorded and transcribed verbatim. Transcripts thereof shall be made available
to any person, at actual cost of duplication (5 U.S.C. App. 2, section 11).

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§ 1.423

7 CFR Subtitle A (1–1–15 Edition)
judicial review except a final decision
of the Judicial Officer upon appeal.
(5) The Judicial Officer shall issue a
decision within 10 calendar days of the
receipt of the response to the appeal.

§ 1.423 Post-hearing procedure.
(a) Corrections to transcript. (1) Within
the period of time fixed by the Judge,
any party may file a motion proposing
corrections to the transcript.
(2) Unless a party files such motion
in the manner prescribed, the transcript shall be presumed, except for obvious typographical errors, to be complete.
(3) As soon as practicable after the
close of the hearing and after consideration of any timely objections filed as
to the transcript, the Judge shall issue
an order making any corrections to the
transcript which the Judge finds are
warranted, which corrections shall be
entered onto the original transcript by
the Hearing Clerk (without obscuring
the origianl text).
(b) Proposed findings of fact, conclusions, order, and brief. Prior to the close
of the hearing, each party may submit
for consideration proposed findings of
fact, conclusions, order, and brief in
support thereof. A copy of each such
document filed by a party shall be
served upon each of the other parties.
(c) Judge’s decision. (1) The Judge
may, upon motion of any party or in
his or her own discretion, issue a decision orally at the close of the hearing,
or within 10 calendar days after the
close of the hearing, or within 10 calendar days after submission of the
record, if no hearing is requested.
(2) If the decision is announced orally, a copy thereof, excerpted from the
transcript of the record, shall be furnished to the parties by the Hearing
Clerk. Irrespective of the date such
copy is mailed, the issuance date of the
decision shall be the date the oral decision was announced.
(3) If the decision is in writing, it
shall be filed with the Hearing Clerk
and served upon the parties as provided
in § 1.427.
(4) The Judge’s decision shall become
effective without further proceedings
21 calendar days after the issuance of
the decision, if announced orally at the
hearing, or if the decision is in writing,
21 calendar days after the date of service thereof upon the respondent, unless
there is an appeal to the Judicial Officer by a party to the proceeding pursuant to § 1.426; Provided, however, that no
decision shall be final for purposes of

§ 1.424 Motions and requests.
(a) General. All motions and requests
shall be filed with the Hearing Clerk,
and served upon all the parties except
motions and requests made on the
record during the oral hearing.
(b) Motions entertained. No dispositive
motions, including motions to dismiss
on the pleadings and motions for summary judgment, shall be entertained
unless specifically mentioned herein or
allowed in the discretion of the Judge.
(c) Contents. All written motions and
requests shall state the particular
order, ruling, or action desired and the
grounds therefore.
(d) Response to motions and requests.
Within 5 days after service of any written motion or request, or within such
shorter or longer period as may be
fixed by the Judge, an opposing party
may file a response to the motion or
request. The other party shall have no
right to reply to the response.
§ 1.425 Judges.
(a) Assignment. No Judge shall be assigned to serve in any proceeding who:
(1) Has any pecuniary interest in any
matter or business involved in the proceeding;
(2) Is related within the third degree
by blood or marriage to any party to
the proceeding; or
(3) Has any conflict of interest which
might impair the Judge’s objectivity in
the proceeding.
(b) Disqualification of Judge. (1) Any
party to the proceeding may, by motion made to the Judge, request that
the Judge withdraw from the proceeding because of an alleged disqualifying reason. Such motion shall set
forth with particularity the grounds of
alleged disqualification. The Judge
may then either rule upon or certify
the motion to the Secretary, but not
both.
(2) A Judge shall withdraw from any
proceeding for any reason deemed by
the Judge to be disqualifying.
(c) Powers. Subject to review as provided elsewhere in this part, the Judge,

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§ 1.426

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in any assigned proceeding shall have
power to:
(1) Rule upon motions and requests;
(2) Set the time and place of a prehearing conference and the hearing, adjourn the hearing from time to time,
and change the time and place of hearing;
(3) Administer oaths and affirmations;
(4) Request the presence of and examine witnesses and receive relevant evidence at the hearing;
(5) Take or order the taking of depositions as authorized under these rules;
(6) Admit or exclude evidence;
(7) Hear oral argument on facts or
law,
(8) Do all acts and take all measures
necessary for the maintenance of order,
including the exclusion of contumacious counsel or other persons;
(9) Request additional information
from any party to aid in the Judge’s
determination; and
(10) Take all other actions authorized
under these procedures.
(d) Who may act in the absence of the
Judge. In case of the absence of the
Judge or the Judge’s inability to act,
the powers and duties to be performed
by the Judge under these rules of practice in connection with any assigned
proceeding may, without abatement of
the proceeding unless otherwise directed by the Chief Judge, be assigned
to any other Judge.

upon in support thereof. A brief may be
filed in support of the appeal simultaneously with the petition. A party filing a petition of appeal to the Judicial
Officer, and any brief in support thereof, shall serve the other parties to the
proceeding with a copy of the petition
and supporting brief. The copies of the
petition and supporting brief shall be
served on the parties to the proceeding
with a copy of the petition and supporting brief. The copies of the petition
and supporting brief shall be served on
the parties to the proceeding on the
same day as the petition and supporting brief are filed with the Judicial
Officer.
(b) Response to appeal petition. Within
10 calendar days after the service of a
copy of an appeal petition and any
brief in support thereof, filed by a
party to the proceeding, any other
party may file with the Hearing Clerk
a response in support of or in opposition to the appeal and in such response
any relevant issue, not presented in the
appeal petition, may be raised. A party
filing a response to a petition of appeal
to the Judicial Officer shall serve the
other parties to the proceeding with a
copy of the response. The copies of the
response shall be served on the parties
to the proceeding on the same day as
the response is filed with the Judicial
Officer.
(c) Transmittal of record. Whenever an
appeal of a Judge’s decision is filed and
a response thereto has been filed or
time for filing a response has expired,
the Hearing Clerk shall transmit to the
Judicial Officer the record of the proceeding. Such record shall include: The
pleadings; motions and requests filed
and rulings thereon; the transcript of
the testimony taken at the hearing, together with the exhibits filed in connection therewith; any documents or
papers filed in connection with a prehearing conference; such proposed findings of fact, conclusions, and orders,
and briefs in support thereof, as may
have been filed in connection with the
proceeding; the Judge’s decision; such
exceptions, statements of objections
and briefs in support thereof as may
have been filed in the proceeding; and
the appeal petition, and such briefs in
support thereof and responses thereto

§ 1.426 Appeal to Judicial Officer.
(a) Filing of petition. Within 10 calendar days after receiving service of
the Judge’s decision, a party who disagrees with the decision, or any part
thereof, or any ruling by the Judge or
any alleged deprivation of rights, may
appeal such decision to the Judicial Officer by filing an appeal petition with
the Hearing Clerk. As provided in
§ 1.422(e)(2), objections regarding evidence or a limitation regarding examination or cross-examination or other
rulings made before the Judge may be
relied upon in an appeal. Each issue set
forth in the petition, and the arguments thereon, shall be separately
numbered; shall be plainly and concisely stated; and shall contain detailed citations of the record, statutes,
regulations or authorities being relied

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7 CFR Subtitle A (1–1–15 Edition)

as may have been filed in the proceeding.
(d) Decision of the Judicial Officer on
appeal. The Judicial Officer, upon the
basis of and after due consideration of
the record and any matter of which official notice is taken, shall rule on the
appeal within 4 months after the institution of the proceeding, pursuant to 16
U.S.C. 620b(c)(3). If the Judicial Officer
decides that no change or modification
of the Judge’s decision is warranted,
the Judicial Officer may adopt the
Judge’s decision as the final order in
the proceeding, preserving any right of
the party bringing the appeal to seek
judicial review of such decision in the
proper forum. A final order issued by
the Judicial Officer shall be filed with
the Hearing Clerk. Such order may be
regarded by a party as final for purposes of judicial review.

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

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§ 1.428
(d) Procedure on examinations. (1) The
deponent shall be subject to cross-examination. Objections to questions or
documents shall be in short form, stating the grounds of objections relied
upon. The questions propounded, together with all objections made (but
not including argument or debate),
shall be recorded verbatim. In lieu of
oral examination, parties may transmit written questions to the officer
prior to the examination and the officer shall propound such questions to
the deponent.
(2) The applicant shall arrange for
the examination of the witness either
by oral examination, or by written
questions upon agreement of the parties or as directed by the Judge. If the
examination is conducted by means of
written questions, copies of the questions shall be served upon the other
party to the proceeding and filed with
the officer and the other party may
serve cross questions and file them
with the officer at any time prior to
the time of the examination.
(e) Certification by officer. The officer
shall certify on the deposition that the
deponent was duly sworn and that the
deposition is a true record of the deponent’s testimony. The officer shall
then securely seal the deposition, together with one copy thereof (unless
there are more than two parties in the
proceeding, in which case there should
be another copy for each additional
party), in an envelope and mail the
same by registered or certified mail to
the Hearing Clerk.
(f) Corrections to the transcript. (1) At
any time prior to the hearing any
party may file a motion proposing corrections to the transcript of the deposition.
(2) Unless a party files such a motion
in the manner prescribed, the transcript shall be presumed, except for obvious typographical errors, to be a
true, correct, and complete transcript
of the testimony given in the deposition proceeding and to contain an accurate description or reference to all exhibits in connection therewith, and
shall be deemed to be certified correct
without further procedure.

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included in computing the time allowed for the filing of any document or
paper except as provided in these rules;
Provided, that, when such time expires
on a Saturday, Sunday, or Federal holiday, such period shall be extended to
include the next following business
day.
§ 1.428 Depositions.
(a) Motion for taking deposition. Upon
the motion of a party to the proceeding, the Judge may, at any time
after the filing of the submission, order
the taking of testimony by deposition.
The Motion shall be in writing, shall be
filed with the Hearing Clerk, and shall
set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of the person (referred to hereafter in this section as the ‘‘officer’’) qualified under
the regulations in this part to take
depositions, before whom the proposed
examination is to be made;
(3) The proposed time and place of
the examination; and
(4) The reasons why such deposition
should be taken, which shall be solely
for the purpose of eliciting testimony
which otherwise might not be available
at the time of the hearing, for uses as
provided in paragraph (g) of this section.
(b) Judge’s order for taking deposition.
(1) If the Judge finds that testimony
may not be otherwise available at the
hearing, the taking of the deposition
may be ordered. The order shall be
served upon the parties, and shall
state:
(i) The time and place of the examination;
(ii) The name of the officer before
whom the examination is to be made;
and
(iii) The name of the deponent.
(2) The officer and the time and place
need not be the same as those suggested in the motion.
(c) Qualifications of officer. The deposition shall be made before the Judge
or before an officer authorized by the
law of the United States or by the law
of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths.

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7 CFR Subtitle A (1–1–15 Edition)

(3) At any time prior to use of the
deposition in accordance with paragraph (g) of this section and after consideration of any objections filed thereto, the Judge may issue an order making any corrections in the transcript
which the Judge finds are warranted,
which corrections shall be entered onto
the original transcript by the Hearing
Clerk (without obscuring the original
text).
(g) Use of deposition. A deposition ordered and taken in accordance with the
provisions of this section may be used
in a proceeding under these rules if the
Judge finds that the evidence is otherwise admissible and that the witness is
dead; that the witness is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or that
such exceptional circumstances exist
as to make it desirable, in the interests
of justice, to allow the deposition to be
used. If the party upon whose motion
the deposition was taken refuses to
offer it in evidence, any other party
may offer the deposition or any thereof
in evidence. If only part of a deposition
is offered in evidence by a party, an adverse party may require the introduction of any other part which ought in
fairness to be considered with the part
introduced and any party may introduce any other parts.

(b) No interested person shall make
or knowingly cause to be made to the
Judge an ex parte communication relevant to the merits of the proceeding.
(c) If the Judge reviews an ex parte
communication in violation of this section, the one who receives the communication shall place in the public
record of the proceeding:
(1) All such written communication;
(2) Memoranda stating the substance
of all such oral communications; and
(3) All written responses, and memoranda stating the substance of all oral
responses thereto.
(d) Upon receipt of a communication
knowingly made or knowingly caused
to be made by a party in violation of
this section, the Judge may, to the extent consistent with the interests of
justice and the policy of the underlying
statute, require the party to show
cause why his claim or interest in the
proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
(e) To the extent consistent with the
interests of justice and the policy of
the underlying statute, a violation of
this section shall be sufficient grounds
for a decision adverse to the party who
knowingly commits a violation of this
section or who knowingly causes such
a violation to occur.
(f) For purposes of this section ex
parte communication means an oral or
written communication not on the public record with respect to which reasonable prior notice to all parties is not
given, but it shall not include requests
for status reports on any matter or the
proceeding.

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§ 1.429 Ex parte communications.
(a) At no stage of the proceeding between its institution and issuance of
the final decision shall an employee of
the Department who is or may reasonably be expected to be involved in the
decisional process of the proceeding
discuss ex parte the merits of the proceeding with any person having an interest in the proceeding, or with any
representative of such person: Provided,
That, procedural matters and status
reports shall not be included within
this limitation; and Provided further,
That an employee of the Department
who is or may be involved in the
decisional process of the proceeding
may discuss the merits of the proceeding if all parties of record have
been given notice and an opportunity
to participate. A memorandum of any
such discussion shall be included in the
record.

Subpart N—Policy With Regard to
Indemnification of Department of Agriculture Employees
AUTHORITY: 5 U.S.C. 301.
SOURCE: 69 FR 28042, May 18, 2004, unless
otherwise noted.

§ 1.501 Policy
nification.

on

employee

(a) Indemnification, under the context of this section, shall be the policy

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Office of the Secretary, USDA

§ 1.601

whereby the Department of Agriculture compensates an employee for
the legal consequences of conduct,
taken within the scope of his or her
employment, giving rise to a verdict,
judgment, or other monetary award
rendered against the employee.
(b) The Department of Agriculture
may indemnify a Department employee
(which for the purposes of this regulation shall include a former employee)
for any verdict, judgment, or other
monetary award rendered against such
employee, provided the Secretary or
the Secretary’s designee determines, in
his or her discretion, that the conduct
giving rise to such verdict, judgment,
or award was taken within the scope of
his or her employment with the Department, and such indemnification is
in the interest of the United States.
(c) The Department of Agriculture
may pay for the settlement or compromise of a personal damage claim
against a Department employee by the
payment of available funds, at any
time, provided that the Secretary or
the Secretary’s designee determines, in
his or her discretion, that the alleged
conduct giving rise to the personal
damage claim was taken within the
scope of the employee’s employment,
and such settlement or compromise is
in the interest of the United States.
(d)
Absent
exceptional
circumstances, as determined by the Secretary or his or her designee, the Department will not entertain a request
to agree to indemnify or pay for a settlement of a personal damage claim before entry of an adverse judgment, verdict, or other monetary award.
(e) When a Department employee becomes aware that an action has been
filed against the employee in his or her
individual capacity as a result of conduct taken within the scope of his or
her employment, the employee should
immediately notify his or her supervisor that such an action is pending.
The supervisor shall promptly thereafter notify the Office of the General
Counsel.
(f) A Department employee may request indemnification to satisfy a verdict, judgment, or monetary award entered against the employee or to satisfy the requirements of a settlement
proposal. The employee shall submit a

written request, with appropriate documentation that includes a copy of the
verdict, judgment, award or settlement
proposal, as appropriate, to the head of
his or her employing component, who
shall thereupon submit it to the General Counsel, in a timely manner, a
recommended disposition of the request. The Office of the General Counsel shall seek the views of the Department of Justice. The Office of the General Counsel shall forward the employee’s request, the employing component’s recommendation, and the General Counsel’s recommendation, along
with the time frame in which a decision is needed, to the Secretary or his
or her designee for decision. The Secretary or his or her designee will decide
promptly whether to indemnify or pay
for a settlement of a personal damage
claim.
(g) Any payment under this section
to indemnify a Department employee
for a personal damage verdict, judgment, or award or to settle a personal
damage claim shall be contingent upon
the availability of appropriated funds
of the employing component of the
United States Department of Agriculture.

Subpart O—Conditions in FERC
Hydropower Licenses
AUTHORITY: 16 U.S.C. 797(e), 811, 823d.
SOURCE: 70 FR 69817, Nov. 17, 2005, unless
otherwise noted.

GENERAL PROVISIONS
§ 1.601 What is the purpose of this subpart, and to what license proceedings does it apply?
(a) Hearing process. (1) The regulations in §§ 1.601 through 1.660 contain
rules of practice and procedure applicable to hearings on disputed issues of
material fact with respect to mandatory conditions that the Department of
Agriculture, Forest Service (Forest
Service) may develop for inclusion in a
hydropower license issued under subchapter I of the Federal Power Act
(FPA), 16 U.S.C. 791 et seq. The authority to develop these conditions is
granted by FPA section 4(e), 16 U.S.C.
797(e), which authorizes the Secretary
of Agriculture to condition hydropower

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§ 1.602

7 CFR Subtitle A (1–1–15 Edition)

licenses issued by the Federal Energy
Regulatory Commission (FERC).
(2) The hearing process under this
subpart does not apply to recommendations that the Forest Service may submit to FERC under FPA section 10(a),
16 U.S.C. 803(a).
(3) The FPA also grants the Department of the Interior the authority to
develop mandatory conditions and prescriptions, and the Department of Commerce the authority to develop mandatory prescriptions, for inclusion in a
hydropower license. Where the Forest
Service USDA and either or both of
these other Departments develop conditions or prescriptions to be included
in the same hydropower license and
where the Departments agree to consolidate the hearings under § 1.623:
(i) A hearing conducted under this
subpart will also address disputed
issues of material fact with respect to
any condition or prescription developed by one of the other Departments;
or
(ii) A hearing requested under this
subpart will be conducted by one of the
other Departments, pursuant to 43 CFR
45.1 et seq. or 50 CFR 221.1 et seq., as applicable.
(4) The regulations in §§ 1.601 through
1.660 will be construed and applied to
each hearing process to achieve a just
and speedy determination, consistent
with adequate consideration of the
issues involved and the provisions of
§ 1.660(a).
(b) Alternatives process. The regulations in §§ 1.670 through 1.673 contain
rules of procedure applicable to the
submission and consideration of alternative conditions under FPA section
33, 16 U.S.C. 823d. That section allows
any party to the license proceeding to
propose an alternative to a condition
deemed necessary by the Forest Service under section 4(e).
(c) Reservation of authority. Where the
Forest Service notifies FERC that it is
reserving its authority to develop one
or more conditions during the term of
the license, the hearing and alternatives processes under this subpart
for such conditions will be available if
and when the Forest Service exercises
its reserved authority. The Forest
Service will consult with FERC and notify the license parties regarding how

to initiate the hearing process and alternatives process at that time.
(d) Applicability. (1) This subpart applies to any hydropower license proceeding for which the license has not
been issued as of November 17, 2005 and
for which one or more preliminary conditions or conditions have been or are
filed with FERC.
(2) If the Forest Service has already
filed one or more preliminary conditions or conditions as of November 17,
2005, the special applicability provisions of § 1.604 also apply.
§ 1.602 What terms are used in this
subpart?
As used in this subpart:
ALJ means an administrative law
judge appointed under 5 U.S.C. 3105 and
assigned to preside over the hearing
process under this subpart.
Alternative means a condition that a
license party other than the Forest
Service or another Department develops as an alternative to a preliminary
condition from the Forest Service or
another Department, under FPA sec.
33, 16 U.S.C. 823d.
Condition means a condition under
FPA sec. 4(e), 16 U.S.C. 797(e), for the
adequate protection and utilization of
a reservation.
Day means a calendar day.
Department means the Department of
Agriculture, Department of Commerce,
or Department of the Interior.
Discovery means a prehearing process
for obtaining facts or information to
assist a party in preparing or presenting its case.
Ex parte communication means an oral
or written communication to the ALJ
that is made without providing all parties reasonable notice and an opportunity to participate.
FERC means the Federal Energy Regulatory Commission.
Forest Service means the USDA Forest
Service.
FPA means the Federal Power Act, 16
U.S.C. 791 et seq.
Hearing Clerk means the Hearing
Clerk, USDA, 1400 Independence Ave.,
SW., Washington, DC 20250; phone: 202–
720–4443, facsimile: 202–720–9776.
Intervention means a process by
which a person who did not request a

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Office of the Secretary, USDA

§ 1.603

hearing under § 1.621 can participate as
a party to the hearing under § 1.622.
License party means a party to the license proceeding, as that term is defined at 18 CFR 385.102(c).
License proceeding means a proceeding
before FERC for issuance of a license
for a hydroelectric facility under 18
CFR parts 4 or 5.
Material fact means a fact that, if
proved, may affect a Department’s decision whether to affirm, modify, or
withdraw any condition or prescription.
NEPA document means an environmental assessment or environmental
impact statement issued to comply
with the requirements of the National
Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq.
NFS means Deputy Chief, National
Forest Systems, Forest Service. The
service and mailing address under this
subpart is NFS, Washington Office
(WO) Lands Staff, Mail Stop 1124, 1400
Independence Avenue, SW., Washington, DC 20250–0003, telephone 202–
205–1248, facsimile number 202–205–1604.
Office of Administrative Law Judges
(OALJ) is the office within USDA in
which ALJs conduct hearings under
the regulations in this subpart.
Party means, with respect to USDA’s
hearing process:
(1) A license party that has filed a
timely request for a hearing under:
(i) Section 1.621; or
(ii) Either 43 CFR 45.21 or 50 CFR
221.21, with respect to a hearing process
consolidated under § 1.623;
(2) A license party that has filed a
timely notice of intervention and response under:
(i) Section 1.622; or
(ii) Either 43 CFR 45.22 or 50 CFR
221.22, with respect to a hearing process
consolidated under § 1.623;
(3) The Forest Service, if it has filed
a preliminary condition; and
(4) Any other Department that has
filed a preliminary condition or prescription, with respect to a hearing
process consolidated under § 1.623.
Person means an individual; a partnership, corporation, association, or
other legal entity; an unincorporated
organization; and any federal, state,
tribal, county, district, territorial, or
local government or agency.

Preliminary condition or prescription
means a preliminary condition or prescription filed by a Department with
FERC under 18 CFR 4.34(b), 4.34(i), or
5.22(a) for potential inclusion in a hydropower license.
Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 811,
to provide for the safe, timely, and effective passage of fish.
Representative means a person who:
(1) Is authorized by a party to represent the party in a hearing process
under this subpart; and
(2) Has filed an appearance under
§ 1.610.
Reservation has the same meaning as
the term ‘‘reservations’’ in FPA sec.
3(2), 16 U.S.C. 796(2).
Secretary means the Secretary of Agriculture or his or her designee.
Senior Department employee has the
same meaning as the term ‘‘senior employee’’ in 5 CFR 2637.211(a).
USDA means the United States Department of Agriculture.
You refers to a party other than a Department.
§ 1.603 How are time periods computed?
(a) General. Time periods are computed as follows:
(1) The day of the act or event from
which the period begins to run is not
included.
(2) The last day of the period is included.
(i) If that day is a Saturday, Sunday,
or federal holiday, the period is extended to the next business day.
(ii) The last day of the period ends at
5 p.m. at the place where the filing or
other action is due.
(3) If the period is less than 7 days,
any Saturday, Sunday, or federal holiday that falls within the period is not
included.
(b) Extensions of time. (1) No extension
of time can be granted to file a request
for a hearing under § 1.621, a notice of
intervention and response under § 1.622,
an answer under § 1.624, or any document under §§ 1.670 through 1.673.
(2) An extension of time to file any
other document under this subpart
may be granted only upon a showing of
good cause.

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7 CFR Subtitle A (1–1–15 Edition)

(i) To request an extension of time, a
party must file a motion under § 1.635
stating how much additional time is
needed and the reasons for the request.
(ii) The party must file the motion
before the applicable time period expires, unless the party demonstrates
extraordinary circumstances that justify a delay in filing.
(iii) The ALJ may grant the extension only if:
(A) It would not unduly prejudice
other parties; and
(B) It would not delay the decision
under § 1.660.

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

Service must do the following by February 15, 2006:
(i) Determine jointly with any other
Department that has received a related
alternative, after consultation with
FERC, a time frame for the filing of a
modified condition under § 1.672(b); and
(ii) Issue a notice to the license party
that has submitted the alternative,
specifying the time frame for the filing
of a modified condition.
(3) Upon receipt of an alternative
under paragraph (c)(1) of this section, if
a hearing request is also filed under
paragraph (b)(1) of this section, the
Forest Service will follow the provisions of paragraph (b)(3) of this section.
HEARING PROCESS
REPRESENTATIVES
§ 1.610 Who may represent a party,
and what requirements apply to a
representative?
(a) Individuals. A party who is an individual may either represent himself
or herself in the hearing process under
this subpart or authorize an attorney
to represent him or her.
(b) Organizations. A party that is an
organization or other entity may authorize one of the following to represent it:
(1) An attorney;
(2) A partner, if the entity is a partnership;
(3) An officer or full-time employee,
if the entity is a corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if the entity
is a receivership, trust, or estate; or
(5) An elected or appointed official or
an employee, if the entity is a federal,
state, tribal, county, district, territorial, or local government or component.
(c) Appearance. A representative
must file a notice of appearance. The
notice must:
(1) Meet the form and content requirements for documents under § 1.611;
(2) Include the name and address of
the person on whose behalf the appearance is made;
(3) If the representative is an attorney, include a statement that he or she
is a member in good standing of the bar

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§ 1.612

of the highest court of a state, the District of Columbia, or any territory or
commonwealth of the United States
(identifying which one); and
(4) If the representative is not an attorney, include a statement explaining
his or her authority to represent the
entity.
(d) Disqualification. The ALJ may disqualify any representative for misconduct or other good cause.

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DOCUMENT FILING AND SERVICE
§ 1.611 What are the form and content
requirements for documents under
§§ 1.610 through 1.660?
(a) Form. Each document filed in a
case under §§ 1.610 through 1.660 must:
(1) Measure 81⁄2 by 11 inches, except
that a table, chart, diagram, or other
attachment may be larger if folded to
81⁄2 by 11 inches and attached to the
document;
(2) Be printed on just one side of the
page;
(3) Be clearly typewritten, printed, or
otherwise reproduced by a process that
yields legible and permanent copies;
(4) Use 10 point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which may
be single-spaced;
(6) Have margins of at least 1 inch;
and
(7) Be bound on the left side, if
bound.
(b) Caption. Each document filed
under §§ 1.610 through 1.660 must begin
with a caption that sets forth:
(1) The name of the case under §§ 1.610
through 1.660 and the docket number, if
one has been assigned;
(2) The name and docket number of
the license proceeding to which the
case under §§ 1.610 through 1.660 relates;
and
(3) A descriptive title for the document, indicating the party for whom it
is filed and the nature of the document.
(c) Signature. The original of each
document filed under §§ 1.610 through
1.660 must be signed by the representative of the person for whom the document is filed. The signature constitutes
a certification by the representative
that he or she has read the document;
that to the best of his or her knowledge, information, and belief, the
statements made in the document are

true; and that the document is not
being filed for the purpose of causing
delay.
(d) Contact information. Below the
representative’s signature, the document must provide the representative’s
name, mailing address, street address
(if different), telephone number, facsimile number (if any), and electronic
mail address (if any).
§ 1.612 Where and how must documents be filed?
(a) Place of filing. Any documents relating to a case under §§ 1.610 through
1.660 must be filed with the appropriate
office, as follows:
(1) Before NFS refers a case for docketing under § 1.625, any documents
must be filed with NFS. NFS’s address,
telephone number, and facsimile number are set forth in § 1.602.
(2) NFS will notify the parties of the
date on which it refers a case for docketing under § 1.625. After that date, any
documents must be filed with:
(i) The Hearing Clerk, if USDA will
be conducting the hearing. The Hearing
Clerk’s address, telephone number, and
facsimile number are set forth in
§ 1.602; or
(ii) The hearings component of or
used by another Department, if that
Department will be conducting the
hearing under § 1.625. The name, address, telephone number, and facsimile
number of the appropriate hearings
component will be provided in the referral notice from the Forest Service.
(b) Method of filing. (1) A document
must be filed with the appropriate office under paragraph (a) of this section
using one of the following methods:
(i) By hand delivery of the original
document;
(ii) By sending the original document
by express mail or courier service for
delivery on the next business day; or
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less,
including all attachments;
(B) The sending facsimile machine
confirms that the transmission was
successful; and
(C) The original of the document is
sent by regular mail on the same day.
(2) Parties are encouraged, but not
required, to supplement any filing by

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7 CFR Subtitle A (1–1–15 Edition)

providing the appropriate office with
an electronic copy of the document on
diskette or compact disc.
(c) Date of filing. A document under
§§ 1.610 through 1.660 is considered filed
on the date it is received. However, any
document received after 5 p.m. at the
place where the filing is due is considered filed on the next regular business
day.
(d) Nonconforming documents. If any
document submitted for filing under
§§ 1.610 through 1.660 does not comply
with the requirements of §§ 1.610
through 1.660 or any applicable order,
it may be rejected. If the defect is
minor, the party may be notified of the
defect and given a chance to correct it.

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§ 1.613 What are the requirements for
service of documents?
(a) Filed documents. Any document related to a case under §§ 1.610 through
1.660 must be served at the same time
the document is delivered or sent for
filing. Copies must be served as follows:
(1) A complete copy of any request
for a hearing under § 1.621 must be
served on FERC and each license party,
using one of the methods of service in
paragraph (c) of this section.
(2) A complete copy of any notice of
intervention and response under § 1.622
must be:
(i) Served on FERC, the license applicant, any person who has filed a request for hearing under § 1.621, and the
Forest Service, using one of the methods of service in paragraph (c) of this
section; and
(ii) Sent to any other license party
using regular mail.
(3) A complete copy of any other filed
document must be served on each
party, using one of the methods of
service in paragraph (c) of this section.
(b) Documents issued by the Hearing
Clerk or ALJ. A complete copy of any
notice, order, decision, or other document issued by the Hearing Clerk or
the ALJ under §§ 1.610 through 1.660
must be served on each party, using
one of the methods of service in paragraph (c) of this section.
(c) Method of service. Service must be
accomplished by one of the following
methods:
(1) By hand delivery of the document;

(2) By sending the document by express mail or courier service for delivery on the next business day;
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less,
including all attachments;
(ii) The sending facsimile machine
confirms that the transmission was
successful; and
(iii) The document is sent by regular
mail on the same day; or
(4) By sending the document, including all attachments, by electronic mail
if:
(i) A copy of the document is sent by
regular mail on the same day; and
(ii) The party acknowledges receipt
of the document by close of the next
business day.
(d) Acknowledgment of service. Any
party who receives a document under
§§ 1.610 through 1.660 by electronic mail
must promptly send a reply electronic
mail message acknowledging receipt.
(e) Certificate of service. A certificate
of service must be attached to each
document filed under §§ 1.610 through
1.660. The certificate must be signed by
the party’s representative and include
the following information:
(1) The name, address, and other contact information of each party’s representative on whom the document was
served;
(2) The means of service, including
information
indicating
compliance
with paragraph (c)(3) or (c)(4) of this
section, if applicable; and
(3) The date of service.
INITIATION OF HEARING PROCESS
§ 1.620 What supporting information
must the Forest Service provide
with its preliminary conditions?
(a) Supporting information. (1) When
the Forest Service files preliminary
conditions with FERC, it must include
a rationale for the conditions and an
index to the Forest Service’s administrative record that identifies all documents relied upon.
(2) If any of the documents relied
upon are not already in the license proceeding record, the Forest Service
must:
(i) File them with FERC at the time
it files the preliminary conditions; and

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(ii) Provide paper or electronic copies
to the license applicant.
(b) Service. In addition to serving a
copy of its preliminary conditions on
each license party, the Forest Service
must provide a copy to the Hearing
Clerk if and when a request for a hearing is filed with respect to the preliminary conditions.

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§ 1.621

(2) For each exhibit listed, you must
specify whether it is in the license proceeding record.
(d) Page limits. (1) For each disputed
factual issue, the information provided
under paragraph (b)(2) of this section
may not exceed two pages.
(2) For each witness, the information
provided under paragraph (c)(1) of this
section may not exceed one page.

How do I request a hearing?

(a) General. To request a hearing on
disputed issues of material fact with
respect to any condition filed by the
Forest Service, you must:
(1) Be a license party; and
(2) File with NFS a written request
for a hearing within 30 days after the
deadline for the Departments to file
preliminary conditions with FERC.
(b) Content. Your hearing request
must contain:
(1) A numbered list of the factual
issues that you allege are in dispute,
each stated in a single, concise sentence; and
(2) The following information with
respect to each issue:
(i) The specific factual statements
made or relied upon by the Forest
Service under § 1.620(a) that you dispute;
(ii) The basis for your opinion that
those factual statements are unfounded
or erroneous;
(iii) The basis for your opinion that
any factual dispute is material; and
(iv) With respect to any scientific
studies, literature, and other documented information supporting your
opinions under paragraphs (b)(2)(ii) and
(b)(2)(iii) of this section, specific citations to the information relied upon. If
any such document is not already in
the license proceeding record, you
must provide a copy with the request.
(c) Witnesses and exhibits. Your hearing request must also list the witnesses
and exhibits that you intend to present
at the hearing, other than solely for
impeachment purposes.
(1) For each witness listed, you must
provide:
(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his
or her expected testimony.

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

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under paragraph (b) of this section may
not exceed two pages.
(2) For each witness, the information
provided under paragraph (c)(1) of this
section may not exceed one page.

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§ 1.623 When will hearing requests be
consolidated?
(a) Initial Department coordination. If
the Forest Service has received a copy
of a hearing request, it must contact
the other Departments within 10 days
after the deadline for filing hearing requests under § 1.621 and determine:
(1) Whether any of the other Departments has also filed a preliminary condition or prescription relating to the license with FERC; and
(2) If so, whether the other Department has also received a hearing request with respect to the preliminary
condition or prescription.
(b) Decision on consolidation. Within
25 days after the deadline for filing
hearing requests under § 1.621, if the
Forest Service has received a hearing
request, it must:
(1) Consult with any other Department that has also received a hearing
request; and
(2) Decide jointly with the other Department:
(i) Whether to consolidate the cases
for hearing under paragraphs (c)(3)(ii)
through (c)(3)(iv) of this section; and
(ii) If so, which Department will conduct the hearing on their behalf.
(c) Criteria. Cases will or may be consolidated as follows:
(1) All hearing requests with respect
to any conditions from the same Department will be consolidated for hearing.
(2) All hearing requests with respect
to any prescriptions from the same Department will be consolidated for hearing.
(3) Any or all of the following may be
consolidated for hearing, if the Departments involved determine that there
are common issues of material fact or
that consolidation is otherwise appropriate:
(i) Two or more hearing requests
with respect to any condition and any
prescription from the same Department;

(ii) Two or more hearing requests
with respect to conditions from different Departments;
(iii) Two or more hearing requests
with respect to prescriptions from different Departments; or
(iv) Two or more hearing requests
with respect to any condition from one
Department and any prescription from
another Department.
§ 1.624 How will the Forest Service respond to any hearing requests?
(a) General. Within 45 days after the
deadline in § 1.621(a)(2), the Forest
Service may file with the Hearing
Clerk an answer to any hearing request
under § 1.621.
(b) Content. If the Forest Service files
an answer:
(1) For each of the numbered factual
issues listed under § 1.621(b)(1), the answer must explain the Forest Service’s
position with respect to the issues of
material fact raised by the requester,
including one or more of the following
statements as appropriate:
(i) That the Forest Service is willing
to stipulate to the facts as alleged by
the requester;
(ii) That the Forest Service believes
the issue listed by the requester is not
a factual issue, explaining the basis for
such belief;
(iii) That the Forest Service believes
the issue listed by the requester is not
material, explaining the basis for such
belief; or
(iv) That the Forest Service agrees
that the issue is factual, material, and
in dispute.
(2) The answer must also indicate
whether the hearing request will be
consolidated with one or more other
hearing requests under § 1.623 and, if so:
(i) Identify any other hearing request
that will be consolidated with this
hearing request; and
(ii) State which Department will conduct the hearing and provide contact
information for the appropriate Department hearings component.
(c) Witnesses and exhibits. The Forest
Service’s answer must also list the witnesses and exhibits that it intends to
present at the hearing, other than solely for impeachment purposes.
(1) For each witness listed, the Forest Service must provide:

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(i) His or her name, address, telephone number, and qualifications; and
(ii) A brief narrative summary of his
or her expected testimony.
(2) For each exhibit listed, the Forest
Service must specify whether it is in
the license proceeding record
(d) Page limits. (1) For each disputed
factual issue, the information provided
under paragraph (b)(1) of this section
may not exceed two pages.
(2) For each witness, the information
provided under paragraph (c)(1) of this
section may not exceed one page.
(e) Notice in lieu of answer. If the Forest Service elects not to file an answer
to a hearing request:
(1) The Forest Service is deemed to
agree that the issues listed by the requester are factual, material, and in
dispute;
(2) The Forest Service may file a list
of witnesses and exhibits with respect
to the request only as provided in
§ 1.642(b); and
(3) The Forest Service must file a notice containing the information required by paragraph (b)(2) of this section, if the hearing request will be consolidated with one or more other hearing requests under § 1.623.
§ 1.625 What will the Forest Service do
with any hearing requests?
(a) Case referral. Within 5 days after
receipt of the Forest Service’s answer,
NFS will refer the case for a hearing as
follows:
(1) If the hearing is to be conducted
by USDA, NFS will refer the case to
the OALJ.
(2) If the hearing is to be conducted
by another Department, NFS will refer
the case to the hearings component
used by that Department.
(b) Content. The case referral will
consist of the following:
(1) A copy of any preliminary condition under § 1.620;
(2) The original of any hearing request under § 1.621;
(3) The original of any notice of
intervention and response under § 1.622;
(4) The original of any answer under
§ 1.624; and
(5) An original referral notice under
paragraph (c) of this section.
(c) Notice. At the time NFS refers the
case for a hearing, it must provide a re-

ferral notice that contains the following information:
(1) The name, address, telephone
number, and facsimile number of the
Department hearings component that
will conduct the hearing;
(2) The name, address, and other contact information for the representative
of each party to the hearing process;
(3) An identification of any other
hearing request that will be consolidated with this hearing request; and
(4) The date on which NFS is referring the case for docketing.
(d) Delivery and service. (1) NFS must
refer the case to the appropriate Department hearings component by one
of
the
methods
identified
in
§ 1.612(b)(1)(i) and (b)(1)(ii).
(2) NFS must serve a copy of the referral notice on FERC and each party
to the hearing by one of the methods
identified in § 1.613(c)(1) and (c)(2).
§ 1.626 What regulations apply to a
case referred for a hearing?
(a) If NFS refers the case to OALJ,
these regulations will continue to
apply to the hearing process.
(b) If NFS refers the case to the Department of the Interior’s Office of
Hearing and Appeals, the regulations
at 43 CFR 45.1 et seq. will apply from
that point.
(c) If NFS refers the case to the Department of Commerce’s designated
ALJ office, the regulations at 50 CFR
221.1 et seq. will apply from that point.
GENERAL PROVISIONS RELATED TO
HEARINGS
§ 1.630 What will OALJ do with a case
referral?
Within 5 days after issuance of the
referral notice under § 1.625(c), 43 CFR
45.25(c), or 50 CFR 221.25(c):
(a) The Hearing Clerk must:
(1) Docket the case;
(2) Assign an ALJ to preside over the
hearing process and issue a decision;
and
(3) Issue a docketing notice that informs the parties of the docket number
and the ALJ assigned to the case; and
(b) The ALJ must issue a notice setting the time, place, and method for
conducting an initial prehearing conference under § 1.640. This notice may

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be combined with the docketing notice
under paragraph (a)(3) of this section.
§ 1.631 What are the powers of the
ALJ?
The ALJ will have all powers necessary to conduct a fair, orderly, expeditious, and impartial hearing process,
consistent with the requirements of
§ 1.660(a), including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas to the extent authorized by law;
(c) Rule on motions;
(d) Authorize discovery as provided
for in §§ 1.641 through 1.647;
(e) Hold hearings and conferences;
(f) Regulate the course of hearings;
(g) Call and question witnesses;
(h) Exclude any person from a hearing or conference for misconduct or
other good cause;
(i) Issue a decision consistent with
§ 1.660(b) regarding any disputed issues
of material fact relating to the Forest
Service’s or other Department’s condition or prescription that has been referred to the ALJ for hearing; and
(j) Take any other action authorized
by law.

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§ 1.632 What happens if the ALJ becomes unavailable?
(a) If the ALJ becomes unavailable or
otherwise unable to perform the duties
described in § 1.631, the OALJ shall designate a successor.
(b) If a hearing has commenced and
the ALJ cannot proceed with it, a successor ALJ may do so. At the request
of a party, the successor ALJ may recall any witness whose testimony is
material and disputed, and who is
available to testify again without
undue burden. The successor ALJ may,
within his or her discretion, recall any
other witness.
§ 1.633 Under what circumstances may
the ALJ be disqualified?
(a) The ALJ may withdraw from a
case at any time the ALJ deems himself or herself disqualified.
(b) At any time before issuance of the
ALJ’s decision, any party may move
that the ALJ disqualify himself or herself for personal bias or other valid
cause.

(1) The party must file the motion
promptly after discovering facts or
other reasons allegedly constituting
cause for disqualification.
(2) The party must file with the motion an affidavit or declaration setting
forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the ruling.
(1) If the ALJ concludes that the motion is timely and meritorious, he or
she must disqualify himself or herself
and withdraw from the case.
(2) If the ALJ does not disqualify
himself or herself and withdraw from
the case, the ALJ must continue with
the hearing process and issue a decision.
§ 1.634 What is the law governing ex
parte communications?
(a) Ex parte communications with the
ALJ or his or her staff are prohibited
in accordance with 5 U.S.C. 554(d).
(b) This section does not prohibit ex
parte inquiries concerning case status
or procedural requirements, unless the
inquiry involves an area of controversy
in the hearing process.
§ 1.635 What are the requirements for
motions?
(a) General. Any party may apply for
an order or ruling on any matter related to the hearing process by presenting a motion to the ALJ. A motion
may be presented any time after the
Hearing Clerk issues a docketing notice under § 1.630.
(1) A motion made at a hearing may
be stated orally on the record, unless
the ALJ directs that it be reduced to
writing.
(2) Any other motion must:
(i) Be in writing;
(ii) Comply with the requirements of
§§ 1.610 through 1.613 with respect to
form, content, filing, and service; and
(iii) Not exceed 10 pages.
(b) Content. (1) Each motion must
state clearly and concisely:
(i) Its purpose and the relief sought;
(ii) The facts constituting the
grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.

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(2) A proposed order must accompany
the motion.
(c) Response. Except as otherwise required by this subpart or by order of
the ALJ, any other party may file a response to a written motion within 10
days after service of the motion. When
a party presents a motion at a hearing,
any other party may present a response orally on the record.
(d) Reply. Unless the ALJ orders otherwise, no reply to a response may be
filed.
(e) Effect of filing. Unless the ALJ orders otherwise, the filing of a motion
does not stay the hearing process.
(f) Ruling. The ALJ will rule on the
motion as soon as practicable, either
orally on the record or in writing. He
or she may summarily deny any dilatory, repetitive, or frivolous motion.

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PREHEARING CONFERENCES AND
DISCOVERY
§ 1.640 What are the requirements for
prehearing conferences?
(a) Initial prehearing conference. The
ALJ will conduct an initial prehearing
conference with the parties at the time
specified in the docketing notice under
§ 1.630, on or about the 20th day after
issuance of the referral notice under
§ 1.625(c).
(1) The initial prehearing conference
will be used:
(i) To identify, narrow, and clarify
the disputed issues of material fact and
exclude issues that do not qualify for
review as factual, material, and disputed;
(ii) To consider the parties’ motions
for discovery under § 1.641 and to set a
deadline for the completion of discovery;
(iii) To discuss the evidence on which
each party intends to rely at the hearing;
(iv) To set the deadline for submission of written testimony under § 1.652;
and
(v) To set the date, time, and place of
the hearing.
(2) The initial prehearing conference
may also be used:
(i) To discuss limiting and grouping
witnesses to avoid duplication;
(ii) To discuss stipulations of fact
and of the content and authenticity of
documents;

(iii) To consider requests that the
ALJ take official notice of public
records or other matters;
(iv) To discuss the submission of
written testimony, briefs, or other documents in electronic form; and
(v) To consider any other matters
that may aid in the disposition of the
case.
(b) Other conferences. The ALJ may in
his or her discretion direct the parties
to attend one or more other prehearing
conferences, if consistent with the need
to complete the hearing process within
90 days. Any party may by motion request a conference.
(c) Notice. The ALJ must give the
parties reasonable notice of the time
and place of any conference. A conference will ordinarily be held by telephone, unless the ALJ orders otherwise.
(d) Preparation. (1) Each party’s representative must be fully prepared for
a discussion of all issues properly before the conference, both procedural
and substantive. The representative
must be authorized to commit the
party that he or she represents respecting those issues.
(2) Before the date set for the initial
prehearing conference, the parties’ representatives must make a good faith
effort:
(i) To meet in person, by telephone,
or by other appropriate means; and
(ii) To reach agreement on discovery
and the schedule of remaining steps in
the hearing process.
(e) Failure to attend. Unless the ALJ
orders otherwise, a party that fails to
attend or participate in a conference,
after being served with reasonable notice of its time and place, waives all
objections to any agreements reached
in the conference and to any consequent orders or rulings.
(f) Scope. During a conference, the
ALJ may dispose of any procedural
matters related to the case.
(g) Order. Within 2 days after the conclusion of each conference, the ALJ
must issue an order that recites any
agreements reached at the conference
and any rulings made by the ALJ during or as a result of the conference.

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§ 1.641 How may parties obtain discovery of information needed for
the case?
(a) General. By agreement of the parties or with the permission of the ALJ,
a party may obtain discovery of information to assist the party in preparing
or presenting its case. Available methods of discovery are:
(1) Written interrogatories;
(2) Depositions as provided in paragraph (h) of this section; and
(3) Requests for production of designated documents or tangible things
or for entry on designated land for inspection or other purposes.
(b) Criteria. Discovery may occur only
as agreed to by the parties or as authorized by the ALJ in a written order
or during a prehearing conference. The
ALJ may authorize discovery only if
the party requesting discovery demonstrates:
(1) That the discovery will not unreasonably delay the hearing process;
(2) That the information sought:
(i) Will be admissible at the hearing
or appears reasonably calculated to
lead to the discovery of admissible evidence;
(ii) Is not already in the license proceeding record or otherwise obtainable
by the party;
(iii) Is not cumulative or repetitious;
and
(iv) Is not privileged or protected
from disclosure by applicable law;
(3) That the scope of the discovery is
not unduly burdensome;
(4) That the method to be used is the
least burdensome method available;
(5) That any trade secrets or proprietary information can be adequately
safeguarded; and
(6) That the standards for discovery
under paragraphs (f) through (h) of this
section have been met, if applicable.
(c) Motions. A party may initiate discovery:
(1) Pursuant to an agreement of the
parties; or
(2) By filing a motion that:
(i) Briefly describes the proposed
method(s), purpose, and scope of the
discovery;
(ii) Explains how the discovery meets
the criteria in paragraphs (b)(1)
through (b)(6) of this section; and

(iii) Attaches a copy of any proposed
discovery request (written interrogatories, notice of deposition, or request
for production of designated documents
or tangible things or for entry on designated land).
(d) Timing of motions. A party must
file any discovery motion under paragraph (c)(2) of this section within 7
days after issuance of the referral notice under § 1.625(c).
(e) Objections. (1) A party must file
any objections to a discovery motion
or to specific portions of a proposed
discovery request within 7 days after
service of the motion.
(2) An objection must explain how, in
the objecting party’s view, the discovery sought does not meet the criteria in paragraphs (b)(1) through (b)(6)
of this section.
(f) Materials prepared for hearing. A
party generally may not obtain discovery of documents and tangible
things otherwise discoverable under
paragraph (b) of this section if they
were prepared in anticipation of or for
the hearing by or for another party’s
representative (including the party’s
attorney, expert, or consultant).
(1) If a party wants to discover such
materials, it must show:
(i) That it has substantial need of the
materials in preparing its own case;
and
(ii) That the party is unable without
undue hardship to obtain the substantial equivalent of the materials by
other means.
(2) In ordering discovery of such materials when the required showing has
been made, the ALJ must protect
against disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attorney.
(g) Experts. Unless restricted by the
ALJ, a party may discover any facts
known or opinions held by an expert
concerning any relevant matters that
are not privileged. Such discovery will
be permitted only if:
(1) The expert is expected to be a witness at the hearing; or
(2) The expert is relied on by another
expert who is expected to be a witness
at the hearing, and the party shows:
(i) That it has a compelling need for
the information; and

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(ii) That it cannot practicably obtain
the information by other means.
(h) Limitations on depositions. (1) A
party may depose a witness only if the
party shows that the witness:
(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or
(ii) Is unwilling to attend the hearing
voluntarily, and the party is unable to
compel the witness’s attendance at the
hearing by subpoena.
(2) Paragraph (h)(1)(ii) of this section
does not apply to any person employed
by or under contract with the party
seeking the deposition.
(3) A party may depose a senior Department employee only if the party
shows:
(i) That the employee’s testimony is
necessary in order to provide significant, unprivileged information that is
not available from any other source or
by less burdensome means; and
(ii) That the deposition would not
significantly interfere with the employee’s ability to perform his or her
government duties.
(i) Completion of discovery. All discovery must be completed within 25
days after the initial prehearing conference, unless the ALJ sets a different
deadline.

(c) Failure to disclose. (1) A party that
fails to disclose information required
under §§ 1.621(c), 1.622(c), or 1.624(c), or
paragraphs (a) or (b) of this section,
will not be permitted to introduce as
evidence at the hearing testimony from
a witness or other information that it
failed to disclose.
(2) Paragraph (c)(1) of this section
does not apply if the failure to disclose
was substantially justified or is harmless.
(3) Before or during the hearing, a
party may object to the admission of
evidence under paragraph (c)(1) of this
section.
(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1)
through (c)(3) of this section:
(i) The prejudice to the objecting
party;
(ii) The ability of the objecting party
to cure any prejudice;
(iii) The extent to which presentation
of the evidence would disrupt the orderly and efficient hearing of the case;
(iv) The importance of the evidence;
and
(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.

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

§ 1.643 What are the requirements for
written interrogatories?

(a) Discovery. A party must promptly
supplement or amend any prior response to a discovery request if it
learns that the response:
(1) Was incomplete or incorrect when
made; or
(2) Though complete and correct
when made, is now incomplete or incorrect in any material respect.
(b) Witnesses and exhibits. (1) Within 5
days after the date set for completion
of discovery, each party must file an
updated version of the list of witnesses
and exhibits required under §§ 1.621(c),
1.622(c), or 1.624(c).
(2) If a party wishes to include any
new witness or exhibit on its updated
list, it must provide an explanation of
why it was not feasible for the party to
include the witness or exhibit on its
list under §§ 1.621(c), 1.622(c), or 1.624(c).

(a) Motion. Except upon agreement of
the parties, a party wishing to propound interrogatories must file a motion under § 1.641(c).
(b) ALJ order. During or promptly
after the initial prehearing conference,
the ALJ will issue an order under
§ 1.641(b) with respect to any discovery
motion requesting the use of written
interrogatories. The order will:
(1) Grant the motion and approve the
use of some or all of the proposed interrogatories; or
(2) Deny the motion.
(c) Answers to interrogatories. Except
upon agreement of the parties, the
party to whom the proposed interrogatories are directed must file its answers to any interrogatories approved
by the ALJ within 15 days after
issuance of the order under paragraph
(b) of this section.

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(1) Each approved interrogatory must
be answered separately and fully in
writing.
(2) The party or its representative
must sign the answers to interrogatories under oath or affirmation.
(d) Access to records. A party’s answer
to an interrogatory is sufficient when:
(1) The information may be obtained
from an examination of records, or
from a compilation, abstract, or summary based on such records;
(2) The burden of obtaining the information from the records is substantially the same for all parties;
(3) The answering party specifically
identifies the individual records from
which the requesting party may obtain
the information and where the records
are located; and
(4) The answering party provides the
requesting party with reasonable opportunity to examine the records and
make a copy, compilation, abstract, or
summary.
§ 1.644 What are the requirements for
depositions?
(a) Motion and notice. Except upon
agreement of the parties, a party wishing to take a deposition must file a motion under § 1.641(c). Any notice of deposition filed with the motion must
state:
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is to be
taken;
(3) The name and address of the witness whose deposition is to be taken;
and
(4) Any documents or materials that
the witness is to produce.
(b) ALJ order. During or promptly
after the initial prehearing conference,
the ALJ will issue an order under
§ 1.641(b) with respect to any discovery
motion requesting the taking of a deposition. The order will:
(1) Grant the motion and approve the
taking of the deposition, subject to any
conditions or restrictions the ALJ may
impose; or
(2) Deny the motion.
(c) Arrangements. If the parties agree
to or the ALJ approves the taking of
the deposition, the party requesting
the deposition must make appropriate

arrangements for necessary facilities
and personnel.
(1) The deposition will be taken at
the time and place agreed to by the
parties or indicated in the ALJ’s order.
(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place
where the deposition is to be taken.
(3) Any party that objects to the taking of a deposition because of the disqualification of the person before
whom it is to be taken must do so:
(i) Before the deposition begins; or
(ii) As soon as the disqualification
becomes known or could have been discovered with reasonable diligence.
(4) A deposition may be taken by
telephone conference call, if agreed to
by the parties or approved in the ALJ’s
order.
(d) Testimony. Each witness deposed
must be placed under oath or affirmation, and the other parties must be
given an opportunity for cross-examination.
(e) Representation of witness. The witness being deposed may have counsel or
another representative present during
the deposition.
(f) Recording and transcript. Except as
provided in paragraph (g) of this section, the deposition must be stenographically recorded and transcribed at
the expense of the party that requested
the deposition.
(1) Any other party may obtain a
copy of the transcript at its own expense.
(2) Unless waived by the deponent,
the deponent will have 3 days after receiving the transcript to read and sign
it.
(3) The person before whom the deposition was taken must certify the transcript following receipt of the signed
transcript from the deponent or expiration of the 3-day review period, whichever occurs first.
(g) Video recording. The testimony at
a deposition may be recorded on videotape, subject to any conditions or restrictions that the parties may agree
to or the ALJ may impose, at the expense of the party requesting the recording.
(1) The video recording may be in
conjunction with an oral examination

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§ 1.647

by telephone conference held under
paragraph (c)(3) of this section.
(2) After the deposition has been
taken, the person recording the deposition must:
(i) Provide a copy of the videotape to
any party that requests it, at the requesting party’s expense; and
(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of
the video recording.
(h) Use of deposition. A deposition
may be used at the hearing as provided
in § 1.653.

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

the order under paragraph (a) of this
section.
§ 1.646 What sanctions may the ALJ
impose for failure to comply with
discovery?
(a) Upon motion of a party, the ALJ
may impose sanctions under paragraph
(b) of this section if any party:
(1) Fails to comply with an order approving discovery; or
(2) Fails to supplement or amend a
response to discovery under § 1.642(a).
(b) The ALJ may impose one or more
of the following sanctions:
(1) Infer that the information, testimony, document, or other evidence
withheld would have been adverse to
the party;
(2) Order that, for the purposes of the
hearing, designated facts are established;
(3) Order that the party not introduce
into evidence, or otherwise rely on to
support its case, any information, testimony, document, or other evidence:
(i) That the party improperly withheld; or
(ii) That the party obtained from another party in discovery;
(4) Allow another party to use secondary evidence to show what the information, testimony, document, or
other evidence withheld would have
shown; or
(5) Take other appropriate action to
remedy the party’s failure to comply.
§ 1.647 What are the requirements for
subpoenas and witness fees?
(a) Request for subpoena. (1) Except as
provided in paragraph (a)(2) of this section, any party may file a motion requesting the ALJ to issue a subpoena
to the extent authorized by law for the
attendance of a person, the giving of
testimony, or the production of documents or other relevant evidence during discovery or for the hearing.
(2) A party may subpoena a senior
Department employee only if the party
shows:
(i) That the employee’s testimony is
necessary in order to provide significant, unprivileged information that is
not available from any other source or
by less burdensome means; and
(ii) That the employee’s attendance
would not significantly interfere with

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§ 1.650

7 CFR Subtitle A (1–1–15 Edition)

the ability to perform his or her government duties.
(b) Service. (1) A subpoena may be
served by any person who is not a party
and is 18 years of age or older.
(2) Service must be made by hand delivering a copy of the subpoena to the
person named therein.
(3) The person serving the subpoena
must:
(i) Prepare a certificate of service
setting forth:
(A) The date, time, and manner of
service; or
(B) The reason for any failure of service; and
(ii) Swear to or affirm the certificate,
attach it to a copy of the subpoena,
and return it to the party on whose behalf the subpoena was served.
(c) Witness fees. (1) A party who subpoenas a witness who is not a party
must pay him or her the same fees and
mileage expenses that are paid witnesses in the district courts of the
United States.
(2) A witness who is not a party and
who attends a deposition or hearing at
the request of any party without having been subpoenaed to do so is entitled
to the same fees and mileage expenses
as if he or she had been subpoenaed.
However, this paragraph does not apply
to federal employees who are called as
witnesses by the Forest Service or another Department.
(d) Motion to quash. (1) A person to
whom a subpoena is directed may request by motion that the ALJ quash or
modify the subpoena.
(2) The motion must be filed:
(i) Within 5 days after service of the
subpoena; or
(ii) At or before the time specified in
the subpoena for compliance, if that is
less than 5 days after service of the
subpoena.
(3) The ALJ may quash or modify the
subpoena if it:
(i) Is unreasonable;
(ii) Requires evidence during discovery that is not discoverable; or
(iii) Requires evidence during a hearing that is privileged or irrelevant.
(e) Enforcement. For good cause
shown, the ALJ may apply to the appropriate United States District Court
for the issuance of an order compelling
the appearance and testimony of a wit-

ness or the production of evidence as
set forth in a subpoena that has been
duly issued and served.
HEARING, BRIEFING, AND DECISION
§ 1.650 When and where will the hearing be held?
(a) Except as provided in paragraph
(b) of this section, the hearing will be
held at the time and place set at the
initial prehearing conference under
§ 1.640, generally within 15 days after
the date set for completion of discovery.
(b) On motion by a party or on the
ALJ’s initiative, the ALJ may change
the date, time, or place of the hearing
if he or she finds:
(1) That there is good cause for the
change; and
(2) That the change will not unduly
prejudice the parties and witnesses.
§ 1.651 What are the parties’ rights
during the hearing?
Consistent with the provisions of this
subpart, each party has the following
rights during the hearing, as necessary
to assure full and accurate disclosure
of the facts:
(a) To present direct and rebuttal
evidence;
(b) To make objections, motions, and
arguments; and
(c) To cross-examine witnesses and to
conduct re-direct and re-cross examination as permitted by the ALJ.
§ 1.652 What are the requirements for
presenting testimony?
(a) Written direct testimony. Unless
otherwise ordered by the ALJ, all direct hearing testimony must be prepared and submitted in written form.
(1) Prepared written testimony must:
(i) Have line numbers inserted in the
left-hand margin of each page;
(ii) Be authenticated by an affidavit
or declaration of the witness;
(iii) Be filed within 5 days after the
date set for completion of discovery,
unless the ALJ sets a different deadline; and
(iv) Be offered as an exhibit during
the hearing.
(2) Any witness submitting written
testimony must be available for crossexamination at the hearing.

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§ 1.654

(b) Oral testimony. Oral examination
of a witness in a hearing, including on
cross-examination or redirect, must be
conducted under oath and in the presence of the ALJ, with an opportunity
for all parties to question the witness.
(c) Telephonic testimony. The ALJ
may by order allow a witness to testify
by telephonic conference call.
(1) The arrangements for the call
must let each party listen to and speak
to the witness and each other within
the hearing of the ALJ.
(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.
(3) The ALJ may issue a subpoena
under § 1.647 directing a witness to testify by telephonic conference call.

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

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

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§ 1.655 What evidence is admissible at
the hearing?
(a) General. (1) Subject to the provisions of § 1.642(b), the ALJ may admit
any written, oral, documentary, or demonstrative evidence that is:
(i) Relevant, reliable, and probative;
and
(ii) Not privileged or unduly repetitious or cumulative.
(2) The ALJ may exclude evidence if
its probative value is substantially
outweighed by the risk of undue prejudice, confusion of the issues, or delay.
(3) Hearsay evidence is admissible.
The ALJ may consider the fact that
evidence is hearsay when determining
its probative value.
(4) The Federal Rules of Evidence do
not directly apply to the hearing, but
may be used as guidance by the ALJ
and the parties in interpreting and applying the provisions of this section.
(b) Objections. Any party objecting to
the admission or exclusion of evidence
shall concisely state the grounds. A
ruling on every objection must appear
in the record.
§ 1.656 What are the requirements for
transcription of the hearing?
(a) Transcript and reporter’s fees. The
hearing will be transcribed verbatim.
(1) The Forest Service will secure the
services of a reporter and pay the reporter’s fees to provide an original
transcript to the Forest Service on an
expedited basis.
(2) Each party must pay the reporter
for any copies of the transcript obtained by that party.
(b) Transcript Corrections. (1) Any
party may file a motion proposing corrections to the transcript. The motion
must be filed within 5 days after receipt of the transcript, unless the ALJ
sets a different deadline.
(2) Unless a party files a timely motion under paragraph (b)(1) of this section, the transcript will be presumed to
be correct and complete, except for obvious typographical errors.
(3) As soon as practicable after the
close of the hearing and after consideration of any motions filed under paragraph (b)(1) of this section, the ALJ
will issue an order making any corrections to the transcript that the ALJ
finds are warranted.

§ 1.657

What is the standard of proof?

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

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§ 1.671

§ 1.660 What are the requirements for
the ALJ’s decision?
(a) Timing. The ALJ must issue a decision within the shorter of the following time periods:
(1) 30 days after the close of the hearing under § 1.658; or
(2) 90 days after issuance of the referral notice under § 1.625(c), 43 CFR
45.25(c), or 50 CFR 221.25(c).
(b) Content. (1) The decision must
contain:
(i) Findings of fact on all disputed
issues of material fact;
(ii) Conclusions of law necessary to
make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the
findings of fact proposed by one or
more of the parties.
(3) The decision will not contain conclusions as to whether any preliminary
condition or prescription should be
adopted, modified, or rejected, or
whether any proposed alternative
should be adopted or rejected.
(c) Service. Promptly after issuing his
or her decision, the ALJ must:
(1) Serve the decision on each party
to the hearing; and
(2) Forward a copy of the decision to
FERC, along with the complete hearing
record, for inclusion in the license proceeding record.
(d) Finality. The ALJ’s decision under
this section will be final, with respect
to the disputed issues of material fact,
for any Department involved in the
hearing. To the extent the ALJ’s decision forms the basis for any condition
or prescription subsequently included
in the license, it may be subject to judicial review under 16 U.S.C. 825l(b).

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ALTERNATIVES PROCESS
§ 1.670 How must documents be filed
and served under §§ 1.670 through
1.673?
(a) Filing. (1) For the alternatives
process, documents must be filed using
one of the methods set forth in
§ 1.612(b).
(2) A document is considered filed on
the date it is received. However, any
document received after 5 p.m. at the

place where the filing is due is considered filed on the next regular business
day.
(b) Service. (1) Any document filed
under this section must be served at
the same time the document is delivered or sent for filing. A complete copy
of the document must be served on
each license party and FERC, using:
(i) One of the methods of service in
§ 1.613(c); or
(ii) Regular mail.
(2) The provisions of § 1.613 (d) and (e)
regarding acknowledgment and certificate of service apply to service under
this section.
§ 1.671 How do I propose an alternative?
(a) General. To propose an alternative, you must:
(1) Be a license party; and
(2) File a written proposal with NFS
within 30 days after the deadline for
the Forest Service to file preliminary
conditions with FERC.
(b) Content. Your proposal must include:
(1) A description of the alternative,
in an equivalent level of detail to the
Forest Service’s preliminary condition;
(2) An explanation of how the alternative will provide for the adequate
protection and utilization of the reservation;
(3) An explanation of how the alternative, as compared to the preliminary
condition, will:
(i) Cost significantly less to implement; or
(ii) Result in improved operation of
the project works for electricity production;
(4) An explanation of how the alternative will affect:
(i) Energy supply, distribution, cost,
and use;
(ii) Flood control;
(iii) Navigation;
(iv) Water supply;
(v) Air quality; and
(vi) Other aspects of environmental
quality; and
(5) Specific citations to any scientific
studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (e.g., regarding the cost of energy or the rate

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of inflation). If any such document is
not already in the license proceeding
record, you must provide a copy with
the proposal.
§ 1.672 What will the Forest Service do
with a proposed alternative?
If any license party proposes an alternative to a preliminary condition
under § 1.671(a)(1), the Forest Service
must do the following within 60 days
after the deadline for filing comments
to FERC’s NEPA document under 18
CFR 5.25(c):
(a) Analyze the alternative under
§ 1.673; and
(b) File with FERC:
(1) Any condition that the Forest
Service adopts as its modified condition; and
(2) Its analysis of the modified condition and any proposed alternatives
under § 1.673(c).

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§ 1.673 How will the Forest Service
analyze a proposed alternative and
formulate its modified condition?
(a) In deciding whether to adopt a
proposed alternative, the Forest Service must consider evidence and supporting material provided by any license party or otherwise available to
the Forest Service, including:
(1) Any evidence on the implementation costs or operational impacts for
electricity production of the proposed
alternative;
(2) Any comments received on the
Forest Service’s preliminary condition;
(3) Any ALJ decision on disputed
issues of material fact issued under
§ 1.660 with respect to the preliminary
condition;
(4) Comments received on any draft
or final NEPA documents; and
(5) The license party’s proposal under
§ 1.671.
(b) The Forest Service must adopt a
proposed alternative if the Forest Service determines, based on substantial
evidence provided by any license party
or otherwise available to the Forest
Service, that the alternative:
(1) Will, as compared to the Forest
Service’s preliminary condition:
(i) Cost significantly less to implement; or

(ii) Result in improved operation of
the project works for electricity production; and
(2) Will provide for the adequate protection and utilization of the reservation.
(c) When the Forest Service files with
FERC the condition that the Forest
Service adopts as its modified condition under §§ 1.672(b), it must also file:
(1) A written statement explaining:
(i) The basis for the adopted condition; and
(ii) If the Forest Service is not adopting any alternative, its reasons for not
doing so; and
(2) Any study, data, and other factual
information relied on that is not already part of the licensing proceeding
record.
(d) The written statement under
paragraph (c)(1) of this section must
demonstrate that the Forest Service
gave equal consideration to the effects
of the condition adopted and any alternative not adopted on:
(1) Energy supply, distribution, cost,
and use;
(2) Flood control;
(3) Navigation;
(4) Water supply;
(5) Air quality; and
(6) Preservation of other aspects of
environmental quality.
§ 1.674 Has OMB approved the information collection provisions of
§§ 1.670 through 1.673?
Yes. This rule contains provisions
that would collect information from
the public. It therefore requires approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C.
3501 et seq. (PRA). According to the
PRA, a Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number that
indicates OMB approval. OMB has reviewed the information collection in
this rule and approved it under OMB
control number 1094–0001.

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