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80.735-54 Hearing officer.

If the respondent, after receiving notice of action under this subpart, requests a hearing, the Secretary shall appoint a hearing officer for the matter. The hearing officer shall be an individual who has not been involved in any of the events specified in the allegations and who did not participate in the investigation of the allegations, or the decision to institute the proceeding, or the referral of the matter, if any, to the Department of Justice. The hearing officer shall be an individual with suitable experience and training to conduct the hearing, reach a determination and render an initial decision in an equitable manner. 80.735-55 Department representative.

The Director of Personnel shall appoint a Department representative (hereinafter petitioner) to present evidence and otherwise participate in the hearing.

$0.735-61 Briefs and discovery.

There shall be no discovery prior to the hearing, nor shall any briefs be submitted, absent specific request of the hearing officer.

80.73562 Open hearing.

All hearings shall be open to the public unless closed for good cause by the hearing officer. Such a finding shall be made a part of the record by the hearing officer.

80.735-63 Ex-parte communications.

Neither petitioner or respondent, nor any representative thereof, shall make any ex-parte communications to the hearing officer concerning merits of the allegations against respondent prior to the issuance of his or her initial decision.

80.735–56 Time, date and place of

hearing. The hearing shall be held at a time and place specified by the hearing officer. The hearing officer shall give due regard in setting a hearing date to:

(a) Allowing the respondent adequate time to prepare a defense properly; and

(b) Providing the respondent an expeditious resolution of allegations that may be damaging to his or her reputation.

80.735-64 Administrative record.

The record of any proceeding shall consist of the statement of allegations conveyed to respondent, the transcript of the testimony at the hearing, the documents and other evidence produced and made a part of the record at the hearing, all pleadings and the initial decision of the hearing officer.

80.735–57 Representation.

Respondent shall be entitled to appear personally, or to appear through or be accompanied by a representative, at the hearing.

80.735-58 Rights of parties at hearing.

Petitioner and respondent shall be entitled to introduce, examine and cross examine witnesses, submit evidence, and present oral arguments.

80.735-65 Burden of proof.

The petitioner shall have the burden of proof in this proceeding and must establish a violation by substantial evidence.

80.735–59 Oaths and rules of evidence.

All testimony shall be taken under oath. The hearing officer shall conduct the hearing so as to bring out pertinent facts, including the production of pertinent documents. Rules of evidence shall not be applied strictly, but the

80.735-66 Initial decision.

Within 30 days of the termination of the hearing, the hearing officer shall issue an initial decision on the matter. In his or her initial decision, he or she shall set forth all findings of fact and conclusions of law relevant to the matters at issue.

PART 1-ADMINISTRATIVE

REGULATIONS

Subpart A-Official Records

80.735-67 Appeal.

Within 15 days of the date of receipt of the initial decision either party may appeal the initial decision or any portion thereof to the Assistant Secretary for Administration, in writing, pointing to errors in the findings of fact or conclusions of law contained in the initial decision. The opposing party shall have ten days after receipt of a copy of the appeal to reply.

80.735-68 Final decision.

The Assistant Secretary for Administration shall accept or reject the findings and conclusions of the hearing officer. This decision shall be based solely upon the record of the proceeding and the letters of the parties commenting on the initial decision. Neither party shall make any ex-parte communication to the Assistant Secretary for Administration concerning the merits of the appeal prior to issuance of his or her final decision.

Sec. 1.1 Purpose and scope. 1.2 Policy. 1.3 Agency implementing regulations. 1.4 Implementing regulations for the Office

of the Secretary. 1.5 Public access to certain materials. 1.6 Requests for records. 1.7 Aggregating requests. 1.8 Agency response to requests for records. 1.9 Search services. 1.10 Review services. 1.11 Handling information from a private

business. 1.12 Date of receipt of requests or appeals. 1.13 Appeals. 1.14 Extension of administrative deadlines. 1.15 Failure to meet administrative dead

lines. 1.16 Fee schedule. 1.17 Exemptions and discretionary release. 1.18 Annual report. 1.19 Compilation of new records. 1.20 Authentication. 1.22 Records in formal adjudication pro

ceedings. 1.23 Preservation of records. APPENDIX A-FEE SCHEDULE

80.735-69 Sanctions.

In event of a finding, not overturned on appeal, of a violation of 18 U.S.C. 207, the Assistant Secretary for Administration may:

(a) Prohibit the respondent from making, on behalf of any other person (except the United States) any formal or informal appearance before, or, with the intent to influence, any oral or written communication to the Department on any matter of business for a period not to exceed five years, which may be accomplished by directing Department employees to refuse to participate in any such appearances or to accept any such communications; and

(b) Take other appropriate disciplinary action.

Subpart B-Departmental Proceedings 1.26 Representation before the Department

of Agriculture. 1.27 Rulemaking and other notice proce

dures. 1.28 Petitions. 1.29 Subpoenas relating to investigations

under statutes administered by the Secretary of Agriculture.

Subpart C-Judicial Proceedings

1.41 Service of process.

Subpart D-Claims 1.51 Claims based on negligence, wrongful

act, or omission.

Subpart E-Cooperative Production of

Television Films

80.735–70 Finality.

There shall be no appeal within the Department from the decisions of the Assistant Secretary for Administration made pursuant to this subpart.

1.71 Purpose. 1.72 Policy. 1.73 Responsibility. 1.74 Basis for special working relationships. 1.75 General stipulations.

1.76 Department cooperation. 1.77 Assignment of priorities. 1.78 Development of special working rela

tionships. 1.79 Credits.

Subpart G-Privacy Act Regulations 1.110 Purpose and scope. 1.111 Definitions. 1.112 Procedures for requests pertaining to

individual records in a record system. 1.113 Times, places, and requirements for

identification of individuals making re

quests. 1.114 Disclosure of requested information to

individuals. 1.115 Special procedures: medical records. 1.116 Request for correction or amendment

to record. 1.117 Agency review of request for correc

tion or amendment of record. 1.118 Appeal of initial adverse agency deter

mination on correction or amendment. 1.119 Disclosure of record to person other

than the individual to whom it pertains. 1.120 Fees. 1.121 Penalties. 1.122 General exemptions. 1.123 Specific exemptions. APPENDIX A-INTERNAL DIRECTIVES

Subpart 1-Rules of Practice Govering

Coase and Desist Proceedings Under

Section 2 of the Capper-Volstead Act 1.160 Scope and applicability of rules in this

part. 1.161 Definitions. 1.162 Institution of proceedings. 1.163 The complaint. 1.164 Answer. 1.165 Amendments. 1.166 Consent order. 1.167 Conference. 1.168 Procedure for hearing. 1.169 Post-hearing procedure and decision. 1.170 Appeal to the Judicial Officer. 1.171 Intervention. 1.172 Motions and requests. 1.173 Judges. 1.174 Filing; service; extensions of time; and

computation of time. 1.175 Procedure following entry of cease and

desist order.

Subpart J-Procedures Relating to Awards

Under the Equal Access to Justice Act in Proceedings Before the Department

GENERAL PROVISIONS 1.180 Definitions. 1.181 Purpose of these rules. 1.182 When the Act applies. 1.183 Proceedings covered. 1.184 Eligibility of applicants. 1.185 Standards for awards. 1.186 Allowable fees and expenses. 1.187 Rulemaking on maximum rates for at

torney fees. 1.188 Awards against other agencies. 1.189 Delegations of authority.

Subpart H-Rules of Practice Governing

Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes

INFORMATION REQUIRED FROM APPLICANTS 1.190 Contents of application. 1.191 Net worth exhibit. 1.192 Documentation of fees and expenses. 1.193 Time for filing application.

1.130 Meaning of words. 1.131 Scope and applicability of this sub

part. 1.132 Definitions. 1.133 Institution of proceedings. 1.134 Docket number. 1.135 Contents of complaint. 1.136 Answer. 1.137 Amendment of complaint or answer. 1.138 Consent decision. 1.139 Procedure upon failure to file an an

swer or admission of facts. 1.140 Conferences and procedure. 1.141 Procedure for hearing. 1.142 Post-hearing procedure. 1.143 Motions and requests. 1.144 Judges. 1.145 Appeal to Judicial Officer. 1.146 Petitions for reopening hearing; for re

hearing or reargument of proceeding; or for reconsideration of decision of the Ju

dicial Officer. 1.147 Filing; service; extensions of time; and

computation of time. 1.148 Depositions. 1.149 Subpoenas. 1.150 Fees of witnesses. 1.151 Ex parte communications.

PROCEDURES FOR CONSIDERING APPLICATIONS 1.194 Filing and service of documents. 1.195 Answer to application. 1.196 Reply. 1.197 Comments by other parties. 1.198 Settlement. 1.199 Further proceedings. 1.200 Decision. 1.201 Department review. 1.202 Judicial review. 1.203 Payment of award.

Subpart K-Appearance of USDA Employ

ees as Witnesses in Judicial or Admin

istrative Proceedings 1.210 Purpose. 1.211 Definitions. 1.212 General.

1.213 Appearance as a witness on behalf of

the United States. 1.214 Appearance as a witness on behalf of a

party other than the United States where

the United States is not a party. 1.215 Subpoenas duces tecum for USDA

records in judicial or administrative proceedings in which the United States is

not a party. 1.216 Appearance as a witness or production

of documents on behalf of a party other than the United States where the United

States is a party. 1.217 Witness fees and travel expenses. 1.218 Penalty. 1.219 Delegations.

1.339 Stays ordered by the Department of

Justice. 1.340 Stay pending appeal. 1.341 Judicial review. 1.342 Collection of civil penalties and as

sessments. 1.343 Right to administrative offset. 1.344 Deposit to Treasury of the United

States. 1.345 Settlement. 1.346 Limitation.

Subpart M-Rules of Practice Governing

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

Subpart L-Procedures Related to Adminis

trative Hearings Under the Program Fraud Civil Remedies Act of 1986

Sec. 1.301 Basis, purpose and scope. 1.302 Definitions. 1.303 Basis for civil penalties and assess

ments. 1.304 Investigation. 1.305 Review by the reviewing official. 1.306 Prerequisites for issuing a complaint. 1.307 Complaint. 1.308 Service of complaint and notice of

hearing. 1.309 Answer and request for hearing. 1.310 Default upon failure to file an answer. 1.311 Referral of complaint and answer to

the ALJ. 1.312 Procedure where respondent does not

request a hearing. 1.313 Procedure where respondent requests a

hearing; notice of hearing. 1.314 Parties to the hearing. 1.315 Separation of functions. 1.316 Ex parte contacts. 1.317 Disqualification of reviewing official

or ALJ. 1.318 Rights of parties. 1.319 Authority of the ALJ. 1.320 Prehearing conferences. 1.321 Disclosure of documents. 1.322 Discovery. 1.323 Subpoenas for attendance at hearing. 1.324 Fees. 1.325 Form, filing and service of papers. 1.326 Computation of time. 1.327 Motions. 1.328 Sanctions. 1.329 The hearing and burden of proof. 1.330 Location of hearing. 1.331 Witnesses. 1.332 Evidence. 1.333 The record. 1.334 Post-hearing briefs. 1.335 Determining the amount of penalties

and assessments. 1.336 Initial decision of the ALJ. 1.337 Reconsideration of initial decision. 1.338 Appeal to the judicial officer.

1.410 Meaning of words. 1.411 Definitions. 1.412 Institution of proceedings. 1.413 Submission of a sourcing area applica

tion. 1.414 Docket number. 1.415 Notification of proceedings. 1.416 Comment period. 1.417 Review period. 1.418 Procedure upon no request for hearing. 1.419 Amendment of a sourcing area applica

tion. 1.420 Consent recommendation. 1.421 Prehearing conferences and procedures. 1.422 Conduct of the hearing. 1.423 Post-hearing procedure. 1.424 Motions and requests. 1.425 Judges. 1.426 Appeal to Judicial Officer. 1.427 Filing; identification of parties of

record; service; and computation of time. 1.428 Depositions. 1.429 Ex parte communications.

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

Subpart A-Official Records

AUTHORITY: 5 U.S.C. 301 and 552. Appendix A also issued under 7 U.S.C. 2244; 31 U.S.C. 9701, and 7 CFR 2.75(a)(6)(xiii).

SOURCE: 52 FR 49386, Dec. 31, 1987, unless otherwise noted.

$ 1.1 Purpose and scope.

This subpart establishes policy, procedures, requirements, and responsibilities for administration and coordination of the Freedom of Information Act (FOIA), 5 U.S.C. 552, pursuant to which official records may be obtained by any person. It also provides rules pertaining to the disclosure of records pursuant to compulsory process. This sub

part 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 Governmental and Public Affairs. The Office of Governmental and Public Affairs has the primary administrative responsibility for the FOIA in the Department of Agriculture (USDA). The term "agency” or “agencies" is used throughout this subpart to include both USDA program agencies and staff offices.

grant or deny such requests. Authority to make such determinations includes authority to:

(i) Extend the 10-day administrative deadline for reply pursuant to $1.14;

(ii) Make discretionary releases pursuant to $1.17(b); and

(iii) Make determinations regarding the charging of fees pursuant to appendix A of this subpart;

(4) The title and mailing address of the official of the agency who is authorized to receive appeals submitted in accordance with $1.6(e) and to make determinations regarding whether to grant or deny such appeals. Authority to determine appeals includes authority to:

(i) Extend the 20-day administrative deadline for reply pursuant to $1.14 (to the extent the maximum extension authorized by $1.14(c) was not used with regard to the initial request);

(ii) Make discretionary releases pursuant to $ 1.17(b); and

(iii) Make determinations regarding the charging of fees pursuant to appendix A of this subpart; and

(5) Other information wh would be of concern to a person wishing to request records from that agency in accordance with this subpart.

8 1.2 Policy.

(a) Agencies of USDA shall comply with the time limits set forth in the FOIA for responding to and processing requests and appeals for agency documents, unless there are exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(B). An agency shall notify a requester in writing whenever it is unable to respond to or process a request or appeal within the time limits established by the FOIA.

(b) All agencies of the Department shall comply with the fee schedule provided as appendix A of this subpart, with regard to the charging of fees for providing copies of documents and related services to requesters. 8 1.3 Agency implementing regula

tions. (a) Each agency of the Department shall promulgate regulations setting forth the following:

(1) 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 $1.5 to be made available for public inspection and copying;

(2) Information regarding the publication and distribution (by sale or otherwise) of indexes and supplements thereto which are maintained in accordance with the requirements of 5 U.S.C. 552(a)(2) and $1.5(b);

(3) The title(s) and mailing address(es) of the official(s) of the agency who is/are authorized to receive requests for records submitted in accordance with $1.6(a), and to make determinations regarding whether to

$ 1.4 Implementing regulations for the

Office of the Secretary. (a) For the Office of the Secretary and for the Office of Governmental and Public Affairs, the information required by $1.3 is as follows:

(1) Records available for public inspection and copying may be obtained in room 536-A, Administration Building, USDA, Washington, DC 20250 during the hours of 9:00 a.m. to 5:00 p.m.;

(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, Administration Building, USDA, Washington, DC 20250 during the hours of 9:00 a.m. to 5:00 p.m.;

(3) The person authorized to receive FOIA requests and to determine whether to grant or deny such requests is the Director of Information, Office of Governmental and Public Affairs, USDA, Washington, DC 20250;

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