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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 7:7:1.1.1.1.1.1.17.1 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.1 General provisions. | USDA | (a) This subpart contains the rules that the United States Department of Agriculture (USDA) and its components follow in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be read together with the FOIA, which provides additional information about access to records maintained by the USDA. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, and 7 CFR Subpart G are also processed under this subpart. (b) The terms “component” or “components” are used throughout this subpart and in appendix A of this subpart to include both USDA program agencies and staff offices. (c) Unless otherwise stated, references to number of days indicates business days, excluding Saturdays, Sundays, and legal holidays. (d) Supplemental regulations for FOIA requests and appeals relating to records of USDA's Office of Inspector General are set forth in 7 CFR part 2620. | ||||||
| 7:7:1.1.1.1.1.1.17.10 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.10 Authentication under Departmental Seal and certification of records. | USDA | (a) In general. Requests seeking either authenticated or certified copies of records will generally be processed under the FOIA. FOIA search, review, and duplication fees, where applicable, may also apply. However, because the costs for authenticated and certified copies are outside of the FOIA, the provisions of § 1.12 that call for the automatic waiver of FOIA fees under $25.00 do not apply. (b) Authentication of records. (1) Authentication provides confirmation by a USDA officer that a certified copy of a record is what it purports to be, an accurate duplicate of the original record. (2) When a request is received for an authenticated copy of a record that the component determines may be made available, under the FOIA, each component will send an authentic ( i.e., correct) copy of the record to the Assistant General Counsel in the OGC Division responsible for the applicable component program or other designee of the Secretary of Agriculture. The Assistant General Counsel for the applicable component program or other designee of the Secretary of Agriculture will confirm the authenticity of the record and affix the seal of the USDA to it. (3) The Hearing Clerk in the Office of Administrative Law Judges may authenticate copies of records for the Hearing Clerk. The Director of the National Appeals Division may authenticate copies of records for the National Appeals Division. The Inspector General is the official who authenticates copies of records for OIG. (4) When any component determines that a record for which authentication is requested may be made available only in part, because certain portions of it are exempt from release under the FOIA, the component will process the record under the FOIA and make any needed redactions, including notations on the record as to the FOIA exemption(s) which require(s) the removal of the information redacted. In such an instance, the component will supply a copy of the record both in its unredacted state and in its redacted state to the party authorized to perform aut… | ||||||
| 7:7:1.1.1.1.1.1.17.11 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.11 Preservation of records. | USDA | Components will preserve all correspondence and records relating to requests and appeals received under this subpart, as well as copies of all requested records, until disposition or destruction of such correspondence and records is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the NARA. Agency records will not be disposed of, or destroyed, while they are the subject of a pending request, appeal, or lawsuit under the FOIA. | ||||||
| 7:7:1.1.1.1.1.1.17.12 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.12 Fees and fee schedule. | USDA | (a) Authorization to set FOIA fees. The Chief Financial Officer is delegated authority to promulgate regulations providing for a uniform fee schedule applicable to all components of the USDA regarding requests for records under this subpart. The regulations providing for a uniform fee schedule are found in appendix A of this subpart. (b) In general. Components will charge for processing requests under the FOIA in accordance with the provisions of appendix A of this subpart and the Uniform Freedom of Information Act Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Fee Guidelines”). (c) Guidance for lowering FOIA fees. Components will ensure that searches, review, and duplication are conducted in the most efficient and least expensive manner practicable. (d) Communicating with requesters on fee issues. In order to resolve any fee issues that arise under this subpart, a component may contact a requester for additional information. (e) Notifying requesters of estimated fees. When a component determines or estimates that the processing of a FOIA request will incur chargeable FOIA fees, in accordance with appendix A of this subpart and the OMB Fee Guidelines, the component will notify the requester in writing of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. (f) Requester commitment to pay estimated fees. In cases in which a requester has been notified that the processing of his or her request will incur chargeable FOIA fees, the component providing such notification will not begin processing the request until the requester commits in writing to pay the actual or estimated total fee, or designates the amount of fees that he or she is willing to pay, or in the case of a requester who has not yet been provided with his or her statutory entitlements, designates that he or she seeks only that which can be provided by … | ||||||
| 7:7:1.1.1.1.1.1.17.2 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.2 Public reading rooms. | USDA | (a) Components within the USDA maintain public reading rooms containing the records that the FOIA requires to be made regularly available for public inspection in an electronic format. Each component is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each component shall ensure that its reading room and indices are reviewed and updated on an ongoing basis. (b) A link to USDA Electronic Reading Rooms can be found on the USDA public FOIA website. (c) In accordance with 5 U.S.C. 552(a)(2), each component within the Department shall make the following materials available for public inspection and copying (unless they are promptly published and copies offered for sale): (1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (2) Those statements of policy and interpretation which have been adopted by the agency and are not published in the Federal Register ; (3) Administrative staff manuals and instructions to staff that affect a member of the public; (4) Copies of all records, regardless of form or format, which have been released to a person pursuant to a FOIA request under 5 U.S.C. 552(a)(3), and have been requested three or more times; and (5) Copies of all records, regardless of form or format, which have been released to a person 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. Components shall decide on a case by case basis whether records meet these requirements, based on the following factors: (i) Previous experience with similar records; (ii) The particular characteristics of the records involved, including their nature and the type of information contained in them; and (ii… | ||||||
| 7:7:1.1.1.1.1.1.17.3 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.3 Requirements for making a records request. | USDA | (a) Where and how to submit a request. (1) A requester may submit a request in writing and address the request to the designated component within the USDA that maintains the records requested. The Departmental FOIA Officer will maintain a list of contact information for component FOIA offices and make this list available on the USDA public FOIA website. Filing a FOIA request directly with the component that maintains the records will facilitate the processing of the request. If responsive records are likely to reside within more than one USDA component, the requester should submit the request to the USDA Departmental FOIA office. (2) Alternatively, a requester may submit a request electronically via USDA's online web portal or via the National FOIA portal. USDA components also accept requests submitted to the email addresses of component FOIA offices as listed on the USDA public FOIA website. (3) If a requester cannot determine where within the USDA to send a request, he or she should consult the USDA public FOIA website to determine where the records might be maintained. Alternatively, he or she may send the request to the Departmental FOIA Officer, who will route the request to the component(s) believed most likely to maintain the records requested. (4) To facilitate the processing of a request, a requester should place the phrase “FOIA REQUEST” in capital letters on the front of their envelope, the cover sheet of their facsimile transmittal, or the subject line of their email. (b) What to include in a request. (1) A requester seeking access to USDA records should provide sufficient information about himself or herself to enable components to resolve, in a timely manner, any issues that might arise as to the subject and scope of the request, and to deliver the response and, if appropriate, any records released in response to the request. Generally, this includes the name of the requester, name of the institution on whose behalf the request is being made, a phone number at which the requester might be co… | ||||||
| 7:7:1.1.1.1.1.1.17.4 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.4 Requirements for responding to records requests. | USDA | (a) In general. Except for the instances described in paragraphs (c) and (d) of this section, the component that first receives a request for a record is responsible for responding to or referring the request. (b) Authority to grant or deny requests. The head of a component or his or her designee is authorized to grant or to deny any requests for records originating with or maintained by that component. (c) Handling of misdirected requests. When a component's FOIA office receives and determines that a request was misdirected within the Department's components or should be directed to additional Department component(s), the receiving component's FOIA office will route the request to the FOIA office of the proper component(s). (d) Coordination of requests involving multiple components. When a component becomes aware that a requester has sent a request for records to multiple USDA components, the component will notify the Departmental FOIA Officer to determine if some form of coordination is warranted. (e) Consultations and referrals in the process of records review. (1) Consultation. When records originated with the component processing the request but contain within them information of interest to another USDA component or other Federal Government office, the component processing the request should consult with that other entity prior to making a release determination. (2) Referral. When the component processing the request believes that another USDA component or Federal Government office is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record to that USDA component or Federal Government office. Ordinarily, the component or agency that originated the record is presumed to be the best able to make the disclosure determination. However, if the component processing the request and the originating component or agency jointly agree that the former is in the best position to respond regarding … | ||||||
| 7:7:1.1.1.1.1.1.17.5 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.5 Responses to records requests. | USDA | (a) In general. Components should, to the extent practicable, communicate with requesters having access to the internet by electronic means, such as email, in lieu of first-class U.S. mail. (b) Acknowledgements of requests. On receipt of a request, the processing component will send an acknowledgement to the requester and provide an assigned request tracking number for further reference. Components should include in the acknowledgement a brief description of the records sought, or attach a copy of the request, to allow requesters to more easily keep track of their requests. (c) Grants of requests. When a component makes a determination to grant a request in whole or in part, it will notify the requester in writing. The component will also inform the requester of any fees charged, pursuant to § 1.12, in the processing of the request. Except in instances where advance payment of fees is required, components may issue bills for fees charged at the same time that they issue a determination. The component will include a statement advising the requester that he or she has the right to seek dispute resolution services from the component's FOIA Public Liaison. (d) Specifying the format of records. Generally, requesters may specify the preferred form or format (including electronic formats) for the records sought. Components will accommodate the request if the records are readily reproducible in that form or format. (e) Exemptions and discretionary release. All component records, except those specifically exempted from mandatory disclosure by one or more provisions of 5 U.S.C. 552(a) and (b), will be made available to any person submitting a records request under this subpart. Components are authorized, in their sole discretion, to make discretionary releases of their records when such releases are not otherwise specifically prohibited by Executive Order, statute, or regulation. (f) Reasonable segregation of records. If a requested record contains portions that are exempt from mandatory disclosure and oth… | ||||||
| 7:7:1.1.1.1.1.1.17.6 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.6 Timing of responses to perfected records requests. | USDA | (a) In general. Components ordinarily will respond to requests according to their order of receipt. In instances involving misdirected requests that are re-routed pursuant to § 1.4(c), the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10-working days after the request is first received by any component's office that is designated to receive requests. (b) Response time for responding to requests. Components ordinarily will inform requesters of their determination concerning requests within 20 working days of the date of receipt of the requests, plus any extension authorized by paragraph (d) of this section. (c) Multitrack processing and how it affects requests. All components must designate a specific track for requests that are granted expedited processing in accordance with the standards set forth in paragraph (f) of this section. A component also may designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors a component may consider are the number of pages involved in processing the request and the need for consultations or referrals. Upon request, components will advise requesters of the track into which their request falls and, when appropriate, will offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track in order to decrease the processing time. (d) Circumstances for extending the response time. Whenever the component cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined in the FOIA, and the component extends the time limit on that basis, the component must, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which the component estimates pr… | ||||||
| 7:7:1.1.1.1.1.1.17.7 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.7 Records responsive to records requests. | USDA | (a) In determining which records are responsive to a request, a component ordinarily will include only records in its possession as of the date that the component begins its search. (b) A component is not required to create a new record in order to fulfill a request for records. The FOIA does not require agencies to do research, to analyze data, or to answer written questions in response to a request. (c) Creation of records may be undertaken voluntarily. (d) A component will provide a record in the format specified by a requester, if the record is readily reproducible by the component in the format requested. | ||||||
| 7:7:1.1.1.1.1.1.17.8 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.8 Requirements for processing records requests seeking business information. | USDA | (a) In general. Each component is responsible for making the final determination with regard to the disclosure or nondisclosure of business information in records submitted by an outside entity. (b) Definitions. For purposes of this section: (1) Confidential commercial information means commercial or financial information obtained by the USDA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). (2) Submitter means any person or entity, including a corporation, State, or foreign government, or Tribe, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly, to the Federal Government. (c) Designation of confidential commercial information. A submitter of confidential commercial information must use good-faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period. (d) When notice to the submitter is required. (1) The component must promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if the component determines that it may be required to disclose the records, provided: (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (ii) The component has a reason to believe that the requested information may be protected from disclosure under Exemption 4 but has not yet determined whether the information is protected from disclosure. (2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In ca… | ||||||
| 7:7:1.1.1.1.1.1.17.9 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | A | Subpart A—Official Records | § 1.9 Administrative appeals. | USDA | (a) Appeals of adverse determinations. If a requester is dissatisfied with a component's response to his or her request, the requester may submit a written appeal of that component's adverse determination denying the request in any respect. (b) Deadline for submitting an appeal. Requesters must make the appeal in writing. To be considered timely, the appeal must be postmarked, or in the case of electronic submissions transmitted, within 90 calendar days of the date of the adverse determination. Components adjudicating appeals will issue a decision on an appeal, within 20-working days of its date of receipt, plus any extension authorized by § 1.6(d). (c) Appeals officials. Each component will provide for review of appeals by an official different from the official who made the initial determination(s). (d) Components' responses to appeals. The decision on an appeal will be made in writing. (1) If the component grants the appeal in part or in whole, it will inform the requester of any conditions surrounding the granting of the request (e.g., payment of fees). If the component grants only a portion of the appeal, it will treat the portion not granted as a denial. (2) If the component denies the appeal, either in part or in whole, it will inform the requester of that decision and of the following: (i) The reasons for denial, including any FOIA exemptions asserted; (ii) The name and title or position of each official responsible for denial of the appeal; (iii) The availability of mediation services offered by the OGIS of the National Archives and Records Administration as a non-exclusive alternative to litigation; and (iv) The right to judicial review of the denial in accordance with 5 U.S.C. 552(a)(4)(B). (e) Legal sufficiency review of an appeal. If a component makes the determination to deny an appeal in part or whole, that component will send a copy of all records to the Assistant General Counsel, General Law and Research Division, that the Office of the General Counsel (“OGC”) would need to … | ||||||
| 7:7:1.1.1.1.1.10.20.1 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.210 What does this subpart cover? | USDA | (a) This subpart sets forth the procedures to be followed with respect to demands seeking official information or employee testimony relating to official information for use in a legal proceeding. (b) This subpart does not apply to: (1) Congressional requests or subpoenas for official information or testimony relating to official information; (2) Federal court civil proceedings in which the United States is a party; (3) Federal administrative proceedings in which the Department is a party; (4) The disclosure of official information or testimony relating to official information provided to other Federal agencies, including United States Department of Justice attorneys, in connection with a legal proceeding conducted on behalf of or in defense of the United States or a legal proceeding in which the United States has an interest; and (5) Employees who testify, while on their own time or in approved leave status, as private citizens as to facts or events that are not related to the official business of the Department. (c) Nothing in this subpart affects the rights, procedures, or Department regulations governing requests for, and release of, records under the Freedom of Information Act (FOIA, 5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), or the Government in the Sunshine Act (5 U.S.C. 552b). (d) Nothing in this subpart affects procedures governing requests for authentication or certified copies of records under § 1.10. (e) Nothing in this subpart permits the Department or employees to disclose official in-formation or give testimony relating to official information if the disclosure or testimony is protected or prohibited by statute or other applicable law. (f) This subpart only provides guidance for the internal operations of the Department, and neither creates nor is intended to waive the sovereign immunity of the United States or create any enforceable right or benefit against the United States. | ||||||
| 7:7:1.1.1.1.1.10.20.2 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.211 Definitions that apply to this subpart. | USDA | For the purpose of this subpart: (a) The term “demand” means any effort or attempt to obtain, for use in a legal proceeding, official information or testimony relating to official information, including any request, order, subpoena, or other command, as well as any informal or other attempt (by any method) to obtain official information, or testimony relating to official information, by an attorney, investigator, or others. (b) The term “Department” means the United States Department of Agriculture, its constituent agencies, and Department officials authorized to decide whether to allow disclosures of official information or testimony relating to official information in response to demands. (c) The term “appropriate Department official” means the head of a Department agency or office. (d) The term “employee” means all employees or officers of the Department, including individuals who are or have been appointed by the Department, or who are or have been subject to the Department's supervision, jurisdiction, or control, including individuals hired through contractual agreements by or on behalf of the Department, or performing services under such agreements for the Department, such as consultants, contractors, subcontractors, and their employees or other personnel. Also included in the definition are former Department employees where the demand seeks testimony relating to official information acquired while the person was an employee of the Department. (e) The term “legal proceeding” means all pretrial, trial, and post-trial stages of all existing or reasonably anticipated judicial or administrative actions, hearings, investigations, or similar proceedings before courts, commissions, boards, grand juries, or other tribunals. This phrase includes all phases of discovery as well as formal or informal requests by attorneys or others involved in legal proceedings. (f) The term “Office of the General Counsel” means the Office of the General Counsel of the Department. (g) The term “official information” means all i… | ||||||
| 7:7:1.1.1.1.1.10.20.3 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.212 What is the Department's policy on providing official information or testimony relating to official information in response to a demand? | USDA | (a) It is the Department's general policy not to allow its employees to provide official information or testimony relating to official information in response to a demand. However, the Department will consider a demand submitted in accordance with this subpart and issue a decision to grant or deny the demand. (b) No employee may provide official information or testimony relating to official information in response to a demand unless authorized by the Department in accordance with this subpart. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). An employee who fails to comply with this regulation may be subject to disciplinary action up to and including removal. | ||||||
| 7:7:1.1.1.1.1.10.20.4 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.213 How can I obtain official information or testimony relating to official information in response to my demand? | USDA | You must submit a demand in accordance with this subpart ( see United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)). The appropriate Department official, in consultation with the Office of the General Counsel, will consider your demand in accordance with this subpart. The Counsel to the Inspector General will consider and make any final determinations regarding all demands seeking official information or employee testimony from the Office of Inspector General. | ||||||
| 7:7:1.1.1.1.1.10.20.5 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.214 What information must I include with my demand? | USDA | Your demand must include the following information, if applicable: (a) The caption of the legal proceeding underlying your demand, including the docket number and the name of the court or other authority involved; (b) The parties to the legal proceeding underlying your demand and any known relationships they have to the Department's mission or programs; (c) A copy of the complaint or equivalent document setting forth the assertions in the legal proceeding underlying your demand; (d) The identity of the employee whose testimony is sought and an affidavit or declaration under 28 U.S.C. 1746 or, if such an affidavit or declaration is not feasible, a written statement by you or your attorney, setting forth a reasonably detailed summary of the testimony sought and its relevance to the legal proceeding underlying your demand. Any authorization the Department decides to grant for testimony by an employee shall be limited to testimony within the scope of the summary provided; (e) If the demand seeks documents or other materials to be obtained or inspected, a de-scription of the official information and the relevance to the legal proceeding underlying your demand; (f) A written description of all prior decisions, orders, or pending motions in the legal proceeding underlying your demand that bear on the relevance of the official information or testimony you seek; (g) A showing that the desired official information or testimony is not reasonably available from any other source, including a showing that no document could be provided and used in lieu of testimony; and (h) An explanation of how each of the Department's considerations set forth in § 1.220(a) apply to your demand. | ||||||
| 7:7:1.1.1.1.1.10.20.6 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.215 How soon before I need the official information or testimony relating to official information should I submit my demand? | USDA | You must submit your demand, including all information identified in § 1.214, at least 14 calendar days before the date when you need the official information or testimony relating to official information. | ||||||
| 7:7:1.1.1.1.1.10.20.7 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.216 If I serve a subpoena, must I also submit information in accordance with § 1.214? | USDA | Yes. A subpoena shall be served in accordance with the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, or applicable state procedure, as appropriate. If you serve a subpoena, including a subpoena duces tecum, together with the subpoena you must also submit information in accordance with § 1.214. If you serve a subpoena on the Department or a Department employee before submitting information in accordance with § 1.214 of this subpart, the Department may oppose the subpoena on the grounds that you failed to follow the requirements of this subpart. | ||||||
| 7:7:1.1.1.1.1.10.20.8 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.217 Where must I send my demand? | USDA | [84 FR 56100, Oct. 21, 2019, as amended at 87 FR 25571, May 2, 2022] | (a) Except for subpoenas served in accordance with the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, or applicable state procedure as appropriate, you must send your demand, including all information required by § 1.214 of this subpart, to: (1) The Office of the General Counsel at 1400 Independence Avenue SW, Washington, DC 20250, Attention: “Touhy Demands,” or by electronic mail to OGC-Touhy-Demands@usda.gov and (2) The United States Department of Agriculture agency office from which the official information or testimony is sought. (b) Notwithstanding paragraph (a) of this section, a demand for Office of Inspector General information or testimony must be sent to the Counsel to the Inspector General, United States Department of Agriculture, Attention: “Touhy Demands,” at 1400 Independence Avenue SW, Mail Stop 2308, Washington, DC 20250-2308; by facsimile to (202) 690-1528; or by electronic mail to OIG.TOUHY-DEMANDS@oig.usda.gov. | |||||
| 7:7:1.1.1.1.1.10.20.9 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.218 How much will I be charged? | USDA | (a) In the event that a demand is granted, the Department may charge reasonable fees. The appropriate Department official will determine all fees, if any, associated with this subpart and shall timely notify you of the fees, particularly those that are to be paid in advance. (b) When a demand is granted under this subchapter to permit an employee to testify, you must pay the witness the fee and expenses, including any travel related costs, prescribed for attendance by the applicable rule of court. If no such fees are prescribed, the local Federal district court rule relating to witness fees for the Federal district court closest to where the witness appears will apply. (c) When a demand is granted under this subchapter to produce documents, blueprints, electronic tapes, or other official information, the fees to be charged and paid prior to production shall be calculated as provided in Department regulations implementing the fee provisions of the FOIA. | ||||||
| 7:7:1.1.1.1.1.10.21.10 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.219 How will the Department process my demand? | USDA | (a) The appropriate Department official, in consultation with the Office of the General Counsel, will consider your demand, and decide whether to grant or deny it. An Office of the General Counsel attorney or Department official may negotiate with you or your representative to refine or limit your demand. All demands for Office of Inspector General information or testimony will be processed by the Counsel to the Inspector General. (b) Any decision in response to your demand will be limited to the scope of information requested in accordance with the requirements of this subpart. (c) If you fail to follow the requirements of this subpart, the Department may decide not to grant your demand. If the Department determines that your demand is not complete, the Department may require that you provide additional information before your demand will be considered. (d) If your demand is complete, the Department will consider it by applying the criteria under § 1.220. | ||||||
| 7:7:1.1.1.1.1.10.21.11 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.220 The Department's considerations in deciding whether to grant or deny a demand. | USDA | (a) In deciding whether to grant or deny a demand, the appropriate Department official should consider the following factors: (1) Whether compliance with the demand would be unduly burdensome, disproportionate to the needs of the case, or otherwise inappropriate under the applicable rules of discovery or rules of procedure governing the legal proceeding underlying the demand; (2) Whether compliance with the demand is appropriate under the relevant substantive law concerning privilege or disclosure of information; (3) The public interest; (4) The need to conserve the time and expense of Department employees for the conduct of official business; (5) The need to avoid spending the time and money of the United States for non-Federal government purposes; (6) The need to maintain impartiality between private litigants in cases in which a substantial Department interest is not implicated; (7) Whether compliance with the demand would have an adverse effect on the Department's mission and duties; (8) The need to avoid involving the Department in issues not related to its mission; and (9) Any other factor the Department determines to be relevant to the interests of the Department. (b) A demand will not be granted if the disclosure of official information or employee testimony relating to official information: (1) Would violate a statute or a rule of procedure; (2) Would violate a regulation or executive order; (3) Would reveal information properly classified in the interest of national security; (4) Would reveal confidential commercial or financial information or trade secrets in the absence of the owner's consent; (5) Would reveal the internal deliberative processes of the Executive Branch or other privileged information; or (6) Would potentially impede or prejudice an on-going law enforcement investigation. | ||||||
| 7:7:1.1.1.1.1.10.21.12 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.221 In responding to my demand, what conditions or restrictions may the Department impose on the production of official information or testimony relating to official information? | USDA | In responding to a demand, the Department may, at its discretion, impose conditions or restrictions on the production of official information or testimony relating to official information. Such conditions or restrictions may include the following: (a) A requirement that the parties to the legal proceeding underlying your demand obtain a protective order or execute a confidentiality agreement to limit access to, and limit any further disclosure of, official information or testimony provided; (b) A limitation on the subject matter areas of the permitted testimony; (c) A requirement that the manner, time, location, and duration of any testimony be prescribed by the Department; (d) A requirement that the parties to the legal proceeding underlying your demand agree that a transcript of the permitted testimony be kept under seal or will only be used or only made available in the particular legal proceeding underlying the demand; (e) A requirement that you purchase an extra copy of the transcript of the employee's testimony from the court reporter and provide the Department with a copy at your expense; or (f) Any other condition or restriction deemed to be in the best interests of the United States. | ||||||
| 7:7:1.1.1.1.1.10.21.13 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.222 Delegation authority for deciding whether to grant or deny a demand. | USDA | (a) Except as provided in paragraphs (b), (c), or (d) of this section, the appropriate department official may delegate his or her responsibilities under this subpart to employees of his or her agency as follows: (1) In the national office of the agency, to a level no lower than two levels below the agency head; (2) In a field component of an agency, to a level no lower than the official who heads a state office. (b) Notwithstanding paragraph (a) of this section, the Chief of the Forest Service may delegate his or her responsibilities under this subpart as follows: (1) In the national office of the Forest Service, to a level no lower than a Deputy Chief of the Forest Service; (2) In a field component of the Forest Service, to a level no lower than a Regional Forester or Station Director. (c) Notwithstanding paragraph (a) of this section, the General Counsel may delegate his or her responsibilities under this subpart as follows: (1) In the national office of the Office of the General Counsel, to a level no lower than an Assistant General Counsel; (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. (d) Notwithstanding paragraph (a) of this section, the Counsel to the Inspector General may delegate his or her responsibility under this subpart to the Deputy Counsel or an Assistant Counsel. | ||||||
| 7:7:1.1.1.1.1.10.21.14 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.223 What must I, as an employee, do upon receiving a demand? | USDA | (a)(1) If you receive a demand, you must immediately notify your supervisor, who must in turn notify the appropriate Department official. Either your supervisor or the appropriate Department official must notify the Office of the General Counsel contact for your region or division for assistance with issuing the proper response. (2) Demands for Office of Inspector General official information or testimony should be forwarded immediately to the Counsel to the Inspector General. (b)(1) The appropriate Department official will decide whether to grant or deny the demand. Before a decision granting or denying a demand is made, the Office of the General Counsel contact for your region or division must be consulted for advice. All decisions granting or denying a demand must be in writing and must receive Office of the General Counsel concurrence prior to issuance. Absent Office of the General Counsel concurrence, a demand decision cannot be issued. (2) The Counsel to the Inspector General will decide whether to grant or deny a demand for Office of Inspector General information and testimony. (c) In the event that the appropriate Department official decides to deny the demand, the decision shall state that you are not authorized to provide official information or testimony and, if applicable, that you will not personally appear in response to the demand. | ||||||
| 7:7:1.1.1.1.1.10.21.15 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | K | Subpart K—Production or Disclosure of Official Information in Legal Proceedings | § 1.224 What must I, as an employee, do upon becoming aware that a court or other authority has ordered compliance with a demand? | USDA | (a) If you become aware that a court or other authority has ordered compliance with a demand, you must promptly notify your supervisor, who must in turn notify the Office of the General Counsel for your region or division. (b) In the case of compliance orders involving a demand for Office of Inspector General information and testimony, promptly forward them to your supervisor and the Counsel to the Inspector General. | ||||||
| 7:7:1.1.1.1.1.11.22.1 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.301 Basis, purpose and scope. | USDA | (a) Basis. 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. (b) Purpose. This subpart— (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 (2) Specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments. (c) Scope. 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. | ||||||
| 7:7:1.1.1.1.1.11.22.10 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.310 Default upon failure to file an answer. | USDA | (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. (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. (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. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.11 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.311 Referral of complaint and answer to the ALJ. | USDA | Upon receipt of an answer, the reviewing official shall send to the ALJ copies of the complaint, proof of service, and the answer. | ||||||
| 7:7:1.1.1.1.1.11.22.12 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.312 Procedure where respondent does not request a hearing. | USDA | (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 of proof shall be as set forth in § 1.329 of this part. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.13 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.313 Procedure where respondent requests a hearing; notice of hearing. | USDA | (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. (b) Such notice shall include: (1) The tentative time and place, and the nature of the hearing; (2) The legal authority and jurisdiction under which the hearing is to be held; (3) The matters of fact and law to be asserted; (4) A description of the procedures for the conduct of the hearing; (5) The name, address, and telephone number of the representative for the USDA and the representative for the respondent, if any; and (6) Such other matters as the ALJ deems appropriate. | ||||||
| 7:7:1.1.1.1.1.11.22.14 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.314 Parties to the hearing. | USDA | (a) The parties to the hearing shall be the respondent and USDA. The proceeding shall be brought in the name of the Secretary. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.15 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.315 Separation of functions. | USDA | (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— (1) Conduct the hearing in such case; (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 (3) Make the collection of penalties and assessments under § 1.341 of this part. (b) The ALJ shall not be responsible to or subject to the supervision or direction of the investigating official or the reviewing official. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.16 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.316 | USDA | Except to the extent required for the disposition of ex parte 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. | ||||||
| 7:7:1.1.1.1.1.11.22.17 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.317 Disqualification of reviewing official or ALJ. | USDA | (a) A reviewing official or ALJ in a particular case may disqualify himself or herself at any time. (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. (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. (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. (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). (f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice. (2) If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.18 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.318 Rights of parties. | USDA | All parties may: (a) Be accompanied, represented, and advised by a representative; (b) Participate in any prehearing or post-hearing conference held by the ALJ; (c) Agree to stipulations of fact or law, which shall be made part of the record; (d) Conduct discovery; (e) Make opening and closing statements at the hearing; (f) Present evidence relevant to the issues at the hearing; (g) Cross examine witnesses; (h) Present oral arguments at the hearings; and (i) Submit written briefs, proposed findings of fact, and proposed conclusions of law after the hearing. | ||||||
| 7:7:1.1.1.1.1.11.22.19 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.319 Authority of the ALJ. | USDA | (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceedings is made. (b) The ALJ may: (1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties; (2) Continue or recess the hearing in whole or part for a reasonable period of time; (3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding; (4) Administer oaths and affirmations; (5) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings; (6) Rule on motions and other procedural matters; (7) Regulate the scope and timing of discovery; (8) Regulate the course of the hearing and the conduct of attorneys and parties; (9) Examine witnesses; (10) Receive, rule on, exclude, or limit evidence; (11) Upon motion of a party take official notice of facts; (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; (13) Conduct any conference, argument, or hearing on motions in person or by telephone; and (14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this subpart. (c) The ALJ does not have the authority to decide upon the validity of Federal statutes, regulations, or legal opinions. | ||||||
| 7:7:1.1.1.1.1.11.22.2 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.302 Definitions. | USDA | (a) Agency means a constituent organizational unit of the USDA. (b) Agency Fraud Claims Officer —( AFCO ) 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. (c) ALJ 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. (d) Authority means the USDA. (e) Benefits 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. (f) Claim means any request, demand, or submission— (1) Made to USDA for property, services, or money (including money representing grants, loans, insurance, or benefits); (2) Made to a recipient of property, services, or money from USDA or to a party to a contract with USDA— (i) For property or services if the United States— (A) Provided such property or services; or (B) Provided any portion of the funds for the purchase of such property or services; or (C) Will reimburse such recipient or party for the purchase of such property or services; or (ii) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States— (A) Provided any portion of the money requested or demanded; or (B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (3) Made to USDA which has the effect of decreasing an obligation to pay or account for property, services, or money. (g) Complaint means the written notice served by the reviewing official on the respondent under § 1.307 of this part. (h) Days 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 regul… | ||||||
| 7:7:1.1.1.1.1.11.22.20 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.320 Prehearing conferences. | USDA | (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. (b) The ALJ may conduct any prehearing conference in person or by telephone. (c) The ALJ may use prehearing conferences to discuss the following matters: (1) Simplification of the issues; (2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement; (3) Stipulations, admissions of fact or as to the contents and authenticity of documents; (4) Whether the parties can agree to submission of the case on a stipulated record; (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. (6) Limitation of the number of witnesses; (7) Scheduling dates for the exchange of witness lists and of proposed exhibits; (8) Discovery; (9) The time and place for the hearing; and (10) Such other matters as may tend to expedite the fair and just disposition of the proceedings. (d) The ALJ shall issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference. | ||||||
| 7:7:1.1.1.1.1.11.22.21 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.321 Disclosure of documents. | USDA | (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. (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. (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. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.22 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.322 Discovery. | USDA | (a) The following types of discovery are authorized: (1) Requests for production, inspection and photocopying of documents; (2) Requests for admission of the authenticity of any relevant document or the truth of any relevant fact; (3) Written interrogatories; and (4) Depositions. (b) The ALJ shall set the schedule for discovery. (c) Requests for production of documents and requests for admission. (1) A party may serve requests for production of documents or requests for admission on another party. (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. (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. (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. (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— (i) The discovery sought is necessary for the expeditious, fair, and reasonable consideration of the issues; (ii) It is not unduly costly or burdensome; (iii) It will not unduly delay the proceeding; and (iv) The information sought is not privileged. (d) Depositions and written interrogatories. Depositions and written interrogatories are permitted only on the order of the ALJ. (1) A party seeking to use depositions or written interrogatories may file a motion with the ALJ. (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. (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 s… | ||||||
| 7:7:1.1.1.1.1.11.22.23 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.323 Subpoenas for attendance at hearing. | USDA | (a) A party wishing to procure the appearance and testimony at the hearing of any individual may request that the ALJ issue a subpoena. (b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at such hearing. (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 ex parte. (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. (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. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.24 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.324 Fees. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.11.22.25 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.325 Form, filing and service of papers. | USDA | (a) Form. (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. (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). (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. (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. (b) Service. 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. (c) Proof of service. 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. | ||||||
| 7:7:1.1.1.1.1.11.22.26 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.326 Computation of time. | USDA | (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. (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. (c) When a document has been served by mail, an additional five days will be added to the time permitted for any response. | ||||||
| 7:7:1.1.1.1.1.11.22.27 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.327 Motions. | USDA | (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. (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. (c) The ALJ may require written motions to be accompanied by supporting memorandums. (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. (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. (f) The ALJ shall make every reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing. | ||||||
| 7:7:1.1.1.1.1.11.22.28 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.328 Sanctions. | USDA | (a) The ALJ may sanction a person, including any party or representative for: (1) Failing to comply with a lawful order, subpoena, or procedure; (2) Failing to prosecute or defend an action; or (3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing. (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. (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: (1) Draw an inference in favor of the requesting party with regard to the information sought; (2) In the case of requests for admission, deem admitted each item as to which an admission is requested; (3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought; (4) Strike any part of the pleadings or other submissions of the party failing to comply with such request; or (5) Request that the Attorney General petition an appropriate district court for an order to enforce a subpoena. (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. (e) The ALJ may refuse to consider any motion or other action which is not filed in a timely fashion. | ||||||
| 7:7:1.1.1.1.1.11.22.29 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.329 The hearing and burden of proof. | USDA | (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. (b) The USDA shall prove respondent's liability and any aggravating factors by a preponderance of the evidence. (c) The respondent shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence. (d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown. | ||||||
| 7:7:1.1.1.1.1.11.22.3 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.303 Basis for civil penalties and assessments. | USDA | [56 FR 9582, Mar. 7, 1991, as amended at 57 FR 3909, Feb. 3, 1992; 75 FR 17556, Apr. 7, 2010] | (a) Claims. (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— (i) Is false, fictitious, or fraudulent; (ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent; (iii) Includes or is supported by any written statement that— (A) Omits a material fact; (B) Is false, fictitious, or fraudulent as a result of such omission; and (C) Is a statement in which the person making such statement has a duty to include such material fact; or (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. (2) Each voucher, invoice, claim form, or other individual request or demand for property, services, food coupons, or money constitutes a separate claim. (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. (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. (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. (b) Statements. (1) Except as provided in paragraph (c) of this section, any … | |||||
| 7:7:1.1.1.1.1.11.22.30 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.330 Location of hearing. | USDA | (a) The hearing may be held— (1) In any judicial district of the United States in which the respondent resides or transacts business; (2) In any judicial district of the United States in which the claim or statement in issue was made; or (3) In such other place as may be agreed upon by the respondent and the ALJ. (b) Each party shall have the opportunity to present argument with respect to the location of the hearing. (c) The ALJ shall issue an order to the parties designating the time and the place of the hearing. | ||||||
| 7:7:1.1.1.1.1.11.22.31 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.331 Witnesses. | USDA | (a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation. (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. (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. (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. (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— (1) A party who is an individual; (2) In the case of a party that is not an individual, an officer or employee of the party designated by the representative; or (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. | ||||||
| 7:7:1.1.1.1.1.11.22.32 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.332 Evidence. | USDA | (a) The ALJ shall determine the admissibility of evidence. (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. (c) The ALJ shall exclude irrelevant and immaterial evidence. (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. (e) Although relevant, evidence may be excluded if it is privileged under Federal law. (f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence. (g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.33 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.333 The record. | USDA | (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. (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. (c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone unless otherwise ordered by the ALJ. | ||||||
| 7:7:1.1.1.1.1.11.22.34 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.334 Post-hearing briefs. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.11.22.35 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.335 Determining the amount of penalties and assessments. | USDA | (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. (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 ( i.e. , the false, fictitious, or fraudulent claims or statements) charged in the complaint: (1) The number of false, fictitious, or fraudulent claims or statements; (2) The time period over which such claims or statements were made; (3) The degree of the respondent's culpability with respect to the misconduct; (4) The amount of money or the value of the property, services, or benefit falsely claimed; (5) The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation; (6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss; (7) The potential or actual impact of the misconduct upon national defense, 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; (8) Whether the respondent has engaged in a pattern of the same or similar misconduct; (9) Whether the respondent attempted to conceal the misconduct; (10) The degree to which the respondent has involved others in the misconduct or in concealing it; (11) Where the misconduct of employees or agents is imputed to the respondent, the extent to which the respondent's pra… | ||||||
| 7:7:1.1.1.1.1.11.22.36 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.336 Initial decision of the ALJ. | USDA | (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. (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: (1) Whether any claim or statement identified in the complaint violates § 1.303 of this part; (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. (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. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.37 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.337 Reconsideration of initial decision. | USDA | (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. (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. (c) Responses to such motions shall be allowed only upon request of the ALJ. (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. (e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision. (f) If the ALJ denies a motion for reconsideration, the initial decision shall 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. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.38 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.338 Appeal to the judicial officer. | USDA | (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. (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. (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. (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. (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. (e) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions. (f) The representative for USDA may file a brief in opposition to exceptions within 30 days of receiving the brief proposing exceptions. (g) There is no right to appear personally before the judicial officer. (h) There is no right to interlocutory appeal of rulings by the ALJ. (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… | ||||||
| 7:7:1.1.1.1.1.11.22.39 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.339 Stays ordered by the Department of Justice. | USDA | (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 or potential criminal or civil action related to such claim or statement, the judicial officer shall stay the process immediately. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.4 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.304 Investigation. | USDA | (a) The investigating official may investigate allegations that a person is liable under § 1.303 of this part. (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. (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. (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. (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. (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. (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 postpone a report or referral to the reviewing official in order to avoid interference with a criminal investigation or prosecution. (h) Nothing in this section modifies any responsibility of an investigating offici… | ||||||
| 7:7:1.1.1.1.1.11.22.40 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.340 Stay pending appeal. | USDA | (a) A decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the judicial officer. (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. (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. (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. (e) A decision of the ALJ denying respondent's request for a stay shall constitute final agency action. | ||||||
| 7:7:1.1.1.1.1.11.22.41 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.341 Judicial review. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.11.22.42 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.342 Collection of civil penalties and assessments. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.11.22.43 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.343 Right to administrative offset. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.11.22.44 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.344 Deposit to Treasury of the United States. | USDA | All amounts collected pursuant to this subpart shall be deposited as miscellaneous receipts in the Treasury of the United States. | ||||||
| 7:7:1.1.1.1.1.11.22.45 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.345 Settlement. | USDA | (a) A respondent may make offers of compromise of settlement at any time. (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. (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. (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 this part, or any action to recover penalties and assessments under § 1.342 of this part. (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. (f) Any settlement must be in writing. | ||||||
| 7:7:1.1.1.1.1.11.22.46 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.346 Limitation. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.11.22.5 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.305 Review by the reviewing official. | USDA | (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. (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. (c) The reviewing official is not bound by the recommendation of the AFCO, and may accept or reject it. (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. (e) Such notice shall include— (1) A statement of the reviewing official's reasons for issuing a complaint; (2) A statement of the evidence that supports the allegations of liability; (3) A description of the claims or statements upon which the allegations of liability are based; (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; (5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements; (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. | ||||||
| 7:7:1.1.1.1.1.11.22.6 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.306 Prerequisites for issuing a complaint. | USDA | The reviewing official may issue a complaint under § 1.307 of this part only if: (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); (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 (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. (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. | ||||||
| 7:7:1.1.1.1.1.11.22.7 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.307 Complaint. | USDA | (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. (b) The complaint shall state— (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; (2) The maximum amount of penalties and assessments for which the respondent may be held liable; (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 (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. (c) At the same time the reviewing official serves the complaint, he or she shall serve the respondent with a copy of these regulations. | ||||||
| 7:7:1.1.1.1.1.11.22.8 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.308 Service of complaint and notice of hearing. | USDA | (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. (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: (1) Affidavit of the individual making service; (2) An acknowledged United States Postal Service return receipt card; or (3) Written acknowledgment by the respondent or his representative. | ||||||
| 7:7:1.1.1.1.1.11.22.9 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | L | Subpart L—Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986 | § 1.309 Answer and request for hearing. | USDA | (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. (b) In the answer, the respondent— (1) Shall admit or deny each of the allegations of liability made in the complaint; (2) Shall state any defense upon which the respondent intends to rely; (3) Shall state the name, address, and telephone number of the person authorized to act as the respondent's representative, if any; (4) May state any reasons why the respondent contends the penalty and assessment should be reduced or modified; and (5) May request a hearing. | ||||||
| 7:7:1.1.1.1.1.12.22.1 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.410 Meaning of words. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.12.22.10 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.419 Amendment of a sourcing area application. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.12.22.11 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.420 Consent recommendation. | USDA | 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, et seq. ), 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. | ||||||
| 7:7:1.1.1.1.1.12.22.12 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.421 Prehearing conferences and procedures. | USDA | (a) Purpose and scope. (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 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: (i) An outline of a party's position; (ii) The facts upon which the party will rely; (iii) The legal theories upon which the party will rely; (iv) Copies of or a list of documents which the party anticipates introducing at the hearing; and (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. (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. (3) At the conference, the following matters shall be considered: (i) The simplification of issues; (ii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof; (iii) The limitation of the number of expert or other witnesses; (iv) Negotiation, compromise, or settlement of issues; (v) The exchange of copies of proposed exhibits; (vi) The identification of documents or matters of which official notice may be requested; (vii) A schedule to be followed by the parties for completion of the actions decided at the conference; and (viii) Such other matters as may expedite and aid in the disposition of the proceeding. (b) Reporting. A prehearing conference will not be stenographically repor… | ||||||
| 7:7:1.1.1.1.1.12.22.13 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.422 Conduct of the hearing. | USDA | (a) Time and place. 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. (b) Appearances. 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. (c) Failure to appear. 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. (d) Order of proceeding. The Judge shall determine the order in which the parties shall proceed. (e) Evidence —(1) In general. (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. (ii) Upon a finding of good cause, the Judge may order that any witness be examined se… | ||||||
| 7:7:1.1.1.1.1.12.22.14 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.423 Post-hearing procedure. | USDA | (a) Corrections to transcript. (1) Within the period of time fixed by the Judge, any party may file a motion proposing corrections to the transcript. (2) Unless a party files such motion in the manner prescribed, the transcript shall be presumed, except for obvious typographical errors, to be complete. (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 entered onto the original transcript by the Hearing Clerk (without obscuring the origianl text). (b) Proposed findings of fact, conclusions, order, and brief. 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. (c) Judge's decision. (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. (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. (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. (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 p… | ||||||
| 7:7:1.1.1.1.1.12.22.15 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.424 Motions and requests. | USDA | (a) General. 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. (b) Motions entertained. 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. (c) Contents. All written motions and requests shall state the particular order, ruling, or action desired and the grounds therefore. (d) Response to motions and requests. 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. | ||||||
| 7:7:1.1.1.1.1.12.22.16 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.425 Judges. | USDA | (a) Assignment. 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. (b) Disqualification of Judge. (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. (2) A Judge shall withdraw from any proceeding for any reason deemed by the Judge to be disqualifying. (c) Powers. Subject to review as provided elsewhere in this part, the Judge, in any assigned proceeding shall have power to: (1) Rule upon motions and requests; (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; (3) Administer oaths and affirmations; (4) Request the presence of and examine witnesses and receive relevant evidence at the hearing; (5) Take or order the taking of depositions as authorized under these rules; (6) Admit or exclude evidence; (7) Hear oral argument on facts or law, (8) Do all acts and take all measures necessary for the maintenance of order, including the exclusion of contumacious counsel or other persons; (9) Request additional information from any party to aid in the Judge's determination; and (10) Take all other actions authorized under these procedures. (d) Who may act in the absence of the Judge. 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… | ||||||
| 7:7:1.1.1.1.1.12.22.17 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.426 Appeal to Judicial Officer. | USDA | (a) Filing of petition. 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. (b) Response to appeal petition. 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 Judici… | ||||||
| 7:7:1.1.1.1.1.12.22.18 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.427 Filing; identification of parties of record; service; and computation of time. | USDA | (a) Filing; number of copies. 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. (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. (c) Service; proof of service. (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: (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 (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 (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 … | ||||||
| 7:7:1.1.1.1.1.12.22.19 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.428 Depositions. | USDA | (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 oral examination, parties may transmit written questions to the officer prior to the examination and th… | ||||||
| 7:7:1.1.1.1.1.12.22.2 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.411 Definitions. | USDA | 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 et seq. (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: (a) Applicant or Sourcing area applicant 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). (b) Decision means: (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 et seq. 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 (2) The decision and order by the Judicial officer upon appeal of the Judge's decision. (c) Determination is synonymous with decision. (d) Hearing 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. (e) Hearing Clerk means the Office of the Hearing Clerk, United States Department of Agriculture, Washington, D.C. 20250. (f) Judge means any Administrative Law Judge Appointed pursuant to 5 U.S.C. 3105 and assigned to the proceeding involved. (g) Judicial Officer 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. (h) Party of record or Party is a party to the proceeding to determine a… | ||||||
| 7:7:1.1.1.1.1.12.22.20 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.429 | USDA | (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 (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… | ||||||
| 7:7:1.1.1.1.1.12.22.3 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.412 Institution of proceedings. | USDA | (a) Sourcing area applications. 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. (b) Review of sourcing areas. Informal review of a sourcing area precedes institution of a formal review as follows: (1) Request by Sourcing area holder. 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. (i) Informal review. 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. (ii) Formal review. 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. (2) Initiation of review by agency. 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,… | ||||||
| 7:7:1.1.1.1.1.12.22.4 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.413 Submission of a sourcing area application. | USDA | 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 must be notarized. The application shall be on company letterhead. | ||||||
| 7:7:1.1.1.1.1.12.22.5 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.414 Docket number. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.12.22.6 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.415 Notification of proceedings. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.12.22.7 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.416 Comment period. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.12.22.8 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.417 Review period. | USDA | (a) Review of comments. 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. (b) Recommendation to Judge to approve or disapprove a sourcing area application. 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. (c) Request for a hearing. 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 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 consis… | ||||||
| 7:7:1.1.1.1.1.12.22.9 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | M | 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 | § 1.418 Procedure upon no request for hearing. | USDA | 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. | ||||||
| 7:7:1.1.1.1.1.13.22.1 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | N | Subpart N—Policy With Regard to Indemnification of Department of Agriculture Employees | § 1.501 Policy on employee indemnification. | USDA | (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. (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. (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. (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. (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. (f) A Department employee may request indemnification to satisfy a verdic… | ||||||
| 7:7:1.1.1.1.1.14.22.1 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | O | Subpart O—Conditions in FERC Hydropower Licenses | § 1.601 What is the purpose of this subpart, and to what license proceedings does it apply? | USDA | (a) Hearing process. (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 et seq. 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). (2) The hearing process under this part does not apply to recommendations that the Forest Service may submit to FERC under FPA section 10(a), 16 U.S.C. 803(a). (3) The FPA also grants the Department of Commerce and the Department of the Interior the authority to develop mandatory conditions and prescriptions for inclusion in a hydropower license. Where the Forest Service 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: (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 (ii) A hearing requested under this subpart will be conducted by one of the other Departments, pursuant to 43 CFR 45.1 et seq. or 50 CFR 221.1 et seq., as applicable. (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). (b) Alternatives process. The regulations in §§ 1.670 through 1.674 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 p… | ||||||
| 7:7:1.1.1.1.1.14.22.2 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | O | Subpart O—Conditions in FERC Hydropower Licenses | § 1.602 What terms are used in this subpart? | USDA | As used in this subpart: ALJ means an administrative law judge appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process under this subpart. Alternative 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. Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), for the adequate protection and utilization of a reservation. Day means a calendar day. Department means the Department of Agriculture, Department of Commerce, or Department of the Interior. Discovery means a prehearing process for obtaining facts or information to assist a party in preparing or presenting its case. Ex parte communication means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate. FERC means the Federal Energy Regulatory Commission. Forest Service means the USDA Forest Service. FPA means the Federal Power Act, 16 U.S.C. 791 et seq. Hearing Clerk means the Hearing Clerk, OALJ, USDA, 1400 Independence Ave., SW., Washington, DC 20250; phone: 202-720-4443, facsimile: 202-720-9776. Intervention 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. License party means a party to the license proceeding, as that term is defined at 18 CFR 385.102(c). License proceeding means a proceeding before FERC for issuance of a license for a hydroelectric facility under 18 CFR part 4 or 5. Material fact means a fact that, if proved, may affect a Department's decision whether to affirm, modify, or withdraw any condition or prescription. Modified condition or prescription means any modified condition or prescription filed by a Department with FERC for inclusion in a hydropower license. NEPA document means an environmental document as defined at 40 CFR 1508.10 t… | ||||||
| 7:7:1.1.1.1.1.14.22.3 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | O | Subpart O—Conditions in FERC Hydropower Licenses | § 1.603 How are time periods computed? | USDA | (a) General. Time periods are computed as follows: (1) The day of the act or event from which the period begins to run is not included. (2) The last day of the period is included. (i) If that day is a Saturday, Sunday, or Federal holiday, the period is extended to the next business day. (ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due. (3) If the period is less than 7 days, any Saturday, Sunday, or Federal holiday that falls within the period is not included. (b) Extensions of time. (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 § 1.625, or any document under §§ 1.670 through 1.674. (2) An extension of time to file any other document under this subpart may be granted only upon a showing of good cause. (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. (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. (iii) The ALJ may grant the extension only if: (A) It would not unduly prejudice other parties; and (B) It would not delay the decision under § 1.660. | ||||||
| 7:7:1.1.1.1.1.14.22.4 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | O | Subpart O—Conditions in FERC Hydropower Licenses | § 1.604 What deadlines apply to the trial-type hearing and alternatives processes? | USDA | (a) The following table summarizes the steps in the trial-type hearing process under this subpart and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this subpart or by the ALJ, the deadlines as set by those other sections or by the ALJ control. (b) The following table summarizes the steps in the alternatives process under this subpart and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this subpart, the deadlines as set by those other sections control. | ||||||
| 7:7:1.1.1.1.1.14.24.5 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | O | Subpart O—Conditions in FERC Hydropower Licenses | § 1.610 Who may represent a party, and what requirements apply to a representative? | USDA | (a) Individuals. 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. (b) Organizations. A party that is an organization or other entity may authorize one of the following to represent it: (1) An attorney; (2) A partner, if the entity is a partnership; (3) An officer or agent, if the entity is a corporation, association, or unincorporated organization; (4) A receiver, administrator, executor, or similar fiduciary, if the entity is a receivership, trust, or estate; or (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. (c) Appearance. An individual representing himself or herself and any other representative must file a notice of appearance. The notice must: (1) Meet the form and content requirements for documents under § 1.611; (2) Include the name and address of the party on whose behalf the appearance is made; (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 (4) If the representative is not an attorney, include a statement explaining his or her authority to represent the entity. (d) Lead representative. If a party has more than one representative, the ALJ may require the party to designate a lead representative for service of documents under § 1.613. (e) Disqualification. The ALJ may disqualify any representative for misconduct or other good cause. | ||||||
| 7:7:1.1.1.1.1.14.25.10 | 7 | Agriculture | 1 | PART 1—ADMINISTRATIVE REGULATIONS | O | Subpart O—Conditions in FERC Hydropower Licenses | § 1.621 How do I request a hearing? | USDA | (a) General. To request a hearing on disputed issues of material fact with respect to any preliminary condition filed by the Forest Service, you must: (1) Be a license party; and (2) File with NFS, at the appropriate address provided in § 1.612(a)(1), a written request for a hearing: (i) For a case under § 1.601(d)(1), within 30 days after the Forest Service files a preliminary condition with FERC; or (ii) For a case under § 1.601(d)(2), within 60 days after the Forest Service files a preliminary condition with FERC. (b) Content. Your hearing request must contain: (1) A numbered list of the factual issues that you allege are in dispute, each stated in a single, concise sentence; (2) The following information with respect to each issue: (i) The specific factual statements made or relied upon by the Forest Service under § 1.620(a) that you dispute; (ii) The basis for your opinion that those factual statements are unfounded or erroneous; and (iii) The basis for your opinion that any factual dispute is material. (3) 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; and (4) A statement indicating whether or not you consent to service by electronic means under § 1.613(c)(4) and, if so, by what means. (c) Witnesses and exhibits. Your hearing request must also list the witnesses and exhibits that you intend to present at the hearing, other than solely for impeachment purposes. (1) For each witness listed, you must provide: (i) His or her name, address, telephone number, and qualifications; and (ii) A brief narrative summary of his or her expected testimony. (2) For each exhibit listed, you must specify whether it is in the license proceeding record. (d) Page limits. (1) For each disputed factual issue, the informatio… |
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