$0.735-54 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.

$0.735-55 Department representative.

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

$0.735-56 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.

$0.735-57 Representation.

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

§ 0.735–58 Rights of parties at hearing.

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

$0.735-59 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

hearing officer shall exclude irrelevant or unduly repetitious evidence.

$0.735-60 Transcript.

The hearing officer shall cause a transcript to be made of the hearing and a copy of it shall be made available to petitioner and to respondent.

$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.

$0.735-62 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.

$0.735-63 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.

$0.735-64 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.

$0.735-65 Burden of proof.

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

$0.735-66 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.

$0.735-67 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.

$0.735-68 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.

$0.735-69 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.

$0.735-70 Finality.

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

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.

§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.

(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

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 which would be of concern to a person wishing to request records from that agency in accordance with this subpart.

§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;