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(iii) by registering or certifying and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to the attorney or agent of record, at the last known residence or principal office or place of business of such person: Provided, That if the registered or certified document or paper is returned undelivered because the addressee refused or failed to accept delivery, the document or paper shall be served by remailing it by regular mail; or
(iv) by mailing the document or paper by regular mail.
(2) Proof of service hereunder shall be made by the certificate of the person who actually made the service: Provided, that if the service is made by mail, as outlined in paragraph (b)(3) of this section, proof of service shall be made by the return post-office receipt, in the case of registered or certified mail, and if that service is made by regular mail, as outlined in paragraphs (b)(3) and (b)(4) of this section, proof of service shall be made by the certificate of the person who mailed the matter by regular mail. The certificate and postoffice receipt contemplated herein shall be filed with the Hearing Clerk, and made a part of the record of the proceeding. The Judge and the Hearing Clerk shall follow the procedures outlined in (c) for service of papers or documents signed by the Judge and/or the Hearing Clerk.
(d) Effective date of filing. Any document or paper required or authorized under the rules in this part to be filed shall be deemed to be filed at the time when it reaches the Hearing Clerk; or, if authorized to be filed with another officer or employee of the Department it shall be deemed to be filed at the time when it reaches such officer or employee.
(e) Computations of time. Saturdays, Sundays and Federal holidays shall be included in computing the time allowed for the filing of any document or paper except as provided in these rules; Provided, that, when such time expires on a Saturday, Sunday, or Federal holiday, such period shall be extended to include the next following business day.
8 1.428 Depositions.
(a) Motion for taking deposition. Upon the motion of a party to the proceeding, the Judge may, at any time after the filing of the submission, order the taking of testimony by deposition. The Motion shall be in writing, shall be filed with the Hearing Clerk, and shall set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of the person (referred to hereafter in this section as the “officer") qualified under the regulations in this part to take depositions, before whom the proposed examination is to be made;
(3) The proposed time and place of the examination; and
(4) The reasons why such deposition should be taken, which shall be solely for the purpose of eliciting testimony which otherwise might not be available at the time of the hearing, for uses as provided in paragraph (g) of this section.
(b) Judge's order for taking deposition. (1) If the Judge finds that testimony may not be otherwise available at the hearing, the taking of the deposition may be ordered. The order shall be served upon the parties, and shall state:
(i) The time and place of the examination;
(ii) The name of the officer before whom the examination is to be made; and
(iii) The name of the deponent.
(2) The officer and the time and place need not be the same as those suggested in the motion.
(c) Qualifications of officer. The deposition shall be made before the Judge or before an officer authorized by the law of the United States or by the law of the place of the examination to administer oaths, or before an officer authorized by the Secretary to administer oaths.
(d) Procedure on examinations. (1) The deponent shall be subject to cross-examination. Objections to questions or documents shall be in short form, stating the grounds of objections relied upon. The questions propounded, together with all objections made (but not including argument or debate), shall be recorded verbatim. In lieu of
Al examination, parties may transt written questions to the officer or to the examination and the offi' shall propound such questions to } deponent. 2) The applicant shall arrange for examination of the witness either oral examination, or by written }stions upon agreement of the parS or as directed by the Judge. If the lmination is conducted by means of itten questions, copies of the quesns shall be served upon the other ‘ty to the proceeding and filed with } officer and the other party may 've cross questions and file them th the officer at any time prior to 3 time of the examination. e) Certification by officer. The officer all certify on the deposition that the ponent was duly sworn and that the position is a true record of the depont's testimony. The officer shall Bn Securely Seal the deposition, tother with one copy thereof (unless ere are more than two parties in the Oceeding, in which case there should another copy for each additional rty), in an envelope and mail the me by registered or certified mail to e Hearing Clerk. (f) Corrections to the transcript. (1) At ly time prior to the hearing any rty may file a motion proposing corctions to the transcript of the deposiOn. (2) Unless a party files such a motion the manner prescribed, the tranript shall be presumed, except for obOus typographical errors, to be a ue, correct, and complete transcript the testimony given in the deposiOn proceeding and to contain an accute description or reference to all exbits in connection therewith, and all be deemed to be certified correct thout further procedure. (3) At any time prior to use of the position in accordance with paraaph (g) of this section and after conderation of any objections filed there, the Judge may issue an order makg any corrections in the transcript hich the Judge finds are warranted, hich corrections shall be entered onto le original transcript by the Hearing o: (without obscuring the original }Xù).
(g) Use of deposition. A deposition ordered and taken in accordance with the provisions of this section may be used in a proceeding under these rules if the Judge finds that the evidence is otherwise admissible and that the witness is dead; that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or that such exceptional circumstances exist as to make it desirable, in the interests of justice, to allow the deposition to be used. If the party upon whose motion the deposition was taken refuses to offer it in evidence, any other party may offer the deposition or any thereof in evidence. If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction of any other part which ought in fairness to be considered with the part introduced and any party may introduce any other parts.
$1.429 Ex parte communications.
(a) At no stage of the proceeding between its institution and issuance of the final decision shall an employee of the Department who is or may reasonably be expected to be involved in the decisional process of the proceeding discuss ex parte the merits of the proceeding with any person having an interest in the proceeding, or with any representative of such person: Provided, That, procedural matters and status reports shall not be included within this limitation; and Provided further, That an employee of the Department who is or may be involved in the decisional process of the proceeding may discuss the merits of the proceeding if all parties of record have been given notice and an opportunity to participate. A memorandum of any such discussion shall be included in the record. (b) No interested person shall make or knowingly cause to be made to the Judge an ex parte communication relevant to the merits of the proceeding. (c) If the Judge reviews an ex parte communication in violation of this Section, the one who receives the communication shall place in the public record of the proceeding: (1) All such written communication; (2) Memoranda stating the substance of all such oral communications; and
(c) The carrying of firearms by designated officials of the Office of Inspector General.
(3) All written responses, and memoranda stating the substance of all oral responses thereto.
(d) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this section, the Judge may, to the extent consistent with the interests of justice and the policy of the underlying statute, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
(e) To the extent consistent with the interests of justice and the policy of the underlying statute, a violation of this section shall be sufficient grounds for a decision adverse to the party who knowingly commits a violation of this section or who knowingly causes such a violation to occur.
(f) For purposes of this section “ex parte communication" means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or the proceeding.
8 la.2 Authorization.
Any official of the Office of Inspector General who is designated by the Inspector General according to ss la.3 and la.5 of this part and who is engaged in the performance of his/her official duties under the authority provided in section 6, or described in section 9, of the Inspector General Act of 1978 (5 U.S.C. App.), is authorized to
(a) Make an arrest without a warrant for any criminal felony violation subject to la.4, if such violation is committed, or if the official has probable cause to believe that such violation is being committed, in his/her presence;
(b) Execute and serve a warrant for an arrest, for the search of premises, or the seizure of evidence if such warrant is issued under authority of the United States upon probable cause to believe that any criminal felony violation, subject to $la.4, has been committed; and
(c) Carry a firearm. (50 FR 13759, Apr. 8, 1985)
(b) This part sets forth Departmental policy concerning NEPA, establishes categorical exclusions of actions carried out by the Department and its agencies, and sets forth those USDA agencies which are excluded from the requirement to prepare procedures implementing NEPA. [48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995)
EFFECTIVE DATE NOTE: At 60 FR 66481, Dec. 22, 1995, $16.1 was amended in paragraph (a), by removing the words “This subpart” and adding the words “This part” in their place, by removing the words “Council of” and adding the words “Councii on” in their place, and by removing the words "The subpart" and ad ag the words “This part” in their place, and in paragraph (b), by removing the word “subpart" and adding the word “part". in its place, effective January 22, 1996.
8 1b.2 Policy.
(a) USDA agencies carry out programs for the purpose of encouraging sufficient and efficient production of food, fiber, and forest products; proper management and conservation of the Nation's natural resources; and the protection of consumers through inspection services. Programs to meet this mission are carried out through research; education; technical and financial assistance to landowners and operators, producers, and consumers; and management of the National Forest System.
(b) All policies and programs of the various USDA agencies shall 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.
(c) 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.
(d) 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 (7 CFR 2.19(b)). The
(a) Issue directives conforming to this part governing the exercise of the authorities granted by this part. These directives should contain the policies and procedures by which the authorities will be exercised by designated officials of the Office of Inspector General;
(b) Establish criteria for qualification by officials of the Office of Inspector General who are designated to exercise the authorities granted in this part;
(c) Monitor the implementation and exercise of the authorities granted by this part;
(d) Designate, pursuant to $$ 1a.2, la.3 and la.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 gla.2; and
(e) Submit to the Attorney General of the United States the name of any employee of the Office of Inspector General designated pursuant to paragraph (d) of this section. Any designation not specifically disapproved by the Attorney General within 30 days after the date of submission shall be deemed approved.
AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321 et seq.; E.O. 11614, 3 CFR, 1966–1970 Comp., p. 902, as amended by E.O. 11991, 3 CFR, 1978 Comp., p. 123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40 CFR 1507.3.
SOURCE: 48 FR 11403, Mar. 18, 1983, unless otherwise noted.
(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.
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.
(e) In connection with the policies and requirements set forth in this part, all USDA agencies are responsible for compliance with Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions.” Compliance will include the preparation and implementation of specific procedures and processes relative to the programs and activities of the individual agencies, as necessary. Agencies shall consult with the Department of State; the Council on Environmental Quality; and the Under Secretary, NR&E, prior to placing procedures and processes in effect. [48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995)
EFFECTIVE DATE NOTE: At 60 FR 66481, Dec. 22, 1995, $16.2 was amended as follows: 1) by removing paragraph (a); 2) in paragraph (c), by removing the words “the provisions of this subpart" and adding the words “this part” in their place and by removing the words "the provisions of NEPA" and adding the word “NEPA” in their place; 3) in paragraph (d), the first sentence, by removing the word "Assistant” and adding the word “Under" in its place and by removing the reference “(7 CFR 2.19(b))”, and in paragraph (d), the second sentence, by removing the words "Assistant Secretary, through the USDA Natural Resources and Environment Committee" and adding the words “Under Secretary, NR&E, through the Agricultural Council on Environmental Quality” in their place; 4) in paragraph (e), the first sentence, by removing the word “subpart” and adding the word “part" in its place, and in paragraph (e), the third sentence, by removing the word “Assistant" and adding the word “Under" in its place; and 5) by redesignating paragraphs (b), (c), (d), and (e) as paragraphs (a), (b), (c), and (d), respectively, effective January 22, 1996.
agency procedures prescribed otherwise.
(1) Policy development, planning and implementation which relate to routine activities, such as personnel, organizational changes, or similar administrative functions;
(2) Activities which deal solely with the funding of programs, such as program budget proposals, disbursements, and transfer - or reprogramming of funds;
(3) Inventories, research activities, and studies, such as resource inventories and routine data collection when such actions are clearly limited in context and intensity;
(4) Educational and informational programs and activities;
(5) Civil and criminal law enforcement and investigative activities;
(6) Activities which are advisory and consultative to other agencies and public and private entities, such as legal counselling and representation;
(7) Activities related to trade representation and market development activities abroad.
(b) Agencies will identify in their own procedures the activities which normally would not require an environmental assessment or environmental impact statement.
(c) Notwithstanding the exclusions listed in paragraphs (a) of this section and 81b.4, or identified in agency procedures, agency heads may determine that circumstances dictate the need for preparation of an EA or EIS for a particular action. Agencies shall continue to scrutinize their activities to determine continued eligibility for categorical exclusion.
(48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995)
EFFECTIVE DATE NOTE: At 60 FR 66481, Dec. 22, 1995, $10.3 was amended in paragraph (c) by removing the words "above and in" and adding the words “in paragraphs (a) of this section and" in their place, effective January 22, 1996.
g 16.3 Categorical exclusions.
(a) The following are categories of activities which have been determined not to have a significant individual or cumulative effect on the human environment and are excluded from the preparation of environmental assessment (EA's) or environmental impact statement (EIS’s), unless individual
8 1b.4 Exclusion of agencies.
(a) The USDA agencies and agency units listed in paragraph (b) of this section conduct programs and activities that have been found to have no individual or cumulative effect on the human environment. The USDA agen