January 12, 2011 7 Parts 1 to 26 Revised as of January 1, 2011 Agriculture Containing a codification of documents of general applicability and future effect As of January 1, 2011

Published by the Office of the Federal RegisterNational Archives and Records Administration as a Special Edition of the Federal Register

 A Special Edition of the Federal Register U.S. GOVERNMENT OFFICIAL EDITION NOTICE Legal Status and Use of Seals and Logos e:\seals\archives.ai

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

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

Use of ISBN Prefix

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

e:\seals\gpologo.eps

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

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

http://bookstore.gpo.gov

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

 Table of Contents Page Explanation v Title 7: SUBTITLE A—Office of the Secretary of Agriculture 3 Finding Aids: Table of CFR Titles and Chapters 545 Alphabetical List of Agencies Appearing in the CFR 565 List of CFR Sections Affected 575

Cite this Code:CFR

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

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

Title 1 through Title 16

as of January 1

Title 17 through Title 27

as of April 1

Title 28 through Title 41

as of July 1

Title 42 through Title 50

as of October 1

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

LEGAL STATUS

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

 HOW TO USE THE CODE OF FEDERAL REGULATIONS

The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.

To determine whether a Code volume has been amended since its revision date (in this case, January 1, 2011), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.

 EFFECTIVE AND EXPIRATION DATES

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

 OMB CONTROL NUMBERS

The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.

 OBSOLETE PROVISIONS

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

 “[RESERVED]” TERMINOLOGY

The term “[Reserved]” is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a “[Reserved]” location at any time. Occasionally “[Reserved]” is used editorially to indicate that a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error.

 INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010.

 CFR INDEXES AND TABULAR GUIDES

A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

An index to the text of “Title 3—The President” is carried within that volume.

The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.

A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

 REPUBLICATION OF MATERIAL

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

 INQUIRIES

For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.

For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail fedreg.info@nara.gov.

 SALES

The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Printing Office - New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

 ELECTRONIC SERVICES

The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic format via www.ofr.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, gpo@custhelp.com.

The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA's web site at www.archives.gov/federal-register.

Raymond A. Mosley,

Director,

Office of the Federal Register.

January 1, 2011.

THIS TITLE

Title 7—Agriculture is composed of fifteen volumes. The parts in these volumes are arranged in the following order: Parts 1-26, 27-52, 53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-1599, 1600-1759, 1760-1939, 1940-1949, 1950-1999, and part 2000 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2011.

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

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

For this volume, Michele Bugenhagen was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.

 <LRH>7 CFR Subtitle A (1-1-11 Edition)</LRH> <RRH>Office of the Secretary, USDA</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 7—Agriculture</HD> <P>(This book contains parts 1 to 26)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT>SUBTITLE A—<E T="04">Office of the Secretary of Agriculture</E> </SUBJECT> <PG>1</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle A—Office of the Secretary of Agriculture</HD> <TOC> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1</PT> <SUBJECT>Administrative regulations</SUBJECT> <PG>5</PG> <PT>1a</PT> <SUBJECT>Law enforcement authorities</SUBJECT> <PG>118</PG> <PT>1b</PT> <SUBJECT>National Environmental Policy Act</SUBJECT> <PG>119</PG> <PT>1c</PT> <SUBJECT>Protection of human subjects</SUBJECT> <PG>121</PG> <PT>2</PT> <SUBJECT>Delegations of authority by the Secretary of Agriculture and general officers of the Department</SUBJECT> <PG>132</PG> <PT>3</PT> <SUBJECT>Debt management</SUBJECT> <PG>299</PG> <PT>4</PT> <RESERVED>[Reserved]</RESERVED> <PT>5</PT> <SUBJECT>Determination of parity prices</SUBJECT> <PG>328</PG> <PT>6</PT> <SUBJECT>Import quotas and fees</SUBJECT> <PG>332</PG> <PT>7</PT> <SUBJECT>Selection and functions of Agricultural Stabilization and Conservation State, county and community committees</SUBJECT> <PG>349</PG> <PT>8</PT> <SUBJECT>4-H Club name and emblem</SUBJECT> <PG>362</PG> <PT>9-10</PT> <RESERVED>[Reserved]</RESERVED> <PT>11</PT> <SUBJECT>National Appeals Division</SUBJECT> <PG>365</PG> <PT>12</PT> <SUBJECT>Highly erodible land and wetland conservation</SUBJECT> <PG>377</PG> <PT>13</PT> <RESERVED>[Reserved]</RESERVED> <PT>14</PT> <SUBJECT>Determining the primary purpose of certain payments for Federal tax purposes</SUBJECT> <PG>399</PG> <PT>15</PT> <SUBJECT>Nondiscrimination</SUBJECT> <PG>402</PG> <PT>15a</PT> <SUBJECT>Education programs or activities receiving or benefitting from Federal financial assistance</SUBJECT> <PG>428</PG> <PT>15b</PT> <SUBJECT>Nondiscrimination on the basis of handicap in programs or activities receiving Federal financial assistance</SUBJECT> <PG>444</PG> <PT>15d</PT> <SUBJECT>Nondiscrimination in programs or activities conducted by the United States Department of Agriculture</SUBJECT> <PG>467</PG> <PT>15e</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the United States Department of Agriculture</SUBJECT> <PG>468</PG> <PT>15f</PT> <SUBJECT>Adjudications under section 741</SUBJECT> <PG>474<PRTPAGE P="4"/> </PG> <PT>16</PT> <SUBJECT>Equal opportunity for religious organizations</SUBJECT> <PG>483</PG> <PT>17</PT> <SUBJECT>Sales of agricultural commodities made available under Title 1 of the Agricultural Trade Development and Assistance Act of 1954, as amended</SUBJECT> <PG>485</PG> <PT>18</PT> <SUBJECT>Equal employment opportunity in the State Cooperative Extension Services</SUBJECT> <PG>502</PG> <PT>19</PT> <RESERVED>[Reserved]</RESERVED> <PT>20</PT> <SUBJECT>Export sales reporting requirements</SUBJECT> <PG>505</PG> <PT>21</PT> <SUBJECT>Uniform relocation assistance and real property acquisition for Federal and federally assisted programs</SUBJECT> <PG>512</PG> <PT>22</PT> <SUBJECT>Rural development coordination</SUBJECT> <PG>512</PG> <PT>23</PT> <SUBJECT>State and regional annual plans of work</SUBJECT> <PG>518</PG> <PT>24</PT> <RESERVED>[Reserved]</RESERVED> <PT>25</PT> <SUBJECT>Rural empowerment zones and enterprise communities</SUBJECT> <PG>522</PG> <PT>26</PT> <RESERVED>[Reserved]</RESERVED> </CHAPTI> </TOC> <PART> <PRTPAGE P="5"/> <EAR>Pt. 1</EAR> <HD SOURCE="HED">PART 1—ADMINISTRATIVE REGULATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Official Records</HD> <SECHD>Sec.</SECHD> <SECTNO>1.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1.3</SECTNO> <SUBJECT>Agency implementing regulations.</SUBJECT> <SECTNO>1.4</SECTNO> <SUBJECT>Public access to certain materials.</SUBJECT> <SECTNO>1.5</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <SECTNO>1.6</SECTNO> <SUBJECT>Aggregating requests.</SUBJECT> <SECTNO>1.7</SECTNO> <SUBJECT>Agency response to requests for records.</SUBJECT> <SECTNO>1.8</SECTNO> <SUBJECT>Multitrack processing.</SUBJECT> <SECTNO>1.9</SECTNO> <SUBJECT>Expedited processing.</SUBJECT> <SECTNO>1.10</SECTNO> <SUBJECT>Search services.</SUBJECT> <SECTNO>1.11</SECTNO> <SUBJECT>Review services.</SUBJECT> <SECTNO>1.12</SECTNO> <SUBJECT>Handling information from a private business.</SUBJECT> <SECTNO>1.13</SECTNO> <SUBJECT>Date of receipt of requests or appeals.</SUBJECT> <SECTNO>1.14</SECTNO> <SUBJECT>Appeals.</SUBJECT> <SECTNO>1.15</SECTNO> <SUBJECT>General provisions respecting release of records.</SUBJECT> <SECTNO>1.16</SECTNO> <SUBJECT>Extension of administrative deadlines.</SUBJECT> <SECTNO>1.17</SECTNO> <SUBJECT>Failure to meet administrative deadlines.</SUBJECT> <SECTNO>1.18</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <SECTNO>1.19</SECTNO> <SUBJECT>Exemptions and discretionary release.</SUBJECT> <SECTNO>1.20</SECTNO> <SUBJECT>Annual report.</SUBJECT> <SECTNO>1.21</SECTNO> <SUBJECT>Compilation of new records.</SUBJECT> <SECTNO>1.22</SECTNO> <SUBJECT>Authentication.</SUBJECT> <SECTNO>1.23</SECTNO> <SUBJECT>Records in formal adjudication proceedings.</SUBJECT> <SECTNO>1.24</SECTNO> <SUBJECT>Preservation of records.</SUBJECT> <SECTNO>1.25</SECTNO> <SUBJECT>Implementing regulations for the Office of the Secretary and the Office of Communications.</SUBJECT> <APP>Appendix A to Subpart A—Fee Schedule</APP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Departmental Proceedings</HD> <SECTNO>1.26</SECTNO> <SUBJECT>Representation before the Department of Agriculture.</SUBJECT> <SECTNO>1.27</SECTNO> <SUBJECT>Rulemaking and other notice procedures.</SUBJECT> <SECTNO>1.28</SECTNO> <SUBJECT>Petitions.</SUBJECT> <SECTNO>1.29</SECTNO> <SUBJECT>Subpoenas relating to investigations under statutes administered by the Secretary of Agriculture.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Judicial Proceedings</HD> <SECTNO>1.41</SECTNO> <SUBJECT>Service of process.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Claims</HD> <SECTNO>1.51</SECTNO> <SUBJECT>Claims based on negligence, wrongful act or omission.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Cooperative Production of Television Films</HD> <SECTNO>1.71</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.72</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1.73</SECTNO> <SUBJECT>Responsibility.</SUBJECT> <SECTNO>1.74</SECTNO> <SUBJECT>Basis for special working relationships.</SUBJECT> <SECTNO>1.75</SECTNO> <SUBJECT>General stipulations.</SUBJECT> <SECTNO>1.76</SECTNO> <SUBJECT>Department cooperation.</SUBJECT> <SECTNO>1.77</SECTNO> <SUBJECT>Assignment of priorities.</SUBJECT> <SECTNO>1.78</SECTNO> <SUBJECT>Development of special working relationships.</SUBJECT> <SECTNO>1.79</SECTNO> <SUBJECT>Credits.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Privacy Act Regulations</HD> <SECTNO>1.110</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <SECTNO>1.111</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.112</SECTNO> <SUBJECT>Procedures for requests pertaining to individual records in a record system.</SUBJECT> <SECTNO>1.113</SECTNO> <SUBJECT>Times, places, and requirements for identification of individuals making requests.</SUBJECT> <SECTNO>1.114</SECTNO> <SUBJECT>Disclosure of requested information to individuals.</SUBJECT> <SECTNO>1.115</SECTNO> <SUBJECT>Special procedures: Medical records.</SUBJECT> <SECTNO>1.116</SECTNO> <SUBJECT>Request for correction or amendment to record.</SUBJECT> <SECTNO>1.117</SECTNO> <SUBJECT>Agency review of request for correction or amendment of record.</SUBJECT> <SECTNO>1.118</SECTNO> <SUBJECT>Appeal of initial adverse agency determination on correction or amendment.</SUBJECT> <SECTNO>1.119</SECTNO> <SUBJECT>Disclosure of record to person other than the individual to whom it pertains.</SUBJECT> <SECTNO>1.120</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1.121</SECTNO> <SUBJECT>Penalties.</SUBJECT> <SECTNO>1.122</SECTNO> <SUBJECT>General exemptions.</SUBJECT> <SECTNO>1.123</SECTNO> <SUBJECT>Specific exemptions.</SUBJECT> <APP>Appendix A to Subpart G—Internal Directives</APP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes</HD> <SECTNO>1.130</SECTNO> <SUBJECT>Meaning of words.</SUBJECT> <SECTNO>1.131</SECTNO> <SUBJECT>Scope and applicability of this subpart.</SUBJECT> <SECTNO>1.132</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.133</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <SECTNO>1.134</SECTNO> <SUBJECT>Docket number.</SUBJECT> <SECTNO>1.135</SECTNO> <SUBJECT>Contents of complaint or petition for review.</SUBJECT> <SECTNO>1.136</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>1.137</SECTNO> <SUBJECT>Amendment of complaint, petition for review, or answer; joinder of related matters.</SUBJECT> <SECTNO>1.138</SECTNO> <SUBJECT>Consent decision.</SUBJECT> <SECTNO>1.139</SECTNO> <SUBJECT>Procedure upon failure to file an answer or admission of facts.</SUBJECT> <SECTNO>1.140</SECTNO> <SUBJECT>Conferences and procedure.</SUBJECT> <SECTNO>1.141</SECTNO> <SUBJECT>Procedure for hearing.</SUBJECT> <SECTNO>1.142</SECTNO> <SUBJECT>Post-hearing procedure.</SUBJECT> <SECTNO>1.143</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>1.144</SECTNO> <SUBJECT>Judges.</SUBJECT> <SECTNO>1.145</SECTNO> <SUBJECT>Appeal to Judicial Officer.</SUBJECT> <SECTNO>1.146</SECTNO> <SUBJECT>Petitions for reopening hearing; for rehearing or reargument of proceeding; or for reconsideration of the decision of the Judicial Officer.</SUBJECT> <SECTNO>1.147</SECTNO> <SUBJECT>Filing; service; extensions of time; and computation of time.</SUBJECT> <SECTNO>1.148</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>1.149</SECTNO> <SUBJECT>Subpoenas.<PRTPAGE P="6"/> </SUBJECT> <SECTNO>1.150</SECTNO> <SUBJECT>Fees of witnesses.</SUBJECT> <SECTNO>1.151</SECTNO> <SUBJECT> <E T="03">Ex parte</E> communications.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Rules of Practice Governing Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act</HD> <SECTNO>1.160</SECTNO> <SUBJECT>Scope and applicability of rules in this part.</SUBJECT> <SECTNO>1.161</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.162</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <SECTNO>1.163</SECTNO> <SUBJECT>The complaint.</SUBJECT> <SECTNO>1.164</SECTNO> <SUBJECT>Answer.</SUBJECT> <SECTNO>1.165</SECTNO> <SUBJECT>Amendments.</SUBJECT> <SECTNO>1.166</SECTNO> <SUBJECT>Consent order.</SUBJECT> <SECTNO>1.167</SECTNO> <SUBJECT>Conference.</SUBJECT> <SECTNO>1.168</SECTNO> <SUBJECT>Procedure for hearing.</SUBJECT> <SECTNO>1.169</SECTNO> <SUBJECT>Post-hearing procedure and decision.</SUBJECT> <SECTNO>1.170</SECTNO> <SUBJECT>Appeal to the Judicial Officer.</SUBJECT> <SECTNO>1.171</SECTNO> <SUBJECT>Intervention.</SUBJECT> <SECTNO>1.172</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>1.173</SECTNO> <SUBJECT>Judges.</SUBJECT> <SECTNO>1.174</SECTNO> <SUBJECT>Filing; service; extensions of time; and computation of time.</SUBJECT> <SECTNO>1.175</SECTNO> <SUBJECT>Procedure following entry of cease and desist order.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Procedures Relating to Awards Under the Equal Access to Justice Act in Proceedings Before the Department</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>1.180</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.181</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <SECTNO>1.182</SECTNO> <SUBJECT>When EAJA applies.</SUBJECT> <SECTNO>1.183</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <SECTNO>1.184</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <SECTNO>1.185</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <SECTNO>1.186</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <SECTNO>1.187</SECTNO> <SUBJECT>Rulemaking on maximum rates for attorney fees.</SUBJECT> <SECTNO>1.188</SECTNO> <SUBJECT>Awards against other agencies.</SUBJECT> <SECTNO>1.189</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information Required From Applicants</HD> <SECTNO>1.190</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>1.191</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <SECTNO>1.192</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <SECTNO>1.193</SECTNO> <SUBJECT>Time for filing application.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Considering Applications</HD> <SECTNO>1.194</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <SECTNO>1.195</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <SECTNO>1.196</SECTNO> <SUBJECT>Reply.</SUBJECT> <SECTNO>1.197</SECTNO> <SUBJECT>Comments by other parties.</SUBJECT> <SECTNO>1.198</SECTNO> <SUBJECT>Settlement.</SUBJECT> <SECTNO>1.199</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <SECTNO>1.200</SECTNO> <SUBJECT>Decision.</SUBJECT> <SECTNO>1.201</SECTNO> <SUBJECT>Department review.</SUBJECT> <SECTNO>1.202</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>1.203</SECTNO> <SUBJECT>Payment of award.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Appearance of USDA Employees as Witnesses in Judicial or Administrative Proceedings</HD> <SECTNO>1.210</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.211</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.212</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1.213</SECTNO> <SUBJECT>Appearance as a witness on behalf of the United States.</SUBJECT> <SECTNO>1.214</SECTNO> <SUBJECT>Appearance as a witness on behalf of a party other than the United States where the United States is not a party.</SUBJECT> <SECTNO>1.215</SECTNO> <SUBJECT>Subpoenas duces tecum for USDA records in judicial or administrative proceedings in which the United States is not a party.</SUBJECT> <SECTNO>1.216</SECTNO> <SUBJECT>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.</SUBJECT> <SECTNO>1.217</SECTNO> <SUBJECT>Witness fees and travel expenses.</SUBJECT> <SECTNO>1.218</SECTNO> <SUBJECT>Penalty.</SUBJECT> <SECTNO>1.219</SECTNO> <SUBJECT>Delegations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986</HD> <SECTNO>1.301</SECTNO> <SUBJECT>Basis, purpose and scope.</SUBJECT> <SECTNO>1.302</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.303</SECTNO> <SUBJECT>Basis for civil penalties and assessments.</SUBJECT> <SECTNO>1.304</SECTNO> <SUBJECT>Investigation.</SUBJECT> <SECTNO>1.305</SECTNO> <SUBJECT>Review by the reviewing official.</SUBJECT> <SECTNO>1.306</SECTNO> <SUBJECT>Prerequisites for issuing a complaint.</SUBJECT> <SECTNO>1.307</SECTNO> <SUBJECT>Complaint.</SUBJECT> <SECTNO>1.308</SECTNO> <SUBJECT>Service of complaint and notice of hearing.</SUBJECT> <SECTNO>1.309</SECTNO> <SUBJECT>Answer and request for hearing.</SUBJECT> <SECTNO>1.310</SECTNO> <SUBJECT>Default upon failure to file an answer.</SUBJECT> <SECTNO>1.311</SECTNO> <SUBJECT>Referral of complaint and answer to the ALJ.</SUBJECT> <SECTNO>1.312</SECTNO> <SUBJECT>Procedure where respondent does not request a hearing.</SUBJECT> <SECTNO>1.313</SECTNO> <SUBJECT>Procedure where respondent requests a hearing; notice of hearing.</SUBJECT> <SECTNO>1.314</SECTNO> <SUBJECT>Parties to the hearing.</SUBJECT> <SECTNO>1.315</SECTNO> <SUBJECT>Separation of functions.</SUBJECT> <SECTNO>1.316</SECTNO> <SUBJECT> <E T="03">Ex parte</E> contacts.</SUBJECT> <SECTNO>1.317</SECTNO> <SUBJECT>Disqualification of reviewing official or ALJ.</SUBJECT> <SECTNO>1.318</SECTNO> <SUBJECT>Rights of parties.</SUBJECT> <SECTNO>1.319</SECTNO> <SUBJECT>Authority of the ALJ.</SUBJECT> <SECTNO>1.320</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <SECTNO>1.321</SECTNO> <SUBJECT>Disclosure of documents.</SUBJECT> <SECTNO>1.322</SECTNO> <SUBJECT>Discovery.</SUBJECT> <SECTNO>1.323</SECTNO> <SUBJECT>Subpoenas for attendance at hearing.</SUBJECT> <SECTNO>1.324</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1.325</SECTNO> <SUBJECT>Form, filing and service of papers.</SUBJECT> <SECTNO>1.326</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <SECTNO>1.327</SECTNO> <SUBJECT>Motions.</SUBJECT> <SECTNO>1.328</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <SECTNO>1.329</SECTNO> <SUBJECT>The hearing and burden of proof.</SUBJECT> <SECTNO>1.330</SECTNO> <SUBJECT>Location of hearing.</SUBJECT> <SECTNO>1.331</SECTNO> <SUBJECT>Witnesses.<PRTPAGE P="7"/> </SUBJECT> <SECTNO>1.332</SECTNO> <SUBJECT>Evidence.</SUBJECT> <SECTNO>1.333</SECTNO> <SUBJECT>The record.</SUBJECT> <SECTNO>1.334</SECTNO> <SUBJECT>Post-hearing briefs.</SUBJECT> <SECTNO>1.335</SECTNO> <SUBJECT>Determining the amount of penalties and assessments.</SUBJECT> <SECTNO>1.336</SECTNO> <SUBJECT>Initial decision of the ALJ.</SUBJECT> <SECTNO>1.337</SECTNO> <SUBJECT>Reconsideration of initial decision.</SUBJECT> <SECTNO>1.338</SECTNO> <SUBJECT>Appeal to the judicial officer.</SUBJECT> <SECTNO>1.339</SECTNO> <SUBJECT>Stays ordered by the Department of Justice.</SUBJECT> <SECTNO>1.340</SECTNO> <SUBJECT>Stay pending appeal.</SUBJECT> <SECTNO>1.341</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>1.342</SECTNO> <SUBJECT>Collection of civil penalties and assessments.</SUBJECT> <SECTNO>1.343</SECTNO> <SUBJECT>Right to administrative offset.</SUBJECT> <SECTNO>1.344</SECTNO> <SUBJECT>Deposit to Treasury of the United States.</SUBJECT> <SECTNO>1.345</SECTNO> <SUBJECT>Settlement.</SUBJECT> <SECTNO>1.346</SECTNO> <SUBJECT>Limitation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">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 <E T="0714">et seq.</E>)</HD> <SECTNO>1.410</SECTNO> <SUBJECT>Meaning of words.</SUBJECT> <SECTNO>1.411</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.412</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <SECTNO>1.413</SECTNO> <SUBJECT>Submission of a sourcing area application.</SUBJECT> <SECTNO>1.414</SECTNO> <SUBJECT>Docket number.</SUBJECT> <SECTNO>1.415</SECTNO> <SUBJECT>Notification of proceedings.</SUBJECT> <SECTNO>1.416</SECTNO> <SUBJECT>Comment period.</SUBJECT> <SECTNO>1.417</SECTNO> <SUBJECT>Review period.</SUBJECT> <SECTNO>1.418</SECTNO> <SUBJECT>Procedure upon no request for hearing.</SUBJECT> <SECTNO>1.419</SECTNO> <SUBJECT>Amendment of a sourcing area application.</SUBJECT> <SECTNO>1.420</SECTNO> <SUBJECT>Consent recommendation.</SUBJECT> <SECTNO>1.421</SECTNO> <SUBJECT>Prehearing conferences and procedures.</SUBJECT> <SECTNO>1.422</SECTNO> <SUBJECT>Conduct of the hearing.</SUBJECT> <SECTNO>1.423</SECTNO> <SUBJECT>Post-hearing procedure.</SUBJECT> <SECTNO>1.424</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <SECTNO>1.425</SECTNO> <SUBJECT>Judges.</SUBJECT> <SECTNO>1.426</SECTNO> <SUBJECT>Appeal to Judicial Officer.</SUBJECT> <SECTNO>1.427</SECTNO> <SUBJECT>Filing; identification of parties of record; service; and computation of time.</SUBJECT> <SECTNO>1.428</SECTNO> <SUBJECT>Depositions.</SUBJECT> <SECTNO>1.429</SECTNO> <SUBJECT> <E T="03">Ex parte</E> communications.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Policy With Regard to Indemnification of Department of Agriculture Employees</HD> <SECTNO>1.501</SECTNO> <SUBJECT>Policy on employee indemnification.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart O—Conditions in FERC Hydropower Licenses</HD> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTNO>1.601</SECTNO> <SUBJECT>What is the purpose of this subpart, and to what license proceedings does it apply?</SUBJECT> <SECTNO>1.602</SECTNO> <SUBJECT>What terms are used in this subpart?</SUBJECT> <SECTNO>1.603</SECTNO> <SUBJECT>How are time periods computed?</SUBJECT> <SECTNO>1.604</SECTNO> <SUBJECT>What deadlines apply to pending applications?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing Process</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Representatives</HD> <SECTNO>1.610</SECTNO> <SUBJECT>Who may represent a party, and what requirements apply to a representative?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Document Filing and Service</HD> <SECTNO>1.611</SECTNO> <SUBJECT>What are the form and content requirements for documents under §§ 1.611 through 1.660?</SUBJECT> <SECTNO>1.612</SECTNO> <SUBJECT>Where and how must documents be filed?</SUBJECT> <SECTNO>1.613</SECTNO> <SUBJECT>What are the requirements for service of documents?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Initiation of Hearing Process</HD> <SECTNO>1.620</SECTNO> <SUBJECT>What supporting information must the Forest Service provide with its preliminary conditions?</SUBJECT> <SECTNO>1.621</SECTNO> <SUBJECT>How do I request a hearing?</SUBJECT> <SECTNO>1.622</SECTNO> <SUBJECT>How do I file a notice of intervention and response?</SUBJECT> <SECTNO>1.623</SECTNO> <SUBJECT>When will hearing requests be consolidated?</SUBJECT> <SECTNO>1.624</SECTNO> <SUBJECT>How will the Forest Service respond to any hearing requests?</SUBJECT> <SECTNO>1.625</SECTNO> <SUBJECT>What will the Forest Service do with any hearing requests?</SUBJECT> <SECTNO>1.626</SECTNO> <SUBJECT>What regulations apply to a case referred for a hearing?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General Provisions Related to Hearings</HD> <SECTNO>1.630</SECTNO> <SUBJECT>What will OALJ do with a case referral?</SUBJECT> <SECTNO>1.631</SECTNO> <SUBJECT>What are the powers of the ALJ?</SUBJECT> <SECTNO>1.632</SECTNO> <SUBJECT>What happens if the ALJ becomes unavailable?</SUBJECT> <SECTNO>1.633</SECTNO> <SUBJECT>Under what circumstances may the ALJ be disqualified?</SUBJECT> <SECTNO>1.634</SECTNO> <SUBJECT>What is the law governing ex parte communications?</SUBJECT> <SECTNO>1.635</SECTNO> <SUBJECT>What are the requirements for motions?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Prehearing Conferences and Discovery</HD> <SECTNO>1.640</SECTNO> <SUBJECT>What are the requirements for prehearing conferences?</SUBJECT> <SECTNO>1.641</SECTNO> <SUBJECT>How may parties obtain discovery of information needed for the case?</SUBJECT> <SECTNO>1.642</SECTNO> <SUBJECT>When must a party supplement or amend information it has previously provided?</SUBJECT> <SECTNO>1.643</SECTNO> <SUBJECT>What are the requirements for written interrogatories?</SUBJECT> <SECTNO>1.644</SECTNO> <SUBJECT>What are the requirements for depositions?</SUBJECT> <SECTNO>1.645</SECTNO> <SUBJECT>What are the requirements for requests for documents or tangible things or entry on land?</SUBJECT> <SECTNO>1.646</SECTNO> <SUBJECT>What sanctions may the ALJ impose for failure to comply with discovery?<PRTPAGE P="8"/> </SUBJECT> <SECTNO>1.647</SECTNO> <SUBJECT>What are the requirements for subpoenas and witness fees?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing, Briefing, and Decision</HD> <SECTNO>1.650</SECTNO> <SUBJECT>When and where will the hearing be held?</SUBJECT> <SECTNO>1.651</SECTNO> <SUBJECT>What are the parties' rights during the hearing?</SUBJECT> <SECTNO>1.652</SECTNO> <SUBJECT>What are the requirements for presenting testimony?</SUBJECT> <SECTNO>1.653</SECTNO> <SUBJECT>How may a party use a deposition in the hearing?</SUBJECT> <SECTNO>1.654</SECTNO> <SUBJECT>What are the requirements for exhibits, official notice, and stipulations?</SUBJECT> <SECTNO>1.655</SECTNO> <SUBJECT>What evidence is admissible at the hearing?</SUBJECT> <SECTNO>1.656</SECTNO> <SUBJECT>What are the requirements for transcription of the hearing?</SUBJECT> <SECTNO>1.657</SECTNO> <SUBJECT>What is the standard of proof?</SUBJECT> <SECTNO>1.658</SECTNO> <SUBJECT>When will the hearing record close?</SUBJECT> <SECTNO>1.659</SECTNO> <SUBJECT>What are the requirements for post-hearing briefs?</SUBJECT> <SECTNO>1.660</SECTNO> <SUBJECT>What are the requirements for the ALJ's decision?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Alternatives Process</HD> <SECTNO>1.670</SECTNO> <SUBJECT>How must documents be filed and served under §§ 1.670 through 1.673?</SUBJECT> <SECTNO>1.671</SECTNO> <SUBJECT>How do I propose an alternative?</SUBJECT> <SECTNO>1.672</SECTNO> <SUBJECT>What will the Forest Service do with a proposed alternative?</SUBJECT> <SECTNO>1.673</SECTNO> <SUBJECT>How will the Forest Service analyze a proposed alternative and formulate its modified conditions?</SUBJECT> <SECTNO>1.674</SECTNO> <SUBJECT>Has OMB approved the information collection provisions of §§ 1.670 through 1.673?</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, unless otherwise noted.</P> </AUTH> <SUBPART> <HD SOURCE="HED">Subpart A—Official Records</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301, 552; 7 U.S.C. 3125a; 31 U.S.C. 9701; and 7 CFR 2.28(b)(7)(viii).</P> </AUTH> <SECTION> <SECTNO>§ 1.1</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart establishes policy, procedures, requirements, and responsibilities for administration and coordination of the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, pursuant to which any person may obtain official records. It also provides rules pertaining to the disclosure of records pursuant to compulsory process. This subpart also serves as the implementing regulations (referred to in § 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.</P> <CITA>[65 FR 46336, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[65 FR 46337, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.3</SECTNO> <SUBJECT>Agency implementing regulations.</SUBJECT> <P>Each agency of the Department shall promulgate regulations setting forth the following:</P> <P>(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.</P> <P>(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);</P> <P>(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:<PRTPAGE P="9"/> </P> <P>(1) Extend the 20 working day administrative deadline for reply pursuant to § 1.16;</P> <P>(2) Make discretionary releases pursuant to § 1.19(b);</P> <P>(3) Make determinations regarding the charging of fees pursuant to appendix A to this subpart;</P> <P>(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:</P> <P>(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;</P> <P>(2) Make discretionary releases pursuant to § 1.19(b);</P> <P>(3) Make determinations regarding the charging of fees pursuant to appendix A to this subpart; and</P> <P>(e) Other information which would be of concern to a person wishing to request records from that agency in accordance with this subpart.</P> <CITA>[65 FR 46337, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.4</SECTNO> <SUBJECT>Public access to certain materials.</SUBJECT> <P>(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):</P> <P>(1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;</P> <P>(2) Those statements of policy and interpretation which have been adopted by the agency and are not published in the <E T="04">Federal Register</E>;</P> <P>(3) Administrative staff manuals and instructions to staff that affect a member of the public;</P> <P>(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:</P> <P>(i) Previous experience with similar records;</P> <P>(ii) The particular characteristics of the records involved, including their nature and the type of information contained in them; and</P> <P>(iii) The identity and number of requesters and whether there is widespread media, historical, academic, or commercial interest in the records.</P> <P>(5) A general index of the records referred to in paragraph (a)(4) of this section.</P> <P>(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.</P> <P>(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 <E T="04">Federal Register</E> 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.</P> <P>(d) Each agency is responsible for preparing reference material or a guide for requesting records or information from that agency. This guide shall also include an index of all major information systems, and a description of major information and record locator systems.</P> <P>(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 <PRTPAGE P="10"/>records. The handbook should be available on paper and through electronic means, and it should identify how a requester can access agency Freedom of Information Act annual reports. Similarly, the annual reports should refer to the handbook and how to obtain it.</P> <P>(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.</P> <CITA>[65 FR 46337, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.5</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <P>(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.</P> <P>(b) A request must reasonably describe the records to enable agency personnel to locate them with reasonable effort. Where possible, a requester should supply specific information regarding dates, titles, names of individuals, names of offices, and names of agencies or other organizations that may help identify the records. If the request relates to a matter in pending litigation, the requester should identify the court and its location.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(h) Each agency shall develop and maintain a record of all written requests and appeals received in that agency. The record shall include the names of the requester; a brief summary of the information requested; whether the request or appeal was granted, denied, or partially denied; the exemption from mandatory disclosure under 5 U.S.C. 552(b) upon which any denial was based; and the amount <PRTPAGE P="11"/>of any fees associated with the request or appeal.</P> <CITA>[65 FR 46337, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.6</SECTNO> <SUBJECT>Aggregating requests.</SUBJECT> <P>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.</P> <CITA>[65 FR 46338, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.7</SECTNO> <SUBJECT>Agency response to requests for records.</SUBJECT> <P>(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:</P> <P>(1) The reasons for the denial;</P> <P>(2) The name and title or position of each person responsible for denial of the request;</P> <P>(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</P> <P>(4) The requirement that such appeal be made within 45 days of the date of the denial.</P> <P>(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 <E T="03">http://www/nara.gov/nara.nail.html</E>, 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.</P> <CITA>[65 FR 46338, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.8</SECTNO> <SUBJECT>Multitrack processing.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Agencies may provide a requester whose request does not qualify for the fastest track an opportunity to limit the scope of the request in order to qualify for a faster track. This multitrack processing system does not lessen agency responsibility to exercise due diligence in processing requests in the most expeditious manner possible.</P> <P>(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 <PRTPAGE P="12"/>requester is entitled to expedited processing as set forth in § 1.9.</P> <CITA>[65 FR 46338, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.9</SECTNO> <SUBJECT>Expedited processing.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(2) An urgency to inform the public about an actual or alleged federal government activity, if made by an individual primarily engaged in disseminating information. Representatives of the news media would normally qualify as individuals primarily engaged in disseminating information; however, other requesters must demonstrate that their primary activity involves publishing or otherwise disseminating information to the public as a whole, and not just a particular segment or group. “Urgency” contemplates that the information has a particular value that will be lost if not disseminated quickly. Ordinarily this means a breaking news story of general public interest. Information of historical interest only or information sought for litigation or commercial activities would not meet the test of urgency, nor would a news media publication or broadcast deadline unrelated to the news breaking nature of the information.</P> <P>(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.</P> <P>(d) the same procedures apply to requests for expedited processing of administrative appeals.</P> <CITA>[65 FR 46338, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.10</SECTNO> <SUBJECT>Search services.</SUBJECT> <P>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.</P> <CITA>[65 FR 46339, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.11</SECTNO> <SUBJECT>Review services.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) Review services do not include the time spent resolving general legal or policy issues regarding the application of exemptions.</P> <CITA>[65 FR 46339, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.12</SECTNO> <SUBJECT>Handling information from a private business.</SUBJECT> <P>Each USDA agency is responsible for making the final determination with <PRTPAGE P="13"/>regard to the disclosure or nondisclosure of information in agency records that has been submitted by a business. When, in the course of responding to an FOIA request, an agency cannot readily determine whether the information obtained from a person is privileged or confidential business information, the policy of USDA is to obtain and consider the views of the submitter of the information and to provide the submitter an opportunity to object to any decision to disclose the information. If a request (including a subpoena duces tecum as described in § 1.215) is received in USDA for information that has been submitted by a business, the agency shall:</P> <P>(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;</P> <P>(b) Notify the requester of the need to inform the submitter of a request for submitted business information;</P> <P>(c) Determine whether the requested records are exempt from disclosure or must be released;</P> <P>(d) Provide business information submitters with notice of any determination to disclose such records prior to the disclosure date, in order that the matter may be considered for possible judicial intervention; and</P> <P>(e) Notify business information submitters promptly of all instances in which FOIA requesters bring suit seeking to compel disclosure of submitted information.</P> <CITA>[65 FR 46339, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.13</SECTNO> <SUBJECT>Date of receipt of requests or appeals.</SUBJECT> <P>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.</P> <CITA>[65 FR 46339, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.14</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>(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.</P> <P>(b) Each agency shall provide for review of appeals by an official different from the official or officials designated to make initial denials.</P> <P>(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:</P> <P>(1) The reasons for denial;</P> <P>(2) The name and title or position of each person responsible for denial of the appeal; and</P> <P>(3) The right to judicial review of the denial in accordance with 5 U.S.C. 552(a)(4).</P> <P>(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, <PRTPAGE P="14"/>the agency shall enclose an informative summary of those records. The agency shall not deny an appeal until it receives concurrence from the Assistant General Counsel</P> <P>(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.</P> <CITA>[65 FR 46339, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.15</SECTNO> <SUBJECT>General provisions respecting release of records.</SUBJECT> <P>(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.</P> <P>(b) In the event a requested record contains some portions that are exempt from mandatory disclosure and others that are not, the official responding to the request shall ensure that all reasonably segregable nonexempt portions are disclosed, and that all exempt portions are identified according to the specific exemption or exemptions which are applicable. The amount of deleted information shall be indicated on the released portion of paper records. Deletions may be marked by use of brackets or darkened areas indicating removal of information, or by any other method that would reasonable demonstrate the extent of the deletion. In the case of electronic deletion, or deletion in audiovisual or microfiche records, if technically feasible, the amount of redacted information shall be indicated at the place in the records, if technically feasible, the amount of redacted information shall be indicated at the place in the record where such deletion was made. This may be done by use of brackets, shaded areas, or some other identifiable technique which will clearly show the limits of the deleted information.</P> <P>(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.</P> <P>(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.</P> <P>(e) Whenever duplication fees, or search fees for unsuccessful searches (see sec. 4(f) of appendix A to this subpart), are anticipated to exceed $25.00, and the requester has not indicated, in advance, a willingness to pay fees as high as those anticipated, agencies shall notify the requester of the amount of the anticipated fee. If an extensive and therefore costly successful search is anticipated, agencies also should notify requesters of the anticipated fees. The notification shall offer the requester the opportunity to confer with agency personnel to reform the request to meet the requester's needs at a lower fee. In appropriate cases, an advance deposit in accordance with sec. 8 of appendix A to this subpart may be required.</P> <CITA>[65 FR 46340, July 28, 2000]</CITA> </SECTION> <SECTION> <PRTPAGE P="15"/> <SECTNO>§ 1.16</SECTNO> <SUBJECT>Extension of administrative deadlines.</SUBJECT> <P>(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:</P> <P>(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.</P> <P>(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.</P> <P>(b) As used in this section, “unusual circumstances” that may justify delay are:</P> <P>(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;</P> <P>(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</P> <P>(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. </P> <NOTE> <HD SOURCE="HED">Note to paragraph (<E T="01">b</E>):</HD> <P>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.</P> </NOTE> <P>(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.</P> <P>(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.</P> <CITA>[65 FR 46340, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.17</SECTNO> <SUBJECT>Failure to meet administrative deadlines.</SUBJECT> <P>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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.18</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <P>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 <PRTPAGE P="16"/>for a uniform fee schedule are found in appendix A to this subpart.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.19</SECTNO> <SUBJECT>Exemptions and discretionary release.</SUBJECT> <P>(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.</P> <P>(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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.20</SECTNO> <SUBJECT>Annual report.</SUBJECT> <P>(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:</P> <P>(1) The number of requests for records received and the number of requests which were processed;</P> <P>(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;</P> <P>(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.</P> <P>(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;</P> <P>(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:</P> <P>(6) The median number of days taken by the agency to process different types of requests;</P> <P>(7) The total amount of fees collected by the agency for processing requests;</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.21</SECTNO> <SUBJECT>Compilation of new records.</SUBJECT> <P>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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.22</SECTNO> <SUBJECT>Authentication.</SUBJECT> <P>When a request is received for an authenticated copy of a document that 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 <PRTPAGE P="17"/>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.</P> <CITA>[72 FR 66042, Nov. 27, 2007]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.23</SECTNO> <SUBJECT>Records in formal adjudication proceedings.</SUBJECT> <P>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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.24</SECTNO> <SUBJECT>Preservation of records.</SUBJECT> <P>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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.25</SECTNO> <SUBJECT>Implementing regulations for the Office of the Secretary and the Office of Communications.</SUBJECT> <P>(a) For the Office of the Secretary and for the Office of Communications, the regulations required by § 1.3 are as follows:</P> <P>(1) Records available for public inspection and copying may be obtained in Room 536-A, Jamie L. Whitten Federal Building, USDA, Washington, DC 20250 during the hours of 9 a.m. to 5 p.m. by prior appointment;</P> <P>(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.;</P> <P>(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;</P> <P>(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.</P> <P>(b) The organization and functions of the Office of the Secretary and the Office of Communications is as follows:</P> <P>(1) The Office of the Secretary provides the overall policy guidance and direction of the activities of the Department of Agriculture. Department-wide policy statements and announcements are made from this office.</P> <P>(2) The Office of the Secretary consists of the Secretary, Deputy Secretary, Under Secretaries, Assistant Secretaries, and other staff members.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[65 FR 46341, July 28, 2000]</CITA> </SECTION> <APPENDIX> <EAR>Pt. 1, Subpt. A, App. A</EAR> <HD SOURCE="HED">Appendix A to Subpart A of Part 1—Fee Schedule</HD> <HD SOURCE="HD2">Section 1. General.</HD> <P>This schedule sets forth fees to be charged for providing copies of records—including photographic reproductions, microfilm, maps <PRTPAGE P="18"/>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.</P> <HD SOURCE="HD2">Section 2. Types of services for which fees may be charged.</HD> <P>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.</P> <HD SOURCE="HD2">Section 3. Instances in which fees will not be charged.</HD> <P>(a) Except for requests seeking records for a commercial use (as specified in section 5 of this appendix), no charge shall be made for either: (1) The first 100 pages of duplicated records (8<FR>1/2</FR>″×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.</P> <P>(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.</P> <P>(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.</P> <P>(d) Records shall also be furnished without charge under the following conditions:</P> <P>(1) When filling requests from other Departments or Government agencies for official use, provided quantities requested are reasonable in number;</P> <P>(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</P> <P>(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.</P> <HD SOURCE="HD2">Section 4. Fees for records and related services.</HD> <P>(a) The fee for photocopies of pages 8<FR>1/2</FR>″×14″ or smaller shall be $0.20 per page (per individual side of sheet).</P> <P>(b) The fee for photocopies larger than 8<FR>1/2</FR>″×14″ shall be $0.50 per linear foot of the longest side of the copy.</P> <P>(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.</P> <P>(d) Manual searches shall be charged for in one of the two following manners in the given order:</P> <P>(1) When feasible, at the salary rate of the employee conducting the search, plus 16 percent of the employee's basic pay; or</P> <P>(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.</P> <P>(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.</P> <P>(1) Other rates are published and may be examined at the following places: </P> <FP SOURCE="FP-2">Fort Collins Computer Center Users Manual</FP> <FP SOURCE="FP1-2">Fort Collins Computer Center, U.S. Department of Agriculture, 3825 East Mulberry Street (P.O. Box 1206), Fort Collins, Colo. 80521.</FP> <FP SOURCE="FP-2">National Finance Center, Cost, Productivity & Analysis Section, U.S. Department of Agriculture, 13800 Old Gentilly Road, New Orleans, La. 70129.<PRTPAGE P="19"/> </FP> <FP SOURCE="FP-2">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.</FP> <FP SOURCE="FP-2">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.</FP> <FP SOURCE="FP-2">St. Louis Computer Center, U.S. Department of Agriculture, 1520 Market Street, St. Louis, MO. 63103.</FP> <P>(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.</P> <P>(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.</P> <P>(h) The fee for Certifications shall be $5.00 each; Authentications under Department Seal (including aerial photographs), $10.00 each.</P> <P>(i) All other costs incurred by USDA agencies will be assessed the requester at the actual cost to the Government.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <HD SOURCE="HD2">Section 5. Levels of fees for each category of requesters.</HD> <P>Under the FOIA, there are four categories of FOIA requesters: Commercial use requesters, educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. FOIA prescribes specific levels of fees for each category:</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(1) The term <E T="03">educational institution</E> 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.</P> <P>(2) The term <E T="03">non-commercial scientific institution</E> 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.</P> <P>(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.</P> <P>(1) The term <E T="03">representative of the news media</E> refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public.<PRTPAGE P="20"/> </P> <P>(2) The term <E T="03">news</E> means information that is about current events or that would be of current interest to the public.</P> <P>(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.</P> <P>(4) <E T="03">Freelance</E> 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.</P> <P>(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.</P> <HD SOURCE="HD2">Section 6. Fee waivers and reductions.</HD> <P>(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.</P> <P>(1) In determining when fees shall be waived or reduced, agencies should consider the following six factors:</P> <P>(i) The subject of the request, i.e., whether the subject of the requested records concerns “the operations or activities of the government”;</P> <P>(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;</P> <P>(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”;</P> <P>(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;</P> <P>(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,</P> <P>(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.”</P> <P>(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.</P> <P>(3) Agencies may also waive or reduce fees under the following conditions:</P> <P>(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;</P> <P>(ii) Where the requester is engaged in a nonprofit activity designed for the public safety, health, or welfare; or</P> <P>(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.</P> <P>(4) Fees shall be waived, however, without discretion in all circumstances where the amount of the fee is $25.00 or less.</P> <HD SOURCE="HD2">Section 7. Restrictions regarding copies.</HD> <P>(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.</P> <P>(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.</P> <HD SOURCE="HD2">Section 8. Payments of fees and charges.</HD> <P>(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.</P> <P>(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.</P> <P>(c) Where the estimated fees to be charged exceed $250.00, agencies may require an advance payment of an amount up to the full <PRTPAGE P="21"/>estimated charges (but not less than 50 percent) from the requester before any of the requested materials are reproduced.</P> <P>(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.</P> <HD SOURCE="HD2">Section 9. Interest charges.</HD> <P>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.</P> <HD SOURCE="HD2">Section 10. Effect of the Debt Collection Act on fees.</HD> <P>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.</P> <HD SOURCE="HD2">Section 11. Photographic and digital reproductions of microfilm, aerial imagery, and maps.</HD> <P>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.</P> <HD SOURCE="HD2">Section 12. Agencies which furnish photographic reproductions.</HD> <P>(a) <E T="03">Aerial Photographic reproductions.</E> The following agency of the Department furnishes aerial photographic reproductions:</P> <P>Farm Service Agency (FSA), Aerial Photography Field Office (APFO), USDA, 2222 West 2300 South, Salt Lake City, Utah 84119-2020.</P> <P>(b) <E T="03">Other photographic reproductions.</E> Other types of reproductions may be obtained from the following agency of the Department:</P> <P>National Agricultural Library, Agricultural Research Service, USDA, Office of the Deputy Director, Technical Information Systems, Room 200, NAL Building, Beltsville, MD 20705.</P> <HD SOURCE="HD2">Section 13. Circumstances under which reproductions may be provided free.</HD> <P>Reproductions may be furnished free at the discretion of the agency, if it determines that furnishing free reproductions is in the public interest, to:</P> <P>(a) Representatives of the news media for dissemination to the general public.</P> <P>(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.</P> <P>(c) Cooperators and others furthering agricultural programs. Generally, only one print of each photograph should be provided free.</P> <HD SOURCE="HD2">Section 14. Loans.</HD> <P>Aerial photographic film negatives or reproductions may not be loaned outside the Federal Government.</P> <HD SOURCE="HD2">Section 15. Sales of positive prints under government contracts.</HD> <P>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.</P> <HD SOURCE="HD2">Section 16. Procedure for handling orders.</HD> <P>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.</P> <HD SOURCE="HD2">Section 17. Reproduction prices.</HD> <P>The prices for reproductions listed in this section are for the most generally requested items.</P> <P>(a) <E T="03">National Agricultural Library.</E> The following prices are applicable to National Agricultural Library items only: Reproduction of electrostatic, microfilm, and microfiche copy—$5.00 for the first 10 pages or fraction thereof, and $3.00 for each additional 10 pages or fraction thereof. Duplication of NAL-owned microfilm—$10.00 per reel. Duplication of NAL-owned microfiche—$5.00 for the first fiche, and $0.50 for each additional fiche. Charges for manual and automated data base searches for bibliographic or other research information will be made in accordance with section 4, paragraphs (c)-(e) of this appendix. The contract rate charged by the commercial source to the National Agricultrual Library for computer services is available at the National Agricultural Library, Agricultural Research Service, USDA, Document Delivery Services Branch, 10301 Baltimore Boulevard, Beltsville, Maryland 20705-2351 (301-504-6503).</P> <P>(b) <E T="03">General photographic reproductions.</E> Minimum charge $1 per order. An extra charge may be necessary for excessive laboratory <PRTPAGE P="22"/>time caused by any special instructions from the purchaser.</P> <GPOTABLE CDEF="s20,5" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">Class of work and unit</CHED> <CHED H="1">Price</CHED> </BOXHD> <ROW> <ENT I="11">1. Black and white line negatives:</ENT> </ROW> <ROW> <ENT I="03">4 by 5 (each</ENT> <ENT>$6.00</ENT> </ROW> <ROW> <ENT I="03">8 by 10 (each)</ENT> <ENT>8.50</ENT> </ROW> <ROW> <ENT I="03">11 by 14 (each)</ENT> <ENT>11.00</ENT> </ROW> <ROW> <ENT I="11">2. Black and white continuous tone negatives:</ENT> </ROW> <ROW> <ENT I="03">4 by 5 (each)</ENT> <ENT>8.50</ENT> </ROW> <ROW> <ENT I="03">8 by 10 (each)</ENT> <ENT>11.00</ENT> </ROW> <ROW> <ENT I="01">3. Black and white enlargements: 8 by 10 and smaller (each)</ENT> <ENT>6.50</ENT> </ROW> <ROW> <ENT I="03">11 by 14 (each)</ENT> <ENT>11.00</ENT> </ROW> <ROW> <ENT I="03">Larger sizes and quantities</ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="11">4. Black and white slides:</ENT> </ROW> <ROW> <ENT I="03">2×2 cardboard mounted (from copy negative) (each)</ENT> <ENT>4.00</ENT> </ROW> <ROW> <ENT I="03">Blue ozalid slides (each)</ENT> <ENT>5.00</ENT> </ROW> <ROW> <ENT I="11">5. Color slides: (2×2 cardboard mounted):</ENT> </ROW> <ROW> <ENT I="13">Duplicate color slides:</ENT> </ROW> <ROW> <ENT I="05">Display quality (each) (Display color slides are slides copied from 35mm color slides only)</ENT> <ENT>.65</ENT> </ROW> <ROW> <ENT I="05">Repro quality (each)</ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="05">Original color slides (from flat copy) (each)</ENT> <ENT>6.50</ENT> </ROW> <ROW> <ENT I="01">6. Color enlargements and transparencies: 4 by 5 and larger</ENT> <ENT>(<SU>1</SU>)</ENT> </ROW> <ROW> <ENT I="11">7. Slide sets:</ENT> </ROW> <ROW> <ENT I="03">1 to 50 frames</ENT> <ENT>14.50</ENT> </ROW> <ROW> <ENT I="03">51 to 60 frames</ENT> <ENT>16.50</ENT> </ROW> <ROW> <ENT I="03">61 to 75 frames</ENT> <ENT>18.50</ENT> </ROW> <ROW> <ENT I="03">76 to 95 frames</ENT> <ENT>21.50</ENT> </ROW> <ROW> <ENT I="03">96 to 105 frames</ENT> <ENT>23.00</ENT> </ROW> <ROW> <ENT I="03">106 to 130 frames (Prices include printed narrative guide)</ENT> <ENT>26.50</ENT> </ROW> <ROW> <ENT I="01">8. Cassettes: (for the corresponding slide sets above)</ENT> <ENT>3.00</ENT> </ROW> <TNOTE> <SU>1</SU> By quotation.</TNOTE> </GPOTABLE> <P>(c) <E T="03">General aerial photographic reproductions.</E> 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.</P> <GPOTABLE CDEF="s100,7" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">Size</CHED> <CHED H="1">Price</CHED> </BOXHD> <ROW EXPSTB="s1" RUL="s"> <ENT I="21"> <E T="02">Black and White Reproductions</E> </ENT> </ROW> <ROW EXPSTB="s0"> <ENT I="01">10×10 Paper</ENT> <ENT>$5.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive</ENT> <ENT>10.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive AT</ENT> <ENT>10.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive Scan</ENT> <ENT>15.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Duplicate Negative</ENT> <ENT>3.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Internegative</ENT> <ENT>4.50</ENT> </ROW> <ROW> <ENT I="01">12×12 Paper</ENT> <ENT>12.00</ENT> </ROW> <ROW> <ENT I="01">17×17 Paper</ENT> <ENT>13.00</ENT> </ROW> <ROW> <ENT I="01">17×17 Film Positive</ENT> <ENT>25.00</ENT> </ROW> <ROW> <ENT I="01">24×24 Paper</ENT> <ENT>16.00</ENT> </ROW> <ROW> <ENT I="01">24×24 Film Positive</ENT> <ENT>40.00</ENT> </ROW> <ROW> <ENT I="01">38×38 Paper</ENT> <ENT>50.00</ENT> </ROW> <ROW> <ENT I="01">38×38 Film Positive</ENT> <ENT>55.00</ENT> </ROW> <ROW> <ENT I="01">20×24 Paper Photo Index</ENT> <ENT>20.00</ENT> </ROW> <ROW> <ENT I="01">Paper Line Index</ENT> <ENT>15.00</ENT> </ROW> <ROW> <ENT I="01">Mylar Line Index</ENT> <ENT>35.00</ENT> </ROW> <ROW> <ENT I="01">Microfilm (Photo Indexes): Aperture Cards</ENT> <ENT>10.00 </ENT> </ROW> <ROW RUL="s"> <ENT I="01">Microfilm (Photo Indexes): Microfiche</ENT> <ENT>10.00</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Color Negative Reproductions</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="22">10×10 Paper Quantities:</ENT> </ROW> <ROW> <ENT I="03">1-50</ENT> <ENT>$7.00</ENT> </ROW> <ROW> <ENT I="03">51-1000</ENT> <ENT>5.00</ENT> </ROW> <ROW> <ENT I="03">1001 & Over</ENT> <ENT>2.50</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive</ENT> <ENT>33.00</ENT> </ROW> <ROW> <ENT I="01">20×20 Paper</ENT> <ENT>40.00</ENT> </ROW> <ROW> <ENT I="01">24×24 Paper</ENT> <ENT>55.00 </ENT> </ROW> <ROW RUL="s"> <ENT I="01">38×38 Paper</ENT> <ENT>70.00</ENT> </ROW> <ROW EXPSTB="01" RUL="s"> <ENT I="21"> <E T="02">Color Infrared Positive Reproductions</E> </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">10×10 Paper</ENT> <ENT>$12.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive</ENT> <ENT>15.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive AT</ENT> <ENT>15.00</ENT> </ROW> <ROW> <ENT I="01">10×10 Film Positive Scan</ENT> <ENT>20.00</ENT> </ROW> <ROW> <ENT I="01">20×20 Paper</ENT> <ENT>32.00</ENT> </ROW> <ROW> <ENT I="01">24×24 Paper</ENT> <ENT>40.00</ENT> </ROW> <ROW> <ENT I="01">38×38 Paper</ENT> <ENT>70.00</ENT> </ROW> </GPOTABLE> <P>(d) [Reserved]</P> <P>(e) <E T="03">Special needs.</E> 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.</P> <P>(f) <E T="03">Audio and videotape reproductions.</E> 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.</P> <CITA>[52 FR 49386, Dec. 31, 1987, as amended at 62 FR 33980, June 24, 1997; 64 FR 3395, Jan. 22, 1999]</CITA> </APPENDIX> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Departmental Proceedings</HD> <SECTION> <SECTNO>§ 1.26</SECTNO> <SUBJECT>Representation before the Department of Agriculture.</SUBJECT> <P>(a) <E T="03">Applicability.</E> 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.</P> <P>(b) <E T="03">Administrative provisions.</E> (1) In any hearing or other proceeding before the Department of Agriculture, the parties may appear in person or by counsel or other representative. Persons who appear as counsel or in a representative capacity in any hearing or proceeding must conform to the standards of ethical conduct required of practitioners before the U.S. District Court for the <PRTPAGE P="23"/>District of Columbia, and to any applicable standards of ethical conduct established by statutes, executive orders and regulations.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <SECAUTH>(18 U.S.C. 203, 205, 207)</SECAUTH> <CITA>[32 FR 5458, Apr. 1, 1967, as amended at 60 FR 66480, Dec. 22, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.27</SECTNO> <SUBJECT>Rulemaking and other notice procedures.</SUBJECT> <P>(a) This section shall apply to:</P> <P>(1) Notices of proposed rulemaking;</P> <P>(2) Interim final rules;</P> <P>(3) Advance notices of proposed rulemaking; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="24"/>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. <E T="03">Provided,</E> 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.</P> <CITA>[60 FR 66480, Dec. 22, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.28</SECTNO> <SUBJECT>Petitions.</SUBJECT> <P>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.</P> <CITA>[11 FR 177A-233, Sept. 11, 1946. Redesignated at 13 FR 6703, Nov. 16, 1948, as amended at 60 FR 66481, Dec. 22, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.29</SECTNO> <SUBJECT>Subpoenas relating to investigations under statutes administered by the Secretary of Agriculture.</SUBJECT> <P>(a) <E T="03">Issuance of subpoena.</E> (1) When the Secretary is authorized by statute to issue a subpoena in connection with an investigation being conducted by the Department, the attendance of a witness and the production of evidence relating to the investigation may be required by subpoena at any designated place, including the witness' place of business. Upon request of any representative of the Secretary involved in connection with the investigation, the subpoena may be issued by the Secretary, the Inspector General, or any Department official authorized pursuant to part 2 of this title to administer the program to which the subpoena relates, if the official who is to issue the subpoena is satisfied as to the reasonableness of the grounds, necessity, and scope of the subpoena. Except as provided in paragraph (a)(2) of this section, the authority to issue subpoenas may not be delegated or redelegated by the head of an agency.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Service of subpoena.</E> (1) A subpoena issued pursuant to this section may be served by:</P> <P>(i) A U.S. Marshal or Deputy Marshal,</P> <P>(ii) Any other person who is not less than 18 years of age, or</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[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]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Judicial Proceedings</HD> <SECTION> <SECTNO>§ 1.41</SECTNO> <SUBJECT>Service of process.</SUBJECT> <P>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 <PRTPAGE P="25"/>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.</P> <CITA>[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]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Claims</HD> <SECTION> <SECTNO>§ 1.51</SECTNO> <SUBJECT>Claims based on negligence, wrongful act or omission.</SUBJECT> <P>(a) <E T="03">Authority of the Department.</E> Under the provisions of the Federal Tort Claims Act (FTCA), as amended, 28 U.S.C. 2671-2680, and the regulations issued by the Department of Justice (DOJ) contained in 28 CFR part 14, the United States Department of Agriculture (USDA) may, subject to the provisions of the FTCA and DOJ regulations, consider, ascertain, adjust, determine, compromise, and settle claims for money damages against the United States for personal injury, death, or property loss or damage caused by the negligent or wrongful act or omission of any employee of USDA while acting within the scope of his or her office or employment, under circumstances where the United States, if it were a private person, would be liable, in accordance with the law of the place where the act or omission occurred.</P> <P>(b) <E T="03">Procedure for filing claims.</E> 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.</P> <P>(c) <E T="03">Determination of claims</E>—(1) <E T="03">Delegation of authority to determine claims.</E> 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.</P> <P>(2) <E T="03">Disallowance of claims.</E> 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.</P> <CITA>[61 FR 57577, Nov. 7, 1996]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Cooperative Production of Television Films</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>22 FR 2904, Apr. 25, 1957, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.71</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.72</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) <E T="03">General.</E> It is a basic policy of the Department of Agriculture to make information freely available to the public.</P> <P>(b) <E T="03">Cooperation with television film producers.</E> The Department recognizes that its people and programs constitute a rich source of materials on public services, often dramatic and interesting for their human values, which are suitable for production of films for television showings. The Department welcomes the interest of television film producers in its activities and maintains an “open door” policy with respect to the availability of factual information <PRTPAGE P="26"/>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.</P> <P>(c) <E T="03">Special working relationships.</E> 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.</P> <P>(d) <E T="03">News film reporting exempted.</E> Television and news film reporting of Department activities is not covered by this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1.73</SECTNO> <SUBJECT>Responsibility.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.74</SECTNO> <SUBJECT>Basis for special working relationships.</SUBJECT> <P>The Department and its agencies may lend special assistance on television films when it is clearly evident that public interests are served. Where special assistance is sought, an individual cooperative agreement will be drawn up between the Department with the Director of Information as its agent, and the producer. Details on such assistance as reviewing stories and scripts, loan of material, arrangements for locations, use of official motion picture footage, assignment of technical advisors and similar aids will be covered in the agreement, which shall delineate the general stipulations listed in § 1.75.</P> </SECTION> <SECTION> <SECTNO>§ 1.75</SECTNO> <SUBJECT>General stipulations.</SUBJECT> <P>In requesting special working arrangements the producer must agree to the following stipulations:</P> <P>(a) The producer must show that he has legal authority to the literary property concerned.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <P>(e) That no production costs shall be chargeable to the U.S. Department of Agriculture.</P> <P>(f) That such cooperation will not interfere with the conduct of Department programs.</P> <P>(g) All damages, losses and personal liability incurred by producer will be his responsibility.</P> <P>(h) That mutual understanding and agreement will be reached upon story, script and film treatment with the Department before film production is begun.</P> </SECTION> <SECTION> <SECTNO>§ 1.76</SECTNO> <SUBJECT>Department cooperation.</SUBJECT> <P>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 <PRTPAGE P="27"/>normal and usual conduct of the operations of the Department. The Department will check and work with the cooperators to arrange shooting schedules in order to avoid interferences with working schedules.</P> </SECTION> <SECTION> <SECTNO>§ 1.77</SECTNO> <SUBJECT>Assignment of priorities.</SUBJECT> <P>(a) <E T="03">Authority.</E> (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.</P> <P>(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.</P> <P>(b) <E T="03">Time and scope.</E> 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.</P> <P>(1) Details on priorities will be written into the agreements.</P> <P>(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.</P> <P>(3) No priority will be canceled until the producer has had an opportunity to appear before the Secretary of Agriculture or his designee.</P> </SECTION> <SECTION> <SECTNO>§ 1.78</SECTNO> <SUBJECT>Development of special working relationships.</SUBJECT> <P>(a) <E T="03">Preliminary.</E> 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.</P> <P>(b) <E T="03">Request for special working arrangements.</E> 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.</P> <P>(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.</P> <P>(2) No script will be used under a special working relationship without the specific approval of the Director of Information.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.79</SECTNO> <SUBJECT>Credits.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Privacy Act Regulations</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301 and 552a; 31 U.S.C. 9701.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 39519, Aug. 28, 1975, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.110</SECTNO> <SUBJECT>Purpose and scope.</SUBJECT> <P>This subpart contains the regulations of the U.S. Department of Agriculture (USDA) implementing the Privacy Act of 1974 (5 U.S.C. 552a). This subpart sets forth the basic responsibilities of each agency of USDA with regard to USDA's compliance with the requirements of the Privacy Act, and offers guidance to members of the public who wish to exercise any of the rights established by the Privacy Act with regard to records maintained by an agency of USDA.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <PRTPAGE P="28"/> <SECTNO>§ 1.111</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this subpart the terms <E T="03">individual, maintain, record, system of records, statistical record,</E> and <E T="03">routine use</E> shall have the meanings set forth in 5 U.S.C. 552a(a). The term <E T="03">agency</E> shall mean an agency of USDA, unless otherwise indicated.</P> </SECTION> <SECTION> <SECTNO>§ 1.112</SECTNO> <SUBJECT>Procedures for requests pertaining to individual records in a record system.</SUBJECT> <P>(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:</P> <P>(1) The name of the individual making the request;</P> <P>(2) The name of the system of records (as set forth in the system notice to which the request relates);</P> <P>(3) Any other information specified in the system notice; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.113</SECTNO> <SUBJECT>Times, places, and requirements for identification of individuals making requests.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 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 <PRTPAGE P="29"/>$5,000. No identification shall be required, however, if the records are required by 5 U.S.C. 552 to be released. If the agency to which this request is directed determines to grant the requested access, it may charge fees in accordance with § 1.120 before making the necessary copies.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.114</SECTNO> <SUBJECT>Disclosure of requested information to individuals.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.115</SECTNO> <SUBJECT>Special procedures: Medical records.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.116</SECTNO> <SUBJECT>Request for correction or amendment to record.</SUBJECT> <P>(a) Any individual who wishes to request correction or amendment of any record pertaining to him or her contained in a system of records maintained by an agency shall submit that request in writing in accordance with the instructions set forth in the system notice for that system of records. This request shall include:</P> <P>(1) The name of the individual making the request;</P> <P>(2) The name of the system of records (as set forth in the system notice to which the request relates);<PRTPAGE P="30"/> </P> <P>(3) A description of the nature (e.g., modification, addition or deletion) and substance of the correction or amendment requested; and</P> <P>(4) Any other information specified in the system notice.</P> <P>(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).</P> <P>(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.</P> <P>(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.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.117</SECTNO> <SUBJECT>Agency review of request for correction or amendment of record.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(2) Inform the requester of its refusal to amend the record in accordance with the request; the reason for the refusal; the procedures whereby the requester can appeal the refusal to the head of the agency; and the title and business address of that official. If the agency informs the requester of its determination within the 10-day deadline, a separate acknowledgement is not required.</P> <P>(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.</P> <P>(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).</P> <P>(d) If an agency determines to grant all or any portion of a request for correction or amendment, it shall:</P> <P>(1) Advise the individual of that determination;</P> <P>(2) Make the requested correction or amendment; and</P> <P>(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.</P> <P>(e) If an agency determines not to grant all or any portion of a request for correction or amendment, it shall:</P> <P>(1) Comply with paragraph (d) of this section with regard to any correction or amendment which is made;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(f) In the event that an agency receives a notice of correction or amendment to information in a record contained in a system of records which it maintains, it shall comply with paragraphs (d)(2) and (3) of this section in the same manner as if it had made the correction or amendment itself.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.118</SECTNO> <SUBJECT>Appeal of initial adverse agency determination on correction or amendment.</SUBJECT> <P>(a) Any individual whose request for correction or amendment under § 1.116 is denied, and who wishes to appeal <PRTPAGE P="31"/>that denial, shall address such appeal to the head of the agency which maintains the system of records to which the request relates, in accordance with the procedures set forth in the agency's initial denial of the request.</P> <P>(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.</P> <P>(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).</P> <P>(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).</P> <P>(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:</P> <P>(1) Of this determination and the reasons for the determination;</P> <P>(2) Of the requester's right to file a concise statement of the requester's reasons for disagreeing with the agency's decision;</P> <P>(3) Of the procedures for filing such a statement of disagreement;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33981, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.119</SECTNO> <SUBJECT>Disclosure of record to person other than the individual to whom it pertains.</SUBJECT> <P>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).</P> </SECTION> <SECTION> <SECTNO>§ 1.120</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>Any agency which provides copies of records pursuant to a request under this subpart may charge fees for the direct costs of producing such copies in accordance with appendix A to subpart A of this part. No agency, however, shall charge any fee for searches necessary to locate records. Nor shall an agency charge any fees for copies or searches, when the requester sought to make a personal inspection but was provided copies instead at the discretion of the agency.</P> </SECTION> <SECTION> <SECTNO>§ 1.121</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>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 <PRTPAGE P="32"/>employees of such contractors who enter into contracts with an agency of USDA and who are considered to be employees of the agency within the meaning of 5 U.S.C. 552a(m)(1).</P> <CITA>[40 FR 39519, Aug. 28, 1975, as amended at 62 FR 33982, June 24, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.122</SECTNO> <SUBJECT>General exemptions.</SUBJECT> <P>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).</P> <EXTRACT> <HD SOURCE="HD2">Office of Inspector General</HD> <FP SOURCE="FP-1">Informant and Undercover Agent Records, USDA/OIG-2.</FP> <FP SOURCE="FP-1">Investigative Files and Automated Investigative Indices System, USDA/OIG-3.</FP> <FP SOURCE="FP-1">OIG Hotline Complaint Records, USDA/OIG-4.</FP> <FP SOURCE="FP-1">Consolidated Assignments, Personnel Tracking, and Administrative Information Network (CAPTAIN), USDA/OIG-5.</FP> </EXTRACT> <CITA>[54 FR 39517, Sept. 27, 1989, as amended at 62 FR 33982, June 24, 1997; 62 FR 61209, Nov. 17, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.123</SECTNO> <SUBJECT>Specific exemptions.</SUBJECT> <P>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 <E T="04">Federal Register.</E> </P> <EXTRACT> <HD SOURCE="HD1">Agricultural Marketing Service</HD> <FP SOURCE="FP-1">AMS Office of Compliance Review Cases, USDA/AMS-11.</FP> <HD SOURCE="HD1">Agricultural Stabilization and Conservation Service</HD> <FP SOURCE="FP-1">EEO Complaints and Discrimination Investigation Reports, USDA/ASCS-12.</FP> <FP SOURCE="FP-1">Investigation and Audit Reports, USDA/ASCS-18.</FP> <FP SOURCE="FP-1">Producer Appeals, USDA/ASCS-21.</FP> <HD SOURCE="HD1">Animal and Plant Health Inspection Service</HD> <FP SOURCE="FP-1">Plant Protection and Quarantine Program—Regulatory Actions, USDA/APHIS-1.</FP> <FP SOURCE="FP-1">Veterinary Services Programs—Records of Accredited Veterinarians, USDA/APHIS-2.</FP> <FP SOURCE="FP-1">Veterinary Services Programs—Animal Quarantine Regulatory Actions, USDA/APHIS-3.</FP> <FP SOURCE="FP-1">Veterinary Services Programs—Animal Welfare and Horse Protection Regulatory Actions, USDA/APHIS-4.</FP> <HD SOURCE="HD1">Farmers Home Administration</HD> <FP SOURCE="FP-1">Credit Report File, USDA/FmHA-3.</FP> <HD SOURCE="HD1">Federal Crop Insurance Corporation</HD> <FP SOURCE="FP-1">FCIC Compliance Review Cases, USDA/FCIC-2.</FP> <HD SOURCE="HD1">Federal Grain Inspection Service</HD> <FP SOURCE="FP-1">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.</FP> <HD SOURCE="HD1">Food and Nutrition Service</HD> <FP SOURCE="FP-1">Civil Rights Complaints and Investigations, USDA/FNS-1.</FP> <FP SOURCE="FP-1">Claims Against Food Stamp Recipients, USDA/FNS-3.</FP> <FP SOURCE="FP-1">Investigations of Fraud, Theft, or Other Unlawful Activities of Individuals Involving Food Stamps, USDA/FNS-5.</FP> <HD SOURCE="HD1">Food Safety and Inspection Service</HD> <FP SOURCE="FP-1">Meat and Poultry Inspection Program—Slaughter, Processing and Allied Industries Compliance Records System, USDA/FSIS-1.</FP> <HD SOURCE="HD1">Forest Service</HD> <FP SOURCE="FP-1">Law Enforcement Investigation Records, USDA/FS-33.</FP> <HD SOURCE="HD1">Office of the General Counsel</HD> <HD SOURCE="HD2">Regulatory Division</HD> <FP SOURCE="FP-1">Cases by the Department under the Federal Meat Inspection Act, the Poultry Products Inspection Act, and the voluntary inspection and certification provisions of the Agricultural Marketing Act of 1946, USDA/OGC-6.</FP> <FP SOURCE="FP-1">Cases by the Department under the Humane Methods of Livestock Slaughter Law (i.e., the Act of August 27, 1958), USDA/OGC-7.</FP> <FP SOURCE="FP-1">Cases by the Department under the 28 Hour Law, as amended, USDA/OGC-8.</FP> <FP SOURCE="FP-1">Cases by the Department under the various Animal Quarantine and related laws, USDA/OGC-9.</FP> <FP SOURCE="FP-1">Cases by the Department under the various Plant Protection Quarantine and related laws, USDA/OGC-10.</FP> <FP SOURCE="FP-1">Cases by the Department under Horse Protection Act of 1970, USDA/OGC-41.<PRTPAGE P="33"/> </FP> <FP SOURCE="FP-1">Cases by the Department under the Laboratory Animal Welfare Act, USDA/OGC-42.</FP> <HD SOURCE="HD2">Community Development Division</HD> <FP SOURCE="FP-1">Community Development Division Litigation, USDA/OGC-11.</FP> <FP SOURCE="FP-1">Farmers Home Administration (FmHA) General Case Files, USDA/OGC-12.</FP> <HD SOURCE="HD2">Food and Nutrition Division</HD> <FP SOURCE="FP-1">Claims by and against USDA under the Food Assistance Legislation, USDA/OGC-13.</FP> <FP SOURCE="FP-1">Perishable Agricultural Commodities, USDA/OGC-14.</FP> <HD SOURCE="HD2">Foreign Agriculture and Commodity Stabilization Division</HD> <FP SOURCE="FP-1">Agricultural Stabilization and Conservation Service (ASCS), Foreign Agricultural Service (FAS), and Commodity Credit Corporation Cases, USDA/OGC-15.</FP> <FP SOURCE="FP-1">Federal Crop Insurance Corporation (FCIC) Cases, USDA/OGC-16.</FP> <FP SOURCE="FP-1">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.</FP> <HD SOURCE="HD2">Marketing Division</HD> <FP SOURCE="FP-1">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.</FP> <FP SOURCE="FP-1">Cases brought by the Government pursuant to the Cotton Futures provisions of the Internal Revenue Code of 1954, USDA/OGC-22.</FP> <FP SOURCE="FP-1">Court cases brought by the Government pursuant to either the Agricultural Marketing Act of 1946 or the Tobacco Inspection Act, USDA/OGC-24.</FP> <FP SOURCE="FP-1">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.</FP> <FP SOURCE="FP-1">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.</FP> <FP SOURCE="FP-1">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.</FP> <FP SOURCE="FP-1">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.</FP> <FP SOURCE="FP-1">Court cases brought by the Government pursuant to either the Naval Stores Act, or the Tobacco Seed and Plant Exportation Act, USDA/OGC-29.</FP> <FP SOURCE="FP-1">Court cases brought by the Government pursuant to either the Peanut Statistics Act or the Tobacco Statistics Act, USDA/OGC-30.</FP> <FP SOURCE="FP-1">Court cases brought by the Government pursuant to either the Plant Variety Protection Act or the Egg Products Inspection Act, USDA/OGC-31.</FP> <FP SOURCE="FP-1">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.</FP> <FP SOURCE="FP-1">Court cases brought by the Government pursuant to either the United States Grain Standards Act or the Federal Seed Act, USDA/OGC-33.</FP> <FP SOURCE="FP-1">Court cases brought by the Government pursuant to the Agricultural Fair Practices Act, USDA/OGC-34.</FP> <FP SOURCE="FP-1">Cases by and against the Department under the Virus-Serum Toxin Act, USDA/OGC-44.</FP> <HD SOURCE="HD2">Office of Inspector General</HD> <FP SOURCE="FP-1">Informant and Undercover Agent Records, USDA/OIG-2.</FP> <FP SOURCE="FP-1">Investigative Files and Automated Investigative Indices System, USDA/OIG-3.</FP> <FP SOURCE="FP-1">OIG Hotline Complaint Records, USDA/OIG-4.</FP> <FP SOURCE="FP-1">Consolidated Assignments, Personnel Tracking, and Administrative Information Network (CAPTAIN), USDA/OIG-5.</FP> <HD SOURCE="HD2">Packers and Stockyards Division</HD> <FP SOURCE="FP-1">Packers and Stockyards Act, Administrative Cases, USDA/OGC-69.</FP> <FP SOURCE="FP-1">Packers and Stockyards Act, Civil and Criminal Cases, USDA/OGC-70.</FP> <HD SOURCE="HD2">Research and Operations Division</HD> <FP SOURCE="FP-1">Personnel Irregularities, USDA/OGC-75.</FP> <HD SOURCE="HD2">Office of the Secretary</HD> <FP SOURCE="FP-1">Non-Career Applicant File, USDA/SEC-1.</FP> </EXTRACT> <CITA>[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]</CITA> </SECTION> <APPENDIX> <EAR>Pt. 1, Subpt. G, App. A</EAR> <HD SOURCE="HED">Appendix A to Subpart G of Part 1—Internal Directives</HD> <P> <E T="04">Section</E> 1 <E T="03">General requirements.</E> Each agency that maintains a system of records subject to 5 U.S.C. 552a and the regulations of this subpart shall:</P> <P>(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;</P> <P>(b) Collect information to the greatest extent practicable directly from the subject individual when the information may result in <PRTPAGE P="34"/>adverse determinations about an individual's rights, benefits, and privileges under Federal programs;</P> <P>(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:</P> <P>(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;</P> <P>(2) The principal purpose or purposes for which the information is intended to be used;</P> <P>(3) The routine uses which may be made of the information, as published pursuant to paragraph (d)(4) of this section; and</P> <P>(4) The effects on the individual, if any, of not providing all or any part of the requested information;</P> <P>(d) Subject to the provisions of section 2 of this appendix, prepare for publication in the <E T="04">Federal Register</E> at least annually a notice of the existence and character of each system it maintains, which notice shall include:</P> <P>(1) The name and location(s) of the system;</P> <P>(2) The categories of individuals on whom records are maintained in the system;</P> <P>(3) The categories of records maintained in the system;</P> <P>(4) Each routine use of the records contained in the system, including the categories of uses and the purpose of such use;</P> <P>(5) The policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;</P> <P>(6) The title and business address of the agency official who is responsible for the system of records;</P> <P>(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;</P> <P>(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</P> <P>(9) The categories of sources of records in the system;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P> <E T="04">Sec.</E> 2 <E T="03">Amendment of routine uses for an existing system of records, or establishment of a new system of records.</E> </P> <P>(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 <E T="04">Federal Register</E> and an opportunity provided for interested persons to submit written data, views or arguments to the agency.</P> <P>(b) Any agency which intends to establish a new system of records, or to alter any existing system of records, shall insure that adequate advance notice is provided to Congress and the Office of Management and Budget to permit an evaluation of the probable or potential effect of such action on the privacy and other personal or property rights of individuals or the disclosure of information relating to such individuals, and its effect on the preservation of the constitutional principles of federalism and separation of powers. Such notice is required for any new system of records and for any alteration in an existing one which will:</P> <P>(1) Increase the number or types of individuals on whom records are maintained;</P> <P>(2) Expand the type or amount of information maintained;</P> <P>(3) Increase the number or categories of agencies or other persons who may have access to those records;</P> <P>(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);<PRTPAGE P="35"/> </P> <P>(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</P> <P>(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).</P> <P> <E T="04">Sec.</E> 3 <E T="03">Accounting of certain disclosures.</E> Each agency, with respect to each system of records under its control, shall:</P> <P>(a) Except for disclosures made under 5 U.S.C. 552a(b)(1) and (2), keep an accurate account of:</P> <P>(1) The date, nature, and purpose of each disclosure of a record to any person or agency outside the Department; and</P> <P>(2) The name and address of the person or agency to whom the disclosure is made;</P> <P>(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;</P> <P>(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.</P> <P> <E T="04">Sec.</E> 4 <E T="03">Government contractors.</E> 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).</P> <P> <E T="04">Sec.</E> 5 <E T="03">Mailing lists.</E> No agency within the Department shall sell or rent any individual's name and address unless such action is specifically authorized by law. This section shall not be construed to require, or to authorize, the withholding of names and addresses whose disclosure is required by 5 U.S.C. 552.</P> <P> <E T="04">Sec.</E> 6 <E T="03">Social security account numbers.</E> (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.</P> <P>(b) Paragraph (a) of this section shall not apply with respect to:</P> <P>(1) Any disclosure required by Federal statute; or</P> <P>(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.</P> <P>(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.</P> <P> <E T="04">Sec.</E> 7. <E T="03">Annual report.</E> 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:</P> <P>(a) A summary of major accomplishments;</P> <P>(b) A summary of major plans for activities in the upcoming year;</P> <P>(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;</P> <P>(d) A brief summary of changes to the total inventory of personal data system subject to this subpart including reasons for major changes; and</P> <P>(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):</P> <P>(1) Requesting information on the existence of records pertaining to them;</P> <P>(2) Refusing to provide information;</P> <P>(3) Requesting access to their records;</P> <P>(4) Appealing initial refusals to amend records; and</P> <P>(5) Seeking redress through the courts.</P> <P> <E T="04">Sec.</E> 8. <E T="03">Effect of 5 U.S.C. 552.</E> 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.</P> <CITA>[40 FR 44480, Sept. 26, 1975, as amended at 62 FR 33982, June 24, 1997]</CITA> </APPENDIX> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>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, <PRTPAGE P="36"/>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; 43 U.S.C. 1740; 7 CFR 2.35, 2.41.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>42 FR 743, Jan. 4, 1977, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.130</SECTNO> <SUBJECT>Meaning of words.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.131</SECTNO> <SUBJECT>Scope and applicability of this subpart.</SUBJECT> <P>(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, <SU>1</SU> <FTREF/> 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.</P> <FTNT> <P> <SU>1</SU> See also the regulations promulgated under these statutes for any supplemental rules relating to particular circumstances arising thereunder.</P> </FTNT> <EXTRACT> <FP SOURCE="FP-1">Agricultural Bioterrorism Protection Act of 2002, section 212(i) (7 U.S.C. 8401(i)).</FP> <FP SOURCE="FP-1">Agricultural Marketing Agreement Act of 1937, as amended, section 8c(14), 7 U.S.C. 608c(14).</FP> <FP SOURCE="FP-1">Animal Health Protection Act, section 10414 (7 U.S.C. 8313).</FP> <FP SOURCE="FP-1">Animal Welfare Act, section 19 (7 U.S.C. 2149).</FP> <FP SOURCE="FP-1">Beef Promotion and Research Act of 1985, section 9 (7 U.S.C. 2908).</FP> <FP SOURCE="FP-1">Egg Products Inspection Act, section 18 (21 U.S.C. 1047).</FP> <FP SOURCE="FP-1">Endangered Species Act of 1973, as amended, section 11(a) (16 U.S.C. 1540(a)).</FP> <FP SOURCE="FP-1">Egg Research and Consumer Information Act, as amended, 7 U.S.C. 2714, Pub. L. 96-276, 94 Stat. 541.</FP> <FP SOURCE="FP-1">Federal Land Policy and Management Act of 1976, section 506 (43 U.S.C. 1766).</FP> <FP SOURCE="FP-1">Federal Meat Inspection Act, sections 4, 6, 7(e), 8, and 401 (21 U.S.C. 604, 606, 607(e), 608, 671).</FP> <FP SOURCE="FP-1">Federal Seed Act, section 409 (7 U.S.C. 1599).</FP> <FP SOURCE="FP-1">Fluid Milk Promotion Act of 1990, section 1999L [7 U.S.C. 6411].</FP> <FP SOURCE="FP-1">Forest Resources Conversation and Shortage Relief Act of 1990, section 492 (16 U.S.C. 620d)</FP> <FP SOURCE="FP-1">Fresh Cut Flowers and Fresh Cut Greens Promotion and Consumer Information Act of 1993, section 9 [7 U.S.C. 6808].</FP> <FP SOURCE="FP-1">Honey Research, Promotion, and Consumer Information Act, section 11 (7 U.S.C. 4610).</FP> <FP SOURCE="FP-1">Horse Protection Act of 1970, sections 4(c) and 6 (15 U.S.C. 1823(c), 1825).</FP> <FP SOURCE="FP-1">Lacey Act Amendments of 1981, section 4 (a) and (b) (16 U.S.C. 3373 (a) and (b)).</FP> <FP SOURCE="FP-1">Lime Research, Promotion, and Consumer Information Act of 1990, as amended, section 1958 [7 U.S.C. 6207]</FP> <FP SOURCE="FP-1">Mushroom Promotion, Research, and Consumer Information Act of 1990, section 1928 [7 U.S.C. 6107]</FP> <FP SOURCE="FP-1">Organic Foods Production Act of 1990, sections 2119 and 2120 (7 U.S.C. 6519, 6520).</FP> <FP SOURCE="FP-1">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)</FP> <FP SOURCE="FP-1">Pecan Promotion and Research Act of 1990, section 1914 [7 U.S.C. 6009]</FP> <FP SOURCE="FP-1">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))</FP> <FP SOURCE="FP-1">Plant Protection Act, section 424 (7 U.S.C. 7734).</FP> <FP SOURCE="FP-1">Pork Promotion, Research, and Consumer Information Act of 1985, section 1626 (7 U.S.C. 4815).</FP> <FP SOURCE="FP-1">Potato Research and Promotion Act, as amended, 7 U.S.C. 2621, Pub. L. 97-244, 96 Stat. 310.</FP> <FP SOURCE="FP-1">Poultry Products Inspection Act, sections 6, 7, 8(d), and 18 (21 U.S.C. 455, 456, 457(d), 467).</FP> <FP SOURCE="FP-1">Sheep Promotion, Research, and Information Act of 1994 [7 U.S.C. 7107].</FP> <FP SOURCE="FP-1">Soybean Promotion, Research, and Consumer Information Act, section 1972 [7 U.S.C. 6307].</FP> <FP SOURCE="FP-1">Swine Health Protection Act, sections 5 and 6 (7 U.S.C. 3804, 3805).</FP> <FP SOURCE="FP-1">Title V of the Agricultural Risk Protection Act of 2000, section 501(a) (7 U.S.C. 2279e).</FP> <FP SOURCE="FP-1">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).</FP> <FP SOURCE="FP-1">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)).</FP> <FP SOURCE="FP-1">United States Warehouse Act, sections 12 and 25 (7 U.S.C. 246, 253).</FP> <FP SOURCE="FP-1">Virus-Serum-Toxin Act (21 U.S.C. 156).</FP> <FP SOURCE="FP-1">Watermelon Research and Promotion Act, section 1651 (7 U.S.C. 4910).</FP> </EXTRACT> <P>(b) These rules of practice shall also be applicable to:</P> <P>(1) Adjudicatory proceedings under the regulations promulgated under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 <E T="03">et seq.</E>) for the denial or <PRTPAGE P="37"/>withdrawal of inspection, certification, or grading service; <SU>1</SU> <FTREF/> </P> <FTNT> <P> <SU>1</SU> See also the regulations promulgated under these statutes for any supplemental rules relating to particular circumstances arising thereunder.</P> </FTNT> <P>(2) Adjudicatory proceedings under the regulations promulgated under the Animal Health Protection Act (7 U.S.C. 8301 <E T="03">et seq.</E>) for the suspension or revocation of accreditation of veterinarians (9 CFR parts 160, 161);</P> <P>(3) Proceedings for debarment of counsel under § 1.141(d) of this subpart;</P> <P>(4) Adjudicatory proceedings under the regulations promulgated under the Animal Welfare Act (7 U.S.C. 2131 <E T="03">et seq.</E>) 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);</P> <P>(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</P> <P>(6) Other adjudicatory proceedings in which the complaint instituting the proceeding so provides with the concurrence of the Assistant Secretary for Administration.</P> <CITA>[42 FR 743, Jan. 4, 1977]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> 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.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.132</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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:</P> <P> <E T="03">Administrator</E> 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.</P> <P> <E T="03">Complainant</E> means the party instituting the proceeding.</P> <P> <E T="03">Complaint</E> means the formal complaint, order to show cause, or other document by virtue of which a proceeding is instituted.</P> <P> <E T="03">Decision</E> 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</P> <P>(2) The decision and order by the Judicial Officer upon appeal of the Judge's decision.</P> <P> <E T="03">Hearing</E> means that part of the proceeding which involves the submission of evidence before the Judge for the record in the proceeding.</P> <P> <E T="03">Hearing Clerk</E> means the Hearing Clerk, United States Department of Agriculture, Washington, DC 20250.</P> <P> <E T="03">Judge</E> means any Administrative Law Judge appointed pursuant to 5 U.S.C. 3105 and assigned to the proceeding involved.</P> <P> <E T="03">Judicial Officer</E> 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.</P> <P> <E T="03">Mail</E> 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.</P> <P> <E T="03">Petitioner</E> 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).</P> <P> <E T="03">Re-mail</E> 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.<PRTPAGE P="38"/> </P> <P> <E T="03">Respondent</E> means the party proceeded against.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.133</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <P>(a) <E T="03">Submission of information concerning apparent violations.</E> (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.</P> <P>(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:</P> <P>(i) The name and address of each person and of the agent, if any, representing such person in the transaction involved;</P> <P>(ii) Place where the alleged violation occurred;</P> <P>(iii) Quantity and quality or grade of each kind of product or article involved;</P> <P>(iv) Date of alleged violation;</P> <P>(v) Car initial and number, if carlot;</P> <P>(vi) Shipping and destination points;</P> <P>(vii) If a sale, the date, sale price, and amount actually received;</P> <P>(viii) If a consignment, the date, reported proceeds, gross, net;</P> <P>(ix) Amount of damage claimed, if any;</P> <P>(x) Statement of other material facts, including terms of contract; and</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Filing of complaint or petition for review.</E> (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.</P> <P>(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 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.</P> <P>(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 <PRTPAGE P="39"/>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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.134</SECTNO> <SUBJECT>Docket number.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.135</SECTNO> <SUBJECT>Contents of complaint or petition for review.</SUBJECT> <P>(a) <E T="03">Complaint.</E> 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.</P> <P>(b) <E T="03">Petition for review.</E> The Petition for Review of responsibly connected status shall describe briefly and clearly the determination sought to be reviewed and shall include a brief statement of the factual and legal matters that the petitioner believes warrant the reversal of the determination.</P> <CITA>[42 FR 743, Jan. 4, 1977, as amended at 61 FR 11503, Mar. 21, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.136</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(a) <E T="03">Filing and service.</E> 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 <E T="03">et seq.,</E> and such agency record shall become part of the record in the review proceeding.</P> <P>(b) <E T="03">Contents.</E> The answer shall:</P> <P>(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</P> <P>(2) State that the respondent admits all the facts alleged in the complaint; or</P> <P>(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.</P> <P>(c) <E T="03">Default.</E> Failure to file an answer within the time provided under paragraph (a) of this section shall be deemed, for purposes of the proceeding, an admission of the allegations in the Complaint, and failure to deny or otherwise respond to an allegation of the Complaint shall be deemed, for purposes of the proceeding, an admission of said allegation, unless the parties have agreed to a consent decision pursuant to § 1.138.</P> <CITA>[42 FR 743, Jan. 4, 1977, as amended at 61 FR 11504, Mar. 21, 1996; 68 FR 6340, Feb. 7, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.137</SECTNO> <SUBJECT>Amendment of complaint, petition for review, or answer; joinder of related matters.</SUBJECT> <P>(a) <E T="03">Amendment.</E> 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.<PRTPAGE P="40"/> </P> <P>(b) <E T="03">Joinder.</E> The Judge shall consolidate for hearing with any proceeding alleging a violation of the Perishable Agricultural Commodities Act, 7 U.S.C. 499a <E T="03">et seq.,</E> 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 <E T="03">et seq.,</E> 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.</P> <CITA>[61 FR 11504, Mar. 21, 1996, as amended at 68 FR 6340, Feb. 7, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.138</SECTNO> <SUBJECT>Consent decision.</SUBJECT> <P>At any time before the Judge files the decision, the parties may agree to the entry of a consent decision. Such agreement shall be filed with the Hearing Clerk in the form of a decision signed by the parties with appropriate space for signature by the Judge, and shall contain an admission of at least the jurisdictional facts, consent to the issuance of the agreed decision without further procedure and such other admissions or statements as may be agreed between the parties. The Judge shall enter such decision without further procedure, unless an error is apparent on the face of the document. Such decision shall have the same force and effect as a decision issued after full hearing, and shall become final upon issuance to become effective in accordance with the terms of the decision.</P> </SECTION> <SECTION> <SECTNO>§ 1.139</SECTNO> <SUBJECT>Procedure upon failure to file an answer or admission of facts.</SUBJECT> <P>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: <E T="03">Provided, however,</E> That no decision shall be final for purposes of judicial review except a final decision of the Judicial Officer upon appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1.140</SECTNO> <SUBJECT>Conferences and procedure.</SUBJECT> <P>(a) <E T="03">Purpose and scope.</E> (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:</P> <P>(i) An outline of the case or defense;</P> <P>(ii) The legal theories upon which the party will rely;</P> <P>(iii) Copies of or a list of documents which the party anticipates introducing at the hearing; and</P> <P>(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.</P> <P>(2) The Judge shall not order any of the foregoing procedures that a party <PRTPAGE P="41"/>can show is inappropriate or unwarranted under the circumstances of the particular case.</P> <P>(3) At the conference, the following matters shall be considered:</P> <P>(i) The simplification of issues;</P> <P>(ii) The necessity of amendments to pleadings;</P> <P>(iii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof;</P> <P>(iv) The limitation of the number of expert or other witnesses;</P> <P>(v) Negotiation, compromise, or settlement of issues;</P> <P>(vi) The exchange of copies of proposed exhibits;</P> <P>(vii) The identification of documents or matters of which official notice may be requested;</P> <P>(viii) A schedule to be followed by the parties for completion of the actions decided at the conference; and</P> <P>(ix) Such other matters as may expedite and aid in the disposition of the proceeding.</P> <P>(b) <E T="03">Reporting.</E> A conference will not be stenographically reported unless so directed by the Judge.</P> <P>(c) <E T="03">Manner of Conference.</E> (1) The conference shall be conducted by telephone or correspondence unless the Judge determines that conducting the conference by audio-visual telecommunication:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the conference; or</P> <P>(iii) Would cost less than conducting the conference by telephone or correspondence. If the Judge determines that a conference conducted by audio-visual telecommunication would measurably increase the United States Department of Agriculture's cost of conducting the conference, the conference shall be conducted by personal attendance of any individual who is expected to participate in the conference, by telephone, or by correspondence.</P> <P>(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:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the conference; or</P> <P>(iii) Would cost less than conducting the conference by audio-visual telecommunication.</P> <P>(d) <E T="03">Order.</E> 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.</P> <P>(e) <E T="03">Related matters.</E> 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.</P> <CITA>[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8455, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.141</SECTNO> <SUBJECT>Procedure for hearing.</SUBJECT> <P>(a) <E T="03">Request for hearing.</E> Any party may request a hearing on the facts by including such request in the complaint or answer, or by a separate request, in writing, filed with the Hearing Clerk within the time in which an answer may be filed. A petition for review shall be deemed a request for a hearing. Failure to request a hearing within the time allowed for the filing of the answer shall constitute a waiver of such hearing. Waiver of hearing shall not be deemed to be a waiver of the right to request oral argument before the Judicial Officer upon appeal of 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.</P> <P>(b) <E T="03">Time, place, and manner.</E> (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 <PRTPAGE P="42"/>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. <SU>2</SU> <FTREF/> 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.</P> <FTNT> <P> <SU>2</SU> 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.</P> </FTNT> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the hearing; or</P> <P>(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.</P> <P>(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:</P> <P>(i) Would provide a full and fair evidentiary hearing;</P> <P>(ii) Would not prejudice any party; and</P> <P>(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.</P> <P>(c) <E T="03">Appearances.</E> 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 <PRTPAGE P="43"/>of practitioners before the courts of the United States.</P> <P>(d) <E T="03">Debarment of attorney.</E> (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: <E T="03">Provided,</E> That the Judge shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney.</P> <P>(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.</P> <P>(e) <E T="03">Failure to appear.</E> (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.</P> <P>(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.</P> <P>(f) <E T="03">Order of proceeding.</E> Except as may be determined otherwise by the Judge, the complainant shall proceed first at the hearing.</P> <P>(g) <E T="03">Written statements of direct testimony.</E> (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.</P> <P>(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.</P> <P>(h) <E T="03">Evidence</E>—(1) <E T="03">In general.</E> (i) The testimony of witnesses at a hearing shall be on oath or affirmation and subject to cross-examination.</P> <P>(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.</P> <P>(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 <PRTPAGE P="44"/>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).</P> <P>(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.</P> <P>(2) <E T="03">Objections.</E> (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.</P> <P>(ii) Only objections made before the Judge may subsequently be relied upon in the proceeding.</P> <P>(3) <E T="03">Depositions.</E> The deposition of any witness shall be admitted in the manner provided in and subject to the provisions of § 1.148.</P> <P>(4) <E T="03">Exhibits.</E> Unless the Judge finds that the furnishing of copies is impracticable, four copies of each exhibit shall be filed with the Judge: <E T="03">Provided,</E> 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.</P> <P>(5) <E T="03">Official records or documents.</E> An official government record or document or entry therein, if admissible for any purpose, shall be admissible in evidence without the production of the person who made or prepared the same, and shall be prima facie evidence of the relevant facts stated therein. Such record or document shall be evidenced by an official publication thereof or by a copy certified by a person having legal authority to make such certification.</P> <P>(6) <E T="03">Official notice.</E> 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: <E T="03">Provided,</E> 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.</P> <P>(7) <E T="03">Offer of proof.</E> 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.</P> <P>(i) <E T="03">Transcript or recording.</E> (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.</P> <P>(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.<PRTPAGE P="45"/> </P> <P>(3) Recordings or transcripts of hearings shall be made available to any person at actual cost of duplication.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.142</SECTNO> <SUBJECT>Post-hearing procedure.</SUBJECT> <P>(a) <E T="03">Corrections to transcript or recording.</E> (1) Within the period of time fixed by the Judge, any party may file a motion proposing corrections to the transcript or recording.</P> <P>(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.</P> <P>(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).</P> <P>(b) <E T="03">Proposed findings of fact, conclusions, orders, and briefs.</E> Prior to the Judge's decision, each party shall be afforded a reasonable opportunity to submit for consideration proposed findings of fact, conclusions, order, and brief in support thereof. A copy of each such document filed by a party shall be served upon each of the other parties.</P> <P>(c) <E T="03">Judge's decision.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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; <E T="03">Provided, however,</E> that no decision shall be final for purposes of judicial review except a final decision of the Judicial Officer upon appeal.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.143</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Motions entertained.</E> (1) Any motion will be entertained other than a motion to dismiss on the pleading.</P> <P>(2) All motions and request concerning the complaint must be made within the time allowed for filing an answer.</P> <P>(c) <E T="03">Contents.</E> All written motions and requests shall state the particular order, ruling, or action desired and the grounds therefor.</P> <P>(d) <E T="03">Response to motions and requests.</E> 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 <PRTPAGE P="46"/>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.</P> <P>(e) <E T="03">Certification to the judicial officer.</E> 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.</P> <CITA>[42 FR 743, Jan. 4, 1977, as amended at 55 FR 30673, July 27, 1990; 68 FR 6340, Feb. 7, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.144</SECTNO> <SUBJECT>Judges.</SUBJECT> <P>(a) <E T="03">Assignment.</E> 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.</P> <P>(b) <E T="03">Disqualification of Judge.</E> (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.</P> <P>(2) A Judge shall withdraw from any proceeding for any reason deemed by the Judge to be disqualifying.</P> <P>(c) <E T="03">Powers.</E> Subject to review as provided in this subpart, the Judge, in any assigned proceeding, shall have power to:</P> <P>(1) Rule upon motions and requests;</P> <P>(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;</P> <P>(3) Administer oaths and affirmations;</P> <P>(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;</P> <P>(5) Summon and examine witnesses and receive evidence at the hearing;</P> <P>(6) Take or order the taking of depositions as authorized under these rules;</P> <P>(7) Admit or exclude evidence;</P> <P>(8) Hear oral argument on facts or law;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(13) Do all acts and take all measures necessary for the maintenance of order, including the exclusion of contumacious counsel or other persons; and</P> <P>(14) Take all other actions authorized under these rules.</P> <P>(d) <E T="03">Who may act in the absence of the Judge.</E> 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.</P> <CITA>[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8456, Feb. 14, 1995; 68 FR 6340, Feb. 7, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.145</SECTNO> <SUBJECT>Appeal to Judicial Officer.</SUBJECT> <P>(a) <E T="03">Filing of petition.</E> 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 <PRTPAGE P="47"/>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.</P> <P>(b) <E T="03">Response to appeal petition.</E> 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.</P> <P>(c) <E T="03">Transmittal of record.</E> 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.</P> <P>(d) <E T="03">Oral argument.</E> 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.</P> <P>(e) <E T="03">Scope of argument.</E> 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.</P> <P>(f) <E T="03">Notice of argument; postponement.</E> 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.</P> <P>(g) <E T="03">Order of argument.</E> The appellant is entitled to open and conclude the argument.</P> <P>(h) <E T="03">Submission on briefs.</E> 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.</P> <P>(i) <E T="03">Decision of the judicial officer on appeal.</E> 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 <PRTPAGE P="48"/>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.</P> <CITA>[42 FR 743, Jan. 4, 1977, as amended at 60 FR 8456, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.146</SECTNO> <SUBJECT>Petitions for reopening hearing; for rehearing or reargument of proceeding; or for reconsideration of the decision of the Judicial Officer.</SUBJECT> <P>(a) <E T="03">Petition requisite</E>—(1) <E T="03">Filing; service; ruling.</E> 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.</P> <P>(2) <E T="03">Petition to reopen hearing.</E> A petition to reopen a hearing to take further evidence may be filed at any time prior to the issuance of the decision of the Judicial Officer. Every such petition shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not merely cumulative, and shall set forth a good reason why such evidence was not adduced at the hearing.</P> <P>(3) <E T="03">Petition to rehear or reargue proceeding, or to reconsider the decision of</E> 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.</P> <P>(b) <E T="03">Procedure for disposition of petitions.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.147</SECTNO> <SUBJECT>Filing; service; extensions of time; and computation of time.</SUBJECT> <P>(a) <E T="03">Filing; number of copies.</E> 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: <E T="03">Provided,</E> That where there are more than two parties in the proceeding, an additional copy shall be filed for each additional party. Any document or paper required or authorized under the rules in this part to be filed with the Hearing Clerk shall, during the course of an oral hearing, be filed with the Judge.</P> <P>(b) <E T="03">Who shall make service.</E> 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.</P> <P>(c) <E T="03">Service on party other than the Secretary.</E> (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 <PRTPAGE P="49"/>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, <E T="03">Provided that,</E> 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.</P> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(d) <E T="03">Service on another.</E> 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:</P> <P>(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;</P> <P>(2) Delivery other than by mail to any responsible individual at, or leaving in a conspicuous place at, any such location; or</P> <P>(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.</P> <P>(e) <E T="03">Proof of service.</E> Any of the following, in the possession of the Department, showing such service, shall be deemed to be accurate:</P> <P>(1) A certified or registered mail receipt returned by the postal service with a signature;</P> <P>(2) An official record of the postal service;</P> <P>(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;</P> <P>(4) A certificate of service, which need not be separate from and may be incorporated in the document or paper of which it certifies service, showing the method, place and date of service in writing and signed by an individual with personal knowledge thereof, <E T="03">Provided</E> 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.</P> <P>(f) <E T="03">Extensions of time.</E> 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 <PRTPAGE P="50"/>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.</P> <P>(g) <E T="03">Effective date of filing.</E> 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.</P> <P>(h) <E T="03">Computation of time.</E> Saturdays, Sundays and Federal holidays shall be included in computing the time allowed for the filing of any document or paper: <E T="03">Provided,</E> That, when such time expires on a Saturday, Sunday, or Federal holiday, such period shall be extended to include the next following business day.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.148</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>(a) <E T="03">Motion for taking deposition.</E> 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:</P> <P>(1) The name and address of the proposed deponent;</P> <P>(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;</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Judge's order for taking deposition.</E> (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:</P> <P>(i) The time of the deposition;</P> <P>(ii) The place of the deposition;</P> <P>(iii) The manner of the deposition (telephone, audio-visual telecommunication, or personal attendance of those who are to participate in the deposition);</P> <P>(iv) The name of the officer before whom the deposition is to be made; and</P> <P>(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.</P> <P>(2) The deposition shall be conducted by telephone unless the Judge determines that conducting the deposition by audio-visual telecommunication:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the deposition; or</P> <P>(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.</P> <P>(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:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the deposition; or</P> <P>(iii) Would cost less than conducting the deposition by telephone or audio-visual telecommunication.</P> <P>(c) <E T="03">Qualifications of officer.</E> The deposition shall be made before the Judge or before an officer authorized by the law of the United States or by the law <PRTPAGE P="51"/>of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths.</P> <P>(d) <E T="03">Procedure on examination.</E> (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.</P> <P>(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.</P> <P>(e) <E T="03">Certification by officer.</E> 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.</P> <P>(f) <E T="03">Corrections to the transcript or recording.</E> (1) At any time prior to the hearing, any party may file a motion proposing corrections to the transcript or recording of the deposition.</P> <P>(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.</P> <P>(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).</P> <P>(g) <E T="03">Use of deposition.</E> A deposition ordered and taken in accordance with the provisions of this section may be used in a proceeding under these rules if the Judge finds that the evidence is otherwise admissible and (1) that the witness is dead; (2) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; (3) that the party offering the deposition has endeavored to procure the attendance of the witness by subpoena, but has been unable to do so; or (4) that such exceptional circumstances exist as to make it desirable, in the interests of justice, to allow the deposition to be used. If the party upon whose motion the deposition was taken refuses to offer it in evidence, any other party may offer the deposition or any part thereof in evidence. If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction of any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.149</SECTNO> <SUBJECT>Subpoenas. <SU>3</SU> <FTREF/> </SUBJECT> <FTNT> <P> <SU>3</SU> This section relates only to subpoenas for the stated purpose and has no relevance with respect to investigatory subpoenas.</P> </FTNT> <P>(a) <E T="03">Issuance of subpoenas.</E> 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 <PRTPAGE P="52"/>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.</P> <P>(b) <E T="03">Service of subpoenas.</E> 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.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.150</SECTNO> <SUBJECT>Fees of witnesses.</SUBJECT> <P>Witnesses summoned under these rules of practice shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken, and the officer taking the same, shall be entitled to the same fees as are paid for like services in the courts of the United States. Fees shall be paid by the party at whose instance the witness appears or the deposition is taken.</P> </SECTION> <SECTION> <SECTNO>§ 1.151</SECTNO> <SUBJECT> <E T="7462">Ex parte</E> communications.</SUBJECT> <P>(a) At no stage of the proceeding between its institution and the issuance of the final decision shall the Judge or Judicial Officer discuss <E T="03">ex parte</E> 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: <E T="03">Provided,</E> That procedural matters shall not be included within this limitation; and <E T="03">Provided further,</E> 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.</P> <P>(b) No interested person shall make or knowingly cause to be made to the Judge or Judicial Officer an <E T="03">ex parte</E> communication relevant to the merits of the proceeding.</P> <P>(c) If the Judge or the Judicial Officer receives an <E T="03">ex parte</E> communication in violation of this section, the one who receives the communication shall place in the public record of the proceeding:</P> <P>(1) All such written communications;</P> <P>(2) Memoranda stating the substance of all such oral communications; and</P> <P>(3) All written responses, and memoranda stating the substance of all oral responses thereto.</P> <P>(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.</P> <P>(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.</P> <P>(f) For purposes of this section <E T="03">ex parte communication</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Rules of Practice Governing Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 291, 292; 7 CFR 2.35, 2.41.</P> </AUTH> <SOURCE> <PRTPAGE P="53"/> <HD SOURCE="HED">Source:</HD> <P>45 FR 6587, Jan. 29, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.160</SECTNO> <SUBJECT>Scope and applicability of rules in this part.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.161</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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:</P> <P> <E T="03">Act</E> means the Capper-Volstead Act, approved February 18, 1922, 42 Stat. 388, 7 U.S.C. 291, 292.</P> <P> <E T="03">Association</E> means a cooperative association, a federation of cooperatives, or other association of agricultural producers, as defined in section 1 of the Act.</P> <P> <E T="03">Complainant</E> or <E T="03">Secretary</E> 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.</P> <P> <E T="03">Complaint</E> means a formal complaint instituted by the Secretary of Agriculture requiring respondent to show cause why an order should not be made directing it to cease and desist from acts of monopolization or restraint of trade, which result in undue price enhancement.</P> <P> <E T="03">Decision</E> 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.</P> <P> <E T="03">Hearing</E> means that part of the proceeding which involves the submission of evidence before the Judge for the record in the proceeding.</P> <P> <E T="03">Hearing Clerk</E> means the Hearing Clerk, United States Department of Agriculture, Washington, DC 20250.</P> <P> <E T="03">Judge</E> means any Administrative Law Judge appointed pursuant to 5 U.S.C. 3105 (the Administrative Procedure Act) and assigned to the proceeding involved.</P> <P> <E T="03">Judicial Officer</E> 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.</P> <P> <E T="03">Respondent</E> means the cooperative associations, or association, against whom a complaint has been issued.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.162</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <P>(a) <E T="03">Filing of information.</E> 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.</P> <P>(b) <E T="03">Consideration of information.</E> The Secretary shall consider all information filed under paragraph (a) of this section, and any other information which the Secretary may obtain relating to a violation of section 2 of the Act. If the Secretary finds that there is reason to believe that any association monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any agricultural product is unduly enhanced 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 <PRTPAGE P="54"/>proceeding a docket number and effect service upon respondent.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.163</SECTNO> <SUBJECT>The complaint.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.164</SECTNO> <SUBJECT>Answer.</SUBJECT> <P>(a) <E T="03">Filing and service.</E> 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.</P> <P>(b) <E T="03">Contents.</E> 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.</P> <P>(c) <E T="03">Default.</E> 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 <E T="03">prima facie</E> case by the complainant.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.165</SECTNO> <SUBJECT>Amendments.</SUBJECT> <P>Amendments to the complaint may be made prior to the filing of an answer in which case the time for filing the answer shall be extended 20 days or for other time agreed to by the parties. After the answer is filed, amendments to the complaint, or to the answer or other pleading, may be made by agreement of the parties or allowed at the discretion of the Judge. In case of an amendment which significantly changes the issues, the hearing shall, on the request of a party, be postponed or adjourned for a reasonable period, if the Judge determines that such action is necessary to avoid prejudice to the party.</P> </SECTION> <SECTION> <SECTNO>§ 1.166</SECTNO> <SUBJECT>Consent order.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.167</SECTNO> <SUBJECT>Conference.</SUBJECT> <P>(a) <E T="03">Purpose.</E> 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:</P> <P>(1) Simplification of the issues;</P> <P>(2) Limitation of expert or other witnesses;</P> <P>(3) The orderly presentation of evidence; and</P> <P>(4) Any other matters that may expedite and aid in the disposition of the proceeding.</P> <P>(b) <E T="03">Manner of the Conference.</E> (1) The conference shall be conducted by telephone or correspondence unless the Judge determines that conducting the conference by audio-visual telecommunication:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the conference; or</P> <P>(iii) Would cost less than conducting the conference by telephone or correspondence. If the Judge determines that a conference conducted by audio-visual telecommunication would measurably increase the United States Department of Agriculture's cost of conducting the conference, the conference shall be conducted by personal attendance of any individual who is expected to participate in the conference, by telephone, or by correspondence.</P> <P>(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:<PRTPAGE P="55"/> </P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the conference; or</P> <P>(iii) Would cost less than conducting the conference by audio-visual telecommunication.</P> <CITA>[60 FR 8457, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.168</SECTNO> <SUBJECT>Procedure for hearing.</SUBJECT> <P>(a) <E T="03">Time and place.</E> 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.</P> <P>(b) <E T="03">Manner of hearing.</E> (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.</P> <P>(2)(i) Any party may move that the hearing be conducted by telephone or personal attendance of any individual expected to attend the hearing rather than by audio-visual telecommunication. Any motion that the hearing be conducted by telephone or personal attendance of any individual expected to attend the hearing must be accompanied by a memorandum in support of the motion stating the basis for the motion and the circumstances that require the hearing to be conducted other than by audio-visual telecommunication.</P> <P>(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.</P> <P>(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:</P> <P>(i) Is necessary to prevent prejudice to a party;</P> <P>(ii) Is necessary because of a disability of any individual expected to participate in the hearing; or</P> <P>(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.</P> <P>(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:</P> <P>(i) Would provide a full and fair evidentiary hearing;</P> <P>(ii) Would not prejudice any party; and</P> <P>(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.</P> <P>(c) <E T="03">Appearances.</E> 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.</P> <P>(d) <E T="03">Order of proceeding.</E> Except as otherwise may be agreed by the parties and approved by the Judge, the complainant shall proceed first at the hearing.<PRTPAGE P="56"/> </P> <P>(e) <E T="03">Failure to appear.</E> 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 <E T="03">prime facie</E> case on the matters denied in the answer.</P> <P>(f) <E T="03">Written statements of direct testimony.</E> (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.</P> <P>(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.</P> <P>(g) <E T="03">Evidence.</E> (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.</P> <P>(2) <E T="03">Objections.</E> 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.</P> <P>(3) <E T="03">Official records or documents.</E> 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 <E T="03">prima facie</E> 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.</P> <P>(4) <E T="03">Exhibits.</E> 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.</P> <P>(5) <E T="03">Official notice.</E> 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: <E T="03">Provided,</E> That the opposing party shall be given adequate opportunity to show that such facts are erroneously noticed.</P> <P>(6) <E T="03">Offer of proof.</E> Whenever evidence is deleted from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript or recording. The offer of proof shall consist of a brief statement describing the evidence excluded. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript or recording in toto. In such event, it shall be considered a part of the transcript or recording and record if the Judicial Officer decides that the Judge's ruling in excluding the evidence was erroneous and prejudicial. The Judge shall not allow the insertion of such excluded evidence in toto if the taking of such evidence will consume considerable time at the hearing. In the latter event, if the Judicial Officer 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.<PRTPAGE P="57"/> </P> <P>(7) <E T="03">Affidavits.</E> Affidavits may be submitted into evidence, in lieu of witness testimony, only to the extent, and in the manner agreed upon by the parties.</P> <P>(h) <E T="03">Transcript or recording.</E> (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.</P> <P>(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.</P> <P>(3) Recordings or transcripts of hearings shall be made available to any person at actual cost of duplication.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8457, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.169</SECTNO> <SUBJECT>Post-hearing procedure and decision.</SUBJECT> <P>(a) <E T="03">Corrections to transcript or recording.</E> (1) At any time, but not later than the time fixed for filing proposed findings of fact, conclusions and order, or briefs, as the case may be, any party may file a motion proposing corrections to the transcript or recording.</P> <P>(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.</P> <P>(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).</P> <P>(b) <E T="03">Proposed findings of fact, conclusions, order and briefs.</E> 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.</P> <P>(c) <E T="03">Judge's decision.</E> 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: <E T="03">Provided,</E> 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.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.170</SECTNO> <SUBJECT>Appeal to the Judicial Officer.</SUBJECT> <P>(a) <E T="03">Filing of petition.</E> 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 <PRTPAGE P="58"/>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.</P> <P>(b) <E T="03">Response to appeal petition.</E> 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.</P> <P>(c) <E T="03">Transmittal of record.</E> 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.</P> <P>(d) <E T="03">Oral argument.</E> 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.</P> <P>(e) <E T="03">Scope of argument.</E> 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.</P> <P>(f) <E T="03">Notice of argument; Postponement.</E> 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.</P> <P>(g) <E T="03">Order of argument.</E> The appellant is entitled to open and conclude the argument.</P> <P>(h) <E T="03">Submission on briefs.</E> 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.</P> <P>(i) <E T="03">Decision of the judicial officer on appeal.</E> 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 a request for judicial review as provided in § 1.175(a).</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.171</SECTNO> <SUBJECT>Intervention.</SUBJECT> <P>Intervention under these rules shall not be allowed, except that, in the discretion of the Judicial Officer, or the <PRTPAGE P="59"/>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.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.172</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Motions entertained.</E> 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.</P> <P>(c) <E T="03">Contents.</E> All written motions and requests shall state the particular order, ruling, or action desired and the grounds therefor.</P> <P>(d) <E T="03">Response to motions in request.</E> 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.</P> <P>(e) <E T="03">Certification to the judicial officer.</E> The submission or certification of any motion, request, objection, or other question to the Judicial Officer prior to the time when the Judge's certification of the transcript is filed with the Hearing Clerk, shall be made by and in the discretion of the Judge. The Judge may either rule upon or certify the motion, request, objection, or other question to the Judicial Officer, but not both.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.173</SECTNO> <SUBJECT>Judges.</SUBJECT> <P>(a) <E T="03">Assignment.</E> 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.</P> <P>(b) <E T="03">Disqualification of Judge.</E> (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.</P> <P>(2) A Judge will withdraw from any proceeding in which the Judge deems himself or herself disqualified for any reason.</P> <P>(c) <E T="03">Conduct.</E> At no stage of the proceeding between its institution and the issuance of the final decision shall the Judicial Officer or the Judge discuss <E T="03">ex parte</E> 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: <E T="03">Provided,</E> That procedural matters shall not be included within the limitation: and <E T="03">Provided further,</E> That the Judicial Officer of Judge may discuss the merits of the case with such a person if all parties to the proceeding, or their representatives, have been given an opportunity to be present. Any memorandum or other communication addressed to the Judicial Officer or a Judge, during the pendency of the proceeding, and relating to the merits thereof, by or on behalf of any party or any interested person, shall be filed with the Hearing Clerk. A copy thereof shall be served upon the parties to the proceeding, and, in the discretion of the Judge or the Judicial Officer, opportunity may be given to file a reply thereto within a specified period.</P> <P>(d) <E T="03">Powers.</E> 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:</P> <P>(1) Rule upon motions and requests;</P> <P>(2) Set the time, place, and manner of any conference, set the manner of the hearing, adjourn the hearing, and <PRTPAGE P="60"/>change the time, place, and manner of the hearing;</P> <P>(3) Administer oaths and affirmations;</P> <P>(4) Examine witnesses and receive relevant evidence;</P> <P>(5) Admit or exclude evidence;</P> <P>(6) Hear oral argument on facts or law;</P> <P>(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;</P> <P>(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;</P> <P>(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.</P> <P>(e) <E T="03">Who may act in the absence of the Judge.</E> 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.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8458, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.174</SECTNO> <SUBJECT>Filing; service; extensions of time; and computation of time.</SUBJECT> <P>(a) <E T="03">Filing; Number of Copies.</E> Except as otherwise provided by the Judge or the Secretary, all documents or papers required or authorized by the rules in this part to be filed with the Hearing Clerk shall be filed in quadruplicate: <E T="03">Provided,</E> 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.</P> <P>(b) <E T="03">Service; proof of service.</E> 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: <E T="03">Provided,</E> 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: <E T="03">Provided,</E> That if the service be made by mail, as outlined in paragraph (b)(3) of this section proof of service shall be made by the return post office receipt, in the case of registered or certified mail, or by the certificate of the person who mailed the matter by regular mail. The certificate and post office receipt contemplated herein shall be filed with the Hearing Clerk, and the fact of filing thereof shall be noted in the record of the proceeding.</P> <P>(c) <E T="03">Extension of time.</E> 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 <PRTPAGE P="61"/>extension of the time shall be given to the other party with opportunity to submit views concerning the request.</P> <P>(d) <E T="03">Effective date of filing.</E> 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.</P> <P>(e) <E T="03">Computation of time.</E> Saturdays, Sundays and Federal holidays shall be included in computing the time allowed for the filing of any document or paper: <E T="03">Provided,</E> That when such time expires on a Saturday, Sunday or Federal holiday, such period shall be extended to include the next following business day.</P> <CITA>[45 FR 6587, Jan. 29, 1980, as amended at 60 FR 8459, Feb. 14, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.175</SECTNO> <SUBJECT>Procedure following entry of cease and desist order.</SUBJECT> <P>(a) <E T="03">Request for judicial review.</E> An association subject to a cease and desist order may, within thirty days following the date of the order, request the Secretary to institute proceedings for judicial review of the order. Such request shall, to the extent practicable, identify findings of fact, conclusions of law, and any part of the order which the association claims are in error. The Secretary shall, thereupon, file in the district in the judicial district in which such association has its principal place of business, a certified copy of the order and of all records in the proceeding, including the request of the association, together with a petition asking that the order be affirmed and enforced.</P> <P>(b) <E T="03">Enforcement.</E> 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.</P> <P>(c) <E T="03">Notice.</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Procedures Relating to Awards Under the Equal Access to Justice Act in Proceedings Before the Department</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>67 FR 63237, Oct. 11, 2002, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 1.180</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) The definitions contained in § 1.132 of this part are incorporated into and made applicable to this subpart.</P> <P>(b) <E T="03">Adjudicative Officer</E> means an administrative law judge, administrative judge, or other person assigned to conduct a proceeding covered by EAJA.</P> <P>(c) <E T="03">Agency</E> means an organizational unit of the Department whose head reports to an official in the Office of the Secretary.</P> <P>(d) <E T="03">Agency counsel</E> means the attorney from the Office of the General Counsel representing the agency of the Department administering the statute involved in the proceeding.</P> <P>(e) <E T="03">Days</E> means calendar days.</P> <P>(f) <E T="03">Department</E> means the United States Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1.181</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <P>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 <PRTPAGE P="62"/>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.182</SECTNO> <SUBJECT>When EAJA applies.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.183</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <P>(a)(1) The rules in this subpart apply to adversary adjudications. These are:</P> <P>(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,</P> <P>(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</P> <P>(iii) Any hearing conducted under chapter 38 of title 31, United States Code.</P> <P>(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. </P> <EXTRACT> <FP SOURCE="FP-1">Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 608c(15)(A))</FP> <FP SOURCE="FP-1">Animal Health Protection Act, sections 10414 and 10415 (7 U.S.C. 8313 and 8314).</FP> <FP SOURCE="FP-1">Animal Quarantine Laws (21 U.S.C. 104, 117, 122, 127, 134e, and 135a)</FP> <FP SOURCE="FP-1">Animal Welfare Act (7 U.S.C. 2149)</FP> <FP SOURCE="FP-1">Archaeological Resources Protection Act (16 U.S.C. 470ff)</FP> <FP SOURCE="FP-1">Beef Research and Information Act (7 U.S.C. 2912)</FP> <FP SOURCE="FP-1">Capper-Volstead Act (7 U.S.C. 292)</FP> <FP SOURCE="FP-1">Cotton Research and Promotion Act (7 U.S.C. 2111)</FP> <FP SOURCE="FP-1">Egg Products Inspection Act (21 U.S.C. 1047)</FP> <FP SOURCE="FP-1">Egg Research and Consumer Information Act (7 U.S.C. 2713, 2714(b))</FP> <FP SOURCE="FP-1">Endangered Species Act (16 U.S.C. 1540(a))</FP> <FP SOURCE="FP-1">Federal Land Policy and Management Act (43 U.S.C. 1766)</FP> <FP SOURCE="FP-1">Federal Meat Inspection Act (21 U.S.C. 604, 606, 607(e), 608, 671)</FP> <FP SOURCE="FP-1">Federal Seed Act (7 U.S.C. 1599)</FP> <FP SOURCE="FP-1">Horse Protection Act (15 U.S.C. 1823(c), 1825)</FP> <FP SOURCE="FP-1">Packers and Stockyards Act (7 U.S.C. 193, 204, 213, 218d, 221)</FP> <FP SOURCE="FP-1">Perishable Agricultural Commodities Act (7 U.S.C. 499c(c), 499d(d), 499f(c), 499h(a), 499h(b), 499h(c), 499i, 499m(a))</FP> <FP SOURCE="FP-1">Plant Protection Act (7 U.S.C. 7734, 7735, and 7736)</FP> <FP SOURCE="FP-1">Potato Research and Promotion Act (7 U.S.C. 2620)</FP> <FP SOURCE="FP-1">Poultry Products Inspection Act (21 U.S.C. 455, 456, 457(d), 467)</FP> <FP SOURCE="FP-1">Swine Health Protection Act (7 U.S.C. 3804(b), 3805(a))</FP> <FP SOURCE="FP-1">Title V of the Agricultural Risk Protection Act of 2000, section 501(a) (7 U.S.C. 2279e).</FP> <FP SOURCE="FP-1">U.S. Cotton Standards Act (7 U.S.C. 51b, 53)</FP> <FP SOURCE="FP-1">U.S. Grain Standards Act (7 U.S.C. 79(g)(3), 85, 86)</FP> <FP SOURCE="FP-1">U.S. Warehouse Act (7 U.S.C. 246, 253)</FP> <FP SOURCE="FP-1">Virus-Serum-Toxin Act (21 U.S.C. 156)</FP> <FP SOURCE="FP-1">Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 3409)</FP> </EXTRACT> <P>(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.</P> <P>(c) If a proceeding includes both matters covered by EAJA and matters specifically excluded from coverage, any <PRTPAGE P="63"/>award made will include only fees and expenses related to covered issues.</P> <CITA>[67 FR 63237, Oct. 11, 2002, as amended at 67 FR 70674, Nov. 26, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.184</SECTNO> <SUBJECT>Eligibility of applicants.</SUBJECT> <P>(a) To be eligible for an award of attorney fees and other expenses under EAJA, the applicant must meet one of the following conditions:</P> <P>(1) The applicant must be a prevailing party to the adversary adjudication for which it seeks an award; or</P> <P>(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.</P> <P>(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:</P> <P>(1) An individual with a net worth of not more than $2 million;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(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;</P> <P>(6) For purposes only of paragraph (a)(2) of this section, a small entity as defined in 5 U.S.C. 601.</P> <P>(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.</P> <P>(d) In interpreting the criteria set forth in paragraph (b) of this section, the following apply:</P> <P>(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.</P> <P>(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.</P> <P>(3) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation, or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this subpart, unless the adjudicative officer determines such treatment would be unjust and contrary to the purposes of EAJA in light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.185</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <P>(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 <PRTPAGE P="64"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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:</P> <P>(i) In the administrative complaint, or</P> <P>(ii) Elsewhere when accompanied by an express demand for a lesser amount.</P> </SECTION> <SECTION> <SECTNO>§ 1.186</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <P>(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.</P> <P>(b) No award for the fee of an attorney or agent under the rules in this subpart may exceed $125.00 per hour. No award to compensate an expert witness may exceed the highest rate at which the Department pays expert witnesses, which is set out at § 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.</P> <P>(c) In determining the reasonableness of the fee sought for an attorney, agent, or expert witness, the adjudicative officer shall consider the following:</P> <P>(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;</P> <P>(2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services;</P> <P>(3) The time actually spent in the representation of the applicant;</P> <P>(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and</P> <P>(5) Such other factors as may bear on the value of the services provided.</P> <P>(d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case.</P> </SECTION> <SECTION> <SECTNO>§ 1.187</SECTNO> <SUBJECT>Rulemaking on maximum rates for attorney fees.</SUBJECT> <P>(a) If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Department may adopt regulations providing that attorney fees may be awarded at a rate higher than $125 per 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.<PRTPAGE P="65"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.188</SECTNO> <SUBJECT>Awards against other agencies.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.189</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, the Secretary of Agriculture delegates to the Judicial Officer authority to take final action on matters pertaining to the Act in proceedings covered by these rules. The Secretary by order may delegate authority to take final action on matters pertaining to the Act in particular cases to other subordinate officials or bodies.</P> <P>(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.</P> <P>(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.</P> <CITA>[68 FR 27435, May 20, 2003]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Information Required From Applicants</HD> <SECTION> <SECTNO>§ 1.190</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(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:</P> <P>(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or</P> <P>(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)).</P> <P>(c) The application shall state the amount of fees and expenses for which an award is sought.</P> <P>(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.</P> <P>(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 <PRTPAGE P="66"/>is true and complete to the best of the signer's information and belief.</P> </SECTION> <SECTION> <SECTNO>§ 1.191</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <P>(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.</P> <P>(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information,” accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b) (1) through (9). The material in question shall be served on counsel representing the agency against which the applicant seeks an award, but need not be served on any other party to the proceeding. If the adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the established procedures of the Department under the Freedom of Information Act (§§ 1.1 through 1.23 of this part).</P> </SECTION> <SECTION> <SECTNO>§ 1.192</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.193</SECTNO> <SUBJECT>Time for filing application.</SUBJECT> <P>(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.</P> <P>(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 <PRTPAGE P="67"/>unappealable, both within the Department and to the courts.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procedures for Considering Applications</HD> <SECTION> <SECTNO>§ 1.194</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <P>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 limit on filing the application as set out in § 1.193 of this part may not be extended.</P> </SECTION> <SECTION> <SECTNO>§ 1.195</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.196</SECTNO> <SUBJECT>Reply.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.197</SECTNO> <SUBJECT>Comments by other parties.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.198</SECTNO> <SUBJECT>Settlement.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.199</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <P>(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, <PRTPAGE P="68"/>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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.200</SECTNO> <SUBJECT>Decision.</SUBJECT> <P>The adjudicative officer or Board of Contract Appeals shall issue an initial decision on the application as expeditiously as possible after completion of proceedings on the application. Whenever possible, the decision shall be made by the same administrative judge or panel that decided the contract appeal for which fees are sought. The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. This decision also shall include, if at issue, findings on whether the position of the Department was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made.</P> </SECTION> <SECTION> <SECTNO>§ 1.201</SECTNO> <SUBJECT>Department review.</SUBJECT> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.202</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).</P> </SECTION> <SECTION> <SECTNO>§ 1.203</SECTNO> <SUBJECT>Payment of award.</SUBJECT> <P>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.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <PRTPAGE P="69"/> <HD SOURCE="HED">Subpart K—Appearance of USDA Employees as Witnesses in Judicial or Administrative Proceedings</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 42347, Oct. 19, 1990, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.210</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.211</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Administrative proceeding</E> 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.</P> <P>(b) <E T="03">Appearance</E> 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.</P> <P>(c) <E T="03">Judicial proceeding</E> means any case or controversy pending before any federal, state, or local court.</P> <P>(d) <E T="03">Travel expenses</E> 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.</P> <P>(e) <E T="03">USDA</E> means the United States Department of Agriculture.</P> <P>(f) <E T="03">USDA agency</E> means an organizational unit of USDA whose head reports to an official within the Office of the Secretary of Agriculture.</P> <P>(g) <E T="03">Valid summons, subpoena, or other compulsory process</E> 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.</P> <P>(h) <E T="03">Witness fees</E> means the amount of money paid to a witness as compensation for attendance at a judicial or administrative proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 1.212</SECTNO> <SUBJECT>General.</SUBJECT> <P>No USDA employee may provide testimony or produce documents in a judicial or administrative proceeding unless authorized in accordance with this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 1.213</SECTNO> <SUBJECT>Appearance as a witness on behalf of the United States.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.214</SECTNO> <SUBJECT>Appearance as a witness on behalf of a party other than the United States where the United States is not a party.</SUBJECT> <P>(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.</P> <P>(b)(1) An employee of USDA served with a valid summons, subpoena, or <PRTPAGE P="70"/>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.</P> <P>(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.</P> <P>(c) Unless an appearance is authorized as provided in paragraphs (b)(1) or (b)(2) of this section, the employee shall appear at the stated time and place (unless advised by the General Counsel or his or her designee that the summons, subpoena, or other process was not validly issued or served), produce a copy of these regulations and respectfully decline to provide any testimony. As appropriate, the General Counsel or his or her designee will request the assistance of the Department of Justice or of a United States Attorney, in the case of a judicial proceeding; or of the official or attorney representing the United States, in the case of an administrative proceeding, to represent the interests of the employee and USDA.</P> <P>(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.</P> <P>(e)(1) In determining whether the employee's appearance is in the interest of USDA, authorizing officials should consider the following:</P> <P>(i) what interest of USDA would be promoted by the employee's testimony;</P> <P>(ii) whether an appearance would result in an unnecessary interference with the duties of the USDA employee;</P> <P>(iii) whether an employee's testimony would result in the appearance of improperly favoring one litigant over another.</P> <P>(2) The considerations listed in paragraph (e)(1) of this section are illustrative and not exhaustive.</P> </SECTION> <SECTION> <SECTNO>§ 1.215</SECTNO> <SUBJECT>Subpoenas duces tecum for USDA records in judicial or administrative proceedings in which the United States is not a party.</SUBJECT> <P>(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.</P> <P>(b) Whenever a subpoena duces tecum compelling the production of records is served on a USDA employee in a judicial or administrative proceeding in which the United States is not a party, the employee, after consultation with the General Counsel or his or her designee, shall appear in response thereto, respectfully decline to produce the records on the grounds that it is prohibited by this section and state that the production of the records involved will be handled in accordance with subpart A of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1.216</SECTNO> <SUBJECT>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.</SUBJECT> <P>(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 <PRTPAGE P="71"/>the judicial or administrative proceeding and the nature of the testimony or documents requested.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.217</SECTNO> <SUBJECT>Witness fees and travel expenses.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(d) An employee of USDA who attends a judicial or administrative proceeding on behalf of a party other than the United States when such appearance is in his or her official capacity or arises out of or relates to his or her employment with USDA is required to collect the authorized fees for such service and remit such fees to his or her USDA agency.</P> </SECTION> <SECTION> <SECTNO>§ 1.218</SECTNO> <SUBJECT>Penalty.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.219</SECTNO> <SUBJECT>Delegations.</SUBJECT> <P>(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 <PRTPAGE P="72"/>part, to employees of his or her agency as follows:</P> <P>(1) In the National office of the agency, to a level no lower than two levels below the agency head;</P> <P>(2) In a field component of an agency, to a level no lower than the official who heads a state office.</P> <P>(b) Notwithstanding paragraph (a) of this section, the Chief of the Forest Service may delegate his responsibilities under this subpart as follows:</P> <P>(1) In the National office of the Forest Service, to a level no lower than a Deputy Chief of the Forest Service;</P> <P>(2) In a field component of the Forest Service, to a level no lower than a Regional Forester or Station Director.</P> <P>(c) Notwithstanding paragraph (a) of this section, the General Counsel may delegate his responsibilities under this subpart as follows:</P> <P>(1) In the National office of the Office of the General Counsel, to a level no lower than an Assistant General Counsel;</P> <P>(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.</P> <P>(d) The responsibilities assigned to heads of agencies and to Assistant and Under Secretaries in § 1.214(b)(2) of this part may not be redelegated.</P> <CITA>[58 FR 62495, Nov. 29, 1993; 58 FR 64353, Dec. 6, 1993]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>31 U.S.C. 3801-3812.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 9582, Mar. 7, 1991, unless otherwise noted. Correctly designated at 57 FR 3909, Feb. 3, 1992.</P> </SOURCE> <SECTION> <SECTNO>§ 1.301</SECTNO> <SUBJECT>Basis, purpose and scope.</SUBJECT> <P>(a) <E T="03">Basis.</E> 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.</P> <P>(b) <E T="03">Purpose.</E> This subpart—</P> <P>(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</P> <P>(2) Specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.</P> <P>(c) <E T="03">Scope.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.302</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Agency</E> means a constituent organizational unit of the USDA.</P> <P>(b) <E T="03">Agency Fraud Claims Officer</E>—(<E T="03">AFCO</E>) means an officer or employee of an agency who is designated by the head of that agency to receive the reports of the investigating official, evaluate evidence, and make a recommendation to the reviewing official with respect to the determination required under § 1.305 of this part.</P> <P>(c) <E T="03">ALJ</E> 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.</P> <P>(d) <E T="03">Authority</E> means the USDA.</P> <P>(e) <E T="03">Benefits</E> 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.</P> <P>(f) <E T="03">Claim</E> means any request, demand, or submission—</P> <P>(1) Made to USDA for property, services, or money (including money representing grants, loans, insurance, or benefits);</P> <P>(2) Made to a recipient of property, services, or money from USDA or to a party to a contract with USDA—</P> <P>(i) For property or services if the United States—<PRTPAGE P="73"/> </P> <P>(A) Provided such property or services; or</P> <P>(B) Provided any portion of the funds for the purchase of such property or services; or</P> <P>(C) Will reimburse such recipient or party for the purchase of such property or services; or</P> <P>(ii) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States—</P> <P>(A) Provided any portion of the money requested or demanded; or</P> <P>(B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or</P> <P>(3) Made to USDA which has the effect of decreasing an obligation to pay or account for property, services, or money.</P> <P>(g) <E T="03">Complaint</E> means the written notice served by the reviewing official on the respondent under § 1.307 of this part.</P> <P>(h) <E T="03">Days</E> 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.</P> <P>(i) <E T="03">Family</E> means the individual's parents, spouse, siblings, children, and grandchildren with respect to an individual making a claim or statement for benefits.</P> <P>(j) <E T="03">Government</E> means the United States Government.</P> <P>(k) <E T="03">Household</E> means a family or one or more individuals occupying a single residence.</P> <P>(l) <E T="03">Individual</E> means a natural person.</P> <P>(m) <E T="03">Investigating official</E> 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.</P> <P>(n) <E T="03">Judicial officer</E> 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.</P> <P>(o) <E T="03">Knows or has reason to know</E> means that a person, with respect to a claim or statement—</P> <P>(1)(i) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;</P> <P>(ii) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or</P> <P>(iii) Acts in reckless disregard of the truth or falsity of the claim or statement; and</P> <P>(2) No proof of specific intent to defraud is required.</P> <P>(p) <E T="03">Makes</E> 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.</P> <P>(q) <E T="03">Person</E> means any individual, partnership, corporation, association, or private organization, and includes the plural of that term.</P> <P>(r) <E T="03">Representative</E> 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 <E T="03">pro se</E> appearances. An individual may appear for himself or herself, and a corporation or other entity may appear by an owner, officer, or employee of the corporation or entity.</P> <P>(s) <E T="03">Respondent</E> 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.</P> <P>(t) <E T="03">Reviewing official</E> means an officer or employee of USDA—</P> <P>(1) Who is designated by the Secretary to make the determination required under § 1.305 of this part;</P> <P>(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</P> <P>(3) Who is—</P> <P>(i) Not subject to supervision by, or required to report to, the investigating official; and</P> <P>(ii) Not employed in the organizational unit of USDA in which the investigating official is employed.<PRTPAGE P="74"/> </P> <P>(u) <E T="03">Secretary</E> means the Secretary of Agriculture.</P> <P>(v) <E T="03">Statement</E> means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made—</P> <P>(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</P> <P>(2) With respect to (including relating to eligibility for)—</P> <P>(i) A contract with, or a bid or proposal for a contract with; or</P> <P>(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.</P> <P>(w) <E T="03">USDA</E> means the U.S. Department of Agriculture.</P> </SECTION> <SECTION> <SECTNO>§ 1.303</SECTNO> <SUBJECT>Basis for civil penalties and assessments.</SUBJECT> <P>(a) <E T="03">Claims.</E> (1) Except as provided in paragraph (c) of this section, any person who makes a claim that the person knows or has reason to know—</P> <P>(i) Is false, fictitious, or fraudulent;</P> <P>(ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;</P> <P>(iii) Includes or is supported by any written statement that—</P> <P>(A) Omits a material fact;</P> <P>(B) Is false, fictitious, or fraudulent as a result of such omission; and</P> <P>(C) Is a statement in which the person making such statement has a duty to include such material fact; or</P> <P>(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.</P> <P>(2) Each voucher, invoice, claim form, or other individual request or demand for property, services, food coupons, or money constitutes a separate claim.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Statements.</E> (1) Except as provided in paragraph (c) of this section, any person who makes a written statement that—</P> <P>(i) The person knows or has reason to know—</P> <P>(A) Asserts a material fact which is false, fictitious, or fraudulent; or</P> <P>(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</P> <P>(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.</P> <P>(2) Each written representation, certification, or affirmation constitutes a separate statement.</P> <P>(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.<PRTPAGE P="75"/> </P> <P>(c) <E T="03">Benefits.</E> (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.</P> <P>(2) For purposes of this paragraph, the term <E T="03">benefits</E> means—</P> <P>(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);</P> <P>(ii) Benefits under the National School Lunch Act;</P> <P>(iii) Benefits under any housing assistance program for lower income families or elderly or handicapped persons which is administered by the Secretary or USDA;</P> <P>(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.</P> <P>(d) <E T="03">Intent.</E> No proof of specific intent to defraud is required to establish liability under this section.</P> <P>(e) <E T="03">More than one person liable.</E> 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.</P> <P>(f) <E T="03">Joint and several liability.</E> 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.</P> <CITA>[56 FR 9582, Mar. 7, 1991. Correctly designated at 57 FR 3909, Feb. 3, 1992, as amended at 75 FR 17556, Apr. 7, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.304 </SECTNO> <SUBJECT>Investigation.</SUBJECT> <P>(a) The investigating official may investigate allegations that a person is liable under § 1.303 of this part.</P> <P>(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.</P> <P>(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.</P> <P>(d) The person receiving such subpoena shall be required to tender to the investigating official or the person designated to receive the documents a certification that the documents or other materials sought have been produced, or that such documents or other materials are not available and the reasons therefore, or that such documents or other materials, suitably identified, have been withheld based upon the assertion of an identified privilege.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="76"/>postpone a report or referral to the reviewing official in order to avoid interference with a criminal investigation or prosecution.</P> <P>(h) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.</P> </SECTION> <SECTION> <SECTNO>§ 1.305</SECTNO> <SUBJECT>Review by the reviewing official.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The reviewing official is not bound by the recommendation of the AFCO, and may accept or reject it.</P> <P>(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 reviewing official's intention to issue a complaint under § 1.307 of this part.</P> <P>(e) Such notice shall include—</P> <P>(1) A statement of the reviewing official's reasons for issuing a complaint;</P> <P>(2) A statement of the evidence that supports the allegations of liability;</P> <P>(3) A description of the claims or statements upon which the allegations of liability are based;</P> <P>(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;</P> <P>(5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements;</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.306</SECTNO> <SUBJECT>Prerequisites for issuing a complaint.</SUBJECT> <P>The reviewing official may issue a complaint under § 1.307 of this part only if:</P> <P>(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);</P> <P>(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</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.307</SECTNO> <SUBJECT>Complaint.</SUBJECT> <P>(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.</P> <P>(b) The complaint shall state—</P> <P>(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;</P> <P>(2) The maximum amount of penalties and assessments for which the respondent may be held liable;<PRTPAGE P="77"/> </P> <P>(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</P> <P>(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.</P> <P>(c) At the same time the reviewing official serves the complaint, he or she shall serve the respondent with a copy of these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 1.308</SECTNO> <SUBJECT>Service of complaint and notice of hearing.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Affidavit of the individual making service;</P> <P>(2) An acknowledged United States Postal Service return receipt card; or</P> <P>(3) Written acknowledgment by the respondent or his representative.</P> </SECTION> <SECTION> <SECTNO>§ 1.309</SECTNO> <SUBJECT>Answer and request for hearing.</SUBJECT> <P>(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.</P> <P>(b) In the answer, the respondent—</P> <P>(1) Shall admit or deny each of the allegations of liability made in the complaint;</P> <P>(2) Shall state any defense upon which the respondent intends to rely;</P> <P>(3) Shall state the name, address, and telephone number of the person authorized to act as the respondent's representative, if any;</P> <P>(4) May state any reasons why the respondent contends the penalty and assessment should be reduced or modified; and</P> <P>(5) May request a hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1.310</SECTNO> <SUBJECT>Default upon failure to file an answer.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.311</SECTNO> <SUBJECT>Referral of complaint and answer to the ALJ.</SUBJECT> <P>Upon receipt of an answer, the reviewing official shall send to the ALJ copies of the complaint, proof of service, and the answer.</P> </SECTION> <SECTION> <SECTNO>§ 1.312</SECTNO> <SUBJECT>Procedure where respondent does not request a hearing.</SUBJECT> <P>(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 <PRTPAGE P="78"/>of proof shall be as set forth in § 1.329 of this part.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.313</SECTNO> <SUBJECT>Procedure where respondent requests a hearing; notice of hearing.</SUBJECT> <P>(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.</P> <P>(b) Such notice shall include:</P> <P>(1) The tentative time and place, and the nature of the hearing;</P> <P>(2) The legal authority and jurisdiction under which the hearing is to be held;</P> <P>(3) The matters of fact and law to be asserted;</P> <P>(4) A description of the procedures for the conduct of the hearing;</P> <P>(5) The name, address, and telephone number of the representative for the USDA and the representative for the respondent, if any; and</P> <P>(6) Such other matters as the ALJ deems appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 1.314</SECTNO> <SUBJECT>Parties to the hearing.</SUBJECT> <P>(a) The parties to the hearing shall be the respondent and USDA. The proceeding shall be brought in the name of the Secretary.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.315</SECTNO> <SUBJECT>Separation of functions.</SUBJECT> <P>(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—</P> <P>(1) Conduct the hearing in such case;</P> <P>(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</P> <P>(3) Make the collection of penalties and assessments under § 1.341 of this part.</P> <P>(b) The ALJ shall not be responsible to or subject to the supervision or direction of the investigating official or the reviewing official.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.316</SECTNO> <SUBJECT> <E T="7462">Ex parte</E> contacts.</SUBJECT> <P>Except to the extent required for the disposition of <E T="03">ex parte</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.317</SECTNO> <SUBJECT>Disqualification of reviewing official or ALJ.</SUBJECT> <P>(a) A reviewing official or ALJ in a particular case may disqualify himself or herself at any time.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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).</P> <P>(f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ <PRTPAGE P="79"/>shall dismiss the complaint without prejudice.</P> <P>(2) If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.318</SECTNO> <SUBJECT>Rights of parties.</SUBJECT> <P>All parties may:</P> <P>(a) Be accompanied, represented, and advised by a representative;</P> <P>(b) Participate in any prehearing or post-hearing conference held by the ALJ;</P> <P>(c) Agree to stipulations of fact or law, which shall be made part of the record;</P> <P>(d) Conduct discovery;</P> <P>(e) Make opening and closing statements at the hearing;</P> <P>(f) Present evidence relevant to the issues at the hearing;</P> <P>(g) Cross examine witnesses;</P> <P>(h) Present oral arguments at the hearings; and</P> <P>(i) Submit written briefs, proposed findings of fact, and proposed conclusions of law after the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1.319</SECTNO> <SUBJECT>Authority of the ALJ.</SUBJECT> <P>(a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceedings is made.</P> <P>(b) The ALJ may:</P> <P>(1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties;</P> <P>(2) Continue or recess the hearing in whole or part for a reasonable period of time;</P> <P>(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;</P> <P>(4) Administer oaths and affirmations;</P> <P>(5) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;</P> <P>(6) Rule on motions and other procedural matters;</P> <P>(7) Regulate the scope and timing of discovery;</P> <P>(8) Regulate the course of the hearing and the conduct of attorneys and parties;</P> <P>(9) Examine witnesses;</P> <P>(10) Receive, rule on, exclude, or limit evidence;</P> <P>(11) Upon motion of a party take official notice of facts;</P> <P>(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;</P> <P>(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and</P> <P>(14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this subpart.</P> <P>(c) The ALJ does not have the authority to decide upon the validity of Federal statutes, regulations, or legal opinions.</P> </SECTION> <SECTION> <SECTNO>§ 1.320</SECTNO> <SUBJECT>Prehearing conferences.</SUBJECT> <P>(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.</P> <P>(b) The ALJ may conduct any prehearing conference in person or by telephone.</P> <P>(c) The ALJ may use prehearing conferences to discuss the following matters:</P> <P>(1) Simplification of the issues;</P> <P>(2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;</P> <P>(3) Stipulations, admissions of fact or as to the contents and authenticity of documents;</P> <P>(4) Whether the parties can agree to submission of the case on a stipulated record;</P> <P>(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.</P> <P>(6) Limitation of the number of witnesses;</P> <P>(7) Scheduling dates for the exchange of witness lists and of proposed exhibits;</P> <P>(8) Discovery;<PRTPAGE P="80"/> </P> <P>(9) The time and place for the hearing; and</P> <P>(10) Such other matters as may tend to expedite the fair and just disposition of the proceedings.</P> <P>(d) The ALJ shall issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference.</P> </SECTION> <SECTION> <SECTNO>§ 1.321</SECTNO> <SUBJECT>Disclosure of documents.</SUBJECT> <P>(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.</P> <P>(b) Upon written request to the reviewing official, the respondent also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.322</SECTNO> <SUBJECT>Discovery.</SUBJECT> <P>(a) The following types of discovery are authorized:</P> <P>(1) Requests for production, inspection and photocopying of documents;</P> <P>(2) Requests for admission of the authenticity of any relevant document or the truth of any relevant fact;</P> <P>(3) Written interrogatories; and</P> <P>(4) Depositions.</P> <P>(b) The ALJ shall set the schedule for discovery.</P> <P>(c) Requests for production of documents and requests for admission.</P> <P>(1) A party may serve requests for production of documents or requests for admission on another party.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(i) The discovery sought is necessary for the expeditious, fair, and reasonable consideration of the issues;</P> <P>(ii) It is not unduly costly or burdensome;</P> <P>(iii) It will not unduly delay the proceeding; and</P> <P>(iv) The information sought is not privileged.</P> <P>(d) Depositions and written interrogatories. Depositions and written interrogatories are permitted only on the order of the ALJ.</P> <P>(1) A party seeking to use depositions or written interrogatories may file a motion with the ALJ.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="81"/>party seeking to depose shall serve the subpoena in the manner prescribed in § 1.308 of this part.</P> <P>(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.</P> <P>(e) Costs. The costs of discovery shall be borne by the party seeking discovery.</P> <P>(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:</P> <P>(1) That the discovery not be had;</P> <P>(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;</P> <P>(3) That the discovery may be had only through a method of discovery other than that requested;</P> <P>(4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;</P> <P>(5) That discovery be conducted with no one present except persons designated by the ALJ;</P> <P>(6) That the contents of discovery or evidence be sealed;</P> <P>(7) That a deposition after being sealed be opened only by order of the ALJ;</P> <P>(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</P> <P>(9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.323</SECTNO> <SUBJECT>Subpoenas for attendance at hearing.</SUBJECT> <P>(a) A party wishing to procure the appearance and testimony at the hearing of any individual may request that the ALJ issue a subpoena.</P> <P>(b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at such hearing.</P> <P>(c) A party who desires the issuance of a subpoena shall file with the ALJ a written request not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses whose attendance is sought to be required and describe their addresses and locations with sufficient particularity to permit such witnesses to be found. The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce. Such a request may be made <E T="03">ex parte.</E> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="82"/> <SECTNO>§ 1.324</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.325</SECTNO> <SUBJECT>Form, filing and service of papers.</SUBJECT> <P>(a) <E T="03">Form.</E> (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.</P> <P>(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).</P> <P>(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.</P> <P>(4) Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or his representative or by proof that the document was sent by certified or registered mail.</P> <P>(b) <E T="03">Service.</E> 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.</P> <P>(c) <E T="03">Proof of service.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.326</SECTNO> <SUBJECT>Computation of time.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) When a document has been served by mail, an additional five days will be added to the time permitted for any response.</P> </SECTION> <SECTION> <SECTNO>§ 1.327</SECTNO> <SUBJECT>Motions.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The ALJ may require written motions to be accompanied by supporting memorandums.</P> <P>(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.</P> <P>(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.</P> <P>(f) The ALJ shall make every reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1.328</SECTNO> <SUBJECT>Sanctions.</SUBJECT> <P>(a) The ALJ may sanction a person, including any party or representative for:</P> <P>(1) Failing to comply with a lawful order, subpoena, or procedure;</P> <P>(2) Failing to prosecute or defend an action; or</P> <P>(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.<PRTPAGE P="83"/> </P> <P>(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.</P> <P>(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:</P> <P>(1) Draw an inference in favor of the requesting party with regard to the information sought;</P> <P>(2) In the case of requests for admission, deem admitted each item as to which an admission is requested;</P> <P>(3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought;</P> <P>(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request; or</P> <P>(5) Request that the Attorney General petition an appropriate district court for an order to enforce a subpoena.</P> <P>(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.</P> <P>(e) The ALJ may refuse to consider any motion or other action which is not filed in a timely fashion.</P> </SECTION> <SECTION> <SECTNO>§ 1.329</SECTNO> <SUBJECT>The hearing and burden of proof.</SUBJECT> <P>(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.</P> <P>(b) The USDA shall prove respondent's liability and any aggravating factors by a preponderance of the evidence.</P> <P>(c) The respondent shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.</P> <P>(d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown.</P> </SECTION> <SECTION> <SECTNO>§ 1.330</SECTNO> <SUBJECT>Location of hearing.</SUBJECT> <P>(a) The hearing may be held—</P> <P>(1) In any judicial district of the United States in which the respondent resides or transacts business;</P> <P>(2) In any judicial district of the United States in which the claim or statement in issue was made; or</P> <P>(3) In such other place as may be agreed upon by the respondent and the ALJ.</P> <P>(b) Each party shall have the opportunity to present argument with respect to the location of the hearing.</P> <P>(c) The ALJ shall issue an order to the parties designating the time and the place of the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1.331</SECTNO> <SUBJECT>Witnesses.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.</P> <P>(b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 1.322(g) of this part.</P> <P>(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.</P> <P>(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.</P> <P>(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—</P> <P>(1) A party who is an individual;</P> <P>(2) In the case of a party that is not an individual, an officer or employee of the party designated by the representative; or<PRTPAGE P="84"/> </P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.332</SECTNO> <SUBJECT>Evidence.</SUBJECT> <P>(a) The ALJ shall determine the admissibility of evidence.</P> <P>(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.</P> <P>(c) The ALJ shall exclude irrelevant and immaterial evidence.</P> <P>(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.</P> <P>(e) Although relevant, evidence may be excluded if it is privileged under Federal law.</P> <P>(f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.</P> <P>(g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.</P> <P>(h) All documents and other evidence offered or taken for the record shall be open to examination by all parties unless otherwise ordered by the ALJ pursuant to § 1.322 of this part.</P> </SECTION> <SECTION> <SECTNO>§ 1.333</SECTNO> <SUBJECT>The record.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone unless otherwise ordered by the ALJ.</P> </SECTION> <SECTION> <SECTNO>§ 1.334</SECTNO> <SUBJECT>Post-hearing briefs.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.335</SECTNO> <SUBJECT>Determining the amount of penalties and assessments.</SUBJECT> <P>(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.</P> <P>(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 (<E T="03">i.e</E>., the false, fictitious, or fraudulent claims or statements) charged in the complaint:</P> <P>(1) The number of false, fictitious, or fraudulent claims or statements;</P> <P>(2) The time period over which such claims or statements were made;</P> <P>(3) The degree of the respondent's culpability with respect to the misconduct;</P> <P>(4) The amount of money or the value of the property, services, or benefit falsely claimed;</P> <P>(5) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;</P> <P>(6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss;</P> <P>(7) The potential or actual impact of the misconduct upon national defense, <PRTPAGE P="85"/>public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs;</P> <P>(8) Whether the respondent has engaged in a pattern of the same or similar misconduct;</P> <P>(9) Whether the respondent attempted to conceal the misconduct;</P> <P>(10) The degree to which the respondent has involved others in the misconduct or in concealing it;</P> <P>(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;</P> <P>(12) Whether the respondent cooperated in or obstructed an investigation of the misconduct;</P> <P>(13) Whether the respondent assisted in identifying and prosecuting other wrongdoers;</P> <P>(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;</P> <P>(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</P> <P>(16) The need to deter the respondent and others from any engaging in the same or similar misconduct.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.336</SECTNO> <SUBJECT>Initial decision of the ALJ.</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) Whether any claim or statement identified in the complaint violates § 1.303 of this part;</P> <P>(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.</P> <P>(c) The ALJ shall serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall include with the initial decision a statement describing the right of any respondent determined to be liable for a civil penalty or assessment to file notice of appeal with the judicial officer. The ALJ may extend the time period for serving the initial decision on the parties.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.337</SECTNO> <SUBJECT>Reconsideration of initial decision.</SUBJECT> <P>(a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt will be presumed to be five days from the date of mailing in the absence of contrary proof.</P> <P>(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.</P> <P>(c) Responses to such motions shall be allowed only upon request of the ALJ.</P> <P>(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.</P> <P>(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.</P> <P>(f) If the ALJ denies a motion for reconsideration, the initial decision shall <PRTPAGE P="86"/>constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the judicial officer in accordance with § 1.338 of this part.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.338</SECTNO> <SUBJECT>Appeal to the judicial officer.</SUBJECT> <P>(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.</P> <P>(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 resolution of the motion for reconsideration.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(e) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.</P> <P>(f) The representative for USDA may file a brief in opposition to exceptions within 30 days of receiving the brief proposing exceptions.</P> <P>(g) There is no right to appear personally before the judicial officer.</P> <P>(h) There is no right to interlocutory appeal of rulings by the ALJ.</P> <P>(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.</P> <P>(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.</P> <P>(k) The judicial officer may affirm, reduce, reverse, compromise, remand or settle any penalty or assessment determined by the ALJ.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.339</SECTNO> <SUBJECT>Stays ordered by the Department of Justice.</SUBJECT> <P>(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 <PRTPAGE P="87"/>or potential criminal or civil action related to such claim or statement, the judicial officer shall stay the process immediately.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.340</SECTNO> <SUBJECT>Stay pending appeal.</SUBJECT> <P>(a) A decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the judicial officer.</P> <P>(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.</P> <P>(c) The representative for the USDA may file an opposition to respondent's request for a stay within 10 days of receipt of the request. If the representative for the USDA fails to file such an opposition within the allotted time, or indicates that the USDA has no objection to the request, the ALJ may grant the stay without requiring respondent to give a bond or other security.</P> <P>(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.</P> <P>(e) A decision of the ALJ denying respondent's request for a stay shall constitute final agency action.</P> </SECTION> <SECTION> <SECTNO>§ 1.341</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.342</SECTNO> <SUBJECT>Collection of civil penalties and assessments.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.343</SECTNO> <SUBJECT>Right to administrative offset.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.344</SECTNO> <SUBJECT>Deposit to Treasury of the United States.</SUBJECT> <P>All amounts collected pursuant to this subpart shall be deposited as miscellaneous receipts in the Treasury of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 1.345</SECTNO> <SUBJECT>Settlement.</SUBJECT> <P>(a) A respondent may make offers of compromise of settlement at any time.</P> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="88"/>this part, or any action to recover penalties and assessments under § 1.342 of this part.</P> <P>(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.</P> <P>(f) Any settlement must be in writing.</P> </SECTION> <SECTION> <SECTNO>§ 1.346</SECTNO> <SUBJECT>Limitation.</SUBJECT> <P>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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">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 <E T="0714">et seq.</E>)</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 556 and 16 U.S.C. 620 <E T="03">et seq.</E> </P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 8824, Feb. 24, 1994, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.410</SECTNO> <SUBJECT>Meaning of words.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.411</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>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 <E T="03">et seq.</E> (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:</P> <P>(a) <E T="03">Applicant</E> or <E T="03">Sourcing area applicant</E> 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).</P> <P>(b) <E T="03">Decision</E> means:</P> <P>(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 <E T="03">et seq.</E> 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</P> <P>(2) The decision and order by the Judicial officer upon appeal of the Judge's decision.</P> <P>(c) <E T="03">Determination</E> is synonymous with <E T="03">decision.</E> </P> <P>(d) <E T="03">Hearing</E> 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.</P> <P>(e) <E T="03">Hearing Clerk</E> means the Office of the Hearing Clerk, United States Department of Agriculture, Washington, D.C. 20250.</P> <P>(f) <E T="03">Judge</E> means any Administrative Law Judge Appointed pursuant to 5 U.S.C. 3105 and assigned to the proceeding involved.</P> <P>(g) <E T="03">Judicial Officer</E> means an official of the United States Department of Agriculture delegated authority by the Secretary of Agriculture, pursuant to the Act of April 4, 1940 (7 U.S.C. 450c-459g) and Reorganization Plan No. 2 of 1953 (5 U.S.C. 1988 ed., appendix, p. 1280), to perform the function involved (7 CFR 235(a)), or the Secretary of Agriculture, if the authority so delegated is exercised by the Secretary.</P> <P>(h) <E T="03">Party of record</E> or <E T="03">Party</E> 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 <PRTPAGE P="89"/>comments on the sourcing area application at issue during the 30 calendar day comment period after institution of the formal review, including the Regional Forester, are the parties of record.</P> <P>(i) <E T="03">Sourcing Area Application</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.412</SECTNO> <SUBJECT>Institution of proceedings.</SUBJECT> <P>(a) <E T="03">Sourcing area applications.</E> 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.</P> <P>(b) <E T="03">Review of sourcing areas.</E> Informal review of a sourcing area precedes institution of a formal review as follows:</P> <P>(1) <E T="03">Request by Sourcing area holder.</E> 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.</P> <P>(i) <E T="03">Informal review.</E> The Regional Forester shall begin an informal review, pursuant to 36 CFR 223.191(e), based on the written request. If no agreement is reached in the informal review process, the Regional Forester of the region in which the manufacturing facility being sourced is located shall transmit to the Office of Administrative Law Judges any submissions received during the informal review process, within 5 working days of the meeting convened during the informal review (36 CFR 223.191)e)). Agreement is reached when all persons attending the meeting convened by the Regional Forester to resolve differences as to the proper sourcing area, including the Regional Forester, sign the document describing the sourcing area.</P> <P>(ii) <E T="03">Formal review.</E> 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.</P> <P>(2) <E T="03">Initiation of review by agency.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.413</SECTNO> <SUBJECT>Submission of a sourcing area application.</SUBJECT> <P>A sourcing area applicant shall send the application to the Office of Administrative Law Judges and shall, simultaneously, send a copy of the sourcing area application to the Forest Service Regional Forester of the region in which the manufacturing facility being sourced is located. Where the sourcing area application will cover purchases from more than one agency, application is to be made to the agency from which the applicant expects to purchase the preponderance of its Federal timber. The sourcing area applicant must also send a complete copy of the application to each agency concerned. The lead agency shall make the decision in consultation with, and upon co-signature of, the other agency(ies) concerned. Sourcing area applications must be signed by the persons making the request, or in the case of a corporation, by its chief executive officer, and <PRTPAGE P="90"/>must be notarized. The application shall be on company letterhead.</P> </SECTION> <SECTION> <SECTNO>§ 1.414</SECTNO> <SUBJECT>Docket number.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.415</SECTNO> <SUBJECT>Notification of proceedings.</SUBJECT> <P>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 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.416</SECTNO> <SUBJECT>Comment period.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.417</SECTNO> <SUBJECT>Review period.</SUBJECT> <P>(a) <E T="03">Review of comments.</E> 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.</P> <P>(b) <E T="03">Recommendation to Judge to approve or disapprove a sourcing area application.</E> 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.</P> <P>(c) <E T="03">Request for a hearing.</E> 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 <PRTPAGE P="91"/>the hearing consists of papers and documents submitted during the 30 calendar day comment period, the 10 working day review period, and any motions submitted before the hearing. For purposes of a formal review of a sourcing area, the written record also consists of the papers and documents submitted during the informal review.</P> <P>(1) <E T="03">Contents of the notice of hearing.</E> 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.</P> <P>(2) <E T="03">Giving notice of hearing.</E> The notice of hearing shall be served upon the parties of record for the sourcing area application at issue by the Hearing Clerk.</P> </SECTION> <SECTION> <SECTNO>§ 1.418</SECTNO> <SUBJECT>Procedure upon no request for hearing.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.419</SECTNO> <SUBJECT>Amendment of a sourcing area application.</SUBJECT> <P>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.</P> </SECTION> <SECTION> <SECTNO>§ 1.420</SECTNO> <SUBJECT>Consent recommendation.</SUBJECT> <P>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, <E T="03">et seq.</E>), 36 CFR 223.190, 36 CFR 223.191(e) and these procedures. If the recommendation conforms to the aforementioned Act, regulations, and procedures, the Judge may enter such decision without further procedure, unless an error is apparent on the face of the document. If the Judge enters the decision, such decision shall have the same force and effect as a decision issued after full hearing and shall become final upon issuance to become effective in accordance with the terms of the decision.</P> </SECTION> <SECTION> <SECTNO>§ 1.421</SECTNO> <SUBJECT>Prehearing conferences and procedures.</SUBJECT> <P>(a) <E T="03">Purpose and scope.</E> (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 <PRTPAGE P="92"/>the proceeding would be expedited by a prehearing conference. Reasonable notice of the time and place of the conference shall be given. The Judge may order each of the parties to furnish at or subsequent to the conference any or all of the following:</P> <P>(i) An outline of a party's position;</P> <P>(ii) The facts upon which the party will rely;</P> <P>(iii) The legal theories upon which the party will rely;</P> <P>(iv) Copies of or a list of documents which the party anticipates introducing at the hearing; and</P> <P>(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.</P> <P>(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.</P> <P>(3) At the conference, the following matters shall be considered:</P> <P>(i) The simplification of issues;</P> <P>(ii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof;</P> <P>(iii) The limitation of the number of expert or other witnesses;</P> <P>(iv) Negotiation, compromise, or settlement of issues;</P> <P>(v) The exchange of copies of proposed exhibits;</P> <P>(vi) The identification of documents or matters of which official notice may be requested;</P> <P>(vii) A schedule to be followed by the parties for completion of the actions decided at the conference; and</P> <P>(viii) Such other matters as may expedite and aid in the disposition of the proceeding.</P> <P>(b) <E T="03">Reporting.</E> A prehearing conference will not be stenographically reported unless so directed by the Judge.</P> <P>(c) <E T="03">Action in lieu of personal attendance at a conference.</E> 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.</P> <P>(d) <E T="03">Order.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.422</SECTNO> <SUBJECT>Conduct of the hearing.</SUBJECT> <P>(a) <E T="03">Time and place.</E> 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.</P> <P>(b) <E T="03">Appearances.</E> The parties may appear in person or by attorney of record in the proceeding. Any party who desires to be heard in person shall, before proceeding to testify, state his name, address, and occupation. If any such person is appearing through counsel, such person or such counsel shall, before proceeding to testify or otherwise to participate in the hearing, state for the record the authority to act as such counsel or representative, and the names, addresses, and occupations of such person and such counsel. Any such person or such counsel shall give such other information respecting his appearance as the Judge may request. Any person who appears as counsel must conform to the standards of ethical conduct required of practitioners before the courts of the United States.</P> <P>(c) <E T="03">Failure to appear.</E> 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.</P> <P>(d) <E T="03">Order of proceeding.</E> The Judge shall determine the order in which the parties shall proceed.<PRTPAGE P="93"/> </P> <P>(e) <E T="03">Evidence</E>—(1) <E T="03">In general.</E> (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.</P> <P>(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.</P> <P>(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).</P> <P>(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.</P> <P>(2) <E T="03">Objections.</E> (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.</P> <P>(ii) Only objections made before the Judge may subsequently be relied upon in the proceeding.</P> <P>(3) <E T="03">Depositions.</E> The deposition of any witness shall be admitted in the manner provided in and subject to the provisions of § 1.228 of these procedures.</P> <P>(4) <E T="03">Exhibits.</E> 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.</P> <P>(5) <E T="03">Official records or documents.</E> 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.</P> <P>(6) <E T="03">Official notice.</E> 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: <E T="03">Provided,</E> 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.</P> <P>(7) <E T="03">Offer of proof.</E> 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.</P> <P>(f) <E T="03">Transcript.</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 1.423</SECTNO> <SUBJECT>Post-hearing procedure.</SUBJECT> <P>(a) <E T="03">Corrections to transcript.</E> (1) Within the period of time fixed by the Judge, any party may file a motion proposing corrections to the transcript.</P> <P>(2) Unless a party files such motion in the manner prescribed, the transcript shall be presumed, except for obvious typographical errors, to be complete.</P> <P>(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 <PRTPAGE P="94"/>entered onto the original transcript by the Hearing Clerk (without obscuring the origianl text).</P> <P>(b) <E T="03">Proposed findings of fact, conclusions, order, and brief.</E> 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.</P> <P>(c) <E T="03">Judge's decision.</E> (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.</P> <P>(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.</P> <P>(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.</P> <P>(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; <E T="03">Provided, however,</E> that no decision shall be final for purposes of judicial review except a final decision of the Judicial Officer upon appeal.</P> <P>(5) The Judicial Officer shall issue a decision within 10 calendar days of the receipt of the response to the appeal.</P> </SECTION> <SECTION> <SECTNO>§ 1.424</SECTNO> <SUBJECT>Motions and requests.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Motions entertained.</E> 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.</P> <P>(c) <E T="03">Contents.</E> All written motions and requests shall state the particular order, ruling, or action desired and the grounds therefore.</P> <P>(d) <E T="03">Response to motions and requests.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.425</SECTNO> <SUBJECT>Judges.</SUBJECT> <P>(a) <E T="03">Assignment.</E> No Judge shall be assigned to serve in any proceeding who:</P> <P>(1) Has any pecuniary interest in any matter or business involved in the proceeding;</P> <P>(2) Is related within the third degree by blood or marriage to any party to the proceeding; or</P> <P>(3) Has any conflict of interest which might impair the Judge's objectivity in the proceeding.</P> <P>(b) <E T="03">Disqualification of Judge.</E> (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.</P> <P>(2) A Judge shall withdraw from any proceeding for any reason deemed by the Judge to be disqualifying.</P> <P>(c) <E T="03">Powers.</E> Subject to review as provided elsewhere in this part, the Judge, in any assigned proceeding shall have power to:</P> <P>(1) Rule upon motions and requests;</P> <P>(2) Set the time and place of a pre-hearing conference and the hearing, adjourn the hearing from time to time, and change the time and place of hearing;</P> <P>(3) Administer oaths and affirmations;</P> <P>(4) Request the presence of and examine witnesses and receive relevant evidence at the hearing;</P> <P>(5) Take or order the taking of depositions as authorized under these rules;</P> <P>(6) Admit or exclude evidence;<PRTPAGE P="95"/> </P> <P>(7) Hear oral argument on facts or law,</P> <P>(8) Do all acts and take all measures necessary for the maintenance of order, including the exclusion of contumacious counsel or other persons;</P> <P>(9) Request additional information from any party to aid in the Judge's determination; and</P> <P>(10) Take all other actions authorized under these procedures.</P> <P>(d) <E T="03">Who may act in the absence of the Judge.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.426</SECTNO> <SUBJECT>Appeal to Judicial Officer.</SUBJECT> <P>(a) <E T="03">Filing of petition.</E> 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 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.</P> <P>(b) <E T="03">Response to appeal petition.</E> 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.</P> <P>(c) <E T="03">Transmittal of record.</E> Whenever an appeal of a Judge's decision is filed and a response thereto has been filed or time for filing a response has expired, the Hearing Clerk shall transmit to the Judicial Officer the record of the proceeding. Such record shall include: The pleadings; motions and requests filed and rulings thereon; the transcript of the testimony taken at the hearing, together with the exhibits filed in connection therewith; any documents or papers filed in connection with a prehearing conference; such proposed findings of fact, conclusions, and orders, and briefs in support thereof, as may have been filed in connection with the proceeding; the Judge's decision; such exceptions, statements of objections and briefs in support thereof as may have been filed in the proceeding; and the appeal petition, and such briefs in support thereof and responses thereto as may have been filed in the proceeding.</P> <P>(d) <E T="03">Decision of the Judicial Officer on appeal.</E> 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 <PRTPAGE P="96"/>judicial review of such decision in the proper forum. A final order issued by the Judicial Officer shall be filed with the Hearing Clerk. Such order may be regarded by a party as final for purposes of judicial review.</P> </SECTION> <SECTION> <SECTNO>§ 1.427</SECTNO> <SUBJECT>Filing; identification of parties of record; service; and computation of time.</SUBJECT> <P>(a) <E T="03">Filing; number of copies.</E> 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.</P> <P>(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.</P> <P>(c) <E T="03">Service; proof of service.</E> (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:</P> <P>(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</P> <P>(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</P> <P>(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: <E T="03">Provided,</E> 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</P> <P>(iv) By mailing the document or paper by regular mail.</P> <P>(2) Proof of service hereunder shall be made by the certificate of the person who actually made the service: <E T="03">Provided,</E> that if the service is made by mail, as outlined in paragraph (b)(3) of this section, proof of service shall be made by the return post-office receipt, in the case of registered or certified mail, and if that service is made by regular mail, as outlined in paragraphs (b)(3) and (b)(4) of this section, proof of service shall be made by the certificate of the person who mailed the matter by regular mail. The certificate and post-office receipt contemplated herein shall be filed with the Hearing Clerk, and made a part of the record of the proceeding. The Judge and the Hearing Clerk shall follow the procedures outlined in (c) for service of papers or documents signed by the Judge and/or the Hearing Clerk.</P> <P>(d) <E T="03">Effective date of filing.</E> 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.</P> <P>(e) <E T="03">Computations of time.</E> Saturdays, Sundays and Federal holidays shall be included in computing the time allowed for the filing of any document or paper except as provided in these rules; <E T="03">Provided,</E> that, when such time expires on a Saturday, Sunday, or Federal holiday, such period shall be extended to include the next following business day.</P> </SECTION> <SECTION> <SECTNO>§ 1.428</SECTNO> <SUBJECT>Depositions.</SUBJECT> <P>(a) <E T="03">Motion for taking deposition.</E> 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:<PRTPAGE P="97"/> </P> <P>(1) The name and address of the proposed deponent;</P> <P>(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;</P> <P>(3) The proposed time and place of the examination; and</P> <P>(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.</P> <P>(b) <E T="03">Judge's order for taking deposition.</E> (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:</P> <P>(i) The time and place of the examination;</P> <P>(ii) The name of the officer before whom the examination is to be made; and</P> <P>(iii) The name of the deponent.</P> <P>(2) The officer and the time and place need not be the same as those suggested in the motion.</P> <P>(c) <E T="03">Qualifications of officer.</E> 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.</P> <P>(d) <E T="03">Procedure on examinations.</E> (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.</P> <P>(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.</P> <P>(e) <E T="03">Certification by officer.</E> 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.</P> <P>(f) <E T="03">Corrections to the transcript.</E> (1) At any time prior to the hearing any party may file a motion proposing corrections to the transcript of the deposition.</P> <P>(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.</P> <P>(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).</P> <P>(g) <E T="03">Use of deposition.</E> 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 <PRTPAGE P="98"/>as to make it desirable, in the interests of justice, to allow the deposition to be used. If the party upon whose motion the deposition was taken refuses to offer it in evidence, any other party may offer the deposition or any thereof in evidence. If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction of any other part which ought in fairness to be considered with the part introduced and any party may introduce any other parts.</P> </SECTION> <SECTION> <SECTNO>§ 1.429</SECTNO> <SUBJECT> <E T="7462">Ex parte</E> communications.</SUBJECT> <P>(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 <E T="03">ex parte</E> the merits of the proceeding with any person having an interest in the proceeding, or with any representative of such person: <E T="03">Provided,</E> That, procedural matters and status reports shall not be included within this limitation; and <E T="03">Provided further,</E> 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.</P> <P>(b) No interested person shall make or knowingly cause to be made to the Judge an <E T="03">ex parte</E> communication relevant to the merits of the proceeding.</P> <P>(c) If the Judge reviews an <E T="03">ex parte</E> communication in violation of this section, the one who receives the communication shall place in the public record of the proceeding:</P> <P>(1) All such written communication;</P> <P>(2) Memoranda stating the substance of all such oral communications; and</P> <P>(3) All written responses, and memoranda stating the substance of all oral responses thereto.</P> <P>(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.</P> <P>(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.</P> <P>(f) For purposes of this section <E T="03">ex parte communication</E> 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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Policy With Regard to Indemnification of Department of Agriculture Employees</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>At 69 FR 28042, May 18, 2004, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.501</SECTNO> <SUBJECT>Policy on employee indemnification.</SUBJECT> <P>(a) Indemnification, under the context of this section, shall be the policy whereby the Department of Agriculture compensates an employee for the legal consequences of conduct, taken within the scope of his or her employment, giving rise to a verdict, judgment, or other monetary award rendered against the employee.</P> <P>(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.<PRTPAGE P="99"/> </P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart O—Conditions in FERC Hydropower Licenses</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>16 U.S.C. 797(e), 811, 823d.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>70 FR 69817, Nov. 17, 2005, unless otherwise noted.</P> </SOURCE> <SUBJGRP> <HD SOURCE="HED">General Provisions</HD> <SECTION> <SECTNO>§ 1.601</SECTNO> <SUBJECT>What is the purpose of this subpart, and to what license proceedings does it apply?</SUBJECT> <P>(a) <E T="03">Hearing process.</E> (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 <E T="03">et seq.</E> The authority to develop these conditions is granted by FPA section 4(e), 16 U.S.C. 797(e), which authorizes the Secretary of Agriculture to condition hydropower licenses issued by the Federal Energy Regulatory Commission (FERC).</P> <P>(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).</P> <P>(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:<PRTPAGE P="100"/> </P> <P>(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</P> <P>(ii) A hearing requested under this subpart will be conducted by one of the other Departments, pursuant to 43 CFR 45.1 <E T="03">et seq.</E> or 50 CFR 221.1 <E T="03">et seq.</E>, as applicable.</P> <P>(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).</P> <P>(b) <E T="03">Alternatives process.</E> 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).</P> <P>(c) <E T="03">Reservation of authority.</E> 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.</P> <P>(d) <E T="03">Applicability.</E> (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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.602</SECTNO> <SUBJECT>What terms are used in this subpart?</SUBJECT> <P>As used in this subpart:</P> <P> <E T="03">ALJ</E> means an administrative law judge appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process under this subpart.</P> <P> <E T="03">Alternative</E> 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.</P> <P> <E T="03">Condition</E> means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), for the adequate protection and utilization of a reservation.</P> <P> <E T="03">Day</E> means a calendar day.</P> <P> <E T="03">Department</E> means the Department of Agriculture, Department of Commerce, or Department of the Interior.</P> <P> <E T="03">Discovery</E> means a prehearing process for obtaining facts or information to assist a party in preparing or presenting its case.</P> <P> <E T="03">Ex parte communication</E> means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate.</P> <P> <E T="03">FERC</E> means the Federal Energy Regulatory Commission.</P> <P> <E T="03">Forest Service</E> means the USDA Forest Service.</P> <P> <E T="03">FPA</E> means the Federal Power Act, 16 U.S.C. 791 <E T="03">et seq.</E> </P> <P> <E T="03">Hearing Clerk</E> means the Hearing Clerk, USDA, 1400 Independence Ave., SW., Washington, DC 20250; phone: 202-720-4443, facsimile: 202-720-9776.</P> <P> <E T="03">Intervention</E> means a process by which a person who did not request a hearing under § 1.621 can participate as a party to the hearing under § 1.622.</P> <P> <E T="03">License party</E> means a party to the license proceeding, as that term is defined at 18 CFR 385.102(c).</P> <P> <E T="03">License proceeding</E> means a proceeding before FERC for issuance of a license for a hydroelectric facility under 18 CFR parts 4 or 5.</P> <P> <E T="03">Material fact</E> means a fact that, if proved, may affect a Department's decision whether to affirm, modify, or withdraw any condition or prescription.</P> <P> <E T="03">NEPA document</E> 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 <E T="03">et seq.</E> <PRTPAGE P="101"/> </P> <P> <E T="03">NFS</E> 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.</P> <P> <E T="03">Office of Administrative Law Judges (OALJ)</E> is the office within USDA in which ALJs conduct hearings under the regulations in this subpart.</P> <P> <E T="03">Party</E> means, with respect to USDA's hearing process:</P> <P>(1) A license party that has filed a timely request for a hearing under:</P> <P>(i) Section 1.621; or</P> <P>(ii) Either 43 CFR 45.21 or 50 CFR 221.21, with respect to a hearing process consolidated under § 1.623;</P> <P>(2) A license party that has filed a timely notice of intervention and response under:</P> <P>(i) Section 1.622; or</P> <P>(ii) Either 43 CFR 45.22 or 50 CFR 221.22, with respect to a hearing process consolidated under § 1.623;</P> <P>(3) The Forest Service, if it has filed a preliminary condition; and</P> <P>(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under § 1.623.</P> <P> <E T="03">Person</E> 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.</P> <P> <E T="03">Preliminary condition or prescription</E> 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.</P> <P> <E T="03">Prescription</E> means a fishway prescribed under FPA sec. 18, 16 U.S.C. 811, to provide for the safe, timely, and effective passage of fish.</P> <P> <E T="03">Representative</E> means a person who:</P> <P>(1) Is authorized by a party to represent the party in a hearing process under this subpart; and</P> <P>(2) Has filed an appearance under § 1.610.</P> <P> <E T="03">Reservation</E> has the same meaning as the term “reservations” in FPA sec. 3(2), 16 U.S.C. 796(2).</P> <P> <E T="03">Secretary</E> means the Secretary of Agriculture or his or her designee.</P> <P> <E T="03">Senior Department employee</E> has the same meaning as the term “senior employee” in 5 CFR 2637.211(a).</P> <P> <E T="03">USDA</E> means the United States Department of Agriculture.</P> <P> <E T="03">You</E> refers to a party other than a Department.</P> </SECTION> <SECTION> <SECTNO>§ 1.603</SECTNO> <SUBJECT>How are time periods computed?</SUBJECT> <P>(a) <E T="03">General.</E> Time periods are computed as follows:</P> <P>(1) The day of the act or event from which the period begins to run is not included.</P> <P>(2) The last day of the period is included.</P> <P>(i) If that day is a Saturday, Sunday, or federal holiday, the period is extended to the next business day.</P> <P>(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.</P> <P>(3) If the period is less than 7 days, any Saturday, Sunday, or federal holiday that falls within the period is not included.</P> <P>(b) <E T="03">Extensions of time.</E> (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.</P> <P>(2) An extension of time to file any other document under this subpart may be granted only upon a showing of good cause.</P> <P>(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.</P> <P>(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.</P> <P>(iii) The ALJ may grant the extension only if:</P> <P>(A) It would not unduly prejudice other parties; and</P> <P>(B) It would not delay the decision under § 1.660.</P> </SECTION> <SECTION> <SECTNO>§ 1.604</SECTNO> <SUBJECT>What deadlines apply to pending applications?</SUBJECT> <P>(a) <E T="03">Applicability.</E> (1) This section applies to any case in which the Forest <PRTPAGE P="102"/>Service has filed a preliminary condition or condition with FERC before November 17, 2005 and FERC has not issued a license as of that date.</P> <P>(2) The deadlines in this section will apply in such a case, in lieu of any inconsistent deadline in other sections of this subpart.</P> <P>(b) <E T="03">Hearing process.</E> (1) Any request for a hearing under § 1.621 must be filed with NFS by December 19, 2005.</P> <P>(2) Any notice of intervention and response under § 1.622 must be filed by January 3, 2006.</P> <P>(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:</P> <P>(i) Comply with the requirements of § 1.623;</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Alternatives process.</E> (1) Any alternative under § 1.671 must be filed with NFS by December 19, 2005.</P> <P>(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:</P> <P>(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</P> <P>(ii) Issue a notice to the license party that has submitted the alternative, specifying the time frame for the filing of a modified condition.</P> <P>(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.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing Process</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Representatives</HD> <SECTION> <SECTNO>§ 1.610</SECTNO> <SUBJECT>Who may represent a party, and what requirements apply to a representative?</SUBJECT> <P>(a) <E T="03">Individuals.</E> 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.</P> <P>(b) <E T="03">Organizations.</E> A party that is an organization or other entity may authorize one of the following to represent it:</P> <P>(1) An attorney;</P> <P>(2) A partner, if the entity is a partnership;</P> <P>(3) An officer or full-time employee, if the entity is a corporation, association, or unincorporated organization;</P> <P>(4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or</P> <P>(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.</P> <P>(c) <E T="03">Appearance.</E> A representative must file a notice of appearance. The notice must:</P> <P>(1) Meet the form and content requirements for documents under § 1.611;</P> <P>(2) Include the name and address of the person on whose behalf the appearance is made;</P> <P>(3) If the representative is an attorney, include a statement that he or she is a member in good standing of the bar of the highest court of a state, the District of Columbia, or any territory or commonwealth of the United States (identifying which one); and</P> <P>(4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity.</P> <P>(d) <E T="03">Disqualification.</E> The ALJ may disqualify any representative for misconduct or other good cause.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Document Filing and Service</HD> <SECTION> <SECTNO>§ 1.611</SECTNO> <SUBJECT>What are the form and content requirements for documents under §§ 1.610 through 1.660?</SUBJECT> <P>(a) <E T="03">Form.</E> Each document filed in a case under §§ 1.610 through 1.660 must:<PRTPAGE P="103"/> </P> <P>(1) Measure 8<FR>1/2</FR> by 11 inches, except that a table, chart, diagram, or other attachment may be larger if folded to 8<FR>1/2</FR> by 11 inches and attached to the document;</P> <P>(2) Be printed on just one side of the page;</P> <P>(3) Be clearly typewritten, printed, or otherwise reproduced by a process that yields legible and permanent copies;</P> <P>(4) Use 10 point font size or larger;</P> <P>(5) Be double-spaced except for footnotes and long quotations, which may be single-spaced;</P> <P>(6) Have margins of at least 1 inch; and</P> <P>(7) Be bound on the left side, if bound.</P> <P>(b) <E T="03">Caption.</E> Each document filed under §§ 1.610 through 1.660 must begin with a caption that sets forth:</P> <P>(1) The name of the case under §§ 1.610 through 1.660 and the docket number, if one has been assigned;</P> <P>(2) The name and docket number of the license proceeding to which the case under §§ 1.610 through 1.660 relates; and</P> <P>(3) A descriptive title for the document, indicating the party for whom it is filed and the nature of the document.</P> <P>(c) <E T="03">Signature.</E> 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.</P> <P>(d) <E T="03">Contact information.</E> 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).</P> </SECTION> <SECTION> <SECTNO>§ 1.612</SECTNO> <SUBJECT>Where and how must documents be filed?</SUBJECT> <P>(a) <E T="03">Place of filing.</E> Any documents relating to a case under §§ 1.610 through 1.660 must be filed with the appropriate office, as follows:</P> <P>(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.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Method of filing.</E> (1) A document must be filed with the appropriate office under paragraph (a) of this section using one of the following methods:</P> <P>(i) By hand delivery of the original document;</P> <P>(ii) By sending the original document by express mail or courier service for delivery on the next business day; or</P> <P>(iii) By sending the document by facsimile if:</P> <P>(A) The document is 20 pages or less, including all attachments;</P> <P>(B) The sending facsimile machine confirms that the transmission was successful; and</P> <P>(C) The original of the document is sent by regular mail on the same day.</P> <P>(2) Parties are encouraged, but not required, to supplement any filing by providing the appropriate office with an electronic copy of the document on diskette or compact disc.</P> <P>(c) <E T="03">Date of filing.</E> 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.</P> <P>(d) <E T="03">Nonconforming documents.</E> 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 <PRTPAGE P="104"/>minor, the party may be notified of the defect and given a chance to correct it.</P> </SECTION> <SECTION> <SECTNO>§ 1.613</SECTNO> <SUBJECT>What are the requirements for service of documents?</SUBJECT> <P>(a) <E T="03">Filed documents.</E> 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:</P> <P>(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.</P> <P>(2) A complete copy of any notice of intervention and response under § 1.622 must be:</P> <P>(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</P> <P>(ii) Sent to any other license party using regular mail.</P> <P>(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.</P> <P>(b) <E T="03">Documents issued by the Hearing Clerk or ALJ.</E> 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.</P> <P>(c) <E T="03">Method of service.</E> Service must be accomplished by one of the following methods:</P> <P>(1) By hand delivery of the document;</P> <P>(2) By sending the document by express mail or courier service for delivery on the next business day;</P> <P>(3) By sending the document by facsimile if:</P> <P>(i) The document is 20 pages or less, including all attachments;</P> <P>(ii) The sending facsimile machine confirms that the transmission was successful; and</P> <P>(iii) The document is sent by regular mail on the same day; or</P> <P>(4) By sending the document, including all attachments, by electronic mail if:</P> <P>(i) A copy of the document is sent by regular mail on the same day; and</P> <P>(ii) The party acknowledges receipt of the document by close of the next business day.</P> <P>(d) <E T="03">Acknowledgment of service.</E> 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.</P> <P>(e) <E T="03">Certificate of service.</E> 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:</P> <P>(1) The name, address, and other contact information of each party's representative on whom the document was served;</P> <P>(2) The means of service, including information indicating compliance with paragraph (c)(3) or (c)(4) of this section, if applicable; and</P> <P>(3) The date of service.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Initiation of Hearing Process</HD> <SECTION> <SECTNO>§ 1.620</SECTNO> <SUBJECT>What supporting information must the Forest Service provide with its preliminary conditions?</SUBJECT> <P>(a) <E T="03">Supporting information.</E> (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.</P> <P>(2) If any of the documents relied upon are not already in the license proceeding record, the Forest Service must:</P> <P>(i) File them with FERC at the time it files the preliminary conditions; and</P> <P>(ii) Provide paper or electronic copies to the license applicant.</P> <P>(b) <E T="03">Service.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.621</SECTNO> <SUBJECT>How do I request a hearing?</SUBJECT> <P>(a) <E T="03">General.</E> To request a hearing on disputed issues of material fact with respect to any condition filed by the Forest Service, you must:</P> <P>(1) Be a license party; and</P> <P>(2) File with NFS a written request for a hearing within 30 days after the <PRTPAGE P="105"/>deadline for the Departments to file preliminary conditions with FERC.</P> <P>(b) <E T="03">Content.</E> Your hearing request must contain:</P> <P>(1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence; and</P> <P>(2) The following information with respect to each issue:</P> <P>(i) The specific factual statements made or relied upon by the Forest Service under § 1.620(a) that you dispute;</P> <P>(ii) The basis for your opinion that those factual statements are unfounded or erroneous;</P> <P>(iii) The basis for your opinion that any factual dispute is material; and</P> <P>(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.</P> <P>(c) <E T="03">Witnesses and exhibits.</E> Your hearing request must also list the witnesses and exhibits that you intend to present at the hearing, other than solely for impeachment purposes.</P> <P>(1) For each witness listed, you must provide:</P> <P>(i) His or her name, address, telephone number, and qualifications; and</P> <P>(ii) A brief narrative summary of his or her expected testimony.</P> <P>(2) For each exhibit listed, you must specify whether it is in the license proceeding record.</P> <P>(d) <E T="03">Page limits.</E> (1) For each disputed factual issue, the information provided under paragraph (b)(2) of this section may not exceed two pages.</P> <P>(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.</P> </SECTION> <SECTION> <SECTNO>§ 1.622</SECTNO> <SUBJECT>How do I file a notice of intervention and response?</SUBJECT> <P>(a) <E T="03">General.</E> (1) To intervene as a party to the hearing process, you must:</P> <P>(i) Be a license party; and</P> <P>(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.</P> <P>(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.</P> <P>(b) <E T="03">Content.</E> 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).</P> <P>(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.</P> <P>(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).</P> <P>(c) <E T="03">Witnesses and exhibits.</E> 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.</P> <P>(1) For each witness listed, you must provide:</P> <P>(i) His or her name, address, telephone number, and qualifications; and</P> <P>(ii) A brief narrative summary of his or her expected testimony; and</P> <P>(2) For each exhibit listed, you must specify whether it is in the license proceeding record.</P> <P>(d) <E T="03">Page limits.</E> (1) For each disputed factual issue, the information provided under paragraph (b) of this section may not exceed two pages.</P> <P>(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.</P> </SECTION> <SECTION> <SECTNO>§ 1.623</SECTNO> <SUBJECT>When will hearing requests be consolidated?</SUBJECT> <P>(a) <E T="03">Initial Department coordination.</E> 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:</P> <P>(1) Whether any of the other Departments has also filed a preliminary condition or prescription relating to the license with FERC; and<PRTPAGE P="106"/> </P> <P>(2) If so, whether the other Department has also received a hearing request with respect to the preliminary condition or prescription.</P> <P>(b) <E T="03">Decision on consolidation.</E> Within 25 days after the deadline for filing hearing requests under § 1.621, if the Forest Service has received a hearing request, it must:</P> <P>(1) Consult with any other Department that has also received a hearing request; and</P> <P>(2) Decide jointly with the other Department:</P> <P>(i) Whether to consolidate the cases for hearing under paragraphs (c)(3)(ii) through (c)(3)(iv) of this section; and</P> <P>(ii) If so, which Department will conduct the hearing on their behalf.</P> <P>(c) <E T="03">Criteria.</E> Cases will or may be consolidated as follows:</P> <P>(1) All hearing requests with respect to any conditions from the same Department will be consolidated for hearing.</P> <P>(2) All hearing requests with respect to any prescriptions from the same Department will be consolidated for hearing.</P> <P>(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:</P> <P>(i) Two or more hearing requests with respect to any condition and any prescription from the same Department;</P> <P>(ii) Two or more hearing requests with respect to conditions from different Departments;</P> <P>(iii) Two or more hearing requests with respect to prescriptions from different Departments; or</P> <P>(iv) Two or more hearing requests with respect to any condition from one Department and any prescription from another Department.</P> </SECTION> <SECTION> <SECTNO>§ 1.624</SECTNO> <SUBJECT>How will the Forest Service respond to any hearing requests?</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Content.</E> If the Forest Service files an answer:</P> <P>(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:</P> <P>(i) That the Forest Service is willing to stipulate to the facts as alleged by the requester;</P> <P>(ii) That the Forest Service believes the issue listed by the requester is not a factual issue, explaining the basis for such belief;</P> <P>(iii) That the Forest Service believes the issue listed by the requester is not material, explaining the basis for such belief; or</P> <P>(iv) That the Forest Service agrees that the issue is factual, material, and in dispute.</P> <P>(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:</P> <P>(i) Identify any other hearing request that will be consolidated with this hearing request; and</P> <P>(ii) State which Department will conduct the hearing and provide contact information for the appropriate Department hearings component.</P> <P>(c) <E T="03">Witnesses and exhibits.</E> 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.</P> <P>(1) For each witness listed, the Forest Service must provide:</P> <P>(i) His or her name, address, telephone number, and qualifications; and</P> <P>(ii) A brief narrative summary of his or her expected testimony.</P> <P>(2) For each exhibit listed, the Forest Service must specify whether it is in the license proceeding record</P> <P>(d) <E T="03">Page limits.</E> (1) For each disputed factual issue, the information provided under paragraph (b)(1) of this section may not exceed two pages.</P> <P>(2) For each witness, the information provided under paragraph (c)(1) of this section may not exceed one page.</P> <P>(e) <E T="03">Notice in lieu of answer.</E> If the Forest Service elects not to file an answer to a hearing request:<PRTPAGE P="107"/> </P> <P>(1) The Forest Service is deemed to agree that the issues listed by the requester are factual, material, and in dispute;</P> <P>(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</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.625</SECTNO> <SUBJECT>What will the Forest Service do with any hearing requests?</SUBJECT> <P>(a) <E T="03">Case referral.</E> Within 5 days after receipt of the Forest Service's answer, NFS will refer the case for a hearing as follows:</P> <P>(1) If the hearing is to be conducted by USDA, NFS will refer the case to the OALJ.</P> <P>(2) If the hearing is to be conducted by another Department, NFS will refer the case to the hearings component used by that Department.</P> <P>(b) <E T="03">Content.</E> The case referral will consist of the following:</P> <P>(1) A copy of any preliminary condition under § 1.620;</P> <P>(2) The original of any hearing request under § 1.621;</P> <P>(3) The original of any notice of intervention and response under § 1.622;</P> <P>(4) The original of any answer under § 1.624; and</P> <P>(5) An original referral notice under paragraph (c) of this section.</P> <P>(c) <E T="03">Notice.</E> At the time NFS refers the case for a hearing, it must provide a referral notice that contains the following information:</P> <P>(1) The name, address, telephone number, and facsimile number of the Department hearings component that will conduct the hearing;</P> <P>(2) The name, address, and other contact information for the representative of each party to the hearing process;</P> <P>(3) An identification of any other hearing request that will be consolidated with this hearing request; and</P> <P>(4) The date on which NFS is referring the case for docketing.</P> <P>(d) <E T="03">Delivery and service.</E> (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).</P> <P>(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).</P> </SECTION> <SECTION> <SECTNO>§ 1.626</SECTNO> <SUBJECT>What regulations apply to a case referred for a hearing?</SUBJECT> <P>(a) If NFS refers the case to OALJ, these regulations will continue to apply to the hearing process.</P> <P>(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 <E T="03">et seq.</E> will apply from that point.</P> <P>(c) If NFS refers the case to the Department of Commerce's designated ALJ office, the regulations at 50 CFR 221.1 <E T="03">et seq.</E> will apply from that point.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General Provisions Related to Hearings</HD> <SECTION> <SECTNO>§ 1.630</SECTNO> <SUBJECT>What will OALJ do with a case referral?</SUBJECT> <P>Within 5 days after issuance of the referral notice under § 1.625(c), 43 CFR 45.25(c), or 50 CFR 221.25(c):</P> <P>(a) The Hearing Clerk must:</P> <P>(1) Docket the case;</P> <P>(2) Assign an ALJ to preside over the hearing process and issue a decision; and</P> <P>(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case; and</P> <P>(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 be combined with the docketing notice under paragraph (a)(3) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 1.631</SECTNO> <SUBJECT>What are the powers of the ALJ?</SUBJECT> <P>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:</P> <P>(a) Administer oaths and affirmations;</P> <P>(b) Issue subpoenas to the extent authorized by law;</P> <P>(c) Rule on motions;</P> <P>(d) Authorize discovery as provided for in §§ 1.641 through 1.647;</P> <P>(e) Hold hearings and conferences;<PRTPAGE P="108"/> </P> <P>(f) Regulate the course of hearings;</P> <P>(g) Call and question witnesses;</P> <P>(h) Exclude any person from a hearing or conference for misconduct or other good cause;</P> <P>(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</P> <P>(j) Take any other action authorized by law.</P> </SECTION> <SECTION> <SECTNO>§ 1.632</SECTNO> <SUBJECT>What happens if the ALJ becomes unavailable?</SUBJECT> <P>(a) If the ALJ becomes unavailable or otherwise unable to perform the duties described in § 1.631, the OALJ shall designate a successor.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.633</SECTNO> <SUBJECT>Under what circumstances may the ALJ be disqualified?</SUBJECT> <P>(a) The ALJ may withdraw from a case at any time the ALJ deems himself or herself disqualified.</P> <P>(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.</P> <P>(1) The party must file the motion promptly after discovering facts or other reasons allegedly constituting cause for disqualification.</P> <P>(2) The party must file with the motion an affidavit or declaration setting forth the facts or other reasons in detail.</P> <P>(c) The ALJ must rule upon the motion, stating the grounds for the ruling.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.634</SECTNO> <SUBJECT>What is the law governing ex parte communications?</SUBJECT> <P>(a) <E T="03">Ex parte</E> communications with the ALJ or his or her staff are prohibited in accordance with 5 U.S.C. 554(d).</P> <P>(b) This section does not prohibit <E T="03">ex parte</E> inquiries concerning case status or procedural requirements, unless the inquiry involves an area of controversy in the hearing process.</P> </SECTION> <SECTION> <SECTNO>§ 1.635</SECTNO> <SUBJECT>What are the requirements for motions?</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(1) A motion made at a hearing may be stated orally on the record, unless the ALJ directs that it be reduced to writing.</P> <P>(2) Any other motion must:</P> <P>(i) Be in writing;</P> <P>(ii) Comply with the requirements of §§ 1.610 through 1.613 with respect to form, content, filing, and service; and</P> <P>(iii) Not exceed 10 pages.</P> <P>(b) <E T="03">Content.</E> (1) Each motion must state clearly and concisely:</P> <P>(i) Its purpose and the relief sought;</P> <P>(ii) The facts constituting the grounds for the relief sought; and</P> <P>(iii) Any applicable statutory or regulatory authority.</P> <P>(2) A proposed order must accompany the motion.</P> <P>(c) <E T="03">Response.</E> 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.</P> <P>(d) <E T="03">Reply.</E> Unless the ALJ orders otherwise, no reply to a response may be filed.</P> <P>(e) <E T="03">Effect of filing.</E> Unless the ALJ orders otherwise, the filing of a motion does not stay the hearing process.</P> <P>(f) <E T="03">Ruling.</E> The ALJ will rule on the motion as soon as practicable, either orally on the record or in writing. He <PRTPAGE P="109"/>or she may summarily deny any dilatory, repetitive, or frivolous motion.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Prehearing Conferences and Discovery</HD> <SECTION> <SECTNO>§ 1.640</SECTNO> <SUBJECT>What are the requirements for prehearing conferences?</SUBJECT> <P>(a) <E T="03">Initial prehearing conference.</E> 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).</P> <P>(1) The initial prehearing conference will be used:</P> <P>(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;</P> <P>(ii) To consider the parties' motions for discovery under § 1.641 and to set a deadline for the completion of discovery;</P> <P>(iii) To discuss the evidence on which each party intends to rely at the hearing;</P> <P>(iv) To set the deadline for submission of written testimony under § 1.652; and</P> <P>(v) To set the date, time, and place of the hearing.</P> <P>(2) The initial prehearing conference may also be used:</P> <P>(i) To discuss limiting and grouping witnesses to avoid duplication;</P> <P>(ii) To discuss stipulations of fact and of the content and authenticity of documents;</P> <P>(iii) To consider requests that the ALJ take official notice of public records or other matters;</P> <P>(iv) To discuss the submission of written testimony, briefs, or other documents in electronic form; and</P> <P>(v) To consider any other matters that may aid in the disposition of the case.</P> <P>(b) <E T="03">Other conferences.</E> 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.</P> <P>(c) <E T="03">Notice.</E> 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.</P> <P>(d) <E T="03">Preparation.</E> (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.</P> <P>(2) Before the date set for the initial prehearing conference, the parties' representatives must make a good faith effort:</P> <P>(i) To meet in person, by telephone, or by other appropriate means; and</P> <P>(ii) To reach agreement on discovery and the schedule of remaining steps in the hearing process.</P> <P>(e) <E T="03">Failure to attend.</E> 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.</P> <P>(f) <E T="03">Scope.</E> During a conference, the ALJ may dispose of any procedural matters related to the case.</P> <P>(g) <E T="03">Order.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.641</SECTNO> <SUBJECT>How may parties obtain discovery of information needed for the case?</SUBJECT> <P>(a) <E T="03">General.</E> 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:</P> <P>(1) Written interrogatories;</P> <P>(2) Depositions as provided in paragraph (h) of this section; and</P> <P>(3) Requests for production of designated documents or tangible things or for entry on designated land for inspection or other purposes.</P> <P>(b) <E T="03">Criteria.</E> 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 <PRTPAGE P="110"/>the party requesting discovery demonstrates:</P> <P>(1) That the discovery will not unreasonably delay the hearing process;</P> <P>(2) That the information sought:</P> <P>(i) Will be admissible at the hearing or appears reasonably calculated to lead to the discovery of admissible evidence;</P> <P>(ii) Is not already in the license proceeding record or otherwise obtainable by the party;</P> <P>(iii) Is not cumulative or repetitious; and</P> <P>(iv) Is not privileged or protected from disclosure by applicable law;</P> <P>(3) That the scope of the discovery is not unduly burdensome;</P> <P>(4) That the method to be used is the least burdensome method available;</P> <P>(5) That any trade secrets or proprietary information can be adequately safeguarded; and</P> <P>(6) That the standards for discovery under paragraphs (f) through (h) of this section have been met, if applicable.</P> <P>(c) <E T="03">Motions.</E> A party may initiate discovery:</P> <P>(1) Pursuant to an agreement of the parties; or</P> <P>(2) By filing a motion that:</P> <P>(i) Briefly describes the proposed method(s), purpose, and scope of the discovery;</P> <P>(ii) Explains how the discovery meets the criteria in paragraphs (b)(1) through (b)(6) of this section; and</P> <P>(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).</P> <P>(d) <E T="03">Timing of motions.</E> 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).</P> <P>(e) <E T="03">Objections.</E> (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.</P> <P>(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.</P> <P>(f) <E T="03">Materials prepared for hearing.</E> 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).</P> <P>(1) If a party wants to discover such materials, it must show:</P> <P>(i) That it has substantial need of the materials in preparing its own case; and</P> <P>(ii) That the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.</P> <P>(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.</P> <P>(g) <E T="03">Experts.</E> 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:</P> <P>(1) The expert is expected to be a witness at the hearing; or</P> <P>(2) The expert is relied on by another expert who is expected to be a witness at the hearing, and the party shows:</P> <P>(i) That it has a compelling need for the information; and</P> <P>(ii) That it cannot practicably obtain the information by other means.</P> <P>(h) <E T="03">Limitations on depositions.</E> (1) A party may depose a witness only if the party shows that the witness:</P> <P>(i) Will be unable to attend the hearing because of age, illness, or other incapacity; or</P> <P>(ii) Is unwilling to attend the hearing voluntarily, and the party is unable to compel the witness's attendance at the hearing by subpoena.</P> <P>(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.</P> <P>(3) A party may depose a senior Department employee only if the party shows:</P> <P>(i) That the employee's testimony is necessary in order to provide significant, unprivileged information that is <PRTPAGE P="111"/>not available from any other source or by less burdensome means; and</P> <P>(ii) That the deposition would not significantly interfere with the employee's ability to perform his or her government duties.</P> <P>(i) <E T="03">Completion of discovery.</E> All discovery must be completed within 25 days after the initial prehearing conference, unless the ALJ sets a different deadline.</P> </SECTION> <SECTION> <SECTNO>§ 1.642</SECTNO> <SUBJECT>When must a party supplement or amend information it has previously provided?</SUBJECT> <P>(a) <E T="03">Discovery.</E> A party must promptly supplement or amend any prior response to a discovery request if it learns that the response:</P> <P>(1) Was incomplete or incorrect when made; or</P> <P>(2) Though complete and correct when made, is now incomplete or incorrect in any material respect.</P> <P>(b) <E T="03">Witnesses and exhibits.</E> (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).</P> <P>(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).</P> <P>(c) <E T="03">Failure to disclose.</E> (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.</P> <P>(2) Paragraph (c)(1) of this section does not apply if the failure to disclose was substantially justified or is harmless.</P> <P>(3) Before or during the hearing, a party may object to the admission of evidence under paragraph (c)(1) of this section.</P> <P>(4) The ALJ will consider the following in determining whether to exclude evidence under paragraphs (c)(1) through (c)(3) of this section:</P> <P>(i) The prejudice to the objecting party;</P> <P>(ii) The ability of the objecting party to cure any prejudice;</P> <P>(iii) The extent to which presentation of the evidence would disrupt the orderly and efficient hearing of the case;</P> <P>(iv) The importance of the evidence; and</P> <P>(v) The reason for the failure to disclose, including any bad faith or willfulness regarding the failure.</P> </SECTION> <SECTION> <SECTNO>§ 1.643</SECTNO> <SUBJECT>What are the requirements for written interrogatories?</SUBJECT> <P>(a) <E T="03">Motion.</E> Except upon agreement of the parties, a party wishing to propound interrogatories must file a motion under § 1.641(c).</P> <P>(b) <E T="03">ALJ order.</E> 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:</P> <P>(1) Grant the motion and approve the use of some or all of the proposed interrogatories; or</P> <P>(2) Deny the motion.</P> <P>(c) <E T="03">Answers to interrogatories.</E> 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.</P> <P>(1) Each approved interrogatory must be answered separately and fully in writing.</P> <P>(2) The party or its representative must sign the answers to interrogatories under oath or affirmation.</P> <P>(d) <E T="03">Access to records.</E> A party's answer to an interrogatory is sufficient when:</P> <P>(1) The information may be obtained from an examination of records, or from a compilation, abstract, or summary based on such records;</P> <P>(2) The burden of obtaining the information from the records is substantially the same for all parties;</P> <P>(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</P> <P>(4) The answering party provides the requesting party with reasonable opportunity to examine the records and <PRTPAGE P="112"/>make a copy, compilation, abstract, or summary.</P> </SECTION> <SECTION> <SECTNO>§ 1.644</SECTNO> <SUBJECT>What are the requirements for depositions?</SUBJECT> <P>(a) <E T="03">Motion and notice.</E> 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:</P> <P>(1) The time and place that the deposition is to be taken;</P> <P>(2) The name and address of the person before whom the deposition is to be taken;</P> <P>(3) The name and address of the witness whose deposition is to be taken; and</P> <P>(4) Any documents or materials that the witness is to produce.</P> <P>(b) <E T="03">ALJ order.</E> 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:</P> <P>(1) Grant the motion and approve the taking of the deposition, subject to any conditions or restrictions the ALJ may impose; or</P> <P>(2) Deny the motion.</P> <P>(c) <E T="03">Arrangements.</E> 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.</P> <P>(1) The deposition will be taken at the time and place agreed to by the parties or indicated in the ALJ's order.</P> <P>(2) The deposition may be taken before any disinterested person authorized to administer oaths in the place where the deposition is to be taken.</P> <P>(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:</P> <P>(i) Before the deposition begins; or</P> <P>(ii) As soon as the disqualification becomes known or could have been discovered with reasonable diligence.</P> <P>(4) A deposition may be taken by telephone conference call, if agreed to by the parties or approved in the ALJ's order.</P> <P>(d) <E T="03">Testimony.</E> Each witness deposed must be placed under oath or affirmation, and the other parties must be given an opportunity for cross-examination.</P> <P>(e) <E T="03">Representation of witness.</E> The witness being deposed may have counsel or another representative present during the deposition.</P> <P>(f) <E T="03">Recording and transcript.</E> 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.</P> <P>(1) Any other party may obtain a copy of the transcript at its own expense.</P> <P>(2) Unless waived by the deponent, the deponent will have 3 days after receiving the transcript to read and sign it.</P> <P>(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.</P> <P>(g) <E T="03">Video recording.</E> 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.</P> <P>(1) The video recording may be in conjunction with an oral examination by telephone conference held under paragraph (c)(3) of this section.</P> <P>(2) After the deposition has been taken, the person recording the deposition must:</P> <P>(i) Provide a copy of the videotape to any party that requests it, at the requesting party's expense; and</P> <P>(ii) Attach to the videotape a statement identifying the case and the deponent and certifying the authenticity of the video recording.</P> <P>(h) <E T="03">Use of deposition.</E> A deposition may be used at the hearing as provided in § 1.653.</P> </SECTION> <SECTION> <SECTNO>§ 1.645</SECTNO> <SUBJECT>What are the requirements for requests for documents or tangible things or entry on land?</SUBJECT> <P>(a) <E T="03">Motion.</E> 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 <PRTPAGE P="113"/>under § 1.641(c). A request may include any of the following that are in the possession, custody, or control of another party:</P> <P>(1) The production of designated documents for inspection and copying, other than documents that are already in the license proceeding record;</P> <P>(2) The production of designated tangible things for inspection, copying, testing, or sampling; or</P> <P>(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.</P> <P>(b) <E T="03">ALJ order.</E> 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:</P> <P>(1) Grant the motion and approve the use of some or all of the proposed requests; or</P> <P>(2) Deny the motion.</P> <P>(c) <E T="03">Compliance with order.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.646</SECTNO> <SUBJECT>What sanctions may the ALJ impose for failure to comply with discovery?</SUBJECT> <P>(a) Upon motion of a party, the ALJ may impose sanctions under paragraph (b) of this section if any party:</P> <P>(1) Fails to comply with an order approving discovery; or</P> <P>(2) Fails to supplement or amend a response to discovery under § 1.642(a).</P> <P>(b) The ALJ may impose one or more of the following sanctions:</P> <P>(1) Infer that the information, testimony, document, or other evidence withheld would have been adverse to the party;</P> <P>(2) Order that, for the purposes of the hearing, designated facts are established;</P> <P>(3) Order that the party not introduce into evidence, or otherwise rely on to support its case, any information, testimony, document, or other evidence:</P> <P>(i) That the party improperly withheld; or</P> <P>(ii) That the party obtained from another party in discovery;</P> <P>(4) Allow another party to use secondary evidence to show what the information, testimony, document, or other evidence withheld would have shown; or</P> <P>(5) Take other appropriate action to remedy the party's failure to comply.</P> </SECTION> <SECTION> <SECTNO>§ 1.647</SECTNO> <SUBJECT>What are the requirements for subpoenas and witness fees?</SUBJECT> <P>(a) <E T="03">Request for subpoena.</E> (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.</P> <P>(2) A party may subpoena a senior Department employee only if the party shows:</P> <P>(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</P> <P>(ii) That the employee's attendance would not significantly interfere with the ability to perform his or her government duties.</P> <P>(b) <E T="03">Service.</E> (1) A subpoena may be served by any person who is not a party and is 18 years of age or older.</P> <P>(2) Service must be made by hand delivering a copy of the subpoena to the person named therein.</P> <P>(3) The person serving the subpoena must:</P> <P>(i) Prepare a certificate of service setting forth:</P> <P>(A) The date, time, and manner of service; or</P> <P>(B) The reason for any failure of service; and</P> <P>(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.</P> <P>(c) <E T="03">Witness fees.</E> (1) A party who subpoenas a witness who is not a party must pay him or her the same fees and <PRTPAGE P="114"/>mileage expenses that are paid witnesses in the district courts of the United States.</P> <P>(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.</P> <P>(d) <E T="03">Motion to quash.</E> (1) A person to whom a subpoena is directed may request by motion that the ALJ quash or modify the subpoena.</P> <P>(2) The motion must be filed:</P> <P>(i) Within 5 days after service of the subpoena; or</P> <P>(ii) At or before the time specified in the subpoena for compliance, if that is less than 5 days after service of the subpoena.</P> <P>(3) The ALJ may quash or modify the subpoena if it:</P> <P>(i) Is unreasonable;</P> <P>(ii) Requires evidence during discovery that is not discoverable; or</P> <P>(iii) Requires evidence during a hearing that is privileged or irrelevant.</P> <P>(e) <E T="03">Enforcement.</E> For good cause shown, the ALJ may apply to the appropriate United States District Court for the issuance of an order compelling the appearance and testimony of a witness or the production of evidence as set forth in a subpoena that has been duly issued and served.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hearing, Briefing, and Decision</HD> <SECTION> <SECTNO>§ 1.650</SECTNO> <SUBJECT>When and where will the hearing be held?</SUBJECT> <P>(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.</P> <P>(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:</P> <P>(1) That there is good cause for the change; and</P> <P>(2) That the change will not unduly prejudice the parties and witnesses.</P> </SECTION> <SECTION> <SECTNO>§ 1.651</SECTNO> <SUBJECT>What are the parties' rights during the hearing?</SUBJECT> <P>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:</P> <P>(a) To present direct and rebuttal evidence;</P> <P>(b) To make objections, motions, and arguments; and</P> <P>(c) To cross-examine witnesses and to conduct re-direct and re-cross examination as permitted by the ALJ.</P> </SECTION> <SECTION> <SECTNO>§ 1.652</SECTNO> <SUBJECT>What are the requirements for presenting testimony?</SUBJECT> <P>(a) <E T="03">Written direct testimony.</E> Unless otherwise ordered by the ALJ, all direct hearing testimony must be prepared and submitted in written form.</P> <P>(1) Prepared written testimony must:</P> <P>(i) Have line numbers inserted in the left-hand margin of each page;</P> <P>(ii) Be authenticated by an affidavit or declaration of the witness;</P> <P>(iii) Be filed within 5 days after the date set for completion of discovery, unless the ALJ sets a different deadline; and</P> <P>(iv) Be offered as an exhibit during the hearing.</P> <P>(2) Any witness submitting written testimony must be available for cross-examination at the hearing.</P> <P>(b) <E T="03">Oral testimony.</E> 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.</P> <P>(c) <E T="03">Telephonic testimony.</E> The ALJ may by order allow a witness to testify by telephonic conference call.</P> <P>(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.</P> <P>(2) The ALJ will ensure the full identification of each speaker so the reporter can create a proper record.</P> <P>(3) The ALJ may issue a subpoena under § 1.647 directing a witness to testify by telephonic conference call.</P> </SECTION> <SECTION> <SECTNO>§ 1.653</SECTNO> <SUBJECT>How may a party use a deposition in the hearing?</SUBJECT> <P>(a) <E T="03">In general.</E> Subject to the provisions of this section, a party may use <PRTPAGE P="115"/>in the hearing any part or all of a deposition taken under § 1.644 against any party who:</P> <P>(1) Was present or represented at the taking of the deposition; or</P> <P>(2) Had reasonable notice of the taking of the deposition.</P> <P>(b) <E T="03">Admissibility.</E> (1) No part of a deposition will be included in the hearing record, unless received in evidence by the ALJ.</P> <P>(2) The ALJ will exclude from evidence any question and response to which an objection:</P> <P>(i) Was noted at the taking of the deposition; and</P> <P>(ii) Would have been sustained if the witness had been personally present and testifying at a hearing.</P> <P>(3) If a party offers only part of a deposition in evidence:</P> <P>(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</P> <P>(ii) Any other party may introduce any other parts.</P> <P>(c) <E T="03">Videotaped deposition.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.654</SECTNO> <SUBJECT>What are the requirements for exhibits, official notice, and stipulations?</SUBJECT> <P>(a) <E T="03">General.</E> (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.</P> <P>(2) Each exhibit offered by a party must be marked for identification.</P> <P>(3) Any party who seeks to have an exhibit admitted into evidence must provide:</P> <P>(i) The original of the exhibit to the reporter, unless the ALJ permits the substitution of a copy; and</P> <P>(ii) A copy of the exhibit to the ALJ.</P> <P>(b) <E T="03">Material not offered.</E> If a document offered as an exhibit contains material not offered as evidence:</P> <P>(1) The party offering the exhibit must:</P> <P>(i) Designate the matter offered as evidence;</P> <P>(ii) Segregate and exclude the material not offered in evidence, to the extent practicable; and</P> <P>(iii) Provide copies of the entire document to the other parties appearing at the hearing.</P> <P>(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.</P> <P>(c) <E T="03">Official notice.</E> (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.</P> <P>(2) The ALJ must give the other parties appearing at the hearing an opportunity to show the contrary of an officially noticed fact.</P> <P>(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.</P> <P>(d) <E T="03">Stipulations.</E> (1) The parties may stipulate to any relevant facts or to the authenticity of any relevant documents.</P> <P>(2) If received in evidence at the hearing, a stipulation is binding on the stipulating parties.</P> <P>(3) A stipulation may be written or made orally at the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 1.655</SECTNO> <SUBJECT>What evidence is admissible at the hearing?</SUBJECT> <P>(a) <E T="03">General.</E> (1) Subject to the provisions of § 1.642(b), the ALJ may admit any written, oral, documentary, or demonstrative evidence that is:</P> <P>(i) Relevant, reliable, and probative; and</P> <P>(ii) Not privileged or unduly repetitious or cumulative.</P> <P>(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.</P> <P>(3) Hearsay evidence is admissible. The ALJ may consider the fact that evidence is hearsay when determining its probative value.</P> <P>(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.<PRTPAGE P="116"/> </P> <P>(b) <E T="03">Objections.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 1.656</SECTNO> <SUBJECT>What are the requirements for transcription of the hearing?</SUBJECT> <P>(a) <E T="03">Transcript and reporter's fees.</E> The hearing will be transcribed verbatim.</P> <P>(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.</P> <P>(2) Each party must pay the reporter for any copies of the transcript obtained by that party.</P> <P>(b) <E T="03">Transcript Corrections.</E> (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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 1.657</SECTNO> <SUBJECT>What is the standard of proof?</SUBJECT> <P>The standard of proof is a preponderance of the evidence.</P> </SECTION> <SECTION> <SECTNO>§ 1.658</SECTNO> <SUBJECT>When will the hearing record close?</SUBJECT> <P>(a) The hearing record will close when the ALJ closes the hearing, unless he or she directs otherwise.</P> <P>(b) Evidence may not be added after the hearing record is closed, but the transcript may be corrected under § 1.656 (b).</P> </SECTION> <SECTION> <SECTNO>§ 1.659</SECTNO> <SUBJECT>What are the requirements for post-hearing briefs?</SUBJECT> <P>(a) <E T="03">General.</E> (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.</P> <P>(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.</P> <P>(3) The ALJ may limit the length of the briefs to be filed under this section.</P> <P>(b) <E T="03">Content.</E> (1) An initial brief must include:</P> <P>(i) A concise statement of the case;</P> <P>(ii) A separate section containing proposed findings regarding the issues of material fact, with supporting citations to the hearing record;</P> <P>(iii) Arguments in support of the party's position; and</P> <P>(iv) Any other matter required by the ALJ.</P> <P>(2) A reply brief, if requested by the ALJ, must be limited to any issues identified by the ALJ.</P> <P>(c) <E T="03">Form.</E> (1) An exhibit admitted in evidence or marked for identification in the record may not be reproduced in the brief.</P> <P>(i) Such an exhibit may be reproduced, within reasonable limits, in an appendix to the brief.</P> <P>(ii) Any pertinent analysis of an exhibit may be included in a brief.</P> <P>(2) If a brief exceeds 20 pages, it must contain:</P> <P>(i) A table of contents and of points made, with page references; and</P> <P>(ii) An alphabetical list of citations to legal authority, with page references.</P> </SECTION> <SECTION> <SECTNO>§ 1.660</SECTNO> <SUBJECT>What are the requirements for the ALJ's decision?</SUBJECT> <P>(a) <E T="03">Timing.</E> The ALJ must issue a decision within the shorter of the following time periods:</P> <P>(1) 30 days after the close of the hearing under § 1.658; or</P> <P>(2) 90 days after issuance of the referral notice under § 1.625(c), 43 CFR 45.25(c), or 50 CFR 221.25(c).</P> <P>(b) <E T="03">Content.</E> (1) The decision must contain:</P> <P>(i) Findings of fact on all disputed issues of material fact;</P> <P>(ii) Conclusions of law necessary to make the findings of fact (such as rulings on materiality and on the admissibility of evidence); and</P> <P>(iii) Reasons for the findings and conclusions.</P> <P>(2) The ALJ may adopt any of the findings of fact proposed by one or more of the parties.<PRTPAGE P="117"/> </P> <P>(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.</P> <P>(c) <E T="03">Service.</E> Promptly after issuing his or her decision, the ALJ must:</P> <P>(1) Serve the decision on each party to the hearing; and</P> <P>(2) Forward a copy of the decision to FERC, along with the complete hearing record, for inclusion in the license proceeding record.</P> <P>(d) <E T="03">Finality.</E> 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. 825<E T="03">l</E>(b).</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Alternatives Process</HD> <SECTION> <SECTNO>§ 1.670</SECTNO> <SUBJECT>How must documents be filed and served under §§ 1.670 through 1.673?</SUBJECT> <P>(a) <E T="03">Filing.</E> (1) For the alternatives process, documents must be filed using one of the methods set forth in § 1.612(b).</P> <P>(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.</P> <P>(b) <E T="03">Service.</E> (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:</P> <P>(i) One of the methods of service in § 1.613(c); or</P> <P>(ii) Regular mail.</P> <P>(2) The provisions of § 1.613 (d) and (e) regarding acknowledgment and certificate of service apply to service under this section.</P> </SECTION> <SECTION> <SECTNO>§ 1.671</SECTNO> <SUBJECT>How do I propose an alternative?</SUBJECT> <P>(a) <E T="03">General.</E> To propose an alternative, you must:</P> <P>(1) Be a license party; and</P> <P>(2) File a written proposal with NFS within 30 days after the deadline for the Forest Service to file preliminary conditions with FERC.</P> <P>(b) <E T="03">Content.</E> Your proposal must include:</P> <P>(1) A description of the alternative, in an equivalent level of detail to the Forest Service's preliminary condition;</P> <P>(2) An explanation of how the alternative will provide for the adequate protection and utilization of the reservation;</P> <P>(3) An explanation of how the alternative, as compared to the preliminary condition, will:</P> <P>(i) Cost significantly less to implement; or</P> <P>(ii) Result in improved operation of the project works for electricity production;</P> <P>(4) An explanation of how the alternative will affect:</P> <P>(i) Energy supply, distribution, cost, and use;</P> <P>(ii) Flood control;</P> <P>(iii) Navigation;</P> <P>(iv) Water supply;</P> <P>(v) Air quality; and</P> <P>(vi) Other aspects of environmental quality; and</P> <P>(5) Specific citations to any scientific studies, literature, and other documented information relied on to support your proposal, including any assumptions you are making (e.g., regarding the cost of energy or the rate of inflation). If any such document is not already in the license proceeding record, you must provide a copy with the proposal.</P> </SECTION> <SECTION> <SECTNO>§ 1.672</SECTNO> <SUBJECT>What will the Forest Service do with a proposed alternative?</SUBJECT> <P>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):</P> <P>(a) Analyze the alternative under § 1.673; and</P> <P>(b) File with FERC:</P> <P>(1) Any condition that the Forest Service adopts as its modified condition; and</P> <P>(2) Its analysis of the modified condition and any proposed alternatives under § 1.673(c).</P> </SECTION> <SECTION> <PRTPAGE P="118"/> <SECTNO>§ 1.673</SECTNO> <SUBJECT>How will the Forest Service analyze a proposed alternative and formulate its modified condition?</SUBJECT> <P>(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:</P> <P>(1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;</P> <P>(2) Any comments received on the Forest Service's preliminary condition;</P> <P>(3) Any ALJ decision on disputed issues of material fact issued under § 1.660 with respect to the preliminary condition;</P> <P>(4) Comments received on any draft or final NEPA documents; and</P> <P>(5) The license party's proposal under § 1.671.</P> <P>(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:</P> <P>(1) Will, as compared to the Forest Service's preliminary condition:</P> <P>(i) Cost significantly less to implement; or</P> <P>(ii) Result in improved operation of the project works for electricity production; and</P> <P>(2) Will provide for the adequate protection and utilization of the reservation.</P> <P>(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:</P> <P>(1) A written statement explaining:</P> <P>(i) The basis for the adopted condition; and</P> <P>(ii) If the Forest Service is not adopting any alternative, its reasons for not doing so; and</P> <P>(2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.</P> <P>(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:</P> <P>(1) Energy supply, distribution, cost, and use;</P> <P>(2) Flood control;</P> <P>(3) Navigation;</P> <P>(4) Water supply;</P> <P>(5) Air quality; and</P> <P>(6) Preservation of other aspects of environmental quality.</P> </SECTION> <SECTION> <SECTNO>§ 1.674</SECTNO> <SUBJECT>Has OMB approved the information collection provisions of §§ 1.670 through 1.673?</SUBJECT> <P>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 <E T="03">et seq.</E> (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.</P> </SECTION> </SUBJGRP> </SUBPART> </PART> <PART> <EAR>Pt. 1a</EAR> <HD SOURCE="HED">PART 1a—LAW ENFORCEMENT AUTHORITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1a.1</SECTNO> <SUBJECT>General statement.</SUBJECT> <SECTNO>1a.2</SECTNO> <SUBJECT>Authorization.</SUBJECT> <SECTNO>1a.3</SECTNO> <SUBJECT>Persons authorized.</SUBJECT> <SECTNO>1a.4</SECTNO> <SUBJECT>Limitations.</SUBJECT> <SECTNO>1a.5</SECTNO> <SUBJECT>Responsibility of the Inspector General.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 1337, Pub. L. 97-98; 5 U.S.C. 301; 5 U.S.C. App. I.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 2073, Jan. 14, 1982, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1a.1</SECTNO> <SUBJECT>General statement.</SUBJECT> <P>This part sets forth the rules issued by the Secretary of Agriculture to implement section 1337 of Public Law 97-98 relating to:</P> <P>(a) Arrests without warrant for certain criminal felony violations;</P> <P>(b) Execution of warrants for arrests, searches of premises and seizures of evidence; and</P> <P>(c) The carrying of firearms by designated officials of the Office of Inspector General.</P> </SECTION> <SECTION> <PRTPAGE P="119"/> <SECTNO>§ 1a.2</SECTNO> <SUBJECT>Authorization.</SUBJECT> <P>Any official of the Office of Inspector General who is designated by the Inspector General according to §§ 1a.3 and 1a.5 of this part and who is engaged in the performance of his/her official duties under the authority provided in section 6, or described in section 9, of the Inspector General Act of 1978 (5 U.S.C. App.), is authorized to—</P> <P>(a) Make an arrest without a warrant for any criminal felony violation subject to § 1a.4, if such violation is committed, or if the official has probable cause to believe that such violation is being committed, in his/her presence;</P> <P>(b) Execute and serve a warrant for an arrest, for the search of premises, or the seizure of evidence if such warrant is issued under authority of the United States upon probable cause to believe that any criminal felony violation, subject to § 1a.4, has been committed; and</P> <P>(c) Carry a firearm.</P> <CITA>[50 FR 13759, Apr. 8, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 1a.3</SECTNO> <SUBJECT>Persons authorized.</SUBJECT> <P>Any person who is employed in the Office of Inspector General and who is designated by the Inspector General in accordance with and subject to § 1a. and who conducts investigations of alleged or suspected felony criminal violations of statutes administered by the Secretary of Agriculture or any agency of the Department of Agriculture may exercise the authorities listed in and pursuant to § 1a.2.</P> </SECTION> <SECTION> <SECTNO>§ 1a.4</SECTNO> <SUBJECT>Limitations.</SUBJECT> <P>The powers granted by §§ 1a.2(a) and 1a.2(b) shall be exercised only when a designated official is engaged in an investigation of alleged or suspected felony violations of statutes administered by the Secretary of Agriculture or any agency of the Department.</P> <CITA>[50 FR 13759, Apr. 8, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 1a.5</SECTNO> <SUBJECT>Responsibility of the Inspector General.</SUBJECT> <P>The Inspector General shall:</P> <P>(a) Issue directives conforming to this part governing the exercise of the authorities granted by this part. These directives should contain the policies and procedures by which the authorities will be exercised by designated officials of the Office of Inspector General;</P> <P>(b) Establish criteria for qualification by officials of the Office of Inspector General who are designated to exercise the authorities granted in this part;</P> <P>(c) Monitor the implementation and exercise of the authorities granted by this part;</P> <P>(d) Designate, pursuant to §§ 1a.2, 1a.3 and 1a.4, and the directives issued under paragraph (a) of this section, and the criteria established under paragraph (b) of this section, employees who have satisfied all the qualifications set by the Inspector General to exercise the authorities granted by § 1a.2; and</P> <P>(e) Submit to the Attorney General of the United States the name of any employee of the Office of Inspector General designated pursuant to paragraph (d) of this section. Any designation not specifically disapproved by the Attorney General within 30 days after the date of submission shall be deemed approved.</P> </SECTION> </PART> <PART> <EAR>Pt. 1b</EAR> <HD SOURCE="HED">PART 1b—NATIONAL ENVIRONMENTAL POLICY ACT</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1b.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1b.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1b.3</SECTNO> <SUBJECT>Categorical exclusions.</SUBJECT> <SECTNO>1b.4</SECTNO> <SUBJECT>Exclusion of agencies.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 42 U.S.C. 4321 <E T="03">et seq</E>.; E.O. 11514, 3 CFR, 1966-1970 Comp., p. 902, as amended by E.O. 11991, 3 CFR, 1978 Comp., p. 123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40 CFR 1507.3.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 11403, Mar. 18, 1983, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1b.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(a) This part supplements the regulations for implementation of the National Environmental Policy Act (NEPA), for which regulations were published by the Council on Environmental Quality (CEQ) in 40 CFR parts 1500 through 1508. This part incorporates and adopts those regulations.</P> <P>(b) This part sets forth Departmental policy concerning NEPA, establishes categorical exclusions of actions carried out by the Department and its <PRTPAGE P="120"/>agencies, and sets forth those USDA agencies which are excluded from the requirement to prepare procedures implementing NEPA.</P> <CITA>[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1b.2</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) All policies and programs of the various USDA agencies shall be planned, developed, and implemented so as to achieve the goals and to follow the procedures declared by NEPA in order to assure responsible stewardship of the environment for present and future generations.</P> <P>(b) Each USDA agency is responsible for compliance with this part, the regulations of CEQ, and NEPA. Compliance will include the preparation and implementation of specific procedures and processes relating to the programs and activities of the individual agency, as necessary.</P> <P>(c) The Under Secretary, Natural Resources and Environment (NR&E), is responsible for ensuring that agency implementing procedures are consistent with CEQ's NEPA regulations and for coordinating NEPA compliance for the Department. The Under Secretary, NR&E, through the Agricultural Council on Environmental Quality, will develop the necessary processes to be used by the Office of the Secretary in reviewing, implementing, and planning its NEPA activities, determinations, and policies.</P> <P>(d) In connection with the policies and requirements set forth in this part, all USDA agencies are responsible for compliance with Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” Compliance will include the preparation and implementation of specific procedures and processes relative to the programs and activities of the individual agencies, as necessary. Agencies shall consult with the Department of State; the Council on Environmental Quality; and the Under Secretary, NR&E, prior to placing procedures and processes in effect.</P> <CITA>[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1b.3</SECTNO> <SUBJECT>Categorical exclusions.</SUBJECT> <P>(a) The following are categories of activities which have been determined not to have a significant individual or cumulative effect on the human environment and are excluded from the preparation of environmental assessment (EA's) or environmental impact statement (EIS's), unless individual agency procedures prescribed otherwise.</P> <P>(1) Policy development, planning and implementation which relate to routine activities, such as personnel, organizational changes, or similar administrative functions;</P> <P>(2) Activities which deal solely with the funding of programs, such as program budget proposals, disbursements, and transfer or reprogramming of funds;</P> <P>(3) Inventories, research activities, and studies, such as resource inventories and routine data collection when such actions are clearly limited in context and intensity;</P> <P>(4) Educational and informational programs and activities;</P> <P>(5) Civil and criminal law enforcement and investigative activities;</P> <P>(6) Activities which are advisory and consultative to other agencies and public and private entities, such as legal counselling and representation;</P> <P>(7) Activities related to trade representation and market development activities abroad.</P> <P>(b) Agencies will identify in their own procedures the activities which normally would not require an environmental assessment or environmental impact statement.</P> <P>(c) Notwithstanding the exclusions listed in paragraphs (a) of this section and § 1b.4, or identified in agency procedures, agency heads may determine that circumstances dictate the need for preparation of an EA or EIS for a particular action. Agencies shall continue to scrutinize their activities to determine continued eligibility for categorical exclusion.</P> <CITA>[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]</CITA> </SECTION> <SECTION> <PRTPAGE P="121"/> <SECTNO>§ 1b.4</SECTNO> <SUBJECT>Exclusion of agencies.</SUBJECT> <P>(a) The USDA agencies and agency units listed in paragraph (b) of this section conduct programs and activities that have been found to have no individual or cumulative effect on the human environment. The USDA agencies and agency units listed in paragraph (b) of this section are excluded from the requirements of preparing procedures to implement NEPA. Actions of USDA agencies and agency units listed in paragraph (b) of this section are categorically excluded from the preparation of an EA or EIS unless the agency head determines that an action may have a significant environmental effect.</P> <P>(b)(1) Agricultural Marketing Service</P> <P>(2) Economic Research Service</P> <P>(3) Extension Service</P> <P>(4) Federal Corp Insurance Corporation</P> <P>(5) Food and Consumer Service</P> <P>(6) Food Safety and Inspection Service</P> <P>(7) Foreign Agricultural Service</P> <P>(8) Grain Inspection, Packers and Stockyards Administration</P> <P>(9) National Agricultural Library</P> <P>(10) National Agricultural Statistics Service</P> <P>(11) Office of the General Counsel</P> <P>(12) Office of the Inspector General</P> <CITA>[60 FR 66481, Dec. 22, 1995]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 1c</EAR> <HD SOURCE="HED">PART 1c—PROTECTION OF HUMAN SUBJECTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>1c.101</SECTNO> <SUBJECT>To what does this policy apply?</SUBJECT> <SECTNO>1c.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1c.103</SECTNO> <SUBJECT>Assuring compliance with this policy—research conducted or supported by any Federal Department or Agency.</SUBJECT> <SECTNO>1c.104-1c.106</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1c.107</SECTNO> <SUBJECT>IRB membership.</SUBJECT> <SECTNO>1c.108</SECTNO> <SUBJECT>IRB functions and operations.</SUBJECT> <SECTNO>1c.109</SECTNO> <SUBJECT>IRB review of research.</SUBJECT> <SECTNO>1c.110</SECTNO> <SUBJECT>Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.</SUBJECT> <SECTNO>1c.111</SECTNO> <SUBJECT>Criteria for IRB approval of research.</SUBJECT> <SECTNO>1c.112</SECTNO> <SUBJECT>Review by institution.</SUBJECT> <SECTNO>1c.113</SECTNO> <SUBJECT>Suspension or termination of IRB approval of research.</SUBJECT> <SECTNO>1c.114</SECTNO> <SUBJECT>Cooperative research.</SUBJECT> <SECTNO>1c.115</SECTNO> <SUBJECT>IRB records.</SUBJECT> <SECTNO>1c.116</SECTNO> <SUBJECT>General requirements for informed consent.</SUBJECT> <SECTNO>1c.117</SECTNO> <SUBJECT>Documentation of informed consent.</SUBJECT> <SECTNO>1c.118</SECTNO> <SUBJECT>Applications and proposals lacking definite plans for involvement of human subjects.</SUBJECT> <SECTNO>1c.119</SECTNO> <SUBJECT>Research undertaken without the intention of involving human subjects.</SUBJECT> <SECTNO>1c.120</SECTNO> <SUBJECT>Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.</SUBJECT> <SECTNO>1c.121</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1c.122</SECTNO> <SUBJECT>Use of Federal funds.</SUBJECT> <SECTNO>1c.123</SECTNO> <SUBJECT>Early termination of research support: Evaluation of applications and proposals.</SUBJECT> <SECTNO>1c.124</SECTNO> <SUBJECT>Conditions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 42 U.S.C. 300v-1(b).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 28012, 28018, June 18, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1c.101</SECTNO> <SUBJECT>To what does this policy apply?</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this policy applies to all research involving human subjects conducted, supported or otherwise subject to regulation by any federal department or agency which takes appropriate administrative action to make the policy applicable to such research. This includes research conducted by federal civilian employees or military personnel, except that each department or agency head may adopt such procedural modifications as may be appropriate from an administrative standpoint. It also includes research conducted, supported, or otherwise subject to regulation by the federal government outside the United States.</P> <P>(1) Research that is conducted or supported by a Federal department or agency, whether or not it is regulated as defined in § 1c.102(e), must comply with all sections of this policy.</P> <P>(2) Research that is neither conducted nor supported by a Federal department or agency but is subject to regulation as defined in § 1c.102(e) must be reviewed and approved, in compliance with §§ 1c.101, 1c.102, and 1c.107 through 1c.117 of this policy, by an institutional review board (IRB) that operates in accordance with the pertinent requirements of this policy.</P> <P>(b) Unless otherwise required by department or agency heads, research activities in which the only involvement of human subjects will be in one or more of the following categories are exempt from this policy:<PRTPAGE P="122"/> </P> <P>(1) Research conducted in established or commonly accepted educational settings, involving normal educational practices, such as (i) Research on regular and special education instructional strategies, or (ii) research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.</P> <P>(2) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures or observation of public behavior, unless:</P> <P>(i) Information obtained is recorded in such a manner that human subjects can be identified, directly or through identifiers linked to the subjects; and</P> <P>(ii) Any disclosure of the human subjects' responses outside the research could reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects' financial standing, employability, or reputation.</P> <P>(3) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures, or observation of public behavior that is not exempt under paragraph (b)(2) of this section, if:</P> <P>(i) The human subjects are elected or appointed public officials or candidates for public office; or</P> <P>(ii) Federal statute(s) require(s) without exception that the confidentiality of the personally identifiable information will be maintained throughout the research and thereafter.</P> <P>(4) Research, involving the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.</P> <P>(5) Research and demonstration projects which are conducted by or subject to the approval of department or agency heads, and which are designed to study, evaluate, or otherwise examine:</P> <P>(i) Public benefit or service programs;</P> <P>(ii) Procedures for obtaining benefits or services under those programs;</P> <P>(iii) possible changes in or alternatives to those programs or procedures; or</P> <P>(iv) Possible changes in methods or levels of payment for benefits or services under those programs.</P> <P>(6) Taste and food quality evaluation and consumer acceptance studies, (i) if wholesome foods without additives are consumed or (ii) if a food is consumed that contains a food ingredient at or below the level and for a use found to be safe, or agricultural chemical or environmental contaminant at or below the level found to be safe, by the Food and Drug Administration or approved by the Environmental Protection Agency or the Food Safety and Inspection Service of the U.S. Department of Agriculture.</P> <P>(c) Department or agency heads retain final judgment as to whether a particular activity is covered by this policy.</P> <P>(d) Department or agency heads may require that specific research activities or classes of research activities conducted, supported, or otherwise subject to regulation by the department or agency but not otherwise covered by this policy, comply with some or all of the requirements of this policy.</P> <P>(e) Compliance with this policy requires compliance with pertinent federal laws or regulations which provide additional protections for human subjects.</P> <P>(f) This policy does not affect any state or local laws or regulations which may otherwise be applicable and which provide additional protections for human subjects.</P> <P>(g) This policy does not affect any foreign laws or regulations which may otherwise be applicable and which provide additional protections to human subjects of research.</P> <P>(h) When research covered by this policy takes place in foreign countries, procedures normally followed in the foreign countries to protect human subjects may differ from those set forth in this policy. [An example is a foreign institution which complies with guidelines consistent with the World Medical Assembly Declaration (Declaration of Helsinki amended 1989) issued either by sovereign states or by an organization whose function for the <PRTPAGE P="123"/>protection of human research subjects is internationally recognized.] In these circumstances, if a department or agency head determines that the procedures prescribed by the institution afford protections that are at least equivalent to those provided in this policy, the department or agency head may approve the substitution of the foreign procedures in lieu of the procedural requirements provided in this policy. Except when otherwise required by statute, Executive Order, or the department or agency head, notices of these actions as they occur will be published in the <E T="04">Federal Register</E> or will be otherwise published as provided in department or agency procedures.</P> <P>(i) Unless otherwise required by law, department or agency heads may waive the applicability of some or all of the provisions of this policy to specific research activities or classes of research activities otherwise covered by this policy. Except when otherwise required by statute or Executive Order, the department or agency head shall forward advance notices of these actions to the Office for Human Research Protections, Department of Health and Human Services (HHS), or any successor office, and shall also publish them in the <E T="04">Federal Register</E> or in such other manner as provided in department or agency procedures. <SU>1</SU> <FTREF/> </P> <FTNT> <P> <SU>1</SU> Institutions with HHS-approved assurances on file will abide by provisions of title 45 CFR part 46 subparts A-D. Some of the other Departments and Agencies have incorporated all provisions of title 45 CFR part 46 into their policies and procedures as well. However, the exemptions at 45 CFR 46.101(b) do not apply to research involving prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research involving survey or interview procedures or observation of public behavior, does not apply to research with children, subpart D, except for research involving observations of public behavior when the investigator(s) do not participate in the activities being observed.</P> </FTNT> <CITA>[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, June 28, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Department or agency head</E> means the head of any federal department or agency and any other officer or employee of any department or agency to whom authority has been delegated.</P> <P>(b) <E T="03">Institution</E> means any public or private entity or agency (including federal, state, and other agencies).</P> <P>(c) <E T="03">Legally authorized representative</E> means an individual or judicial or other body authorized under applicable law to consent on behalf of a prospective subject to the subject's participation in the procedure(s) involved in the research.</P> <P>(d) <E T="03">Research</E> means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes. For example, some demonstration and service programs may include research activities.</P> <P>(e) <E T="03">Research subject to regulation,</E> and similar terms are intended to encompass those research activities for which a federal department or agency has specific responsibility for regulating as a research activity, (for example, Investigational New Drug requirements administered by the Food and Drug Administration). It does not include research activities which are incidentally regulated by a federal department or agency solely as part of the department's or agency's broader responsibility to regulate certain types of activities whether research or non-research in nature (for example, Wage and Hour requirements administered by the Department of Labor).</P> <P>(f) <E T="03">Human subject</E> means a living individual about whom an investigator (whether professional or student) conducting research obtains:</P> <P>(1) Data through intervention or interaction with the individual, or</P> <P>(2) Identifiable private information.</P> <FP> <E T="03">Intervention</E> includes both physical procedures by which data are gathered (for example, venipuncture) and manipulations of the subject or the subject's environment that are performed for research purposes. Interaction includes communication or interpersonal contact between investigator and subject. <PRTPAGE P="124"/>“Private information” includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record). Private information must be individually identifiable (i.e., the identity of the subject is or may readily be ascertained by the investigator or associated with the information) in order for obtaining the information to constitute research involving human subjects.</FP> <P>(g) <E T="03">IRB</E> means an institutional review board established in accord with and for the purposes expressed in this policy.</P> <P>(h) <E T="03">IRB approval</E> means the determination of the IRB that the research has been reviewed and may be conducted at an institution within the constraints set forth by the IRB and by other institutional and federal requirements.</P> <P>(i) <E T="03">Minimal risk</E> means that the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.</P> <P>(j) <E T="03">Certification</E> means the official notification by the institution to the supporting department or agency, in accordance with the requirements of this policy, that a research project or activity involving human subjects has been reviewed and approved by an IRB in accordance with an approved assurance.</P> </SECTION> <SECTION> <SECTNO>§ 1c.103</SECTNO> <SUBJECT>Assuring compliance with this policy—research conducted or supported by any Federal Department or Agency.</SUBJECT> <P>(a) Each institution engaged in research which is covered by this policy and which is conducted or supported by a federal department or agency shall provide written assurance satisfactory to the department or agency head that it will comply with the requirements set forth in this policy. In lieu of requiring submission of an assurance, individual department or agency heads shall accept the existence of a current assurance, appropriate for the research in question, on file with the Office for Human Research Protections, HHS, or any successor office, and approved for federalwide use by that office. When the existence of an HHS-approved assurance is accepted in lieu of requiring submission of an assurance, reports (except certification) required by this policy to be made to department and agency heads shall also be made to the Office for Human Research Protections, HHS, or any successor office.</P> <P>(b) Departments and agencies will conduct or support research covered by this policy only if the institution has an assurance approved as provided in this section, and only if the institution has certified to the department or agency head that the research has been reviewed and approved by an IRB provided for in the assurance, and will be subject to continuing review by the IRB. Assurances applicable to federally supported or conducted research shall at a minimum include:</P> <P>(1) A statement of principles governing the institution in the discharge of its responsibilities for protecting the rights and welfare of human subjects of research conducted at or sponsored by the institution, regardless of whether the research is subject to federal regulation. This may include an appropriate existing code, declaration, or statement of ethical principles, or a statement formulated by the institution itself. This requirement does not preempt provisions of this policy applicable to department- or agency-supported or regulated research and need not be applicable to any research exempted or waived under § 1c.101 (b) or (i).</P> <P>(2) Designation of one or more IRBs established in accordance with the requirements of this policy, and for which provisions are made for meeting space and sufficient staff to support the IRB's review and recordkeeping duties.</P> <P>(3) A list of IRB members identified by name; earned degrees; representative capacity; indications of experience such as board certifications, licenses, etc., sufficient to describe each member's chief anticipated contributions to <PRTPAGE P="125"/>IRB deliberations; and any employment or other relationship between each member and the institution; for example: full-time employee, part-time employee, member of governing panel or board, stockholder, paid or unpaid consultant. Changes in IRB membership shall be reported to the department or agency head, unless in accord with § 1c.103(a) of this policy, the existence of an HHS-approved assurance is accepted. In this case, change in IRB membership shall be reported to the Office for Human Research Protections, HHS, or any successor office.</P> <P>(4) Written procedures which the IRB will follow (i) for conducting its initial and continuing review of research and for reporting its findings and actions to the investigator and the institution; (ii) for determining which projects require review more often than annually and which projects need verification from sources other than the investigators that no material changes have occurred since previous IRB review; and (iii) for ensuring prompt reporting to the IRB of proposed changes in a research activity, and for ensuring that such changes in approved research, during the period for which IRB approval has already been given, may not be initiated without IRB review and approval except when necessary to eliminate apparent immediate hazards to the subject.</P> <P>(5) Written procedures for ensuring prompt reporting to the IRB, appropriate institutional officials, and the department or agency head of (i) any unanticipated problems involving risks to subjects or others or any serious or continuing noncompliance with this policy or the requirements or determinations of the IRB and (ii) any suspension or termination of IRB approval.</P> <P>(c) The assurance shall be executed by an individual authorized to act for the institution and to assume on behalf of the institution the obligations imposed by this policy and shall be filed in such form and manner as the department or agency head prescribes.</P> <P>(d) The department or agency head will evaluate all assurances submitted in accordance with this policy through such officers and employees of the department or agency and such experts or consultants engaged for this purpose as the department or agency head determines to be appropriate. The department or agency head's evaluation will take into consideration the adequacy of the proposed IRB in light of the anticipated scope of the institution's research activities and the types of subject populations likely to be involved, the appropriateness of the proposed initial and continuing review procedures in light of the probable risks, and the size and complexity of the institution.</P> <P>(e) On the basis of this evaluation, the department or agency head may approve or disapprove the assurance, or enter into negotiations to develop an approvable one. The department or agency head may limit the period during which any particular approved assurance or class of approved assurances shall remain effective or otherwise condition or restrict approval.</P> <P>(f) Certification is required when the research is supported by a federal department or agency and not otherwise exempted or waived under § 1c.101 (b) or (i). An institution with an approved assurance shall certify that each application or proposal for research covered by the assurance and by § 1c.103 of this Policy has been reviewed and approved by the IRB. Such certification must be submitted with the application or proposal or by such later date as may be prescribed by the department or agency to which the application or proposal is submitted. Under no condition shall research covered by § 1c.103 of the Policy be supported prior to receipt of the certification that the research has been reviewed and approved by the IRB. Institutions without an approved assurance covering the research shall certify within 30 days after receipt of a request for such a certification from the department or agency, that the application or proposal has been approved by the IRB. If the certification is not submitted within these time limits, the application or proposal may be returned to the institution.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number 0990-0260.)</APPRO> <CITA>[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, June 28, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <PRTPAGE P="126"/> <SECTNO>§§ 1c.104-1c.106</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1c.107</SECTNO> <SUBJECT>IRB membership.</SUBJECT> <P>(a) Each IRB shall have at least five members, with varying backgrounds to promote complete and adequate review of research activities commonly conducted by the institution. The IRB shall be sufficiently qualified through the experience and expertise of its members, and the diversity of the members, including consideration of race, gender, and cultural backgrounds and sensitivity to such issues as community attitudes, to promote respect for its advice and counsel in safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific research activities, the IRB shall be able to ascertain the acceptability of proposed research in terms of institutional commitments and regulations, applicable law, and standards of professional conduct and practice. The IRB shall therefore include persons knowledgeable in these areas. If an IRB regularly reviews research that involves a vulnerable category of subjects, such as children, prisoners, pregnant women, or handicapped or mentally disabled persons, consideration shall be given to the inclusion of one or more individuals who are knowledgeable about and experienced in working with these subjects.</P> <P>(b) Every nondiscriminatory effort will be made to ensure that no IRB consists entirely of men or entirely of women, including the institution's consideration of qualified persons of both sexes, so long as no selection is made to the IRB on the basis of gender. No IRB may consist entirely of members of one profession.</P> <P>(c) Each IRB shall include at least one member whose primary concerns are in scientific areas and at least one member whose primary concerns are in nonscientific areas.</P> <P>(d) Each IRB shall include at least one member who is not otherwise affiliated with the institution and who is not part of the immediate family of a person who is affiliated with the institution.</P> <P>(e) No IRB may have a member participate in the IRB's initial or continuing review of any project in which the member has a conflicting interest, except to provide information requested by the IRB.</P> <P>(f) An IRB may, at its discretion, invite individuals with competence in special areas to assist in the review of issues which require expertise beyond or in addition to that available on the IRB. These individuals may not vote with the IRB.</P> </SECTION> <SECTION> <SECTNO>§ 1c.108</SECTNO> <SUBJECT>IRB functions and operations.</SUBJECT> <P>In order to fulfill the requirements of this policy each IRB shall:</P> <P>(a) Follow written procedures in the same detail as described in § 1c.103(b)(4) and, to the extent required by, § 1c.103(b)(5).</P> <P>(b) Except when an expedited review procedure is used (see § 1c.110), review proposed research at convened meetings at which a majority of the members of the IRB are present, including at least one member whose primary concerns are in nonscientific areas. In order for the research to be approved, it shall receive the approval of a majority of those members present at the meeting.</P> </SECTION> <SECTION> <SECTNO>§ 1c.109</SECTNO> <SUBJECT>IRB review of research.</SUBJECT> <P>(a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered by this policy.</P> <P>(b) An IRB shall require that information given to subjects as part of informed consent is in accordance with § 1c.116. The IRB may require that information, in addition to that specifically mentioned in § 1c.116, be given to the subjects when in the IRB's judgment the information would meaningfully add to the protection of the rights and welfare of subjects.</P> <P>(c) An IRB shall require documentation of informed consent or may waive documentation in accordance with § 1c.117.</P> <P>(d) An IRB shall notify investigators and the institution in writing of its decision to approve or disapprove the proposed research activity, or of modifications required to secure IRB approval of the research activity. If the IRB decides to disapprove a research activity, it shall include in its written notification a statement of the reasons for its <PRTPAGE P="127"/>decision and give the investigator an opportunity to respond in person or in writing.</P> <P>(e) An IRB shall conduct continuing review of research covered by this policy at intervals appropriate to the degree of risk, but not less than once per year, and shall have authority to observe or have a third party observe the consent process and the research.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number 0990-0260)</APPRO> <CITA>[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.110</SECTNO> <SUBJECT>Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.</SUBJECT> <P>(a) The Secretary, HHS, has established, and published as a Notice in the <E T="04">Federal Register,</E> a list of categories of research that may be reviewed by the IRB through an expedited review procedure. The list will be amended, as appropriate after consultation with other departments and agencies, through periodic republication by the Secretary, HHS, in the <E T="04">Federal Register.</E> A copy of the list is available from the Office for Human Research Protections, HHS, or any successor office.</P> <P>(b) An IRB may use the expedited review procedure to review either or both of the following:</P> <P>(1) Some or all of the research appearing on the list and found by the reviewer(s) to involve no more than minimal risk,</P> <P>(2) Minor changes in previously approved research during the period (of one year or less) for which approval is authorized.</P> <FP>Under an expedited review procedure, the review may be carried out by the IRB chairperson or by one or more experienced reviewers designated by the chairperson from among members of the IRB. In reviewing the research, the reviewers may exercise all of the authorities of the IRB except that the reviewers may not disapprove the research. A research activity may be disapproved only after review in accordance with the non-expedited procedure set forth in § 1c.108(b).</FP> <P>(c) Each IRB which uses an expedited review procedure shall adopt a method for keeping all members advised of research proposals which have been approved under the procedure.</P> <P>(d) The department or agency head may restrict, suspend, terminate, or choose not to authorize an institution's or IRB's use of the expedited review procedure.</P> <CITA>[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.111</SECTNO> <SUBJECT>Criteria for IRB approval of research.</SUBJECT> <P>(a) In order to approve research covered by this policy the IRB shall determine that all of the following requirements are satisfied:</P> <P>(1) Risks to subjects are minimized: (i) By using procedures which are consistent with sound research design and which do not unnecessarily expose subjects to risk, and (ii) whenever appropriate, by using procedures already being performed on the subjects for diagnostic or treatment purposes.</P> <P>(2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result. In evaluating risks and benefits, the IRB should consider only those risks and benefits that may result from the research (as distinguished from risks and benefits of therapies subjects would receive even if not participating in the research). The IRB should not consider possible long-range effects of applying knowledge gained in the research (for example, the possible effects of the research on public policy) as among those research risks that fall within the purview of its responsibility.</P> <P>(3) Selection of subjects is equitable. In making this assessment the IRB should take into account the purposes of the research and the setting in which the research will be conducted and should be particularly cognizant of the special problems of research involving vulnerable populations, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons.</P> <P>(4) Informed consent will be sought from each prospective subject or the <PRTPAGE P="128"/>subject's legally authorized representative, in accordance with, and to the extent required by § 1c.116.</P> <P>(5) Informed consent will be appropriately documented, in accordance with, and to the extent required by § 1c.117.</P> <P>(6) When appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of subjects.</P> <P>(7) When appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.</P> <P>(b) When some or all of the subjects are likely to be vulnerable to coercion or undue influence, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, additional safeguards have been included in the study to protect the rights and welfare of these subjects.</P> </SECTION> <SECTION> <SECTNO>§ 1c.112</SECTNO> <SUBJECT>Review by institution.</SUBJECT> <P>Research covered by this policy that has been approved by an IRB may be subject to further appropriate review and approval or disapproval by officials of the institution. However, those officials may not approve the research if it has not been approved by an IRB.</P> </SECTION> <SECTION> <SECTNO>§ 1c.113</SECTNO> <SUBJECT>Suspension or termination of IRB approval of research.</SUBJECT> <P>An IRB shall have authority to suspend or terminate approval of research that is not being conducted in accordance with the IRB's requirements or that has been associated with unexpected serious harm to subjects. Any suspension or termination of approval shall include a statement of the reasons for the IRB's action and shall be reported promptly to the investigator, appropriate institutional officials, and the department or agency head.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number 0990-0260)</APPRO> <CITA>[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.114</SECTNO> <SUBJECT>Cooperative research.</SUBJECT> <P>Cooperative research projects are those projects covered by this policy which involve more than one institution. In the conduct of cooperative research projects, each institution is responsible for safeguarding the rights and welfare of human subjects and for complying with this policy. With the approval of the department or agency head, an institution participating in a cooperative project may enter into a joint review arrangement, rely upon the review of another qualified IRB, or make similar arrangements for avoiding duplication of effort.</P> </SECTION> <SECTION> <SECTNO>§ 1c.115</SECTNO> <SUBJECT>IRB records.</SUBJECT> <P>(a) An institution, or when appropriate an IRB, shall prepare and maintain adequate documentation of IRB activities, including the following:</P> <P>(1) Copies of all research proposals reviewed, scientific evaluations, if any, that accompany the proposals, approved sample consent documents, progress reports submitted by investigators, and reports of injuries to subjects.</P> <P>(2) Minutes of IRB meetings which shall be in sufficient detail to show attendance at the meetings; actions taken by the IRB; the vote on these actions including the number of members voting for, against, and abstaining; the basis for requiring changes in or disapproving research; and a written summary of the discussion of controverted issues and their resolution.</P> <P>(3) Records of continuing review activities.</P> <P>(4) Copies of all correspondence between the IRB and the investigators.</P> <P>(5) A list of IRB members in the same detail as described is § 1c.103(b)(3).</P> <P>(6) Written procedures for the IRB in the same detail as described in §§ 1c.103(b)(4) and 1c.103(b)(5).</P> <P>(7) Statements of significant new findings provided to subjects, as required by § 1c.116(b)(5).</P> <P>(b) The records required by this policy shall be retained for at least 3 years, and records relating to research which is conducted shall be retained for at least 3 years after completion of <PRTPAGE P="129"/>the research. All records shall be accessible for inspection and copying by authorized representatives of the department or agency at reasonable times and in a reasonable manner.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number 0990-0260)</APPRO> <CITA>[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.116</SECTNO> <SUBJECT>General requirements for informed consent.</SUBJECT> <P>Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject's legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject's legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.</P> <P>(a) <E T="03">Basic elements of informed consent.</E> Except as provided in paragraph (c) or (d) of this section, in seeking informed consent the following information shall be provided to each subject:</P> <P>(1) A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures which are experimental;</P> <P>(2) A description of any reasonably foreseeable risks or discomforts to the subject;</P> <P>(3) A description of any benefits to the subject or to others which may reasonably be expected from the research;</P> <P>(4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;</P> <P>(5) A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;</P> <P>(6) For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained;</P> <P>(7) An explanation of whom to contact for answers to pertinent questions about the research and research subjects' rights, and whom to contact in the event of a research-related injury to the subject; and</P> <P>(8) A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.</P> <P>(b) <E T="03">Additional elements of informed consent.</E> When appropriate, one or more of the following elements of information shall also be provided to each subject:</P> <P>(1) A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable;</P> <P>(2) Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent;</P> <P>(3) Any additional costs to the subject that may result from participation in the research;</P> <P>(4) The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject;</P> <P>(5) A statement that significant new findings developed during the course of the research which may relate to the subject's willingness to continue participation will be provided to the subject; and<PRTPAGE P="130"/> </P> <P>(6) The approximate number of subjects involved in the study.</P> <P>(c) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth above, or waive the requirement to obtain informed consent provided the IRB finds and documents that:</P> <P>(1) The research or demonstration project is to be conducted by or subject to the approval of state or local government officials and is designed to study, evaluate, or otherwise examine: (i) Public benefit of service programs; (ii) procedures for obtaining benefits or services under those programs; (iii) possible changes in or alternatives to those programs or procedures; or (iv) possible changes in methods or levels of payment for benefits or services under those programs; and</P> <P>(2) The research could not practicably be carried out without the waiver or alteration.</P> <P>(d) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth in this section, or waive the requirements to obtain informed consent provided the IRB finds and documents that:</P> <P>(1) The research involves no more than minimal risk to the subjects;</P> <P>(2) The waiver or alteration will not adversely affect the rights and welfare of the subjects;</P> <P>(3) The research could not practicably be carried out without the waiver or alteration; and</P> <P>(4) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.</P> <P>(e) The informed consent requirements in this policy are not intended to preempt any applicable federal, state, or local laws which require additional information to be disclosed in order for informed consent to be legally effective.</P> <P>(f) Nothing in this policy is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable federal, state, or local law.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number 0990-0260)</APPRO> <CITA>[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.117</SECTNO> <SUBJECT>Documentation of informed consent.</SUBJECT> <P>(a) Except as provided in paragraph (c) of this section, informed consent shall be documented by the use of a written consent form approved by the IRB and signed by the subject or the subject's legally authorized representative. A copy shall be given to the person signing the form.</P> <P>(b) Except as provided in paragraph (c) of this section, the consent form may be either of the following:</P> <P>(1) A written consent document that embodies the elements of informed consent required by § 1c.116. This form may be read to the subject or the subject's legally authorized representative, but in any event, the investigator shall give either the subject or the representative adequate opportunity to read it before it is signed; or</P> <P>(2) A short form written consent document stating that the elements of informed consent required by § 1c.116 have been presented orally to the subject or the subject's legally authorized representative. When this method is used, there shall be a witness to the oral presentation. Also, the IRB shall approve a written summary of what is to be said to the subject or the representative. Only the short form itself is to be signed by the subject or the representative. However, the witness shall sign both the short form and a copy of the summary, and the person actually obtaining consent shall sign a copy of the summary. A copy of the summary shall be given to the subject or the representative, in addition to a copy of the short form.</P> <P>(c) An IRB may waive the requirement for the investigator to obtain a signed consent form for some or all subjects if it finds either:</P> <P>(1) That the only record linking the subject and the research would be the consent document and the principal risk would be potential harm resulting from a breach of confidentiality. Each <PRTPAGE P="131"/>subject will be asked whether the subject wants documentation linking the subject with the research, and the subject's wishes will govern; or</P> <P>(2) That the research presents no more than minimal risk of harm to subjects and involves no procedures for which written consent is normally required outside of the research context.</P> <P>In cases in which the documentation requirement is waived, the IRB may require the investigator to provide subjects with a written statement regarding the research.</P> <APPRO>(Approved by the Office of Management and Budget under Control Number 0990-0260)</APPRO> <CITA>[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 2005]</CITA> </SECTION> <SECTION> <SECTNO>§ 1c.118</SECTNO> <SUBJECT>Applications and proposals lacking definite plans for involvement of human subjects.</SUBJECT> <P>Certain types of applications for grants, cooperative agreements, or contracts are submitted to departments or agencies with the knowledge that subjects may be involved within the period of support, but definite plans would not normally be set forth in the application or proposal. These include activities such as institutional type grants when selection of specific projects is the institution's responsibility; research training grants in which the activities involving subjects remain to be selected; and projects in which human subjects' involvement will depend upon completion of instruments, prior animal studies, or purification of compounds. These applications need not be reviewed by an IRB before an award may be made. However, except for research exempted or waived under § 1c.101 (b) or (i), no human subjects may be involved in any project supported by these awards until the project has been reviewed and approved by the IRB, as provided in this policy, and certification submitted, by the institution, to the department or agency.</P> </SECTION> <SECTION> <SECTNO>§ 1c.119</SECTNO> <SUBJECT>Research undertaken without the intention of involving human subjects.</SUBJECT> <P>In the event research is undertaken without the intention of involving human subjects, but it is later proposed to involve human subjects in the research, the research shall first be reviewed and approved by an IRB, as provided in this policy, a certification submitted, by the institution, to the department or agency, and final approval given to the proposed change by the department or agency.</P> </SECTION> <SECTION> <SECTNO>§ 1c.120</SECTNO> <SUBJECT>Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.</SUBJECT> <P>(a) The department or agency head will evaluate all applications and proposals involving human subjects submitted to the department or agency through such officers and employees of the department or agency and such experts and consultants as the department or agency head determines to be appropriate. This evaluation will take into consideration the risks to the subjects, the adequacy of protection against these risks, the potential benefits of the research to the subjects and others, and the importance of the knowledge gained or to be gained.</P> <P>(b) On the basis of this evaluation, the department or agency head may approve or disapprove the application or proposal, or enter into negotiations to develop an approvable one.</P> </SECTION> <SECTION> <SECTNO>§ 1c.121</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1c.122</SECTNO> <SUBJECT>Use of Federal funds.</SUBJECT> <P>Federal funds administered by a department or agency may not be expended for research involving human subjects unless the requirements of this policy have been satisfied.</P> </SECTION> <SECTION> <SECTNO>§ 1c.123</SECTNO> <SUBJECT>Early termination of research support: Evaluation of applications and proposals.</SUBJECT> <P>(a) The department or agency head may require that department or agency support for any project be terminated or suspended in the manner prescribed in applicable program requirements, when the department or agency head finds an institution has materially failed to comply with the terms of this policy.</P> <P>(b) In making decisions about supporting or approving applications or proposals covered by this policy the department or agency head may take into account, in addition to all other eligibility requirements and program <PRTPAGE P="132"/>criteria, factors such as whether the applicant has been subject to a termination or suspension under paragarph (a) of this section and whether the applicant or the person or persons who would direct or has have directed the scientific and technical aspects of an activity has have, in the judgment of the department or agency head, materially failed to discharge responsibility for the protection of the rights and welfare of human subjects (whether or not the research was subject to federal regulation).</P> </SECTION> <SECTION> <SECTNO>§ 1c.124</SECTNO> <SUBJECT>Conditions.</SUBJECT> <P>With respect to any research project or any class of research projects the department or agency head may impose additional conditions prior to or at the time of approval when in the judgment of the department or agency head additional conditions are necessary for the protection of human subjects.</P> </SECTION> </PART> <PART> <EAR>Pt. 2 </EAR> <HD SOURCE="HED">PART 2—DELEGATIONS OF AUTHORITY BY THE SECRETARY OF AGRICULTURE AND GENERAL OFFICERS OF THE DEPARTMENT</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>2.1</SECTNO> <SUBJECT>Establishment of the Department.</SUBJECT> <SECTNO>2.2</SECTNO> <SUBJECT>Authority of the Secretary to prescribe regulations.</SUBJECT> <SECTNO>2.3</SECTNO> <SUBJECT>Authority of the Secretary to delegate authority.</SUBJECT> <SECTNO>2.4</SECTNO> <SUBJECT>General officers.</SUBJECT> <SECTNO>2.5</SECTNO> <SUBJECT>Order in which officers of the Department shall act as Secretary.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General Delegations of Authority by the Secretary of Agriculture</HD> <SECTNO>2.7</SECTNO> <SUBJECT>Authority to supervise and direct.</SUBJECT> <SECTNO>2.8</SECTNO> <SUBJECT>Delegations of authority to agency heads to order that the United States flag be flown at half-staff.</SUBJECT> <SECTNO>2.9</SECTNO> <SUBJECT>Additional delegations.</SUBJECT> <SECTNO>2.10</SECTNO> <SUBJECT>Limitations.</SUBJECT> <SECTNO>2.11</SECTNO> <SUBJECT>New principles and periodic reviews.</SUBJECT> <SECTNO>2.12</SECTNO> <SUBJECT>Secretary and general officers not precluded from exercising delegated powers.</SUBJECT> <SECTNO>2.13</SECTNO> <SUBJECT>Status of prior delegations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Delegations of Authority to the Deputy Secretary, the Under Secretaries, and Assistant Secretaries for Congressional Relations and Administration</HD> <SECTNO>2.15</SECTNO> <SUBJECT>Deputy Secretary.</SUBJECT> <SECTNO>2.16</SECTNO> <SUBJECT>Under Secretary for Farm and Foreign Agricultural Services.</SUBJECT> <SECTNO>2.17</SECTNO> <SUBJECT>Under Secretary for Rural Development.</SUBJECT> <SECTNO>2.18</SECTNO> <SUBJECT>Under Secretary for Food Safety.</SUBJECT> <SECTNO>2.19</SECTNO> <SUBJECT>Under Secretary for Food, Nutrition, and Consumer Services.</SUBJECT> <SECTNO>2.20</SECTNO> <SUBJECT>Under Secretary for Natural Resources and Environment.</SUBJECT> <SECTNO>2.21</SECTNO> <SUBJECT>Under Secretary for Research, Education, and Economics.</SUBJECT> <SECTNO>2.22</SECTNO> <SUBJECT>Under Secretary for Marketing and Regulatory Programs.</SUBJECT> <SECTNO>2.23</SECTNO> <SUBJECT>Assistant Secretary for Congressional Relations.</SUBJECT> <SECTNO>2.24</SECTNO> <SUBJECT>Assistant Secretary for Administration.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Delegations of Authority to Other General Officers and Agency Heads</HD> <SECTNO>2.27</SECTNO> <SUBJECT>Office of Administrative Law Judges.</SUBJECT> <SECTNO>2.29</SECTNO> <SUBJECT>Chief Economist.</SUBJECT> <SECTNO>2.31</SECTNO> <SUBJECT>General Counsel.</SUBJECT> <SECTNO>2.33</SECTNO> <SUBJECT>Inspector General.</SUBJECT> <SECTNO>2.34</SECTNO> <SUBJECT>Director, National Appeals Division.</SUBJECT> <SECTNO>2.35</SECTNO> <SUBJECT>Judicial Officer.</SUBJECT> <SECTNO>2.36</SECTNO> <SUBJECT>Director, Office of Communications.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart E [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Delegations of Authority by the Under Secretary for Farm and Foreign Agricultural Services</HD> <SECTNO>2.40</SECTNO> <SUBJECT>Deputy Under Secretary for Farm and Foreign Agricultural Services.</SUBJECT> <SECTNO>2.42</SECTNO> <SUBJECT>Administrator, Farm Service Agency.</SUBJECT> <SECTNO>2.43</SECTNO> <SUBJECT>Administrator, Foreign Agricultural Service.</SUBJECT> <SECTNO>2.44</SECTNO> <SUBJECT>Administrator, Risk Management Agency and Manager, Federal Crop Insurance Corporation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Delegations of Authority by the Under Secretary for Rural Development</HD> <SECTNO>2.45</SECTNO> <SUBJECT>Deputy Under Secretary for Rural Development. </SUBJECT> <SECTNO>2.47</SECTNO> <SUBJECT>Administrator, Rural Utilities Service.</SUBJECT> <SECTNO>2.48</SECTNO> <SUBJECT>Administrator, Rural Business-Cooperative Service.</SUBJECT> <SECTNO>2.49</SECTNO> <SUBJECT>Administrator, Rural Housing Service.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Delegations of Authority by the Under Secretary for Food Safety</HD> <SECTNO>2.51</SECTNO> <SUBJECT>Deputy Under Secretary for Food Safety.<PRTPAGE P="133"/> </SUBJECT> <SECTNO>2.53</SECTNO> <SUBJECT>Administrator, Food Safety and Inspection Service.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Delegations of Authority by the Under Secretary for Food, Nutrition, and Consumer Services</HD> <SECTNO>2.55</SECTNO> <SUBJECT>Deputy Under Secretary for Food, Nutrition, and Consumer Services.</SUBJECT> <SECTNO>2.57</SECTNO> <SUBJECT>Administrator, Food and Nutrition Service.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart J—Delegations of Authority by the Under Secretary for Natural Resources and Environment</HD> <SECTNO>2.59</SECTNO> <SUBJECT>Deputy Under Secretaries for Natural Resources and Environment.</SUBJECT> <SECTNO>2.60</SECTNO> <SUBJECT>Chief, Forest Service.</SUBJECT> <SECTNO>2.61</SECTNO> <SUBJECT>Chief, Natural Resources Conservation Service.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart K—Delegations of Authority by the Under Secretary for Research, Education, and Economics</HD> <SECTNO>2.63</SECTNO> <SUBJECT>Deputy Under Secretary for Research, Education, and Economics.</SUBJECT> <SECTNO>2.65</SECTNO> <SUBJECT>Administrator, Agricultural Research Service.</SUBJECT> <SECTNO>2.66</SECTNO> <SUBJECT>Director, National Institute of Food and Agriculture.</SUBJECT> <SECTNO>2.67</SECTNO> <SUBJECT>Administrator, Economic Research Service.</SUBJECT> <SECTNO>2.68</SECTNO> <SUBJECT>Administrator, National Agricultural Statistics Service.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart L—Delegations of Authority by the Chief Economist</HD> <SECTNO>2.70</SECTNO> <SUBJECT>Deputy Chief Economist.</SUBJECT> <SECTNO>2.71</SECTNO> <SUBJECT>Director, Office of Risk Assessment and Cost-Benefit Analysis.</SUBJECT> <SECTNO>2.72</SECTNO> <SUBJECT>Chairman, World Agricultural Outlook Board.</SUBJECT> <SECTNO>2.73</SECTNO> <SUBJECT>Director, Office of Energy Policy and New Uses.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart M [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart N—Delegations of Authority by the Under Secretary for Marketing and Regulatory Programs</HD> <SECTNO>2.77</SECTNO> <SUBJECT>Deputy Under Secretary for Marketing and Regulatory Programs.</SUBJECT> <SECTNO>2.79</SECTNO> <SUBJECT>Administrator, Agricultural Marketing Service.</SUBJECT> <SECTNO>2.80</SECTNO> <SUBJECT>Administrator, Animal and Plant Health Inspection Service.</SUBJECT> <SECTNO>2.81</SECTNO> <SUBJECT>Administrator, Grain Inspection, Packers and Stockyards Administration.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart O—Delegations of Authority by the Assistant Secretary for Congressional Relations</HD> <SECTNO>2.83</SECTNO> <SUBJECT>Deputy Assistant Secretary for Congressional Relations.</SUBJECT> <SECTNO>2.85</SECTNO> <SUBJECT>Director, Office of Intergovernmental Affairs.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart P—Delegations of Authority by the Assistant Secretary for Administration</HD> <SECTNO>2.87</SECTNO> <SUBJECT>Deputy Assistant Secretary for Administration.</SUBJECT> <SECTNO>2.88</SECTNO> <SUBJECT>Assistant Secretary for Civil Rights.</SUBJECT> <SECTNO>2.89</SECTNO> <SUBJECT>Chief Information Officer.</SUBJECT> <SECTNO>2.90</SECTNO> <SUBJECT>Chief Financial Officer.</SUBJECT> <SECTNO>2.91</SECTNO> <SUBJECT>Director, Office of Human Resources Management.</SUBJECT> <SECTNO>2.92</SECTNO> <SUBJECT>Director, Office of Small and Disadvantaged Business Utilization.</SUBJECT> <SECTNO>2.93</SECTNO> <SUBJECT>Director, Office of Procurement and Property Management.</SUBJECT> <SECTNO>2.94</SECTNO> <SUBJECT>Director, Office of Advocacy and Outreach.</SUBJECT> <SECTNO>2.95</SECTNO> <SUBJECT>Director, Office of Homeland Security and Emergency Coordination.</SUBJECT> <SECTNO>2.96</SECTNO> <SUBJECT>Director, Office of Operations.</SUBJECT> <SECTNO>2.97</SECTNO> <SUBJECT>Director, Office of the Executive Secretariat.</SUBJECT> <SECTNO>2.98</SECTNO> <SUBJECT>Director, Management Services.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart Q—Delegations of Authority by the General Counsel</HD> <SECTNO>2.200</SECTNO> <SUBJECT>Deputy General Counsel.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart R—Delegations of Authority by the Assistant Secretary for Civil Rights</HD> <SECTNO>2.300</SECTNO> <SUBJECT>Deputy Assistant Secretary for Civil Rights.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart S—Delegations of Authority by the Chief Information Officer</HD> <SECTNO>2.400</SECTNO> <SUBJECT>Deputy Chief Information Officer.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart T—Delegations of Authority by the Chief Financial Officer</HD> <SECTNO>2.500</SECTNO> <SUBJECT>Deputy Chief Financial Officer.</SUBJECT> <SECTNO>2.501</SECTNO> <SUBJECT>Director, Office of Budget and Program Analysis.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>7 U.S.C. 6912(a)(1); 5 U.S.C. 301; Reorganization Plan No. 2 of 1953, 3 CFR 1949-1953 Comp., p. 1024.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 56393, Nov. 8, 1995, unless otherwise noted.</P> </SOURCE> <SUBPART> <PRTPAGE P="134"/> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 2.1</SECTNO> <SUBJECT>Establishment of the Department.</SUBJECT> <P>The Department of Agriculture was created by the Act of May 15, 1862, and by the Act of February 9, 1889, it was made an executive department in the Federal Government under the supervision and control of the Secretary of Agriculture (7 U.S.C. 2201, 2202, 2204).</P> </SECTION> <SECTION> <SECTNO>§ 2.2</SECTNO> <SUBJECT>Authority of the Secretary to prescribe regulations.</SUBJECT> <P>The general authority of the Secretary to prescribe regulations governing the work of the Department is based on 5 U.S.C. 301 which provides that the head of an Executive department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use and preservation of its records, papers, and property.</P> </SECTION> <SECTION> <SECTNO>§ 2.3</SECTNO> <SUBJECT>Authority of the Secretary to delegate authority.</SUBJECT> <P>(a) The general authority of the Secretary to make delegations of his authority is based on:</P> <P>(1) Section 4(a) of Reorganization Plan No. 2 of 1953 (5 U.S.C. App.), which provides that the Secretary of Agriculture may from time to time make such provisions as he shall deem appropriate authorizing the performance by any other officer, or by an agency or employee, of the Department of Agriculture of any function of the Secretary, including any function transferred to the Secretary by the provisions of this reorganization plan; and</P> <P>(2) Section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994, Pub. L. No. 103-354, 7 U.S.C. 6912(a)(1), which provides that the Secretary may delegate to any agency, office, officer, or employee of the Department the authority to perform any function transferred to the Secretary under 7 U.S.C. 6912(a) or any other function vested in the Secretary as of the date of the enactment of the Act.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 2.4</SECTNO> <SUBJECT>General officers.</SUBJECT> <P>The work of the Department is under the supervision and control of the Secretary who is assisted by the following general officers: The Deputy Secretary, the Under Secretary for Farm and Foreign Agricultural Services; the Under Secretary for Rural Development; the Under Secretary for Food Safety; the Under Secretary for Food, Nutrition, and Consumer Services; the Under Secretary for Natural Resources and Environment; the Under Secretary for Research, Education, and Economics; the Under Secretary for Marketing and Regulatory Programs; the Assistant Secretary for Congressional Relations; the Assistant Secretary for Administration; the Assistant Secretary for Civil Rights; the General Counsel; the Inspector General; the Chief Financial Officer; the Chief Information Officer; the Judicial Officer; the Director, Office of Budget and Program Analysis; the Chief Economist; the Director, National Appeals Division; and the Director of Communications.</P> <CITA>[75 FR 43367, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.5</SECTNO> <SUBJECT>Order in which officers of the Department shall act as Secretary.</SUBJECT> <P>(a) Pursuant to Executive Order 13542, “Providing an Order of Succession Within the Department of Agriculture” (75 FR 27921, May 18, 2010), during any period in which both the Secretary and the Deputy Secretary have died, resigned, or are otherwise unable to perform the functions and duties of the office of Secretary, the following officials designated in paragraphs (a)(1) through (a)(16) of this section shall act as Secretary, in the order in which they are listed, until such time as the Secretary or Deputy Secretary is able to perform the functions and duties of that office. Each official shall act only in the event of the death, resignation, or inability to perform the functions and duties of Secretary of the immediately preceding official:</P> <P>(1) Assistant Secretary of Agriculture for Administration.</P> <P>(2) Under Secretary of Agriculture for Marketing and Regulatory Programs.</P> <P>(3) Under Secretary of Agriculture for Food, Nutrition, and Consumer Services.</P> <P>(4) Under Secretary of Agriculture for Food Safety.<PRTPAGE P="135"/> </P> <P>(5) Under Secretary of Agriculture for Natural Resources and Environment.</P> <P>(6) Under Secretary of Agriculture for Farm and Foreign Agricultural Services.</P> <P>(7) Under Secretary of Agriculture for Rural Development.</P> <P>(8) Under Secretary of Agriculture for Research, Education, and Economics.</P> <P>(9) General Counsel of the Department of Agriculture.</P> <P>(10) Chief of Staff, Office of the Secretary.</P> <P>(11) Director, Kansas City Commodity Office, Farm Service Agency.</P> <P>(12) State Executive Directors of the Farm Service Agency for the States of California, Iowa, and Kansas, in order of seniority fixed by length of unbroken service as State Executive Director of that State.</P> <P>(13) Regional Administrators of the Food and Nutrition Service for the Mountain Plains Regional Office (Denver, Colorado), Midwest Regional Office (Chicago, Illinois), and Western Regional Office (San Francisco, California), in order of seniority fixed by length of unbroken service as Regional Administrator of that Regional Office.</P> <P>(14) Chief Financial Officer of the Department of Agriculture.</P> <P>(15) Assistant Secretary of Agriculture for Civil Rights.</P> <P>(16) Assistant Secretary of Agriculture for Congressional Relations.</P> <P>(b) If any two or more individuals designated in paragraphs (a)(12) and (a)(13) of this section were sworn in to, or commenced service in, their respective offices on the same day, precedence shall be determined by the alphabetical order of the State in which the individual serves.</P> <P>(c) No individual who is serving in an office listed in paragraphs (a)(1) through (a)(16) of this section in an acting capacity shall, by virtue of so serving, act as Secretary pursuant to this section.</P> <P>(d) No individual who is serving in an office listed in paragraphs (a)(1) through (a)(16) of this section shall act as Secretary unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345, <E T="03">et seq.</E>).</P> <P>(e) Notwithstanding the provisions of this section and Executive Order 13542, the President retains discretion, to the extent permitted by law, to depart from the order of succession in paragraph (a) of this section in designating an acting Secretary.</P> <CITA>[75 FR 43367, July 23, 2010]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General Delegations of Authority by the Secretary of Agriculture</HD> <SECTION> <SECTNO>§ 2.7</SECTNO> <SUBJECT>Authority to supervise and direct.</SUBJECT> <P>Unless specifically reserved, or otherwise delegated, the delegations of authority to each general officer of the Department and each agency head contained in this part includes the authority to direct and supervise the employees engaged in the conduct of activities under such official's jurisdiction, and the authority to take any action, execute any document, authorize any expenditure, promulgate any rule, regulation, order, or instruction required by or authorized by law and deemed by the general officer or agency head to be necessary and proper to the discharge of his or her responsibilities. This authority will be exercised subject to applicable administrative directives. Unless otherwise provided, a general officer or agency head may, subject to his or her continuing responsibility for the proper discharge of delegations made to him, in this part, delegate and provide for the redelegation of his or her authority to appropriate officers and employees. Subject to the general supervision of the Secretary, agency heads who are delegated authority from a general officer, in this part, report to and are under the supervision of that general officer.</P> </SECTION> <SECTION> <SECTNO>§ 2.8</SECTNO> <SUBJECT>Delegations of authority to agency heads to order that the United States flag be flown at half-staff.</SUBJECT> <P>Pursuant to section 5 of Proclamation 3044, 3 CFR, 1954-1958 Comp., p. 4, each general officer and agency head is delegated authority to order that the United States flag shall be flown at half-staff on buildings and grounds under his or her jurisdiction or control. <PRTPAGE P="136"/>This authority shall be exercised in accordance with directives promulgated by the Director, Office of Operations.</P> </SECTION> <SECTION> <SECTNO>§ 2.9</SECTNO> <SUBJECT>Additional delegations.</SUBJECT> <P>The authority granted to a general officer may be exercised in the discharge of any additional functions which the Secretary may assign.</P> </SECTION> <SECTION> <SECTNO>§ 2.10</SECTNO> <SUBJECT>Limitations.</SUBJECT> <P>The delegations made in this part shall not be construed to confer upon any general officer or agency head the authority of the Secretary to prescribe regulations which by law require approval of the President.</P> </SECTION> <SECTION> <SECTNO>§ 2.11</SECTNO> <SUBJECT>New principles and periodic reviews.</SUBJECT> <P>In the exercise of authority delegated by the Secretary, the application of new principles of major importance or a departure from principles established by the Secretary should be brought to the attention of the Secretary. General officers are responsible for assuring that periodic reviews are conducted of the activities of the agencies assigned to their direction and supervision, as required by 5 U.S.C. 305.</P> </SECTION> <SECTION> <SECTNO>§ 2.12</SECTNO> <SUBJECT>Secretary and general officers not precluded from exercising delegated powers.</SUBJECT> <P>No delegation of authority by the Secretary or a general officer contained in this part shall preclude the Secretary or general officer from exercising any of the authority so delegated.</P> </SECTION> <SECTION> <SECTNO>§ 2.13</SECTNO> <SUBJECT>Status of prior delegations.</SUBJECT> <P>Nothing in this part shall affect the bylaws of the Commodity Credit Corporation, the Federal Crop Insurance Corporation, or the Rural Telephone Bank. All delegations previously made which are inconsistent with delegations made in this part are superseded; however, any regulation, order, authorization, expenditure, or other instrument, heretofore issued or made pursuant to any delegation of authority shall continue in full force and effect unless and until withdrawn or superseded pursuant to authority granted in this part.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Delegations of Authority to the Deputy Secretary, the Under Secretaries, and Assistant Secretaries for Congressional Relations and Administration</HD> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to subpart C appear at 60 FR 66713, Dec. 26, 1995.</P> </EDNOTE> <SECTION> <SECTNO>§ 2.15</SECTNO> <SUBJECT>Deputy Secretary.</SUBJECT> <P>The following delegation of authority is made by the Secretary of Agriculture to the Deputy Secretary: Perform all of the duties and exercise all of the powers and functions which are now or which may hereafter be, vested in the Secretary of Agriculture. This delegation is subject to the limitation in § 2.10.</P> </SECTION> <SECTION> <SECTNO>§ 2.16</SECTNO> <SUBJECT>Under Secretary for Farm and Foreign Agricultural Services.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Farm and Foreign Agricultural Services:</P> <P>(1) <E T="03">Related to consolidated farm service.</E> (i) Formulate policies and administer programs authorized by the Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1282 <E T="03">et seq.</E>).</P> <P>(ii) Formulate policies and administer programs authorized by the Agricultural Act of 1949, as amended (7 U.S.C. 1441 <E T="03">et seq.</E>).</P> <P>(iii) Coordinate and prevent duplication of aerial photographic work of the Department, including:</P> <P>(A) Clearing photography projects;</P> <P>(B) Assigning symbols for new aerial photography, maintaining symbol records, and furnishing symbol books;</P> <P>(C) Recording departmental aerial photography flow and coordinating the issuance of aerial photography status maps of latest coverage;</P> <P>(D) Promoting interchange of technical information and techniques to develop lower costs and better quality;</P> <P>(E) Representing the Department on committees, task forces, work groups, and other similar groups concerned with aerial photography acquisition and reproduction, and serving as liaison with other governmental agencies <PRTPAGE P="137"/>on aerial photography but excluding mapping;</P> <P>(F) Providing a Chairperson for the Photography Sales Committee of the Department;</P> <P>(G) Coordinating development, preparation, and issuance of specifications for aerial photography for the Department;</P> <P>(H) Coordinating and performing procurement, inspection, and application of specifications for USDA aerial photography;</P> <P>(I) Providing for liaison with EROS Data Center to support USDA programs and research with satellite imagery reproductions; and</P> <P>(J) Maintaining library and files of USDA aerial film and retrieving and supplying reproductions on request.</P> <P>(iv) Administer the Agricultural Conservation Program under title X of the Agricultural Act of 1970, as amended (16 U.S.C. 1501 <E T="03">et seq.</E>), and under the Soil Conservation and Domestic Allotment Act, as amended (16 U.S.C. 590g <E T="03">et seq.</E>).</P> <P>(v) Administer the Emergency Conservation Program under the Agricultural Credit Act of 1978, as amended (16 U.S.C. 2201 <E T="03">et seq.</E>).</P> <P>(vi) Conduct fiscal, accounting and claims functions relating to Commodity Credit Corporation (CCC) programs for which the Under Secretary for Farm and Foreign Agricultural Services has been delegated authority under paragraph (a)(3) of this section and, in conjunction with other agencies of the U.S. Government, develop and formulate agreements to reschedule amounts due from foreign countries.</P> <P>(vii) Conduct assigned activities under the Strategic and Critical Materials Stockpiling Act, as amended (50 U.S.C. 98 <E T="03">et seq.</E>).</P> <P>(viii) Supervise and direct Farm Service Agency State and county offices and delegate functions to be performed by Farm Service Agency State and county committees.</P> <P>(ix) Administer the dairy indemnity program under the Act of August 13, 1968, as amended (7 U.S.C. 450j <E T="03">et seq.</E>).</P> <P>(x) Administer procurement, processing, handling, distribution, disposition, transportation, payment, and related services with respect to surplus removal and supply operations which are carried out under section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859), the Act of August 19, 1958, as amended (7 U.S.C. 1431 note), and section 709 of the Food and Agricultural Act of 1965, as amended (7 U.S.C. 1446a-1), except as delegated in paragraph (a)(3) of this section and to the Under Secretary for Food, Nutrition, and Consumer Services in § 2.19, and assist the Under Secretary for Food, Nutrition, and Consumer Services and the Assistant Secretary for Marketing and Regulatory Programs in the procurement, handling, payment, and related services under section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612c), the Act of June 28, 1937, as amended (7 U.S.C. 713c), the National School Lunch Act, as amended (42 U.S.C. 1751, <E T="03">et seq.</E>), section 8 of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1777), section 311 of the Older Americans Act of 1965, as amended (42 U.S.C. 3030a), section 4(a) of the Agriculture and Consumer Protection Act of 1973, as amended (7 U.S.C. 612c note), and section 1114 of the Agriculture and Food Act of 1981 (7 U.S.C. 1431e).</P> <P>(xi) [Reserved]</P> <P>(xii) Administer the Agricultural Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3501 <E T="03">et seq.</E>), except those functions delegated in § 2.21(a)(8)(xi).</P> <P>(xiii) Administer energy management activities as assigned.</P> <P>(xiv) Conduct producer referenda of commodity promotion programs under the Beef Research and Information Act, as amended (7 U.S.C. 2901 <E T="03">et seq.</E>), and the Agricultural Promotion Programs Act of 1990, as amended (7 U.S.C. 6001 <E T="03">et seq.</E>).</P> <P>(xv) Conduct field operations of diversion programs for fresh fruits and vegetables under section 32 of the Act of August 29, 1935.</P> <P>(xvi) Administer the U.S. Warehouse Act, as amended (7 U.S.C. 241-273), and perform compliance examinations for Farm Service Agency programs.</P> <P>(xvii) [Reserved]</P> <P>(xviii) Formulate and carry out the Conservation Reserve Program, including the implementation of technical assistance, under the Food Security Act of 1985, as amended (16 U.S.C. 1231 <E T="03">et seq.</E>).<PRTPAGE P="138"/> </P> <P>(xix) Carry out functions relating to highly erodible land and wetland conservation under sections 1211-1213 and 1221-1223 of the Food Security Act of 1985, as amended (16 U.S.C. 3811-3813 and 3821-3823).</P> <P>(xx)-(xxii) [Reserved]</P> <P>(xxiii) Formulate and administer regulations regarding program ineligibility resulting from convictions under Federal or State law of planting, cultivating, growing, producing, harvesting, or storing a controlled substance, as required under section 1764 of the Food Security Act of 1985 (21 U.S.C. 881a).</P> <P>(xxiv) [Reserved]</P> <P>(xxv) Administer all programs of the Commodity Credit Corporation that provide assistance with respect to the production of agricultural commodities, including disaster assistance and the domestic marketing of such commodities, except as may otherwise be reserved by the Secretary of Agriculture, and similar programs (including commodity quality development programs) consigned by statute to the Secretary of Agriculture unless otherwise delegated.</P> <P>(xxvi) Administer the following provisions of the Farm Security and Rural Investment Act of 2002 with respect to functions otherwise delegated to the Under Secretary for Farm and Foreign Agricultural Services:</P> <P>(A) The equitable relief provisions of section 1613 (7 U.S.C. 7996).</P> <P>(B) The tracking of benefits under section 1614 (7 U.S.C. 7997).</P> <P>(C) The development of a plan and related report to coordinate land retirement and agricultural working land conservation programs under section 2005 (16 U.S.C. 3801 note).</P> <P>(xxvii) Formulate and carry out the Grassroots Source Water Protection Program authorized by the Food Security Act of 1985, as amended (16 U.S.C. 3839bb-2).</P> <P>(xxviii) Administer cooperative agreements authorized under 7 U.S.C. 2204b(b)(4) with respect to conservation programs.</P> <P>(xxix) Administer the feedstock flexibility program for bioenergy producers under section 9010 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8110) and the biomass crop assistance program under section 9011 of that Act (7 U.S.C. 8111).</P> <P>(xxx) Administer the Grassland Reserve Program under sections 1238N-1238Q of the Food Security Act of 1985 (16 U.S.C. 3838n-3838q) in cooperation with the Under Secretary for Natural Resources and Environment.</P> <P>(xxxi) Administer the provisions of section 1240R of the Food Security Act of 1985 (16 U.S.C. 3839bb-5) regarding voluntary public access and habitat incentives.</P> <P>(xxxii) Implement the authority in section 1241 of the Food Security Act of 1985 (16 U.S.C. 3841) to accept and use voluntary contributions of non-Federal funds in support of natural resources conservation programs under subtitle D of title XII of that Act with respect to authorities delegated to the Under Secretary for Farm and Foreign Agricultural Services.</P> <P>(xxxiii) In coordination with the Assistant Secretary for Administration, issue receipts under section 2501A(e) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279-1(e)).</P> <P>(xxxiv) Administer the following provisions of the Food, Conservation, and Energy Act of 2008, Public Law 110-246:</P> <P>(A) Section 1605 relating to quality incentive payments for covered oilseed producers.</P> <P>(B) Section 1609 relating to the tracking of benefits.</P> <P>(C) Section 1612 relating to the hard white wheat development program.</P> <P>(D) Section 1613 relating to the durum wheat quality program.</P> <P>(E) Section 1621 relating to direct reimbursement payments to geographically disadvantaged farmers or ranchers.</P> <P>(F) Section 10404 relating to market loss assistance for asparagus producers.</P> <P>(G) Sections 12033 and 15101 relating to supplemental agricultural disaster assistance.</P> <P>(H) Section 14212 relating to the closure or relocation of county or field offices of the Farm Service Agency.</P> <P>(I) Section 15353(a) relating to information reporting for Commodity Credit Corporation transactions.</P> <P>(xxxv) Implement the information disclosure authorities of section 1619(b)(3)(A) of the Food, Conservation, <PRTPAGE P="139"/>and Energy Act of 2008 (7 U.S.C. 8791(b)(3)(A)).</P> <P>(2) <E T="03">Related to farm credit.</E> (i) Administer the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 <E T="03">et seq.</E>), except for the authority contained in the following sections:</P> <P>(A) [Reserved]</P> <P>(B) Section 306 (7 U.S.C. 1926), relating to all programs in that section;</P> <P>(C) Section 306A (7 U.S.C. 1926a) and section 306B (7 U.S.C. 1926b), relating to the emergency community water assistance grant programs;</P> <P>(D) Section 306C (7 U.S.C. 1926c) to administer the water and waste facility loans and grants to alleviate health risks;</P> <P>(E) Sections 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), regarding assets and programs related to rural development;</P> <P>(F) Section 310A (7 U.S.C. 1931), relating to watershed and resource conservation and development loans;</P> <P>(G) Section 310B (7 U.S.C. 1932), regarding various Rural Development programs;</P> <P>(H) Section 312(b) (7 U.S.C. 1942(b)), relating to small business enterprises;</P> <P>(I) Section 342 (7 U.S.C. 1013a);</P> <P>(J) Section 364 (7 U.S.C. 2006f), section 365 (7 U.S.C. 2008), section 366 (7 U.S.C. 2008a), section 367 (7 U.S.C. 2008b), and section 368 (7 U.S.C. 2008c), regarding assets and programs related to rural development; and</P> <P>(K) Administrative provisions of subtitle D of the Consolidated Farm and Rural Development Act related to Rural Utilities Service, Rural Business-Cooperative Service, and Rural Housing Service activities.</P> <P>(L) Section 375 (7 U.S.C. 2008j), relating to the National Sheep Industry Improvement Center.</P> <P>(ii) Collect, service, and liquidate loans made or insured by the Farm Service Agency, or its predecessor agencies.</P> <P>(iii) Administer the Rural Rehabilitation Corporation Trust Liquidation Act (40 U.S.C. 440 <E T="03">et seq.</E>), and trust, liquidation, and other agreements entered into pursuant thereto.</P> <P>(iv) [Reserved]</P> <P>(v) Administer Farmers Home Administration or any successor agency assets conveyed in trust under the Participation Sales Act of 1966 (12 U.S.C. 1717).</P> <P>(vi) Administer the Emergency Loan and Guarantee Programs under sections 232, 234, 237, and 253 of the Disaster Relief Act of 1970 (Pub. L. No. 91-606), the Disaster Relief Act of 1969 (Pub. L. No. 91-79), Pub. L. No. 92-385, approved August 16, 1972, and the Emergency Livestock Credit Act of 1974 (Pub. L. No. 93-357), as amended.</P> <P>(vii) Administer loans to homestead or desertland entrymen and purchasers of land in reclamation projects or to an entryman under the desertland law (7 U.S.C. 1006a and 1006b).</P> <P>(viii) Administer the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711 <E T="03">et seq.</E>), and joint regulations issued pursuant thereto by the Attorney General and the Comptroller General (4 CFR chapter II), with respect to claims of the Farm Service Agency.</P> <P>(ix) Service, collect, settle, and liquidate:</P> <P>(A) Deferred land purchase obligations of individuals under the Wheeler-Case Act of August 11, 1939, as amended (16 U.S.C. 590y), and under the item, “Water Conservation and Utilization projects” in the Department of the Interior Appropriation Act, 1940 (53 Stat. 719), as amended;</P> <P>(B) Puerto Rican Hurricane Relief loans under the Act of July 11, 1956 (70 Stat. 525); and</P> <P>(C) Loans made in conformance with section 4 of the Southeast Hurricane Disaster Relief Act of 1965 (79 Stat. 1301).</P> <P>(x) Administer loans to Indian tribes, tribal corporations, and purchasers of highly fractionated land (25 U.S.C. 488-492).</P> <P>(xi) Administer the State Agricultural Loan Mediation Program under title 5 of the Agricultural Credit Act of 1987 (7 U.S.C. 5101 <E T="03">et seq.</E>)</P> <P>(xii) Administer financial assistance programs relating to Economic Opportunity Loans to Cooperatives under part A of title III and part D of title I and the necessarily related functions in title VI of the Economic Opportunity Act of 1964, as amended (42 U.S.C. 2763-2768, 2841-2855, 2942, 2943(b), 2961), delegated by the Director of the Office of <PRTPAGE P="140"/>Economic Opportunity to the Secretary of Agriculture by documents dated October 23, 1964 (29 FR 14764), and June 17, 1968 (33 FR 9850), respectively.</P> <P>(xiii) Exercise all authority and discretion vested in the Secretary by section 331(c) of the Consolidated Farm and Rural Development Act, as amended by section 2 of the Farmers Home Administration Improvement Act of 1994, Pub. L. 103-248 (7 U.S.C. 1981(c)), including the following:</P> <P>(A) Determine, with the concurrence of the General Counsel, which actions are to be referred to the Department of Justice for the conduct of litigation, and refer such actions to the Department of Justice through the General Counsel;</P> <P>(B) Determine, with the concurrence of the General Counsel, which actions are to be referred to the General Counsel, for the conduct of litigation and refer such actions; and</P> <P>(C) Enter into contracts with private sector attorneys for the conduct of litigation, with the concurrence of the General Counsel, after determining that the attorneys will provide competent and cost effective representation for the Farm Service Agency.</P> <P>(xiv) Administer programs for Apple Loans and Emergency Loans for Seed Producers under sections 203(f) and 253, respectively, of the Agricultural Risk Protection Act of 2000 (7 U.S.C. 1421 note, Pub. L. 106-224).</P> <P>(xv) Administer evaluations of direct and guaranteed loan programs under section 5301 of the Farm security and Rural Investment Act of 2002 (7 U.S.C. 1922 note).</P> <P>(3) <E T="03">Related to foreign agriculture.</E> (i) Coordinate the carrying out by Department agencies of their functions involving foreign agricultural policies and programs and their operations and activities in foreign areas. Act as liaison on these matters and functions relating to foreign agriculture between the Department of Agriculture and the Department of State, the United States Trade Representative, the Trade Policy Committee, the Agency for International Development, and other departments, agencies, and committees of the U.S. Government, foreign governments, the Organization for Economic Cooperation and Development, the European Union, the Food and Agriculture Organization of the United Nations, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Organization of American States, and other public and private U.S. and international organizations, and the contracting parties to the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO).</P> <P>(ii) Administer Departmental programs concerned with development of foreign markets for agricultural products of the United States except functions relating to export marketing operations under section 32 of the Act of August 23, 1935, as amended (7 U.S.C. 612c), delegated to the Assistant Secretary for Marketing and Regulatory Programs, and utilization research delegated to the Under Secretary for Research, Education, and Economics.</P> <P>(iii) Conduct studies of worldwide production, trade, marketing, prices, consumption, and other factors affecting exports and imports of U.S. agricultural commodities; obtain information on methods used by other countries to move farm commodities in world trade on a competitive basis for use in the development of programs of this Department; provide information to domestic producers, the agricultural trade, the public and other interests; and promote normal commercial markets abroad. This delegation excludes basic and long-range analyses of world conditions and developments affecting supply, demand, and trade in farm products and general economic analyses of the international financial and monetary aspects of agricultural affairs as assigned to the Under Secretary for Research, Education, and Economics.</P> <P>(iv) Conduct functions of the Department relating to GATT, WTO, the Trade Expansion Act of 1962 (19 U.S.C. 1801 <E T="03">et seq.</E>), the Trade Act of 1974 (19 U.S.C. 2101 <E T="03">et seq.</E>), the Trade Agreements Act of 1979 (19 U.S.C. 2501 <E T="03">et seq.</E>), the Omnibus Trade and Competition Act of 1988 (19 U.S.C. 2901 <E T="03">et seq.</E>), the provisions of subtitle B of title III of the North American Free Trade Agreement Implementation Act, and other <PRTPAGE P="141"/>legislation affecting international agricultural trade including the programs designed to reduce foreign tariffs and other trade barriers.</P> <P>(v) Maintain a worldwide agricultural intelligence and reporting system, including provision for foreign agricultural representation abroad to protect and promote U.S. agricultural interests, and to acquire information on demand, competition, marketing, and distribution of U.S. agricultural commodities abroad pursuant to title VI of the Agricultural Act of 1954, as amended (7 U.S.C. 1761-1768).</P> <P>(vi) Exercise the Department's functions with respect to the International Coffee Agreement or any such future agreement.</P> <P>(vii) Administer functions of the Department relating to import controls, except those functions reserved to the Secretary in paragraph (b) of this section and those relating to section 8e of the Agricultural Act of 1938 (7 U.S.C. 608e-1), as assigned to the Assistant Secretary for Marketing and Regulatory Programs. These include:</P> <P>(A) Functions under section 22 of the Agricultural Adjustment Act of 1933, as amended (7 U.S.C. 624);</P> <P>(B) General note 15(c) to the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202);</P> <P>(C) Requests for emergency relief from duty-free imports of perishable products filed with the Department of Agriculture under section 213(f) of the Caribbean Basin Recovery Act of 1983 (19 U.S.C. 2703(f));</P> <P>(D) Section 404 of the Trade and Tariff Act of 1984 (19 U.S.C. 2112 note);</P> <P>(E) Section 204(d) of the Andean Trade Preference Act (19 U.S.C. 3203(d));</P> <P>(F) Functions under sections 309 and 316 of the North American Free Trade Agreement Implementation Act (19 U.S.C. 3358 and 3381);</P> <P>(G) Section 301(a) of the United States-Canada Free Trade Agreement Implementation Act (19 U.S.C. 2112 note); and</P> <P>(H) Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854).</P> <P>(viii) Represent the Department on the Interdepartmental Committee for Export Control and to conduct departmental activities to carry out the provisions of the Export Administration Act of 1969, as amended (50 U.S.C. App. 2401 <E T="03">et seq.</E>), except as reserved to the Secretary under paragraph (b)(2) of this section.</P> <P>(ix) Exercise the Department's responsibilities in connection with international negotiations of the Grains Trade Convention and in the administration of such Convention.</P> <P>(x) Plan and carry out programs and activities under the foreign market promotion authority of: The Wheat Research and Promotion Act (7 U.S.C. 1292 note); the Cotton Research and Promotion Act (7 U.S.C. 2101-2118); the Potato Research and Promotion Act (7 U.S.C. 2611-2627); the Egg Research and Consumer Information Act of 1974 (7 U.S.C. 2701-2718); the Beef Research and Information Act, as amended (7 U.S.C. 2901-2911); the Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 3401-3417); the Floral Research and Consumer Information Act of 1981 (7 U.S.C. 4301-4319); subtitle B of title I of the Dairy and Tobacco Adjustment Act of 1983 (7 U.S.C. 4501-4514); the Honey Research, Promotion, and Consumer Information Act of 1984, as amended (7 U.S.C. 4601-4613); the Pork Promotion, Research, and Consumer Information Act of 1985 (7 U.S.C. 4801-4819); the Watermelon Research and Promotion Act, as amended (7 U.S.C. 4901-4916); the Pecan Promotion and Research Act of 1990 (7 U.S.C. 6001-6013); the Mushroom Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6101-6112); the Lime Research, Promotion, and Consumer Information Act of 1990 (7 U.S.C. 6201-6212); the Soybean Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6301-6311); the Fluid Milk Promotion Act of 1990 (7 U.S.C. 6401-6417); the Fresh Cut Flowers and Fresh Cut Greens Promotion and Consumer Information Act (7 U.S.C. 6801-6814); the Sheep Promotion, Research, and Information Act of 1994 (7 U.S.C. 7101-7111); the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7411-7425); the Canola and Rapeseed Research, Promotion, and Consumer Information Act (7 U.S.C. 7441-7452); the National Kiwifruit Research, Promotion, and Consumer Information Act (7 U.S.C. 7461-7473); and, <PRTPAGE P="142"/>the Popcorn Promotion, Research, and Consumer Information Act (7 U.S.C. 7481-7491). This authority includes determining the programs and activities to be undertaken and assuring that they are coordinated with the overall departmental programs to develop foreign markets for U.S. agricultural products.</P> <P>(xi) Formulate policies and administer barter programs under which agricultural commodities are exported.</P> <P>(xii) Perform functions of the Department in connection with the development and implementation of agreements to finance the sale and exportation of agricultural commodities under Public Law 480, 83rd Congress, hereafter referred to as “Public Law 480” (7 U.S.C. 1691, 1701 <E T="03">et seq.</E>).</P> <P>(xiii) Administer commodity procurement and supply, transportation (other than from point of export, except for movement to trust territories or possessions), handling, payment, and related services in connection with programs under titles II and III of Public Law 480 (7 U.S.C. 1691, 1701 <E T="03">et seq.</E>), and payment and related services with respect to export programs and barter operations.</P> <P>(xiv) Coordinate within the Department activities arising under Public Law 480 (except as delegated to the Under Secretary for Research, Education, and Economics in § 2.21(a)(8)), and represent the Department in its relationships in such matters with the Department of State, any interagency committee on Public Law 480, and other departments, agencies and committees of the Government.</P> <P>(xv) Formulate policies and implement programs to promote the export of dairy products, as authorized under section 153 of the Food Security Act of 1985, as amended (15 U.S.C. 713a-14).</P> <P>(xvi) Formulate policies and implement a program for the export sales of dairy products, as authorized by section 1163 of the Food Security Act of 1985 (7 U.S.C. 1731 note).</P> <P>(xvii) Carry out activities relating to the sale, reduction, or cancellation of debt, as authorized by title VI of the Agricultural Trade and Development Act of 1954, as amended (7 U.S.C. 1738 <E T="03">et seq.</E>).</P> <P>(xviii) [Reserved]</P> <P>(xix) Determine the agricultural commodities acquired under price support programs which are available for export and allocate such commodities among the various export programs.</P> <P>(xx) Conduct economic analyses pertaining to the foreign sugar situation.</P> <P>(xxi) Exercise the Department's functions with respect to the International Sugar Agreement or any such future agreements.</P> <P>(xxii) Exercise the Department's responsibilities with respect to tariff-rate quotes for dairy products under chapter 4 of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202).</P> <P>(xxiii) Serve as a focal point for handling quality or weight discrepancy inquiries from foreign buyers of U.S. agricultural commodities to insure that they are investigated and receive a timely response and that reports thereof are made to appropriate parties and government officials in order that corrective action may be taken.</P> <P>(xxiv) Establish and administer regulations relating to foreign travel by employees of the Department. Regulations will include, but not be limited to, obtaining and controlling passports, obtaining visas, coordinating Department of State medical clearances and imposing requirements for itineraries and contacting the Foreign Agricultural Affairs Officers upon arrival in the Officers' country(ies) of responsibility.</P> <P>(xxv) Formulate policies and administer programs and activities authorized by the Agricultural Trade Act of 1978, as amended (7 U.S.C. 5601 <E T="03">et seq.</E>).</P> <P>(xxvi) Administer the Foreign Service personnel system for the Department in accordance with 22 U.S.C. 3922, except as otherwise delegated to the Assistant Secretary for Marketing and Regulatory Programs in § 2.22(a)(2)(i), but including authority to approve joint regulations issued by the Department of State and authority to represent the Department of Agriculture in all interagency consultations and negotiations with the other foreign affairs agencies with respect to joint regulations.</P> <P>(xxvii) Establish and maintain U.S. Agricultural Trade Offices, to develop, maintain and expand international <PRTPAGE P="143"/>markets for U.S. agricultural commodities in accordance with title IV of Pub. L. No. 95-501 (7 U.S.C. 1765a-g).</P> <P>(xxviii) Administer the programs under section 416(b) of the Agricultural Act of 1949, as amended (7 U.S.C. 1431(b)), relating to the foreign donation of CCC stocks of agricultural commodities.</P> <P>(xxix)-(xxx) [Reserved]</P> <P>(xxxi) Administer programs under the Food for Progress Act of 1985 (7 U.S.C. 1736o).</P> <P>(xxxii) Serve as Department adviser on policies, organizational arrangements, budgets, and actions to accomplish international scientific and technical cooperation in food and agriculture.</P> <P>(xxxiii) Administer and direct the Department's programs in international development, technical assistance, and training carried out under the Foreign Assistance Act, as amended, as requested under such act (22 U.S.C. 2151 <E T="03">et seq.</E>).</P> <P>(xxxiv) Administer and coordinate assigned Departmental programs in international research and scientific and technical cooperation with other governmental agencies, land grant universities, international organizations, international agricultural research centers, and other institutions (7 U.S.C. 1624, 3291).</P> <P>(xxxv) Direct and coordinate the Department's participation in scientific and technical matters and exchange agreements between the United States and other countries.</P> <P>(xxxvi) Direct and coordinate the Department's work in international organizations and interagency committees concerned with food and agricultural development programs (7 U.S.C. 2201-2202).</P> <P>(xxxvii) Coordinate policy formulation for USDA international science and technology programs concerning international agricultural research centers, international organizations, and international agricultural research and extension activities (7 U.S.C. 3291).</P> <P>(xxxviii) Disseminate, upon request, information on subjects connected with agriculture which has been acquired by USDA agencies that may be useful to the U.S. private sector in expanding foreign markets and investment opportunities through the operation of a Department information center, pursuant to 7 U.S.C. 2201.</P> <P>(xxxix) Enter into contracts, grants, cooperative agreements, and cost reimbursable agreements relating to agricultural research, extension, or teaching activities (7 U.S.C. 3318, 3319a).</P> <P>(xl) Determine amounts reimbursable for indirect costs under international agricultural programs and agreements (7 U.S.C. 3319).</P> <P>(xli) Administer the Cochran Fellowship Program (7 U.S.C. 3293).</P> <P>(xlii) Determine quantity trigger levels and impose additional duties under the special safeguard measures in accordance with U.S. note 2 to subchapter IV of chapter 99 of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202).</P> <P>(xliii) Implement provisions of the Trade Act of 1974 regarding adjustment assistance for farmers (19 U.S.C. 2401-2401g).</P> <P>(xliv) Implement section 3107 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 1736o-1).</P> <P>(xlv) Implement section 3205 of the Food, Conservation, and Energy Act of 2008 (22 U.S.C. 7112 note) regarding the Consultative Group to Eliminate the Use of Child Labor and Forced Labor in Imported Agricultural Products, in consultation with the Under Secretary for Marketing and Regulatory Programs.</P> <P>(xlvi) Implement section 3206 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 1726c) regarding local and regional food aid procurement projects.</P> <P>(xlvii) Administer the Borlaug International Agricultural Science and Technology Fellowship Program (7 U.S.C. 3319j).</P> <P>(xlviii) Administer the grant program for agricultural biotechnology research and development for developing countries (7 U.S.C. 7631).</P> <P>(4) <E T="03">Related to risk management.</E> (i) Exercise general supervision of the Federal Crop Insurance Corporation.</P> <P>(ii) Appoint such officers and employees as may be necessary for the transaction of the business of the Federal Crop Insurance Corporation and the Risk Management Agency.<PRTPAGE P="144"/> </P> <P>(iii) Conduct pilot programs involving revenue insurance, risk management savings accounts, or the use of futures markets to manage risk and support farm income.</P> <P>(iv) Provide education in management of the financial risks inherent in the production and marketing of agricultural commodities.</P> <P>(v) Conduct a study and issue a report on the efficacy and accuracy of the application of pack factors regarding the measurement of farm-stored production for purposes of providing policies or plans of insurance under the Federal Crop Insurance Act (7 U.S.C. 1501 <E T="03">et seq.</E>).</P> <P>(5) <E T="03">Related to committee management.</E> Establish and reestablish regional, state, and local advisory committees for activities under his or her authority. This authority may not be redelegated.</P> <P>(6) <E T="03">Related to defense and emergency preparedness.</E> Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), concerning agricultural production; food processing, storage, and distribution; distribution of farm equipment and fertilizer; rehabilitation and use of food, agricultural and related agribusiness facilities; CCC resources; farm credit and financial assistance; and foreign agricultural intelligence and other foreign agricultural matters.</P> <P>(7) <E T="03">Related to environmental response.</E> With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 (a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;</P> <P>(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petition for preliminary assessment of a release or threatened release;</P> <P>(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;</P> <P>(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;</P> <P>(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;<PRTPAGE P="145"/> </P> <P>(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;</P> <P>(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and</P> <P>(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.</P> <P>(8) <E T="03">Related to compliance with environmental laws.</E> With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or an administrative consent order or a consent judgment in an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:</P> <P>(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as further amended by the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 <E T="03">et seq.</E>);</P> <P>(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 <E T="03">et seq.</E>);</P> <P>(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f <E T="03">et seq.</E>);</P> <P>(iv) Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>);</P> <P>(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 <E T="03">et seq.</E>);</P> <P>(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>);</P> <P>(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>); and</P> <P>(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 <E T="03">et seq.</E>).</P> <P>(9) <E T="03">Related to hazardous materials management.</E> (i) Serve on the USDA Hazardous Materials Policy Council.</P> <P>(ii) Recommend actions and policies that enable USDA agencies under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.</P> <P>(iii) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.</P> <P>(iv) Recommend actions and policies of the loan and grant programs under his or her authority concerning compliance with the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, Subtitle E of Public Law No. 104-208.</P> <P>(b) The following authorities are reserved to the Secretary of Agriculture:</P> <P>(1) <E T="03">Related to farm service.</E> (i) Appointment of Farm Service Agency State committeemen.</P> <P>(ii) Final approval of regulations relating to the selection and exercise of the functions of committees promulgated under section 8(b) of the Soil Conservation and Domestic Allotment Act, as amended (16 U.S.C. 590h(b)).</P> <P>(2) <E T="03">Related to foreign agriculture.</E> (i) Approving export controls with respect to any agricultural commodity, including fats and oils or animal hides or skins as provided for in the Export Administration Act of 1969, as amended (50 U.S.C. App. 2401 <E T="03">et seq.</E>).</P> <P>(ii) Advising the President that imports are having the effect on programs or operations of this Department required as a prerequisite for the imposition of import controls under section 22 of the Agricultural Adjustment Act of 1933, as amended (7 U.S.C. 624a), recommending that the President cause an investigation to be made by the Tariff Commission of the facts so that a determination can be made whether import restrictions should be imposed under that Act, and determining under section 204(e) of the Andean Trade Preference Act (19 U.S.C. 3203(e)) that there exists a serious injury, or threat thereof and recommending to the President whether or not to take action.</P> <P>(iii) Determining the agricultural commodities and the quantities thereof <PRTPAGE P="146"/>available for disposition under Public Law 480 (7 U.S.C. 1731).</P> <P>(3) <E T="03">Related to risk management.</E> (i) Appointment of those members of the Board of Directors of the Federal Crop Insurance Corporation who are not already otherwise employed by the Department of Agriculture, and as authorized in 7 U.S.C. 1505(a) designating an Under Secretary of Agriculture to be a member of the Board in addition to the Under Secretary responsible for the Federal crop insurance program who is a Board member pursuant to 7 U.S.C. 1505(a).</P> <P>(ii) Appointment of the Administrator of the Risk Management Agency who also shall serve as the Manager of the Federal Crop Insurance Corporation.</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25775, May 23, 1996; 61 FR 37552, July 18, 1996; 62 FR 1031, Jan. 8, 1997; 62 FR 19900, Apr. 24, 1997; 62 FR 40253, July 28, 1997; 65 FR 12427, Mar. 9, 2000; 68 FR 27435, May 20, 2003; 71 FR 35491, June 21, 2006; 71 FR 51421, Aug. 30, 2006; 74 FR 3401, Jan. 21, 2009; 75 FR 43368, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.17</SECTNO> <SUBJECT>Under Secretary for Rural Development.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Rural Economic and Community Development:</P> <P>(1) Provide leadership and coordination within the executive branch of a Nationwide Rural Development Program utilizing the services of executive branch departments and agencies and the agencies, bureaus, offices, and services of the Department of Agriculture in coordination with rural development programs of State and local governments (7 U.S.C. 2204).</P> <P>(2) Coordinate activities relative to rural development among agencies reporting to the Under Secretary for Rural Economic and Community Development and, through appropriate channels, serve as the coordinating official for other departmental agencies having primary responsibilities for specific titles of the Rural Development Act of 1972, and allied legislation.</P> <P>(3) Administer a national program of economic, social, and environmental research and analysis, statistical programs, and associated service work related to rural people and the communities in which they live including rural industrialization; rural population and manpower; local government finance; income development strategies; housing; social services and utilization; adjustments to changing economic and technical forces; and other related matters.</P> <P>(4) Work with Federal agencies in encouraging the creation of rural community development organizations.</P> <P>(5) Assist other Federal agencies in making rural community development organizations aware of the Federal programs available to them.</P> <P>(6) Advise rural community development organizations of the availability of Federal assistance programs.</P> <P>(7) Advise other Federal agencies of the need for particular Federal programs.</P> <P>(8) Assist rural community development organizations in making contact with Federal agencies whose assistance may be of benefit to them.</P> <P>(9) Assist other Federal agencies and national organizations in developing means for extending their services effectively to rural areas.</P> <P>(10) Assist other Federal agencies in designating pilot projects in rural areas.</P> <P>(11) Conduct studies to determine how programs of the Department can be brought to bear on the economic development problems of the country and assure that local groups are receiving adequate technical assistance from Federal agencies or from local and State governments in formulating development programs and in carrying out planned development activities.</P> <P>(12) Assist other Federal agencies in formulating manpower development and training policies.</P> <P>(13) <E T="03">Related to committee management.</E> Establish and reestablish regional, state, and local advisory committees for activities under his or her authority. This authority may not be re-delegated.</P> <P>(14) <E T="03">Related to defense and emergency preparedness.</E> Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford <PRTPAGE P="147"/>Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), concerning rural development credit and financial assistance.</P> <P>(15) <E T="03">Related to energy.</E> (i) Provide Department-wide operational support and coordination for loan and grant programs to foster and encourage the production of fuels from agricultural and forestry products or by-products.</P> <P>(ii) Participate as a Department representative at conferences, meetings and other contacts including liaison with the Department of Energy and other government agencies and departments with respect to implementation of established Department energy policy.</P> <P>(iii) Serve as Co-Chairperson of the Energy Coordinating Committee of the Department.</P> <P>(16) Collect, service, and liquidate loans made, insured, or guaranteed by the Rural Utilities Service, the Rural Housing Service, the Rural Business-Cooperative Service, or their predecessor agencies.</P> <P>(17) Administer the Federal Claims Collection Act of 1966 (31 U.S.C. 3711 <E T="03">et seq.</E>), and joint regulations issued pursuant thereto by the Attorney General and the Comptroller General (4 CFR chapter II), with respect to claims of the Rural Housing Service, the Rural Business-Cooperative Service and the Rural Utilities Service.</P> <P>(18) With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;</P> <P>(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petitions for preliminary assessment of a release or threatened release;</P> <P>(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;</P> <P>(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;</P> <P>(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;</P> <P>(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;</P> <P>(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and<PRTPAGE P="148"/> </P> <P>(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.</P> <P>(19) With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or an administrative consent order or a consent judgment in an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:</P> <P>(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as further amended by the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 <E T="03">et seq.</E>);</P> <P>(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 <E T="03">et seq.</E>);</P> <P>(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f <E T="03">et seq.</E>);</P> <P>(iv) Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>);</P> <P>(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 <E T="03">et seq.</E>);</P> <P>(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>);</P> <P>(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>); and</P> <P>(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 <E T="03">et seq.</E>).</P> <P>(20) <E T="03">Related to rural utilities service.</E> (i) Administer the Rural Electrification Act of 1936, as amended (7 U.S.C. 901 <E T="03">et seq.</E>) except for rural economic development loan and grant programs; (7 U.S.C. 940c and 950aa <E T="03">et seq.</E>): Provided, however, that the Under Secretary may utilize consultants and attorneys for the provision of legal services pursuant to 7 U.S.C. 918, with the concurrence of the General Counsel.</P> <P>(ii) Administer the Rural Electrification Act of 1938 (7 U.S.C. 903 note).</P> <P>(iii) Designate the chief executive officer of the Rural Telephone Bank.</P> <P>(iv) Administer the following sections of the Consolidated Farm and Rural Development Act (7 U.S.C. 1921, <E T="03">et seq.</E>):</P> <P>(A) Section 306 (7 U.S.C. 1926), related to water and waste facilities.</P> <P>(B) Section 306A (7 U.S.C. 1926a).</P> <P>(C) Section 306B (7 U.S.C. 1926b).</P> <P>(D) Section 306C (7 U.S.C. 1926c).</P> <P>(E) Section 306D (7 U.S.C. 1926d).</P> <P>(F) Section 306E (7 U.S.C. 1926e).</P> <P>(G) Section 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), relating to assets and programs related to watershed facilities, resource and conservation facilities, and water and waste facilities.</P> <P>(H) Section 310A (7 U.S.C. 1931), relating to watershed and resource conservation and development</P> <P>(I) Section 310B(b) (7 U.S.C. 1932(b)).</P> <P>(J) [Reserved]</P> <P>(K) Administrative Provisions of subtitle D of the consolidated Farm and Rural Development act relating to rural utility activities.</P> <P>(L) Section 379B (7 U.S.C. 2008p).</P> <P>(v) Administer section 8, and those functions with respect to repayment of obligations under section 4 of the Watershed Protection and Flood Prevention Act (16 U.S.C. 1006a, 1004) and administer the Resource Conservation and Development Program to assist in carrying out resource conservation and development projects in rural areas under section 32(e) of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1011(e)).</P> <P>(vi) Administer the Water and Waste Loan Program (7 U.S.C. 1926-1).</P> <P>(vii) Administer the Rural Wastewater Treatment Circuit Rider Program (7 U.S.C. 1926 note).</P> <P>(viii) Administer the Distance Learning and Medical Link Programs (7 U.S.C. 950aaa <E T="03">et seq.</E>).</P> <P>(ix) Administer Water and Waste Facility Programs and activities (7 U.S.C. 1926-1).</P> <P>(x) Administer the SEARCH Grants for Small Communities Program (7 U.S.C. 2009ee <E T="03">et seq.</E>)</P> <P>(xi) In coordination with the Assistant Secretary for Administration, issue receipts under section 2501A(e) of the <PRTPAGE P="149"/>Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279-1(e)).</P> <P>(21) <E T="03">Related to rural business-cooperative.</E> (i) Administer the Rural Economic Development Loan and Grant Programs under the Rural Electrification Act (7 U.S.C. 940c and 950aa <E T="03">et seq</E>.).</P> <P>(ii) Administer the following sections of the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 <E T="03">et seq.</E>):</P> <P>(A) Section 306(a)(110(A) (7 U.S.C. 1926(a)(11)(A)), relating to grants for business technical assistance and planning.</P> <P>(B) [Reserved]</P> <P>(C) Sections 309 (7 U.S.C. 1929) and 309A (7 U.S.C. 1929a), relating to assets and programs related to rural development.</P> <P>(D) Section 310B (7 U.S.C. 1932), relating to various Rural Development programs, except for subsection (b) of that section.</P> <P>(E) Section 312(b) (7 U.S.C. 1942(b)), relating to small business enterprises.</P> <P>(F) Administrative Provisions of subtitle D of the Consolidated Farm and Rural Development Act relating to rural business-cooperative activities.</P> <P>(G) Section 378 (7 U.S.C. 2008m) relating to the National Rural Development Partnership;</P> <P>(H) Section 379E (7 U.S.C. 2008s) relating to the Rural Microentrepreneur Assistance Program.</P> <P>(I) Section 379F (7 U.S.C. 2000t) relating to the Expansion of Employment Opportunities for Individuals with Disabilities in Rural Areas Program.</P> <P>(J) Section 379G (7 U.S.C. 2008u) relating to Health Care Services.</P> <P>(K) Section 382A <E T="03">et seq.</E> (7 U.S.C. 2009aa <E T="03">et seq.</E>) relating to the Delta Regional Authority.</P> <P>(L) Section 383A <E T="03">et seq.</E> (7 U.S.C. 2009bb <E T="03">et seq.</E>) relating to the Northern Great Plains Regional Authority.</P> <P>(M) Section 384A <E T="03">et seq.</E> (7 U.S.C. 2009cc <E T="03">et seq.</E>) relating to the Rural Business Investment Program;</P> <P>(N) Section 385A <E T="03">et seq.</E> (7 U.S.C. 2009dd <E T="03">et seq.</E>) relating to the Rural Collaborative Investment Program.</P> <P>(iii) Administer Alcohol Fuels Credit Guarantee Program Account (Pub. L. 102-341, 106 Stat. 895).</P> <P>(iv) Administer section 1323 of the Food Security Act of 1985 (7 U.S.C. 1932 note).</P> <P>(v) Administer loan programs in the Appalachian region under sections 203 and 204 of the Appalachian Regional Development Act of 1965 (40 U.S.C. App. 204).</P> <P>(vi) Administer section 601 of the Powerplant and Industrial Fuel Use Act of 1978 (Pub. L. 95-620).</P> <P>(vii) Administer the Drought and Disaster Guaranteed Loan Program under section 331 of the Disaster Assistance Act of 1988 (7 U.S.C. 1929a note).</P> <P>(viii) Administer the Disaster Assistance for Rural Business Enterprises Guaranteed Loan Program under section 401 of the Disaster Assistance Act of 1989 (7 U.S.C. 1929a note).</P> <P>(ix) Administer the Rural Economic Development Demonstration Grant Program (7 U.S.C. 2662a).</P> <P>(x) Administer the Economically Disadvantaged Rural Community Loan Program (7 U.S.C. 6616).</P> <P>(xi) Administer the assets of the Alternative Agricultural Research and Commercialization Corporation and the funds in the Alternative Agricultural Research and Commercialization Fund in accordance with section 6201 of the Farm Security and Rural Investment Act of 2000 (note to 7 U.S.C. 5901 (repealed)).</P> <P>(xii) Administer programs authorized by the Cooperative Marketing Act of 1926 (7 U.S.C. 451-457).</P> <P>(xiii) Carry out the responsibilities of the Secretary of Agriculture relating to the marketing aspects of cooperatives, including economic research and analysis, the application of economic research findings, technical assistance to existing and developing cooperatives, education on cooperatives, and statistical information pertaining to cooperatives as authorized by the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627).</P> <P>(xiv) Work with institutions and international organizations throughout the world on subjects related to the development and operation of agricultural cooperatives. Such work may be carried out by:</P> <P>(A) Exchanging materials and results with such institutions or organizations;</P> <P>(B) Engaging in joint or coordinated activities; or<PRTPAGE P="150"/> </P> <P>(C) Stationing representatives at such institutions or organizations in foreign countries (7 U.S.C. 3291).</P> <P>(xv) Administer in rural areas the process of designation, provision of monitoring and oversight, and provision of technical assistance for Empowerment Zones and Enterprise Communities pursuant to section 13301 of Public Law 103-66, Omnibus Budget Reconciliation Act of 1993 (26 U.S.C. 1391 <E T="03">et seq</E>.)</P> <P>(xvi) Work with Federal agencies in encouraging the creation of local rural community development organizations. Within a State, assist other Federal agencies in developing means for extending their services effectively to rural areas and in designating pilot projects in rural areas (7 U.S.C. 2204).</P> <P>(xvii) Conduct assessments to determine how programs of the Department can be brought to bear on the economic development problems of a State or local area and assure that local groups are receiving adequate and effective technical assistance from Federal agencies or from local and State governments in formulating development programs and in carrying out planned development activities (7 U.S.C. 2204b).</P> <P>(xviii) Develop a process through which State, sub-state and local rural development needs, goals, objectives, plans, and recommendations can be received and assessed on a continuing basis (7 U.S.C. 2204b).</P> <P>(xix) Prepare local or area-wide rural development strategies based on the needs, goals, objectives, plans and recommendations of local communities, sub-state areas and States (7 U.S.C. 2204b).</P> <P>(xx) Develop a system of outreach in the State or local area to promote rural development and provide for the publication and dissemination of information, through multi-media methods, relating to rural development. Advise local rural development organizations of availability of Federal programs and the type of assistance available, and assist in making contact with Federal program (7 U.S.C. 2204; 7 U.S.C. 2204b).</P> <P>(xxi) Administer the Value-Added Agricultural Product Market Development Grant program (note to 7 U.S.C. 1621).</P> <P>(xxii) Administer the Agriculture Innovation Center Demonstration program (note to 7 U.S.C. 1621).</P> <P>(xxiii) Administer the renewable energy programs authorized in sections 9003, 9004, 9005, 9007, and 9009 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8103, 8104, 8105, 8107, and 8109).</P> <P>(xxiv) Implement the information disclosure authorities of section 1619(b)(3)(A) of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)(3)(A)).</P> <P>(xxv) In coordination with the Assistant Secretary for Administration, issue receipts under section 2501A(e) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279-1(e)).</P> <P>(22) <E T="03">Related to rural housing.</E> (i) Administer the following under the Consolidated Farm and Rural Development Act ( 7 U.S.C. 1921 <E T="03">et seq.</E>):</P> <P>(A) Section 306 (7 U.S.C. 1926), except with respect to financing for water and waste disposal facilities; or loans for rural electrification or telephone systems or facilities other than hydroelectric generating and related distribution systems and supplemental and supporting structures if they are eligible for Rural Utilities Service financing; and financing for grazing facilities and irrigation and drainage facilities; and subsection 306(a)(11).</P> <P>(B) Section 309A (7 U.S.C. 1929a), regarding assets and programs relating to community facilities.</P> <P>(C) Administrative Provisions of subtitle D of the Consolidated Farm and Rural Development Act relating to rural housing activities.</P> <P>(D) Section 379 (7 U.S.C. 2008n) relating to the Rural Telework program;</P> <P>(E) Section 379A (7 U.S.C. 2008o) relating to the Historic Barn Preservation program; and</P> <P>(F) Section 379C (7 U.S.C. 2008q) relating to the Farm Workers Training Grant program.</P> <P>(ii) Administer title V of the Housing Act of 1949 (42 U.S.C. 1471 <E T="03">et seq</E>.), except those functions pertaining to research.</P> <P>(iii) [Reserved]</P> <P>(iv) Administer the Rural Housing Disaster Program under sections 232, 234, and 253 of the Disaster Relief Act of 1970 (Pub. L. No. 91-606).<PRTPAGE P="151"/> </P> <P>(v) Exercise all authority and discretion vested in the Secretary by section 510(d) of the Housing Act of 1949, as amended by section 1045 of the Stewart B. McKinney Homeless Assistance Amendments Act of 1988, Pub. L. 100-628 (42 U.S.C. 1480(d)), including the following:</P> <P>(A) Determine, with the concurrence of the General Counsel, which actions are to be referred to the Department of Justice for the conduct of litigation, and refer such actions to the Department of Justice through the General Counsel;</P> <P>(B) Determine, with the concurrence of the General Counsel, which actions are to be referred to the General Counsel for the conduct of litigation and refer such actions; and</P> <P>(C) Enter into contracts with private sector attorneys for the conduct of litigation, with the concurrence of the General Counsel, after determining that the attorneys will provide competent and cost effective representation for the Rural Housing Service and representation by the attorney will either accelerate the process by which a family or person eligible for assistance under section 502 of the Housing Act of 1949 will be able to purchase and occupy the housing involved, or preserve the quality of the housing involved.</P> <P>(vi) Administer the Rural Firefighters and Emergency Personnel Grant program (7 U.S.C. 2655).</P> <P>(vii) Implement the information disclosure authorities of section 1619(b)(3)(A) of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)(3)(A)).</P> <P>(viii) In coordination with the Assistant Secretary for Administration, issue receipts under section 2501A(e) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279-1(e)).</P> <P>(23) <E T="03">Related to hazardous materials management.</E> (i) Serve on the USDA Hazardous Materials Policy Council.</P> <P>(ii) Recommend actions and policies that enable USDA agencies under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.</P> <P>(iii) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.</P> <P>(iv) Recommend actions and policies of the loan and grant programs under his or her authority concerning compliance with the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, Subtitle E of Public Law No. 104-208.</P> <P>(24)-(25) [Reserved]</P> <P>(26) <E T="03">Related cooperative agreements.</E> Enter into cooperative agreements with other Federal agencies, State and local governments, and any other organizations or individuals to improve the coordination and effectiveness of Federal programs, services, and actions affecting rural areas, including the establishment and financing of interagency groups, as long as the objectives of the agreement will serve the mutual interest of the parties in rural development activities (7 U.S.C. 2204b(b)(4)).</P> <P>(27) Exercise the authority in section 10101 of the Disaster Relief and Recovery Supplemental Appropriations Act, 2008, Public Law 110-329, div. B., regarding the Rural Development Disaster Assistance Fund.</P> <P>(28) Prepare and submit the report required by section 6018(b) of the Food, Conservation, and Energy Act of 2008, Public Law 110-246.</P> <P>(29) Implement section 14218 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 6941a).</P> <P>(b) The following authority is reserved to the Secretary of Agriculture:</P> <P>(1) <E T="03">Related to rural business-cooperative.</E> Submission to the Congress of the report required pursuant to section 1469 of Pub. L. No. 101-624.</P> <P>(2) [Reserved]</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 65 FR 12427, Mar. 9, 2000; 66 FR 31107, June 11, 2001; 68 FR 27436, May 20, 2003; 74 FR 3402, Jan. 21, 2009; 75 FR 43368, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.18</SECTNO> <SUBJECT>Under Secretary for Food Safety.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Food Safety:</P> <P>(1) <E T="03">Related to food safety and inspection.</E> (i) Exercise the functions of the <PRTPAGE P="152"/>Secretary of Agriculture contained in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), relating to voluntary inspection of poultry and edible products thereof; voluntary inspection and certification of technical animal fat; certified products for dogs, cats, and other carnivora; voluntary inspection of rabbits and edible products thereof; and voluntary inspection and certification of edible meat and other products.</P> <P>(ii) Exercise the functions of the Secretary of Agriculture contained in the following legislation:</P> <P>(A) Poultry Products Inspection Act, as amended (21 U.S.C. 451-470, 472);</P> <P>(B) Federal Meat Inspection Act, as amended, and related legislation, excluding so much of section 18 as pertains to issuance of certificates of condition of live animals intended and offered for export (21 U.S.C. 601-613, 615-624, 641-645, 661, 671-680, 683, 691-692, 694-695);</P> <P>(C) Egg Products Inspection Act, except for the Shell Egg Surveillance Program, voluntary laboratory analyses of egg products, and the Voluntary Egg Grading Program (21 U.S.C. 1031-1056);</P> <P>(D) Talmadge-Aiken Act (7 U.S.C. 450) with respect to cooperation with States in administration of the Federal Meat Inspection Act and the Poultry Products Inspection Act;</P> <P>(E) Humane Slaughter Act (7 U.S.C. 1901-1906);</P> <P>(F) National Laboratory Accreditation Program (7 U.S.C. 138-138i) with respect to laboratories accredited only for pesticide residue analysis in meat and poultry products;</P> <P>(G) Administer and conduct a Food Safety Research Program (7 U.S.C. 427); and</P> <P>(H) Conduct an education program regarding the availability and safety of processes and treatments that eliminate or substantially reduce the level of pathogens on meat, meat food products, poultry, and poultry products (21 U.S.C. 679b).</P> <P>(iii) Coordinate with the Assistant Secretary for Marketing and Regulatory Programs the administration of programs relating to human pathogen reduction (such as <E T="03">salmonella enteritidis</E>) pursuant to section 2 of the Act of February 2, 1903, as amended (21 U.S.C. 111), and sections 4 and 5 of the Act of May 29, 1884, as amended (21 U.S.C. 120).</P> <P>(iv) Enter into contracts, grants, or cooperative agreements to further research programs in the agricultural sciences (7 U.S.C. 3318).</P> <P>(2) <E T="03">Related to committee management.</E> Establish and reestablish regional, State, and local advisory committees for activities under his or her authority. This authority may not be redelegated.</P> <P>(3) <E T="03">Related to defense and emergency preparedness.</E> Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), concerning the wholesomeness of meat and poultry and products thereof and inspection of eggs and egg products.</P> <P>(4) <E T="03">Related to biotechnology.</E> Coordinate the development and carrying out by Department agencies of all matters and functions pertaining to the Department's regulation of biotechnology as they may affect the safety of meat, poultry or egg products.</P> <P>(5) <E T="03">Related to environmental response.</E> With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 (a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the <PRTPAGE P="153"/>reduction of exposure to significant risk to human health;</P> <P>(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petitions for preliminary assessment of a release or threatened release;</P> <P>(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;</P> <P>(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;</P> <P>(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;</P> <P>(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;</P> <P>(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and</P> <P>(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.</P> <P>(6) <E T="03">Related to compliance with environmental laws.</E> With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or an administrative consent order or a consent judgment in an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:</P> <P>(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as further amended by the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 <E T="03">et seq</E>.);</P> <P>(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 <E T="03">et seq</E>.);</P> <P>(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f <E T="03">et seq.</E>);</P> <P>(iv) Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>);</P> <P>(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 <E T="03">et seq.</E>);</P> <P>(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>);</P> <P>(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>); and</P> <P>(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 <E T="03">et seq.</E>).</P> <P>(7) <E T="03">Related to hazardous materials management.</E> (i) Serve on the USDA Hazardous Materials Policy Council.</P> <P>(ii) Recommend actions and policies that enable the USDA agency under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.</P> <P>(iii) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in <PRTPAGE P="154"/>developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.</P> <P>(iv) Exercise primary responsibility to regulate drug, pesticide, and environmental contaminants in food products as covered by the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>), including the Food Quality Protection Act of 1996, Public Law 104-170, and the Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>), as implemented by the Food Safety and Inspection Service through a Memorandum of Understanding with the United States Department of Health and Human Services, Food and Drug Administration, and the United States Environmental Protection Agency.</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 65 FR 12428, Mar. 9, 2000; 68 FR 27436, May 20, 2003; 74 FR 3402, Jan. 21, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.19</SECTNO> <SUBJECT>Under Secretary for Food, Nutrition, and Consumer Services.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Food, Nutrition, and Consumer Services:</P> <P>(1) <E T="03">Related to food and nutrition.</E> (i) Administer the following legislation:</P> <P>(A) The Food and Nutrition Act of 2008, as amended (7 U.S.C. 2011-2036), except for section 25, regarding assistance for community food projects.</P> <P>(B) Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1751-1769i), except procurement of agricultural commodities and other foods under section 6 thereof.</P> <P>(C) Child Nutrition Act of 1966, as amended (42 U.S.C. 1771-1790).</P> <P>(D) Sections 933-939 of the Food, Agriculture, Conservation, and Trade Act Amendments of 1991 (7 U.S.C. 5930 note).</P> <P>(E) Section 301 of the Healthy Meals for Healthy Americans Act of 1994 (Pub. L. 103-448).</P> <P>(F) Section 4402 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 3007).</P> <P>(G) Section 4403 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 3171 note).</P> <P>(H) Section 4404 of the Farm Security and Rural Investment Act of 2002 (2 U.S.C. 1161).</P> <P>(I) Section 4142 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).</P> <P>(J) Section 4301 of the Food, Conservation, and Energy Act of 2008 (42 U.S.C. 1758a).</P> <P>(K) Section 4305 of the Food, Conservation, and Energy Act of 2008 (42 U.S.C. 1755a).</P> <P>(L) Section 4307 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).</P> <P>(M) Section 4405 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 7517).</P> <P>(ii) Administer those functions relating to the distribution and donation of agricultural commodities and products thereof under the following legislation:</P> <P>(A) Clause (3) of section 416(a) of the Agricultural Act of 1949, as amended (7 U.S.C. 1431(a)), except the estimate and announcement of the types and varieties of food commodities, and the quantities thereof, to become available for distribution thereunder;</P> <P>(B) Section 709 of the Food and Agriculture Act of 1965, as amended (7 U.S.C. 1446a-1);</P> <P>(C) Section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612c), as supplemented by the Act of June 28, 1937, as amended (15 U.S.C. 713c), and related legislation;</P> <P>(D) Section 9 of the Act of September 6, 1958, as amended (7 U.S.C. 1431b);</P> <P>(E) Section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859), except with respect to donations to Federal penal and correctional institutions;</P> <P>(F) [Reserved]</P> <P>(G) Section 311 of the Older Americans Act of 1965, as amended (42 U.S.C. 3030a);</P> <P>(H) Sections 412 and 413(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5179, 5180(b));</P> <P>(I) Sections 4 and 5 of the Agriculture and Consumer Protection Act of 1973, as amended (7 U.S.C. 612c note);</P> <P>(J) Section 1114 of the Agriculture and Food Act of 1981, as amended (7 U.S.C. 1431e);</P> <P>(K) Section 1336 of the Agriculture and Food Act of 1981 (Pub. L. 97-98);<PRTPAGE P="155"/> </P> <P>(L) Emergency Food Assistance Act of 1983 (7 U.S.C. 612c note);</P> <P>(M) Sections 3(b)-(i), 3A and 4 of the Commodity Distribution Reform Act and WIC Amendments of 1987 (7 U.S.C. 612c note); and</P> <P>(N) Section 110 of the Hunger Prevention Act of 1988 (7 U.S.C. 612c note).</P> <P>(iii) Administer those functions relating to the distribution of supplemental nutrition assistance program benefits under section 412 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5179).</P> <P>(iv) In connection with the functions assigned in paragraphs (a)(1)(i), (ii) and (iii) of this section, relating to the distribution and donation of agricultural commodities and products thereof and supplemental nutrition assistance program benefits to eligible recipients, authority to determine the requirements for such agricultural commodities and products thereof and supplemental nutrition assistance program benefits to be so distributed.</P> <P>(v) Develop food plans for use in establishing supplemental nutrition assistance benefit levels, and assess the nutritional impact of Federal food programs.</P> <P>(vi) Administer those functions under title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1612) relating to the eligibility of aliens for benefits under the domestic food assistance programs.</P> <P>(2) <E T="03">Related to consumer advice.</E> (i) Develop and implement USDA policy and procedural guidelines for carrying out the Department's Consumer Affairs Plan.</P> <P>(ii) Advise the Secretary and other policy level officials of the Department on consumer affairs policies and programs.</P> <P>(iii) Coordinate USDA consumer affairs activities and monitor and analyze agency procedures and performance.</P> <P>(iv) Represent the Department at conferences, meetings and other contacts where consumer affairs issues are discussed, including liaison with the White House and other governmental agencies and departments.</P> <P>(v) Work with the Office of Budget and Program Analysis and the Office of Communications to ensure coordination of USDA consumer affairs and public participation programs, policies and information, and to prevent duplication of responsibilities.</P> <P>(vi) Serve as a consumer ombudsman and communication link between consumers and the Department.</P> <P>(vii) Approve the designation of agency Consumer Affairs Contacts.</P> <P>(3) <E T="03">Related to human nutrition information.</E> (i) Develop techniques and equipment to assist consumers in the home and in institutions in selecting food that supplies a nutritionally adequate diet.</P> <P>(ii) Develop family food plans at different costs for use as standards by families of different sizes, sex-age composition, and economic levels.</P> <P>(iii) Develop suitable and safe preparation and management procedures to retain nutritional and eating qualities of food served in homes and institutions.</P> <P>(iv) Develop materials to aid the public in meeting dietary needs, with emphasis on food selection for good nutrition and appropriate cost, and food preparation to avoid waste, maximize nutrient retention, minimize food safety hazards, and conserve energy.</P> <P>(v) Develop food plans for use in establishing food stamp benefit levels, and assess the nutritional impact of Federal food programs.</P> <P>(vi) Coordinate nutrition education promotion and professional education projects within the Department.</P> <P>(vii) Analyze data from food consumption surveys in coordination with the Under Secretary for Research, Education, and Economics to provide a basis for evaluating dietary adequacy.</P> <P>(viii) Consult with the Federal and State agencies, the Congress, universities, and other public and private organizations and the general public regarding household food consumption, individual intake, and dietary adequacy, and implications of the survey on public policy regarding food and nutrition policies (7 U.S.C. 3171-3175).</P> <P>(ix) In conjunction with the Department of Health and Human Services, administer section 4403 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 5311a).<PRTPAGE P="156"/> </P> <P>(x) Enter into contracts, grants, and cooperative agreements in accordance with section 1472 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318).</P> <P>(4) <E T="03">Related to committee management.</E> Establish and reestablish regional, State, and local advisory committees for activities under his or her authority. This authority may not be redelegated.</P> <P>(5) <E T="03">Related to defense and emergency preparedness.</E> Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), concerning food stamp assistance.</P> <P>(b) The following authority is reserved to the Secretary of Agriculture:</P> <P>(1) <E T="03">Related to food and nutrition.</E> Authority to appoint the members of the National Advisory Council on Maternal, Infant, and Fetal Nutrition as directed in section 17(k) of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1786(k)).</P> <P>(2) [Reserved]</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27436, May 20, 2003; 74 FR 3402, Jan. 21, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.20</SECTNO> <SUBJECT>Under Secretary for Natural Resources and Environment.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Natural Resources and Environment:</P> <P>(1) <E T="03">Related to environmental quality.</E> (i) Administer the implementation of the National Environmental Policy Act for the United States Department of Agriculture (USDA).</P> <P>(ii) Represent USDA on Regional Response Teams on hazardous spills and oil spills pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C. 9601 <E T="03">et seq.</E>), the Clean Water Act, as amended (33 U.S.C. 1251 <E T="03">et seq.</E>), the Oil Pollution Act (OPA), as amended (33 U.S.C. 2701 <E T="03">et seq.</E>), Executive Order 12580, 3 CFR, 1987 Comp., p. 193, Executive Order 12777, 3 CFR, 1991 Comp., p. 351, and the National Contingency Plan, 40 CFR part 300.</P> <P>(iii) Represent USDA in contacts with the United States Environmental Protection Agency, the Council on Environmental Quality, and other organizations or agencies on matters related to assigned responsibilities.</P> <P>(iv) Formulate and promulgate USDA policy relating to environmental activity and natural resources.</P> <P>(v) Provide staff support for the Secretary in the review of environmental impact statements.</P> <P>(vi) Provide leadership in USDA for general land use activities including implementation of Executive Order 11988, Flood Plain Management, 3 CFR, 1977 Comp., p. 117, and Executive Order 11990, Protection of Wetlands, 3 CFR, 1977 Comp., p. 121.</P> <P>(vii) Take such action as may be necessary, including issuance of administrative orders, and enter into agreements with any person to perform any response action under sections 106(a) and 122 (except subsection (b)(1)) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9606(a), 9622), pursuant to sections 4(c)(3) and 4(d)(3) of Executive Order No. 12580, as amended by Executive Order No. 13016, to be exercised only with the concurrence of the General Counsel.</P> <P>(viii) Exercise the functions of the Secretary of Agriculture authorized in Title V of the Department of the Interior and Related Agencies Appropriations Act of 1998, Pub. L. 105-83, relating to the acquisition of the New World Mine and other priority land acquisitions, land exchanges, and other activities.</P> <P>(ix) Serve on the USDA Hazardous Materials Policy Council.</P> <P>(x) Recommend actions and policies that enable agencies under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.</P> <P>(xi) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.<PRTPAGE P="157"/> </P> <P>(2) <E T="03">Related to forestry.</E> (i) Provide national leadership in forestry. (As used here and elsewhere in this section, the term “forestry” encompasses renewable and nonrenewable resources of forests, including lands governed by the Alaska National Interest Lands Conservation Act, forest-related rangeland, grassland, brushland, woodland, and alpine areas including but not limited to recreation, range, timber, minerals, watershed, wildlife and fish; natural scenic, scientific, cultural, and historic values of forests and related lands; and derivative values such as economic strength and social well-being).</P> <P>(ii) Protect, manage, and administer the national forests, national forest purchase units, national grasslands, and other lands and interests in lands administered by the Forest Service, which collectively are designated as the National Forest System. This delegation covers the acquisition and disposition of lands and interests in lands as may be authorized for the protection, management, and administration of the National Forest System, including the authority to approve acquisition of land under the Weeks Act of March 1, 1911, as amended (16 U.S.C. 521), and special forest receipts acts, as follows: (Pub. L. 337, 74th Cong., 49 Stat. 866, as amended by Pub. L. 310, 78th Cong., 58 Stat. 227; Pub. L. 505, 75th Cong., 52 Stat. 347, as amended by Pub. L. 310, 78th Cong., 58 Stat. 227; Pub. L. 634, 75th Cong., 52 Stat. 699, as amended by Pub. L. 310, 78th Cong., 58 Stat. 227; Pub. L. 748, 75th Cong., 52 Stat. 1205, as amended by Pub. L. 310, 78th Cong., 58 Stat. 227; Pub. L. 427, 76th Cong., 54 Stat. 46; Pub. L. 589, 76th Cong., 54 Stat. 297; Pub. L. 591, 76th Cong., 54 Stat. 299; Pub. L. 637, 76th Cong., 54 Stat. 402; Pub. L. 781, 84th Cong., 70 Stat. 632).</P> <P>(iii) As necessary for administrative purposes, divide into and designate as national forests any lands of 3,000 acres or more which are acquired under or subject to the Weeks Act of March 1, 1911, as amended, and which are contiguous to existing national forest boundaries established under the authority of the Weeks Act.</P> <P>(iv) Plan and administer wildlife and fish conservation rehabilitation and habitat management programs on National Forest System lands, pursuant to 16 U.S.C. 670g, 670h, and 670o.</P> <P>(v) For the purposes of the National Forest System Drug Control Act of 1986 (16 U.S.C. 559b-f), specifically designate certain specially trained officers and employees of the Forest Service, not exceeding 500, to have authority in the performance of their duties within the boundaries of the National Forest System:</P> <P>(A) To carry firearms;</P> <P>(B) To enforce and conduct investigations of violations of section 401 of the Controlled Substance Act (21 U.S.C. 841) and other criminal violations relating to marijuana and other controlled substances that are manufactured, distributed, or dispensed on National Forest System lands;</P> <P>(C) To make arrests with a warrant or process for misdemeanor violations, or without a warrant for violations of such misdemeanors that any such officer or employee has probable cause to believe are being committed in that employee's presence or view, or for a felony with a warrant or without a warrant if that employee has probable cause to believe that the person being arrested has committed or is committing such a felony;</P> <P>(D) To serve warrants and other process issued by a court or officer of competent jurisdiction;</P> <P>(E) To search, with or without a warrant or process, any person, place, or conveyance according to Federal law or rule of law; and</P> <P>(F) To seize, with or without warrant or process, any evidentiary item according to Federal law or rule of law.</P> <P>(vi) Authorize the Forest Service to cooperate with the law enforcement officials of any Federal agency, State, or political subdivision, in the investigation of violations of, and enforcement of, section 401 of the Controlled Substances Act (21 U.S.C. 841), other laws and regulations relating to marijuana and other controlled substances, and State drug control laws or ordinances, within the boundaries of the National Forest System.</P> <P>(vii) Administer programs under section 23 of the Federal Highway Act (23 U.S.C. 101(a), 120(f), 125(a)-(c), 138, 202(a)-(b), 203, 204(a)-(h), 205(a)-(d), 211, 317, 402(a)).<PRTPAGE P="158"/> </P> <P>(viii) Exercise the administrative appeal functions of the Secretary of Agriculture in review of decisions of the Chief of the Forest Service pursuant to 36 CFR parts 215 and 217 and 36 CFR part 251, subpart C.</P> <P>(ix) Conduct, support, and cooperate in investigations, experiments, tests, and other activities deemed necessary to obtain, analyze, develop, demonstrate, and disseminate scientific information about protecting, managing, and utilizing forest and rangeland renewable resources in rural, suburban, and urban areas in the United States and foreign countries. The activities conducted, supported, or cooperated in shall include, but not be limited to: renewable resource management research, renewable resource environmental research; renewable resource protection research; renewable resource utilization research, and renewable resource assessment research (16 U.S.C. 1641-1647).</P> <P>(x) Use authorities and means available to disseminate the knowledge and technology developed from forestry research (16 U.S.C. 1645).</P> <P>(xi) Coordinate activities with other agencies in USDA, other Federal and State agencies, forestry schools, and private entities and individuals (16 U.S.C. 1643).</P> <P>(xii) Enter into contracts, grants, and cooperative agreements for the support of scientific research in forestry activities (7 U.S.C. 427i(a), 1624; 16 U.S.C. 582a-8, 1643-1645, 1649).</P> <P>(xiii) Enter into cooperative research and development agreements with industry, universities, and others; institute a cash award program to reward scientific, engineering, and technical personnel; award royalties to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c).</P> <P>(xiv) Enter into contracts, grants, or cooperative agreements to further research, extension, or teaching programs in the food and agricultural sciences (7 U.S.C. 3152, 3318).</P> <P>(xv) Enter into cost-reimbursable agreements relating to agricultural research, extension, or teaching activities (7 U.S.C. 3319a).</P> <P>(xvi) Administer programs of cooperative forestry assistance in the protection, conservation, and multiple resource management of forests and related resources in both rural and urban areas and forest lands in foreign countries (16 U.S.C. 2101-2114).</P> <P>(xvii) Provide assistance to States and other units of government in forest resources planning and forestry rural revitalization (7 U.S.C. 6601, 6611-6617; 16 U.S.C. 2107).</P> <P>(xviii) Conduct a program of technology implementation for State forestry personnel, private forest landowners and managers, vendors, forest operators, public agencies, and individuals (16 U.S.C. 2107).</P> <P>(xix) Administer Rural Fire Protection and Control Programs (16 U.S.C. 2106).</P> <P>(xx) Provide technical assistance on forestry technology or the implementation of the Conservation Reserve and Softwood Timber Programs authorized in sections 1231-1244 and 1254 of the Food Security Act of 1985 (16 U.S.C. 3831-3844; 7 U.S.C. 1981 note).</P> <P>(xxi) Administer forest insect, disease, and other pest management programs (16 U.S.C. 2104).</P> <P>(xxii) Exercise the custodial functions of the Secretary for lands and interests in lands under lease or contract of sale to States and local agencies pursuant to title III of the Bankhead-Jones Farm Tenant Act and administer reserved and reversionary interests in lands conveyed under that Act (7 U.S.C. 1010-1012).</P> <P>(xxiii) Under such general program criteria and procedures as may be established by the Natural Resources Conservation Service:</P> <P>(A) Administer the forestry aspects of the programs listed in paragraphs (a)(2)(xxiii)(A)(<E T="03">1</E>), (<E T="03">2</E>) and (<E T="03">3</E>) of this section on the National Forest System, rangelands with national forest boundaries, adjacent rangelands which are administered under formal agreement, and other forest lands;</P> <P>(<E T="03">1</E>) The cooperative river basin surveys and investigations program (16 U.S.C. 1006);</P> <P>(<E T="03">2</E>) The Eleven Authorized Watershed Improvement Programs and Emergency Flood Prevention Measures Program under the Flood Control Act (33 U.S.C. 701b-1); and</P> <P>(<E T="03">3</E>) The Small Watershed Protection Program under the Pilot Watershed <PRTPAGE P="159"/>Protection and Watershed Protection and Flood Prevention Acts (7 U.S.C. 701a-h; 16 U.S.C. 1001-1009); and</P> <P>(B) Exercise responsibility in connection with the forestry aspects of the Resource Conservation and Development Program authorized by title III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1011(e)).</P> <P>(xxiv) Provide assistance to the Farm Service Agency in connection with the Agricultural Conservation Program, the Naval Stores Conservation Program, and the Cropland Conversion Program (16 U.S.C. 590g-q).</P> <P>(xxv) Provide assistance to the Rural Housing Service in connection with grants and loans under authority of section 303 of the Consolidated Farm and Rural Development Act, 7 U.S.C. 1923; and consultation with the Department of Housing and Urban Development under the authority of 40 U.S.C. 461(e).</P> <P>(xxvi) Coordinate mapping work of USDA including:</P> <P>(A) Clearing mapping projects to prevent duplication;</P> <P>(B) Keeping a record of mapping done by USDA agencies;</P> <P>(C) Preparing and submitting required USDA reports;</P> <P>(D) Serving as liaison on mapping with the Office of Management and Budget, Department of Interior, and other departments and establishments;</P> <P>(E) Promoting interchange of technical mapping information, including techniques which may reduce costs or improve quality; and</P> <P>(F) Maintaining the mapping records formerly maintained by the Office of Operations.</P> <P>(xxvii) Administer the radio frequency licensing work of USDA, including:</P> <P>(A) Representing USDA on the Interdepartmental Radio Advisory Committee and its Frequency Assignment Subcommittee of the National Telecommunications and Information Administration, Department of Commerce;</P> <P>(B) Establishing policies, standards, and procedures for allotting and assigning frequencies within USDA and for obtaining effective utilization of them;</P> <P>(C) Providing licensing action necessary to assign radio frequencies for use by the agencies of USDA and maintenance of the records necessary in connection therewith;</P> <P>(D) Providing inspection of USDA's radio operations to ensure compliance with national and international regulations and policies for radio frequency use; and</P> <P>(E) Representing USDA in all matters relating to responsibilities and authorities under the Federal Water Power Act, as amended (16 U.S.C. 791-823).</P> <P>(xxviii) [Reserved]</P> <P>(xxix) Administer the Youth Conservation Corps Act (42 U.S.C. precede 2711 note) for USDA.</P> <P>(xxx) Establish and operate the Job Corps Civilian Conservation Centers on National Forest System lands as authorized by title I, sections 106 and 107 of the Economic Opportunity Act of 1964 (42 U.S.C. 2716-2717), in accordance with the terms of an agreement dated May 11, 1967, between the Secretary of Agriculture and the Secretary of Labor; and administration of other cooperative manpower training and work experience programs where the Forest Service serves as host or prime sponsor with other Departments of Federal, State, or local governments.</P> <P>(xxxi) Administer the Volunteers in the National Forests Act of 1972 (16 U.S.C. 558a-558d, 558a note).</P> <P>(xxxii) Exercise the functions of the Secretary of Agriculture authorized in the Alaska National Interest Lands Conservation Act (16 U.S.C. 3101-3215).</P> <P>(xxxiii) Exercise the functions of the Secretary as authorized in the Wild and Scenic Rivers Act (16 U.S.C. 1271-1278).</P> <P>(xxxiv) Jointly administer gypsy moth eradication activities with the Assistant Secretary for Marketing and Regulatory Programs, under the authority of section 102 of the Organic Act of 1944, as amended; and the Act of April 6, 1937, as amended (7 U.S.C. 147a, 148, 148a-148e); and the Talmadge Aiken Act (7 U.S.C. 450), by assuming primary responsibility for treating isolated gypsy moth infestations on Federal lands, and on State and private lands contiguous to infested Federal lands, <PRTPAGE P="160"/>and any other infestations over 640 acres on State and private lands.</P> <P>(xxxv) Exercise the functions of the Secretary authorized in the Federal Onshore Oil and Gas Leasing Reform Act of 1987 (30 U.S.C. 226 <E T="03">et seq.</E>).</P> <P>(xxxvi) Administer the Public Lands Corps program (16 U.S.C. 1721 <E T="03">et seq.</E>) for USDA consistent with the Department's overall national service program.</P> <P>(xxxvii) Jointly administer the Forestry Incentives Program with the Natural Resources Conservation Service, in consultation with State Foresters, under section 4 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2103).</P> <P>(xxxviii) Focusing on countries that could have a substantial impact on global warming, provide assistance that promotes sustainable development and global environmental stability; share technical, managerial, extension, and administrative skills; provide education and training opportunities; engage in scientific exchange; and cooperate with domestic and international organizations that further international programs for the management and protection of forests, rangelands, wildlife, fisheries and related natural resources (16 U.S.C. 4501-4505).</P> <P>(xxxix) Enter into pilot projects with the Bureau of Land Management (BLM), U.S. Department of the Interior, in support of the Service First initiative for the purpose of promoting customer service and efficiency in managing National Forest System lands and public lands and delegate to BLM employees those Forest Service authorities necessary to carry out pilot projects (Public Law 106-291).</P> <P>(xl) At the request of the Director, Homeland Security Staff (Director), designate law enforcement personnel of the Forest Service to assist the Director in providing for the personal security for the Secretary and the Deputy Secretary in the National Forest System.</P> <P>(xli) Implement the information disclosure authorities of section 1619(b)(3)(A) of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)(3)(A)).</P> <P>(xlii) Administer a program for providing loans to eligible units of local government to finance the purchase of equipment to monitor, remove, dispose of, and replace infested trees located under their jurisdiction and within the borders of quarantined areas (16 U.S.C. 2104a).</P> <P>(xliii) Conduct a competitive research and development program to encourage the use of forest biomass for energy (7 U.S.C. 8112).</P> <P>(xliv) Administer the community wood energy program providing grants for community wood energy plans and energy systems (7 U.S.C. 8113).</P> <P>(3) <E T="03">Related to natural resources conservation.</E> (i) Provide national leadership in the conservation, development and productive use of the Nation's soil, water, and related resources. Such leadership encompasses soil, water, plant, and wildlife conservation; small watershed protection and flood prevention; and resource conservation and development. Integrated in these programs are erosion control, sediment reduction, pollution abatement, land use planning, multiple use, improvement of water quality, and several surveying and monitoring activities related to environmental improvement. All are designed to assure:</P> <P>(A) Quality in the natural resource base for sustained use;</P> <P>(B) Quality in the environment to provide attractive, convenient, and satisfying places to live, work, and play; and</P> <P>(C) Quality in the standard of living based on community improvement and adequate income.</P> <P>(ii) Provide national leadership in and evaluate and coordinate land use policy, and administer the Farmland Protection Policy Act (7 U.S.C. 4201 <E T="03">et seq.</E>), including the Farms for the Future Program authorized by sections 1465-1470 of the Food, Agriculture, Conservation, and Trade Act of 1990, as amended (7 U.S.C. 4201 note), except as otherwise delegated to the Under Secretary for Research, Education, and Economics in § 2.21(a)(1)(lxii).</P> <P>(iii) Administer the basic program of soil and water conservation under Pub. L. No. 46, 74th Congress, as amended, and related laws (16 U.S.C. 590 a-f, i-l, <PRTPAGE P="161"/>q, q-1; 42 U.S.C. 3271-3274; 7 U.S.C. 2201), including:</P> <P>(A) Technical and financial assistance to land users in carrying out locally adapted soil and water conservation programs primarily through soil and water conservation districts in the several States, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, the Virgin Islands, and Federally recognized Native American tribes, but also to communities, watershed groups, Federal and State agencies, and other cooperators. This authority includes such assistance as:</P> <P>(<E T="03">1</E>) Comprehensive planning assistance in nonmetropolitan districts;</P> <P>(<E T="03">2</E>) Assistance in the field of income-producing recreation on rural non-Federal lands;</P> <P>(<E T="03">3</E>) Forestry assistance, as part of total technical assistance to private land owners and land users when such services are an integral part of land management and such services are not available from a State agency; and forestry services in connection with windbreaks and shelter belts to prevent wind and water erosion of lands;</P> <P>(<E T="03">4</E>) Assistance in developing programs relating to natural beauty; and</P> <P>(<E T="03">5</E>) Assistance to other USDA agencies in connection with the administration of their programs, as follows:</P> <P>(<E T="03">i</E>) To the Farm Service Agency in the development and technical servicing of certain programs, such as the Agricultural Conservation Program and other such similar conservation programs;</P> <P>(<E T="03">ii</E>) To the Rural Housing Service in connection with their loan and land disposition programs;</P> <P>(B) Soil Surveys, including:</P> <P>(<E T="03">1</E>) Providing leadership for the Federal part of the National Cooperative Soil Survey which includes conducting and publishing soil surveys;</P> <P>(<E T="03">2</E>) Conducting soil surveys for resource planning and development; and</P> <P>(<E T="03">3</E>) Performing the cartographic services essential to carrying out the functions of the Natural Resources Conservation Service, including furnishing photographs, mosaics, and maps;</P> <P>(C) Conducting and coordinating snow surveys and making water supply forecasts pursuant to Reorganization Plan No. IV of 1940 (5 U.S.C. App.);</P> <P>(D) Operating plant materials centers for the assembly and testing of plant species in conservation programs, including the use, administration, and disposition of lands under the administration of the Natural Resources Conservation Service for such purposes under title III of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 1010-1011); and</P> <P>(E) Providing leadership in the inventorying and monitoring of soil, water, land, and related resources of the Nation.</P> <P>(iv) Administer the Watershed Protection and Flood Prevention Programs, including:</P> <P>(A) The eleven authorized watershed projects authorized under 33 U.S.C. 702b-1;</P> <P>(B) The emergency flood control work under 33 U.S.C. 701b-1;</P> <P>(C) The Cooperative River Basin Surveys and Investigations Programs under 16 U.S.C. 1006;</P> <P>(D) The pilot watershed projects under 16 U.S.C. 590 a-f and 16 U.S.C. 1001-1009;</P> <P>(E) The Watershed Protection and Flood Prevention Program under 16 U.S.C. 1001-1010, including rehabilitation of water resource structural measures constructed under certain Department of Agriculture programs under 16 U.S.C. 1012, except for responsibilities assigned to the Under Secretary for Rural Development.</P> <P>(F) The joint investigations and surveys with the Department of the Army under 16 U.S.C. 1009; and</P> <P>(G) The Emergency Conservation Program and the Emergency Watershed Protection Program under sections 401-405 of the Agricultural Credit Act of 1978, 16 U.S.C. 2201-2205, except for the provisions of sections 401 and 402, 16 U.S.C. 2201-2202, as administered by the Under Secretary for Farm and Foreign Agricultural Services.</P> <P>(v) Administer the Great Plains Conservation Program and the Critical Lands Resources Conservation Program under 16 U.S.C. 590p(b), 590q and 590q-3.</P> <P>(vi) Administer the Resource Conservation and Development Program under 16 U.S.C. 590 a-f; 7 U.S.C. 1010-<PRTPAGE P="162"/>1011; and 16 U.S.C. 3451-3461, except for responsibilities assigned to the Under Secretary for Rural Economic and Community Development.</P> <P>(vii) Responsibility for entering into long-term contracts for carrying out conservation and environmental measures in watershed areas.</P> <P>(viii) Provide national leadership for and administer the Soil and Water Resources Conservation Act of 1977 (16 U.S.C. 2001 <E T="03">et seq</E>.).</P> <P>(ix) Administer the Rural Clean Water Program and other responsibilities assigned under section 35 of the Clean Water Act of 1977 (33 U.S.C. 1251 <E T="03">et seq.</E>).</P> <P>(x) Monitor actions and progress of USDA in complying with Executive Order 11988, Flood Plain Management, 3 CFR, 1977 Comp., p. 117, and Executive Order 11990, Protection of Wetlands, 3 CFR, 1977 Comp., p. 121, regarding management of floodplains and protection of wetlands; monitor USDA efforts on protection of important agricultural, forest and rangelands; and provide staff assistance to the USDA Natural Resources and Environment Committee.</P> <P>(xi) Administer the search and rescue operations authorized under 7 U.S.C. 2273.</P> <P>(xii) Administer section 202(c) of the Colorado River Basin Salinity Control Act, 43 U.S.C. 1592(c), including:</P> <P>(A) Identify salt source areas and determine the salt load resulting from irrigation and watershed management practices;</P> <P>(B) Conduct salinity control studies of irrigated salt source areas;</P> <P>(C) Provide technical and financial assistance in the implementation of salinity control projects including the development of salinity control plans, technical services for application, and certification of practice applications;</P> <P>(D) Develop plans for implementing measures that will reduce the salt load of the Colorado River;</P> <P>(E) Develop and implement long-term monitoring and evaluation plans to measure and report progress and accomplishments in achieving program objectives; and</P> <P>(F) Enter into and administer contracts with program participants and waive cost-sharing requirements when such cost-sharing requirements would result in a failure to proceed with needed on-farm measures.</P> <P>(xiii) Except as otherwise delegated, administer natural resources conservation authorities, including authorities related to programs of the Commodity Credit Corporation that provide assistance with respect to natural resources conservation, under Title XII of the Food Security Act of 1985 (the Act), as amended (16 U.S.C. 3801 <E T="03">et seq.</E>), including the following:</P> <P>(A) Technical assistance related to the conservation of highly erodible lands and wetlands pursuant to sections 1211-1223 of the Act (16 U.S.C. 3811-3823).</P> <P>(B) Technical assistance related to the Conservation Reserve Program authorized by sections 1231-1235A of the Act (16 U.S.C. 3831-3835a).</P> <P>(C) The Wetlands Reserve Program and the Emergency Wetlands Reserve Program authorized by sections 1237-1237F of the Act (16 U.S.C. 3837-3837f) and the Emergency Supplemental Appropriations for Relief from the Major, Widespread Flooding in the Midwest Act, Public Law 103-75.</P> <P>(D) The Conservation Security Program authorized by sections 1238-1238C (16 U.S.C. 3838-3838c) and the Conservation Stewardship Program authorized by sections 1238D-1238G (16 U.S.C. 3838d-3838g).</P> <P>(E) The Farmland Protection Program authorized by sections 1238H-1238I of the Act (16 U.S.C. 3838h-3838i).</P> <P>(F) The Farm Viability Program authorized by section 1238J of the Act (16 U.S.C. 3838j).</P> <P>(G) The Environmental Easement Program authorized by sections 1239-1239D of the Act (16 U.S.C. 3839-3839d).</P> <P>(H) The Environmental Quality Incentives Program authorized by sections 1240-1240I of the Act (16 U.S.C. 3839aa-3839aa-9).</P> <P>(I) The conservation of private grazing lands authorized by section 1240M of the Act (16 U.S.C. 3839bb).</P> <P>(J) The Wildlife Habitat Incentives Program authorized by section 1240N of the Act (16 U.S.C. 3839bb-1).</P> <P>(K) The program for soil erosion and sedimentation control in the Great Lakes basin authorized by section 1240P of the Act (16 U.S.C. 3839bb-3).<PRTPAGE P="163"/> </P> <P>(L) The delivery of technical assistance under section 1242 of the Act (16 U.S.C. 3842), including the approval of persons or entities outside of USDA to provide technical services.</P> <P>(M) The authority for partnerships and cooperation provided by section 1243 of the Act (16 U.S.C. 3843), except for responsibilities assigned to the Under Secretary for Farm and Foreign Agricultural Services.</P> <P>(N) The incentives for certain farmers and ranchers and Indian tribes and the protection of certain proprietary information related to natural resources conservation programs as provided by section 1244 of the Act (16 U.S.C. 3844), except for responsibilities assigned to the Under Secretary for Farm and Foreign Agricultural Services.</P> <P>(O) The Agriculture Conservation Experienced Services Program authorized by section 1252 of the Act (16 U.S.C. 3851).</P> <P>(P) The authority under sections 1261-1262 of the Act (16 U.S.C. 3861-3862) to establish and utilize State Technical Committees.</P> <P>(Q) The Grassland Reserve Program under sections 1238N-1238Q of the Act (16 U.S.C. 3838n-3838q) in cooperation with the Under Secretary for Farm and Foreign Agricultural Services.</P> <P>(R) The authority in section 1241 of the Act (16 U.S.C. 3841) to accept and use voluntary contributions of non-Federal funds in support of natural resources conservation programs under subtitle D of title XII of the Act with respect to authorities delegated to the Under Secretary for Natural Resources and Environment.</P> <P>(xiv) Approve and transmit to the Congress comprehensive river basin reports.</P> <P>(xv) Provide representation on the Water Resources Council and river basin commissions created by 42 U.S.C. 1962, and on river basin interagency committees.</P> <P>(xvi) Administer the following provisions of the Farm Security and Rural Investment Act of 2002 with respect to functions otherwise delegated to the Under Secretary for Natural Resources and Environment:</P> <P>(A) The equitable relief provisions of section 1613 (7 U.S.C. 7996).</P> <P>(B) The tracking of benefits under section 1614 (7 U.S.C. 7997).</P> <P>(C) The development of a plan and related report to coordinate land retirement and agricultural working land conservation programs under section 2005 (16 U.S.C. 3801 note).</P> <P>(xvii) Administer the Water Bank Program under the Water Bank Act (16 U.S.C. 1301 <E T="03">et seq.</E>).</P> <P>(xviii) Administer the agricultural management assistance provisions of section 524(b) of the Federal Crop Insurance Act, as amended (7 U.S.C. 1524(b)), except for responsibilities assigned to the Under Secretary for Farm and Foreign Agricultural Services.</P> <P>(xix) Coordinate USDA input and assistance to the Department of Commerce and other Federal agencies consistent with section 307 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1456), and coordinate USDA review of qualifying state and local government coastal management plans or programs prepared under such Act and submitted to the Secretary of Commerce, consistent with section 306(a) and (c) of such Act (16 U.S.C. 1455(a) and (c)).</P> <P>(xx) Administer the Healthy Forests Reserve Program authorized by sections 501-508, Title V of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6571-6578).</P> <P>(xxi) Implement the information disclosure authorities of section 1619(b)(3)(A) of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)(3)(A)).</P> <P>(xxii) In coordination with the Assistant Secretary for Administration, issue receipts under section 2501A(e) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279-1(e)).</P> <P>(xxiii) Authorize employees of the Natural Resources Conservation Service to carry and use firearms for personal protection while conducting field work in remote locations in the performance of their official duties (7 U.S.C. 2274a).</P> <P>(4) <E T="03">Related to committee management.</E> Establish and reestablish regional, state, and local advisory committees for activities under his or her authority. This authority may not be redelegated.<PRTPAGE P="164"/> </P> <P>(5) <E T="03">Related to defense and emergency preparedness.</E> Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>) and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), relating to agricultural land and water, forests and forest products, rural fire defense, and forestry research.</P> <P>(6) <E T="03">Related to surface mining control and reclamation.</E> Administer responsibilities and functions assigned to the Secretary of Agriculture under the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 <E T="03">et seq.</E>).</P> <P>(7) <E T="03">Related to environmental response.</E> (i) With respect to land and facilities under his or her authority, to exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, and Executive Order 12777, 3 CFR, 1991 Comp., p. 351, to act as Federal trustee for natural resources in accordance with section 107(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9607(f)), section 311(f)(5) of the Federal Water Pollution Control Act (33 U.S.C. 1321(f)(5)), and section 1006(b)(2) of the Oil Pollution Act of 1990 (33 U.S.C. 2706(b)(2)).</P> <P>(ii) With respect to land and facilities under his or her authority, to exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(A) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(B) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(C) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;</P> <P>(D) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(E) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petitions for preliminary assessment of a release or threatened release;</P> <P>(F) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) of the Act pertaining to the annual report to Congress;</P> <P>(G) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;</P> <P>(H) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(I) Section 113(g) of the Act (42 U.S.C. 9613(g)), with respect to receiving notification of a natural resource trustee's intent to file suit;</P> <P>(J) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(K) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(L) Section 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;</P> <P>(M) Section 119 of the Act (42 U.S.C. 9619), with respect to indemnifying response action contractors;<PRTPAGE P="165"/> </P> <P>(N) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and</P> <P>(O) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), relating to mixed funding agreements.</P> <P>(iii) With respect to land and facilities under his or her authority, to exercise the authority vested in the Secretary of Agriculture to act as the “Federal Land Manager” pursuant to the Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>).</P> <P>(8) <E T="03">Related to compliance with environmental laws.</E> With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or an administrative consent order or a consent judgment in an appropriate United States District Court with an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:</P> <P>(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 <E T="03">et seq.</E>);</P> <P>(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 <E T="03">et seq.</E>);</P> <P>(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f <E T="03">et seq.</E>);</P> <P>(iv) Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>);</P> <P>(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 <E T="03">et seq.</E>);</P> <P>(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>);</P> <P>(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>); and</P> <P>(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 <E T="03">et seq.</E>).</P> <P>(9) <E T="03">Related to historic preservation.</E> Administer the implementation of the National Historic Preservation Act of 1966, 16 U.S.C. 470 <E T="03">et seq.</E>, Executive Order 11593, 3 CFR, 1971-1975 Comp., p. 559, and regulations of the Advisory Council on Historic preservation, 36 CFR part 800, for the Department of Agriculture with authority to name the Secretary's designee to the Advisory Council on Historic Preservation.</P> <P>(b) The following authorities are reserved to the Secretary of Agriculture:</P> <P>(1) <E T="03">Related to natural resource conservation.</E> Designation of new project areas in which the resource conservation and development program assistance will be provided.</P> <P>(2) [Reserved]</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 1031, Jan. 8, 1997; 64 FR 32797, June 18, 1999; 64 FR 34967, June 30, 1999; 65 FR 12428, Mar. 9, 2000; 67 FR 59135, Sept. 30, 2002; 68 FR 27437, May 20, 2003; 69 FR 34252, June 21, 2004; 72 FR 36859, July 6, 2007; 74 FR 3403, Jan. 21, 2009; 75 FR 43368, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.21</SECTNO> <SUBJECT>Under Secretary for Research, Education, and Economics.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Under Secretary for Research, Education, and Economics.</P> <P>(1) <E T="03">Related to science and education.</E> (i) Direct, coordinate and provide national leadership and support for research, extension and teaching programs in the food and agricultural sciences to meet major needs and challenges in development of new food and fiber; food and agriculture viability and competitiveness in the global economy; enhancing economic opportunities and quality of life for rural America; food and agricultural system productivity and development of new crops and new uses; the environment and natural resources; or the promotion of human health and welfare pursuant to the National Agricultural Research, Extension, and Teaching Policy of 1977, as amended (7 U.S.C. 3101 <E T="03">et seq.</E>).</P> <P>(ii) Provide national leadership and support for research, extension, and <PRTPAGE P="166"/>teaching programs in the food and agricultural sciences to carry out sustainable agriculture research and education; a National Plant Genetic Resources Program; a national agricultural weather information system; research regarding the production, preparation, processing, handling, and storage of agricultural products; a Plant and Animal Pest and Disease Control Program; and any other provisions pursuant to title XVI of the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. No. 101-624, 104 Stat. 3703), except the provisions relating to the USDA Graduate School in section 1669 and the provisions relating to alternative agricultural research and commercialization under sections 1657-1664 (7 U.S.C. 5801 <E T="03">et seq.</E>).</P> <P>(iii) Coordinate USDA policy and conduct programs relative to the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>) and coordinate the Department's Integrated Pest Management Programs and the Pesticide Assessment Program (7 U.S.C. 136-136y).</P> <P>(iv) Carry out research, technology development, technology transfer, and demonstration projects related to the economic feasibility of the manufacture and commercialization of natural rubber from plants containing hydrocarbons (7 U.S.C. 178-178n).</P> <P>(v) Conduct research on the control of undesirable species of honey bees in cooperation with specific foreign governments (7 U.S.C. 284).</P> <P>(vi) Administer the appropriation for the endowment and maintenance of colleges for the benefit of agriculture and the mechanical arts (7 U.S.C. 321-326a).</P> <P>(vii) Administer teaching funds authorized by section 22 of the Bankhead Jones Act, as amended (7 U.S.C. 329).</P> <P>(viii) Administer a Cooperative Agricultural Extension Program in accordance with the Smith-Lever Act, as amended (7 U.S.C. 341-349).</P> <P>(ix) Cooperate with the States for the purpose of encouraging and assisting them in carrying out research related to the problems of agriculture in its broadest aspects under the Hatch Act, as amended (7 U.S.C. 361a-361i).</P> <P>(x) Evaluate, assess, and report to congressional agriculture committees on the merits of proposals for agricultural research facilities in the States, and ensure that each research activity conducted by an Agricultural Research Service facility serves a national or multistate need (7 U.S.C. 390 <E T="03">et seq.</E>).</P> <P>(xi) Conduct research concerning domestic animals and poultry, their protection and use, the causes of contagious, infectious, and communicable diseases, and the means for the prevention and cure of the same (7 U.S.C. 391).</P> <P>(xii) Conduct research related to the dairy industry and to the dissemination of information for the promotion of the dairy industry (7 U.S.C. 402).</P> <P>(xiii) Conduct research and demonstrations at Mandan, ND, related to dairy livestock breeding, growing, and feeding, and other problems pertaining to the establishment of the dairy and livestock industries (7 U.S.C. 421-422).</P> <P>(xiv) Conduct research on new uses for cotton and on cotton ginning and processing (7 U.S.C. 423-424).</P> <P>(xv) Administer and conduct research into the basic problems of agriculture in its broadest aspects, including, but not limited to, production, marketing (other than statistical and economic research but including research related to family use of resources), distribution, processing, and utilization of plant and animal commodities; problems of human nutrition; development of markets for agricultural commodities; discovery, introduction, and breeding of new crops, plants, and animals, both foreign and native; conservation development; and development of efficient use of farm buildings, homes, and farm machinery except as otherwise delegated in § 2.22(a)(1)(ii) and § 2.79(a)(2) (7 U.S.C. 427, 1621-1627, 1629, 2201, and 2204).</P> <P>(xvi) Conduct research on varietal improvement of wheat and feed grains to enhance their conservation and environmental qualities (7 U.S.C. 428b).</P> <P>(xvii) [Reserved]</P> <P>(xviii) Enter into agreements with and receive funds from any State, other political subdivision, organization, or individual for the purpose of conducting cooperative research projects (7 U.S.C. 450a).</P> <P>(xix) Carry out a program (IR-4 Program) for the collection of residue and efficacy data in support of minor use <PRTPAGE P="167"/>pesticide registration or reregistration and to determine tolerances for minor use chemical residues in or on agricultural commodities (7 U.S.C. 450i).</P> <P>(xx) Administer the Agriculture and Food Research Initiative for competitive grants for fundamental and applied research, extension, and education to address food and agricultural sciences; administer a program of making special grants for research, extension, or education activities (7 U.S.C. 450i(b), (c)).</P> <P>(xxi)-(xxii) [Reserved]</P> <P>(xxiii) Conduct research related to soil and water conservation, engineering operations, and methods of cultivation to provide for the control and prevention of soil erosion (7 U.S.C. 1010 and 16 U.S.C. 590a).</P> <P>(xxiv) Maintain four regional research laboratories and conduct research at such laboratories to develop new scientific, chemical, and technical uses and new and extended markets and outlets for farm commodities and products and the byproducts thereof (7 U.S.C. 1292).</P> <P>(xxv) Conduct a Special Cotton Research Program designed to reduce the cost of producing upland cotton in the United States (7 U.S.C. 1441 note).</P> <P>(xxvi) [Reserved]</P> <P>(xxvii) Conduct research to develop and determine methods for the humane slaughter of livestock (7 U.S.C. 1904).</P> <P>(xxviii) Administer a competitive grant program for non- profit institutions to establish and operate centers for rural technology or cooperative development (7 U.S.C. 1932(f)).</P> <P>(xxix) Administer a Nutrition Education Program for Food Stamp recipients and for the distribution of commodities on reservations (7 U.S.C. 2020(f)).</P> <P>(xxx) Conduct education and extension programs and a pilot project related to nutrition education (7 U.S.C. 2027(a) and 5932).</P> <P>(xxxi) [Reserved]</P> <P>(xxxii) Develop and maintain national and international library and information systems and networks and facilitate cooperation and coordination of the agricultural libraries of colleges, universities, USDA, and their closely allied information gathering and dissemination units in conjunction with private industry and other research libraries (7 U.S.C. 2201, 2204, 3125a, and 3126).</P> <P>(xxxiii) Accept gifts and order disbursements from the Treasury for carrying out of National Agricultural Library (NAL) functions (7 U.S.C. 2264-2265).</P> <P>(xxxiv) Propagate bee-breeding stock and release bee germplasm to the public (7 U.S.C. 283).</P> <P>(xxxv) Administer, in cooperation with land-grant colleges and universities where applicable, a rural development research and extension program, a small farm research and extension program, and a rural health and safety education program under the Rural Development Act of 1972, as amended (7 U.S.C. 2661-2667).</P> <P>(xxxvi) Administer a cooperative extension program under the Farmer-to-Consumer Direct Marketing Act of 1976 (7 U.S.C. 3004).</P> <P>(xxxvii) Coordinate the development and carrying out by Department agencies of all matters and functions pertaining to agricultural research conducted or funded by the Department involving biotechnology, including the development and implementation of guidelines for oversight of research activities, acting as liaison on all matters and functions pertaining to agricultural research in biotechnology between agencies within the Department and between the Department and other governmental, educational, or private organizations and carrying out any other activities authorized by (7 U.S.C. 3121).</P> <P>(xxxviii) [Reserved]</P> <P>(xxxix) Establish and oversee the National Agricultural Research, Extension, Education, and Economics Advisory Board (7 U.S.C. 3123).</P> <P>(xl) Provide and distribute information and data about Federal, State, local, and other Rural Development Assistance Programs and services available to individuals and organizations. To the extent possible, NAL shall use telecommunications technology to disseminate such information to rural areas (7 U.S.C. 3125b).</P> <P>(xli) Assemble and collect food and nutrition educational material, including the results of nutrition research, training methods, procedures, and <PRTPAGE P="168"/>other materials related to the purposes of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended; maintain such information; and provide for the dissemination of such information and materials on a regular basis to State educational agencies and other interested parties (7 U.S.C. 3126).</P> <P>(xlii) Conduct programs related to composting research and extension (7 U.S.C. 3130).</P> <P>(xliii) Conduct a program of grants to States to expand, renovate, or improve schools of veterinary medicine (7 U.S.C. 3151).</P> <P>(xliv) Promote and strengthen higher education in the food and agricultural sciences; administer grants to colleges and universities; maintain a national food and agricultural education information system; conduct programs regarding the evaluation of teaching programs and continuing education; administer the National Food and Agricultural Sciences Teaching, Extension, and Research Awards Program to recognize and promote excellence in teaching, extension, and research in the food and agricultural sciences; administer programs relating to secondary education and 2-year postsecondary education, including grants to public secondary schools, institutions of higher education that award an associate's degree, other institutions of higher education, and nonprofit organizations; and report to Congress on the distribution of funds to carry out such teaching programs (7 U.S.C. 3152).</P> <P>(xlv) [Reserved]</P> <P>(xlvi) Administer the National Agricultural Science Award for research or advanced studies in the food and agricultural sciences (7 U.S.C. 3153).</P> <P>(xlvii) [Reserved]</P> <P>(xlviii) Administer a National Food and Human Nutrition Research and Extension Program. Establish and administer a Human Nutrition Intervention and Health Promotion Research Program (7 U.S.C. 3171-3175).</P> <P>(xlix) Administer and direct an Animal Health and Disease Research Program under the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3191-3201).</P> <P>(l) Support continuing agricultural and forestry extension and research, at 1890 land-grant colleges, including Tuskegee University, and administer a grant program for five National Research and Training Centers (7 U.S.C. 3221, 3222, 3222c, 3222d).</P> <P>(li) Administer grants to 1890 land-grant colleges, including Tuskegee University, through Federal-grant funds to help finance research facilities and equipment including agricultural libraries (7 U.S.C. 3223).</P> <P>(lii) Establish and administer competitive grants (or grants without regard to any requirement for competition) to Hispanic-serving Institutions for the purpose of promoting and strengthening the ability of Hispanic-serving Institutions to carry out education, applied research, and related community development programs (7 U.S.C. 3241).</P> <P>(liii) Provide policy direction and coordinate the Department's work with national and international institutions and other persons throughout the world in the performance of agricultural research, extension, teaching, and development activities; administer a program of competitive grants for collaborative projects involving Federal scientists or scientists from colleges and universities working with scientists at international agricultural research centers in other nations focusing either on new technologies and programs for increasing the production of food and fiber or training scientists and a program of competitive grants to colleges and universities to strengthen United States economic competitiveness and to promote international market development; establish a program in coordination with the Foreign Agricultural Service to place interns from United States colleges and universities at Foreign Agricultural Service field offices overseas; and provide a biennial report to the Committee on Agriculture of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate on efforts of the Federal Government to coordinate international agricultural research within the Federal Government, and to more effectively link the <PRTPAGE P="169"/>activities of domestic and international agricultural researchers, particularly researchers of the Agricultural Research Service (7 U.S.C. 3291, 3292b).</P> <P>(liv) Provide for an agricultural research and development program with the United States/Mexico Foundation for Science (7 U.S.C. 3292a).</P> <P>(lv) Administer a program of competitive grants to colleges and universities and State cooperative institutions for the acquisition of special purpose scientific research equipment for use in the food and agricultural sciences (7 U.S.C. 3310a).</P> <P>(lvi) Enter into contracts, grants, or cooperative agreements to further research, extension, or teaching programs in the food and agriculture sciences (7 U.S.C. 3318).</P> <P>(lvii) Enter into cost-reimbursable agreements with State cooperative institutions or other colleges and universities for the acquisition of goods or services in support of research, extension, or teaching activities in the food and agricultural sciences, including the furtherance of library and related information programs (7 U.S.C. 3319a).</P> <P>(lviii) Conduct research and development and implement a program for the development of supplemental and alternative crops (7 U.S.C. 3319d).</P> <P>(lix) Administer an Aquaculture Assistance Program, involving centers, by making grants to eligible institutions for research and extension to facilitate or expand production and marketing of aquacultural food species and products; making grants to States to formulate Aquaculture development plans for the production and marketing of aquacultural species and products; and conducting a program of research, extension and demonstration at aquacultural demonstration centers (7 U.S.C. 3321-22).</P> <P>(lx) Administer a Cooperative Rangeland Research Program (7 U.S.C. 3331-3336).</P> <P>(lxi) Conduct a program of basic research on cancer in animals and birds (7 U.S.C. 3902).</P> <P>(lxii) Design and implement educational programs and distribute materials in cooperation with the cooperative extension services of the States emphasizing the importance of productive farmland, and designate a farmland information center, pursuant to section 1544 of the Farmland Protection Policy Act (7 U.S.C. 4205).</P> <P>(lxiii) [Reserved]</P> <P>(lxiv) Administer programs and conduct projects for research, extension, and education on sustainable agriculture (7 U.S.C. 5811-5813).</P> <P>(lxv) Conduct research and cooperative extension programs to optimize crop and livestock production potential, integrated resource management, and integrated crop management (7 U.S.C. 5821).</P> <P>(lxvi) Design, implement, and develop handbooks, technical guides, and other educational materials emphasizing sustainable agriculture production systems and practices (7 U.S.C. 5831).</P> <P>(lxvii) Administer a competitive grant program to organizations to carry out a training program on sustainable agriculture (7 U.S.C. 5832).</P> <P>(lxviii) Administer a national research program on genetic resources to provide for the collection, preservation, and dissemination of genetic material important to American food and agriculture production (7 U.S.C. 5841-5844).</P> <P>(lxix) Conduct remote-sensing and other weather-related research (7 U.S.C. 5852).</P> <P>(lxx) Establish an Agricultural Weather Office and administer a national agricultural weather information system, including a competitive grants program for research in atmospheric sciences and climatology (7 U.S.C. 5852-5853).</P> <P>(lxxi) Administer a research and extension grant program to States to administer programs for State agricultural weather information systems (7 U.S.C. 5854).</P> <P>(lxxii) Administer grants and conduct research programs to measure microbiological and chemical agents associated with the production, preparation, processing, handling, and storage of agricultural products (7 U.S.C. 5871-5874).</P> <P>(lxxiii) Administer and conduct research and extension programs on integrated pest management, including research to benefit floriculture (7 U.S.C. 5881).</P> <P>(lxxiv) Establish a National Pesticide Resistance Monitoring Program and <PRTPAGE P="170"/>disseminate information on materials and methods of pest and disease control available to agricultural producers through the pest and disease control database (7 U.S.C. 5882).</P> <P>(lxxv) Administer and conduct research and grant programs on the control and eradication of exotic pests (7 U.S.C. 5883).</P> <P>(lxxvi) Conduct research and educational programs to study the biology and behavior of chinch bugs (7 U.S.C. 5884).</P> <P>(lxxvii) Administer research programs and grants for risk assessment research to address concerns about the environmental effects of biotechnology (7 U.S.C. 5921).</P> <P>(lxxviii) Administer a rural electronic commerce extension program through grants to regional rural development centers and competitive grants to land-grant colleges and universities and to colleges and universities (including community colleges) with agricultural or rural development programs (7 U.S.C. 5923).</P> <P>(lxxix) Conduct a research initiative known as the Agricultural Genome Initiative, and make grants or enter into cooperative agreements on a competitive basis to carry out the Initiative (7 U.S.C. 5924).</P> <P>(lxxx) Administer a competitive high priority research and extension grants program in specified subject areas (7 U.S.C. 5925).</P> <P>(lxxxi) Administer a program of competitive grants to support research and extension activities in Nutrient Management Research and Extension (7 U.S.C. 5925a).</P> <P>(lxxxii) Administer competitive grants to support research and extension activities regarding organically grown and processed agricultural commodities (7 U.S.C. 5925b).</P> <P>(lxxxiii) [Reserved]</P> <P>(lxxxiv) Formulate and carry out the Veterinary Medicine Loan Repayment Act program authorized by the National Veterinary Medical Service Act (7 U.S.C. 3151a).</P> <P>(lxxxv)-(lxxxvii) [Reserved]</P> <P>(lxxxviii) Establish and administer a program for the development and utilization of an agricultural communications network (7 U.S.C. 5926).</P> <P>(lxxxix)-(xc) [Reserved]</P> <P>(xci) Administer education programs on Indian reservations and tribal jurisdictions (7 U.S.C. 5930).</P> <P>(xcii) [Reserved]</P> <P>(xciii) Administer a demonstration grants program for support of an assistive technology program for farmers with disabilities (7 U.S.C. 5933).</P> <P>(xciv)-(xcv) [Reserved]</P> <P>(xcvi) Conduct programs of research, technology development, and education related to global climate change (7 U.S.C. 6701-6710).</P> <P>(xcvii) Administer the Small Business Innovation Development Act of 1982 for USDA (15 U.S.C. 638(e)-(k)).</P> <P>(xcviii) Coordinate Departmental policies under the Toxic Substance Control Act (15 U.S.C. 2601-2629).</P> <P>(xcix) Provide educational and technical assistance in implementing and administering the Conservation Reserve Program authorized in sections 1231-1244 of the Food Security Act of 1985 (Pub. L. No. 99-198, 99 Stat. 1509 (16 U.S.C. 3831-3844)).</P> <P>(c) Enter into cooperative research and development agreements with industry, universities, and others; institute a cash award program to reward scientific, engineering, and technical personnel; award royalties to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c).</P> <P>(ci) Coordinate USDA activities delegated under 15 U.S.C. 3710a-3710c.</P> <P>(cii) Conduct educational and demonstrational work in Cooperative Farm Forestry Programs (16 U.S.C. 568).</P> <P>(ciii) Administer a cooperative forestry program in accordance with the McIntire-Stennis Cooperative Forestry Act, and administer a competitive forestry, natural resources, and environmental grant program (16 U.S.C. 582A-582A-8).</P> <P>(civ) Establish and administer the Forestry Student Grant Program to provide competitive grants to assist the expansion of the professional education of forestry, natural resources, and environmental scientists (16 U.S.C. 1649).</P> <P>(cv) Provide for an expanded and comprehensive extension program for forest and rangeland renewable resources (16 U.S.C. 1671-1676).<PRTPAGE P="171"/> </P> <P>(cvi) Provide technical, financial, and educational assistance to State foresters and State extension directors on rural forestry assistance (16 U.S.C. 2102).</P> <P>(cvii) Provide educational assistance to State foresters under the Forest Stewardship Program (16 U.S.C. 2103a).</P> <P>(cviii) Implement and conduct an educational program to assist the development of Urban and Community Forestry Programs (16 U.S.C. 2105).</P> <P>(cix) Provide staff support to the Secretary of Agriculture in his or her role as permanent Chair for the Joint Subcommittee on Aquaculture established by the National Aquaculture Act of 1980 and coordinate aquacultural activities within the Department (16 U.S.C. 2805).</P> <P>(cx) Perform research, development, and extension activities in aquaculture (16 U.S.C. 2804 and 2806).</P> <P>(cxi) Provide educational assistance to farmers regarding the Agricultural Water Quality Protection Program (16 U.S.C. 3838b).</P> <P>(cxii) Copy and deliver on demand selected articles and other materials from the Department's collections by photographic reproduction or other means within the permissions, constraints, and limitations of sections 106, 107, and 108 of the Copyright Act of October 19, 1976, (17 U.S.C. 106, 107, and 108).</P> <P>(cxiii) Authorize the use of the 4-H Club name and emblem (18 U.S.C. 707).</P> <P>(cxiv) Maintain a National Arboretum for the purposes of research and education concerning tree and plant life, and order disbursements from the Treasury, in accordance with the Act of March 4, 1927 (20 U.S.C. 191 <E T="03">et seq</E>.).</P> <P>(cxv) Conduct research on foot-and-mouth disease and other animal diseases (21 U.S.C. 113a).</P> <P>(cxvi) Conduct research on the control and eradication of cattle grubs (screwworms) (21 U.S.C. 114e).</P> <P>(cxvii) Obtain and furnish Federal excess property to eligible recipients for use in the conduct of research and extension programs (40 U.S.C. 483(d)(2)).</P> <P>(cxviii) Conduct research demonstration and promotion activities related to farm dwellings and other buildings for the purposes of reducing costs and adapting and developing fixtures and appurtenances for more efficient and economical farm use (42 U.S.C. 1476(b)).</P> <P>(cxix) Carry out research, demonstration, and educational activities authorized in section 202(c) of the Colorado River Basin Salinity Control Act (43 U.S.C. 1592(c)).</P> <P>(cxx) Conduct research on losses of livestock in interstate commerce due to injury or disease (45 U.S.C. 71 note).</P> <P>(cxxi) Administer a Cooperative Agricultural Extension Program related to agriculture, uses of solar energy with respect to agriculture, home economics, and rural energy in the District of Columbia (D.C. Code 38-1202.09).</P> <P>(cxxii) [Reserved]</P> <P>(cxxiii) Exercise the responsibilities of the Secretary under regulations dealing with Equal Employment Opportunity in the Cooperative Extension Service (part 18 of this title).</P> <P>(cxxiv) Represent the Department on the Federal Interagency Council on Education.</P> <P>(cxxv) Assure the acquisition, preservation, and accessibility of all information concerning food and agriculture by providing leadership to and coordination of the acquisition programs and related activities of the library and information systems, with the agencies of USDA, other Federal departments and agencies, State agricultural experiment stations, colleges and universities, and other research institutions and organizations.</P> <P>(cxxvi) Formulate, write, or prescribe bibliographic and technically related standards for the library and information services of USDA (7 U.S.C. 3125a <E T="03">et seq</E>.).</P> <P>(cxxvii) Determine by survey or other appropriate means, the information needs of the Department's scientific, professional, technical, and administrative staffs, its constituencies, and the general public in the areas of food, agriculture, the environment, and other related areas.</P> <P>(cxxviii) Represent the Department on all library and information science matters before Congressional Committees and appropriate commissions, and provide representation to the coordinating committees of the Federal and State governments concerned with library and information science activities.<PRTPAGE P="172"/> </P> <P>(cxxix) Represent the Department in international organizational activities and on international technical committees concerned with agricultural science, education, and development activities, including library and information science activities.</P> <P>(cxxx) Prepare and disseminate computer files, indexes and abstracts, bibliographies, reviews, and other analytical information tools.</P> <P>(cxxxi) Arrange for the consolidated purchasing and dissemination of printed and automated indexes, abstracts, journals, and other widely used information resources and services.</P> <P>(cxxxii) Provide assistance and support to professional organizations and others concerned with library and information science matters and issues.</P> <P>(cxxxiii) Pursuant to the authority delegated by the Administrator of General Services to the Secretary of Agriculture in 34 FR 6406, 36 FR 1293, 36 FR 18440, and 38 FR 23838, appoint uniformed armed guards and special policemen, make all needful rules and regulations, and annex to such rules and regulations such reasonable penalties (not to exceed those prescribed in 40 U.S.C. 318(c), as will ensure their enforcement, for the protection of persons, property, buildings, and grounds of the Arboretum, Washington, DC; the U.S. Meat Animal Research Center, Clay Center, NE; the Agricultural Research Center, Beltsville, MD; and the Animal Disease Center, Plum Island, NY, over which the United States has exclusive or concurrent criminal jurisdiction, in accordance with the limitations and requirements of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 471 <E T="03">et seq.</E>), the Act of June 1, 1948, as amended (40 U.S.C. 318 <E T="03">et seq.</E>), and the policies, procedures, and controls prescribed by the General Services Administration. Any rules or regulations promulgated under this authority shall be approved by the Director, Office of Operations, and the General Counsel prior to issuance.</P> <P>(cxxxiv) Represent the Department on the National Science and Technology Council.</P> <P>(cxxxv) Administer the Department's Patent Program except as delegated to the General Counsel in § 2.31(e).</P> <P>(cxxxvi) Review cooperative research and development agreements entered into pursuant to 15 U.S.C. 3710a-3710c, with authority to disapprove or require the modification of any such agreement.</P> <P>(cxxxvii) Establish and administer a 1994 Institutions Endowment Fund and to enter into agreements necessary to do this (Section 533(b) and (c) of the Equity in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).</P> <P>(cxxxviii) Make grants in equal amounts to 1994 Land-Grant Institutions to be used in the same manner as is prescribed for colleges under the Act of August 30, 1890 (7 U.S.C. 321 <E T="03">et seq</E>.), and subject to the requirements of such Act (Section 534(a) of the Equity in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).</P> <P>(cxxxix) Make competitive Institutional Capacity Building Grants to assist 1994 Land-Grant Institutions with constructing, acquiring, and remodeling buildings, laboratories, and other capital facilities (including fixtures and equipment) necessary to conduct instructional activities more effectively in agriculture and sciences (Section 535 of the Equity in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).</P> <P>(cxl) Make competitive grants to 1994 Land-Grant Institutions to conduct agricultural research that addresses high priority concerns of tribal, national, or multistate significance (Section 536 of the Equity in Educational Land-Grant Status Act of 1994, 7 U.S.C. 301 note).</P> <P>(cxli) Implement and administer the Community Food Projects Program, Innovative Programs for Addressing Common Community Problems, and the Healthy Urban Food Enterprise Center pursuant to the provisions of section 25 of the Food and Nutrition Act of 2008 (7 U.S.C. 2034).</P> <P>(cxlii) [Reserved]</P> <P>(cxliii) Coordinate the Department of Agriculture summer intern program pursuant to section 922 of the Federal Agriculture Improvement and Reform Act (7 U.S.C. 2279c).</P> <P>(cxliv) Develop and carry out a system to monitor and evaluate agricultural research and extension activities conducted or supported by the Department that will enable the Secretary to <PRTPAGE P="173"/>measure the impact and effectiveness of research, extension, and education programs according to priorities, goals, and mandates established by law. Conduct a comprehensive review of state-of-the-art information technology systems for use in developing the system (7 U.S.C. 3129).</P> <P>(cxlv) Make grants, competitive grants, and special research grants to, and enter into cooperative agreements and other contracting instruments with, policy research centers (7 U.S.C. 3155).</P> <P>(cxlvi) Conduct a pilot research program to link major cancer and heart and other circulatory disease research efforts with agricultural research efforts to identify compounds in vegetables and fruits that prevent these diseases (7 U.S.C. 3174a).</P> <P>(clvii)-(clix) [Reserved]</P> <P>(cl) Provide technical assistance to farmers and ranchers under the Environmental Quality Incentives Program (16 U.S.C. 3830 <E T="03">et seq</E>.).</P> <P>(cli) Ensure that agricultural research conducted by the Agricultural Research Service, and agricultural research, extension, or education activities administered by the Cooperative State Research, Education, and Extension Service on a competitive basis address a concern that is a priority and has national, multistate, or regional significance (7 U.S.C. 7611).</P> <P>(clii) Solicit and consider input and recommendations from persons who conduct or use agricultural research, extension, or education and, after consultation with appropriate subcabinet officials, establish priorities for agricultural research, extension, and education activities conducted or funded by the Department; promulgate regulations concerning implementation of a process for obtaining stakeholder input at 1862, 1890, and 1994 Institutions and Hispanic-serving agricultural colleges and universities; and ensure that federally supported and conducted agricultural research, extension, and education activities are accomplished in accord with identified management principles (7 U.S.C. 7612).</P> <P>(cliii) Establish procedures that provide for scientific peer review of each agricultural research grant administered on a competitive basis, and for merit review of each agricultural extension or education grant administered, on a competitive basis, by the Cooperative State Research, Education, and Extension Service (7 U.S.C. 7613(a)).</P> <P>(cliv) Consider the results of the annual review performed by the Agricultural Research, Extension, Education, and Economics Advisory Board regarding the relevance to priorities of the funding of all agricultural research, extension, or education activities conducted or funded by the Department and the adequacy of funding, when formulating each request for proposals, and evaluating proposals, involving an agricultural research, extension, or education activity funded, on a competitive basis, by the Department; and solicit and consider input from persons who conduct or use agricultural research, extension, or education regarding the prior year's request for proposals for each activity funded on a competitive basis (7 U.S.C. 7613(c)).</P> <P>(clv) Establish, in consultation with appropriate subcabinet officials, procedures to ensure scientific peer review of all research activities conducted by the Department (7 U.S.C. 7613(d)).</P> <P>(clvi) Require a procedure to be established by each 1862, 1890, and 1994 Institution and Hispanic-serving agricultural college and university, for merit review of each agricultural research and extension activity funded and review of the activity in accordance with the procedure (7 U.S.C. 7613(e)).</P> <P>(clvii)-(clix) [Reserved]</P> <P>(clx) Coordinate the resources of the Department to develop, commercialize, and promote the use of biobased products, and enter into cooperative agreements with private entities to operate pilot plants and other large-scale preparation facilities under which the facilities and technical expertise of the Agricultural Research Service may be made available (7 U.S.C. 7624).</P> <P>(clxi) [Reserved]</P> <P>(clxii) Administer competitive grants for integrated, multifunctional agricultural research, education, and extension activities (7 U.S.C. 7626).</P> <P>(clxiii) Administer a coordinated program of research, extension, and education to improve the competitiveness, viability, and sustainability of small <PRTPAGE P="174"/>and medium size dairy, livestock, and poultry operations (7 U.S.C. 7627).</P> <P>(clxiv) Administer grants to consortia of land-grant colleges and universities to enhance the ability of the consortia to carry out multi-State research projects aimed at understanding and combating diseases of wheat, triticale, and barley caused by Fusarium graminearum and related fungi or Tilletia indica and related fungi (7 U.S.C. 7628).</P> <P>(clxv) Operate and administer the Food Animal Residue Avoidance Database through contracts, grants, or cooperative agreements with appropriate colleges or universities (7 U.S.C. 7642).</P> <P>(clxvi) Update on a periodic basis, nutrient composition data and report to Congress the method that will be used to update the data and the timing of the update (7 U.S.C. 7651).</P> <P>(clxvii) Establish and maintain a Food Safety Research Information Office at the National Agricultural Library to provide to the research community and the general public information on publicly and privately funded food safety research initiatives (7 U.S.C. 7654(a)).</P> <P>(clxviii) Develop a national program of safe food handling education for adults and young people to reduce the risk of food-borne illness (7 U.S.C. 7655).</P> <P>(clxix) Conduct a performance evaluation to determine whether federally funded agricultural research, extension, and education programs result in public goods that have national or multistate significance, including through a contract with one or more entities to provide input and recommendations with respect to federally funded agricultural research, extension, and education programs (7 U.S.C. 7671).</P> <P>(clxx) Request the National Academy of Sciences to conduct a study of the role and mission of federally funded agricultural research, extension, and education (7 U.S.C. 7672).</P> <P>(clxxi) Take a census of agriculture in 1998 and every fifth year thereafter pursuant to the Census of Agriculture Act of 1997, Public Law 105-113 (7 U.S.C. 2204g); ensure that the census of agriculture documents the number, location, and economic contributions of socially disadvantaged farmers or ranchers in agricultural production (7 U.S.C. 2279(h)).</P> <P>(clxxii) Cooperate with other Federal agencies (including the National Science Foundation) in issuing joint requests for proposals, awarding grants, and administering grants under any competitive agricultural research, education, or extension grant program (7 U.S.C. 3319b).</P> <P>(clxxiii) Administer a program of competitive grants, establish education teams, and establish an online clearinghouse of curricula and training materials and programs, all for training, education, outreach, and technical assistance initiatives for the benefit of beginning farmers and ranchers (7 U.S.C. 3319f).</P> <P>(clxxiv) Administer agricultural research, education, and extension activities (including through competitive grants), using any authority available to the Secretary, to reduce the vulnerability of the United States food and agricultural system to chemical or biological attack, to continue partnerships with institutions of higher education and other institutions to help form stable, long-term programs to enhance the biosecurity of the United States, to make competitive grants to universities and qualified research institutions for research on counterbioterrorsims, and to counter or otherwise respond to chemical or biological attack (7 U.S.C. 3351).</P> <P>(clxxv) Administer a program of competitive grants to colleges and universities for expansion and security upgrades to enhance the security of agriculture against bioterrorism threats (7 U.S.C. 3352).</P> <P>(clxxvi) Administer programs for distance education grants and resident instruction grants to eligible institutions in insular areas that have demonstrable capacity to carry out teaching and extension programs in the food and agricultural sciences (7 U.S.C. 3361-3363).</P> <P>(clxxvii) [Reserved]</P> <P>(clxxviii) Administer a program of cooperative research (including through competitive award of grants and cooperative agreements to colleges and universities) and extension projects on carbon cycling in soils and <PRTPAGE P="175"/>plants, the exchange of other greenhouse gases from agriculture, and the carbon sequestration benefits of conservation practices (7 U.S.C. 6711).</P> <P>(clxxix) Administer a program, in coordination with State veterinarians and other appropriate State animal health professionals, to conduct research, testing, and evaluation of programs for the control and management of Johne's disease in livestock (7 U.S.C. 7629).</P> <P>(clxxx) Administer a program of grants to the Girl Scouts of the United States of America, the Boy Scouts of America, the National 4-H Council, and the National FFA Organization to establish pilot projects to expand the programs carried out by the organizations in rural areas and small towns (7 U.S.C. 7630).</P> <P>(clxxxi) Oversee implementation of the termination of Federal schedule A civil service appointments of State agricultural extension employees at land-grant colleges and universities (section 7220 of Pub. L. 107-171).</P> <P>(clxxxii) Administer a program of grants to the Food and Agricultural Policy Research Institute (section 10805 of Pub. L. 107-171).</P> <P>(clxxxiii) Administer grants to assist the land-grant university in the District of Columbia to acquire, alter, or repair facilities or relevant equipment necessary for conducting agricultural research (7 U.S.C. 3222b-1).</P> <P>(clxxxiv) Administer grants to assist the land-grant institutions in insular areas to acquire, alter, or repair facilities or relevant equipment necessary for conducting agricultural research (7 U.S.C. 3222b-2).</P> <P>(clxxxv) Enter into agreements necessary to administer an Hispanic-Serving Agricultural Colleges and Universities Fund; enter into agreements necessary to administer a program of making annual payments to Hispanic-serving agricultural colleges and universities; administer an institutional capacity-building grants program for Hispanic-serving agricultural colleges and universities; administer a competitive grants program to fund fundamental and applied research at Hispanic-serving agricultural colleges and universities (7 U.S.C. 3243).</P> <P>(clxxxvi) Administer the New Era Rural Technology Program to make grants for technology development, applied research, and training to aid in the development of an agriculture-based renewable energy workforce (7 U.S.C. 3319e).</P> <P>(clxxxvii) Administer a competitive grants program to assist NLGCA Institutions in maintaining and expanding capacity to conduct education, research, and outreach activities relating to agriculture, renewable resources, and other similar disciplines (7 U.S.C. 3319i).</P> <P>(clxxxviii) Administer the Agricultural Bioenergy Feedstock and Energy Efficiency Research and Extension Initiative to enhance the production of biomass energy crops and the energy efficiency of agricultural operations (7 U.S.C. 5925e).</P> <P>(clxxxix) Administer a competitive research and extension grants program to improve the farm management knowledge and skills of agricultural producers and establish and maintain a national, publicly available farm financial management database to support improved farm management (7 U.S.C. 5925f).</P> <P>(cxc) Administer the Specialty Crop Research Initiative (7 U.S.C. 7632).</P> <P>(cxci) Exchange, sell, or otherwise dispose of animals, animal products, plants, and plant products, and use the sale or other proceeds to acquire such items or to offset costs related to the maintenance, care, or feeding of such items (7 U.S.C. 2241a).</P> <P>(cxcii) Establish and administer a pilot program at the Beltsville Agricultural Research Center and National Agricultural Library to lease nonexcess property (7 U.S.C. 3125a note).</P> <P>(cxciii) Lease land at the Grazinglands Research Laboratory at El Reno, Oklahoma, pursuant to section 7503 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).</P> <P>(cxciv) Administer a competitive research and education grants program relating to antibiotics and antibiotic-resistant bacteria (7 U.S.C. 3202).</P> <P>(cxcv) Administer a competitive grants program to establish and maintain a Farm and Ranch Stress Assistance Network (7 U.S.C. 5936).<PRTPAGE P="176"/> </P> <P>(cxcvi) Administer a competitive grants program relating to seed distribution (7 U.S.C. 415-1).</P> <P>(cxcvii) Administer a natural products research program (7 U.S.C. 5937).</P> <P>(cxcviii) Administer a Sun Grants Program (7 U.S.C. 8114).</P> <P>(cxcix) Administer a competitive grants program relating to agricultural and rural transportation research and education (7 U.S.C. 5938).</P> <P>(cc) Administer a program of providing competitive grants to Hispanic-serving institutions for the purpose of establishing an undergraduate scholarship program to assist in the recruitment, retention, and training of Hispanics and other under-represented groups in forestry and related fields (16 U.S.C. 1649a).</P> <P>(cci) Administer a Biomass Research and Development Program (7 U.S.C. 8108) in consultation with other mission areas of the Department as appropriate.</P> <P>(ccii) Administer a competitive grants program to encourage basic and applied research and the development of qualified agricultural countermeasures (7 U.S.C. 8921).</P> <P>(cciii) Administer a competitive grants program to promote the development of teaching programs in agriculture, veterinary medicine, and disciplines closely allied to the food and agriculture system to increase the number of trained individuals with an expertise in agricultural biosecurity (7 U.S.C. 8922).</P> <P>(cciv) Administer a program of providing grants to Alaska Native serving institutions and Native Hawaiian serving institutions for the purpose of promoting and strengthening the ability of those institutions to carry out education, applied research, and related community development programs (7 U.S.C. 3156).</P> <P>(2) <E T="03">Related to committee management.</E> Establish or reestablish regional, state and local advisory committees for the activities authorized. This authority may not be redelegated.</P> <P>(3) <E T="03">Related to defense and emergency preparedness.</E> Administer the responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), concerning scientific and educational programs; estimates of supplies of agricultural commodities and evaluation of requirements therefor; coordination of damage assessment; food and agricultural aspects of economic stabilization, economic research, and agricultural statistics; and the coordination of energy programs.</P> <P>(4) Related to rural development activities. Provide guidance and direction for the accomplishment of activities authorized under Section V of the Rural Development Act of 1972, as amended (7 U.S.C. 2661 <E T="03">et seq</E>.), for programs under the control of the Under Secretary for Research, Education, and Economics, coordinating the policy aspects thereof with the Under Secretary for Rural Development.</P> <P>(5) <E T="03">Related to environmental response.</E> With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(i) Sections 104 (a), (b), and (c)(4) of the Act (42 U.S.C. 9604 (a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;</P> <P>(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), <PRTPAGE P="177"/>with respect to petitions for preliminary assessment of a release or threatened release;</P> <P>(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;</P> <P>(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;</P> <P>(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(xi) Sections 117 (a) and (c) of the Act (42 U.S.C. 9617 (a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;</P> <P>(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;</P> <P>(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and</P> <P>(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.</P> <P>(6) <E T="03">Related to compliance with environmental laws.</E> With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or an administrative consent order or a consent judgment in an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:</P> <P>(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as further amended by the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 <E T="03">et seq</E>.);</P> <P>(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 <E T="03">et seq.</E>);</P> <P>(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f <E T="03">et seq.</E>);</P> <P>(iv) Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>);</P> <P>(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 <E T="03">et seq</E>.);</P> <P>(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>);</P> <P>(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>); and</P> <P>(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 <E T="03">et seq</E>.).</P> <P>(7) <E T="03">Related to national food and human nutrition research.</E> (i) Administer a National Food and Human Nutrition Research Program under the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended. As used herein the term “research” includes:</P> <P>(A) Research on the nutrient composition of foods and the effects of agricultural practices, handling, food processing, and cooking on the nutrients they contain;</P> <P>(B) Surveillance of the nutritional benefits provided to participants in the food programs administered by the Department; and</P> <P>(C) Research on the factors affecting food preference and habits (7 U.S.C. 3171-3175, 3177).</P> <P>(ii) The authority in paragraph (a)(7)(i) of this section includes the authority to:<PRTPAGE P="178"/> </P> <P>(A) Appraise the nutritive content of the U.S. food supply;</P> <P>(B) Develop and make available data on the nutrient composition of foods needed by Federal, State, and local agencies administering food and nutrition programs, and the general public, to improve the nutritional quality of diets;</P> <P>(C) Coordinate nutrition education research projects within the Department; and</P> <P>(D) Maintain data generated on food composition in a National Nutrient Data Bank.</P> <P>(iii) Conduct, in cooperation with the Department of Health and Human Services, the National Nutrition Monitoring and Related Research Program. Included in this delegation is the authority to:</P> <P>(A) Design and carry out periodic nationwide food consumption surveys to measure household food consumption;</P> <P>(B) Design and carry out a continuous, longitudinal individual intake survey of the United States population and special high-risk groups; and</P> <P>(C) Design and carry out methodological research studies to develop improved procedures for collecting household and individual food intake consumption data;</P> <P>(iv) [Reserved]</P> <P>(v) Co-chair with the Assistant Secretary for Health, Department of Health and Human Services, the Interagency Board for Nutrition Monitoring and Related Research for the development and coordination of a Ten-Year Comprehensive Plan as required by Pub. L. No. 101-445, 7 U.S.C. 5301 <E T="03">et seq.</E> </P> <P>(8) <E T="03">Related to economic research and statistical reporting.</E> (i) Conduct economic research on matters of importance to cooperatives as authorized by the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627).</P> <P>(ii) Conduct economic and social science research and analyses relating to:</P> <P>(A) Food and agriculture situation and outlook;</P> <P>(B) The production, marketing, and distribution of food and fiber products (excluding forest and forest products), including studies of the performance of the food and agricultural sector of the economy in meeting needs and wants of consumers;</P> <P>(C) Basic and long-range, worldwide, economic analyses and research on supply, demand, and trade in food and fiber products and the effects on the U.S. food and agriculture system, including general economic analyses of the international financial and monetary aspects of agricultural affairs;</P> <P>(D) Natural resources, including studies of the use and management of land and water resources, the quality of these resources, resource institutions, and watershed and river basin development problems; and</P> <P>(E) Rural people and communities, as authorized by title II of the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), and the Act of June 29, 1935, as amended (7 U.S.C. 427).</P> <P>(iii) Perform economic and other social science research under section 104(b)(1) and (3) of the Agricultural Trade Development and Assistance Act of 1954, as amended, with funds administered by the Foreign Agricultural Service (7 U.S.C. 1704).</P> <P>(iv) Prepare crop and livestock estimates and administer reporting programs, including estimates of production, supply, price, and other aspects of the U.S. agricultural economy, collection of statistics, conduct of enumerative and objective measurement surveys, construction and maintenance of sampling frames, and related activities. Prepare reports of the Agricultural Statistics Board covering official state and national estimates (7 U.S.C. 476, 951, and 2204).</P> <P>(v) Take such security precautions as are necessary to prevent disclosure of crop or livestock report information prior to the scheduled issuance time approved in advance by the Secretary of Agriculture and take such actions as are necessary to avoid disclosure of confidential data or information supplied by any person, firm, partnership, corporation, or association (18 U.S.C. 1902, 1903, and 2072).</P> <P>(vi) Improve statistics in the Department; maintain liaison with OMB and other Federal agencies for coordination of statistical methods and techniques.</P> <P>(vii) Investigate and make findings as to the effect upon the production of <PRTPAGE P="179"/>food and upon the agricultural economy of any proposed action pending before the Administrator of the Environmental Protection Agency for presentation in the public interest, before said Administrator, other agencies, or before the courts.</P> <P>(viii) Review economic data and analyses used in speeches by Department personnel and in materials prepared for release through the press, radio, and television.</P> <P>(ix) Coordinate all economic analysis and review all decisions involving substantial economic policy implications.</P> <P>(x) Cooperate and work with national and international institutions and other persons throughout the world in the performance of agricultural research and extension activities to promote and support the development of a viable and sustainable global and agricultural system. Such work may be carried out by:</P> <P>(A) Exchanging research materials and results with the institutions or persons;</P> <P>(B) Engaging in joint or coordinated research;</P> <P>(C) Entering into cooperative arrangements with Departments and Ministries of Agriculture in other nations to conduct research, extension; and education activities (limited to arrangements either involving no exchange of funds or involving disbursements by the agency to the institutions of other nations), and then reporting these arrangements to the Secretary of Agriculture;</P> <P>(D) Stationing representatives at such institutions or organizations in foreign countries; or</P> <P>(E) Entering into agreements with land-grant colleges and universities, other organizations, institutions, or individuals with comparable goals, and with the concurrence of the Foreign Agricultural Service, USDA, international organizations (limited to agreements either involving no exchange of funds or involving disbursements by the agency to the cooperator), and then reporting these agreements to the Secretary of Agriculture (7 U.S.C. 3291(a)).</P> <P>(xi) Prepare for transmittal by the Secretary to the President and both Houses of Congress, an analytical report under section 5 of the Agricultural Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3504) concerning the effect on family farms and rural communities of holdings, acquisitions, and transfers of U.S. agricultural land by foreign persons.</P> <P>(xii) Enter into contracts, grants, or cooperative agreements to further research and statistical reporting programs in the food and agricultural sciences (7 U.S.C. 3318).</P> <P>(xiii) Enter into cost-reimbursable agreements relating to agricultural research and statistical reporting (7 U.S.C. 3319a).</P> <P>(xiv) Conduct surveys and analysis and publish reports relating to organic production, handling, distribution, retail, and trend studies (including consumer purchasing patterns); develop surveys and report statistical analysis on organically produced agricultural products (7 U.S.C. 5925c).</P> <P>(xv) Assist the Under Secretary for Marketing and Regulatory Programs with respect to Dairy Product Mandatory Reporting (7 U.S.C. 1637-1637b).</P> <P>(xvi) Include in each issuance of projections of net farm income an estimate of the net farm income earned by commercial producers in the United States that will in addition show the estimate of net farm income attributable to commercial producers of livestock, loan commodities, and agricultural commodities other than loan commodities (7 U.S.C. 7998).</P> <P>(xvii) Ensure that studies carried out by the Economic Research Service document the number, location, and economic contributions of socially disadvantaged farmers or ranchers in agricultural production (7 U.S.C. 2279(h)).</P> <P>(9) <E T="03">Related to immigration.</E> Serve as the designee of the Secretary pursuant to section 212(e) of the Immigration and Nationality Act, as amended, 8 U.S.C. 1182(e) and 22 CFR 514.44(c)).</P> <P>(10) <E T="03">Related to hazardous materials management.</E> (i) Serve on the USDA Hazardous Materials Policy Council.</P> <P>(ii) Recommend actions and policies that enable USDA agencies under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.<PRTPAGE P="180"/> </P> <P>(iii) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.</P> <P>(iv) Serve as a USDA Environmental Executive responsible for coordinating waste prevention; recycling; and the procurement, acquisition, and use of recycled products and environmentally preferable products, including biobased products, and services pursuant to Executive Order 13101 (dual assignment with the Assistant Secretary for Administration).</P> <P>(b) The following authorities are reserved to the Secretary of Agriculture:</P> <P>(1) <E T="03">Related to science and education.</E> (i) Withhold funds from States in accordance with section 1436 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3198).</P> <P>(ii) Reapportion funds under section 4 and apportion funds under section 5 of the Act of October 10, 1962 (16 U.S.C. 582a-3, 582a-5).</P> <P>(iii) Appoint an advisory committee under section 6 of the Act of October 10, 1962 (16 U.S.C. 582a-4).</P> <P>(iv) Final concurrence in Equal Employment Opportunity Programs within the cooperative extension programs submitted under part 18 of this title.</P> <P>(v) Approve selection of State directors of extension.</P> <P>(vi) Approve the memoranda of understanding between the land-grant universities and USDA related to cooperative extension programs.</P> <P>(2) <E T="03">Related to economic research and statistical reporting.</E> (i) Final approval and issuance of the monthly crop report (7 U.S.C. 411a).</P> <P>(ii) Final action on rules and regulations for the Agricultural Statistics Board.</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 62 FR 65593, Dec. 15, 1997; 64 FR 40735, July 28, 1999; 65 FR 5414, Feb. 4, 2000; 65 FR 12428, Mar. 9, 2000; 65 FR 31245, May 17, 2000; 68 FR 27437, May 20, 2003; 72 FR 12701, Mar. 19, 2007; 74 FR 3403, Jan. 21, 2009; 75 FR 43368, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.22</SECTNO> <SUBJECT>Under Secretary for Marketing and Regulatory Programs.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary to the Under Secretary for Marketing and Regulatory Programs:</P> <P>(1) <E T="03">Related to agricultural marketing.</E> (i) Exercise the functions of the Secretary of Agriculture contained in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), including payments to State Departments of Agriculture in connection with cooperative marketing service projects under section 204(b) (7 U.S.C. 1623(b)), but excepting matters otherwise assigned.</P> <P>(ii) Conduct marketing efficiency research and development activities directly applicable to the conduct of the Wholesale Market Development Program, specifically:</P> <P>(A) Studies of facilities and methods used in physical distribution of food and other farm products;</P> <P>(B) Studies designed to improve handling of all agricultural products as they are moved from farms to consumers; and</P> <P>(C) application of presently available scientific knowledge to the solution of practical problems encountered in the marketing of agricultural products (7 U.S.C. 1621-1627).</P> <P>(iii) Exercise the functions of the Secretary of Agriculture relating to the transportation activities contained in section 203(j) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1622(j)) as amended, but excepting matters otherwise assigned.</P> <P>(iv) Administer transportation activities under section 201 of the Agricultural Adjustment Act of 1938 (7 U.S.C. 1291).</P> <P>(v) Apply results of economic research and operations analysis to evaluate transportation issues and to recommend revisions of current procedures.</P> <P>(vi) Serve as the focal point for all Department transportation matters including development of policies and strategies.</P> <P>(vii) Cooperate with other Departmental agencies in the development and recommendation of policies for inland transportation of USDA and CCC-owned commodities in connection with USDA programs.<PRTPAGE P="181"/> </P> <P>(viii) Exercise the functions of the Secretary of Agriculture with respect to the following legislation:</P> <P>(A) U.S. Cotton Standards Act (7 U.S.C. 51-65);</P> <P>(B) Cotton futures provisions of the Internal Revenue Code of 1954 (26 U.S.C. 4854, 4862-4865, 4876, and 7263);</P> <P>(C) Cotton Statistics and Estimates Act, as amended (7 U.S.C. 471-476), except as otherwise assigned;</P> <P>(D) Naval Stores Act (7 U.S.C. 91-99);</P> <P>(E) Tobacco Inspection Act (7 U.S.C. 511-511q);</P> <P>(F) Wool Standard Act (7 U.S.C. 415b-415d);</P> <P>(G) Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601, 602, 608a-608e, 610, 612, 614, 624, 671-674);</P> <P>(H) Cotton Research and Promotion Act (7 U.S.C. 2101-2118), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(I) Export Apple and Pear Act (7 U.S.C. 581-590);</P> <P>(J) Export Grape and Plum Act (7 U.S.C. 591-599);</P> <P>(K) Titles I, II, IV, and V of the Federal Seed Act, as amended (7 U.S.C. 1551-1575, 1591-1611);</P> <P>(L) Perishable Agricultural Commodities Act (7 U.S.C. 499a-499s);</P> <P>(M) Produce Agency Act (7 U.S.C. 491-497);</P> <P>(N) Tobacco Seed and Plant Exportation Act (7 U.S.C. 516-517);</P> <P>(O) Tobacco Statistics Act (7 U.S.C. 501-508);</P> <P>(P) Section 401(a) of the Organic Act of 1944 (7 U.S.C. 415e);</P> <P>(Q) Agricultural Fair Practices Act (7 U.S.C. 2301-2306);</P> <P>(R) Wheat Research and Promotion Act (7 U.S.C. 1292 note), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(S) Plant Variety Protection Act (7 U.S.C. 2321-2331, 2351-2357, 2371-2372, 2401-2404, 2421-2427, 2441-2443, 2461-2463, 2481-2486, 2501-2504, 2531-2532, 2541-2545, 2561-2569, 2581-2583), except as delegated to the Judicial Officer;</P> <P>(T) Subtitle B of title I and section 301(4) of the Dairy and Tobacco Adjustment Act of 1983 (7 U.S.C. 4501-4513, 4514(4)), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(U) Potato Research and Promotion Act (7 U.S.C. 2611-2627), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(V) [Reserved]</P> <P>(W) Egg Research and Consumer Information Act (7 U.S.C. 2701-2718), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(X) Beef Research and Information Act, as amended (7 U.S.C. 2901-2918), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in §§ 2.16(a)(1)(xiv) and (a)(3)(x);</P> <P>(Y) Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 3401-3417), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in</P> <P>§ 2.16(a)(3)(x);</P> <P>(Z) Egg Products Inspection Act relating to the Shell Egg Surveillance Program, voluntary laboratory analyses of egg products, and the Voluntary Egg Grading Program (21 U.S.C. 1031-1056);</P> <P>(AA) Section 32 of the Act of August 24, 1935 (7 U.S.C. 612c), as supplemented by the Act of June 28, 1937 (15 U.S.C. 713c), and related legislation, except functions which are otherwise assigned relating to the domestic distribution and donation of agricultural commodities and products thereof following the procurement thereof;</P> <P>(BB) Procurement of agricultural commodities and other foods under section 6 of the National School Lunch Act of 1946, as amended (42 U.S.C. 1755);</P> <P>(CC) In carrying out the procurement functions in paragraphs (a)(1)(viii)(AA) and (BB) of this section, the Assistant Secretary for Marketing and Regulatory Programs shall, to the extent practicable, use the commodity procurement, handling, payment and related services of the Farm Service Agency;</P> <P>(DD) Act of May 23, 1980, regarding inspection of dairy products for export (21 U.S.C. 693);</P> <P>(EE) The Pork Promotion, Research and Consumer Information Act of 1985 (7 U.S.C. 4801-4819), except as delegated <PRTPAGE P="182"/>to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(FF) The Watermelon Research and Promotion Act (7 U.S.C. 4901-4916), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(GG) The Honey Research, Promotion, and Consumer Information Act (7 U.S.C. 4601-4612), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(HH) Subtitles B and C of the Dairy Production Stabilization Act of 1983, as amended (7 U.S.C. 4501-4513, 4531-4538);</P> <P>(II) The Floral Research and Consumer Information Act (7 U.S.C. 4301-4319), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(JJ) Section 213 of the Tobacco Adjustment Act of 1983, as amended (7 U.S.C. 511r);</P> <P>(KK) National Laboratory Accreditation Program (7 U.S.C. 138-138i) with respect to laboratories accredited for pesticide residue analysis in fruits and vegetables and other agricultural commodities, except those laboratories analyzing only meat and poultry products;</P> <P>(LL) Pecan Promotion and Research Act of 1990 (7 U.S.C. 6001-6013), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(MM) Mushroom Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6101-6112), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(NN) Lime Research, Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6201-6212), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(OO) Soybean Promotion, Research, and Consumer Information Act (7 U.S.C. 6301-6311), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(PP) Fluid Milk Promotion Act of 1990 (7 U.S.C. 6401-6417), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(QQ) Producer Research and Promotion Board Accountability (104 Stat. 3927);</P> <P>(RR) Consistency with International Obligations of the United States (7 U.S.C. 2278);</P> <P>(SS) Organic Foods Production Act of 1990 (7 U.S.C. 6501-6522), provided that the Administrator, Agricultural Marketing Service, will enter into agreements, as necessary, with the Administrator, Food Safety and Inspection Service, to provide inspection services;</P> <P>(TT) Pesticide Recordkeeping (7 U.S.C. 136i-1) with the provision that the Administrator, Agricultural Marketing Service, will enter into agreements, as necessary, with other Federal agencies;</P> <P>(UU) The International Carriage of Perishable Foodstuffs Act (7 U.S.C. 4401-4406);</P> <P>(VV) The Sheep Promotion, Research, and Information Act (7 U.S.C. 7101-7111), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x); and</P> <P>(WW) The Fresh Cut Flowers and Fresh Cut Greens Promotion and Consumer Information Act (7 U.S.C. 6801-6814), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x).</P> <P>(XX) Commodity Promotion and Evaluation (7 U.S.C. 7401);</P> <P>(YY) The Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7411-7425), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(ZZ) The Canola and Rapeseed Research, Promotion, and Consumer Information Act (7 U.S.C. 7441-7452), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(AAA) The National Kiwifruit Research, Promotion, and Consumer Information Act (7 U.S.C. 7461-7473), except as delegated to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x);</P> <P>(BBB) The Popcorn Promotion, Research, and Consumer Information Act (7 U.S.C. 7481-7491), except as delegated <PRTPAGE P="183"/>to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3)(x).</P> <P>(CCC) Farmers' Market Promotion Program (7 U.S.C. 2005).</P> <P>(DDD) National Organic Certification Cost-Share Program (7 U.S.C. 6523).</P> <P>(EEE) Exemption of Certified Organic Products from Assessment (7 U.S.C. 7401).</P> <P>(FFF) Country of Origin Labeling (7 U.S.C. 1638-1638(d)).</P> <P>(GGG) Hass Avocado Promotion, Research, and Consumer Information Act of 2000 (7 U.S.C. 7801-7813).</P> <P>(HHH) Section 7407 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 5925c), with respect to the collection and distribution of comprehensive reporting of prices relating to organically produced agricultural products.</P> <P>(III) Livestock Mandatory Reporting (7 U.S.C. 1635-1636i).</P> <P>(JJJ) Section 375 of the Consolidated Farm and Rural Development Act (7 U.S.C. 2008j).</P> <P>(KKK) Section 101 of the Specialty Crops Competitiveness Act of 2004 (7 U.S.C. 1621 note).</P> <P>(LLL) Section 1502 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8772).</P> <P>(MMM) Section 1509 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).</P> <P>(NNN) Section 10105 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 7655a).</P> <P>(OOO) Section 10107 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 1622b).</P> <P>(PPP) Section 10403 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 1622c).</P> <P>(ix) Furnish, on request, copies of programs, pamphlets, reports, or other publications for missions or programs as may otherwise be delegated or assigned to the Assistant Secretary for Marketing and Regulatory Programs, and charge user fees therefor, as authorized by section 1121 of the Agriculture and Food Act of 1981, as amended by section 1769 of the Food Security Act of 1985, 7 U.S.C. 2242a.</P> <P>(x) Collect, summarize, and publish data on the production, distribution, and stocks of sugar.</P> <P>(xi) Administer a program for Dairy Product Mandatory Reporting (7 U.S.C. 1637-1637b), with the assistance of the Under Secretary for Research, Education, and Economics.</P> <P>(xii) Assist the Under Secretary for Farm and Foreign Agricultural Services with implementing section 3205 of the Food, Conservation, and Energy Act of 2008 (22 U.S.C. 7112 note) regarding the Consultative Group to Eliminate the Use of Child Labor and Forced Labor in Imported Agricultural Products.</P> <P>(2) <E T="03">Related to animal and plant health inspection.</E> Exercise the functions of the Secretary of Agriculture under the following authorities:</P> <P>(i) Administer the Foreign Service personnel system for employees of the Animal and Plant Health Inspection Service in accordance with 22 U.S.C. 3922, except that this delegation does not include the authority to represent the Department of Agriculture in interagency consultations and negotiations with other foreign affairs agencies regarding joint regulations, nor the authority to approve joint regulations issued by the Department of State relating to administration of the Foreign Service;</P> <P>(ii) The Terminal Inspection Act, as amended (7 U.S.C. 166);</P> <P>(iii) The Honeybee Act, as amended (7 U.S.C. 281-286);</P> <P>(iv) Section 18 of the Federal Meat Inspection Act, as amended, as it pertains to the issuance of certificates of condition of live animals intended and offered for export (21 U.S.C. 618);</P> <P>(v) The responsibilities of the United States under the International Plant Protection Convention;</P> <P>(vi) (Laboratory) Animal Welfare Act, as amended (7 U.S.C. 2131-2159);</P> <P>(vii) Horse Protection Act (15 U.S.C. 1821-1831);</P> <P>(viii) 28 Hour Law, as amended (49 U.S.C. 80502);</P> <P>(ix) Export Animal Accommodation Act, as amended (46 U.S.C. 3901-3902);</P> <P>(x) Purebred Animal Duty Free Entry Provisions of Tariff Act of June 17, 1930, as amended (19 U.S.C. 1202, part 1, Item 100.01);</P> <P>(xi) Virus-Serum-Toxin Act (21 U.S.C. 151-159).<PRTPAGE P="184"/> </P> <P>(xii) Conduct diagnostic and related activities necessary to prevent, detect, control or eradicate foot-and-mouth disease and other foreign animal diseases (21 U.S.C. 113a);</P> <P>(xiii) The Agricultural Marketing Act of 1946, sections 203, 205, as amended (7 U.S.C. 1622, 1624), with respect to voluntary inspection and certification of animal products; inspection, testing, treatment, and certification of animals; and a program to investigate and develop solutions to the problems resulting from the use of sulfonamides in swine;</P> <P>(xiv) Talmadge Aiken Act (7 U.S.C. 450) with respect to cooperation with States in control and eradication of plant and animal diseases and pests;</P> <P>(xv) The Federal Noxious Weed Act of 1974, as amended (7 U.S.C. 2801 note; 2814).</P> <P>(xvi) The Endangered Species Act of 1973 (16 U.S.C. 1531-1544);</P> <P>(xvii) Executive Order 11987, 3 CFR, 1977 Comp., p. 116;</P> <P>(xviii) Section 101(d), Organic Act of 1944 (7 U.S.C. 430);</P> <P>(xix) The Swine Health Protection Act, as amended (7 U.S.C. 3801-3813);</P> <P>(xx) Lacey Act Amendments of 1981, as amended (16 U.S.C. 3371-3378);</P> <P>(xxi) Title III (and title IV to the extent that it relates to activities under title III,) of the Federal Seed Act, as amended (7 U.S.C. 1581-1610);</P> <P>(xxii) Authority to prescribe the amounts of commuted traveltime allowances and the circumstances under which such allowances may be paid to employees covered by the Act of August 28, 1950 (7 U.S.C. 2260);</P> <P>(xxiii) The Act of March 2, 1931 (7 U.S.C. 426-426b);</P> <P>(xxiv) The Act of December 22, 1987 (7 U.S.C. 426c);</P> <P>(xxv) Authority to work with developed and transitional countries on agricultural and related research and extension, with respect to animal and plant health, including providing technical assistance, training, and advice to persons from such countries engaged in such activities and the stationing of scientists of national and international institutions in such countries (7 U.S.C. 3291(a)(3));</P> <P>(xxvi) Authority to prescribe and collect fees under the Act of August 31, 1951, as amended (31 U.S.C. 9701), and sections 2508 and 2509 of the Food, Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C. 136, 136a), as amended;</P> <P>(xxvii) The provisions of 35 U.S.C. 156;</P> <P>(xviii) Enter into cooperative research and development agreements with industry, universities, and others; institute a cash award program to reward scientific, engineering, and technical personnel; award royalties to inventors; and retain and use royalty income (15 U.S.C. 3710a-3710c); and</P> <P>(xxix) The Alien Species Prevention and Enforcement Act of 1992 (39 U.S.C. 3015 note).</P> <P>(xxxx) Sections 901-905 of the Federal Agriculture Improvement and Reform Act of 1996 (7 U.S.C. 1901 note).</P> <P>(xxxi) Plant Protection Act (Title IV, Pub. L. 106-224, 114 Stat. 438, 7 U.S.C. 7701-7772).</P> <P>(xxxii) Animal Health Protection Act (7 U.S.C. 8301-8317).</P> <P>(xxxiii) Section 10504 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8318).</P> <P>(xxxiv) Title V of the Agricultural Risk Protection Act of 2000 (7 U.S.C. 2279e and 2279f).</P> <P>(xxxv) The responsibilities of the United States related to activities of the Office of International des Epizooties.</P> <P>(xxxvi) Implement the information disclosure authorities of section 1619(b)(3)(A) of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 8791(b)(3)(A)).</P> <P>(xxxvii) Section 7524 of the Food, Conservation, and Energy Act of 2008 (21 U.S.C. 113a note), except for the suspension, revocation, or other impairment of a permit issued under that section.</P> <P>(xxxviii) Section 10202 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 7761).</P> <P>(xxxix) Section 10204 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 7701 note).</P> <P>(xl) Section 14216 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).</P> <P>(3) <E T="03">Related to grain inspection, packers and stockyards.</E> (i) Exercise the authority of the Secretary of Agriculture contained in the U.S. Grain Standards Act, as amended (7 U.S.C. 71-87h).<PRTPAGE P="185"/> </P> <P>(ii) Exercise the functions of the Secretary of Agriculture contained in the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), relating to inspection and standardization activities relating to grain.</P> <P>(iii) Administer the Packers and Stockyards Act, as amended and supplemented (7 U.S.C. 181-229).</P> <P>(iv) Enforce provisions of the Consumer Credit Protection Act (15 U.S.C. 1601-1655, 1681-1681t) with respect to any activities subject to the Packers and Stockyards Act, 1921, as amended and supplemented.</P> <P>(v) Exercise the functions of the Secretary of Agriculture contained in section 1324 of the Food Security Act of 1985 (7 U.S.C. 1631).</P> <P>(vi) Administer responsibilities and functions assigned to the Secretary in section 11006 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 228 note), with respect to the Packers and Stockyards Act, 1921.</P> <P>(4) <E T="03">Related to committee management.</E> Establish and reestablish regional, State, and local advisory committees for activities under his or her authority. This authority may not be redelegated.</P> <P>(5) <E T="03">Related to defense and emergency preparedness.</E> (i) Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), concerning protection of livestock, poultry and crops and products thereof from biological and chemical warfare; and utilization or disposal of livestock and poultry exposed to radiation.</P> <P>(ii) Title II, Subtitles B and C, of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (7 U.S.C. 8401 note, 8401, 8411).</P> <P>(6) <E T="03">Related to biotechnology.</E> Coordinate the development and carrying out by Department agencies of all matters and functions pertaining to the Department's regulation of biotechnology, and act as liaison on all matters and functions pertaining to the regulation of biotechnology between agencies within the Department and between the Department and governmental and private organizations. Provided, that with respect to biotechnology matters affecting egg products, the Assistant Secretary shall consult and coordinate activities of Department agencies with the Under Secretary for Food Safety.</P> <P>(7) <E T="03">Related to environmental response.</E> With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;</P> <P>(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petitions for preliminary assessment of a release or threatened release;</P> <P>(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;</P> <P>(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;<PRTPAGE P="186"/> </P> <P>(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;</P> <P>(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;</P> <P>(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and</P> <P>(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.</P> <P>(8) <E T="03">Related to compliance with environmental laws.</E> With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the United States Environmental Protection Agency, or an administrative consent order or a consent judgment in an appropriate State, interstate, or local agency, containing a plan and schedule to achieve and maintain compliance with applicable pollution control standards established pursuant to the following:</P> <P>(i) Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as further amended by the Hazardous and Solid Waste Amendments, and the Federal Facility Compliance Act (42 U.S.C. 6901 <E T="03">et seq.</E>);</P> <P>(ii) Federal Water Pollution Prevention and Control Act, as amended (33 U.S.C. 1251 <E T="03">et seq.</E>);</P> <P>(iii) Safe Drinking Water Act, as amended (42 U.S.C. 300f <E T="03">et seq.</E>);</P> <P>(iv) Clean Air Act, as amended (42 U.S.C. 7401 <E T="03">et seq.</E>);</P> <P>(v) Noise Control Act of 1972, as amended (42 U.S.C. 4901 <E T="03">et seq.</E>);</P> <P>(vi) Toxic Substances Control Act, as amended (15 U.S.C. 2601 <E T="03">et seq.</E>);</P> <P>(vii) Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. 136 <E T="03">et seq.</E>); and</P> <P>(viii) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 9601 <E T="03">et seq.</E>).</P> <P>(9) <E T="03">Related to the Capper-Volstead Act.</E> Serve as a member of the Capper-Volstead Act Committee to identify cases of undue price enhancement by associations of producers and issue complaints requiring such associations to show cause why an order should not be made directing them to cease and desist from monopolization or restraint of trade (7 U.S.C. 292).</P> <P>(10) <E T="03">Related to hazardous materials management.</E> (i) Serve on the USDA Hazardous Materials Policy Council.</P> <P>(ii) Recommend actions and policies that enable USDA agencies under his or her authority to comply with the intent, purposes, and standards of environmental laws for pollution prevention, control, and abatement.</P> <P>(iii) Consult with the United States Environmental Protection Agency and other appropriate Federal agencies in developing pollution prevention, control, and abatement policies and programs relating to agencies under his or her authority.</P> <P>(b) The following authorities are reserved to the Secretary of Agriculture:</P> <P>(1) Relating to agricultural marketing.</P> <P>(i) Promulgation, with the Secretary of the Treasury of joint regulations under section 402(b) of the Federal Seed Act, as amended (7 U.S.C. 1592(b)).</P> <P>(ii) Appoint members of the National Dairy Promotion and Research Board established by section 113(b) of the <PRTPAGE P="187"/>Dairy and Tobacco Adjustment Act of 1983 (7 U.S.C. 4504(b)).</P> <P>(iii) Appoint members of the National Processor Advertising and Promotion Board established by section 1999H(b)(4) of the Fluid Milk Promotion Act of 1990 (7 U.S.C. 6407(b)).</P> <P>(iv) Appoint members of the Cotton Board established by section 7(a) of the Cotton Research and Promotion Act, as amended (7 U.S.C. 2106(a));</P> <P>(v) Appoint members of the Egg Board established by section 8(a) of the Egg Research and Consumer Information Act (7 U.S.C. 2707(a));</P> <P>(vi) Appoint members of the Floraboard established by section 1707(1) of the Floral Research and Consumer Information Act (7 U.S.C. 4306(1));</P> <P>(vii) Appoint members of the Honey Board established by section 7(c)(1) of the Honey Research, Promotion, and Consumer Information Act, as amended (7 U.S.C. 4606(c));</P> <P>(viii) Appoint members of the Lime Board established by section 1955(b)(2) of the Lime Research, Promotion, and Consumer Information Act of 1990 (7 U.S.C. 6204(b));</P> <P>(ix) Appoint members of the Mushroom Council established by section 1925(b)(1)(B) of the Mushroom Promotion, Research, and Consumer Information Act of 1990 (7 U.S.C. 6104(b));</P> <P>(x) Appoint members of the Pecan Marketing Board established by section 1910(b)(8)(E) of the Pecan Promotion and Research Act of 1990 (7 U.S.C. 6005(b));</P> <P>(xi) Appoint members of the National Potato Promotion Board established by section 308(a)(4) of the Potato Research and Promotion Act as amended (7 U.S.C. 2617(a));</P> <P>(xii) Appoint members of the National Watermelon Promotion Board established by section 1647(c) of the Watermelon Research and Promotion Act (7 U.S.C. 4906(c));</P> <P>(xiii) Appoint members of the PromoFlor Council established by section 5(b) of the Fresh Cut Flowers and Fresh Cut Greens Act of 1993 (7 U.S.C. 6804(b));</P> <P>(xiv) Appoint members of the National Kiwifruit Board established by section 555(c)(1) of the National Kiwifruit Research, Promotion, and Consumer Information Act (7 U.S.C. 7464(c));</P> <P>(xv) Appoint members of Popcorn Board established by section 575(b)(1) of the Popcorn Promotion, Research, and Consumer Information Act (7 U.S.C. 7484(b));</P> <P>(xvi) Appoint members of the Wheat Industry Council established by section 1706(a) of the Wheat and Wheat Foods Research and Nutrition Education Act (7 U.S.C. 3405(a));</P> <P>(xvii) Appoint members of the Cattlemen's Beef Promotion and Research Board established by section 5(1) of the Beef Research and Information Act as amended (7 U.S.C. 2904(1));</P> <P>(xviii) Appoint members of the National Pork Board established by section 1619(a)(1) of the Pork Promotion, Research, and Consumer Information Act of 1985 (7 U.S.C. 4808(a));</P> <P>(xix) Appoint members of the United Soybean Board established by section 1969(b)(1) of the Soybean Promotion, Research, and Consumer Information Act (7 U.S.C. 6304(b));</P> <P>(xx) Appoint members of the National Sheep Promotion, Research, and Information Board established by section 5(b) of the Sheep Promotion, Research, and Information Act (7 U.S.C. 7104(b)(1);</P> <P>(xxi) Appoint members of the National Canola and Rapeseed Board established by section 535(b)(1) of the Canola and Rapeseed Research, Promotion, and Consumer Information Act (7 U.S.C. 7444(b));</P> <P>(xxii) Appoint members of boards established by section 515(b)(2)(A) of the Commodity Promotion, Research, and Information Act of 1996 (7 U.S.C. 7414(b)).</P> <P>(2) <E T="03">Related to animal and plant health inspection.</E> (i) Determination that an emergency or extraordinary emergency exists under the Animal Health Protection Act (7 U.S.C. 8306, 8316).</P> <P>(ii) Determination that an emergency or extraordinary emergency exists under the Plant Protection Act (7 U.S.C. 7715, 7772).</P> <P>(iii) Approval of requests for apportionment of reserves for the control of outbreaks of insects, plant diseases, and animal diseases to the extent necessary to meet emergency conditions (31 U.S.C. 1512).<PRTPAGE P="188"/> </P> <P>(iv) The suspension, revocation, or other impairment of a permit issued under section 7524 of the Food, Conservation, and Energy Act of 2008 (21 U.S.C. 113a note).</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 25776, May 23, 1996; 61 FR 68541, Dec. 30, 1996; 62 FR 40254, July 28, 1997; 65 FR 12428, Mar. 9, 2000; 65 FR 49471, Aug. 14, 2000; 68 FR 27439, May 20, 2003; 70 FR 55706, Sept. 23, 2005; 74 FR 3405, Jan. 21, 2009]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>At 70 FR 55706, Sept. 23, 2005, the Department of Agriculture published a document in the <E T="04">Federal Register,</E> attempting to amend § 2.22, by revising paragraph (a)(2)(xxxi). However, because of inaccurate amendatory language, this amendment could not be incorporated. For the convenience of the user, the language at 70 FR 55706 is set forth as follows:</P> <REVTXT> <SECTION> <SECTNO>§ 2.22</SECTNO> <SUBJECT>Under Secretary for Marketing and Regulatory Programs.</SUBJECT> <P>(a) * * *</P> <P>(2) * * *<STARS/> </P> <P>(xxxii) Plant Protection Act, as amended (7 U.S.C. 7701-7786).<STARS/> </P> </SECTION> <SECTION> <SECTNO>§ 2.23</SECTNO> <SUBJECT>Assistant Secretary for Congressional Relations.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Assistant Secretary for Congressional Relations:</P> <P>(1) <E T="03">Related to congressional affairs.</E> (i) Exercise responsibility for coordination of all congressional matters in the Department.</P> <P>(ii) Maintain liaison with the Congress and the White House on legislative Matters of concern to the Department.</P> <P>(2) <E T="03">Related to intergovernmental affairs.</E> (i) Coordinate all programs involving intergovernmental affairs including State and local government relations and liaison with:</P> <P>(A) National Association of State Departments of Agriculture;</P> <P>(B) Office of Intergovernmental Relations (Office of Vice President);</P> <P>(C) Advisory Commission on Intergovernmental Relations;</P> <P>(D) Council of State Governments;</P> <P>(E) National Governors Conference;</P> <P>(F) National Association of Counties;</P> <P>(G) National League of Cities;</P> <P>(H) International City Managers Association;</P> <P>(I) U.S. Conference of Mayors; and</P> <P>(J) Such other State and Federal agencies, departments and organizations as are necessary in carrying out the responsibilities of this office.</P> <P>(ii) Maintain oversight of the activities of USDA representatives to the 10 Federal Regional councils.</P> <P>(iii) Serve as the USDA contact with the Advisory Commission on Intergovernmental Relations for implementation of OMB Circular A-85 to provide advance notification to state and local governments of proposed changes in Department programs that affect such governments.</P> <P>(iv) Act as the department representative for Federal executive board matters.</P> <P>(v) Serve as the official with the principal responsibility for the implementation of Executive Order 13175, including consultation and collaboration with tribal officials, and coordinate the Department's programs involving assistance to American Indians and Alaska Natives.</P> <P>(b) [Reserved]</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27439, May 20, 2003; 69 FR 34252, June 21, 2004]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.24</SECTNO> <SUBJECT>Assistant Secretary for Administration.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Assistant Secretary for Administration:</P> <P>(1) <E T="03">Related to civil rights.</E> (i) Provide overall leadership, coordination, and direction for the Department's programs of civil rights, including program delivery, compliance, and equal employment opportunity, with emphasis on the following:</P> <P>(A) Actions to enforce Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, prohibiting discrimination in federally assisted programs.</P> <P>(B) Actions to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, prohibiting discrimination in Federal employment.</P> <P>(C) Actions to enforce Title IX of the Education Amendments of 1972, 20 <PRTPAGE P="189"/>U.S.C. 1681, <E T="03">et seq.,</E> prohibiting discrimination on the basis of sex in USDA education programs and activities funded by the Department.</P> <P>(D) Actions to enforce the Age Discrimination Act of 1975, 42 U.S.C. 6102, prohibiting discrimination on the basis of age in USDA programs and activities funded by the Department.</P> <P>(E) Actions to enforce section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794, prohibiting discrimination against individuals with disabilities in USDA programs and activities funded or conducted by the Department.</P> <P>(F) Actions to enforce related Executive Orders, Congressional mandates, and other laws, rules, and regulations, as appropriate.</P> <P>(ii) Evaluate Departmental agency programs, activities, and impact statements for civil rights concerns.</P> <P>(iii) Analyze and evaluate program participation data and equal employment opportunity data.</P> <P>(iv) Provide leadership and coordinate Departmentwide programs of public notification regarding the availability of USDA programs on a nondiscriminatory basis.</P> <P>(v) Coordinate with the Department of Justice on matters relating to title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), title IX of the Education Amendments of 1972 (20 U.S.C. 1681, <E T="03">et seq.</E>), and section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), except those matters in litigation, including administrative enforcement actions, which shall be coordinated by the Office of the General Counsel.</P> <P>(vi) Coordinate with the Department of Health and Human Services on matters relating to the Age Discrimination Act of 1975, 42 U.S.C. 6102, except those matters in litigation, including administrative enforcement actions, which shall be coordinated by the Office of the General Counsel.</P> <P>(vii) Order proceedings and hearings in the Department pursuant to §§ 15.9(e) and 15.86 of this title which concern consolidated or joint hearings within the Department or with other Federal departments and agencies.</P> <P>(viii) Order proceedings and hearings in the Department pursuant to § 15.8 of this title after the program agency has advised the applicant or recipient of his or her failure to comply and has determined that compliance cannot be secured by voluntary means.</P> <P>(ix) Issue orders to give a notice of hearing or the opportunity to request a hearing pursuant to part 15 of this title; arrange for the designation of an Administrative Law Judge to preside over any such hearing; and determine whether the Administrative Law Judge so designated will make an initial decision or certify the record to the Secretary of Agriculture with his or her recommended findings and proposed action.</P> <P>(x) Authorize the taking of action pursuant to § 15.8(a) of this title relating to compliance by “other means authorized by law.”</P> <P>(xi) Make determinations required by § 15.8(d) of this title that compliance cannot be secured by voluntary means, and then take action, as appropriate.</P> <P>(xii) Make determinations that program complaint investigations performed under § 15.6 of this title establish a proper basis for findings of discrimination, and that actions taken to correct such findings are adequate.</P> <P>(xiii) Investigate (or make determinations that program complaint investigations establish a proper basis for final determinations), make final determinations on both the merits and required corrective action, and, where applicable, make recommendations to the Secretary that relief be granted under 7 U.S.C. 6998(d) notwithstanding the finality of National Appeals Division decisions, as to complaints filed under parts 15a, 15b, and 15d of this title.</P> <P>(xiv) Conduct civil rights investigations and compliance reviews Departmentwide.</P> <P>(xv) Develop regulations, plans, and procedures necessary to carry out the Department's civil rights programs, including the development, implementation, and coordination of Action Plans.</P> <P>(xvi) <E T="03">Related to Equal Employment Opportunity (EEO).</E> Designate the Department's Director of Equal Employment Opportunity with authority:</P> <P>(A) To perform the functions and responsibilities of that position under 29 CFR part 1614, including the authority:<PRTPAGE P="190"/> </P> <P>(<E T="03">1</E>) To make changes in programs and procedures designed to eliminate discriminatory practices and improve the Department's EEO program.</P> <P>(<E T="03">2</E>) To provide EEO services for managers and employees.</P> <P>(<E T="03">3</E>) To make final agency decisions on EEO complaints by Department employees or applicants for employment and order such corrective measures in such complaints as may be considered necessary, including the recommendation for such disciplinary action as is warranted when an employee has been found to have engaged in a discriminatory practice.</P> <P>(B) Administer the Department's EEO program.</P> <P>(C) Oversee and manage the EEO counseling function for the Department.</P> <P>(D) Process formal EEO complaints by employees or applicants for employment.</P> <P>(E) Investigate Department EEO complaints and make final decisions on EEO complaints, except in those cases where the Assistant Secretary for Administration (or a person in the immediate office of the Assistant Secretary for Administration) or the Assistant Secretary for Civil Rights (or a person directly supervised by the Assistant Secretary for Civil Rights) has participated in the events that gave rise to the matter.</P> <P>(F) Order such corrective measures in EEO complaints as may be considered necessary, including the recommendation for such disciplinary action as is warranted when an employee has been found to have engaged in a discriminatory practice.</P> <P>(G) Provide liaison on EEO matters concerning complaints and appeals with the Department agencies and Department employees.</P> <P>(H) Conduct EEO evaluations and develop policy regarding EEO programs.</P> <P>(I) Provide liaison on EEO programs and activities with the Equal Employment Opportunity Commission and the Office of Personnel Management.</P> <P>(xvii) Administer the discrimination appeals and complaints program for the Department, including all formal individual or group appeals, where the system provides for an avenue of redress to the Department level, Equal Employment Opportunity Commission, or other outside authority.</P> <P>(xviii) Make final determinations, or enter into settlement agreements, on discrimination complaints in federally conducted programs subject to the Equal Credit Opportunity Act. This delegation includes the authority to make compensatory damage awards whether pursuant to a final determination or in a settlement agreement under the authority of the Equal Credit Opportunity Act and the authority to obligate agency funds, including Commodity Credit Corporation and Federal Crop Insurance Corporation funds to satisfy such an award.</P> <P>(xix) Make final determinations in proceedings under part 15f of this title where review of an administrative law judge decision is undertaken.</P> <P>(xx) Provide civil rights and equal employment opportunity support services, with authority to take actions required by law or regulation to perform such services for:</P> <P>(A) The Secretary of Agriculture.</P> <P>(B) The general officers of the Department.</P> <P>(C) The offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(D) Any other offices or agencies of the Department as may be agreed.</P> <P>(xxi) Redelegate, as appropriate, any authority delegated under paragraph (a)(1) to general officers of the Department and heads of Departmental agencies.</P> <P>(2) <E T="03">Related to information technology and information resources.</E> </P> <P>(i) [Reserved]</P> <P>(ii) Oversee all information technology and information resource management activities relating to the programs and operations of the Department and component agencies. This oversight includes approving information technology investments, monitoring and evaluating the performance of those investments and information resource management activities, approval of all architectures and components thereto and determining whether to continue, modify, or terminate an information technology program or project.</P> <P>(iii) Provide advice and other assistance to the Secretary and other senior <PRTPAGE P="191"/>management personnel to ensure that information technology is acquired and managed for the Department consistent with chapter 35 of title 44, United States Code (Coordination of Federal Information Policy).</P> <P>(iv) Develop, implement, and maintain a sound and integrated Department-wide information technology architecture.</P> <P>(v) Promote the effective and efficient design and operation of all major information resources management processes for the Department, including improvements to work processes of the Department.</P> <P>(vi) Approve the acquisition or procurement of information technology resources by, or on behalf of, any Department agency or office.</P> <P>(vii) Collaborate with Department procurement personnel with respect to information technology acquisition strategy and policy.</P> <P>(viii) Designate the Major Information Technology Systems Executive in USDA to integrate and unify the management process for the Department's major information technology system acquisitions and to monitor implementation of the policies and practices set forth in Office of Management and Budget (OMB) Circular No. A-109, Major Systems Acquisitions, for information technology. This includes the authority to:</P> <P>(A) Ensure that OMB Circular No. A-109 is effectively implemented for information technology systems in the Department and that the management objectives of the Circular are realized.</P> <P>(B) Review the program management of each major information technology system acquisition.</P> <P>(C) Approve the appointment of the program manager for each major information technology systems acquisition.</P> <P>(D) Designate any Departmental information technology acquisition as a major system acquisition under OMB Circular No. A-109.</P> <P>(ix) On an annual basis:</P> <P>(A) Assess Department-wide personnel requirements regarding knowledge and skill in information resources management, and the adequacy of such requirements, to achieve the performance goals established for information resources management.</P> <P>(B) Develop strategies and specific plans for hiring, training, and professional development at the executive and management level to meet personnel information technology personnel requirements.</P> <P>(C) Report to the Secretary on progress made in improving information resources management capability.</P> <P>(x) Designate the senior official to carry out the responsibilities of the Department under chapter 35 of title 44, United States Code (Coordination of Federal Information Policy), including:</P> <P>(A) Ensure that the information policies, principles, standards, guidelines, rules and regulations prescribed by OMB are appropriately implemented within the Department.</P> <P>(B) Review proposed Department reporting and record keeping requirements, including those contained in rules and regulations, to ensure that they impose the minimum burden upon the public and have practical utility for the Department.</P> <P>(C) Develop and implement procedures for assessing the burden to the public and costs to the Department of information requirements contained in proposed legislation affecting Department programs.</P> <P>(D) Assist OMB in the performance of its functions assigned under the E-Government Act of 2002 (Pub. L. 107-347), including review of Department and Agency activities for compliance.</P> <P>(E) Assist OMB in the performance of its functions assigned under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), including review of Department and Agency activities for compliance.</P> <P>(xi) The Assistant Secretary for Administration is also responsible for the following:</P> <P>(A) Provide Department-wide guidance and direction in planning, developing, documenting, and managing applications software projects in accordance with Federal and Department information processing standards, procedures, and guidelines.</P> <P>(B) Provide Department-wide guidance and direction in all aspects of information technology, including: Feasibility studies; economic analyses; <PRTPAGE P="192"/>systems design; acquisition of equipment, software, services, and timesharing arrangements; systems installation; systems performance and capacity evaluation; information technology investment governance; cybersecurity; and privacy. Monitor these activities for agencies' major systems development efforts to assure effective and economic use of resources and compatibility among systems of various agencies when required.</P> <P>(C) Manage the Enterprise Data Centers, including setting rates to recover the cost of goods and services within approved policy and funding levels; and oversee the delivery of Enterprise Data Center goods and services, with authority to take actions required by law or regulation to perform such services for:</P> <P>(<E T="03">1</E>) The Secretary of Agriculture.</P> <P>(<E T="03">2</E>) The general officers of the Department.</P> <P>(<E T="03">3</E>) The offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(<E T="03">4</E>) Any other offices or agencies of the Department as may be agreed.</P> <P>(D) Manage a comprehensive set of end user office automation services, including setting rates to recover the cost of goods and services within approved policy and funding levels; and oversee the delivery of goods and services associated with end user office automation services, with authority to take actions required by law or regulation to perform such services for any offices or agencies of the Department as may be agreed (except for the Office of the Secretary, the general officers of the Department, and the agencies and offices reporting to the Assistant Secretary for Administration, as specified in § 2.24(a)(11)(i)).</P> <P>(E) Manage the Agricultural Security Operations Center to enable the Department to effectively monitor, detect, analyze, protect, report, and respond against known cyber vulnerabilities, attacks, and exploitations.</P> <P>(F) Manage the Department's Certification and Accreditation process to ensure the Department and agencies have successfully conducted periodic risk assessments of its systems; grant the authority to operate for systems that have successfully completed the Certification and Accreditation process; and rescind or suspend the authority to operate for systems subject to repeated and/or significant security issues.</P> <P>(G) Ensure that OMB Circular No. A-16, Coordination of Geographic Information and Related Spatial Data Activities, is effectively implemented in the Department and that the management objectives of the Circular are realized; and provide Department-wide guidance and direction in governing, developing, implementing, and maintaining a sound and integrated geospatial architecture.</P> <P>(H) Review and evaluate information technology activities related to delegated functions to assure that they conform to all applicable Federal and Department information technology management policies, plans, standards, procedures, and guidelines.</P> <P>(I) Design, develop, implement, and revise systems, processes, work methods, and techniques to improve the management and operational effectiveness of information resources.</P> <P>(J) Administer the Departmental records, forms, reports and Directives Management Programs.</P> <P>(K) Manage all aspects of the USDA Telecommunications Program including planning, development, acquisition, and use of equipment and systems for voice, data, and communications, excluding the actual procurement of data transmission equipment, software, maintenance, and related supplies.</P> <P>(L) Manage Departmental telecommunications contracts.</P> <P>(M) Provide technical advice throughout the Department.</P> <P>(N) Implement a program for applying information resources management technology to improve productivity in the Department.</P> <P>(O) Plan, develop, install, and operate computer-based systems for message exchange, scheduling, computer conferencing, televideo technologies, and other applications of office automation technology which can be commonly used by multiple Department agencies and offices.</P> <P>(P) Represent the Department in contacts with the Government Accountability Office, the General Services Administration, OMB, the National Institute of Standards and Technology, and <PRTPAGE P="193"/>other organizations or agencies on matters related to delegated responsibilities.</P> <P>(xii) Implement policies established pursuant to paragraphs (a)(2)(ii) through (a)(2)(xi) of this section by:</P> <P>(A) Disposing of information technology that is acquired by a Department agency in violation of procedures or standards for the Department Information Systems Technology Architecture.</P> <P>(B) Establishing information technology and information resources management performance standards for agency Chief Information Officers, information resources managers, and project managers to be used in the performance appraisal process.</P> <P>(C) Approving the selection of agency Chief Information Officers and agency major information technology system project managers in accordance with OMB policies.</P> <P>(D) Providing recommendations to Agency Heads for the removal or replacement of information technology project managers, when, in the opinion of the Assistant Secretary for Administration, applicable laws and policies are being violated, or, when the cost, schedule, or performance of an information technology project would indicate management deficiencies.</P> <P>(E) Withdrawing agencies' authority to obligate funds on Information Technology programs or projects if the agency violates the Assistant Secretary for Administration policies, standards, or Department Information Systems Technology Architecture.</P> <P>(F) Requiring agencies to validate and verify major information technology systems through the use of an existing contract for such purpose designated by the Assistant Secretary for Administration.</P> <P>(G) Requiring approval by the Assistant Secretary for Administration of any proposed acquisition of information technology (whether through the award or modification of a procurement contract, a cooperative or other agreement with a non-Federal party, or an interagency agreement) to ensure technical conformance to the Department technical architecture.</P> <P>(H) Providing guidance to USDA regarding implementation of Section 508 of the Rehabilitation Act, as well as on-going consultative assistance regarding information technology accessibility, and reviewing progress made toward achieving information technology accessibility for USDA employees and individuals with disabilities.</P> <P>(xiii) <E T="03">Related to the Privacy Act.</E> Appoint a Department Privacy Act Officer; oversee general officers and agency heads in the development and implementation of policies issued pursuant to the provisions of the Privacy Act, 5 U.S.C. 552a; and provide consultation and guidance regarding those policies.</P> <P>(xiv) <E T="03">Related to the Freedom of Information Act.</E> Designate the Chief Freedom of Information Act Officer for the Department; oversee general officers and agency heads in efficient and appropriate compliance with the provisions of the Freedom of Information Act (5 U.S.C. 552); monitor implementation of 5 U.S.C. 552 throughout the agency and keep the Secretary, the General Counsel, and the Attorney General informed regarding agency performance in its implementation; recommend to the Secretary necessary adjustments to agency practices, policies, personnel, and funding to improve implementation of 5 U.S.C. 552; review and report to the Attorney General, through the Secretary, as the Attorney General may direct; and facilitate public understanding of the purposes of the statutory exemptions contained in 5 U.S.C. 552.</P> <P>(3) <E T="03">Related to financial systems and budget formulation and execution.</E> </P> <P>(i) [Reserved]</P> <P>(ii) Oversee all financial management activities relating to the programs and operations of the Department and component agencies.</P> <P>(iii) Develop and maintain an integrated accounting and financial system for the Department and component agencies, including financial reporting and internal controls, which—</P> <P>(A) Complies with applicable accounting principles, standards, and requirements, and internal control standards;</P> <P>(B) Complies with such policies and requirements as may be prescribed by the Director of the Office of Management and Budget (OMB);<PRTPAGE P="194"/> </P> <P>(C) Complies with any other requirements applicable to such systems; and</P> <P>(D) Provides for complete, reliable, consistent, and timely information which is prepared on a uniform basis and which is responsive to the financial information needs of Department management and for the development and reporting of cost information, the integration of accounting and budgeting information, and the systematic measurement of performance.</P> <P>(iv) Make recommendations to the Secretary regarding the selection of the Deputy Chief Financial Officer of the Department, and selection of principal financial officers of component agencies of the Department.</P> <P>(v) Direct, manage, and provide policy guidance and oversight of Department financial management personnel, activities, and operations, including:</P> <P>(A) Prepare and annually revise a Departmental plan to—</P> <P>(<E T="03">1</E>) Implement the 5-year financial management plan prepared by the Director of OMB under 31 U.S.C. 3512(a)(3).</P> <P>(<E T="03">2</E>) Comply with the requirements established for agency financial statements under 31 U.S.C. 3515 and with the requirements for audits of Department financial statements established in 31 U.S.C. 3521(e) and (f).</P> <P>(B) Develop Departmental financial management budgets, including the oversight and recommendation of approval of component agency financial management budgets.</P> <P>(C) Recruit, select, and train personnel to carry out Departmental financial management functions.</P> <P>(D) Approve and manage Departmental, and approve component agency, financial management systems design or enhancement projects.</P> <P>(E) Implement and approve Departmental, and approve component agency, asset management systems, including systems for cash management, credit management, debt collection, and property and inventory management and control.</P> <P>(vi) Prepare and transmit, by not later than 60 days after the submission of the audit report required by 31 U.S.C. 3521(f), an annual report to the Secretary and the Director of OMB, which shall include:</P> <P>(A) A description and analysis of the status of financial management of the Department.</P> <P>(B) The annual financial statements prepared under 31 U.S.C. 3521.</P> <P>(C) The audit report transmitted to the Secretary under 31 U.S.C. 3521.</P> <P>(D) A summary of the reports on internal accounting and administrative control systems submitted to the President and the Congress under the amendments made by the Federal Managers' Financial Integrity Act of 1982 (31 U.S.C. 1113, 3512).</P> <P>(E) Other information the Secretary considers appropriate to inform fully the President and the Congress concerning the financial management of the Department.</P> <P>(vii) Monitor the financial execution of the budget of the Department in relation to projected and actual expenditures, and prepare and submit to the Secretary timely performance reports.</P> <P>(viii) Review, on a biennial basis, the fees, royalties, rent, and other charges imposed by the Department for services and things of value it produces, and make recommendations on revising those charges to reflect costs incurred by the Department in providing those services and things of value.</P> <P>(ix) Access all records, reports, audits, reviews, documents, papers, recommendations, or other material that are the property of the Department or that are available to the Department, and that relate to programs and operations with respect to which the Chief Financial Officer has responsibilities, except that this grant allows no access greater than that permitted under any other law to records, reports, audits, reviews, documents, papers, recommendations, or other material of the Office of Inspector General.</P> <P>(x) Request such information or assistance as may be necessary for carrying out the duties and responsibilities granted by the Chief Financial Officers Act of 1990 (Pub. L. 101-576), from any Federal, State, or local governmental entity.</P> <P>(xi) To the extent and in such amounts as may be provided in advance by appropriations acts, enter into contracts and other arrangements with public agencies and with private persons for the preparation of financial <PRTPAGE P="195"/>statements, studies, analyses, and other services, and make such payments as may be necessary to carry out the duties and prerogatives of the Chief Financial Officer.</P> <P>(xii) Designate the Department's Comptroller of the Department Working Capital Fund.</P> <P>(xiii) Establish Departmental policies, standards, techniques, and procedures applicable to all USDA agencies for the following areas:</P> <P>(A) Development, maintenance, review and approval of all departmental, and review and approval of component agency, internal control, fiscal, financial management and accounting systems including the financial aspects of payment management and property systems.</P> <P>(B) Selection, standardization, and simplification of program delivery processes utilizing grants, cooperative agreements and other forms of Federal assistance.</P> <P>(C) Review and approval of Federal assistance, internal control, fiscal, accounting and financial management regulations and instructions proposed or issued by USDA agencies for conformity with Departmental requirements.</P> <P>(D) Section 5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 862) as it relates to grants, loans, and licenses.</P> <P>(xiv) Establish policies related to the Department Working Capital Fund.</P> <P>(xv) Approve regulations, procedures and rates for goods and services financed through the Department Working Capital Fund which will impact the financial administration of the Fund.</P> <P>(xvi) Exercise responsibility and authority for operating USDA's financial and subsidiary management systems and related administrative systems including: Departmentwide payroll and personnel information systems, statistics, administrative payments, billings and collections, and related reporting systems that are either requested by the agencies or required by the Department.</P> <P>(xvii) Manage the National Finance Center (NFC).</P> <P>(xviii) Provide management support services for the NFC, and by agreement with agency heads concerned, provide such services for other USDA tenants housed in the same facility. As used herein, such management support services shall include:</P> <P>(A) Personnel services, as listed in § 2.24(a)(4)(x), and organizational support services, with authority to take actions required by law or regulation to perform such services.</P> <P>(B) Procurement, property management, space management, communications, messenger, paperwork management, and related administrative services, with authority to take actions required by law or regulation to perform such services.</P> <P>(xix) Exercise responsibility and authority for all matters related to the Department's accounting and financial operations including such activities as:</P> <P>(A) Financial administration, including accounting and related activities.</P> <P>(B) Reviewing financial aspects of agency operations and proposals.</P> <P>(C) Furnishing consulting services to agencies to assist them in developing and maintaining accounting and financial management systems and internal controls, and for other purposes consistent with delegations in paragraph (a)(3)(xiii) of this section.</P> <P>(D) Reviewing and monitoring agency implementation of Federal assistance policies.</P> <P>(E) Reviewing and approving agencies' accounting systems documentation including related development plans, activities, and controls.</P> <P>(F) Monitoring agencies' progress in developing and revising accounting and financial management systems and internal controls.</P> <P>(G) Evaluating agencies' financial systems to determine the effectiveness of procedures employed, compliance with regulations, and the appropriateness of policies and practices.</P> <P>(H) Promulgation of Department schedule of fees and charges for reproductions, furnishing of copies and making searches for official records pursuant to the Freedom of Information Act, 5 U.S.C. 552.</P> <P>(I) Monitoring USDA implementation of section 5301 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 862) as it relates to grants, loans, and licenses.</P> <P>(xx) Establish Department and approving component agency programs, <PRTPAGE P="196"/>policies, standards, systems, techniques and procedures to improve the management and operational efficiency and effectiveness of the USDA including:</P> <P>(A) Increased use of operations research and management science in the areas of productivity and management.</P> <P>(B) All activities financed through the Department Working Capital Fund.</P> <P>(xxi) Develop Departmental policies, standards, techniques, and procedures for the conduct of reviews and analysis of the utilization of the resources of State and local governments, other Federal agencies and of the private sector in domestic program operations.</P> <P>(xxii) Represent the Department in contacts with OMB, General Services Administration, GAO, Department of the Treasury, Office of Personnel Management, Department of Health and Human Services, Department of Labor, Environmental Protection Agency, Department of Commerce, Congress of the United States, State and local governments, universities, and other public and private sector individuals, organizations or agencies on matters related to assigned responsibilities.</P> <P>(xxiii) Establish policies related to travel by USDA employees.</P> <P>(xxiv) Exercise responsibility for coordinating and overseeing the implementation of the Government Performance and Results Act of 1993, Public Law 103-62, at the Department.</P> <P>(xxv) Provide budget, accounting, fiscal and related financial management services, with authority to take action required by law or regulation to provide such services for Working Capital Funds and general appropriated and trust funds for:</P> <P>(A) The Secretary of Agriculture.</P> <P>(B) The general officers of the Department, except the Inspector General.</P> <P>(C) The offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(D) Any other offices and agencies of the Department as may be agreed.</P> <P>(xxvi) Develop, promulgate, and coordinate Department-wide policy concerning nonprocurement debarment and suspension.</P> <P>(xxvii) Prepare and submit to Congress reports on conferences sponsored or held by the Department or attended by employees of the Department (7 U.S.C. 2255b).</P> <P>(xxviii) <E T="03">Related to budget formulation and program analysis.</E> (A) Designate the Department's Budget Officer and exercise general responsibility and authority for all matters related to the Department's budgeting affairs including:</P> <P>(<E T="03">1</E>) Resource administration, including all phases of the acquisition, and distribution of funds and staff years.</P> <P>(<E T="03">2</E>) Legislative and regulatory reporting and related activities.</P> <P>(B) Provide staff assistance for the Secretary, general officers, and other Department and agency officials.</P> <P>(C) Formulate and promulgate Departmental budgetary, legislative and regulatory policies and procedures.</P> <P>(D) Represent the Department in contacts with OMB, the GAO, the Department of the Treasury, Congressional Committees on Appropriations, and other organizations and agencies on matters related to his or her responsibility.</P> <P>(E) Coordinate and/or conduct policy and program analyses on agency operations and proposals to assist the Secretary, general officers and other Department and agency officials in formulating and implementing USDA policies and programs.</P> <P>(F) Review and analyze legislation, regulations, and policy options to determine their impact on USDA programs and policy objectives and on the Department's budget.</P> <P>(G) Monitor ongoing studies with significant program or policy implications.</P> <P>(4) <E T="03">Related to human resources management.</E> (i) Formulate and issue Department policy, standards, rules, and regulations relating to human resources management.</P> <P>(ii) Provide human resources management procedural guidance and operational instructions.</P> <P>(iii) Set standards for human resources data systems.</P> <P>(iv) Inspect and evaluate human resources management operations and issue instructions or take direct action to insure conformity with appropriate laws, Executive Orders, Office of Personnel Management (OPM) rules and <PRTPAGE P="197"/>regulations, and other appropriate rules and regulations.</P> <P>(v) Exercise final authority in all human resources matters, including individual cases, that involve the jurisdiction of more than one General Officer or agency head, or otherwise as deemed appropriate.</P> <P>(vi) Receive, review, and recommend action on all requests for the Secretary's approval in human resources matters.</P> <P>(vii) Authorize and make final decisions on adverse actions, except in those cases where the Assistant Secretary for Administration has participated.</P> <P>(viii) Represent the Department in human resources matters in all contacts outside the Department.</P> <P>(ix) Exercise specific authorities in the following operational matters:</P> <P>(A) Waive repayment of training expenses where an employee fails to fulfill service agreement.</P> <P>(B) Establish or change standards and plans for awards to private citizens.</P> <P>(C) Execute, change, extend, or renew:</P> <P>(<E T="03">1</E>) Labor-Management Agreements.</P> <P>(<E T="03">2</E>) Certifications of supervisory/managerial and non-labor union employee and professional organizations or associations.</P> <P>(D) Represent the Department in contacts with the national offices of labor organizations in fulfilling the Department's national consultation obligations under 5 U.S.C. 7113.</P> <P>(E) Change a position (with no material change in duties) from one pay system to another.</P> <P>(F) Grant restoration rights, and release employees with administrative reemployment rights.</P> <P>(G) Authorize any mass dismissals of employees in the Washington, DC, metropolitan area.</P> <P>(H) Approve “normal line of promotion” cases in the excepted service where not in accordance with time-in-grade criteria.</P> <P>(I) Make the final decision on all classification appeals filed with the Department of Agriculture.</P> <P>(J) Authorize all employment actions (except nondisciplinary separations and LWOP) and classification actions for senior level and equivalent positions including Senior Executive Service positions and special authority professional and scientific positions responsible for carrying out research and development functions.</P> <P>(K) Authorize all employment actions (except LWOP) for the following positions:</P> <P>(<E T="03">1</E>) Schedule C.</P> <P>(<E T="03">2</E>) Non-career Senior Executive Service or equivalent.</P> <P>(<E T="03">3</E>) Administrative Law Judge.</P> <P>(L) Authorize and make final decisions on adverse actions for positions in GS-1—15 or equivalent.</P> <P>(M) Authorize and make final decisions on adverse actions for positions in the career Senior Executive Service or equivalent.</P> <P>(N) Approve the details of Department employees to the White House.</P> <P>(O) Authorize adverse actions based in whole or in part on an allegation of violation of 5 U.S.C. chapter 73, subchapter III, for employees in the excepted service.</P> <P>(P) Authorize long-term training in programs which require Departmentwide competition.</P> <P>(Q) Initiate and take adverse action in cases involving a violation of the merit system.</P> <P>(R) Any other human resources operational matter.</P> <P>(x) As used in this section, the term human resources includes:</P> <P>(A) Position management.</P> <P>(B) Position classification.</P> <P>(C) Employment.</P> <P>(D) Pay administration.</P> <P>(E) Automation of human resources data and systems.</P> <P>(F) Hours of duty.</P> <P>(G) Performance management.</P> <P>(H) Promotions.</P> <P>(I) Employee development.</P> <P>(J) Incentive Programs.</P> <P>(K) Leave.</P> <P>(L) Retirement.</P> <P>(M) Human resources program management accountability and evaluation.</P> <P>(N) Social security.</P> <P>(O) Life insurance.</P> <P>(P) Health benefits.</P> <P>(Q) Unemployment compensation.</P> <P>(R) Labor management relations.</P> <P>(S) Intramanagement consultation.<PRTPAGE P="198"/> </P> <P>(T) [Reserved]</P> <P>(U) Discipline.</P> <P>(V) Appeals.</P> <P>(W) Drug Testing Program.</P> <P>(X) Worklife Program.</P> <P>(Y) Transit Subsidy Program.</P> <P>(Z) Alternative Dispute Resolution.</P> <P>(xi) Maintain, review, and update Departmental delegations of authority.</P> <P>(xii) Authorize organizational changes.</P> <P>(xiii) Formulate and promulgate departmental organizational objectives and policies.</P> <P>(xiv) Approve coverage and waiver of individual law enforcement and firefighter positions under the special retirement provisions of the Civil Service Retirement System and the Federal Employees Retirement System.</P> <P>(xv) Provide for diversity and inclusion, as follows:</P> <P>(A) Establish, direct, and provide policy and oversight for a Departmentwide Special Emphasis Program (SEP) including: Women, African Americans, Hispanics, Asian/Pacific Islanders, Native Americans, Disabled, and Gay/Lesbian/Bisexual/Transgender.</P> <P>(B) Provide oversight and support for Departmental SEP recognition programs.</P> <P>(C) Direct and oversee the Department-wide SEPM Council.</P> <P>(D) Administer Federal Equal Opportunity Recruitment Program.</P> <P>(xvi) Oversee and manage the Department's administrative grievance program.</P> <P>(xvii) Make final decisions in those cases where an agency head has appealed the recommended decision of a grievance examiner.</P> <P>(xviii) Administer the administrative appeals process related to the inclusion of positions in the testing designated position listing in the Department's Drug-Free Workplace Program and designate the final appeal officer for that Program.</P> <P>(xix) Formulate and issue Department policy, standards, rules, and regulations relating to the Senior Scientific Research Service (7 U.S.C. 7657).</P> <P>(xx) <E T="03">Related to conflict management.</E> (A) Designate the senior official to serve as the Department Dispute Resolution Specialist under the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571, <E T="03">et seq.,</E> and provide leadership, direction and coordination for the Department's conflict prevention and resolution activities.</P> <P>(B) Issue Departmental regulations, policies, and procedures relating to the use of Alternative Dispute Resolution (ADR) to resolve employment complaints and grievances, workplace disputes, Departmental program disputes, and contract and procurement disputes.</P> <P>(C) Provide ADR services for:</P> <P>(<E T="03">1</E>) The Secretary of Agriculture.</P> <P>(<E T="03">2</E>) The general officers of the Department.</P> <P>(<E T="03">3</E>) The offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(<E T="03">4</E>) Any other office or agency of the Department as may be agreed.</P> <P>(D) Develop and issue standards for mediators and other ADR neutrals utilized by the Department.</P> <P>(E) Coordinate ADR activities throughout the Department.</P> <P>(F) Monitor agency ADR programs and report at least annually to the Secretary on the Department's ADR activities.</P> <P>(xxi) Redelegate, as appropriate, any authority delegated under paragraphs (a)(4)(i) through (a)(4)(xx) to general officers of the Department and heads of Departmental agencies.</P> <P>(xxii) <E T="03">Related to ethics.</E> Provide administrative supervision for the Office of Ethics.</P> <P>(5) <E T="03">Related to small and disadvantaged business utilization.</E> (i) In compliance with Public Law 95-507, the Assistant Secretary for Administration is designated as the Department's Director for Small and Disadvantaged Business Utilization. The Director of Small and Disadvantaged Business Utilization has specific responsibilities under the Small Business Act, 15 U.S.C. 644(k). These duties include being responsible for the following:</P> <P>(A) Administer the Department's small and disadvantaged business activities related to procurement contracts, minority bank deposits, and grants and loan activities affecting small and minority businesses including women-owned business, and the <PRTPAGE P="199"/>small business, small minority business and small women-owned business subcontracting programs.</P> <P>(B) Provide Departmentwide liaison and coordination of activities related to small, small disadvantaged, and women-owned businesses with the Small Business Administration and others in public and private sector.</P> <P>(C) Develop policies and procedures required by the applicable provision of the Small Business Act, as amended, to include the establishment of goals.</P> <P>(D) Implement and administer programs described under sections 8 and 15 of the Small Business Act, as amended (15 U.S.C. 637 and 644).</P> <P>(E) In compliance with the Veterans Benefits Act of 2003 (Pub. L. 108-183) amending the Small Business Act, implement and administer procurement programs for small business concerns owned and controlled by service-disabled veterans.</P> <P>(ii) In compliance with the Javits-Wagner-O'Day Act (41 U.S.C. 46 <E T="03">et seq.</E>), implement and administer the Department's AbilityOne program for purchases from qualified nonprofit agencies for the blind or for the severely disabled.</P> <P>(6) <E T="03">Related to procurement and property management.</E> (i) Exercise full Departmentwide contracting and procurement authority.</P> <P>(ii) Promulgate policies, standards, techniques, and procedures, and represent the Department, in the following:</P> <P>(A) Acquisition, including, but not limited to, the procurement of supplies, services, equipment, and construction.</P> <P>(B) Socioeconomic programs relating to contracting.</P> <P>(C) Selection, standardization, and simplification of program delivery processes utilizing contracts.</P> <P>(D) Acquisition, leasing, utilization, value analysis, construction, maintenance, and disposition of real and personal property, including control of space assignments.</P> <P>(E) Motor vehicle and aircraft fleet and other vehicular transportation.</P> <P>(F) Transportation of things (traffic management).</P> <P>(G) Prevention, control, and abatement of pollution with respect to Federal facilities and activities under the control of the Department (Executive Order 12088, “Federal Compliance With Pollution Control Standards,” 3 CFR, 1978 Comp., p. 243).</P> <P>(H) Implementation of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601, <E T="03">et seq.</E>).</P> <P>(I) Development and implementation of sustainable operations actions including establishing and achieving greenhouse gas emission reduction goals, reducing energy intensity, increasing renewable energy use, increasing water efficiency, reducing petroleum use and increasing alternative fuel use, increasing recycling and waste diversion, preventing pollution, reducing use of toxic chemicals, procuring sustainable products and services, achieving sustainable principles for new and existing buildings, promoting electronic stewardship, and continuing environmental management system use. Maintain liaison with the Office of the Federal Environmental Executive, the Council on Environmental Quality, the Office of Management and Budget (OMB), the Department of Energy, and other Government agencies in these matters.</P> <P>(J) Implementation of a program for the Federal procurement of biobased products and of a voluntary “USDA Certified Biobased Product” labeling program (7 U.S.C. 8102).</P> <P>(K) Entering into cooperative agreements to further research programs in the food and agricultural sciences, related to establishing and implementing Federal biobased procurement and voluntary biobased labeling programs (7 U.S.C. 3318).</P> <P>(L) Implementation of the policies and procedures set forth in OMB Circular No. A-76, Performance of Commercial Activities.</P> <P>(iii) Exercise the following special authorities:</P> <P>(A) Designate the Departmental Debarring Officer to perform the functions of 48 CFR part 9, subpart 9.4 related to procurement activities, except for commodity acquisitions on behalf of the Commodity Credit Corporation (7 CFR part 1407); with authority to redelegate suspension and debarment authority for contracts awarded under <PRTPAGE P="200"/>the School Lunch and Surplus Removal Programs (42 U.S.C. 1755 and 7 U.S.C. 612c).</P> <P>(B) Conduct liaison with the Office of the Federal Register (1 CFR part 16) including the making of required certifications pursuant to 1 CFR part 18.</P> <P>(C) Maintain custody and permit appropriate use of the official seal of the Department.</P> <P>(D) Establish policy for the use of the official flags of the Secretary and the Department.</P> <P>(E) Coordinate collection and disposition of personal property of historical significance.</P> <P>(F) Make information returns to the Internal Revenue Service as prescribed by 26 U.S.C. 6050M and by 26 CFR 1.6050M-1 and such other Treasury regulations, guidelines or procedures as may be issued by the Internal Revenue Service in accordance with 26 U.S.C. 6050M. This includes making such verifications or certifications as may be required by 26 CFR 1.6050M-1 and making the election allowed by 26 CFR 1.6050M-1(d)(5)(1).</P> <P>(G) Promulgate regulations for the management of contracting and procurement for information technology and telecommunication equipment, software, services, maintenance and related supplies.</P> <P>(H) Represent the Department in working with the Government Accountability Office (GAO), the General Services Administration, OMB, and other organizations or agencies on matters related to assigned responsibilities.</P> <P>(iv) Serve as the Acquisition Executive in the Department to integrate and unify the management process for the Department's major system acquisitions and to monitor implementation of the policies and practices set forth in OMB Circular No. A-109, Major Systems Acquisitions. This includes the authority to:</P> <P>(A) Ensure that OMB Circular No. A-109 is effectively implemented in the Department and that the management objectives of the Circular are realized.</P> <P>(B) Review the program management of each major system acquisition.</P> <P>(C) Designate the program manager for each major systems acquisition.</P> <P>(D) Designate any Departmental acquisition as a major system acquisition under OMB Circular No. A-109.</P> <P>(v) Pursuant to Executive Order 12931, “Federal Procurement Reform,” 3 CFR, 1994 Comp., p. 925, and sections 16, 22, and 37 of the Office of Federal Procurement Policy Act, as amended, 41 U.S.C. 414, 418b, and 433, designate the Senior Procurement Executive for the Department and delegate responsibility for the following:</P> <P>(A) Prescribing and publishing Departmental acquisition policies, advisories, regulations, and procedures.</P> <P>(B) Taking any necessary actions consistent with policies, regulations, and procedures with respect to purchases, contracts, leases, agreements, and other transactions.</P> <P>(C) Designating contracting officers.</P> <P>(D) Establishing clear lines and limitations of contracting authority through written delegations of authority.</P> <P>(E) Approving any Departmental and component agency procurement systems and processes.</P> <P>(F) Managing and enhancing career development of the Department's acquisition workforce.</P> <P>(G) Participating in the development of Governmentwide procurement policies, regulations, and standards, and determining specific areas where Governmentwide performance standards should be established and applied.</P> <P>(H) Developing unique Departmental standards as required.</P> <P>(I) Overseeing the development of procurement goals, guidelines, and innovation.</P> <P>(J) Measuring and evaluating procurement office performance against stated goals.</P> <P>(K) Advising the Secretary whether goals are being achieved.</P> <P>(L) Prescribing standards for agency Procurement Executives.</P> <P>(M) Redelegating, suspending, or revoking, as appropriate, the authority in paragraph (a)(6)(v)(A) of this section to agency Procurement Executives or other qualified agency officials with no power of further redelegation.</P> <P>(N) Redelegating, suspending, or revoking, as appropriate, the authorities in paragraphs (a)(6)(v)(B), (C), (D), (F), <PRTPAGE P="201"/>and (G) of this section to agency Procurement Executives or other qualified agency officials with the power of further redelegation.</P> <P>(vi) Represent the Department in establishing standards for acquisition transactions within the electronic data interchange environment.</P> <P>(vii) Designate the Departmental Task Order Ombudsman pursuant to 41 U.S.C. 253j.</P> <P>(viii) Designate the Departmental Remedy Coordination Official pursuant to 41 U.S.C. 255 to determine whether payment to any contractor should be reduced or suspended based on substantial evidence that the request of the contractor for advance, partial, or progress payment is based on fraud.</P> <P>(ix) Review and approve exemptions for USDA contracts, subcontracts, grants, agreements, and loans from the requirements of the Clean Air Act, as amended (42 U.S.C. 7401, <E T="03">et seq.</E>), the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251, <E T="03">et seq.</E>), and Executive Order 11738, “Providing for Administration of the Clean Air Act and the Federal Water Pollution Control Act With Respect to Federal Contracts, Grants, or Loans,” 3 CFR, 1971-1975 Comp., p. 799, when he or she determines that the paramount interest of the United States so requires as provided in these acts and Executive Order and the regulations of the EPA (2 CFR 1532.1140).</P> <P>(x) Transfer excess research equipment to eligible educational institutions or certain non-profit organizations for the conduct of technical and scientific education and research activities under section 11(i) of the Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710(i)) (7 CFR part 2812).</P> <P>(xi) Promulgate policy and obtain and furnish Federal excess personal property in accordance with section 923 of Public Law 104-127 (7 U.S.C. 2206a), to support research, educational, technical and scientific activities or for related programs, to:</P> <P>(A) Any 1994 Institutions (as defined in section 532 of the Equity in Educational Land-Grant Status Act of 1994 (Pub. L. 103-382; 7 U.S.C. 301 note)).</P> <P>(B) Any Institutions eligible to receive funds under the Act of August 30, 1890 (7 U.S.C. 321, <E T="03">et seq.</E>) including Tuskegee University.</P> <P>(C) Any Hispanic-serving Institutions (as defined in sections 316(b) of the Higher Education Act of 1965 (20 U.S.C. 1059c(b)).</P> <P>(xii) Make available to organizations excess or surplus computers or other technical equipment of the Department for the purpose of distribution to cities, towns, or local government entities in rural areas (7 U.S.C. 2206b).</P> <P>(xiii) Issue regulations and directives to implement or supplement the Federal Acquisition Regulations (48 CFR Chapters 1 and 4).</P> <P>(xiv) Issue regulations and directives to implement or supplement the Federal Property Management Regulations (41 CFR chapter 101) and the Federal Management Regulation (41 CFR chapter 102).</P> <P>(xv) Serve as USDA Senior Sustainability Officer under Executive Order 13514, “Federal Leadership in Environmental, Energy, and Economic Performance” (74 FR 52117, Oct. 8, 2009) responsible for developing and achieving greenhouse gas emission reduction targets, developing and implementing a Strategic Sustainability Performance Plan, achieving sustainable practice goals in Executive Order 13423, “Strengthening Federal Environmental, Energy, and Transportation Management,” 3 CFR, 2007 Comp., p. 191, and reporting USDA's progress to OMB and the Council on Environmental Quality.</P> <P>(xvi) Pursuant to the Office of Federal Procurement Policy Act (Act), as amended (41 U.S.C. 401, <E T="03">et seq.</E>), designate the Department's Advocate for Competition with the responsibility for section 20 of the Act (41 U.S.C. 418), including:</P> <P>(A) Reviewing the procurement activities of the Department.</P> <P>(B) Developing new initiatives to increase full and open competition.</P> <P>(C) Developing goals and plans and recommending actions to increase competition.</P> <P>(D) Challenging conditions unnecessarily restricting competition in the acquisition of supplies and services.</P> <P>(E) Promoting the acquisition of commercial items.<PRTPAGE P="202"/> </P> <P>(F) Designating an Advocate for Competition for each procuring activity within the Department.</P> <P>(xvii) <E T="03">Related to compliance with environmental laws and sustainable operating requirements.</E> (A) Serve as Chair of the USDA Sustainable Operations Council.</P> <P>(B) Represent USDA in consulting or working with the EPA, the Council on Environmental Quality, the Domestic Policy Council, and others to develop policies relating to hazardous materials management and Federal facilities compliance with applicable pollution control laws.</P> <P>(C) Monitor, review, evaluate, and oversee hazardous materials management program activities and compliance Department-wide.</P> <P>(D) Monitor, review, evaluate, and oversee USDA agency expenditures for hazardous materials management program accomplishments.</P> <P>(E) Represent USDA on the National Response Team and exercise responsibility for USDA response efforts for hazardous substance releases and oil spills pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9601, <E T="03">et seq.</E>); the Clean Water Act, as amended (33 U.S.C. 1251, <E T="03">et seq.</E>); Oil Pollution Act, as amended (33 U.S.C. 2701, <E T="03">et seq.</E>); Executive Order 12580, “Superfund Implementation,” 3 CFR, 1987 Comp., p. 193; Executive Order 12777, “Implementation of section 311 of the Federal Water Pollution Control Act of October 18, 1972, as amended, and the Oil Pollution Act of 1990,” 3 CFR, 1991 Comp., p. 351, and the National Oil and Hazardous Substances Contingency Plan, 40 CFR Part 300.</P> <P>(F) Approve disbursements from the New World Mine Response and Restoration Account, approve the New World Mine Response and Restoration Plan, and make quarterly reports to Congress under Sections 502(d) and (f) of Title V of the Department of the Interior and Related Agencies Appropriations Act of 1998, Public Law 105-83.</P> <P>(G) Ensure that the Hazardous Materials Management Program Department-wide is accomplished with regard to, and in compliance with, Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” 3 CFR, 1994 Comp. p. 859.</P> <P>(H) Take such action as may be necessary, with the affected agency head and with the concurrence of the General Counsel, including issuance of administrative orders and agreements with any person to perform any response action under sections 106(a) and 122 (except subsection (b)(1)) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9606(a), 9622), pursuant to sections 4(c)(3) and 4(d)(3) of Executive Order 12580, “Superfund Implementation,” 3 CFR, 1987 Comp., p. 193, as amended by Executive Order 13016, “Amendment to Executive Order No. 12580,” 3 CFR, 1996 Comp., p. 214.</P> <P>(I) Represent USDA on the EPA Brownfields Federal Partnership and coordinate USDA support for Brownfields redevelopment and establish policy and guidance for the implementation of the June 2003 amendment to Executive Order 12580, “Superfund Implementation,” 3 CFR, 1987 Comp., p. 193 (Executive Order 13308, “Further Amendment to Executive Order 12580, As Amended, Superfund Implementation,” 3 CFR, 2003 Comp., p. 239).</P> <P>(xviii) <E T="03">Related to occupational safety and health.</E> (A) Establish Departmentwide safety and health policy and provide leadership in the development, coordination, and implementation of related standards, techniques, and procedures, and represent the Department in complying with laws, Executive Orders and other policy and procedural issuances related to occupational safety and health and workers' compensation programs within the Department.</P> <P>(B) Represent the Department in all rulemaking, advisory, or legislative capacities on any groups, committees, or Governmentwide activities that affect the Department's Occupational Safety and Health Management Program; and serve as the USDA Designated Safety and Health Official.</P> <P>(C) Determine and provide Departmentwide technical services and regional staff support for the safety and health programs.</P> <P>(D) Administer the computerized management information systems for <PRTPAGE P="203"/>the collection, processing and dissemination of data related to the Department's occupational safety and health programs.</P> <P>(E) Administer the Department's Occupational Health and Preventive Medicine Program, as well as design and operate employee assistance and workers' compensation activities.</P> <P>(F) Provide education and training on a Departmentwide basis for safety and health-related issues and develop resource and operational manuals.</P> <P>(7) <E T="03">Related to advocacy and outreach.</E> (i) Ensure that small farms and ranches, beginning farmers or ranchers, and socially disadvantaged farmers or ranchers have access to, and equitable participation in, programs and services of the Department pursuant to section 226B(c) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6934(c)).</P> <P>(ii) Oversee the Advisory Committee for Beginning Farmers and Ranchers.</P> <P>(iii) Oversee the operations of the Office of Small Farms Coordination.</P> <P>(iv) Administer section 2501 of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279), except for authorities related to the Census of Agriculture and economic studies in subsection (h) of that section.</P> <P>(v) Establish and oversee the Minority Farmer Advisory Committee pursuant to section 14008 of FCEA (7 U.S.C. 2279 note).</P> <P>(vi) Administer the low-income migrant and seasonal farmworker grants program under section 2281 of the Food, Agriculture, Conservation, and Trade Act of 1990 (42 U.S.C. 5177a).</P> <P>(vii) Consult with appropriate entities regarding integration of farmworker interests into Department programs, including assisting farmworkers in becoming agricultural producers or landowners, and research, program improvements, and agricultural education opportunities for low-income and migrant seasonal farmworkers.</P> <P>(viii) Administer the grants program under section 14204 of FCEA (7 U.S.C. 2008q-1) to improve the supply, stability, safety, and training of the agricultural labor force.</P> <P>(ix) Administer and coordinate a USDA outreach program in collaboration with USDA agencies.</P> <P>(x) Administer section 2501A of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279-1), including the authority to coordinate Department policy for the issuance of receipts under subsection (e) of that section.</P> <P>(xi) Provide strategic planning and performance measurement, coordinate outreach activities, monitor goals and objectives, and evaluate programs, of Department programs and activities involving small farms or ranches and beginning or socially disadvantaged farmers or ranchers.</P> <P>(xii) Administer the USDA/1994 Land Grant Institutions (Tribal Colleges) Programs.</P> <P>(xiii) Administer the USDA/1890 Liaison Officer Program.</P> <P>(xiv) Administer the Hispanic Serving Institutions National Program.</P> <P>(8) <E T="03">Related to homeland security, personnel and document security, and emergency coordination.</E> (i) Provide administrative supervision to the unit that grants, denies, or revokes security clearances for USDA employees and contractors.</P> <P>(ii) Administer the Department Emergency Preparedness Program. This includes:</P> <P>(A) Coordinate the delegations and assignments made to the Department under the Defense Production Act of 1950, 50 U.S.C. App. 2061, <E T="03">et seq.;</E> the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121, <E T="03">et seq.;</E> and by Executive Orders 12148, “Federal Emergency Management,” 3 CFR, 1979 Comp., p. 412, 12919, “National Defense Industrial Resources Preparedness,” 3 CFR, 1994 Comp., p. 901, and 12656, “Assignment of Emergency Preparedness Responsibilities,” 3 CFR, 1988 Comp., p. 585; or any successor to these Executive Orders, to ensure that the Department has sufficient capabilities to respond to any occurrence, including natural disaster, military attack, technological emergency, or any all hazards incident.</P> <P>(B) Manage the Department Emergency Operations Center at Headquarters and the Secretary's alternative facilities; provide senior staff with international, national, and regional situational awareness reports; <PRTPAGE P="204"/>and provide and maintain current information systems technology and National Security Systems to support USDA executive crisis management capability.</P> <P>(C) Provide facilities and equipment to facilitate inter-agency coordination during emergencies.</P> <P>(D) Activate the USDA incident management system in accordance with the National Response Framework and the National Incident Management System in the event of a major incident; and provide oversight and coordination of the Department's Emergency Support Functions as outlined in the National Response Framework.</P> <P>(E) Develop and promulgate policies for the Department regarding emergency preparedness and national security, including matters relating to anti-terrorism and agriculture-related emergency preparedness planning both national and international, and guidance to USDA State and County Emergency Boards.</P> <P>(F) Establish and provide oversight of a Department-wide training program for the National Incident Management System to include Incident Command System, National Response Framework, Continuity programs, and Critical Infrastructure Protection program.</P> <P>(G) Provide representation and liaison for the Department in contacts with other Federal entities and organizations, including the National Security Council, Homeland Security Council, Office of Management and Budget, Department of Homeland Security, Federal Emergency Management Agency, Office of The Director of National Intelligence, and Department of Defense concerning matters of a national security, natural disaster, other emergencies, and agriculture/food-related international civil emergency planning and related activities.</P> <P>(H) Act as the primary USDA representative for anti-terrorism activities.</P> <P>(I) Develop and submit a coordinated budget request for homeland security requirements.</P> <P>(J) Provide guidance and direction regarding radiological emergency preparedness programs and the implementation of the National Response Framework's Nuclear/Radiological Incident Annex to Departmental staff offices, mission areas, and agencies.</P> <P>(K) Provide program leadership and coordination for USDA's radiological emergency preparedness requirements with respect to Emergency Management and Assistance (44 CFR parts 350-352).</P> <P>(L) Represent USDA on the Federal Radiological Preparedness Coordinating Committee (FRPCC) and Regional Assistance Committees (RACs) and assist them in carrying out their functions.</P> <P>(M) Support USDA in its management of the Department's emergency response program with respect to radiological emergency response activities.</P> <P>(iii) Provide for the personal security to the Secretary and the Deputy Secretary.</P> <P>(iv) Serve as the primary point of contact for Government Accountability Office (GAO) and Office of the Inspector General (OIG) audits of USDA homeland security activities.</P> <P>(v) Coordinate interaction between Department agencies and private sector businesses and industries in emergency planning and public education under Department authorities delegated or assigned under the National Response Framework, National Infrastructure Protection Plan, Defense Production Act of 1950, 50 U.S.C. App. 2061, <E T="03">et seq.,</E> and Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121, <E T="03">et seq.</E> </P> <P>(vi) Oversee the Department's ability to collect and disseminate information and prepare for an agricultural disease emergency, agroterrorist act, or other threat to agricultural biosecurity, and coordinate such activities among agencies and offices within the Department (7 U.S.C. 8912).</P> <P>(vii) Administer a funded competitive grant program to support the development and expansion of advanced training programs in agricultural biosecurity planning and response for food science professionals and veterinarians; administer a funded competitive grant and low-interest loan assistance program to assist States in assessing agricultural disease response capability (7 U.S.C. 8913).<PRTPAGE P="205"/> </P> <P>(viii) Promulgate Departmental policies, standards, techniques, and procedures; and represent the Department in maintaining the security of physical facilities and providing security guidance to the Food and Agricultural Sector nationwide.</P> <P>(A) Lead and coordinate the development and maintenance of a mission critical facility inventory with agency involvement to ensure proper security countermeasures are implemented in the Department's most critical infrastructure.</P> <P>(B) Provide guidance to USDA agencies in matters of physical security through use of physical security assessments and development of mitigation strategies.</P> <P>(C) Provide guidance to USDA agencies and the Food and Agricultural Sector in matters of security through use of assessments and development of mitigation strategies.</P> <P>(D) Represent and act as liaison for the Department in contacts with other Federal security entities and organizations, including the Interagency Security Committee and the Department of Homeland Security.</P> <P>(E) Provide guidance and direction to ensure physical security and agriculture/food security are fully integrated in USDA's security preparations, which are reported to and coordinated with the White House.</P> <P>(F) Provide assistance to the USDA agencies in preparation for and during a disaster to identify critical assets and possible alternate storage locations.</P> <P>(G) Conduct physical security investigations and compliance reviews Department-wide.</P> <P>(H) Review and provide coordinated technical physical security assessments for all new construction of laboratories, data centers, germplasm repositories, and other mission critical infrastructure during the design phase, and all leased facilities prior to contract award.</P> <P>(I) Oversee and manage physical security aspects of the Common Identification Card (LincPass) Program to ensure National Institute of Standards and Technology (NIST) and General Services Administration (GSA) compliancy within the National Capital Region and the physical access to USDA facilities.</P> <P>(J) Provide enterprise connectivity to agency physical access control systems that provide cost leveraging and provisioning/de-provisioning nationwide.</P> <P>(ix) Provide oversight and coordination of the development and administration of the Department Continuity Program. This includes:</P> <P>(A) Provide guidance and direction regarding continuity of operations to the Office of the Secretary, Departmental staff offices, mission areas, and agencies.</P> <P>(B) Represent and act as liaison for the Department in contacts with other Federal entities and organizations concerning matters of assigned continuity program responsibilities.</P> <P>(C) Oversee Department continuity of operations and emergency relocation facility planning, development, equipping, and preparedness to ensure that resources are in a constant state of readiness.</P> <P>(x) Provide for the development and administration of a Public Trust program for the safeguarding of national security information:</P> <P>(A) Direct and administer USDA's public trust program established pursuant to 5 CFR part 731 and Executive Order 13488, “Granting Reciprocity on Excepted Service and Federal Contractor Employee Fitness and Reinvestigating Individuals in Positions of Public Trust” (74 FR 4111, Jan. 22, 2009).</P> <P>(B) Direct and administer USDA's program under which information is safeguarded pursuant to Executive Order 13526, “Classified National Security Information” (75 FR 707, Jan. 5, 2010), or subsequent orders.</P> <P>(C) Establish and maintain Information Security policies and procedures for classifying, declassifying, safeguarding, and disposing of classified national security information and materials.</P> <P>(D) Investigate or delegate authority to investigate any potential compromises of classified national security information and take corrective action for violations or infractions under section 5.5(b) of Executive Order 13526 or any subsequent order.<PRTPAGE P="206"/> </P> <P>(E) Develop and maintain oversight of all facilities throughout USDA where classified national security information is or will be safeguarded, discussed, or processed including sole authority to liaison with the Central Intelligence Agency concerning guidance, approval, requirements, and oversight of USDA secure facilities.</P> <P>(F) Act as the USDA focal point to identify, receive, disseminate and safeguard USDA related intelligence information as required; convey information to USDA policy officials; and liaise with the intelligence community, as appropriate.</P> <P>(xi) Control within USDA the acquisition, use, and disposal of material and equipment that can be a source of ionizing radiation.</P> <P>(A) Promulgate policies and procedures for ensuring the safety of USDA employees, the public, and the environment resulting from USDA's use of ionizing radiation sources.</P> <P>(B) Maintain and ensure compliance with the Nuclear Regulatory Commission regulations (Title 10, Code of Federal Regulations) and license(s) issued to USDA for the acquisition, use, and disposal of radioactive materials.</P> <P>(9) <E T="03">Related to operations support to the Department of Agriculture headquarters complex, George Washington Carver Center, and leased facilities in the Washington metro area.</E> (i) Provide services relating to facilities management and daily operational support for agencies and offices occupying USDA's headquarters complex, George Washington Carver Center, and, in coordination with the General Services Administration (GSA), USDA leased facilities in the Washington, DC metropolitan area, as well as at emergency relocation sites and certain critical facilities specified by the Assistant Secretary for Administration in the following areas:</P> <P>(A) Acquiring, leasing, utilizing, constructing, maintaining, and disposing of real property, including control of space assignments, and architecture and engineering design oversight.</P> <P>(B) Sustainable Operations leadership and management in the areas of internal energy efficiency, conservation and recycling in support of Executive Orders 13423, “Strengthening Federal Environmental, Energy, and Transportation Management,” 3 CFR, 2007 Comp., p. 193, and 13514, “Federal Leadership in Environmental, Energy, and Economic Performance” (74 FR 52117, Oct. 8, 2009).</P> <P>(C) Occupational health, safety, and related functions; and environmental compliance pursuant to Executive Order 12088, “Federal Compliance with Pollution Control Standards,” 3 CFR, 1978 Comp., p. 243, to ensure actions are taken for the prevention, control, and abatement of environmental pollution.</P> <P>(ii) Provide centralized Departmental business services including:</P> <P>(A) Printing, copy reproducing, offset composing, mail management and delivery, and automated mailing lists.</P> <P>(B) USDA Nationwide mail management policy.</P> <P>(C) Operation of a disability resource center for all USDA agencies in the Washington, DC metropolitan area and nationwide in the areas of accessible technologies and reasonable accommodations.</P> <P>(D) General supplies, shipping and receiving, warehouse and labor services.</P> <P>(E) Operation of a USDA Consolidated Forms and Publications Distribution Center for storage and nationwide distribution of USDA program forms and publications.</P> <P>(F) Excess personal property operations with disposition responsibility for all USDA agencies in the Washington, DC metropolitan area.</P> <P>(G) Operation of a GSA authorized Federal excess property Sales Center for USDA property and other government agencies in the Washington, DC metropolitan area via Memorandum of Understanding (MOU).</P> <P>(iii) Promulgate Departmental regulations, standards, techniques, and procedures and represent the Department in managing and maintaining a comprehensive physical and technical security program including access control, management of special police officer and guard services, executive driving, parking, ID badging in accordance with HSPD-12, occupant emergency and warden services at the USDA Headquarters Complex, George Washington Carver Center and, in coordination with GSA, USDA leased facilities in the Washington, DC metropolitan area, as well as at emergency relocation <PRTPAGE P="207"/>sites and certain critical facilities specified by the Assistant Secretary for Administration.</P> <P>(iv) Provide management and oversight of the Secretary's People's Garden initiative and the USDA Visitor's Center for education and outreach to USDA and the public.</P> <P>(v) Represent the Department in contacts with other organizations or agencies on matters related to assigned responsibilities.</P> <P>(10) <E T="03">Related to Secretarial correspondence.</E> (i) Exercise responsibility for all correspondence control and related records management functions for the Office of the Secretary.</P> <P>(ii) Provide administrative, editorial, and project management support services to the Immediate Office of the Secretary.</P> <P>(11) <E T="03">Related to shared management services.</E> (i) Provide a full range of services, including: Procurement of supplies, services, and equipment; travel support, conference management, general administrative support including coordination of office renovations and moves (within USDA Whitten Building); budget, accounting, fiscal, and related financial management services; information technology services related to end user office automation, desktop computers, enterprise networking support, handheld devices and voice telecommunications; with authority to take actions required by law or regulation to perform said services for:</P> <P>(A) The Secretary of Agriculture.</P> <P>(B) The general officers of the Department, except the Inspector General.</P> <P>(C) The offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(D) Any other offices or agencies of the Department as may be agreed.</P> <P>(ii) Prepare responses to requests under the Freedom of Information Act with authority to take actions as required by law or regulation for the offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(iii) Administer the records management program in support of Departmental Management, and prepare and coordinate responses to management audits by the Inspector General and the Government Accountability Office with authority to take actions as required by law or regulation for the offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(iv) Provide administrative and financial management support in the award and administration of grants, cooperative agreements, and Memoranda of Understanding in support of Departmental Management programs, with authority to take actions as required by law or regulation for the offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(v) Provide human resources operational services for the following (with the exception of Senior Executives, Senior Level positions, and Political Appointees):</P> <P>(A) The Secretary of Agriculture.</P> <P>(B) The general officers of the Department.</P> <P>(C) The offices and agencies reporting to the Assistant Secretary for Administration.</P> <P>(D) Any other offices and agencies of the Department as may be agreed.</P> <P>(12) <E T="03">Related to Office of Administrative Law Judges.</E> (i) Assign, after appropriate consultation with other general officers, to the Office of Administrative Law Judges proceedings not subject to 5 U.S.C. 556 and 557, involving the holdings of hearings and performance of related duties pursuant to the applicable rules of practice, when the Assistant Secretary for Administration determines that because of the nature of the proceeding it would be desirable for the proceeding to be presided over by an Administrative Law Judge and that such duties and responsibilities would not be inconsistent with those of an Administrative Law Judge.</P> <P>(ii) Provide administrative supervision of the Office of Administrative Law Judges.</P> <P>(iii) Maintain overall responsibility and control over the Hearing Clerk's activities which include the custody of and responsibility for the control, maintenance, and servicing of the original and permanent records of all USDA administrative proceedings conducted under the provisions of 5 U.S.C. 556 and 557:<PRTPAGE P="208"/> </P> <P>(A) Receiving, filing and acknowledging the receipt of complaints, petitions, answers, briefs, arguments, and all other documents that may be submitted to the Secretary or the Department of Agriculture in such proceedings.</P> <P>(B) Receiving and filing complaints, notices of inquiry, orders to show cause, notices of hearing, designations of Administrative Law Judges or presiding officers, answers, briefs, arguments, orders, and all other documents that may be promulgated or issued by the Secretary or other duly authorized officials of the Department of Agriculture in such proceedings.</P> <P>(C) Supervising the service upon the parties concerned of any documents that are required to be served, and where required, preserving proof of service.</P> <P>(D) Keeping a docket record of all such documents and proceedings.</P> <P>(E) Filing a stenographic record of each administrative hearing where a transcript is required.</P> <P>(F) Preparing for certification and certifying under the Secretary's facsimile signature, material on file in the Hearing Clerk's office.</P> <P>(G) Performing any other clerical duties with respect to the documents relative to such proceedings as may be required to be performed.</P> <P>(H) Cooperating with the Office of Operations in the letting of contracts for stenographic and reporting services; and forwarding vouchers to appropriate agencies for payment.</P> <P>(I) Receiving and compiling data, views or comments filed in response to notices of proposed standards or rules or regulations.</P> <P>(J) Performing upon request the following services with respect to any hearings in such proceedings:</P> <P>(<E T="03">1</E>) Arranging for suitable hearing place.</P> <P>(<E T="03">2</E>) Arranging for stenographic reporting of hearings and handling details in connection therewith.</P> <P>(13) <E T="03">Other general.</E> (i) Administer the debarment authorities in section 14211 of the Food, Conservation, and Energy Act of 2008 (7 U.S.C. 2209j).</P> <P>(ii) [Reserved]</P> <P>(b) The following authorities are reserved to the Secretary of Agriculture:</P> <P>(1) <E T="03">Related to financial systems and budget formulation and execution.</E> (i) Final approval of the Department's program and financial plans.</P> <P>(ii) [Reserved]</P> <P>(2) <E T="03">Related to human resources management.</E> Make final determinations in the following areas:</P> <P>(i) Separation of employees for security reasons.</P> <P>(ii) Restoration to duty of employees following suspension from duty for security reasons.</P> <P>(iii) Reinstatement or restoration to duty or the employment of any person separated for security reasons.</P> <P>(iv) Issuance of temporary certificates to occupy sensitive positions.</P> <CITA>[75 FR 43368, July 23, 2010]</CITA> </SECTION> <SUBPART> <HD SOURCE="HED">Subpart D—Delegations of Authority to Other General Officers and Agency Heads</HD> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to subpart D appear at 60 FR 66713, Dec. 26, 1995.</P> </EDNOTE> <SECTION> <SECTNO>§ 2.27</SECTNO> <SUBJECT>Office of Administrative Law Judges.</SUBJECT> <P>(a) The following designations are made by the Secretary of Agriculture to the Office of Administrative Law Judges:</P> <P>(1) Administrative law judges (formerly hearing examiners) are designated pursuant to 5 U.S.C. 556(b)(3) to hold hearings and perform related duties in proceedings subject to 5 U.S.C. 556 and 557, arising under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 <E T="03">et seq.</E>); the Commodity Exchange Act as amended (7 U.S.C. 1 <E T="03">et seq.</E>); the Perishable Agricultural Commodities Act, as amended (7 U.S.C. 499a <E T="03">et seq.</E>); the Federal Seed Act, as amended (7 U.S.C. 1551 <E T="03">et seq.</E>); the (Laboratory) Animal Welfare Act, as amended (7 U.S.C. 2131 <E T="03">et seq.</E>); the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 <E T="03">et seq.</E>); the Forest Resources Conservation and Shortage Relief of 1990 (16 U.S.C. 630 <E T="03">et seq.</E>); and any other acts providing for hearings to which the provisions of 5 U.S.C. 556 and 557, <PRTPAGE P="209"/>are applicable. Pursuant to the applicable rules of practice, the administrative law judges shall make initial decisions in adjudication and rate proceedings subject to 5 U.S.C. 556 and 557. Such decisions shall become final without further proceedings unless there is an appeal to the Secretary by a party to the proceeding in accordance with the applicable rules of practice: Provided, however, that no decision shall be final for purposes of judicial review except a final decision of the Secretary upon appeal. As used herein, “Secretary” means the Secretary of Agriculture, the Judicial Officer, or other officer or employee of the Department delegated, pursuant to the Act of April 4, 1940 (7 U.S.C. 450c-450g), and Reorganization Plan No. 2 of 1953 (5 U.S.C. App.), “regulatory functions” as that term is defined in the 1940 Act, in acting as final deciding officer in adjudication and rate proceedings subject to 5 U.S.C. 556 and 557. Administrative Law Judges are delegated authority to hold hearings and perform related duties as provided in the Rules of Practice Governing Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act, set forth in part 1, subpart I of this title.</P> <P>(2) [Reserved]</P> <P>(b) The Chief Administrative Law Judge is delegated the following administrative responsibilities subject to the guidance and control of the Assistant Secretary for Administration (<E T="03">See</E> § 2.24(a)(12)):</P> <P>(1) Exercise general responsibility and authority for all matters related to the administrative activities of the Office of Administrative Law Judges; and</P> <P>(2) Direct the functions of the Hearing Clerk as set out in § 2.24(a)(12)(iii).</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 75 FR 43380, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.29</SECTNO> <SUBJECT>Chief Economist.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Chief Economist:</P> <P>(1) <E T="03">Related to economic analysis.</E> (i) Coordinate economic analyses of, and review Department decisions involving, policies and programs that have substantial economic implications.</P> <P>(ii) Review and assess the economic impact of all significant regulations proposed by any agency of the Department.</P> <P>(iii) Review economic data and analyses used in speeches and Congressional testimony by Department personnel and in materials prepared for release through the press, radio, and television.</P> <P>(2) <E T="03">Related to risk assessment.</E> (i) Responsible for assessing the risks to human health, human safety, or the environment, and for preparing cost-benefit analyses, with respect to proposed major regulations, and for publishing such assessments and analyses in the <E T="04">Federal Register</E> as required by section 304 of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 2204e).</P> <P>(ii) Provide direction to Department agencies in the appropriate methods of risk assessment and cost-benefit analyses and coordinate and review all risk assessments and cost-benefit analyses prepared by any agency of the Department.</P> <P>(iii) Enter into contracts, grants, or cooperative agreements to further research programs in the food and agriculture sciences (7 U.S.C. 3318).</P> <P>(3) <E T="03">Related to food and agriculture outlook and situation.</E> (i) Coordinate and review all crop and commodity data used to develop outlook and situation material within the Department.</P> <P>(ii) Oversee and clear for consistency analytical assumptions and results of all estimates and analyses which significantly relate to international and domestic commodity supply and demand, including such estimates and analyses prepared for public distribution by the Foreign Agricultural Service, the Economic Research Service, or by any other agency or office of the Department.</P> <P>(4) <E T="03">Related to weather and climate.</E> (i) Advise the Secretary on climate and weather activities, and coordinate the development of policy options on weather and climate.</P> <P>(ii) Coordinate all weather and climate information and monitoring activities within the Department and provide a focal point in the Department for weather and climate information and impact assessment.</P> <P>(iii) Arrange for appropriate representation to attend all meetings, <PRTPAGE P="210"/>hearings, and task forces held outside the Department which require such representation.</P> <P>(iv) Designate the Executive Secretary of the USDA Weather and Climate Program Coordinating Committee.</P> <P>(5) <E T="03">Related to interagency commodity estimates committees.</E> (i) Establish Interagency Commodity Estimates Committees for Commodity Credit Corporation price-supported commodities, for major products thereof, and for commodities where a need for such a committee has been identified, in order to bring together estimates and supporting analyses from participating agencies, and to develop official estimates of supply, utilization, and prices for commodities, including the effects of new program proposals on acreage, yield, production, imports, domestic utilization, price, income, support programs, carryover, exports, and availabilities for export.</P> <P>(ii) Designate the Chairman, who shall also act as Secretary, for all Interagency Commodity Estimates Committees.</P> <P>(iii) Assure that all committee members have the basic assumptions, background data and other relevant data regarding the overall economy and market prospects for specific commodities.</P> <P>(iv) Review for consistency of analytical assumptions and results all proposed decisions made by Commodity Estimates Committees prior to any release outside the Department.</P> <P>(6) <E T="03">Related to remote sensing.</E> (i) Provide technical assistance, coordination, and guidance to Department agencies in planning, developing, and carrying out satellite remote sensing activities to assure full consideration and evaluation of advanced technology.</P> <P>(ii) Coordinate administrative, management, and budget information relating to the Department's remote sensing activities including:</P> <P>(A) Inter- and intra-agency meetings, correspondence, and records;</P> <P>(B) Budget and management tracking systems; and</P> <P>(C) Inter-agency contacts and technology transfer.</P> <P>(iii) Designate the Executive Secretary for the Remote Sensing Coordination Committee.</P> <P>(7) <E T="03">Related to long-range commodity and agricultural-sector projections.</E> Establish committees of the agencies of the Department to coordinate the development of a set of analytical assumptions and long-range agricultural-sector projections (2 years and beyond) based on commodity projections consistent with these assumptions and coordinated through the Interagency Commodity Estimates Committees.</P> <P>(8) <E T="03">Related to agricultural labor affairs.</E> Exercise the following functions of the Secretary under the Immigration and Nationality Act (INA), as amended (8 U.S.C. 1101 <E T="03">et seq.</E>):</P> <P>(i) Pursuant to section 214(c) of INA (8 U.S.C. 1184(c)), provide consultation to the Attorney General and the Secretary of Labor concerning the question of the importation of aliens as nonimmigrant temporary agricultural workers, known as “H-2A” workers, under 8 U.S.C. 1101(a)(15)(H)(ii)(a);</P> <P>(ii) Pursuant to section 218(e) of the INA (8 U.S.C. 1188 note), provide consultation to the Attorney General and the Secretary of Labor concerning all regulations to implement 8 U.S.C. 101(a)(15)(H)(ii)(a) and 1188 providing for the importation of H-2A workers;</P> <P>(iii) Pursuant to section 210(h) of the INA (8 U.S.C. 1160(h)), promulgate regulations to define “seasonal agricultural services” for purposes of the Special Agricultural Worker (SAW) Program;</P> <P>(iv) Pursuant to section 210A(a) of the INA (8 U.S.C. 1161(a)), determine jointly with the Secretary of Labor the number (if any) of additional special agricultural workers, known as “replenishment agricultural workers” (RAWs), who should be admitted to the United States or otherwise acquire the status of aliens lawfully admitted for temporary residence during fiscal years 1990 through 1993 to meet a shortage of workers to perform seasonal agricultural services in the United States during each such fiscal year;</P> <P>(v) Pursuant to section 210A(a)(7) of the INA (8 U.S.C. 1161(a)(7)), determine jointly with the Secretary of Labor emergency requests to increase the shortage number;</P> <P>(vi) Pursuant to section 210A(a)(8) of the INA (8 U.S.C. 1161(a)(8)), determine jointly with the Secretary of Labor requests to decrease the number of man-<PRTPAGE P="211"/>days of seasonal agricultural services required of RAWs to avoid deportation and for naturalization under section 210A(d)(5)(A) and (B) of the INA (8 U.S.C. 1161(d)(5)(A) and (B));</P> <P>(vii) Pursuant to section 210A(b)(1) of the INA (8 U.S.C. 1161(b)(1)), calculate jointly with the Secretary of Labor and annual numerical limitation on the number of RAWs who may be admitted or otherwise acquire the status of aliens lawfully admitted for temporary residence during fiscal years 1990 through 1993 under section 210A(c)(1) of the INA (8 U.S.C. 1161(c)(1)); and</P> <P>(viii) Pursuant to section 210A(b)(2) of the INA (8 U.S.C. 1161(b)(2)), establish jointly with the Secretary of Labor the information that must be reported by any person or entity who employs SAWs or RAWs in seasonal agricultural services during fiscal years 1989 through 1992, and to designate jointly with the Secretary of Labor the official to whom the person or entity must furnish such certification.</P> <P>(9) <E T="03">Related to the Capper-Volstead Act.</E> Serve as Chairman of the Capper-Volstead Act Committee to identify cases of undue price enhancement by associations of producers and issue complaints requiring such associations to show cause why an order should not be made directing them to cease and desist from monopolization or restraint of trade. The Chairman is authorized to call upon any agency of the Department for support in carrying the functions of the Committee (7 U.S.C. 292).</P> <P>(10) <E T="03">Related to committee management.</E> Establish and reestablish regional, state, and local advisory committees for activities under his or her authority. This authority may not be redelegated.</P> <P>(11) <E T="03">Related to energy.</E> (i) Advise the Secretary and other policy-level officials of the Department on energy policies and programs, including legislative and budget proposals.</P> <P>(ii) Serve as or designate the Department representative at hearings, conferences, meetings and other contacts with respect to energy and energy-related matters, including liaison with the Department of Energy, the Environmental Protection Agency and other governmental agencies and departments.</P> <P>(iii) Enter into contracts, grants, or cooperative agreements to further research programs in the food and agriculture sciences (7 U.S.C. 3318).</P> <P>(iv) Enter into cost-reimbursable agreements relating to agricultural research (7 U.S.C. 3319a).</P> <P>(v) Provide Department leadership in:</P> <P>(A) Analyzing and evaluating existing and proposed energy policies and strategies, including those regarding the allocation of scarce resources;</P> <P>(B) Developing energy policies and strategies, including those regarding the allocation of scarce resources;</P> <P>(C) Reviewing and evaluating Departmental energy and energy-related programs and programs progress;</P> <P>(D) Developing agricultural and rural components of national energy policy plans; and</P> <P>(E) Preparing reports on energy and energy-related polices and programs required under Acts of Congress and Executive orders, including those involving testimony and reports on legislative proposals.</P> <P>(vi) Provide Departmental oversight and coordination with respect to resources available for energy and energy-related activities, including funds transferred to USDA from other departments or agencies of the Federal Government pursuant to interagency agreements.</P> <P>(vii) Administer a competitive biodiesel fuel education grants program (7 U.S.C. 8106).</P> <P>(viii) Implement a memorandum of understanding with the Secretary of Energy regarding cooperation in the application of hydrogen and fuel cell technology programs for rural communities and agricultural producers.</P> <P>(ix) Conduct a study on biofuels infrastructure under section 9002 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246).</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 63 FR 66979, Dec. 4, 1998; 64 FR 40735, July 28, 1999; 68 FR 27442, May 20, 2003; 73 FR 56706, Sept. 30, 2008; 74 FR 3405, Jan. 21, 2009]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.31</SECTNO> <SUBJECT>General Counsel.</SUBJECT> <P>The General Counsel, as the chief law officer of the Department, is legal adviser to the Secretary and other officials of the Department and responsible for providing legal services for all <PRTPAGE P="212"/>the activities of the Department. The delegations of authority by the Secretary of Agriculture to the General Counsel include the following:</P> <P>(a) Consider, ascertain, adjust, determine, compromise, and settle claims pursuant to the Federal Tort Claims Act, as amended (28 U.S.C. 2671-2680), and the regulations of the Attorney General contained in 28 CFR part 14; delegate the authority to consider, ascertain, adjust, determine, compromise, and settle, pursuant to the Federal Tort Claims Act as amended (28 U.S.C. 2671-2680) and the regulations of the Attorney General contained in 28 CFR part 14, claims less than $2500 that allege the negligence or wrongful act of an employee of a USDA agency; and consider, ascertain, adjust, determine compromise, and settle claims pursuant to section 920 of the Federal Agriculture Improvement and Reform Act of 1996, Public Law 104-127 (7 U.S.C. 2262a).</P> <P>(b) Certify documents as true copies of those on file in the Department.</P> <P>(c) Sign releases of claims of the United States against private persons for damage to or destruction of property of the department, except those claims cognizable under the Contract Disputes Act of 1978 (41 U.S.C. 601 <E T="03">et seq.</E>).</P> <P>(d) Responsible for the overall management and operation of the Law Library, furnishing complete legal and legislative library services to the Office of the General Counsel and the Department.</P> <P>(e) Make determinations as to whether employees of the Department may retain commercial rights in inventions; prepare patent applications and prosecute the same before the Patent Office.</P> <P>(f) Represent the Department in formal rulemaking and adjudicatory proceedings held in connection with the administration of the Department's activities, and decide whether initial decisions of the administrative law judges shall be appealed by the Department to the Secretary.</P> <P>(g) Represent the Department in connection with legal issues that arise in its relations with the Congress, the General Accounting Office, or other agencies of the Government.</P> <P>(h) Represent the Department in proceedings before the Interstate Commerce Commission involving freight rates on farm commodities, and in appeals from decisions of the Commission to the courts.</P> <P>(i) In civil actions arising out of the activities of the Department, present the Department's case to the Attorney General and U.S. attorneys and, upon request of the Department of Justice, assist in the preparation and trial of such cases and in the briefing and argument of such cases at the appellate level.</P> <P>(j) Review cases having criminal aspects and refer them to the Department of Justice.</P> <P>(k) Act as liaison between the Department and the Department of Justice.</P> <P>(l) Perform the following legal services:</P> <P>(1) Render legal opinions on questions arising in the conduct of the Department's activities;</P> <P>(2) Prepare or review regulations;</P> <P>(3) Draft proposed legislation;</P> <P>(4) Prepare or review contracts, mortgages, deeds, leases, and other documents; and</P> <P>(5) Examine titles to land to be acquired or accepted as security for loans.</P> <P>(m) Perform such other legal services as may be required in the administration of the Department's activities, including the defense program.</P> <P>(n) Serve as a member of the Capper-Volstead Act Committee to identify cases of undue price enhancement by associations of producers and issue complaints requiring such associations to show cause why an order should not be made directing them to cease and desist from monopolization or restraint of trade (7 U.S.C. 292).</P> <P>(o) Settle claims for damage to, or loss of, privately owned property pursuant to the provisions of 31 U.S.C. 3723.</P> <P>(p) Serve on the USDA Hazardous Materials Policy Council.</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 49237, Sept. 19, 1996; 65 FR 12429, Mar. 9, 2000; 70 FR 23927, May 6, 2005; 70 FR 30610, May 27, 2005]</CITA> </SECTION> <SECTION> <PRTPAGE P="213"/> <SECTNO>§ 2.33</SECTNO> <SUBJECT>Inspector General.</SUBJECT> <P>(a) The following delegations of authority are made by the Secretary of Agriculture to the Inspector General:</P> <P>(1) Advise the Secretary and General officers in the planning, development, and execution of Department policies and programs.</P> <P>(2) At the request of the Director, Homeland Security Staff (Director), determine the availability of law enforcement personnel of the Office of Inspector General to assist the Director in providing for the personal security for the Secretary and the Deputy Secretary.</P> <P>(3) Serve as liaison official for the Department for all audits of USDA performed by the General Accounting Office.</P> <P>(4) In addition to the above delegations of authority, the Inspector General, under the general supervision of the Secretary, has specific duties, responsibilities, and authorities pursuant to the Inspector General Act of 1978, Pub. L. No. 95-452, 5 U.S.C. App.</P> <P>(b) The following authority is reserved to the Secretary of Agriculture: Approving the implementation in the Office of Inspector General of administrative policies or procedures that contravene standard USDA administrative policies as promulgated by the Assistant Secretary for Administration.</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 72 FR 36859, July 6, 2007]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.34</SECTNO> <SUBJECT>Director, National Appeals Division.</SUBJECT> <P>The Director, National Appeals Division, under the general supervision of the Secretary, has specific duties, responsibilities, and authorities pursuant to subtitle H of the Department of Agriculture Reorganization Act of 1994, Pub. L. No. 103-354, title II (7 U.S.C. 6991 <E T="03">et seq.</E>), including:</P> <P>(a) Deciding appeals from adverse decisions, made by an officer or employee of an agency of the Department designated by the Secretary, that are adverse to participants. The term “agency” shall include the following and any predecessor agency: the Farm Service Agency; the Commodity Credit Corporation (with respect to domestic programs); the Federal Crop Insurance Corporation; the Rural Housing Service; the Rural Business-Cooperative Service; the Natural Resources Conservation Service; and a State, county, or area committee established under section 8(b)(5) of the Soil Conservation and Domestic Allotment Act (16 U.S.C. 590h(b)(5)); and</P> <P>(b) The authority to appoint such hearing officers and other employees as are necessary for the administration of the activities of the Division.</P> <P>(c) Prepare a report each year on the number of requests for equitable relief and the disposition of such requests for inclusion in the report of the Secretary to Congress on equitable relief requests made to the Department under farm and conservation programs (7 U.S.C. 7996(g)(2).</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 68 FR 27442, May 20, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.35</SECTNO> <SUBJECT>Judicial Officer.</SUBJECT> <P>(a) Pursuant to the Act of April 4, 1940, as amended (7 U.S.C. 450c-450g), and Reorganization Plan No. 2 of 1953 (5 U.S.C. app.), the Secretary of Agriculture makes the following delegations of authority to the Judicial Officer. The Judicial Officer is authorized to:</P> <P>(1) Act as final deciding officer in adjudicatory proceedings subject to 5 U.S.C. 556 and 557;</P> <P>(2) Act as final deciding officer in adjudicatory proceedings which are or may be subject to the “Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes” set forth in part 1, subpart H, of this title;</P> <P>(3) Act as final deciding officer in adjudicatory proceedings which are or may be subject to the “Rules of Practice Governing Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act” set forth in part 1, subpart I, of this title;</P> <P>(4) Act as final deciding officer in adjudicatory proceedings subject to the “Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986” set forth in part 1, subpart L, of this title;</P> <P>(5) Act as final deciding officer in adjudicatory proceedings subject to the “Rules of Practice Governing Adjudication of Sourcing Area Applications and <PRTPAGE P="214"/>Formal Review of Sourcing Areas Pursuant to the Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, <E T="03">et seq.</E>)” set forth in part 1, subpart M, of this title;</P> <P>(6) Act as final deciding officer in rate proceedings under the Packers and Stockyards Act, as amended and supplemented (7 U.S.C. 181-229);</P> <P>(7) Act as final deciding officer in reparation proceedings under statutes administered by the United States Department of Agriculture;</P> <P>(8) Act as final deciding officer in appeals under section 63 of the Plant Variety Protection Act (7 U.S.C. 2443), and in reexamination proceedings under section 91 of the Plant Variety Protection Act, as amended (7 U.S.C. 2501);</P> <P>(9) Act as final deciding officer in adjudicatory proceedings under section 359i of the Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1359ii);</P> <P>(10) Issue rules of practice applicable to proceedings conducted under section 359i of the Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1359ii);</P> <P>(11) Act as final deciding officer in adjudicatory proceedings subject to the “Rules of Practice Governing Proceedings on Petitions To Modify or To Be Exempted From Marketing Orders” set forth in sections 900.50 through 900.71 of this title;</P> <P>(12) Act as final deciding officer in adjudicatory proceedings subject to the “Rules of Practice Governing Proceedings on Petitions to Modify or To Be Exempted from Research, Promotion, and Information Programs” set forth in part 1200, subpart B, of this title; and</P> <P>(13) Act as final deciding officer in adjudicatory proceedings subject to “Appeals of Quality Control (`QC') Claims” set forth in part 283 of this title.</P> <P>(b) The delegation of authority from the Secretary of Agriculture to the Judicial Officer in paragraph (a) of this section shall not be construed to limit the authority of the Judicial Officer to perform any functions, in addition to those identified in the Act of April 4, 1940, as amended (7 U.S.C. 450c-450g), which may be assigned by the Secretary of Agriculture to the Judicial Officer.</P> <P>(c) As used in this section, the term <E T="03">Judicial Officer</E> shall mean any person or persons so designated by the Secretary of Agriculture.</P> <CITA>[68 FR 27443, May 20, 2003, as amended at 75 FR 43380, July 23, 2010]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.36</SECTNO> <SUBJECT>Director, Office of Communications.</SUBJECT> <P>(a) <E T="03">Delegations.</E> The following delegations of authority are made by the Secretary of Agriculture to Director, Office of Communications:</P> <P>(1) <E T="03">Related to public affairs.</E> (i) Advise and counsel general officers on public affairs matters to the Department.</P> <P>(ii) Organize and direct the activities of a public affairs office to include press relations of the secretary of agriculture and other executive functions and services for general officers of the Department.</P> <P>(2) <E T="03">Related to information activities.</E> (i) Advise the secretary and general officers in the planning, development, and execution of Department policies and programs.</P> <P>(ii) Direct and coordinate the overall formulation and development of policies, programs, plans, procedures, standards and organization structures and staffing patterns for the information activities of the Department and its agencies, both in Washington and in the field.</P> <P>(iii) Exercise final review and approval of all public information material prepared by the Department and its agencies and select the most effective method and audience for distributing this information.</P> <P>(iv) Serve as the central public information authority in the USDA, with the authority to determine policy for all USDA communication activities and agency information activities in order to provide leadership and centralized operational direction for USDA and agency information activities so that all material shall effectively support USDA policies and programs, including the defense program.</P> <P>(v) Serve as the central printing authority in the USDA, with authority to represent the USDA with Joint Committee on Printing of the Congress, the Government Printing Office, and other <PRTPAGE P="215"/>Federal and State agencies on information matters.</P> <P>(vi) Cooperate with and secure the cooperation of commercial, industrial and other nongovernmental agencies and concerns regarding information work as required in the execution of the Department's programs.</P> <P>(vii) Plan and direct communication research and training for the Department and its agencies.</P> <P>(viii) [Reserved]</P> <P>(ix) Supervise and provide leadership and final clearance for the planning, production, and distribution of visual information material for the department and its agencies in Washington, D.C., and the field, and provide such information services as may be deemed necessary.</P> <P>(x) Maintain overall responsibility and control over the preparation of the “Agricultural Decisions.”</P> <P>(xi) Administer, direct and coordinate publications and user fee authority granted under section 1121 of the Agriculture and Food Act of 1981, as amended by section 1769 of the Food Security Act of 1985, 7 U.S.C. 2242a; and publish any appropriate regulations necessary to the exercise of this authority.</P> <P>(b) [Reserved]</P> <CITA>[60 FR 56393, Nov. 8, 1995, as amended at 74 FR 19373, Apr. 29, 2009]</CITA> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart E [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Delegations of Authority by the Under Secretary for Farm and Foreign Agricultural Services</HD> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to subpart F appear at 60 FR 66713, Dec. 26, 1995.</P> </EDNOTE> <SECTION> <SECTNO>§ 2.40</SECTNO> <SUBJECT>Deputy Under Secretary for Farm and Foreign Agricultural Services.</SUBJECT> <P>Pursuant to § 2.16(a), subject to reservations in § 2.16(b), and subject to policy guidance and direction by the Under Secretary, the following delegation of authority is made to the Deputy Under Secretary for Farm and Foreign Agricultural Services, to be exercised only during the absence or unavailability of the Under Secretary: Perform all the duties and exercise all the powers which are now or which may hereafter be delegated to the Under Secretary for Farm and Foreign Agricultural Services: Provided, that this authority shall be exercised by the respective Deputy Under Secretary in the order in which he or she has taken office as a Deputy Under Secretary.</P> </SECTION> <SECTION> <SECTNO>§ 2.42</SECTNO> <SUBJECT>Administrator, Farm Service Agency.</SUBJECT> <P>(a) <E T="03">Delegations.</E> Pursuant to § 2.16(a)(1) through (a)(4) and (a)(6) through (a)(8), subject to the reservations in § 2.16(b)(1), the following delegations of authority are made by the Under Secretary for Farm and Foreign Agricultural Services to the Administrator, Farm Service Agency:</P> <P>(1) Formulate policies and administer programs authorized by the Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1282 <E T="03">et seq.</E>).</P> <P>(2) Formulate policies and administer programs authorized by the Agricultural Act of 1949, as amended (7 U.S.C. 1441 <E T="03">et seq.</E>), except the provisions of section 416(a)(1), (a)(2) and (b) of the Agricultural Act of 1949, as amended, unless specifically provided herein.</P> <P>(3) Coordinate and prevent duplication of aerial photographic work of the Department, including:</P> <P>(i) Clearing photography projects;</P> <P>(ii) Assigning symbols for new aerial photography, maintaining symbol records, and furnishing symbol books;</P> <P>(iii) Recording departmental aerial photography flow and coordinating the issuance of aerial photography status maps of latest coverage;</P> <P>(iv) Promoting interchange of technical information and techniques to develop lower costs and better quality;</P> <P>(v) Representing the Department on committees, task forces, work groups, and other similar groups concerned with aerial photography acquisition and reproduction;</P> <P>(vi) Providing a Chairperson for the Photography Sales Committee of the Department;</P> <P>(vii) Coordinating development, preparation, and issuance of specifications for aerial photography for the Department;<PRTPAGE P="216"/> </P> <P>(viii) Coordinating and performing procurement, inspection, and application of specifications for USDA aerial photography;</P> <P>(ix) Maintaining library and files of USDA aerial film and retrieving and supplying reproductions on request.</P> <P>(4) Administer the Agricultural Conservation Program under title X of the Agricultural Act of 1970, as amended (16 U.S.C. 1501 <E T="03">et seq.</E>), and under the Soil Conservation and Domestic Allotment Act, as amended (16 U.S.C. 590g <E T="03">et seq.</E>).</P> <P>(5) Administer responsibilities and functions assigned under the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 <E T="03">et seq.</E>), and title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 <E T="03">et seq.</E>), relating to agricultural production; food processing, storage, and distribution of farm equipment and fertilizers. rehabilitation and use of feed, agricultural and related agribusiness facilities; and farm credit and financial assistance.</P> <P>(6) Administer the Emergency Conservation Program under the Agricultural Credit Act of 1978, as amended (16 U.S.C. 2201 <E T="03">et seq.</E>).</P> <P>(7) Conduct fiscal, accounting and claims functions relating to CCC programs for which the Foreign Agricultural Service has been delegated authority under § 2.43 and, in conjunction with other agencies of the U.S. Government, develop and formulate agreements to reschedule amounts due from foreign countries.</P> <P>(8) Conduct assigned activities under the Strategic and Critical Materials Stockpiling Act, as amended (50 U.S.C. 98 <E T="03">et seq.</E>).</P> <P>(9) Supervise and direct Farm Service Agency State and county offices and designate functions to be performed by Farm Service Agency State and county committees.</P> <P>(10) Administer the Dairy Indemnity Program under the Act of August 13, 1968, as amended (7 U.S.C. 450j <E T="03">et seq.</E>).</P> <P>(11) Administer procurement, processing, handling, distribution, disposition, transportation, payment, and related services with respect to surplus removal and supply operations which are carried out under section 210 of the Agricultural Act of 1956 (7 U.S.C. 1859), the Act of August 19, 1958, as amended (7 U.S.C. 1431 note), and section 709 of the Food and Agriculture Act of 1965, as amended (7 U.S.C. 1446a-1), except as delegated to the Under Secretary for Food, Nutrition, and Consumer Services in § 2.19 and to the Under Secretary for Farm and Foreign Agricultural Services in § 2.16(a)(3), and assist the Food and Consumer Service and the Agricultural Marketing Service in the procurement, handling, payment, and related services under section 32 of the Act of August 24, 1935, as amended (7 U.S.C. 612c), the Act of June 28, 1937, as amended (7 U.S.C. 713c), the National School Lunch Act, as amended (42 U.S.C. 1751 <E T="03">et seq.</E>), section 8 of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1777), section 311 of the Older Americans Act of 1965, as amended (42 U.S.C. 3030a), and section 4(a) of the Agriculture and Consumer Protection Act of 1973, as amended (7 U.S.C. 612c note), and section 1114 of the Agriculture and Food Act of 1981 (7 U.S.C. 1431e).</P> <P>(12) Administer commodity procurement and supply, transportation (other than from point of export, except for movement to trust territories or possessions), handling, payment,and related services in connection with programs under titles II and III of Public Law 480 (7 U.S.C. 1691, 1701, <E T="03">et seq.</E>) and section 3107 of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 1736o-1) (except for the authority under section 3107(d) to designate federal agencies that is reserved to the President), and payment and related services with respect to export programs and barter operations.</P> <P>(13) [Reserved]</P> <P>(14) Administer the Agricultural Foreign Investment Disclosure Act of 1978 (7 U.S.C. 3501 <E T="03">et seq.</E>) except those functions delegated in § 2.21(a)(8)(xi).</P> <P>(15) Administer energy management activities as assigned.</P> <P>(16) Conduct producer referenda of commodity promotion programs under the Beef Research and Information Act, as amended (7 U.S.C. 2901 <E T="03">et seq.</E>) and the Agricultural Promotion Programs Act of 1990, as amended (7 U.S.C. 6001 <E T="03">et seq.</E>).<PRTPAGE P="217"/> </P> <P>(17) Conduct field operations of diversion programs for fresh fruits and vegetables under section 32 of the Act of August 29, 1935.</P> <P>(18) Administer the U. S. Warehouse Act, as amended (7 U.S.C. 241-273), and perform compliance examinations for Farm Service Agency programs.</P> <P>(19) [Reserved]</P> <P>(20) Formulate and carry out the Conservation Reserve Program, including the implementation of technical assistance, under the Food Security Act of 1985, as amended (16 U.S.C. 1232 <E T="03">et seq.</E>).</P> <P>(21) Carry out functions relating to highly erodible land and wetland conservation under sections 1211-1213 and 1221-1223 of the Food Security Act of 1985, as amended (16 U.S.C. 3811-3813 and 3821-3823).</P> <P>(22) With respect to land and facilities under his or her authority, exercise the functions delegated to the Secretary by Executive Order 12580, 3 CFR, 1987 Comp., p. 193, under the following provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“the Act”), as amended:</P> <P>(i) Sections 104(a), (b), and (c)(4) of the Act (42 U.S.C. 9604(a), (b), and (c)(4)), with respect to removal and remedial actions in the event of release or threatened release of a hazardous substance, pollutant, or contaminant into the environment;</P> <P>(ii) Sections 104(e)-(h) of the Act (42 U.S.C. 9604(e)-(h)), with respect to information gathering and access requests and orders; compliance with Federal health and safety standards and wage and labor standards applicable to covered work; and emergency procurement powers;</P> <P>(iii) Section 104(i)(11) of the Act (42 U.S.C. 9604(i)(11)), with respect to the reduction of exposure to significant risk to human health;</P> <P>(iv) Section 104(j) of the Act (42 U.S.C. 9604(j)), with respect to the acquisition of real property and interests in real property required to conduct a remedial action;</P> <P>(v) The first two sentences of section 105(d) of the Act (42 U.S.C. 9605(d)), with respect to petition for preliminary assessment of a release or threatened release;</P> <P>(vi) Section 105(f) of the Act (42 U.S.C. 9605(f)), with respect to consideration of the availability of qualified minority firms in awarding contracts, but excluding that portion of section 105(f) pertaining to the annual report to Congress;</P> <P>(vii) Section 109 of the Act (42 U.S.C. 9609), with respect to the assessment of civil penalties for violations of section 122 of the Act (42 U.S.C. 9622), and the granting of awards to individuals providing information;</P> <P>(viii) Section 111(f) of the Act (42 U.S.C. 9611(f)), with respect to the designation of officials who may obligate money in the Hazardous Substances Superfund;</P> <P>(ix) Section 113(k) of the Act (42 U.S.C. 9613(k)), with respect to establishing an administrative record upon which to base the selection of a response action and identifying and notifying potentially responsible parties;</P> <P>(x) Section 116(a) of the Act (42 U.S.C. 9616(a)), with respect to preliminary assessment and site inspection of facilities;</P> <P>(xi) Sections 117(a) and (c) of the Act (42 U.S.C. 9617(a) and (c)), with respect to public participation in the preparation of any plan for remedial action and explanation of variances from the final remedial action plan for any remedial action or enforcement action, including any settlement or consent decree entered into;</P> <P>(xii) Section 119 of the Act (42 U.S.C. 9119), with respect to indemnifying response action contractors;</P> <P>(xiii) Section 121 of the Act (42 U.S.C. 9621), with respect to cleanup standards; and</P> <P>(xiv) Section 122 of the Act (42 U.S.C. 9622), with respect to settlements, but excluding section 122(b)(1) of the Act (42 U.S.C. 9622(b)(1)), related to mixed funding agreements.</P> <P>(23) With respect to facilities and activities under his or her authority, to exercise the authority of the Secretary of Agriculture pursuant to section 1-102 related to compliance with applicable pollution control standards and section 1-601 of Executive Order 12088, 3 CFR, 1978 Comp., p. 243, to enter into an inter-agency agreement with the <PRTPAGE P="218"/>United States Environmental Protection Agency, or an administrative consent ord