ASCS, 2222 West 2300 South, P.O. Box 30010, Salt Lake City, Utah 84130. Subpart B-Departmental § 1.26 Representation before the Department of Agriculture. (a) Applicability. The provisions of this section apply 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 such provisions, or any part thereof, inapplicable as to particular hearings or other proceedings. (b) Administrative provisions. (1) In any hearing or other proceeding before the Department of Agriculture, the parties may appear in person or by counsel or other representative. Persons who appear as counsel or in a representative capacity in any hearing or proceeding must conform to the standards of ethical conduct required of practitioners before the U.S. District Court for the District of Columbia, and to any applicable standards of ethical conduct established by statutes, executive orders and regulations. (2) Whenever the Secretary finds, after notice and opportunity for hearing, that a person who is acting or has acted as counsel or representative in any hearing or other proceeding before the Department has not conformed to any such standards of ethical conduct, he 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 he 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, he may, by written notice to such person, suspend him from acting as such a counsel or representative pending completion of the procedures specified in the preceding sentence. (3) No employee or former employee of the Department shall be permitted to represent any person before the Department in connection with any par ticular matter as to which by reason of his employment he acquired personal knowledge of such a nature that it would be improper, unethical, or contrary to the public interest for him so to act. (4) This section shall not be construed to prevent an employee or former employee of the Department from appearing as a witness in any hearing or other proceeding before the Department. (c) Statutory provisions. Chapter 11 of Title 18, United States Code prohibits employees and former employees from representing others under certain circumstances. See § 0.735-41 of this subtitle for illustrations. (18 U.S.C. 203, 205, 207) § 1.27 Rulemaking procedures. In all cases where notice of proposed rule making is given: (a) The notice shall indicate the procedure to be followed in the rule making proceeding unless the procedure is prescribed by statute or by published rule of the Department. Each notice of proposed rule making shall contain a statement which will advise the public of the policy regarding availability of written submissions by indicating specifically whether paragraph (b), (c), or (d) of this section will be applicable to submissions made pursuant to the notice. (b) All written submissions made pursuant to notice of proposed rule making shall be made available for public inspection at such times and places and in a manner convenient to the public business. (c) Any submission, pursuant to such notice, will be held confidential when so requested by the person making the submission upon a determination, by an official of the Department authorized to issue the rule under consideration, that he has shown that the making public of the submission may result in an adverse effect on him by reason of: (1) Disclosing trade secrets, processes, operations, style of work or apparatus, or the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures; or (2) Exposing such person to substantial disadvantage in his business or employment. Where request is made hereunder for confidential treatment of a 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. Any such request will be held confidential; however, where a determination is made to grant a request for confidential treatment under paragraph (c)(2) of this section, a statement of the specific basis for such determination which will not be susceptible of identifying the person making the request will be made available for public inspection. (d) Where the nature of the subject matter of the proposed rule is such that meaningful submissions cannot be expected unless they treat with matters of the kind referred to in paragraph (c) of this section, then in that event the notice of proposed rule making shall so indicate and also contain a statement that submissions pursuant thereto will be treated as confidential: Provided, That such action shall have the prior approval of the Secretary, the Under Secretary, or an Assistant Secretary. (e) This section shall apply in any instance where the Department or an agency thereof by published notice 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. [29 FR 7311, June 5, 1964, as amended at 29 FR 9319, July 8, 1964] § 1.28 Petitions. Petitions by interested persons in accordance with the provisions of section 4(d) of the Administrative Procedure Act (60 Stat. 239; 5 U.S.C. 1003(d)) 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 peti tioners will be notified promptly of the disposition made of their petitions. [11 FR 177A-233, Sept. 11, 1946. Redesignated at 13 FR 6703, Nov. 16, 1948] § 1.29 Subpoenas relating to investigations under statutes administered by the Secretary of Agriculture. (a) Issuance of subpoena. 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, such 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 statute relates, if the official who is to issue the subpoena is satisfied as to the reasonableness of the grounds, necessity and scope thereof: Provided, however, That the authority to issue subpoenas may not be delegated or redelegated by the head of an agency. Notwithstanding the foregoing proviso, the Administrator, Agricultural Marketing Service may delegate the authority to issue subpoenas in connection with investigations being conducted under the Packers and Stockyards Act, as amended and supplemented (7 U.S.C. 181-229), to the Deputy Administrator, Packers and Stockyards, Agricultural Marketing Service. (b) Service of subpoena. (1) A subpoena issued pursuant to this section may be served by: (i) A U.S. Marshal or Deputy Marshal, (ii) Any other person who is not less than 18 years of age, or (iii) Certified or registered mailing of a copy of the subpoena addressed to the person to be served at his or its last known residence or principal place of business or residence. (2) Proof of service may be made by the return of service on the subpoena by the U.S. Marshal, or Deputy Mar shal; 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 personally served a copy of the subpoena upon the person named therein; or, if service was by certified or registered mail, by the signed Postal Service receipt. (3) In making personal service, the person making service shall leave a copy of the subpoena with the person subpoenaed; and the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the subpoena. (5 U.S.C. 301). [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] Subpart C-Judicial Proceedings § 1.41 Service of process. Process in any suit brought in Washington, District of Columbia, against the United States or any officer of the U.S. Department of Agriculture in any matter involving the activities of this Department, shall be served on the General Counsel of the Department. A U.S. Marshal or other process server attempting to serve process in such a suit on any officer of the Department shall be referred to the Office of the General Counsel, in order that service of process may be made. In the event an officer of the Department of Agriculture is served with process in such a suit, he 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. Service of process shall be made upon the General Counsel to enforce child support or alimony payments owned by employees of the Department either personally or by certified registered mail, return receipt requested. [19 FR 4052, July 3, 1954, as amended at 33 FR 10273, July 18, 1968; 43 FR 6202, Feb. 14, 1978] Subpart D-Claims § 1.51 Claims based on negligence, wrong. ful act, or omission. (a) Authority of Department—(1) Claims which accrue prior to January 18, 1967. Under the provisions of the Federal Tort Claims Act, 28 U.S.C. 2671-2680 in effect prior to January 18, 1967, the Department may consider, ascertain, adjust, determine and settle claims for money damages of $2,500 or less 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 the Department while acting within the scope of his 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. This paragraph applies only to those claims which accrue before January 18, 1967. (2) Claims which accrue on or after January 18, 1967. Under the provisions of the Federal Tort Claims Act, as amended, in effect on and after January 18, 1967, and the regulations issued by the Department of Justice contained in 28 CFR Part 14, the Department may, subject to the provisions of such Act and 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 the Department while acting within the scope of his 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. This paragraph applies only to those claims which accrue on or after January 18, 1967. (b) Procedure for filing claims. Claims may be presented by the claimant, his duly authorized agent or legal pro provis Act prior ent deter e caus (c) Determination of claims-(1) Delgation of authority to determine laims. The General Counsel, and uch Washington and field employees ey of the Office of the General Counsel st S may be designated by the General jury Counsel, are hereby authorized to conider, ascertain, adjust, determine, act compromise, and settle claims pursuhe Dant to the Federal Tort Claims Act, as e Samended, and the regulations conunder-ained in 28 CFR Part 14 and in this ed section. This delegation supersedes ould that part of the delegation of authorelity to the General Counsel published - Oin 27 FR 5917 which relates to allowappliance and disallowance of tort claims. claims by the Government for money or property, 4 CFR Chapter II. (b) General collection standards The Joint Regulations of the Attorney General and the Comptroller General set forth in 4 CFR, Chapter II, are ap plicable to and controlling on the U.S. Department of Agriculture to the extent that statutes other than the Federal Claims Collection Act of 1966, or authorized regulations issued pursuant to such other statutes, do not establish standards governing the matters covered by such Joint Regulations. (c) Designation. The head of each agency of the Department, and such persons as may be designated by him for such purpose, with respect to claims of his agency (or the Director, National Finance Center on behalf of each agency head), is authorized to perform all of the duties and exercise all of the authority of the Secretary under the Federal Claims Collection Act of 1966, the aforementioned Joint Regulations of the Attorney General and the Comptroller General, and the regulations in this section: Provided, That with respect to claims of $400 or more, exclusive of interest, the head of each such agency may, if he considers it necessary or advisable to do so, direct that no compromise shall be effected or collection action terminated or suspended under authority of such Act and regulations, except with the advice and counsel of the Office of the General Counsel of the U.S. Department of Agriculture. (Sec. 3, 80 Stat. 309; 31 U.S.C. 952) [32 FR 2805, Feb. 11, 1967, as amended at 42 FR 10299, Feb. 22, 1977] Subpart E-Cooperative Production of Television Films SOURCE: 22 FR 2904, Apr. 25, 1957, unless otherwise noted. § 1.71 Purpose. This subpart establishes procedures for developing special working relationships with the Department of Agriculture requested by producers of films for television use. These procedures are designed to guide Department employees and producers of com the Judicial Officer, or the Hearing Clerk when directed by the Judicial Officer, may authenticate copies of documents in the records of the Hearing Clerk. § 1.15 Compulsory process. (a) (1) In any case where it is sought by subpoena, order, or other compulsory process or demand (hereinafter in this section referred to as a "demand") to require the production or disclosure of any record or material which is exempt from disclosure under 5 U.S.C. 552(b) or information related thereto acquired by an employee of this Department in the performance of his official duties or because of his official status, the matter shall be referred to an official authorized by agency regulations to make releases pursuant to § 1.11(b) of this subpart. (2) Such official may authorize release. However, if such official determines that it would be improper to comply with the demand, he shall refer it to the agency head. The agency head may authorize release; however, if the agency head concurs with the initial conclusion, the matter shall be referred to the Secretary for final determination. (3) If the Secretary has determined that the records, material, or information should not be produced, or if no final determination has been made, the employee who appears in answer to the demand will respectfully decline to produce or disclose the records, material, or information demanded on the ground that the disclosure is prohibited by this section. The employee shall provide the court or other authority with a copy of this subpart and a copy (when available) of the Secretary's determination, and shall respectfully request the court or other authority to withdraw or stay the demand. (b) (1) Whenever a demand of the type described in paragraph (a) of this section is made upon an employee of this Department not authorized to make releases pursuant to § 1.11(b) of this subpart, by a court or other authority while he is appearing before, or is otherwise in the presence of the court or other authority, the employee, or other appropriate Government official or attorney acting on behalf of the employee, shall (i) immediately inform the court or other authority that this section prohibits the employee from producing or disclosing the information or material demanded and (ii) offer to refer the demand for the prompt consideration of authorized officials, providing the court or other authority a copy of this subpart and respectfully requesting that the demand be stayed pending his receipt of appropriate instructions concerning the demand. (2) If the employee is authorized to make a release pursuant to § 1.11(b) of this subpart but determines that such release would be improper, he shall offer to refer the demand for the prompt consideration of the agency head and/or Secretary and shall otherwise comply with paragraph (b)(1)(ii) of this section. (c) If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with paragraph (a) or (b) of this section pending the receipt by the employee of instructions or directions, or if the court or other authority rules adversely on any assertion made in conformity with the provisions of this subpart, the employee upon whom the demand has been made may tender the records, material, or information, demanded with a request they be held in camera until an appeal can be taken from the adverse ruling. § 1.16 Records in formal adjudication proceedings. Records in formal adjudication proceedings are on file in the Office of the Hearing Clerk, U.S. Department of Agriculture, Washington, D.C. 20250, and shall be made available to the public. APPENDIX A-FEE SCHEDULE FEE SCHEDULE Sec. 1. General. This schedule sets forth fees to be charged for providing copies of records, including photographic reproductions, microfilm, maps and mosaics, and related services. The fees set forth in this schedule are applicable to all agencies and |