CFR 2012 Title7 Vol1

Title 7
Agriculture
Parts 1 to 26
Revised as of January 1, 2012
Containing a codification of documents

of general applicability and future effect
As of January 1, 2012
Published by the Office of the Federal Register

National Archives and Records Administration
as a Special Edition of the Federal Register
pmangrum on DSK3VPTVN1PROD with CFR
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Table of Contents
Page
Explanation ................................................................................................ v
Title 7:
SUBTITLE A—Office of the Secretary of Agriculture .................... 3
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 547
Alphabetical List of Agencies Appearing in the CFR ......................... 567
List of CFR Sections Affected ............................................................. 577

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 7 CFR 1.1 re-
fers to title 7, part 1,
section 1.
iv
Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
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To determine whether a Code volume has been amended since its revision date
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given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Reg-
ister since the last revision of that volume of the Code. Source citations for
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to display an OMB control number with their information collection request.
Many agencies have begun publishing numerous OMB control numbers as amend-
ments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before April 1, 2001, consult either the List of
CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in
eleven separate volumes. For the period beginning April 1, 2001, a ‘‘List of CFR
Sections Affected’’ is published at the end of each CFR volume.
‘‘[RESERVED]’’ TERMINOLOGY
The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal
Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ loca-
tion at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that
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ing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was established
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552(a)). This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the Federal Register
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(a) The incorporation will substantially reduce the volume of material pub-
lished in the Federal Register.
(b) The matter incorporated is in fact available to the extent necessary to
afford fairness and uniformity in the administrative process.
(c) The incorporating document is drafted and submitted for publication in
accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If you have any
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CFR INDEXES AND TABULAR GUIDES
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volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
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vi
The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
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revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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Code of Federal Regulations.
INQUIRIES
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RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
January 1, 2012.
vii
THIS TITLE
Title 7—AGRICULTURE is composed of fifteen volumes. The parts in these vol-

umes are arranged in the following order: Parts 1–26, 27–52, 53–209, 210–299, 300–
399, 400–699, 700–899, 900–999, 1000–1199, 1200–1599, 1600–1759, 1760–1939, 1940–1949, 1950–
1999, and part 2000 to end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2012.
The Food and Nutrition Service current regulations in the volume containing
parts 210–299, include the Child Nutrition Programs and the Food Stamp Program.
The regulations of the Federal Crop Insurance Corporation are found in the vol-
ume containing parts 400–699.
All marketing agreements and orders for fruits, vegetables and nuts appear
in the one volume containing parts 900–999. All marketing agreements and orders
for milk appear in the volume containing parts 1000–1199.
For this volume, Michele Bugenhagen was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L. White, as-
sisted by Ann Worley.
ix
Title 7—Agriculture
(This book contains parts 1 to 26)
Part
SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE .. 1

Subtitle A—Office of the
Secretary of Agriculture
Part Page
1 Administrative regulations ..................................... 5
1a Law enforcement authorities .................................. 118
1b National Environmental Policy Act ....................... 119
1c Protection of human subjects ................................. 121
2 Delegations of authority by the Secretary of Agri-
culture and general officers of the Department ... 132
3 Debt management ................................................... 300
4 [Reserved]
5 Determination of parity prices ............................... 329
6 Import quotas and fees ............................................ 334
7 Selection and functions of Agricultural Stabiliza-
tion and Conservation State, county and commu-
nity committees ................................................... 352
8 4-H Club name and emblem ..................................... 366
9–10 [Reserved]
11 National Appeals Division ....................................... 368
12 Highly erodible land and wetland conservation ...... 380
13 [Reserved]
14 Determining the primary purpose of certain pay-
ments for Federal tax purposes ............................ 403
15 Nondiscrimination .................................................. 406
15a Education programs or activities receiving or ben-
efitting from Federal financial assistance ........... 432
15b Nondiscrimination on the basis of handicap in pro-
grams or activities receiving Federal financial
assistance ............................................................. 448
15d Nondiscrimination in programs or activities con-
ducted by the United States Department of Agri-
culture .................................................................. 471
15e Enforcement of nondiscrimination on the basis of
handicap in programs or activities conducted by

the United States Department of Agriculture ..... 472
15f Adjudications under section 741 .............................. 478
3
7 CFR Subtitle A (1–1–12 Edition)
Part Page
16 Equal opportunity for religious organizations ........ 487
17 Sales of agricultural commodities made available
under Title I of the Agricultural Trade Develop-
ment and Assistance Act of 1954, as amended ...... 489
18 Equal employment opportunity in the State Coop-
erative Extension Services ................................... 506
19 [Reserved]
20 Export sales reporting requirements ....................... 508
21 Uniform relocation assistance and real property
acquisition for Federal and federally assisted
programs .............................................................. 516
22 Rural development coordination ............................. 516
23 State and regional annual plans of work ................ 521
24 [Reserved]
25 Rural empowerment zones and enterprise commu-
nities .................................................................... 526
26 [Reserved]
PART 1—ADMINISTRATIVE Subpart E—Cooperative Production of
REGULATIONS Television Films
1.71 Purpose.
Subpart A—Official Records 1.72 Policy.
1.73 Responsibility.
Sec. 1.74 Basis for special working relationships.
1.1 Purpose and scope. 1.75 General stipulations.
1.2 Policy. 1.76 Department cooperation.
1.3 Agency implementing regulations. 1.77 Assignment of priorities.
1.4 Public access to certain materials. 1.78 Development of special working rela-
1.5 Requests for records. tionships.
1.6 Aggregating requests. 1.79 Credits.
1.7 Agency response to requests for records.
Subpart G—Privacy Act Regulations
1.8 Multitrack processing.
1.9 Expedited processing. 1.110 Purpose and scope.
1.10 Search services. 1.111 Definitions.
1.11 Review services. 1.112 Procedures for requests pertaining to
1.12 Handling information from a private individual records in a record system.
business. 1.113 Times, places, and requirements for
1.13 Date of receipt of requests or appeals. identification of individuals making re-
1.14 Appeals. quests.
1.15 General provisions respecting release of 1.114 Disclosure of requested information to
records. individuals.
1.16 Extension of administrative deadlines. 1.115 Special procedures: Medical records.
1.116 Request for correction or amendment
1.17 Failure to meet administrative dead-
to record.
lines.
1.117 Agency review of request for correc-
1.18 Fee schedule. tion or amendment of record.
1.19 Exemptions and discretionary release. 1.118 Appeal of initial adverse agency deter-
1.20 Annual report. mination on correction or amendment.
1.21 Compilation of new records. 1.119 Disclosure of record to person other
1.22 Authentication. than the individual to whom it pertains.
1.23 Records in formal adjudication pro- 1.120 Fees.
ceedings. 1.121 Penalties.
1.24 Preservation of records. 1.122 General exemptions.
1.25 Implementing regulations for the Office 1.123 Specific exemptions.
of the Secretary and the Office of Com- APPENDIX A TO SUBPART G—INTERNAL DIREC-
munications. TIVES
APPENDIX A TO SUBPART A—FEE SCHEDULE
Subpart H—Rules of Practice Governing
AUTHORITY: 5 U.S.C. 301 and 552, Appendix
Formal Adjudicatory Proceedings Insti-
A is also issued under 7 U.S.C. 2244; 31 U.S.C.
9701, and 7 CFR 2.75 (a)(6)(xiii). tuted by the Secretary Under Various
Statutes
SOURCE: 52 FR 49386, Dec. 31, 1987, unless
otherwise noted. 1.130 Meaning of words.
1.131 Scope and applicability of this sub-
Subpart B—Departmental Proceedings part.
1.132 Definitions.
1.26 Representation before the Department 1.133 Institution of proceedings.
of Agriculture. 1.134 Docket number.
1.27 Rulemaking and other notice proce- 1.135 Contents of complaint or petition for
dures. review.
1.28 Petitions. 1.136 Answer.
1.29 Subpoenas relating to investigations 1.137 Amendment of complaint, petition for
under statutes administered by the Sec- review, or answer; joinder of related mat-
retary of Agriculture. ters.
1.138 Consent decision.
Subpart C—Judicial Proceedings 1.139 Procedure upon failure to file an an-
swer or admission of facts.
1.41 Service of process. 1.140 Conferences and procedure.
1.141 Procedure for hearing.
Subpart D—Claims 1.142 Post-hearing procedure.

1.143 Motions and requests.
1.51 Claims based on negligence, wrongful 1.144 Judges.
act or omission. 1.145 Appeal to Judicial Officer.
Pt. 1 7 CFR Subtitle A (1–1–12 Edition)
1.146 Petitions for reopening hearing; for re- 1.201 Department review.
hearing or reargument of proceeding; or 1.202 Judicial review.
for reconsideration of the decision of the 1.203 Payment of award.
Judicial Officer.
1.147 Filing; service; extensions of time; and Subpart K—Appearance of USDA Employ-
computation of time. ees as Witnesses in Judicial or Admin-
1.148 Depositions. istrative Proceedings
1.149 Subpoenas.
1.150 Fees of witnesses. 1.210 Purpose.
1.151 Ex parte communications. 1.211 Definitions.
1.212 General.
Subpart I—Rules of Practice Governing 1.213 Appearance as a witness on behalf of
Cease and Desist Proceedings Under the United States.
Section 2 of the Capper-Volstead Act 1.214 Appearance as a witness on behalf of a
party other than the United States where
1.160 Scope and applicability of rules in this the United States is not a party.
part. 1.215 Subpoenas duces tecum for USDA
1.161 Definitions. records in judicial or administrative pro-
1.162 Institution of proceedings. ceedings in which the United States is
1.163 The complaint. not a party.
1.164 Answer. 1.216 Appearance as a witness or production
1.165 Amendments. of documents on behalf of a party other
1.166 Consent order. than the United States where the United
1.167 Conference. States is a party.
1.168 Procedure for hearing. 1.217 Witness fees and travel expenses.
1.169 Post-hearing procedure and decision. 1.218 Penalty.
1.170 Appeal to the Judicial Officer. 1.219 Delegations.
1.171 Intervention.
1.172 Motions and requests. Subpart L—Procedures Related to Adminis-
1.173 Judges. trative Hearings Under the Program
1.174 Filing; service; extensions of time; and Fraud Civil Remedies Act of 1986
computation of time.
1.175 Procedure following entry of cease and 1.301 Basis, purpose and scope.
desist order. 1.302 Definitions.
1.303 Basis for civil penalties and assess-
Subpart J—Procedures Relating to Awards ments.
Under the Equal Access to Justice Act 1.304 Investigation.
in Proceedings Before the Department 1.305 Review by the reviewing official.
1.306 Prerequisites for issuing a complaint.
GENERAL PROVISIONS 1.307 Complaint.
1.308 Service of complaint and notice of
1.180 Definitions.
hearing.
1.181 Purpose of these rules.
1.309 Answer and request for hearing.
1.182 When EAJA applies.
1.310 Default upon failure to file an answer.
1.183 Proceedings covered.
1.311 Referral of complaint and answer to
1.184 Eligibility of applicants.
the ALJ.
1.185 Standards for awards.
1.312 Procedure where respondent does not
1.186 Allowable fees and expenses.
request a hearing.
1.187 Rulemaking on maximum rates for at-
1.313 Procedure where respondent requests a
torney fees.
hearing; notice of hearing.
1.188 Awards against other agencies.
1.314 Parties to the hearing.
1.189 Delegations of authority.
1.315 Separation of functions.
INFORMATION REQUIRED FROM APPLICANTS 1.316 Ex parte contacts.
1.317 Disqualification of reviewing official
1.190 Contents of application. or ALJ.
1.191 Net worth exhibit. 1.318 Rights of parties.
1.192 Documentation of fees and expenses. 1.319 Authority of the ALJ.
1.193 Time for filing application. 1.320 Prehearing conferences.
1.321 Disclosure of documents.
PROCEDURES FOR CONSIDERING APPLICATIONS
1.322 Discovery.
1.194 Filing and service of documents. 1.323 Subpoenas for attendance at hearing.
1.195 Answer to application. 1.324 Fees.
1.196 Reply. 1.325 Form, filing and service of papers.
1.197 Comments by other parties. 1.326 Computation of time.

1.198 Settlement. 1.327 Motions.
1.199 Further proceedings. 1.328 Sanctions.
1.200 Decision. 1.329 The hearing and burden of proof.
Office of the Secretary, USDA Pt. 1
1.330 Location of hearing. Subpart O—Conditions in FERC
1.331 Witnesses. Hydropower Licenses
1.332 Evidence.
1.333 The record. GENERAL PROVISIONS
1.334 Post-hearing briefs. 1.601 What is the purpose of this subpart,
1.335 Determining the amount of penalties and to what license proceedings does it
and assessments. apply?
1.336 Initial decision of the ALJ. 1.602 What terms are used in this subpart?
1.337 Reconsideration of initial decision. 1.603 How are time periods computed?
1.338 Appeal to the judicial officer. 1.604 What deadlines apply to pending appli-
1.339 Stays ordered by the Department of cations?
Justice.
HEARING PROCESS
1.340 Stay pending appeal.
1.341 Judicial review. REPRESENTATIVES
1.342 Collection of civil penalties and as-
1.610 Who may represent a party, and what
sessments.
requirements apply to a representative?
1.343 Right to administrative offset.
1.344 Deposit to Treasury of the United DOCUMENT FILING AND SERVICE
States.
1.611 What are the form and content re-
1.345 Settlement. quirements for documents under §§ 1.611
1.346 Limitation. through 1.660?
1.612 Where and how must documents be
Subpart M—Rules of Practice Governing filed?
Adjudication of Sourcing Area Appli- 1.613 What are the requirements for service
cations and Formal Review of Sourcing of documents?
Areas Pursuant to the Forest Resources
INITIATION OF HEARING PROCESS
Conservation and Shortage Relief Act
of 1990 (16 U.S.C. 620 et seq.) 1.620 What supporting information must the
Forest Service provide with its prelimi-
1.410 Meaning of words. nary conditions?
1.411 Definitions. 1.621 How do I request a hearing?
1.412 Institution of proceedings. 1.622 How do I file a notice of intervention
1.413 Submission of a sourcing area applica- and response?
tion. 1.623 When will hearing requests be consoli-
1.414 Docket number. dated?
1.415 Notification of proceedings. 1.624 How will the Forest Service respond to
any hearing requests?
1.416 Comment period.
1.625 What will the Forest Service do with
1.417 Review period.
any hearing requests?
1.418 Procedure upon no request for hearing. 1.626 What regulations apply to a case re-
1.419 Amendment of a sourcing area appli- ferred for a hearing?
cation.
1.420 Consent recommendation. GENERAL PROVISIONS RELATED TO HEARINGS
1.421 Prehearing conferences and proce- 1.630 What will OALJ do with a case refer-
dures. ral?
1.422 Conduct of the hearing. 1.631 What are the powers of the ALJ?
1.423 Post-hearing procedure. 1.632 What happens if the ALJ becomes un-
1.424 Motions and requests. available?
1.425 Judges. 1.633 Under what circumstances may the
1.426 Appeal to Judicial Officer. ALJ be disqualified?
1.427 Filing; identification of parties of 1.634 What is the law governing ex parte
record; service; and computation of time. communications?
1.428 Depositions. 1.635 What are the requirements for mo-
tions?
1.429 Ex parte communications.
PREHEARING CONFERENCES AND DISCOVERY
Subpart N—Policy With Regard to Indem-
nification of Department of Agriculture 1.640 What are the requirements for pre-
hearing conferences?
Employees
1.641 How may parties obtain discovery of
1.501 Policy on employee indemnification. information needed for the case?

1.642 When must a party supplement or
amend information it has previously pro-
vided?
§ 1.1 7 CFR Subtitle A (1–1–12 Edition)
1.643 What are the requirements for written pursuant to compulsory process. This
interrogatories? subpart also serves as the imple-
1.644 What are the requirements for deposi- menting regulations (referred to in
tions?
§ 1.3, ‘‘Agency implementing regula-
1.645 What are the requirements for re-
quests for documents or tangible things tions’’) for the Office of the Secretary
or entry on land? (the immediate offices of the Sec-
1.646 What sanctions may the ALJ impose retary, Deputy Secretary, Under Secre-
for failure to comply with discovery? taries and Assistant Secretaries) and
1.647 What are the requirements for sub- for the Office of Communications. The
poenas and witness fees? Office of Communications has the pri-
HEARING, BRIEFING, AND DECISION mary responsibility for implementa-
tion of the FOIA in the Department of
1.650 When and where will the hearing be Agriculture (‘‘USDA’’ or ‘‘Depart-
held?
ment’’). The term ‘‘agency’’ or ‘‘agen-
1.651 What are the parties’ rights during the
hearing? cies’’ is used throughout this subpart
1.652 What are the requirements for pre- to include both USDA program agen-
senting testimony? cies and staff offices.
1.653 How may a party use a deposition in
[65 FR 46336, July 28, 2000]
the hearing?
1.654 What are the requirements for exhib-
§ 1.2 Policy.
its, official notice, and stipulations?
1.655 What evidence is admissible at the (a) Agencies of USDA shall comply
hearing? with the time limits set forth in the
1.656 What are the requirements for tran- FOIA and in this subpart for respond-
scription of the hearing? ing to and processing requests and ap-
1.657 What is the standard of proof?
peals for agency records, unless there
1.658 When will the hearing record close?
1.659 What are the requirements for post- are unusual circumstances within the
hearing briefs? meaning of 5 U.S.C. 552(a)(6)(B) and
1.660 What are the requirements for the § 1.16(b). An agency shall notify a re-
ALJ’s decision? quester in writing whenever it is un-
able to respond to or process a request
ALTERNATIVES PROCESS
or appeal within the time limits estab-
1.670 How must documents be filed and lished by the FOIA.
served under §§ 1.670 through 1.673? (b) All agencies of the Department
1.671 How do I propose an alternative? shall comply with the fee schedule pro-
1.672 What will the Forest Service do with a
vided as appendix A to this subpart,
proposed alternative?
1.673 How will the Forest Service analyze a with regard to the charging of fees for
proposed alternative and formulate its providing copies of records and related
modified conditions? services to requesters.
1.674 Has OMB approved the information
[65 FR 46337, July 28, 2000]
collection provisions of §§ 1.670 through
1.673?
§ 1.3 Agency implementing regula-
AUTHORITY: 5 U.S.C. 301, unless otherwise tions.
noted.
Each agency of the Department shall
promulgate regulations setting forth
Subpart A—Official Records the following:
(a) The location and hours of oper-
AUTHORITY: 5 U.S.C. 301, 552; 7 U.S.C. 3125a; ation of the agency office or offices
31 U.S.C. 9701; and 7 CFR 2.28(b)(7)(viii). where members of the public may gain
access to those materials required by 5
§ 1.1 Purpose and scope. U.S.C. 552(a)(2) and § 1.4 to be made
This subpart establishes policy, pro- available for public inspection and
cedures, requirements, and responsibil- copying.
ities for administration and coordina- (b) Information regarding the publi-
tion of the Freedom of Information Act cation and distribution (by sale or oth-
(‘‘FOIA’’), 5 U.S.C. 552, pursuant to erwise) of indexes and supplements to

which any person may obtain official indexes that are maintained in accord-
records. It also provides rules per- ance with the requirements of 5 U.S.C.
taining to the disclosure of records 552(a)(2) and § 1.4(c);
Office of the Secretary, USDA § 1.4
(c) The title and mailing address of (4) Copies of all records, regardless of
the official or officials of the agency form or format, which have been re-
authorized to receive requests for leased pursuant to a FOIA request
records submitted in accordance with under 5 U.S.C. 552(a)(3), and which be-
§ 1.5(a), and to make determinations re- cause of the nature of their subject
garding whether to grant or deny such matter, have become or are likely to
requests. Authority to make such de- become the subject of subsequent re-
terminations includes authority to: quests for substantially the same
(1) Extend the 20 working day admin- records. Agencies shall decide on a case
istrative deadline for reply pursuant to by case basis whether records fall into
§ 1.16; this category, based on the following
(2) Make discretionary releases pur- factors:
suant to § 1.19(b); (i) Previous experience with similar
(3) Make determinations regarding records;
the charging of fees pursuant to appen- (ii) The particular characteristics of
dix A to this subpart; the records involved, including their
(d) The title and mailing address of nature and the type of information
the agency official who is authorized to contained in them; and
receive appeals submitted in accord- (iii) The identity and number of re-
ance with § 1.14 and to make determina- questers and whether there is wide-
tions regarding whether to grant or spread media, historical, academic, or
deny such appeals. Authority to deter- commercial interest in the records.
mine appeals includes authority to: (5) A general index of the records re-
(1) Extend the 20 working day admin- ferred to in paragraph (a)(4) of this sec-
istrative deadline for reply pursuant to tion.
§ 1.16 (to the extent the maximum ex- (b) Records encompassed within para-
tension authorized by § 1.16(c) was not graphs (a)(1) through (a)(5) of this sec-
used with regard to the initial request; tion created on or after November 1,
(2) Make discretionary releases pur- 1996, shall be made available to the
suant to § 1.19(b); public by computer telecommuni-
(3) Make determinations regarding cations or, if computer telecommuni-
the charging of fees pursuant to appen- cations means have not been estab-
dix A to this subpart; and lished by the agency, by other elec-
(e) Other information which would be tronic means.
of concern to a person wishing to re- (c) Each agency of the Department
quest records from that agency in ac- shall maintain and make available for
cordance with this subpart. public inspection and copying current
indexes providing identifying informa-
[65 FR 46337, July 28, 2000] tion regarding any matter issued,
adopted or promulgated after July 4,
§ 1.4 Public access to certain mate- 1967, and required by paragraph (a) of
rials.
this section to be make available or
(a) In accordance with 5 U.S.C. published. Each agency shall publish
552(a)(2), each agency within the De- and make available for distribution
partment shall make the following ma- copies of such indexes and supplements
terials available for public inspection to such indexes at least quarterly, un-
and copying (unless they are promptly less it determines by notice published
published and copies offered for sale): in the FEDERAL REGISTER that publica-
(1) Final opinions, including concur- tion would be unnecessary and imprac-
ring and dissenting opinions, as well as ticable. After issuance of such notice,
orders, made in the adjudication of each agency shall provide copies of any
cases; index upon request at a cost not to ex-
(2) Those statements of policy and in- ceed the direct cost of duplication.
terpretation which have been adopted (d) Each agency is responsible for
by the agency and are not published in preparing reference material or a guide
the FEDERAL REGISTER; for requesting records or information

(3) Administrative staff manuals and from that agency. This guide shall also
instructions to staff that affect a mem- include an index of all major informa-
ber of the public; tion systems, and a description of
major information and record locator may help identify the records. If the re-
systems. quest relates to a matter in pending
(e) Each agency shall also prepare a litigation, the requester should iden-
handbook for obtaining information tify the court and its location.
from that agency. The handbook (c) If an agency determines that a re-
should be a short, simple explanation quest does not reasonably describe the
to the public of what the FOIA is de- records, the agency shall inform the re-
signed to do, and how a member of the quester of this fact and extend the re-
public can use it to access government quester an opportunity to clarify the
records. The handbook should be avail- request or to confer promptly with
able on paper and through electronic knowledgeable agency personnel to at-
means, and it should identify how a re- tempt to identify the records the re-
quester can access agency Freedom of quester is seeking. The ‘‘date of re-
Information Act annual reports. Simi- ceipt’’ in such instances, for purposes
larly, the annual reports should refer of § 1.13, shall be the date of receipt of
to the handbook and how to obtain it. the amended or clarified request.
(f) It is appropriate to make fre- (d) If a request for records or a fee
quently requested records available in waiver made under this subpart is de-
accordance with paragraph (a)(4) of nied, the requester shall have the right
this section in situations where public to appeal the denial. Requesters also
access in a timely manner is impor- may appeal agency determinations of a
tant, and it is not intended to apply requester’s status for purposes of fee
where there may be a limited number levels under sec. 5 of appendix A to this
of requests over a short period of time subpart. All appeals must be in writing
from a few requesters. Agencies may and addressed to the official designated
remove a record from this access me- in regulations promulgated by the
dium when the appropriate official de- agency which denied the request. To fa-
termines that it is unlikely there will cilitate processing of an appeal, the re-
be substantial further requests for that quester should place the phrase ‘‘FOIA
document. APPEAL’’ in capital letters on the
[65 FR 46337, July 28, 2000] front of the envelope or on the cover
sheet of the fax transmittal.
§ 1.5 Requests for records. (e) Requests that are not addressed
(a) Any person who wishes to inspect to a specific agency in USDA, or which
or obtain copies of any record of any pertain to more than one USDA agen-
agency of the Department shall submit cy, or which are sent to the wrong
a request in writing and address the re- agency of USDA, should be forwarded
quest to the official designated in regu- to the Department’s FOIA Officer in
lations promulgated by that agency. the Office of Communications, U.S. De-
The requester may ask for a fee waiver. partment of Agriculture, Washington,
All such requests for records shall be DC 20250.
deemed to have been made pursuant to (f) The Department FOIA Officer will
the Freedom of Information Act, redetermine which agency or agencies
gardless of whether the request specifi- should process the request, and, where
cally mentions the Freedom of Infor- necessary, refer the request to the ap-
mation Act. To facilitate processing of propriate agency or agencies. The De-
a request, the requester should place partment FOIA Officer will also notify
the phrase ‘‘FOIA REQUEST’’ in cap- the requester of the referral and of the
ital letters on the front of the envelope name of each agency to which the re-
or on the cover sheet of the facsimile quest has been referred.
transmittal. (g) A request will be properly re-
(b) A request must reasonably de- ceived when it is in the possession of
scribe the records to enable agency per- the component agency that has respon-
sonnel to locate them with reasonable sibility for maintaining the requested
effort. Where possible, a requester records.
should supply specific information re- (h) Each agency shall develop and
garding dates, titles, names of individ- maintain a record of all written re-
uals, names of offices, and names of quests and appeals received in that
agencies or other organizations that agency. The record shall include the
10
names of the requester; a brief sum- (2) The name and title or position of
mary of the information requested; each person responsible for denial of
whether the request or appeal was the request;
granted, denied, or partially denied; (3) The requester’s right to appeal
the exemption from mandatory disclo- such denial and the title and address of
sure under 5 U.S.C. 552(b) upon which the official to whom such appeal is to
any denial was based; and the amount be addressed; and
of any fees associated with the request (4) The requirement that such appeal
or appeal. be made within 45 days of the date of
the denial.
[65 FR 46337, July 28, 2000]
(b) If the reason for not fulfilling a
§ 1.6 Aggregating requests. request is that the records requested
are in the custody of another agency
When an agency reasonably believes outside USDA, other than in the per-
that a requester, or a group of request- manent custody of the National Ar-
ers acting in concert, is attempting to chives and Records Administration
break a request down into a series of (‘‘NARA’’), the agency shall inform the
requests for the purpose of evading the requester of this fact and shall forward
assessment of fees, the agency may ag- the request to that agency or Depart-
gregate any such requests and charge ment for processing in accordance with
accordingly. One element that may be its regulations. If the records are in the
considered in determining whether permanent custody of NARA, the agen-
such a belief would be reasonable is the cy shall so inform the requester. Infor-
brevity of the time period during which mation about obtaining access to
the requests have been made. records at NARA may be obtained
[65 FR 46338, July 28, 2000] through the NARA Archival Informa-
tion Locator (NAIL) Database at http://
§ 1.7 Agency response to requests for www/nara.gov/nara.nail.html, or by call-
records. ing NARA at (301) 713–6800. If the agen-
(a) 5 U.S.C. 552(a)(6)(A)(i) provides cy has no knowledge of requested
that each agency of the Department to records or if no records exist, the agen-
which a request for records is sub- cy shall notify the requester of that
mitted in accordance with § 1.5(a) shall fact.
inform the requester of its determina- [65 FR 46338, July 28, 2000]
tion concerning that request within 20
working days of its date of receipt (ex- § 1.8 Multitrack processing.
cepting Saturdays, Sundays, and legal (a) When an agency has a significant
public holidays), plus any extension au- number of requests, the nature of
thorized under § 1.16. If the agency de- which precludes a determination with-
termines to grant the request, it shall in 20 working days, the requests may
inform the requester of any conditions be processed in a multitrack processing
surrounding the granting of the re- system, based on the date of receipt,
quest (e.g., payment of fees) and the the amount of work and time involved
approximate date upon which the agen- in processing the request, and whether
cy will provide the requested records. If the request qualifies for expedited
the agency grants only a portion of the processing.
request, it shall treat the portion not (b) Agencies may establish as many
granted as a denial, and make a reason- processing tracks as appropriate; proc-
able effort to estimate the volume of essing within each track shall be based
the records denied and provide this es- on a first-in, first-out concept, and
timate to the requester, unless pro- rank-ordered by the date of receipt of
viding such an estimate would harm an the request.
interest protected by an exemption of (c) Agencies may provide a requester
the FOIA. If the agency determines to whose request does not qualify for the
deny the request in part or in whole, it fastest track an opportunity to limit
shall immediately inform the requester the scope of the request in order to
of that decision and provide the fol- qualify for a faster track. This multi-
lowing: track processing system does not less-
(1) The reasons for the denial; en agency responsibility to exercise
11
due diligence in processing requests in news breaking nature of the informa-

the most expeditious manner possible. tion.
(d) Agencies shall process requests in (c) A requester who seeks expedited
each track on a ‘‘first-in, first-out’’ processing must provide a written
basis, unless there are unusual cir- statement that the requester has cer-
cumstances as set forth in § 1.16, or the tified to be true and correct to the best
requester is entitled to expedited proc- of the requester’s knowledge, explain-
essing as set forth in § 1.9. ing in detail the basis for requesting
[65 FR 46338, July 28, 2000] expedited processing. The agency will
not consider the request to have been
§ 1.9 Expedited processing. received unless accompanied by a writ-
(a) A requester may apply for expe- ten, certified statement, and will be
dited processing at the time of the ini- under no obligation to consider the re-
tial request for records. Within ten cal- quest for expedited processing until it
endar days of its receipt of a request receives such a written, certified state-
for expedited processing, an agency ment.
shall decide whether to grant it, and (d) the same procedures apply to re-
shall notify the requester of the deci- quests for expedited processing of ad-
sion. Once the determination has been ministrative appeals.
made to grant expedited processing, an
agency shall process the request as [65 FR 46338, July 28, 2000]
soon as practicable. If a request for ex-
pedited processing is denied, the agen- § 1.10 Search services.
cy shall act expeditiously on any ap- Search services are services of agen-
peal of that decision. cy personnel—clerical or professional—
(b) A request or appeal will be taken used in trying to find the records, that
out of order and given expedited treat- are responsive to a request. Search
ment whenever the agency determines services includes both manual and elec-
that the requester has established ei- tronic searches and time spent exam-
ther of the following criteria: ining records for the purpose of finding
(1) Circumstances in which the lack information that is within the scope of
of expedited treatment could reason- the request. Search services also in-
ably be expected to pose an imminent
clude services to transport personnel to
threat to the life or physical safety of
places of record storage, or records to
an individual; or
the location of personnel for the pur-
(2) An urgency to inform the public
about an actual or alleged federal gov- pose of the search, if such services are
ernment activity, if made by an indi- reasonably necessary.
vidual primarily engaged in dissemi- [65 FR 46339, July 28, 2000]
nating information. Representatives of
the news media would normally qualify § 1.11 Review services.
as individuals primarily engaged in dis-
(a) Review services are services of
seminating information; however,
agency personnel—clerical or profes-
other requesters must demonstrate
sional—in examining records, both
that their primary activity involves
publishing or otherwise disseminating paper and electronic, located in re-
information to the public as a whole, sponse to a request that is for a com-
and not just a particular segment or mercial use (as specified in sec. 6 of ap-
group. ‘‘Urgency’’ contemplates that pendix A to this subpart) to determine
the information has a particular value whether any portion of any record lo-
that will be lost if not disseminated cated is exempt from mandatory dis-
quickly. Ordinarily this means a break- closure.
ing news story of general public inter- (b) Review services include proc-
est. Information of historical interest essing any records for disclosure e.g.,
only or information sought for litiga- doing all that is necessary to redact ex-
empt portions and otherwise prepare
tion or commercial activities would

not meet the test of urgency, nor records for release.
would a news media publication or (c) Review services do not include the
broadcast deadline unrelated to the time spent resolving general legal or
12
policy issues regarding the application matter may be considered for possible
of exemptions. judicial intervention; and
(e) Notify business information sub-
[65 FR 46339, July 28, 2000]
mitters promptly of all instances in
§ 1.12 Handling information from a which FOIA requesters bring suit seek-
private business. ing to compel disclosure of submitted
information.
Each USDA agency is responsible for
making the final determination with [65 FR 46339, July 28, 2000]
regard to the disclosure or nondisclo-
sure of information in agency records § 1.13 Date of receipt of requests or ap-
that has been submitted by a business. peals.
When, in the course of responding to an The date of receipt of a request or ap-
FOIA request, an agency cannot read- peal shall be the date it is received in
ily determine whether the information the agency and office responsible for
obtained from a person is privileged or the administrative processing of FOIA
confidential business information, the requests or appeals.
policy of USDA is to obtain and con-
sider the views of the submitter of the [65 FR 46339, July 28, 2000]
information and to provide the sub-
§ 1.14 Appeals.
mitter an opportunity to object to any
decision to disclose the information. If (a) Requesters seeking administra-
a request (including a subpoena duces tive appeal of a denial of a request for
tecum as described in § 1.215) is re- records or denial of a fee waiver must
ceived in USDA for information that ensure that the appeal is received by
has been submitted by a business, the the agency within 45 days of the date of
agency shall: the denial letter.
(a) Provide the business information (b) Each agency shall provide for re-
submitter with prompt notification of view of appeals by an official different
a request for that information (unless from the official or officials designated
it is readily determined by the agency to make initial denials.
that the information requested should (c) 5 U.S.C. 552(a)(6)(A)(ii) provides
not be disclosed or, on the other hand, that each agency in the Department to
that the information is not exempt by which an appeal of a denial is sub-
law from disclosure). Afford business mitted shall inform the requester of its
information submitter reasonable time determination concerning that appeal
in which to object to the disclosure of within 20 working days (excepting Sat-
any specified portion of the informa- urdays, Sundays, and legal public holi-
tion. The submitter must explain fully days), plus any extension authorized by
all grounds upon which disclosure is § 1.16, of its date of receipt. If the agen-
opposed. For example, if the submitter cy determines to grant the appeal, it
maintains that disclosure is likely to shall inform the requester of any con-
cause substantial harm to it competi- ditions surrounding the granting of the
tive position, the submitter must ex- request (e.g., payment of fees) and the
plain item-by-item why disclosure approximate date upon which compli-
would cause such harm. Information ance will be effected. If the agency
provided by a business submitter pur- grants only a portion of the appeal, it
suant to this paragraph may itself be shall treat the portion not granted as a
subject to disclosure under FOIA; denial. If it determines to deny the ap-
(b) Notify the requester of the need peal either in part or in whole, it shall
to inform the submitter of a request inform the requester of that decision
for submitted business information; and of the following:
(c) Determine whether the requested (1) The reasons for denial;
records are exempt from disclosure or (2) The name and title or position of
must be released; each person responsible for denial of
the appeal; and
(d) Provide business information sub-

mitters with notice of any determina- (3) The right to judicial review of the
tion to disclose such records prior to denial in accordance with 5 U.S.C.
the disclosure date, in order that the 552(a)(4).
13
(d) Each agency, upon a determina- would reasonable demonstrate the ex-
tion that it wishes to deny an appeal, tent of the deletion. In the case of elec-
shall send a copy of the records re- tronic deletion, or deletion in audio-
quested and of all correspondence re- visual or microfiche records, if tech-
lating to the request to the Assistant nically feasible, the amount of re-
General Counsel, General Law Divi- dacted information shall be indicated
sion, Office of the General Counsel at the place in the records, if tech-
(‘‘Assistant General Counsel’’). When nically feasible, the amount of re-
the volume of records is so large as to dacted information shall be indicated
make sending a copy impracticable, at the place in the record where such
the agency shall enclose an inform- deletion was made. This may be done
ative summary of those records. The by use of brackets, shaded areas, or
agency shall not deny an appeal until some other identifiable technique
it receives concurrence from the As- which will clearly show the limits of
sistant General Counsel the deleted information.
(e) The Assistant General Counsel
shall promptly review the matter (in- (c) If, in connection with a request or
cluding necessary coordination with an appeal, a charge is to be made in ac-
the agency) and render all necessary cordance with sec. 8 of appendix A to
assistance to enable the agency to re- this subpart, agencies shall inform the
spond to the appeal within the admin- requester of the fee amount and of the
istrative deadline or any extension of basis for the charge. Each agency, in
the administrative deadline. accordance with sec. 8 of appendix A to
this subpart, may require payment of
[65 FR 46339, July 28, 2000] the entire fee, or a portion of the fee,
before it provides the requested
§ 1.15 General provisions respecting
release of records. records. An agency shall require full
payment of any delinquent fee owed by
(a) When releasing documents, agen- the requester plus any applicable inter-
cies shall provide the record in any est prior to releasing records on a sub-
form or format the requester specifies, sequent request or appeal. If a re-
if the record is readily reproducible in
quester refuses to remit payment in ad-
that form of format. Agencies shall
vance, an agency may refuse to process
make reasonable efforts to maintain
the request or appeal with written no-
their records in forms or formats that
tice to that effect forwarded to the re-
are reproducible. In responding to re-
quests for records, agencies shall make quester. The ‘‘date of receipt’’ appeal
reasonable efforts to search for records for which advance payment has been
in electronic form or format, except required shall be the date that pay-
when such efforts would significantly ment is received.
interfere with the operation of an agen- (d) In the event compliance with the
cy’s automated information system. request or appeal involves inspection of
Such determinations shall be made on records by the requester rather than
a case-by-case basis. providing copies of the records, the
(b) In the event a requested record agency response shall include the
contains some portions that are ex- name, mailing address, and telephone
empt from mandatory disclosure and number of the person to be contacted
others that are not, the official re- to arrange a mutually convenient time
sponding to the request shall ensure for such inspection.
that all reasonably segregable non- (e) Whenever duplication fees, or
exempt portions are disclosed, and that search fees for unsuccessful searches
all exempt portions are identified ac- (see sec. 4(f) of appendix A to this sub-
cording to the specific exemption or part), are anticipated to exceed $25.00,
exemptions which are applicable. The and the requester has not indicated, in
amount of deleted information shall be advance, a willingness to pay fees as
indicated on the released portion of high as those anticipated, agencies
paper records. Deletions may be shall notify the requester of the

marked by use of brackets or darkened amount of the anticipated fee. If an ex-
areas indicating removal of informa- tensive and therefore costly successful
tion, or by any other method that search is anticipated, agencies also
14
should notify requesters of the antici- (1) The need to search for and collect
pated fees. The notification shall offer the requested records from field facili-
the requester the opportunity to confer ties or other establishments that are
with agency personnel to reform the separate from the office processing the
request to meet the requester’s needs request;
at a lower fee. In appropriate cases, an (2) The need to search for, collect,
advance deposit in accordance with sec. and appropriately examine a volumi-
8 of appendix A to this subpart may be nous amount of separate and distinct
required. records which are demanded in a single
[65 FR 46340, July 28, 2000] request; or
(3) The need for consultation, which
§ 1.16 Extension of administrative shall be conducted with all practicable
deadlines. speed, with another Department or
(a) In unusual circumstances as spec- agency having a substantial interest in
ified in this section, when additional the determination of the request or
time is needed to respond to the initial among two or more components of
request or to an appeal, agencies shall agency having substantial subject-mat-
acknowledge the request or the appeal ter interest in the request.
in writing within the 20 working day
time period, describe the unusual cir- NOTE TO PARAGRAPH (b): Consultation re-
cumstances requiring the delay, and in- garding policy or legal issues between an
dicate the anticipated date for a subagency and the Office of the General Coun-
sel, Office of Communications, or the De-
stantive response that may not exceed
partment of Justice is not a basis for exten-
10 additional working days, except as sion under this section.
provided in the following:
(1) In instances in which the agency, (c) The 10-day extension authorized
with respect to a particular request, by this section may be divided between
has extended the response date by 10 the initial and appellate reviews, but in
additional working days, if the agency no event shall the total extension ex-
finds that it cannot make a response ceed 10 working days.
determination within the additional 10 (d) Nothing in this section shall pre-
working day period, the agency shall clude the agency and the requester
notify the requester and provide the re- from agreeing to an extension of time.
quester an opportunity to limit the Any such agreement should be con-
scope of the request to allow the agen- firmed in writing and should specify
cy to process the request within the ex- clearly the total time agreed upon.
tended time limit, or an alternative
time frame for processing the request [65 FR 46340, July 28, 2000]
or a modified request.
(2) If the requester refuses to reason- § 1.17 Failure to meet administrative
ably modify the request or arrange for deadlines.
an alternative time frame for proc- In the event an agency fails to meet
essing the request, the FOIA provides the administrative deadlines set forth
that such refusal shall be considered as in § 1.7 or § 1.14, plus any extension au-
a factor in determining whether there thorized by § 1.16, it shall notify the re-
are exceptional circumstances that quester, state the reasons for the
warrant granting additional time for delay, and the date by which it expects
the agency to complete its review of to dispatch a determination. Although
the records, as set forth in 5 U.S.C. the requester may be deemed to have
552(a)(6)(C)(iii). The term ‘‘exceptional exhausted his or her administrative
circumstances’’ does not include a remedies under 5 U.S.C. 552(a)(6)(C), the
delay that results from a predictable agency shall continue processing the
agency backlog, unless the agency request as expeditiously as possible and
demonstrates reasonable progress in dispatch the determination when it is
reducing its backlog of pending re- reached in the same manner and form
quests. as if it had been reached within the ap-

(b) As used in this section, ‘‘unusual
plicable deadline.
circumstances’’ that may justify delay
are: [65 FR 46341, July 28, 2000]
15
§ 1.18 Fee schedule. (5) The number of requests for

Pursuant to § 2.28 of this title, the records pending before the agency as of
Chief Financial Officer is delegated au- September 30 of the preceding year,
thority to promulgate regulations pro- and the median number of days that
viding for a uniform fee schedule appli- such requests had been pending before
cable to all agencies of the Department the agency as of that date:
regarding requests for records under (6) The median number of days taken
this subpart. The regulations providing by the agency to process different
for a uniform fee schedule are found in types of requests;
appendix A to this subpart. (7) The total amount of fees collected
by the agency for processing requests;
[65 FR 46341, July 28, 2000]
(8) The number of full-time staff of
§ 1.19 Exemptions and discretionary the agency devoted to processing re-
release. quests for records under this section,
and the total amount expended by the
(a) All agency records, except those
agency for processing such requests.
specifically exempted from mandatory
disclosure by one or more provisions of (b) Each agency shall compile the in-
5 U.S.C. 552(b), shall be made promptly formation required by paragraph (a) of
available to any person submitting a this section for the preceding fiscal
request under this subpart. year into a report and submit this re-
(b) Agencies are authorized, in their port to the Director of Communica-
sole discretion, to make discretionary tions, Office of Communications, no
releases when such release is not other- later than November 30 following the
wise specifically prohibited by Execu- fiscal year’s close.
tive Order, statute, or regulation. (c) The Director of Communications,
Office of Communications, shall com-
[65 FR 46341, July 28, 2000] bine the reports from all the agencies
§ 1.20 Annual report. within USDA into a Departmental re-
port, and shall submit to the Attorney
(a) Each agency of the Department General on or before February 1 of each
shall compile the following Freedom of year in accordance with 5 U.S.C. 552(e).
Information Act statistics on a fiscal (d) Each agency shall make the re-
year basis beginning October 1, 1997, port available to the public including
and report the following information to by computer telecommunications, or if
the Office of Communications no later computer telecommunications means
than November 30 following the fiscal have not been established by the agen-
year’s close: cy, by other electronic means.
(1) The number of requests for
records received and the number of re- [65 FR 46341, July 28, 2000]
quests which were processed;
(2) The number of determinations § 1.21 Compilation of new records.
made not to comply with initial re- Nothing in 5 U.S.C. 552 or this sub-
quests for records made to it under part requires that any agency create a
§ 1.5(a), and the reasons for each such new record in order to fulfill a request
determinations; for records. However, an agency is re-
(3) The number of appeals made by quired to provide a record in a form or
persons under § 1.14(b), the result of format specified by a requester, if the
such appeals, and the reason for the ac- record is readily reproducible by the
tion upon each appeal that results in a agency in the form or format re-
denial of information. quested. Creation of records may be un-
(4) A complete list of all statutes dertaken voluntarily if the agency de-
that the agency relies upon to author- termines this action to be in the public
ize the agency to withhold information interest or the interest of USDA.
under 5 U.S.C. 552(b)(3), a description of
whether a court has upheld the deci- [65 FR 46341, July 28, 2000]
sion of the agency to withhold informa-

tion under each such statute, and a § 1.22 Authentication.
concise description of the scope of any When a request is received for an au-
information withheld; thenticated copy of a document that
16
the agency determines to make avail- in Room 536–A, Jamie L. Whitten Fed-
able to the requesting party, the agen- eral Building, USDA, Washington, DC
cy shall cause a correct copy to be pre- 20250 during the hours of 9 a.m. to 5
pared and sent to the Office of the Gen- p.m. by prior appointment;
eral Counsel, which shall certify the (2) Any indexes and supplements
same and cause the seal of the Depart- which are maintained in accordance
ment to be affixed, except that the with the requirements of 5 U.S.C.
Hearing Clerk in the Office of Adminis- 552(a)(2) and § 1.5(b) will also be avail-
trative Law Judges may authenticate able in Room 536–A, Jamie L. Whitten
copies of documents in the records of Federal Building, USDA, Washington,
the Hearing Clerk, the Director of the DC 20250 during the hours of 9 a.m. to
National Appeals Division may authen- 5 p.m.;
ticate copies of documents in the (3) The person authorized to receive
records of the National Appeals Divi- Freedom of Information Act requests
sion, and the Inspector General may and to determine whether to grant or
authenticate copies of documents in deny such requests is the FOIA Officer,
the records of the Office of Inspector Office of Communications, USDA,
General. Washington, DC 20250;
[72 FR 66042, Nov. 27, 2007] (4) The official authorized to receive
appeals from denial of FOIA requests
§ 1.23 Records in formal adjudication and to determine whether to grant or
proceedings. deny such appeals is the Director of
Records in formal adjudication pro- Communications, Office of Commu-
ceedings are on file in the Hearing nications, USDA, Washington, DC
Clerk’s office, Office of Administrative 20250.
Law Judges, U.S. Department of Agri- (b) The organization and functions of
culture, Washington, DC 20250, and the Office of the Secretary and the Of-
shall be made available to the public. fice of Communications is as follows:
[65 FR 46341, July 28, 2000]
(1) The Office of the Secretary pro-
vides the overall policy guidance and
§ 1.24 Preservation of records. direction of the activities of the De-
partment of Agriculture. Department-
Agencies shall preserve all cor-
wide policy statements and announce-
respondence relating to the requests it
ments are made from this office.
receives under this subpart, and all
records processed pursuant to such re- (2) The Office of the Secretary con-
quests, until such time as the destruc- sists of the Secretary, Deputy Sec-
tion of such correspondence and retary, Under Secretaries, Assistant
records is authorized pursuant to Title Secretaries, and other staff members.
44 of the United States Code, and ap- (3) In the absence of the Secretary
propriate records disposition authority and the Deputy Secretary, responsi-
granted by NARA. Under no cir- bility for the operation of the Depart-
cumstances shall records be sent to a ment of Agriculture is as delegated at
Federal Records Center, transferred to part 2, subpart A, of this title.
the permanent custody of NARA, or de- (4) The Office of Communications
stroyed while they are the subject of a provides policy direction, review, and
pending request, appeal, or civil action coordination of public information pro-
under the FOIA. grams of the Department of Agri-
culture. The Office of Communications
[65 FR 46341, July 28, 2000] has responsibility for maintaining the
flow of information to the mass com-
§ 1.25 Implementing regulations for
the Office of the Secretary and the munications media, various constitu-
Office of Communications. ency groups, and the general public.
(5) The Office of Communications is
(a) For the Office of the Secretary
headed by the Director of Communica-
and for the Office of Communications,
tions. In the Director’s absence, the Of-
the regulations required by § 1.3 are as

fice of Communications is headed by
follows:
the Deputy Director.
(1) Records available for public in-
spection and copying may be obtained [65 FR 46341, July 28, 2000]
17
Pt. 1, Subpt. A, App. A 7 CFR Subtitle A (1–1–12 Edition)
APPENDIX A TO SUBPART A OF PART 1— (d) Records shall also be furnished without

FEE SCHEDULE charge under the following conditions:
(1) When filling requests from other De-
Section 1. General. partments or Government agencies for offi-
cial use, provided quantities requested are
This schedule sets forth fees to be charged reasonable in number;
for providing copies of records—including (2) When members of the public provide
photographic reproductions, microfilm, maps their own copying equipment, in which case
and mosaics, and related services—under the no copying fee will be charged (although
Freedom of Information Act (FOIA). Records search and review fees may still be assessed);
and related services are available at the lo- or
cations specified by agencies in their FOIA (3) When any notices, decisions, orders, or
implementing regulations. The fees set forth other materials are required by law to be
in this schedule are applicable to all agen- served on a party in any proceeding or mat-
cies of the Department of Agriculture, and ter before any Department agency.
are based upon guidelines prescribed by the
Office of Management and Budget (OMB) Section 4. Fees for records and related services.
issued at 52 FR 10012 (March 27, 1987). No
higher fees or charges in addition to those (a) The fee for photocopies of pages 81⁄2″×14″
provided for in this schedule may be charged or smaller shall be $0.20 per page (per indi-
a party requesting services under the Free- vidual side of sheet).
dom of Information Act. (b) The fee for photocopies larger than
81⁄2″×14″ shall be $0.50 per linear foot of the
Section 2. Types of services for which fees may longest side of the copy.
be charged. (c) The fee for other forms of duplicated
records, such as microform, audio-visual ma-
Subject to the criteria set forth in section terials, or machine-readable documentation
5 of this appendix, fees may be assessed (i.e., magnetic tape or disk), shall be the ac-
under the Freedom of Information Act on all tual direct cost of producing the records.
requests involving such services as record (d) Manual searches shall be charged for in
search, duplication, and review. Fees may one of the two following manners in the
also be charged in situations involving spe- given order:
cial service to a request, such as certifying (1) When feasible, at the salary rate of the
that records requested are true copies, or employee conducting the search, plus 16 per-
sending records by special methods such as cent of the employee’s basic pay; or
express mail, etc. For services not covered (2) Where a homogeneous class of personnel
by the FOIA or by this appendix, agencies is used exclusively, at the rate of $10.00 per
may set their own fees in accordance with hour for clerical time, and $20.00 per hour for
applicable law, or costs incurred will be as- supervisory or professional time. Charges
sessed the requester at the actual cost to the should be computed to the nearest quarter
Government. For example, where records are hour required for the search. A homogeneous
required to be shipped from one office to an- class of personnel, for purposes of conducting
other by commercial carrier in order to manual searches and where more than one
timely answer a request, the actual freight individual is involved, is a group of employ-
charge will be assessed the requester. ees of like rank, grade, pay or position. A
heterogeneous class of personnel is a group
Section 3. Instances in which fees will not be of employees of unlike rank, grade, pay, or
charged. position. If a heterogeneous class of per-
(a) Except for requests seeking records for sonnel is involved in a search then the
a commercial use (as specified in section 5 of search shall be charged for at the salary rate
this appendix), no charge shall be made for of the individuals.
either: (1) The first 100 pages of duplicated (e) Mainframe computer searches and serv-
records (81⁄2″×14″ or smaller-size paper); or (2) ices shall be charged for at the rates estab-
The first two hours of manual search time, lished in the Users Manual or Handbook pub-
or the equivalent value of computer search lished by the computer center at which the
time as defined in section 4(e) of this appen- work will be performed. Where the rate has
dix. not been established, the rate shall be $27.00
(b) No charge shall be made—even to com- per minute. Searches using computers other
mercial use requesters—if the cost of col- than mainframes shall be charged for at the
lecting a fee would be equal to or greater manual search rate.
than the fee itself. For USDA, this figure has (1) Other rates are published and may be
been calculated to be $25.00. examined at the following places:
(c) Fees may not be charged for time spent Fort Collins Computer Center Users Manual
by an agency employee in resolving legal or Fort Collins Computer Center, U.S. De-
policy issues, or in monitoring a requester’s partment of Agriculture, 3825 East Mul-
inspection of agency records. No charge shall berry Street (P.O. Box 1206), Fort Collins,
be made for normal postage costs. Colo. 80521.
18
Office of the Secretary, USDA Pt. 1, Subpt. A, App. A
National Finance Center, Cost, Productivity prescribes specific levels of fees for each cat-
& Analysis Section, U.S. Department of egory:
Agriculture, 13800 Old Gentilly Road, (a) Commercial use requesters—For com-
New Orleans, La. 70129. mercial use requesters, agencies shall assess
Kansas City Computer Center Users Manual charges which recover the full direct costs of
Kansas City Computer Center, U.S. De- searching for, reviewing for release, and du-
partment of Agriculture, 8930 Ward Park- plicating the records sought. Commercial
way (P.O. Box 205), Kansas City, MO. use requesters are not entitled to the free
64141. search time or duplication referenced in sec-
Washington Computer Center Users Hand- tion 3(a) of this appendix. Agencies may re-
book: Washington Computer Center, U.S. cover the cost of searching for and reviewing
Department of Agriculture, Room S–100, records for commercial use requesters even if
South Building, 12th Street and Inde- there is ultimately no disclosure of records.
pendence Avenue, SW., Washington, DC (1) A commercial use requester is defined
20250. as one who seeks information for a use or
St. Louis Computer Center, U.S. Department purpose that furthers the commercial, trade,
or profit interests of the requester or the
of Agriculture, 1520 Market Street, St.
person on whose behalf the request is made.
Louis, MO. 63103.
(2) In determining whether a requester
(f) Charges for unsuccessful searches, or properly belongs in this category, agencies
searches which fail to locate records or must determine whether the requester will
which locate records which are exempt from put the records to a commercial use. Where
disclosure, shall be assessed at the same fee an agency has reasonable cause to doubt the
rate as searches which result in disclosure of use to which a requester will put the records
records. sought, or where that use is not clear from
(g) The fee for providing review services the request itself, the agency may seek addi-
shall be the hourly salary rate (i.e., basic tional clarification from the requester.
pay plus 16 percent) of the employee con- (b) Educational and non-commercial sci-
ducting the review to determine whether any entific institution requesters—Fees for this
information is exempt from mandatory dis- category of requesters shall be limited to the
closure. cost of providing duplication service alone,
(h) The fee for Certifications shall be $5.00 minus the charge for the first 100 reproduced
each; Authentications under Department pages. No charge shall be made for search or
Seal (including aerial photographs), $10.00 review services. To qualify for this category,
each. requesters must show that the request is
(i) All other costs incurred by USDA agen- being made as authorized by and under the
cies will be assessed the requester at the ac- auspices of an eligible institution and that
tual cost to the Government. the records are not sought for a commercial
(j) The fees specified in paragraphs (a) use, but are sought in furtherance of schol-
through (g) of this section apply to all re- arly research (if the request is from an edu-
quests for services under the FOIA, unless no cational institution) or scientific research (if
fee is to be charged, or the agency has deter- the request is from a non-commercial sci-
mined to waive or reduce those fees pursuant entific institution).
to section 6 of this appendix. No higher fees (1) The term educational institution refers to
or charges in addition to those provided for a preschool, a public or private elementary
in this appendix may be charged for services or secondary school, an institution of grad-
under the FOIA. uate higher education, an institution of un-
dergraduate higher education, an institution
(k) The fees specified in paragraphs (h) and
of professional education, and an institution
(i) of this section and in section 17 of this ap-
of vocational education, which operates a
pendix apply to requests for services other
program or programs of scholarly research.
than those subject to the FOIA. The author-
(2) The term non-commercial scientific insti-
ity for establishment of these fees is at 31
tution refers to institution that is not oper-
U.S.C. 9701 and other applicable laws.
ated on a ‘‘commercial’’ (see section 5(a)(1))
(l) Except as provided in section 11 of this of this appendix basis, and which is operated
appendix, for services not subject to the solely for the purpose of conducting sci-
FOIA, and not covered by paragraph (h) of entific research the results of which are not
this section, agencies may set their own fees intended to promote any particular product
in accordance with applicable law. or industry.
Section 5. Levels of fees for each category of (c) Requesters who are representatives of
requesters. the news media—Fees for this category of re-
questers shall also be limited to the cost of
Under the FOIA, there are four categories providing duplication service alone, minus
of FOIA requesters: Commercial use request- the charge for the first 100 reproduced pages.
ers, educational and non-commercial sci- No charge shall be made for providing search
entific institutions; representatives of the or review services. Requests in this category
news media; and all other requesters. FOIA must not be made for a commercial use.
19
Pt. 1, Subpt. A, App. A 7 CFR Subtitle A (1–1–12 Edition)
(1) The term representative of the news media (vi) The primary interest in disclosure, i.e.,
refers to any person actively gathering news whether the magnitude of the identified
for an entity that is organized and operated commercial interest of the requester is suffi-
to publish or broadcast news to the public. ciently large, in comparison with the public
(2) The term news means information that interest in disclosure, that disclosure is
is about current events or that would be of ‘‘primarily in the commercial interest of the
current interest to the public. requester.’’
(3) Examples of news media entities in- (2) An agency may, in its discretion, waive
clude television or radio stations broad- or reduce fees associated with a request for
casting to the public at large, and publishers disclosure, regardless of whether a waiver or
of periodicals which disseminate news and reduction has been requested, if the agency
who make their products available for pur- determines that disclosure will primarily
chase or subscription by the general public. benefit the general public.
(4) Freelance journalists may be regarded as (3) Agencies may also waive or reduce fees
working for a news organization if they can under the following conditions:
demonstrate a solid basis for expecting pub- (i) Where the furnishings of records or a
lication through that organization, even service without charge or at a reduced rate
though not actually employed by it. is an appropriate courtesy to a foreign coun-
(d) All other requesters—Fees for request- try or international organization, or where
ers who do not fit into the categories de- comparable fees are set on a reciprocal basis
scribed in paragraphs (a), (b), or (c) of this with a foreign country or an international
section shall be assessed for the full reason- organization;
able direct cost of searching for and dupli- (ii) Where the requester is engaged in a
cating records that are responsive to a re- nonprofit activity designed for the public
quest. No charge, however, shall be made to safety, health, or welfare; or
requesters in this category for: (1) The first (iii) Where it is determined that payment
100 duplicated pages; or (2) the first two of the full fee by a State or local government
hours of manual search time, or the equiva- or nonprofit group would not be in the inter-
lent value of computer search time as de- est of the program involved.
fined in section 4(e) of this appendix. (4) Fees shall be waived, however, without
Section 6. Fee waivers and reductions. discretion in all circumstances where the
amount of the fee is $25.00 or less.
(a) Agencies shall waive or reduce fees on
request for records if disclosure of the infor- Section 7. Restrictions regarding copies.
mation in the records is deemed to be in the (a) Agencies may restrict numbers of pho-
public interest. A request is in the public in- tocopies and directives furnished the public
terest if it is likely to contribute signifi- to one copy of each page. Copies of forms
cantly to public understanding of the oper- provided the public shall also be held to the
ations or activities of the government, and is
minimum practical. Persons requiring any
not primarily in the commercial interest of
large quantities should be encouraged to
the requester.
take single copies to commercial sources for
(1) In determining when fees shall be
further appropriate reproduction.
waived or reduced, agencies should consider
(b) Single or multiple copies of transcripts,
the following six factors:
provided to the Department under a report-
(i) The subject of the request, i.e., whether
ing service contract, may be obtained by the
the subject of the requested records concerns
public from the contractor at a cost not to
‘‘the operations or activities of the govern-
ment’’; exceed the cost per page charged to the De-
(ii) The informative value of the informa- partment for extra copies. The contractor
tion to be disclosed, i.e., whether the disclo- may add a postage charge when mailing or-
sure is ‘‘likely to contribute’’ to an under- ders to the public, but no other charge may
standing of government operations or activi- be added.
ties; Section 8. Payments of fees and charges.
(iii) The contribution to an understanding
of the subject by the general public likely to (a) Payments should be billed for to the
result from disclosure, i.e., whether disclo- fullest extent possible at the time the re-
sure of the requested information will con- quested materials are furnished. Payments
tribute to ‘‘public understanding’’; should be made by requesters within 30 days
(iv) The significance of the contribution to of the date of the billing.
public understanding, i.e., whether the dis- (b) Payments shall be made by check,
closure is likely to contribute ‘‘signifi- draft, or money order made payable to the
cantly’’ to public understanding of govern- Treasury of the United States, although pay-
ment operations or activities; ments may be made in cash, particularly
(v) The existence and magnitude of a com- where services are performed in response to
mercial interest, i.e., whether the requester a visit to a Department office. All payments
has a commercial interest that would be should be sent to the address indicated by
furthered by the requested disclosure; and, the agency responding to the request.
20
Office of the Secretary, USDA Pt. 1, Subpt. A, App. A
(c) Where the estimated fees to be charged Section 13. Circumstances under which
exceed $250.00, agencies may require an ad- reproductions may be provided free.
vance payment of an amount up to the full Reproductions may be furnished free at the
estimated charges (but not less than 50 per- discretion of the agency, if it determines
cent) from the requester before any of the re- that furnishing free reproductions is in the
quested materials are reproduced. public interest, to:
(d) In instances where a requester has pre- (a) Representatives of the news media for
viously failed to pay a fee, an agency may re- dissemination to the general public.
quire the requester to pay the full amount (b) Agencies of State and local govern-
owed, plus any applicable interest as pro- ments carrying on a function related to that
vided in section 9 of this appendix, as well as of the Department when it will help to ac-
the full estimated fee associated with any complish an objective of the Department.
new request before the agency begins to (c) Cooperators and others furthering agri-
process that new or subsequent request. cultural programs. Generally, only one print
of each photograph should be provided free.
Section 9. Interest charges.
Section 14. Loans.
On requests that result in fees being as-
Aerial photographic film negatives or re-
sessed, agencies may begin levying interest
productions may not be loaned outside the
charges on an upaid bill starting on the 31st Federal Government.
day following the day on which the billing
was sent. Interest will be at the rate pre- Section 15. Sales of positive prints under
scribed in 31 U.S.C. 3717, and will accrue from government contracts.
the date of the billing.
The annual contract for furnishing single
Section 10. Effect of the Debt Collection Act on and double frame slide film negatives and
positive prints to agencies of the Depart-
fees.
ment, County Extension Agents, and others
In attempting to collect fees levied under cooperating with the Department, carries a
the FOIA, agencies shall abide by the provi- stipulation that the successful bidder must
sions of 31 U.S.C. 3701, 3711–3720A, in disagree to furnish slide film positive prints to
closing information to consumer reporting such persons, organizations, and associations
agencies and in the use of collection agen- as may be authorized by the Department to
cies, where appropriate, to encourage pay- purchase them.
ment. Section 16. Procedure for handling orders.
Section 11. Photographic and digital reproduc- In order to expedite handling, all orders
tions of microfilm, aerial imagery, and should contain adequate identifying infor-
maps. mation. Agencies furnishing aerial photo-
graphic reproductions require that all such
Microfilm, aerial imagery, and maps that orders identify the photographs. Each agen-
have been obtained in connection with the cy has its own procedure and order forms.
authorized work of this Department may be
sold at the estimated cost of furnishing re- Section 17. Reproduction prices.
productions of these records, using photo- The prices for reproductions listed in this
graphic, digital, or other methods of repro- section are for the most generally requested
duction as prescribed in this appendix. items.
(a) National Agricultural Library. The fol-
Section 12. Agencies which furnish lowing prices are applicable to National Ag-
photographic reproductions. ricultural Library items only: Reproduction
(a) Aerial Photographic reproductions. The of electrostatic, microfilm, and microfiche
following agency of the Department fur- copy—$5.00 for the first 10 pages or fraction
nishes aerial photographic reproductions: thereof, and $3.00 for each additional 10 pages
Farm Service Agency (FSA), Aerial Pho- or fraction thereof. Duplication of NAL-
owned microfilm—$10.00 per reel. Duplica-
tography Field Office (APFO), USDA, 2222
tion of NAL-owned microfiche—$5.00 for the
West 2300 South, Salt Lake City, Utah 84119–
first fiche, and $0.50 for each additional fiche.
2020. Charges for manual and automated data base
(b) Other photographic reproductions. Other searches for bibliographic or other research
types of reproductions may be obtained from information will be made in accordance with
the following agency of the Department: section 4, paragraphs (c)-(e) of this appendix.
National Agricultural Library, Agricul- The contract rate charged by the commer-
tural Research Service, USDA, Office of the cial source to the National Agricultrual Li-
Deputy Director, Technical Information Sys- brary for computer services is available at
tems, Room 200, NAL Building, Beltsville, the National Agricultural Library, Agricul-
MD 20705. tural Research Service, USDA, Document
21
Delivery Services Branch, 10301 Baltimore Size Price
Boulevard, Beltsville, Maryland 20705–2351
(301–504–6503). Microfilm (Photo Indexes): Aperture Cards ............. 10.00
(b) General photographic reproductions. Min- Microfilm (Photo Indexes): Microfiche ..................... 10.00
imum charge $1 per order. An extra charge
Color Negative Reproductions
may be necessary for excessive laboratory
time caused by any special instructions from 10×10 Paper Quantities:
the purchaser. 1–50 .................................................................. $7.00
51–1000 ............................................................ 5.00
Class of work and unit Price 1001 & Over ..................................................... 2.50
10×10 Film Positive ................................................. 33.00
1. Black and white line negatives: 20×20 Paper ............................................................ 40.00
4 by 5 (each ......................................................... $6.00 24×24 Paper ............................................................ 55.00
8 by 10 (each) ...................................................... 8.50 38×38 Paper ............................................................ 70.00
11 by 14 (each) .................................................... 11.00
2. Black and white continuous tone negatives: Color Infrared Positive Reproductions
4 by 5 (each) ........................................................ 8.50
8 by 10 (each) ...................................................... 11.00 10×10 Paper ............................................................ $12.00
3. Black and white enlargements: 8 by 10 and small- 10×10 Film Positive ................................................. 15.00
er (each) ................................................................... 6.50 10×10 Film Positive AT ........................................... 15.00
11 by 14 (each) .................................................... 11.00 10×10 Film Positive Scan ........................................ 20.00
Larger sizes and quantities .................................. (1) 20×20 Paper ............................................................ 32.00
4. Black and white slides: 24×24 Paper ............................................................ 40.00
2×2 cardboard mounted (from copy negative) 38×38 Paper ............................................................ 70.00
(each) ................................................................ 4.00
Blue ozalid slides (each) ...................................... 5.00
5. Color slides: (2×2 cardboard mounted): (d) [Reserved]
Duplicate color slides: (e) Special needs. For special needs not cov-
Display quality (each) (Display color slides ered elsewhere in this section, persons desir-
are slides copied from 35mm color slides ing aerial photographic reproductions should
only) ........................................................... .65 contact the aerial photography coordinator,
Repro quality (each) ...................................... (1) Farm Service Agency (FSA), Aerial Photog-
Original color slides (from flat copy) (each) .. 6.50 raphy Field Office, USDA-FSA, 2222 West
6. Color enlargements and transparencies: 4 by 5
and larger ................................................................. (1)
2300 South, P.O. Box 30010, Salt Lake City,
7. Slide sets: Utah 84125.
1 to 50 frames ...................................................... 14.50 (f) Audio and videotape reproductions. For
51 to 60 frames .................................................... 16.50 reproductions of audio-videotapes, request-
61 to 75 frames .................................................... 18.50 ers must supply their own recording tape,
76 to 95 frames .................................................... 21.50 and will be assessed a fee of $25.00 an hour for
96 to 105 frames .................................................. 23.00 copying work requested. There is a one-hour
106 to 130 frames (Prices include printed nar-
rative guide) ...................................................... 26.50
minimum charge. Payment is required at the
8. Cassettes: (for the corresponding slide sets time video or audiotapes are accepted by the
above) ...................................................................... 3.00 requester.
1 By quotation. [52 FR 49386, Dec. 31, 1987, as amended at 62
FR 33980, June 24, 1997; 64 FR 3395, Jan. 22,
(c) General aerial photographic reproductions.
1999]
The prices for various types of aerial photo-
graphic reproductions are set forth in this
paragraph. Size measurements refer to the Subpart B—Departmental
approximate size in inches of the paper re- Proceedings
quired to produce the reproduction.
§ 1.26 Representation before the De-
Size Price
partment of Agriculture.
Black and White Reproductions (a) Applicability. This section applies
10×10 Paper ............................................................ $5.00 to all hearings and other proceedings
10×10 Film Positive ................................................. 10.00 before the Department of Agriculture,
10×10 Film Positive AT ........................................... 10.00 except to the extent that any other
10×10 Film Positive Scan ........................................ 15.00
10×10 Film Duplicate Negative ............................... 3.00
regulation of the Department may spe-
10×10 Film Internegative ......................................... 4.50 cifically make this section, or any part
12×12 Paper ............................................................ 12.00 of this section, inapplicable as to par-
17×17 Paper ............................................................ 13.00 ticular hearings or other proceedings.
17×17 Film Positive ................................................. 25.00
24×24 Paper ............................................................ 16.00 (b) Administrative provisions. (1) In any
24×24 Film Positive ................................................. 40.00 hearing or other proceeding before the
Department of Agriculture, the parties
38×38 Paper ............................................................ 50.00

38×38 Film Positive ................................................. 55.00 may appear in person or by counsel or
20×24 Paper Photo Index ....................................... 20.00
Paper Line Index ..................................................... 15.00 other representative. Persons who ap-
Mylar Line Index ...................................................... 35.00 pear as counsel or in a representative
22
capacity in any hearing or proceeding (3) Advance notices of proposed rule-

must conform to the standards of eth- making; and
ical conduct required of practitioners (4) Any other published notice that
before the U.S. District Court for the solicits, or affords interested members
District of Columbia, and to any appli- of the public an opportunity to submit,
cable standards of ethical conduct es- written views with respect to any pro-
tablished by statutes, executive orders posed action relating to any program
and regulations. administered in the Department re-
(2) Whenever the Secretary finds, gardless of the fact that the issuance of
after notice and opportunity for hear- a rule may not be contemplated.
ing, that a person who is acting or has (b) Each notice identified in para-
acted as counsel or representative in graph (a) of this section shall indicate
any hearing or other proceeding before the procedure to be followed with re-
the Department has not conformed to
spect to the notice, unless the proce-
any such standards of ethical conduct,
dure is prescribed by statute or by pub-
the Secretary may order that such per-
lished rule of the Department. Each no-
son be precluded from acting as counsel
tice shall contain a statement that ad-
or representative in any hearing or
vises the public of the policy regarding
other proceeding before the Depart-
ment for such period of time as the the availability of written submissions
Secretary deems warranted. Whenever by indicating whether paragraph (c),
the Secretary has probable cause to be- (d), or (e) of this section is applicable
lieve that any person who is acting or to written submissions made pursuant
has acted as counsel or representative to the notice.
in any such hearing or other pro- (c) All written submissions made pur-
ceeding has not conformed to any such suant to the notice shall be made avail-
standards of ethical conduct, the Sec- able for public inspection at times and
retary may, by written notice to such places and in a manner convenient to
person, suspend the person from acting the public business.
as such a counsel or representative (d)(1) Any written submission, pursu-
pending completion of the procedures ant to a notice, may be held confiden-
specified in the preceding sentence. tial if the person making the submis-
(3) No employee or former employee sion requests that the submission be
of the Department shall be permitted held confidential, the person making
to represent any person before the De- the submission has shown that the
partment in connection with any par- written submission may be withheld
ticular matter as to which by reason of under the Freedom of Information Act,
employment with the Department the and the Department official authorized
employee or former employee acquired to issue the notice determines that the
personal knowledge of such a nature submission may be withheld under the
that it would be improper, unethical, Freedom of Information Act.
or contrary to the public interest for (2) If a request is made in accordance
the employee or former employee so to with paragraph (d)(1) of this section for
act. confidential treatment of a written
(4) This section shall not be con- submission, the person making the re-
strued to prevent an employee or quest shall be informed promptly in
former employee of the Department the event the request is denied and af-
from appearing as a witness in any forded an opportunity to withdraw the
hearing or other proceeding before the submission.
Department. (3) If a determination is made to
(18 U.S.C. 203, 205, 207) grant a request for confidential treat-
[32 FR 5458, Apr. 1, 1967, as amended at 60 FR ment under paragraph (d)(1) of this sec-
66480, Dec. 22, 1995] tion, a statement of the specific basis
for the determination that will not be
§ 1.27 Rulemaking and other notice susceptible of identifying the person
procedures. making the request will be made avail-
(a) This section shall apply to: able for public inspection.
(1) Notices of proposed rulemaking; (e) If the subject of the notice is such
(2) Interim final rules; that meaningful submissions cannot be
23
expected unless they disclose informa- (2) The Administrator, Grain Inspec-
tion that may be withheld under the tion, Packers and Stockyards Adminis-
Freedom of Information Act, the notice tration, may delegate the authority to
shall so indicate and contain a state- issue subpoenas in connection with in-
ment that written submissions pursu- vestigations being conducted under the
ant to the notice will be treated as con- Packers and Stockyards Act (7 U.S.C.
fidential and withheld under the Free- 181–229), to the Deputy Administrator,
dom of Information Act. Provided, That Packers and Stockyards Programs.
the policy regarding availability of (3) In the case of a subpoena issued
written submissions set forth in this under the Animal Health Protection
paragraph may only be used with the Act (7 U.S.C. 8301–8317), Plant Protec-
prior approval of the Secretary, or the tion Act (7 U.S.C. 7701–7772), or Title V
Under Secretary or Assistant Sec- of the Agricultural Risk Protection
retary that administers the program Act of 2000 (7 U.S.C. 2279e–2279f), the
that is the subject of the notice. subpoena will be reviewed for legal suf-
[60 FR 66480, Dec. 22, 1995] ficiency by the Office of the General
Counsel, USDA.
§ 1.28 Petitions. (b) Service of subpoena. (1) A subpoena
issued pursuant to this section may be
Petitions by interested persons in ac-
served by:
cordance with 5 U.S.C. 553(e) for the
(i) A U.S. Marshal or Deputy Mar-
issuance, amendment or repeal of a
shal,
rule may be filed with the official that
(ii) Any other person who is not less
issued or is authorized to issue the
than 18 years of age, or
rule. All such petitions will be given
(iii) Certified or registered mailing of
prompt consideration and petitioners
a copy of the subpoena addressed to the
will be notified promptly of the dis-
person to be served at his, her, or its
position made of their petitions.
last known residence or principal place
[11 FR 177A–233, Sept. 11, 1946. Redesignated of business or residence.
at 13 FR 6703, Nov. 16, 1948, as amended at 60 (2) Proof of service may be made by
FR 66481, Dec. 22, 1995] the return of service on the subpoena
§ 1.29 Subpoenas relating to investiga- by the U.S. Marshal, or Deputy Mar-
tions under statutes administered shal; or, if served by an individual
by the Secretary of Agriculture. other than a U.S. Marshal or Deputy
Marshal, by an affidavit or certifi-
(a) Issuance of subpoena. (1) When the
cation of such person stating that he or
Secretary is authorized by statute to
issue a subpoena in connection with an she personally served a copy of the sub-
investigation being conducted by the poena upon the person named in the
Department, the attendance of a wit- subpoena; or, if service was by certified
ness and the production of evidence re- or registered mail, by the signed Postal
lating to the investigation may be re- Service receipt.
quired by subpoena at any designated (3) In making personal service, the
place, including the witness’ place of person making service shall leave a
business. Upon request of any rep- copy of the subpoena with the person
resentative of the Secretary involved subpoenaed; and the original, bearing
in connection with the investigation, or accompanied by the required proof
the subpoena may be issued by the Sec- of service, shall be returned to the offi-
retary, the Inspector General, or any cial who issued the subpoena.
Department official authorized pursu- [39 FR 15277, May 2, 1974, as amended at 40
ant to part 2 of this title to administer FR 58281, Dec. 16, 1975; 42 FR 65131, Dec. 30,
the program to which the subpoena re- 1977; 43 FR 12673, Mar. 27, 1978; 60 FR 66481,
lates, if the official who is to issue the Dec. 22, 1995; 66 FR 36907, July 16, 2001; 67 FR
subpoena is satisfied as to the reason- 70674, Nov. 26, 2002]
ableness of the grounds, necessity, and
scope of the subpoena. Except as pro- Subpart C—Judicial Proceedings
vided in paragraph (a)(2) of this sec-

tion, the authority to issue subpoenas § 1.41 Service of process.
may not be delegated or redelegated by Process in any suit brought in Wash-
the head of an agency. ington, District of Columbia, against
24
the United States or any officer of the Damage or Injury, may be obtained
U.S. Department of Agriculture in any from the agency within USDA that em-
matter involving the activities of this ploys the employee who allegedly com-
Department, shall be served on the mitted the negligent or wrongful act or
General Counsel of the Department. A omission. The completed claim form,
U.S. Marshal or other process server together with appropriate evidence and
attempting to serve process in such a information, as specified in 28 CFR 14.4,
suit on any officer of the Department shall be filed with the agency from
shall be referred to the Office of the which it was obtained.
General Counsel, in order that service (c) Determination of claims—(1) Delega-
of process may be made. In the event tion of authority to determine claims. The
an officer of the Department of Agri- General Counsel, and such employees
culture is served with process in such a of the Office of the General Counsel as
suit, the officer shall immediately no- may be designated by the General
tify the General Counsel. Any sub- Counsel, are hereby authorized to con-
poena, summons, or other compulsory sider, ascertain, adjust, determine,
process requiring an officer or em- compromise, and settle claims pursu-
ployee to give testimony, or to produce ant to the FTCA, as amended, and the
or disclose any record or material of regulations contained in 28 CFR part 14
the U.S. Department of Agriculture, and in this section.
shall be served on the officer or em- (2) Disallowance of claims. If a claim is
ployee of the U.S. Department of Agri- denied, the General Counsel, or his or
culture named in the subpoena, sum- her designee, shall notify the claimant,
mons, or other compulsory process. or his or her duly authorized agent or
[19 FR 4052, July 3, 1954, as amended at 33 FR legal representative.
10273, July 18, 1968; 43 FR 6202, Feb. 14, 1978;
60 FR 66481, Dec. 22, 1995] [61 FR 57577, Nov. 7, 1996]
Subpart D—Claims Subpart E—Cooperative

Production of Television Films
§ 1.51 Claims based on negligence,
wrongful act or omission.
SOURCE: 22 FR 2904, Apr. 25, 1957, unless
(a) Authority of the Department. Under otherwise noted.
the provisions of the Federal Tort
Claims Act (FTCA), as amended, 28 § 1.71 Purpose.
U.S.C. 2671–2680, and the regulations
issued by the Department of Justice This subpart establishes procedures
(DOJ) contained in 28 CFR part 14, the for developing special working rela-
United States Department of Agri- tionships with the Department of Agri-
culture (USDA) may, subject to the culture requested by producers of films
provisions of the FTCA and DOJ regu- for television use. These procedures are
lations, consider, ascertain, adjust, de- designed to guide Department employ-
termine, compromise, and settle claims ees and producers of commercial tele-
for money damages against the United vision pictures in entering into such
States for personal injury, death, or arrangements.
property loss or damage caused by the
§ 1.72 Policy.
negligent or wrongful act or omission
of any employee of USDA while acting (a) General. It is a basic policy of the
within the scope of his or her office or Department of Agriculture to make in-
employment, under circumstances formation freely available to the pub-
where the United States, if it were a lic.
private person, would be liable, in ac- (b) Cooperation with television film pro-
cordance with the law of the place ducers. The Department recognizes that
where the act or omission occurred. its people and programs constitute a
(b) Procedure for filing claims. Claims rich source of materials on public serv-
must be presented by the claimant, or ices, often dramatic and interesting for
by his or her duly authorized agent or their human values, which are suitable
legal representative as specified in 28 for production of films for television
CFR 14.3. Standard Form 95, Claim for showings. The Department welcomes
25
the interest of television film pro- technical advisors and similar aids will
ducers in its activities and maintains be covered in the agreement, which
an ‘‘open door’’ policy with respect to shall delineate the general stipulations
the availability of factual information listed in § 1.75.
to such producers, as it does to rep-
resentatives of other media. As its re- § 1.75 General stipulations.
sources will permit, the Department In requesting special working ar-
will work with producers at their re- rangements the producer must agree to
quest, to assure technical accuracy of the following stipulations:
scripts and story treatments. (a) The producer must show that he
(c) Special working relationships. In has legal authority to the literary
those instances where a producer of property concerned.
films for television seeks special De- (b) The producer must show access to
partment participation such as the use a distribution channel recognized by
of official insignia of the Department, the motion picture or television indus-
or who request special assistance such try. In lieu of complete distribution
as the services of technical advisors, plans for a television series, a producer
use of Government equipment and must produce satisfactory evidence of
similar aids which require a material financial responsibility (showing finan-
expenditure of public funds, and where cial resources adequate for the
the proposed film will further the pub- defrayment of costs for the proposed
lic service of the Department, the De- undertaking).
partment will consider entering into a (c) The commercial advertising of
special working relationship with such any show produced, using oral or writ-
producer. ten rights granted to the producer,
(d) News film reporting exempted. Tele- shall not indicate any endorsement, ei-
vision and news film reporting of De- ther direct or implied, by the U.S. De-
partment activities is not covered by partment of Agriculture or its agen-
this subpart. cies, of the sponsor’s product.
(d) Commercial sponsorship shall be
§ 1.73 Responsibility. only by a person, firm, or corporation
The Director of Information or his acceptable under the terms of the 1954
designee will be the authority for the Television Code of the National Asso-
approval of special working relation- ciation of Radio and Television Broad-
ships on the part of the Department of casters, and all subsequent amend-
Agriculture and its agencies. The Di- ments thereto. Political sponsorship
rector or his designee shall not commit shall not be permitted.
the Department to such special ar- (e) That no production costs shall be
rangements without proper concur- chargeable to the U.S. Department of
rence and coordination with interested Agriculture.
agencies and approval by the appro- (f) That such cooperation will not
priate Assistant Secretary or Group interfere with the conduct of Depart-
Director. ment programs.
(g) All damages, losses and personal
§ 1.74 Basis for special working rela- liability incurred by producer will be
tionships. his responsibility.
The Department and its agencies (h) That mutual understanding and
may lend special assistance on tele- agreement will be reached upon story,
vision films when it is clearly evident script and film treatment with the De-
that public interests are served. Where partment before film production is
special assistance is sought, an indi- begun.
vidual cooperative agreement will be
drawn up between the Department with § 1.76 Department cooperation.
the Director of Information as its When the producer agrees to meet
agent, and the producer. Details on the above stipulations to the satisfac-
such assistance as reviewing stories tion of the Director of Information, the

and scripts, loan of material, arrange- U.S. Department of Agriculture and its
ments for locations, use of official mo- agencies will be available for consulta-
tion picture footage, assignment of tion on story ideas and give guidance
26
through the services of a technical ad- assist the producer in determining his
visor to insure technical authenticity. course of action.
Equipment, locations, and personnel (b) Request for special working arrange-
will be available to the extent that ments. Once the decision is made to go
such availability is concurrent with ahead with an agreement, either the
normal and usual conduct of the oper- interested agency or the producer will
ations of the Department. The Depart- make a written submission to the Di-
ment will check and work with the co- rector of Information, requesting that
operators to arrange shooting sched- special working arrangements be es-
ules in order to avoid interferences tablished.
with working schedules. (1) In submitting scripts prior or sub-
sequent to executing a written agree-
§ 1.77 Assignment of priorities. ment under a special working relation-
(a) Authority. (1) The Director of In- ship four (4) copies of the completed
formation or his designee will make as- script shall be submitted to the Direc-
signment of priorities for the U.S. De- tor of Information or his designee,
partment of Agriculture for a tele- along with a statement of specific re-
vision film company’s and/or individual quirements and the anticipated produc-
producer’s story treatment of the sub- tion schedule.
ject matter, but no such priority shall (2) No script will be used under a spe-
limit use of the subject matter itself. cial working relationship without the
(2) A priority will be given in writing specific approval of the Director of In-
upon acceptance in writing by the pro- formation.
ducer of the stipulations in § 1.75(b). (3) Upon approval of the script, the
The U.S. Department of Agriculture agency of the Department concerned
will hold the producer’s treatment of with subject matter will endeavor to
the story material in confidence until arrange for the desired assistance with
the producer has made a public release the stipulations of this policy.
pertaining to the subject.
(b) Time and scope. A priority will be § 1.79 Credits.
given on the producer’s story treat- On films on which the Department or
ment for an agreed upon period of time. one of its agencies provides special as-
Requests for cooperation with similar sistance it shall be mutually agreed by
or conflicting ideas and backgrounds the producer and the Director of Infor-
will be considered only after holder of mation what credits shall be given to
the first priority has used the agreed the Department, and the form these
upon time to develop the materials. credits will take.
(1) Details on priorities will be writ-
ten into the agreements. Subpart G—Privacy Act
(2) The Director of Information will
retain the right to cancel priorities
Regulations
when the producer at any stage vio-
lates the provisions of the regulations AUTHORITY: 5 U.S.C. 301 and 552a; 31 U.S.C.
or of a particular agreement, or when 9701.
public interest is no longer served. SOURCE: 40 FR 39519, Aug. 28, 1975, unless
(3) No priority will be canceled until otherwise noted.
the producer has had an opportunity to
appear before the Secretary of Agri- § 1.110 Purpose and scope.
culture or his designee. This subpart contains the regulations
of the U.S. Department of Agriculture
§ 1.78 Development of special working (USDA) implementing the Privacy Act
relationships. of 1974 (5 U.S.C. 552a). This subpart sets
(a) Preliminary. Prior to the sub- forth the basic responsibilities of each
mittal of a script or the rendering of an agency of USDA with regard to USDA’s
agreement, assistance may be given by compliance with the requirements of

the Department or one of its agencies the Privacy Act, and offers guidance to
in outlining story plans, visits to field members of the public who wish to ex-
points, and other incidentals that will ercise any of the rights established by
27
the Privacy Act with regard to records or her, and the agency has granted that
maintained by an agency of USDA. request, the requester shall present
[40 FR 39519, Aug. 28, 1975, as amended at 62 himself or herself at the time and place
FR 33981, June 24, 1997] specified in the agency’s response or
arrange another, mutually convenient,
§ 1.111 Definitions. time with the appropriate agency offi-
For purposes of this subpart the cial.
terms individual, maintain, record, sys- (b) Prior to inspection of the records,
tem of records, statistical record, and rou- the requester shall present sufficient
tine use shall have the meanings set identification (e.g., driver’s license,
forth in 5 U.S.C. 552a(a). The term employee identification card, social se-
agency shall mean an agency of USDA, curity card, credit cards) to establish
unless otherwise indicated. that the requester is the individual to
whom the records pertain. If the re-
§ 1.112 Procedures for requests per- quester is unable to provide such iden-
taining to individual records in a tification, the requester shall complete
record system.
and sign in the presence of an agency
(a) Any individual who wishes to be official a signed statement asserting
notified if a system of records main- the requester’s identity and stipulating
tained by an agency contains any that the requester understands that
record pertaining to him or her, or to knowingly or willfully seeking or ob-
request access to such records, shall taining access to records about another
submit a written request in accordance individual under false pretenses is a
with the instructions set forth in the misdemeanor punishable by fine up to
system notice for that system of $5,000. No identification shall be re-
records. This request shall include: quired, however, if the records are re-
(1) The name of the individual mak- quired by 5 U.S.C. 552 to be released.
ing the request;
(c) Any individual who has requested
(2) The name of the system of records
(as set forth in the system notice to access to records about himself or her-
which the request relates); self by personal inspection, and who
(3) Any other information specified in wishes to have another person or per-
the system notice; and sons accompany the requester during
(4) When the request is one for ac- this inspection, shall submit a written
cess, a statement as to whether the re- statement authorizing disclosure of the
quester desires to make a personal in- record in the presence of such other
spection of the records, or be supplied person or persons.
with copies by mail. (d) Any individual having made a per-
(b) Any individual whose request sonal inspection of records pertaining
under paragraph (a) of this section is to the requester may request the agen-
denied may appeal that denial to the cy to provide the requester copies of
head of the agency which maintains those records or any portion of those
the system of records to which the re- records. Each agency shall grant such
quest relates. requests but may charge fees in accord-
(c) In the event that an appeal under ance with § 1.120.
paragraph (b) of this section is denied, (e) If an individual submitting a re-
the requester may bring a civil action quest for access under § 1.112 wishes to
in federal district court to seek review be supplied with copies of the records
of the denial. by mail, the requester shall include
[40 FR 39519, Aug. 28, 1975, as amended at 62 with his or her request sufficient data
FR 33981, June 24, 1997] for the agency to verify the requester’s
identity. If the sensitivity of the
§ 1.113 Times, places, and require- records warrant it, however, the agen-
ments for identification of individ- cy to which the request is directed may
uals making requests. require the requester to submit a
(a) If an individual submitting a resigned, notarized statement indicating

quest for access under § 1.112 has asked that the requester is the individual to
that an agency authorize a personal in- whom the records pertain and stipu-
spection of records pertaining to him lating the requester understands that
28
knowingly or willfully seeking or ob- less that system is exempted from the
taining access to records about another requirements of 5 U.S.C. 552a(d) in
individual under false pretenses is a § 1.123.
misdemeanor punishable by fine up to (d) If any agency receives a request
$5,000. No identification shall be re- pursuant to § 1.112(a) for access to
quired, however, if the records are re- records in a system of records it main-
quired by 5 U.S.C. 552 to be released. If tains which is so exempted, the system
the agency to which this request is di- manager shall determine if the exemp-
rected determines to grant the re- tion is to be asserted. If the system
quested access, it may charge fees in manager determines to deny the re-
accordance with § 1.120 before making quest, the system manager shall in-
the necessary copies. form the requester of that determina-
[40 FR 39519, Aug. 28, 1975, as amended at 62
tion, the reason for the determination,
FR 33981, June 24, 1997] and the title and address of the agency
head to whom the denial can be ap-
§ 1.114 Disclosure of requested infor- pealed.
mation to individuals. (e) If the head of an agency deter-
(a) Any agency which receives a re- mines that an appeal pursuant to
quest or appeal under § 1.112 should ac- § 1.112(b) is to be denied, the head of the
knowledge the request or appeal within agency shall inform the requester of
10 days of its receipt (excluding Satur- that determination, the reason for the
days, Sundays, and legal public holi- determination, and the requester’s
days). Wherever practicable, the ac- right under 5 U.S.C. 552a(g) to seek ju-
knowledgment should indicate whether dicial review of the denial in Federal
or not access will be granted and, if so, district court.
when and where. When access is to be (f) Nothing in 5 U.S.C. 552a or this
granted, the agency should provide the subpart shall allow an individual ac-
access within 30 days of receipt of the cess to any information compiled in
request or appeal (excluding Saturdays, reasonable anticipation of a civil ac-
Sundays and legal public holidays) un- tion or proceeding.
less, for good cause shown, it is unable [40 FR 39519, Aug. 28, 1975, as amended at 62
to do so. If the agency is unable to FR 33981, June 24, 1997]
meet this deadline, it shall inform the
requester of this fact, the reasons for § 1.115 Special procedures: Medical
its inability to do so, and an estimate records.
of the date on which access will be In the event an agency receives a re-
granted. quest pursuant to § 1.112 for access to
(b) Nothing in 5 U.S.C. 552a or this medical records (including psycho-
subpart shall be interpreted to require logical records) whose disclosure it de-
that an individual making a request termines would be harmful to the indi-
under § 1.112 be granted access to the vidual to whom they relate, it may
physical record itself. The form in refuse to disclose the records directly
which a record is kept (e.g., on mag- to the requester but shall transmit
netic tape), or the content of the them to a doctor designated by that in-
record (e.g., a record indexed under the dividual.
name of the requester may contain
records which are not about the re- § 1.116 Request for correction or
quester) may require that the record be amendment to record.
edited or translated in some manner. (a) Any individual who wishes to re-
Neither of these procedures may be uti- quest correction or amendment of any
lized, however, to withhold information record pertaining to him or her con-
in a record about the requester. tained in a system of records main-
(c) No agency shall deny any request tained by an agency shall submit that
under § 1.112 for information concerning request in writing in accordance with
the existence of records about the re- the instructions set forth in the system
quester in any system of records it notice for that system of records. This
maintains, or deny any request for ac- request shall include:
cess to records about the requester in (1) The name of the individual mak-
any system of records it maintains, un- ing the request;
29
(2) The name of the system of records Sundays and legal public holidays), it
(as set forth in the system notice to should inform the requester of that
which the request relates); fact, the reasons for the inability to
(3) A description of the nature (e.g., comply with paragraphs (a)(1) or (a)(2)
modification, addition or deletion) and of this section within 30 days, and the
substance of the correction or amend- approximate date on which a deter-
ment requested; and mination will be reached.
(4) Any other information specified in
(c) In conducting its review of a re-
the system notice.
quest for correction or amendment,
(b) Any individual submitting a re-
quest pursuant to paragraph (a) of this each agency shall be guided by the re-
section shall include sufficient infor- quirements of 5 U.S.C. 552a(e)(1) and
mation in support of that request to (5).
allow the agency to which it is ad- (d) If an agency determines to grant
dressed to apply the standards set forth all or any portion of a request for cor-
in 5 U.S.C. 552a(e) (1) and (5). rection or amendment, it shall:
(c) Any individual whose request (1) Advise the individual of that de-
under paragraph (a) of this section is termination;
denied may appeal that denial to the (2) Make the requested correction or
head of the agency which maintains amendment; and
the system of records to which the re- (3) Inform any person or agency out-
quest relates. side USDA to whom the record has
(d) In the event that an appeal under been disclosed, if an accounting of that
paragraph (c) of this section is denied, disclosure is maintained in accordance
the requester may bring a civil action with 5 U.S.C. 552a(c), of the occurrence
in federal district court to seek review
and substance of the correction or
of the denial.
amendments.
[40 FR 39519, Aug. 28, 1975, as amended at 62 (e) If an agency determines not to
FR 33981, June 24, 1997] grant all or any portion of a request for
§ 1.117 Agency review of request for correction or amendment, it shall:
correction or amendment of record. (1) Comply with paragraph (d) of this
(a) Any agency which receives a re- section with regard to any correction
quest for amendment or correction or amendment which is made;
under § 1.116 shall acknowledge that re- (2) Advise the requester of its deter-
quest within 10 days of its receipt (ex- mination and the reasons for the deter-
cluding Saturdays, Sundays and legal mination not to grant all or a portion
public holidays). The agency shall also of the request for a correction or
promptly, either: amendment;
(1) Make any correction, deletion or (3) Inform the requester that he or
addition with regard to any portion of she may appeal this determination to
a record which the requester believes is the head of the agency which main-
not accurate, relevant, timely or com- tains the system of records; and
plete; or (4) Describe the procedures for mak-
(2) Inform the requester of its refusal ing such an appeal, including the title
to amend the record in accordance with and business address of the official to
the request; the reason for the refusal; whom the appeal is to be addressed.
the procedures whereby the requester
(f) In the event that an agency re-
can appeal the refusal to the head of
ceives a notice of correction or amend-
the agency; and the title and business
ment to information in a record con-
address of that official. If the agency
informs the requester of its determina- tained in a system of records which it
tion within the 10-day deadline, a sepa- maintains, it shall comply with para-
rate acknowledgement is not required. graphs (d)(2) and (3) of this section in
(b) If an agency is unable to comply the same manner as if it had made the
correction or amendment itself.
with either paragraphs (a)(1) or (2) of

this section within 30 days of its re- [40 FR 39519, Aug. 28, 1975, as amended at 62
ceipt of a request for correction or FR 33981, June 24, 1997]
amendment, (excluding Saturdays,
30
§ 1.118 Appeal of initial adverse agen- to whom the record is subsequently

cy determination on correction or disclosed, together with (if the agency
amendment. deems it appropriate) a brief statement
(a) Any individual whose request for by the agency summarizing its reasons
correction or amendment under § 1.116 for refusing to amend the record;
is denied, and who wishes to appeal (5) That prior recipients of the dis-
that denial, shall address such appeal puted record will be provided with a
to the head of the agency which main- copy of the statement of disagreement,
tains the system of records to which together with (if the agency deems it
the request relates, in accordance with appropriate) a brief statement of the
the procedures set forth in the agency’s agency’s reasons for refusing to amend
initial denial of the request. the record, to the extent that an ac-
(b) The head of each agency shall counting of disclosures is maintained
make a final determination with re- under 5 U.S.C. 552a(c); and
gard to an appeal submitted under (6) Of the requester’s right to seek ju-
paragraph (a) of this section not later dicial review of the agency’s deter-
than 30 days (excluding Saturdays, mination in accordance with 5 U.S.C.
Sundays, and legal public holidays) 552a(g). The agency shall insure that
from the date on which the individual any statements of disagreement sub-
requests a review, unless, for good mitted by a requester are handled in
cause shown, the head of the agency accordance with paragraphs (e)(4) and
extends this 30-day period and so noti- (5) of this section.
fies the requester, together with an es- [40 FR 39519, Aug. 28, 1975, as amended at 62
timate of the date on which a final de- FR 33981, June 24, 1997]
termination will be made. Such exten-
sion should be utilized only in excep- § 1.119 Disclosure of record to person
other than the individual to whom
tional circumstances and should not it pertains.
normally exceed 30 days. The delega-
tion of authority set forth in this para- No agency shall disclose any record
graph may not be redelegated. which is contained in a system of
(c) In conducting a review of an ap- records it maintains, by any means of
peal submitted under paragraph (a) of communication to any person, or to
this section, the head of an agency another agency outside USDA, except
shall be guided by the requirements of pursuant to a written request by, or
5 U.S.C. 552a(e)(1) and (5). with the prior written consent of, the
(d) If the head of an agency deter- individual to whom the record per-
mines to grant all or any portion of an tains, unless the disclosure is author-
appeal submitted under paragraph (a) ized by one or more provisions of 5
of this section, the head of the agency U.S.C. 552a(b).
shall inform the requester and the
§ 1.120 Fees.
agency shall comply with the proce-
dures set forth in § 1.117(d)(2) and (d)(3). Any agency which provides copies of
(e) If the head of an agency deter- records pursuant to a request under
mines in accordance with paragraph (c) this subpart may charge fees for the di-
of this section not to grant all or any rect costs of producing such copies in
portion of an appeal submitted under accordance with appendix A to subpart
paragraph (a) of this section, the head A of this part. No agency, however,
of the agency shall inform the re- shall charge any fee for searches nec-
quester: essary to locate records. Nor shall an
(1) Of this determination and the rea- agency charge any fees for copies or
sons for the determination; searches, when the requester sought to
(2) Of the requester’s right to file a make a personal inspection but was
concise statement of the requester’s provided copies instead at the discre-
reasons for disagreeing with the agen- tion of the agency.
cy’s decision;
§ 1.121 Penalties.
(3) Of the procedures for filing such a

statement of disagreement; The criminal penalties which have
(4) That such statements of disagree- been established for violations of the
ments will be made available to anyone Privacy Act of 1974 are set forth in 5
31
U.S.C. 552a(i). These penalties are ap- ANIMAL AND PLANT HEALTH INSPECTION
plicable to any officer or employee of SERVICE
an agency who commits any of the acts Plant Protection and Quarantine Program—
enumerated in 5 U.S.C. 552a(i). These Regulatory Actions, USDA/APHIS–1.
penalties also apply to contractors and Veterinary Services Programs—Records of
employees of such contractors who Accredited Veterinarians, USDA/APHIS–2.
enter into contracts with an agency of Veterinary Services Programs—Animal
USDA and who are considered to be Quarantine Regulatory Actions, USDA/
employees of the agency within the APHIS–3.
meaning of 5 U.S.C. 552a(m)(1). Veterinary Services Programs—Animal Wel-
fare and Horse Protection Regulatory Ac-
[40 FR 39519, Aug. 28, 1975, as amended at 62 tions, USDA/APHIS–4.
FR 33982, June 24, 1997]
FARMERS HOME ADMINISTRATION
§ 1.122 General exemptions. Credit Report File, USDA/FmHA–3.
Pursuant to 5 U.S.C. 552a(j), and for
the reasons set forth in 54 FR 11204– FEDERAL CROP INSURANCE CORPORATION
11206 (March 17, 1989), the systems of FCIC Compliance Review Cases, USDA/FCIC–
records (or portions of systems of 2.
records) maintained by agencies of
USDA identified in this section are ex- FEDERAL GRAIN INSPECTION SERVICE
empted from the provisions of 5 U.S.C. Investigations Undertaken by the Govern-
552a, except subsections (b), (c)(1) and ment Pursuant to the United States Grain
(2), (e)(4)(A) through (F), (e)(6), (7), (9), Standards Act of 1976, as amended, or the
(10), and (11), and (i). Agricultural Marketing Act of 1946, as
amended, USDA/FGIS–2.
Office of Inspector General
FOOD AND NUTRITION SERVICE
Informant and Undercover Agent Records,
USDA/OIG–2. Civil Rights Complaints and Investigations,
Investigative Files and Automated Inves- USDA/FNS–1.
tigative Indices System, USDA/OIG–3. Claims Against Food Stamp Recipients,
OIG Hotline Complaint Records, USDA/OIG– USDA/FNS–3.
4. Investigations of Fraud, Theft, or Other Un-
Consolidated Assignments, Personnel Track- lawful Activities of Individuals Involving
ing, and Administrative Information Net- Food Stamps, USDA/FNS–5.
work (CAPTAIN), USDA/OIG–5.
FOOD SAFETY AND INSPECTION SERVICE
[54 FR 39517, Sept. 27, 1989, as amended at 62
FR 33982, June 24, 1997; 62 FR 61209, Nov. 17, Meat and Poultry Inspection Program—
1997] Slaughter, Processing and Allied Indus-
tries Compliance Records System, USDA/
§ 1.123 Specific exemptions. FSIS–1.
Pursuant to 5 U.S.C. 552a(k), the sys- FOREST SERVICE
tems of records (or portions thereof)
maintained by agencies of USDA iden- Law Enforcement Investigation Records,
tified below are exempted from the pro- USDA/FS–33.
visions of 5 U.S.C. 552a (c)(3), (d), (e)(1), OFFICE OF THE GENERAL COUNSEL
(e)(4)(G), (H) and (I), and (f). The rea-
sons for exempting each system are set Regulatory Division
out in the notice for that system pub- Cases by the Department under the Federal
lished in the FEDERAL REGISTER. Meat Inspection Act, the Poultry Products
Inspection Act, and the voluntary inspec-
AGRICULTURAL MARKETING SERVICE
tion and certification provisions of the Ag-
AMS Office of Compliance Review Cases, ricultural Marketing Act of 1946, USDA/
USDA/AMS–11. OGC–6.
Cases by the Department under the Humane
AGRICULTURAL STABILIZATION AND Methods of Livestock Slaughter Law (i.e.,
CONSERVATION SERVICE the Act of August 27, 1958), USDA/OGC–7.
EEO Complaints and Discrimination Inves- Cases by the Department under the 28 Hour
tigation Reports, USDA/ASCS–12. Law, as amended, USDA/OGC–8.

Investigation and Audit Reports, USDA/ Cases by the Department under the various
ASCS–18. Animal Quarantine and related laws,
Producer Appeals, USDA/ASCS–21. USDA/OGC–9.
32
Office of the Secretary, USDA Pt. 1, Subpt. G, App. A
Cases by the Department under the various Court cases brought by the Government pur-
Plant Protection Quarantine and related suant to either the Naval Stores Act, or
laws, USDA/OGC–10. the Tobacco Seed and Plant Exportation
Cases by the Department under Horse Pro- Act, USDA/OGC–29.
tection Act of 1970, USDA/OGC–41. Court cases brought by the Government pur-
Cases by the Department under the Labora- suant to either the Peanut Statistics Act
tory Animal Welfare Act, USDA/OGC–42. or the Tobacco Statistics Act, USDA/OGC–
30.
Community Development Division Court cases brought by the Government pur-
Community Development Division Litiga- suant to either the Plant Variety Protec-
tion, USDA/OGC–11. tion Act or the Egg Products Inspection
Farmers Home Administration (FmHA) Gen- Act, USDA/OGC–31.
eral Case Files, USDA/OGC–12. Court cases brought by the Government pur-
suant to either the Produce Agency Act, or
Food and Nutrition Division the Process of Renovated Butter Provi-
sions of the Internal Revenue Code of 1954,
Claims by and against USDA under the Food
USDA/OGC–32.
Assistance Legislation, USDA/OGC–13.
Court cases brought by the Government pur-
Perishable Agricultural Commodities,
suant to either the United States Grain
USDA/OGC–14.
Standards Act or the Federal Seed Act,
Foreign Agriculture and Commodity USDA/OGC–33.
Stabilization Division Court cases brought by the Government pur-
suant to the Agricultural Fair Practices
Agricultural Stabilization and Conservation Act, USDA/OGC–34.
Service (ASCS), Foreign Agricultural Serv- Cases by and against the Department under
ice (FAS), and Commodity Credit Corpora- the Virus-Serum Toxin Act, USDA/OGC–44.
tion Cases, USDA/OGC–15.
Federal Crop Insurance Corporation (FCIC) Office of Inspector General
Cases, USDA/OGC–16.
Informant and Undercover Agent Records,
Administrative proceedings brought by the
USDA/OIG–2.
Department, court cases in which the gov-
Investigative Files and Automated Inves-
ernment is plaintiff and court cases in
tigative Indices System, USDA/OIG–3.
which the government is a defendant OIG Hotline Complaint Records, USDA/OIG–
brought pursuant to the United States 4.
Warehouse Act, USDA/OGC–43. Consolidated Assignments, Personnel Track-
Marketing Division ing, and Administrative Information Net-
work (CAPTAIN), USDA/OIG–5.
Administrative proceedings brought by the
Department pursuant to the Plant Variety Packers and Stockyards Division
Protection Act, the Federal Seed Act, or Packers and Stockyards Act, Administrative
the Agricultural Marketing Act of 1946, Cases, USDA/OGC–69.
USDA/OGC–18. Packers and Stockyards Act, Civil and
Cases brought by the Government pursuant Criminal Cases, USDA/OGC–70.
to the Cotton Futures provisions of the In-
ternal Revenue Code of 1954, USDA/OGC–22. Research and Operations Division
Personnel Irregularities, USDA/OGC–75.
suant to either the Agricultural Marketing
Act of 1946 or the Tobacco Inspection Act, Office of the Secretary
USDA/OGC–24.
Court cases brought by the Government pur- Non-Career Applicant File, USDA/SEC–1.
suant to either the Agricultural Marketing [40 FR 45103, Sept. 30, 1975, as amended at 41
Agreement Act of 1937, as amended, or the FR 22333, June 3, 1976; 53 FR 5969, Feb. 29,
Anti-Hog-Cholera Serum and Hog Cholera 1988; 54 FR 5073, Feb. 1, 1989; 55 FR 41179, Oct.
Virus Act, USDA/OGC–25. 10, 1990; 62 FR 61209, Nov. 17, 1997]
suant to either the Cotton Research and APPENDIX A TO SUBPART G OF PART 1—
Promotion Act, Potato Research and Pro- INTERNAL DIRECTIVES
motion Act, the Egg Research and Con-
sumer Information Act, USDA/OGC–26. SECTION 1 General requirements. Each agen-
Court cases brought by the Government pur- cy that maintains a system of records sub-
suant to either the Export Apple and Pear ject to 5 U.S.C. 552a and the regulations of
Act or the Export Grape and Plum Act, this subpart shall:
USDA/OGC–27. (a) Maintain in its records only such infor-
Court cases brought by the Government pur- mation about an individual as is relevant
suant to either the Cotton Statistics and and necessary to accomplish a purpose of the
Estimates Act of 1927 or the United States agency required to be accomplished by stat-
Cotton Standards Act, USDA/OGC–28. ute or by executive order of the President;
33
Pt. 1, Subpt. G, App. A 7 CFR Subtitle A (1–1–12 Edition)
(b) Collect information to the greatest ex- accurate, complete, timely, and relevant for
tent practicable directly from the subject in- agency purposes;
dividual when the information may result in (g) Maintain no record describing how any
adverse determinations about an individual’s individual exercises rights guaranteed by the
rights, benefits, and privileges under Federal First Amendment unless expressly author-
programs; ized by statute or by the individual about
(c) Inform each individual whom it asks to whom the record is maintained, or unless
supply information, on the form which it pertinent to and within the scope of an au-
uses to collect the information, or on a sepa- thorized law enforcement activity;
rate form that can be retained by the indi- (h) Make reasonable efforts to serve notice
vidual, of: on an individual when any record on such in-
(1) The authority (whether granted by stat- dividual is made available to any person
ute, or by executive order of the President) under compulsory legal process when such
which authorizes the solicitation of the in- process becomes a matter of public record;
formation and whether disclosure of such in- (i) Establish rules of conduct for persons
formation is mandatory or voluntary; involved in the design, development, oper-
(2) The principal purpose or purposes for ation, or maintenance of any system of
which the information is intended to be used; records, or in maintaining any record, and
(3) The routine uses which may be made of instruct each such person with respect to
the information, as published pursuant to such rules and the requirements of this sec-
paragraph (d)(4) of this section; and tion, including any other rules and proce-
(4) The effects on the individual, if any, of dures adopted pursuant to this section and
not providing all or any part of the requested the penalties for noncompliance;
information; (j) Establish appropriate administrative,
(d) Subject to the provisions of section 2 of technical, and physical safeguards to insure
this appendix, prepare for publication in the the security and confidentiality of records
FEDERAL REGISTER at least annually a notice and to protect against any anticipated
of the existence and character of each sys- threats or hazards to their security or integ-
tem it maintains, which notice shall include: rity which could result in substantial harm,
(1) The name and location(s) of the system; embarrassment, inconvenience, or unfairness
(2) The categories of individuals on whom to any individual on whom information is
records are maintained in the system; maintained.
(3) The categories of records maintained in SEC. 2 Amendment of routine uses for an ex-
the system; isting system of records, or establishment of a
(4) Each routine use of the records con- new system of records.
tained in the system, including the cat- (a) Any agency which intends to add a rou-
egories of uses and the purpose of such use; tine use, or amend an existing one, in a sys-
(5) The policies and practices of the agency tem of records it maintains, shall, in accord-
regarding storage, retrievability, access con- ance with 5 U.S.C. 552a(e)(11), ensure that at
trols, retention, and disposal of the records; least 30 days advance notice of such action is
(6) The title and business address of the given by publication in the FEDERAL REG-
agency official who is responsible for the sys- ISTER and an opportunity provided for inter-
tem of records; ested persons to submit written data, views
(7) The agency procedures whereby an indi- or arguments to the agency.
vidual can be notified at his or her request if (b) Any agency which intends to establish
the system of records contains a record per- a new system of records, or to alter any ex-
taining to the individual; isting system of records, shall insure that
(8) The agency procedures whereby an indi- adequate advance notice is provided to Con-
vidual can be notified at his or her request gress and the Office of Management and
how the individual can gain access to any Budget to permit an evaluation of the prob-
record pertaining to him or her contained in able or potential effect of such action on the
the system of records, and how he can con- privacy and other personal or property
test its content; and rights of individuals or the disclosure of in-
(9) The categories of sources of records in formation relating to such individuals, and
the system; its effect on the preservation of the constitu-
(e) Maintain all records which are used by tional principles of federalism and separa-
the agency in making any determination tion of powers. Such notice is required for
about any individual with such accuracy, any new system of records and for any alter-
relevance, timeliness, and completeness as is ation in an existing one which will:
reasonably necessary to assure fairness to (1) Increase the number or types of individ-
the individual in the determination; uals on whom records are maintained;
(f) Prior to disseminating any record about (2) Expand the type or amount of informa-
an individual to any person other than an tion maintained;

agency, unless the dissemination is made (3) Increase the number or categories of
pursuant to 5 U.S.C. 552a(b)(2), make reason- agencies or other persons who may have ac-
able efforts to assure that such records are cess to those records;
34
Office of the Secretary, USDA Pt. 1, Subpt. G, App. A
(4) Alter the manner in which the records (1) Any disclosure required by Federal stat-
are organized so as to change the nature or ute; or
scope of those records (e.g., the combining of (2) Any disclosure to any agency relating
two or more existing systems); to a system of records it maintained prior to
(5) Modify the way the system operates at January 1, 1975, if such disclosure was re-
its location(s) in such a manner as to alter quired under statute or regulation adopted
the procedures by which individuals can ex- prior to that date, to verify the identity of
ercise their rights under this subpart; or an individual.
(6) Change the equipment configuration on (c) Any agency in the Department which
which the system is operated so as to create
requests an individual to disclose his or her
the potential for greater access (e.g., adding
social security account number shall inform
a telecommunications capability).
that individual whether the disclosure is
SEC. 3 Accounting of certain disclosures.
mandatory or voluntary, by what statutory
Each agency, with respect to each system of
or other authority the number is solicited,
records under its control, shall:
and what uses will be made of it. The agency
(a) Except for disclosures made under 5
U.S.C. 552a(b)(1) and (2), keep an accurate ac- shall also insure that this information is
count of: provided by a State or local government
(1) The date, nature, and purpose of each with whom it is involved in a cooperative
disclosure of a record to any person or agen- agreement.
cy outside the Department; and SEC. 7. Annual report. Each agency in the
(2) The name and address of the person or Department shall submit to the Office of the
agency to whom the disclosure is made; General Counsel prior to March 30 of each
(b) Retain the accounting made under year a report containing the following infor-
paragraph (a) of this section for the longer of mation related to implementation of 5 U.S.C.
a period of five years, after the date of the 552a:
disclosure for which the accounting is made, (a) A summary of major accomplishments;
or the life of the record disclosed; (b) A summary of major plans for activities
(c) Except for disclosures made under 5 in the upcoming year;
U.S.C. 552a(b)(7), make the accounting re- (c) A list of the systems which were ex-
quired under paragraph (a) of this section empted during the year from any of the oper-
available to the individual named in the ative provisions of this subpart pursuant to 5
record at his or her request. U.S.C. 552a (j) and (k), whether or not the ex-
SEC. 4 Government contractors. When an emption was effected during that year, the
agency within the Department provides by a
number of instances with respect to each
contract for the operation by or on behalf of
system exempted in which the exemption
the agency of a system of records to accom-
was invoked to deny access, and the reasons
plish an agency function, the agency shall,
consistent with its authority, cause the re- for invoking the exemption;
quirements of this subpart to be applied to (d) A brief summary of changes to the total
such system. For purposes of 5 U.S.C. 552a(i) inventory of personal data system subject to
any such contractor or any employee of such this subpart including reasons for major
contractor shall be considered to be an em- changes; and
ployee of an agency and therefore subject to (e) A general description of operational ex-
the criminal penalties set forth in 5 U.S.C. periences including estimates of the number
552a(i). of individuals (in relation to the total num-
SEC. 5 Mailing lists. No agency within the ber of records in the system):
Department shall sell or rent any individ- (1) Requesting information on the exist-
ual’s name and address unless such action is ence of records pertaining to them;
specifically authorized by law. This section (2) Refusing to provide information;
shall not be construed to require, or to au-
(3) Requesting access to their records;
thorize, the withholding of names and ad-
dresses whose disclosure is required by 5 (4) Appealing initial refusals to amend
U.S.C. 552. records; and
SEC. 6 Social security account numbers. (a) (5) Seeking redress through the courts.
No agency shall deny, or permit any State or SEC. 8. Effect of 5 U.S.C. 552. No agency in
local government with whom it is involved the Department shall rely on any exemption
in a cooperative venture to deny, to any in- in 5 U.S.C. 552 to withhold from an individual
dividual any right, benefit, or privilege pro- any record which is otherwise accessible to
vided by law because of such individual’s re- such individual under 5 U.S.C. 552a and this
fusal to disclose his or her social security ac- subpart.

count number.
(b) Paragraph (a) of this section shall not [40 FR 44480, Sept. 26, 1975, as amended at 62
apply with respect to: FR 33982, June 24, 1997]
35
Subpart H—Rules of Practice Gov- Federal Land Policy and Management Act of
1976, section 506 (43 U.S.C. 1766).
erning Formal Adjudicatory Federal Meat Inspection Act, sections 4, 6,
Proceedings Instituted by the 7(e), 8, and 401 (21 U.S.C. 604, 606, 607(e), 608,
Secretary Under Various Stat- 671).
utes Federal Seed Act, section 409 (7 U.S.C. 1599).
Fluid Milk Promotion Act of 1990, section
1999L [7 U.S.C. 6411].
AUTHORITY: 5 U.S.C. 301; 7 U.S.C. 61, 87e, Forest Resources Conversation and Shortage
228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2279e, Relief Act of 1990, section 492 (16 U.S.C.
2621, 2714, 2908, 3812, 4610, 4815, 4910, 6009, 6107, 620d)
6207, 6307, 6411, 6519, 6520, 6808, 7107, 7734, 8313; Fresh Cut Flowers and Fresh Cut Greens
15 U.S.C. 1828; 16 U.S.C. 620d, 1540(f), 3373; 21 Promotion and Consumer Information Act
U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f, of 1993, section 9 [7 U.S.C. 6808].
135a, 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 Honey Research, Promotion, and Consumer
CFR 2.35, 2.41. Information Act, section 11 (7 U.S.C. 4610).
Horse Protection Act of 1970, sections 4(c)
SOURCE: 42 FR 743, Jan. 4, 1977, unless oth-
and 6 (15 U.S.C. 1823(c), 1825).
erwise noted. Lacey Act Amendments of 1981, section 4 (a)
and (b) (16 U.S.C. 3373 (a) and (b)).
§ 1.130 Meaning of words. Lime Research, Promotion, and Consumer
As used in this subpart, words in the Information Act of 1990, as amended, sec-
singular form shall be deemed to im- tion 1958 [7 U.S.C. 6207]
port the plural, and vice versa, as the Mushroom Promotion, Research, and Con-
sumer Information Act of 1990, section 1928
case may require.
[7 U.S.C. 6107]
Organic Foods Production Act of 1990, sec-
§ 1.131 Scope and applicability of this tions 2119 and 2120 (7 U.S.C. 6519, 6520).
subpart. Packers and Stockyards Act, 1921, as supple-
(a) The rules of practice in this sub- mented, sections 203, 312, and 401 of the
part shall be applicable to all adjudica- Act, and section 1, 57 Stat. 422, as amended
tory proceedings under the statutory by section 4, 90 Stat. 1249 (7 U.S.C. 193, 204,
provisions listed below as those provi- 213, 221)
Pecan Promotion and Research Act of 1990,
sions have been or may be amended section 1914 [7 U.S.C. 6009]
from time to time, 1 except that those Perishable Agricultural Commodities Act,
rules shall not be applicable to repara- 1930, sections 1(b)(9), 3(c), 4(d), 6(c), 8(a),
tion proceedings under section 6(c) of 8(b), 8(c), 8(e), 9, and 13(a) (7 U.S.C.
the Perishable Agricultural Commod- 499a(b)(9), 499c(c), 499d(d), 499f(c), 499h(a),
ities Act, 1930. Section 1.26 shall be in- 499h(b), 499h(c), 499h(e), 499i, 499m(a))
applicable to the proceedings covered Plant Protection Act, section 424 (7 U.S.C.
7734).
by this subpart. Pork Promotion, Research, and Consumer
Agricultural Bioterrorism Protection Act of Information Act of 1985, section 1626 (7
2002, section 212(i) (7 U.S.C. 8401(i)). U.S.C. 4815).
Agricultural Marketing Agreement Act of Potato Research and Promotion Act, as
1937, as amended, section 8c(14), 7 U.S.C. amended, 7 U.S.C. 2621, Pub. L. 97–244, 96
608c(14). Stat. 310.
Animal Health Protection Act, section 10414 Poultry Products Inspection Act, sections 6,
(7 U.S.C. 8313). 7, 8(d), and 18 (21 U.S.C. 455, 456, 457(d), 467).
Animal Welfare Act, section 19 (7 U.S.C. Sheep Promotion, Research, and Information
2149). Act of 1994 [7 U.S.C. 7107].
Beef Promotion and Research Act of 1985, Soybean Promotion, Research, and Con-
section 9 (7 U.S.C. 2908). sumer Information Act, section 1972 [7
Egg Products Inspection Act, section 18 (21 U.S.C. 6307].
U.S.C. 1047). Swine Health Protection Act, sections 5 and
Endangered Species Act of 1973, as amended, 6 (7 U.S.C. 3804, 3805).
section 11(a) (16 U.S.C. 1540(a)). Title V of the Agricultural Risk Protection
Egg Research and Consumer Information Act of 2000, section 501(a) (7 U.S.C. 2279e).
Act, as amended, 7 U.S.C. 2714, Pub. L. 96– United States Cotton Standards Act, as sup-
276, 94 Stat. 541. plemented, section 3 of the Act and section
2 of 47 Stat. 1621 (7 U.S.C. 51b, 53).
United States Grain Standards Act, sections
1 See also the regulations promulgated 7(g)(3), 9, 10, and 17A(d) (7 U.S.C. 79(g)(3),
under these statutes for any supplemental 85, 86, 87f-1(d)).
rules relating to particular circumstances United States Warehouse Act, sections 12
arising thereunder. and 25 (7 U.S.C. 246, 253).
36
Virus-Serum-Toxin Act (21 U.S.C. 156). ployee of the Agency to whom author-
Watermelon Research and Promotion Act, ity has heretofore been delegated, or to
section 1651 (7 U.S.C. 4910). whom authority may hereafter be dele-
(b) These rules of practice shall also gated, to act for the Administrator.
be applicable to: Complainant means the party insti-
(1) Adjudicatory proceedings under tuting the proceeding.
the regulations promulgated under the Complaint means the formal com-
Agricultural Marketing Act of 1946 (7 plaint, order to show cause, or other
U.S.C. 1621 et seq.) for the denial or document by virtue of which a pro-
withdrawal of inspection, certification, ceeding is instituted.
or grading service; 1 Decision means: (1) The Judge’s ini-
(2) Adjudicatory proceedings under tial decision made in accordance with
the regulations promulgated under the the provisions of 5 U.S.C. 556 and 557,
Animal Health Protection Act (7 U.S.C. and includes the Judge’s (i) findings
8301 et seq.) for the suspension or rev- and conclusions and the reasons or
ocation of accreditation of veterinar- basis therefor on all material issues of
ians (9 CFR parts 160, 161); fact, law or discretion, (ii) order, and
(3) Proceedings for debarment of (iii) rulings on proposed findings, con-
counsel under § 1.141(d) of this subpart; clusions and orders submitted by the
(4) Adjudicatory proceedings under parties; and
the regulations promulgated under the (2) The decision and order by the Ju-
Animal Welfare Act (7 U.S.C. 2131 et dicial Officer upon appeal of the
seq.) for the denial of an initial license Judge’s decision.
application (9 CFR 2.11) or the termi- Hearing means that part of the pro-
nation of a license during the license ceeding which involves the submission
renewal process or at any other time (9 of evidence before the Judge for the
CFR 2.12); record in the proceeding.
(5) Adjudicatory proceedings under Hearing Clerk means the Hearing
the regulations promulgated under sec- Clerk, United States Department of
tions 901–905 of the Federal Agriculture Agriculture, Washington, DC 20250.
Improvement and Reform Act of 1996 (7 Judge means any Administrative Law
U.S.C. 1901 note) pertaining to the com- Judge appointed pursuant to 5 U.S.C.
mercial transportation of equines to 3105 and assigned to the proceeding in-
slaughtering facilities (9 CFR part 88); volved.
and Judicial Officer means an official of
(6) Other adjudicatory proceedings in the United States Department of Agri-
which the complaint instituting the culture delegated authority by the Sec-
proceeding so provides with the concur- retary of Agriculture, pursuant to the
rence of the Assistant Secretary for Act of April 4, 1940 (7 U.S.C. 450c–450g)
Administration. and Reorganization Plan No. 2 of 1953 (5
[42 FR 743, Jan. 4, 1977] U.S.C. App. (1988)), to perform the func-
EDITORIAL NOTE: For FEDERAL REGISTER ci-
tion involved (§ 2.35(a) of this chapter),
tations affecting § 1.131 see the List of CFR or the Secretary of Agriculture if the
Sections Affected, which appears in the authority so delegated is exercised by
Finding Aids section of the printed volume the Secretary.
and at www.fdsys.gov. Mail means to deposit an item in the
United States Mail with postage af-
§ 1.132 Definitions. fixed and addressed as necessary to
As used in this subpart, the terms as cause it to be delivered to the address
defined in the statute under which the shown by ordinary mail, or by certified
proceeding is conducted and in the reg- or registered mail if specified.
ulations, standards, instructions, or or- Petitioner means an individual who
ders issued thereunder, shall apply has filed a petition for review of a de-
with equal force and effect. In addition termination that the individual is re-
and except as may be provided other- sponsibly connected to a licensee with-
wise in this subpart: in the meaning of 7 U.S.C. 499a(b)(9).

Administrator means the Adminis- Re-mail means to mail by ordinary
trator of the Agency administering the mail to an address an item that has
statute involved, or any officer or em- been returned after being sent to the
37
same address by certified or registered transaction complained about, includ-

mail. ing shipping documents, letters, tele-
Respondent means the party programs, invoices, manifests, inspection
ceeded against. certificates, accounts of sales and any
[42 FR 743, Jan. 4, 1977, as amended at 55 FR
special contracts or agreements.
30673, July 27, 1990; 60 FR 8455, Feb. 14, 1995; (3) Upon receipt of the information
61 FR 11503, Mar. 21, 1996; 68 FR 6340, Feb. 7, and supporting evidence, the Adminis-
2003] trator shall cause such investigation to
be made as, in the opinion of the Ad-
§ 1.133 Institution of proceedings. ministrator, is justified by the facts. If
(a) Submission of information con- such investigation discloses that no
cerning apparent violations. (1) Any in- violation of the Act or of the regula-
terested person desiring to submit in- tions, standards, instructions, or orders
formation regarding an apparent viola- issued pursuant thereto, has occurred,
tion of any provision of a statute listed no further action shall be taken and
in § 1.131 or of any regulation, standard, the person submitting the information
instruction, or order issued pursuant shall be so informed.
thereto, may file the information with (4) The person submitting the infor-
the Administrator of the agency ad- mation shall not be a party to any pro-
ministering the statute involved in ac- ceeding which may be instituted as a
cordance with this section and any ap- result thereof and such person shall
plicable statutory or regulation provi- have no legal status in the proceeding,
sions. Such information may be made except as a subpoenaed witness or as a
the basis of any appropriate proceeding deponent in a deposition taken without
covered by the rules in this subpart, or expense to such person.
any other appropriate proceeding au- (b) Filing of complaint or petition for
thorized by the particular statute or review. (1) If there is reason to believe
the regulations promulgated there- that a person has violated or is vio-
under. lating any provision of a statute listed
(2) The information may be sub- in § 1.131 or of any regulation, standard,
mitted by telegram, by letter, or by a instruction or order issued pursuant
preliminary statement of facts, setting thereto, whether based upon informa-
forth the essential details of the trans- tion furnished under paragraph (a) of
action complained of. So far as prac- this section or other information, a
ticable, the information shall include complaint may be filed with the Hear-
such of the following items as may be ing Clerk pursuant to these rules.
applicable: (2) Any person determined by the
(i) The name and address of each per- Chief, PACA Branch, pursuant to
son and of the agent, if any, rep- §§ 47.47–47.49 of this title to have been
resenting such person in the trans- responsibly connected within the
action involved; meaning of 7 U.S.C. 499a(b)(9) to a li-
(ii) Place where the alleged violation censee who is subject or potentially
occurred; subject to license suspension or revoca-
(iii) Quantity and quality or grade of tion as the result of an alleged viola-
each kind of product or article in- tion of 7 U.S.C. 499b or 499h(b) or as
volved; provided in 7 U.S.C. 499g(d) shall be en-
(iv) Date of alleged violation; titled to institute a proceeding under
(v) Car initial and number, if carlot; this section and to have determined
(vi) Shipping and destination points; the facts with respect to such respon-
(vii) If a sale, the date, sale price, and sibly connected status by filing with
amount actually received; the Hearing Clerk a petition for review
(viii) If a consignment, the date, re- of such determination.
ported proceeds, gross, net; (3) As provided in 5 U.S.C. 558, in any
(ix) Amount of damage claimed, if case, except one of willfulness or one in
any; which public health, interest, or safety
(x) Statement of other material otherwise requires, prior to the institu-

facts, including terms of contract; and tion of a formal proceeding which may
(xi) So far as practicable, true copies result in the withdrawal, suspension,
of all available papers relating to the or revocation of a ‘‘license’’ as that
38
term is defined in 5 U.S.C. 551(8), the the proceeding. The attorney may file
Administrator, in an effort to effect an an appearance of record prior to or si-
amicable or informal settlement of the multaneously with the filing of the an-
matter, shall give written notice to the swer. The answer shall be served upon
person involved of the facts or conduct the complainant, and any other party
concerned and shall afford such person of record, by the Hearing Clerk. As re-
an opportunity, within a reasonable sponse to a petition for review of re-
time fixed by the Administrator, to sponsibly connected status, the Chief,
demonstrate or achieve compliance PACA Branch, shall within ten days
with the applicable requirements of the after being served by the Hearing Clerk
statute, or the regulation, standard, in- with a petition for review, file with the
struction or order promulgated there- Hearing Clerk a certified copy of the
under. agency record upon which the Chief,
PACA Branch, made the determination
8455, Feb. 14, 1995; 61 FR 11503, Mar. 21, 1996; that the individual was responsibly
68 FR 6340, Feb. 7, 2003] connected to a licensee under the Per-
ishable Agricultural Commodities Act,
§ 1.134 Docket number. 7 U.S.C. 499a et seq., and such agency
Each proceeding, immediately fol- record shall become part of the record
lowing its institution, shall be assigned in the review proceeding.
a docket number by the Hearing Clerk, (b) Contents. The answer shall:
and thereafter the proceeding shall be (1) Clearly admit, deny, or explain
referred to by such number. each of the allegations of the Com-
plaint and shall clearly set forth any
§ 1.135 Contents of complaint or peti- defense asserted by the respondent; or
tion for review. (2) State that the respondent admits
(a) Complaint. A complaint filed pur- all the facts alleged in the complaint;
suant to § 1.133(b) shall state briefly or
and clearly the nature of the pro- (3) State that the respondent admits
ceeding, the identification of the com- the jurisdictional allegations of the
plainant and the respondent, the legal complaint and neither admits nor de-
authority and jurisdiction under which nies the remaining allegations and con-
the proceeding is instituted, the allega- sents to the issuance of an order with-
tions of fact and provisions of law out further procedure.
which constitute a basis for the pro- (c) Default. Failure to file an answer
ceeding, and the nature of the relief within the time provided under para-
sought. graph (a) of this section shall be
(b) Petition for review. The Petition deemed, for purposes of the proceeding,
for Review of responsibly connected an admission of the allegations in the
status shall describe briefly and clearly Complaint, and failure to deny or oth-
the determination sought to be re- erwise respond to an allegation of the
viewed and shall include a brief state- Complaint shall be deemed, for pur-
ment of the factual and legal matters poses of the proceeding, an admission
that the petitioner believes warrant of said allegation, unless the parties
the reversal of the determination. have agreed to a consent decision pur-
suant to § 1.138.
11503, Mar. 21, 1996] [42 FR 743, Jan. 4, 1977, as amended at 61 FR
11504, Mar. 21, 1996; 68 FR 6340, Feb. 7, 2003]
§ 1.136 Answer.
(a) Filing and service. Within 20 days § 1.137 Amendment of complaint, peti-
after the service of the complaint tion for review, or answer; joinder
(within 10 days in a proceeding under of related matters.
section 4(d) of the Perishable Agricul- (a) Amendment. At any time prior to
tural Commodities Act, 1930), or such the filing of a motion for a hearing, the
other time as may be specified therein, complaint, petition for review, answer,
the respondent shall file with the Hear- or response to petition for review may
ing Clerk an answer signed by the re- be amended. Thereafter, such an
spondent or the attorney of record in amendment may be made with consent
39
of the parties, or as authorized by the the Hearing Clerk. Within 20 days after
Judge upon a showing of good cause. service of such motion and proposed de-
(b) Joinder. The Judge shall consoli- cision, the respondent may file with
date for hearing with any proceeding the Hearing Clerk objections thereto. If
alleging a violation of the Perishable the Judge finds that meritorious objec-
Agricultural Commodities Act, 7 U.S.C. tions have been filed, complainant’s
499a et seq., any petitions for review of Motion shall be denied with supporting
determination of status by the Chief, reasons. If meritorious objections are
PACA Branch, that individuals are re- not filed, the Judge shall issue a deci-
sponsibly connected, within the mean- sion without further procedure or hear-
ing of 7 U.S.C. 499a(b)(9), to the licensee ing. Copies of the decision or denial of
during the period of the alleged viola- complainant’s Motion shall be served
tions. In any case in which there is no by the Hearing Clerk upon each of the
pending proceeding alleging a violation parties and may be appealed pursuant
of the Perishable Agricultural Com- to § 1.145. Where the decision as pro-
modities Act, 7 U.S.C. 499a et seq., but posed by complainant is entered, such
there have been filed more than one pe- decision shall become final and effec-
tition for review of determination of tive without further proceedings 35
responsible connection to the same li- days after the date of service thereof
censee, such petitions for review shall upon the respondent, unless there is an
be consolidated for hearing. appeal to the Judicial Officer by a
[61 FR 11504, Mar. 21, 1996, as amended at 68 party to the proceeding pursuant to
FR 6340, Feb. 7, 2003] § 1.145: Provided, however, That no deci-
sion shall be final for purposes of judi-
§ 1.138 Consent decision. cial review except a final decision of
At any time before the Judge files the Judicial Officer upon appeal.
the decision, the parties may agree to
the entry of a consent decision. Such § 1.140 Conferences and procedure.
agreement shall be filed with the Hear- (a) Purpose and scope. (1) Upon mo-
ing Clerk in the form of a decision tion of a party or upon the Judge’s own
signed by the parties with appropriate motion, the Judge may direct the par-
space for signature by the Judge, and ties or their counsel to attend a con-
shall contain an admission of at least ference at any reasonable time, prior
the jurisdictional facts, consent to the to or during the course of the hearing,
issuance of the agreed decision without when the Judge finds that the pro-
further procedure and such other ad- ceeding would be expedited by a con-
missions or statements as may be ference. Reasonable notice of the time,
agreed between the parties. The Judge place, and manner of the conference
shall enter such decision without fur- shall be given. The Judge may order
ther procedure, unless an error is ap- each of the parties to furnish at or sub-
parent on the face of the document. sequent to the conference any or all of
Such decision shall have the same the following:
force and effect as a decision issued (i) An outline of the case or defense;
after full hearing, and shall become (ii) The legal theories upon which the
final upon issuance to become effective party will rely;
in accordance with the terms of the de- (iii) Copies of or a list of documents
cision. which the party anticipates intro-
ducing at the hearing; and
§ 1.139 Procedure upon failure to file (iv) A list of anticipated witnesses
an answer or admission of facts. who will testify on behalf of the party.
The failure to file an answer, or the At the discretion of the party fur-
admission by the answer of all the ma- nishing such list of witnesses, the
terial allegations of fact contained in names of the witnesses need not be fur-
the complaint, shall constitute a waiv- nished if they are otherwise identified
er of hearing. Upon such admission or in some meaningful way such as a
failure to file, complainant shall file a short statement of the type of evidence
proposed decision, along with a motion they will offer.
for the adoption thereof, both of which (2) The Judge shall not order any of
shall be served upon the respondent by the foregoing procedures that a party
40
can show is inappropriate or unwar- the conference by personal attendance

ranted under the circumstances of the of any individual who is expected to
particular case. participate in the conference:
(3) At the conference, the following (i) Is necessary to prevent prejudice
matters shall be considered: to a party;
(i) The simplification of issues; (ii) Is necessary because of a dis-
(ii) The necessity of amendments to ability of any individual expected to
pleadings; participate in the conference; or
(iii) The possibility of obtaining stip- (iii) Would cost less than conducting
ulations of facts and of the authen- the conference by audio-visual tele-
ticity, accuracy, and admissibility of communication.
documents, which will avoid unneces- (d) Order. Actions taken as a result of
sary proof; a conference shall be reduced to a writ-
(iv) The limitation of the number of ten appropriate order, unless the Judge
expert or other witnesses; concludes that a stenographic report
(v) Negotiation, compromise, or set- shall suffice, or, if the conference takes
tlement of issues; place within 7 days of the beginning of
(vi) The exchange of copies of pro- the hearing, the Judge elects to make
posed exhibits; a statement on the record at the hear-
(vii) The identification of documents ing summarizing the actions taken.
or matters of which official notice may (e) Related matters. Upon motion of a
be requested; respondent, the Judge may order the
(viii) A schedule to be followed by the attorney for the complainant to
parties for completion of the actions produce and permit the respondent to
decided at the conference; and inspect and copy or photograph any
(ix) Such other matters as may expe- relevant written or recorded state-
dite and aid in the disposition of the ments or confessions made by such re-
proceeding. spondent within the possession, cus-
(b) Reporting. A conference will not tody or control of the complainant.
be stenographically reported unless so [42 FR 743, Jan. 4, 1977, as amended at 60 FR
directed by the Judge. 8455, Feb. 14, 1995]
(c) Manner of Conference. (1) The con-
ference shall be conducted by tele- § 1.141 Procedure for hearing.
phone or correspondence unless the (a) Request for hearing. Any party
Judge determines that conducting the may request a hearing on the facts by
conference by audio-visual tele- including such request in the com-
communication: plaint or answer, or by a separate re-
(i) Is necessary to prevent prejudice quest, in writing, filed with the Hear-
to a party; ing Clerk within the time in which an
(ii) Is necessary because of a dis- answer may be filed. A petition for re-
ability of any individual expected to view shall be deemed a request for a
participate in the conference; or hearing. Failure to request a hearing
(iii) Would cost less than conducting within the time allowed for the filing
the conference by telephone or cor- of the answer shall constitute a waiver
respondence. If the Judge determines of such hearing. Waiver of hearing
that a conference conducted by audio- shall not be deemed to be a waiver of
visual telecommunication would meas- the right to request oral argument be-
urably increase the United States De- fore the Judicial Officer upon appeal of
partment of Agriculture’s cost of con- the Judge’s decision. In the event the
ducting the conference, the conference respondent denies any material fact
shall be conducted by personal attend- and fails to file a timely request for a
ance of any individual who is expected hearing, the matter may be set down
to participate in the conference, by for hearing on motion of the complain-
telephone, or by correspondence. ant or upon the Judge’s own motion.
(2) If the conference is not conducted (b) Time, place, and manner. (1) If any
by telephone or correspondence, the material issue of fact is joined by the

conference shall be conducted by pleadings, the Judge, upon motion of
audio-visual telecommunication unless any party stating that the matter is at
the Judge determines that conducting issue and is ready for hearing, shall set
41
a time, place, and manner for hearing stating the basis for the motion and
as soon as feasible after the motion is the circumstances that require the
filed, with due regard for the public in- hearing to be conducted other than by
terest and the convenience and neces- audio-visual telecommunication.
sity of the parties. The Judge shall file (ii) Within 10 days after the Judge
with the Hearing Clerk a notice stating issues a notice stating the manner in
the time and place of the hearing. 2 which the hearing is to be conducted,
This notice shall state whether the any party may move that the Judge re-
hearing will be conducted by telephone, consider the manner in which the hear-
audio-visual telecommunication, or ing is to be conducted. Any motion for
personal attendance of any individual reconsideration must be accompanied
expected to participate in the hearing. by a memorandum in support of the
The Judge’s determination regarding motion stating the basis for the motion
the manner of the hearing shall be and the circumstances that require the
made in accordance with paragraphs hearing to be conducted other than in
(b)(3) and (b)(4) of this section. If any accordance with the Judges’s notice.
change in the time, place, or manner of (3) The hearing shall be conducted by
the hearing is made, the Judge shall audio-visual telecommunication unless
file with the Hearing Clerk a notice of the Judge determines that conducting
such change, which notice shall be the hearing by personal attendance of
served upon the parties, unless it is any individual who is expected to par-
made during the course of an oral hear- ticipate in the hearing:
ing and made part of the transcript or (i) Is necessary to prevent prejudice
recording, or actual notice is given to to a party;
the parties. (ii) Is necessary because of a dis-
(2)(i) If any material issue of fact is ability of any individual expected to
joined by the pleadings and the matter participate in the hearing; or
is at issue and is ready for hearing, any (iii) Would cost less than conducting
party may move that the hearing be the hearing by audio-visual tele-
conducted by telephone or personal at- communication. If the Judge deter-
tendance of any individual expected to mines that a hearing conducted by
attend the hearing rather than by audio-visual telecommunication would
audio-visual telecommunication. Any measurably increase the United States
motion that the hearing be conducted Department of Agriculture’s cost of
by telephone or personal attendance of conducting the hearing, the hearing
any individual expected to attend the shall be conducted by personal attend-
hearing must be accompanied by a ance of any individual who is expected
memorandum in support of the motion to participate in the hearing or by tele-
phone.
2 The place of hearing in a proceeding (4) The Judge may, in his or her sole
under the Packers and Stockyards Act shall discretion or in response to a motion
be set in accordance with the Packers and by a party to the proceeding, conduct
Stockyards Act (7 U.S.C. 228(e) and (f)). In es- the hearing by telephone if the Judge
sence, if there is only one respondent, the finds that a hearing conducted by tele-
hearing is to be held as near as possible to phone:
the respondent’s place of business or resi- (i) Would provide a full and fair evi-
dence depending on the availability of an ap-
propriate location for conducting the hear-
dentiary hearing;
ing. If there is more than one respondent and (ii) Would not prejudice any party;
they have their places of business or resi- and
dence within a single unit of local govern- (iii) Would cost less than conducting
ment, a single geographical area within a the hearing by audio-visual tele-
State, or a single State, the hearing is to be communication or personal attendance
held as near as possible to their places of of any individual who is expected to
business or residence depending on the avail- participate in the hearing.
ability of an appropriate location for con-
ducting the hearing. If there is more than
(c) Appearances. The parties may ap-
one respondent, and they have their places of pear in person or by attorney of record
business or residence distant from each in the proceeding. Any person who ap-
other, 7 U.S.C. 228(e) and (f) have no applica- pears as attorney must conform to the
bility. standards of ethical conduct required
42
of practitioners before the courts of the at the hearing without good cause,
United States. such petitioner shall be deemed to have
(d) Debarment of attorney. (1) When- waived the right to a hearing and to
ever a Judge finds that a person acting have voluntarily withdrawn the peti-
as attorney for any party to the pro- tion for review.
ceeding is guilty of unethical or con- (f) Order of proceeding. Except as may
tumacious conduct, in or in connection be determined otherwise by the Judge,
with a proceeding , the Judge may the complainant shall proceed first at
order that such person be precluded the hearing.
from further acting as attorney in the (g) Written statements of direct testi-
proceeding. An appeal to the Judicial mony. (1) Except as provided in para-
Officer may be taken from any such graph (g)(2) of this section, each party
order, but no proceeding shall be de- must exchange with all other parties a
layed or suspended pending disposition written narrative verified statement of
of the appeal: Provided, That the Judge the oral direct testimony that the
shall suspend the proceeding for a rea- party will provide at any hearing to be
sonable time for the purpose of ena- conducted by telephone; the direct tes-
bling the party to obtain another at- timony of each employee or agent of
torney. the party that the party will call to
(2) Whenever it is found, after notice provide oral direct testimony at any
and opportunity for hearing, that a hearing to be conducted by telephone;
person, who is acting or has acted as and the direct testimony of each expert
attorney for another person in any pro- witness that the party will call to pro-
ceeding before the United States De- vide oral direct testimony at any hear-
partment of Agriculture, is unfit to act ing to be conducted by telephone. The
as such counsel because of such uneth- written direct testimony of witnesses
ical or contumacious conduct, such shall be exchanged by the parties at
person will be precluded from acting as least 10 days prior to the hearing. The
counsel in any or all proceedings before oral direct testimony provided by a
the Department as found to be appro- witness at a hearing conducted by tele-
priate. phone will be limited to the presen-
(e) Failure to appear. (1) A respondent tation of the written direct testimony,
who, after being duly notified, fails to unless the Judge finds that oral direct
appear at the hearing without good testimony which is supplemental to
cause, shall be deemed to have waived the written direct testimony would fur-
the right to an oral hearing in the pro- ther the public interest and would not
ceeding and to have admitted any facts constitute surprise.
which may be presented at the hearing. (2) The parties shall not be required
Such failure by the respondent shall to exchange testimony in accordance
also constitute an admission of all the with this paragraph if the hearing is
material allegations of fact contained scheduled to begin less than 20 days
in the complaint. Complainant shall after the Judge’s notice stating the
have an election whether to follow the time of the hearing.
procedure set forth in § 1.139 or whether (h) Evidence—(1) In general. (i) The
to present evidence, in whole or in testimony of witnesses at a hearing
part, in the form of affidavits or by shall be on oath or affirmation and
oral testimony before the Judge. Fail- subject to cross-examination.
ure to appear at a hearing shall not be (ii) Upon a finding of good cause, the
deemed to be a waiver of the right to Judge may order that any witness be
be served with a copy of the Judge’s de- examined separately and apart from all
cision and to appeal and request oral other witnesses except those who may
argument before the Judicial Officer be parties to the proceeding.
with respect thereto in the manner (iii) After a witness called by the
provided in § 1.145. complainant has testified on direct ex-
(2) If the petitioner in the case of a amination, any other party may re-
Petition for Review of a determination quest and obtain the production of any
of responsibly connected status within statement, or part thereof, of such wit-
the meaning of 7 U.S.C. 499a(b)(9), hav- ness in the possession of the complain-
ing been duly notified, fails to appear ant which relates to the subject matter
43
as to which the witness has testified. show that such facts are erroneously
Such production shall be made accord- noticed.
ing to the procedures and subject to (7) Offer of proof. Whenever evidence
the definitions and limitations pre- is excluded by the Judge, the party of-
scribed in the Jencks Act (18 U.S.C. fering such evidence may make an
3500). offer of proof, which shall be included
(iv) Evidence which is immaterial, ir- in the transcript or recording. The
relevant, or unduly repetitious, or offer of proof shall consist of a brief
which is not of the sort upon which re- statement describing the evidence ex-
sponsible persons are accustomed to cluded. If the evidence consists of a
rely, shall be excluded insofar as prac- brief oral statement, it shall be in-
ticable. cluded in the transcript or recording in
(2) Objections. (i) If a party objects to
toto. If the evidence consists of an ex-
the admission of any evidence or to the
hibit, it shall be marked for identifica-
limitation of the scope of any examina-
tion and inserted in the hearing record.
tion or cross-examination or to any
In either event, the evidence shall be
other ruling of the Judge, the party
shall state briefly the grounds of such considered a part of the transcript or
objection, whereupon an automatic ex- recording and hearing record if the Ju-
ception will follow if the objection is dicial Officer, upon appeal, decides the
overruled by the Judge. Judge’s ruling excluding the evidence
(ii) Only objections made before the was erroneous and prejudicial. If the
Judge may subsequently be relied upon Judicial Officer decides the Judge’s
in the proceeding. ruling excluding the evidence was erro-
(3) Depositions. The deposition of any neous and prejudicial and that it would
witness shall be admitted in the man- be inappropriate to have such evidence
ner provided in and subject to the pro- considered a part of the hearing record,
visions of § 1.148. the Judicial Officer may direct that
(4) Exhibits. Unless the Judge finds the hearing be reopened to permit the
that the furnishing of copies is imprac- taking of such evidence or for any
ticable, four copies of each exhibit other purpose in connection with the
shall be filed with the Judge: Provided, excluded evidence.
That, where there are more than two (i) Transcript or recording. (1) Hearings
parties in the proceeding, an additional to be conducted by telephone shall be
copy shall be filed for each additional recorded verbatim by electronic re-
party. A true copy of an exhibit may be cording device. Hearings conducted by
substituted for the original. audio-visual telecommunication or the
(5) Official records or documents. An of- personal attendance of any individual
ficial government record or document who is expected to participate in the
or entry therein, if admissible for any hearing shall be transcribed, unless the
purpose, shall be admissible in evi- Judge finds that recording the hearing
dence without the production of the
verbatim would expedite the pro-
person who made or prepared the same,
ceeding and the Judge orders the hear-
and shall be prima facie evidence of the
ing to be recorded verbatim. The Judge
relevant facts stated therein. Such
shall certify that to the best of his or
record or document shall be evidenced
by an official publication thereof or by her knowledge and belief any recording
a copy certified by a person having made pursuant to this paragraph with
legal authority to make such certifi- exhibits that were accepted into evi-
cation. dence is the record of the hearing.
(6) Official notice. Official notice shall (2) If a hearing is recorded verbatim,
be taken of such matters as are judi- a party requests the transcript of a
cially noticed by the courts of the hearing or part of a hearing, and the
United States and of any other matter Judge determines that the disposition
of technical, scientific, or commercial of the proceeding would be expedited
by a transcript of the hearing or part
fact of established character: Provided,

That the parties shall be given ade- of a hearing, the Judge shall order the
quate notice of matters so noticed, and verbatim transcription of the recording
shall be given adequate opportunity to as requested by the party.
44
(3) Recordings or transcripts of hear- decision shall be the date the oral deci-
ings shall be made available to any sion was announced.
person at actual cost of duplication. (3) If the decision is in writing, it
shall be filed with the Hearing Clerk
and served upon the parties as provided
8455, Feb. 14, 1995; 61 FR 11504, Mar. 21, 1996;
68 FR 6340, Feb. 7, 2003] in § 1.147.
(4) The Judge’s decision shall become
§ 1.142 Post-hearing procedure. final and effective without further pro-
ceedings 35 days after the issuance of
(a) Corrections to transcript or record- the decision, if announced orally at the
ing. (1) Within the period of time fixed hearing, or if the decision is in writing,
by the Judge, any party may file a mo- 35 days after the date of service thereof
tion proposing corrections to the tran- upon the respondent, unless there is an
script or recording. appeal to the Judicial Officer by a
(2) Unless a party files such a motion party to the proceeding pursuant to
in the manner prescribed, the tran- § 1.145; Provided, however, that no deci-
script or recording shall be presumed, sion shall be final for purposes of judi-
except for obvious typographical er- cial review except a final decision of
rors, to be a true, correct, and com- the Judicial Officer upon appeal.
plete transcript or recording of the tes-
timony given at the hearing and to
7177, Mar. 7, 1988; 60 FR 8456, Feb. 14, 1995; 68
contain an accurate description or ref- FR 6340, Feb. 7, 2003]
erence to all exhibits received in evi-
dence and made part of the hearing § 1.143 Motions and requests.
record, and shall be deemed to be cer- (a) General. All motions and requests
tified without further action by the shall be filed with the Hearing Clerk,
Judge. and served upon all the parties, except
(3) As soon as practicable after the (1) requests for extensions of time pur-
close of the hearing and after consider- suant to § 1.147, (2) requests for sub-
ation of any timely objections filed as poenas pursuant to § 1.149, and (3) mo-
to the transcript or recording, the tions and requests made on the record
Judge shall issue an order making any during the oral hearing. The Judge
corrections to the transcript or record- shall rule upon all motions and re-
ing which the Judge finds are war- quests filed or made prior to the filing
ranted, which corrections shall be en- of an appeal of the Judge’s decision
tered onto the original transcript or re- pursuant to § 1.145, except motions di-
cording by the Hearing Clerk (without rectly relating to the appeal. There-
obscuring the original text). after, the Judicial Officer will rule on
(b) Proposed findings of fact, conclu- any motions and requests, as well as
sions, orders, and briefs. Prior to the the motions directly relating to the ap-
Judge’s decision, each party shall be peal.
afforded a reasonable opportunity to (b) Motions entertained. (1) Any mo-
submit for consideration proposed find- tion will be entertained other than a
ings of fact, conclusions, order, and motion to dismiss on the pleading.
brief in support thereof. A copy of each (2) All motions and request con-
such document filed by a party shall be cerning the complaint must be made
served upon each of the other parties. within the time allowed for filing an
(c) Judge’s decision. (1) The Judge answer.
may, upon motion of any party or in (c) Contents. All written motions and
his or her own discretion, issue a deci- requests shall state the particular
sion orally at the close of the hearing, order, ruling, or action desired and the
or within a reasonable time after the grounds therefor.
closing of the hearing. (d) Response to motions and requests.
(2) If the decision is announced oral- Within 20 days after service of any
ly, a copy thereof, excerpted from the written motion or request, or within
transcript or recording, shall be fur- such shorter or longer period as may be

nished to the parties by the Hearing fixed by the Judge or the Judicial Offi-
Clerk. Irrespective of the date such cer, an opposing party may file a re-
copy is mailed, the issuance date of the sponse to the motion or request. The
45
other party shall have no right to reply and other documentary evidence at the
to the response; however, the Judge or hearing;
the Judicial Officer, in the Judge’s or (5) Summon and examine witnesses
the Judicial Officer’s discretion, may and receive evidence at the hearing;
order that a reply be filed. (6) Take or order the taking of depo-
(e) Certification to the judicial officer. sitions as authorized under these rules;
The submission or certification of any (7) Admit or exclude evidence;
motion, request, objection, or other (8) Hear oral argument on facts or
question to the Judicial Officer prior to law;
the filing of an appeal pursuant to (9) Require each party to provide all
§ 1.145 shall be made by and in the dis- other parties and the Judge with a
cretion of the Judge. The Judge may copy of any exhibit that the party in-
either rule upon or certify the motion, tends to introduce into evidence prior
request, objection, or other question to to any hearing to be conducted by tele-
the Judicial Officer, but not both. phone or audio-visual telecommuni-
cation;
30673, July 27, 1990; 68 FR 6340, Feb. 7, 2003] (10) Require each party to provide all
other parties with a copy of any docu-
§ 1.144 Judges. ment that the party intends to use to
examine a deponent prior to any depo-
(a) Assignment. No Judge shall be as-
sition to be conducted by telephone or
signed to serve in any proceeding who
(1) has any pecuniary interest in any audio-visual telecommunication;
(11) Require that any hearing to be
matter or business involved in the pro-
ceeding, (2) is related within the third conducted by telephone or audio-visual
degree by blood or marriage to any telecommunication be conducted at lo-
party to the proceeding, or (3) has any cations at which the parties and the
conflict of interest which might impair Judge are able to transmit and receive
the Judge’s objectivity in the pro- documents during the hearing;
(12) Require that any deposition to be
ceeding.
(b) Disqualification of Judge. (1) Any conducted by telephone or audio-visual
party to the proceeding may, by mo- telecommunication be conducted at lo-
tion made to the Judge, request that cations at which the parties are able to
the Judge withdraw from the pro- transmit and receive documents during
ceeding because of an alleged disquali- the deposition;
(13) Do all acts and take all measures
fying reason. Such motion shall set
necessary for the maintenance of order,
forth with particularity the grounds of
including the exclusion of contuma-
alleged disqualification. The Judge
cious counsel or other persons; and
may then either rule upon or certify
(14) Take all other actions authorized
the motion to the Secretary, but not
under these rules.
both.
(d) Who may act in the absence of the
(2) A Judge shall withdraw from any
Judge. In case of the absence of the
proceeding for any reason deemed by
Judge or the Judge’s inability to act,
the Judge to be disqualifying.
the powers and duties to be performed
(c) Powers. Subject to review as pro-
by the Judge under these rules of prac-
vided in this subpart, the Judge, in any
tice in connection with any assigned
assigned proceeding, shall have power
proceeding may, without abatement of
to:
(1) Rule upon motions and requests; the proceeding unless otherwise di-
(2) Set the time, place, and manner of rected by the Chief Judge, be assigned
a conference and the hearing, adjourn to any other Judge.
the hearing, and change the time, [42 FR 743, Jan. 4, 1977, as amended at 60 FR
place, and manner of the hearing; 8456, Feb. 14, 1995; 68 FR 6340, Feb. 7, 2003]
(3) Administer oaths and affirma-
tions; § 1.145 Appeal to Judicial Officer.
(4) Issue subpoenas as authorized by (a) Filing of petition. Within 30 days
the statute under which the proceeding after receiving service of the Judge’s
is conducted, requiring the attendance decision, if the decision is a written de-
and testimony of witnesses and the cision, or within 30 days after issuance
production of books, contracts, papers, of the Judge’s decision, if the decision
46
is an oral decision, a party who dis- scribed time for filing such appeal, an
agrees with the decision, any part of opportunity for oral argument before
the decision, or any ruling by the the Judicial Officer. Within the time
Judge or who alleges any deprivation allowed for filing a response, appellee
of rights, may appeal the decision to may file a request in writing for oppor-
the Judicial Officer by filing an appeal tunity for such an oral argument. Fail-
petition with the Hearing Clerk. As ure to make such request in writing,
provided in § 1.141(h)(2), objections re- within the prescribed time period, shall
garding evidence or a limitation re- be deemed a waiver of oral argument.
garding examination or cross-examina- The Judicial Officer may grant, refuse,
tion or other ruling made before the or limit any request for oral argument.
Judge may be relied upon in an appeal. Oral argument shall not be transcribed
Each issue set forth in the appeal peti- unless so ordered in advance by the Ju-
tion and the arguments regarding each dicial Officer for good cause shown
issue shall be separately numbered; upon request of a party or upon the Ju-
shall be plainly and concisely stated; dicial Officer’s own motion.
and shall contain detailed citations to (e) Scope of argument. Argument to be
the record, statutes, regulations, or au- heard on appeal, whether oral or on
thorities being relied upon in support brief, shall be limited to the issues
of each argument. A brief may be filed raised in the appeal or in the response
in support of the appeal simulta- to the appeal, except that if the Judi-
neously with the appeal petition. cial Officer determines that additional
(b) Response to appeal petition. Within issues should be argued, the parties
20 days after the service of a copy of an shall be given reasonable notice of such
appeal petition and any brief in sup- determination, so as to permit prepara-
port thereof, filed by a party to the tion of adequate arguments on all
proceeding, any other party may file issues to be argued.
with the Hearing Clerk a response in
(f) Notice of argument; postponement.
support of or in opposition to the ap-
The Hearing Clerk shall advise all par-
peal and in such response any relevant
ties of the time and place at which oral
issue, not presented in the appeal peti-
argument will be heard. A request for
tion, may be raised.
postponement of the argument must be
(c) Transmittal of record. Whenever an
made by motion filed a reasonable
appeal of a Judge’s decision is filed and
amount of time in advance of the date
a response thereto has been filed or
fixed for argument.
time for filing a response has expired,
the Hearing Clerk shall transmit to the (g) Order of argument. The appellant
Judicial Officer the record of the pro- is entitled to open and conclude the ar-
ceeding. Such record shall include: the gument.
pleadings; motions and requests filed (h) Submission on briefs. By agreement
and rulings thereon; the transcript or of the parties, an appeal may be sub-
recording of the testimony taken at mitted for decision on the briefs, but
the hearing, together with the exhibits the Judicial Officer may direct that
filed in connection therewith; any doc- the appeal be argued orally.
uments or papers filed in connection (i) Decision of the judicial officer on ap-
with a prehearing conference; such pro- peal. As soon as practicable after the
posed findings of fact, conclusions, and receipt of the record from the Hearing
orders, and briefs in support thereof, as Clerk, or, in case oral argument was
may have been filed in connection with had, as soon as practicable thereafter,
the proceeding; the Judge’s decision; the Judicial Officer, upon the basis of
such exceptions, statements of objec- and after due consideration of the
tions and briefs in support thereof as record and any matter of which official
may have been filed in the proceeding; notice is taken, shall rule on the ap-
and the appeal petition, and such briefs peal. If the Judicial Officer decides
in support thereof and responses there- that no change or modification of the
to as may have been filed in the pro- Judge’s decision is warranted, the Ju-
ceeding. dicial Officer may adopt the Judge’s
(d) Oral argument. A party bringing decision as the final order in the pro-
an appeal may request, within the pre- ceeding, preserving any right of the
47
party bringing the appeal to seek judi- section, any party to the proceeding
cial review of such decision in the may file with the Hearing Clerk a reply
proper forum. A final order issued by thereto. As soon as practicable there-
the Judicial Officer shall be filed with after, the Judge or the Judicial Officer,
the Hearing Clerk. Such order may be as the case may be, shall announce the
regarded by the respondent as final for determination whether to grant or
purposes of judicial review without fil- deny the petition. The decision of the
ing a petition for rehearing, reargu- Judicial Officer shall automatically be
ment, or reconsideration of the deci- stayed pending the determination to
sion of the Judicial Officer. grant or deny a timely petition. Such
decision shall not be final for purposes
8456, Feb. 14, 1995; 68 FR 6341, Feb. 7, 2003] of judicial review until the petition is
denied or the decision is affirmed or
§ 1.146 Petitions for reopening hear- modified pursuant to the petition and
ing; for rehearing or reargument of the time for judicial review shall begin
proceeding; or for reconsideration to run upon the filing of such final ac-
of the decision of the Judicial Offi- tion on the petition. In the event that
cer. any such petition is granted, the appli-
(a) Petition requisite—(1) Filing; serv- cable rules of practice, as set out else-
ice; ruling. A petition for reopening the where herein, shall be followed. A per-
hearing to take further evidence, or for son filing a petition under this section
rehearing or reargument of the pro- shall be regarded as the moving party,
ceeding, or for reconsideration of the although such person shall be referred
decision of the Judicial Officer, must to as the complainant or respondent,
be made by petition filed with the depending upon the designation in the
Hearing Clerk. Every such petition original proceeding.
must state specifically the grounds re-
lied upon. Any such petition filed prior § 1.147 Filing; service; extensions of
to the filing of an appeal of the Judge’s time; and computation of time.
decision pursuant to § 1.145 shall be (a) Filing; number of copies. Except as
ruled upon by the Judge, and any such otherwise provided in this section, all
petition filed thereafter shall be ruled documents or papers required or au-
upon by the Judicial Officer. thorized by the rules in this part to be
(2) Petition to reopen hearing. A peti- filed with the Hearing Clerk shall be
tion to reopen a hearing to take fur- filed in quadruplicate: Provided, That
ther evidence may be filed at any time where there are more than two parties
prior to the issuance of the decision of in the proceeding, an additional copy
the Judicial Officer. Every such peti- shall be filed for each additional party.
tion shall state briefly the nature and Any document or paper required or au-
purpose of the evidence to be adduced, thorized under the rules in this part to
shall show that such evidence is not be filed with the Hearing Clerk shall,
merely cumulative, and shall set forth during the course of an oral hearing, be
a good reason why such evidence was filed with the Judge.
not adduced at the hearing. (b) Who shall make service. Copies of
(3) Petition to rehear or reargue pro- all such documents or papers required
ceeding, or to reconsider the decision of or authorized by the rules in this part
the Judicial Officer. A petition to re- to be filed with the Hearing Clerk shall
hear or reargue the proceeding or to re- be served upon the parties by the Hear-
consider the decision of the Judicial ing Clerk, or by some other employee
Officer shall be filed within 10 days of the Department, or by a U.S. Mar-
after the date of service of such deci- shal or deputy marshal.
sion upon the party filing the petition. (c) Service on party other than the Sec-
Every petition must state specifically retary. (1) Any complaint or other docu-
the matters claimed to have been erro- ment initially served on a person to
neously decided and alleged errors make that person a party respondent
must be briefly stated. in a proceeding, proposed decision and

(b) Procedure for disposition of peti- motion for adoption thereof upon fail-
tions. Within 20 days following the serv- ure to file an answer or other admis-
ice of any petition provided for in this sion of all material allegations of fact
48
contained in a complaint, initial deci- or agent thereof, shall be deemed to be

sion, final decision, appeal petition received by such person on the date of:
filed by the Department, or other docu- (1) Delivery by certified mail or reg-
ment specifically ordered by the Judge istered mail to the last known prin-
to be served by certified or registered cipal place of business of such person,
mail, shall be deemed to be received by last known principal place of business
any party to a proceeding, other than of the attorney or representative of
the Secretary or agent thereof, on the record of such person, or last known
date of delivery by certified or reg- residence of such person if an indi-
istered mail to the last known prin- vidual;
cipal place of business of such party, (2) Delivery other than by mail to
last known principal place of business any responsible individual at, or leav-
of the attorney or representative of ing in a conspicuous place at, any such
record of such party, or last known res- location; or
idence of such party if an individual, (3) Delivery to such party if an indi-
Provided that, if any such document or vidual, to an officer or director of such
paper is sent by certified or registered party if a corporation, or to a member
mail but is returned marked by the of such party if a partnership, at any
postal service as unclaimed or refused, location.
it shall be deemed to be received by (e) Proof of service. Any of the fol-
such party on the date of remailing by lowing, in the possession of the Depart-
ordinary mail to the same address. ment, showing such service, shall be
(2) Any document or paper, other deemed to be accurate:
than one specified in paragraph (c)(1) of (1) A certified or registered mail re-
this section or written questions for a ceipt returned by the postal service
deposition as provided in § 1.148(d)(2), with a signature;
shall be deemed to be received by any (2) An official record of the postal
party to a proceeding, other than the service;
Secretary or agent thereof, on the date (3) An entry on a docket record or a
of mailing by ordinary mail to the last copy placed in a docket file by the
known principal place of business of Hearing Clerk of the Department or by
such party, last known principal place an employee of the Hearing Clerk in
of business of the attorney or rep- the ordinary course of business;
resentative of record of such party, or (4) A certificate of service, which
last known residence of such party if need not be separate from and may be
an individual. incorporated in the document or paper
(3) Any document or paper served of which it certifies service, showing
other than by mail, on any party to a the method, place and date of service
proceeding, other than the Secretary in writing and signed by an individual
or agent thereof, shall be deemed to be with personal knowledge thereof, Pro-
received by such party on the date of: vided that such certificate must be
(i) Delivery to any responsible indi- verified by oath or declaration under
vidual at, or leaving in a conspicuous penalty of perjury if the individual cer-
place at, the last known principal place tifying service is not a party to the
of business of such party, last known proceeding in which such document or
principal place of business of the attor- paper is served, an attorney or rep-
ney or representative of record of such resentative of record for such a party,
party, or last known residence of such or an official or employee of the United
party if an individual, or States or of a State or political sub-
(ii) Delivery to such party if an indi- division thereof.
vidual, to an officer or director of such (f) Extensions of time. The time for the
party if a corporation, or to a member filing of any document or paper re-
of such party if a partnership, at any quired or authorized under the rules in
location. this part to be filed may be extended
(d) Service on another. Any subpoena, by the Judge or the Judicial Officer as
written questions for a deposition provided in § 1.143, if, in the judgment

under § 1.148(d)(2), or other document or of the Judge or the Judicial Officer, as
paper, served on any person other than the case may be, there is good reason
a party to a proceeding, the Secretary for the extension. In all instances in
49
which time permits, notice of the re- sition may be ordered. The order shall
quest for extension of the time shall be be filed with the Hearing Clerk and
given to the other party with oppor- shall state:
tunity to submit views concerning the (i) The time of the deposition;
request. (ii) The place of the deposition;
(g) Effective date of filing. Any docu- (iii) The manner of the deposition
ment or paper required or authorized
(telephone, audio-visual telecommuni-
under the rules in this part to be filed
cation, or personal attendance of those
shall be deemed to be filed at the time
when it reaches the Hearing Clerk; or, who are to participate in the deposi-
if authorized to be filed with another tion);
officer or employee of the Department (iv) The name of the officer before
it shall be deemed to be filed at the whom the deposition is to be made; and
time when it reaches such officer or (v) The name of the deponent. The of-
employee. ficer and the time, place, and manner
(h) Computation of time. Saturdays, need not be the same as those sug-
Sundays and Federal holidays shall be gested in the motion for the deposition.
included in computing the time al- (2) The deposition shall be conducted
lowed for the filing of any document or by telephone unless the Judge deter-
paper: Provided, That, when such time mines that conducting the deposition
expires on a Saturday, Sunday, or Fed- by audio-visual telecommunication:
eral holiday, such period shall be ex- (i) Is necessary to prevent prejudice
tended to include the next following to a party;
business day.
(ii) Is necessary because of a dis-
[42 FR 743, Jan. 4, 1977, as amended at 55 FR ability of any individual expected to
30674, July 27, 1990; 60 FR 8456, Feb. 14, 1995; participate in the deposition; or
68 FR 6341, Feb. 7, 2003]
(iii) Would cost less than conducting
§ 1.148 Depositions. the deposition by telephone. If the
Judge determines that a deposition
(a) Motion for taking deposition. Upon
conducted by audio-visual tele-
the motion of a party to the pro-
ceeding, the Judge may, at any time communication would measurably in-
after the filing of the complaint, order crease the United States Department
the taking of testimony by deposition. of Agriculture’s cost of conducting the
The Motion shall be in writing, shall be deposition, the deposition shall be con-
filed with the Hearing Clerk, and shall ducted by personal attendance of any
set forth: individual who is expected to partici-
(1) The name and address of the pro- pate in the deposition or by telephone.
posed deponent; (3) If the deposition is not conducted
(2) The name and address of the per- by telephone, the deposition shall be
son (referred to hereafter in this sec- conducted by audio-visual tele-
tion as the ‘‘officer’’) qualified under communication unless the Judge deter-
the regulations in this part to take mines that conducting the deposition
depositions, before whom the proposed by personal attendance of any indi-
examination is to be made; vidual who is expected to participate in
(3) The proposed time and place of the deposition:
the examination, which shall be at (i) Is necessary to prevent prejudice
least 15 days after the date of the mail-
to a party;
ing of the motion; and
(4) The reasons why such deposition (ii) Is necessary because of a dis-
should be taken, which shall be solely ability of any individual expected to
for the purpose of eliciting testimony participate in the deposition; or
which otherwise might not be available (iii) Would cost less than conducting
at the time of hearing, for uses as pro- the deposition by telephone or audio-
vided in paragraph (g) of this section. visual telecommunication.
(c) Qualifications of officer. The depo-
(b) Judge’s order for taking deposition.

(1) If the Judge finds that the testi- sition shall be made before the Judge
mony may not be otherwise available or before an officer authorized by the
at the hearing, the taking of the depo- law of the United States or by the law
50
of the place of the examination to ad- timony given in the deposition pro-
minister oaths, or before an officer au- ceeding and to contain an accurate de-
thorized by the Secretary to admin- scription or reference to all exhibits in
ister oaths. connection therewith, and shall be
(d) Procedure on examination. (1) The deemed to be certified correct without
deponent shall be examined under oath further procedure.
or affirmation and shall be subject to (3) At any time prior to use of the
cross-examination. Objections to ques- deposition in accordance with para-
tions or documents shall be in short graph (g) of this section and after con-
form, stating the grounds of objections sideration of any objections filed there-
relied upon. The questions proponded, to, the Judge may issue an order mak-
together with all objections made (but ing any corrections in the transcript or
not including argument or debate), recording which the Judge finds are
shall be recorded verbatim. In lieu of warranted, which corrections shall be
oral examination, parties may trans- entered onto the original transcript or
mit written questions to the officer recording by the Hearing Clerk (with-
prior to the examination and the offi- out obscuring the original text).
cer shall propound such questions to (g) Use of deposition. A deposition or-
the deponent. dered and taken in accordance with the
(2) The applicant shall arrange for provisions of this section may be used
the examination of the witness either in a proceeding under these rules if the
by oral examination, or by written Judge finds that the evidence is other-
questions upon agreement of the par- wise admissible and (1) that the wit-
ties or as directed by the Judge. If the ness is dead; (2) that the witness is un-
examination is conducted by means of able to attend or testify because of age,
written questions, copies of the appli- sickness, infirmity, or imprisonment;
cant’s questions must be received by (3) that the party offering the deposi-
the other party to the proceeding and tion has endeavored to procure the at-
the officer at least 10 days prior to the tendance of the witness by subpoena,
date set for the examination unless but has been unable to do so; or (4) that
otherwise agreed, and any cross ques- such exceptional circumstances exist
tions of a party other than the appli- as to make it desirable, in the interests
cant must be received by the applicant of justice, to allow the deposition to be
and the officer at any time prior to the used. If the party upon whose motion
time of the examination. the deposition was taken refuses to
(e) Certification by officer. The officer offer it in evidence, any other party
shall certify on the deposition that the may offer the deposition or any part
deponent was duly sworn and that the thereof in evidence. If only part of a
deposition is a true record of the depo- deposition is offered in evidence by a
nent’s testimony. The officer shall party, an adverse party may require
then securely seal the deposition, to- the introduction of any other part
gether with one copy thereof (unless which ought in fairness to be consid-
there are more than two parties in the ered with the part introduced, and any
proceeding, in which case there should party may introduce any other parts.
be another copy for each additional
party), in an envelope and mail the [42 FR 743, Jan. 4, 1977, as amended at 55 FR
same by registered or certified mail to 30674, July 27, 1990; 60 FR 8456, Feb. 14, 1995;
68 FR 6341, Feb. 7, 2003]
the Hearing Clerk.
(f) Corrections to the transcript or re-
§ 1.149 Subpoenas. 3
cording. (1) At any time prior to the
hearing, any party may file a motion (a) Issuance of subpoenas. The attend-
proposing corrections to the transcript ance and testimony of witnesses and
or recording of the deposition. the production of documentary evi-
(2) Unless a party files such a motion dence from any place in the United
in the manner prescribed, the tran- States on behalf of any party to the
script or recording shall be presumed,

except for obvious typographical er- 3 This section relates only to subpoenas for
rors, to be a true, correct, and com- the stated purpose and has no relevance with
plete transcript or recording of the tes- respect to investigatory subpoenas.
51
proceeding may be required by sub- neys have been given notice and an op-
poena at any designated place of hear- portunity to participate. A memo-
ing if authorized by the statute under randum of any such discussion shall be
which the proceeding is conducted. included in the record.
Subpoenas shall be issued by the Judge (b) No interested person shall make
upon a reasonable showing by the ap- or knowingly cause to be made to the
plicant of the grounds and necessity Judge or Judicial Officer an ex parte
thereof; and with respect to subpoenas communication relevant to the merits
for the production of documents, the of the proceeding.
request shall also show their com- (c) If the Judge or the Judicial Offi-
petency, relevancy, and materiality. cer receives an ex parte communication
All requests for subpoenas shall be in in violation of this section, the one
writing, unless waived by the Judge for who receives the communication shall
good cause shown. Except for good place in the public record of the pro-
cause shown, requests for subpoenas
ceeding:
shall be received by the Judge at least
10 days prior to the date set for the (1) All such written communications;
hearing. (2) Memoranda stating the substance
(b) Service of subpoenas. Subpoenas of all such oral communications; and
may be served by any person not less (3) All written responses, and memo-
than 18 years of age. The party at randa stating the substance of all oral
whose instance a subpoena is issued responses thereto.
shall be responsible for service thereof. (d) Upon receipt of a communication
Subpoenas shall be served as provided knowingly made or knowingly caused
in § 1.147. to be made by a party in violation of
this section, the Judge or Judicial Offi-
30674, July 27, 1990; 60 FR 8457, Feb. 14, 1995; cer may, to the extent consistent with
68 FR 6341, Feb. 7, 2003] the interests of justice and the policy
of the underlying statute, require the
§ 1.150 Fees of witnesses. party to show cause why his claim or
Witnesses summoned under these interest in the proceeding should not
rules of practice shall be paid the same be dismissed, denied, disregarded, or
fees and mileage that are paid wit- otherwise adversely affected on ac-
nesses in the courts of the United count of such violation.
States, and witnesses whose deposi- (e) To the extent consistent with the
tions are taken, and the officer taking interests of justice and the policy of
the same, shall be entitled to the same the underlying statute, a violation of
fees as are paid for like services in the this section shall be sufficient grounds
courts of the United States. Fees shall for a decision adverse to the party who
be paid by the party at whose instance knowingly commits a violation of this
the witness appears or the deposition is section or who knowingly causes such
taken. a violation to occur.
(f) For purposes of this section ex
§ 1.151 Ex parte communications. parte communication means an oral or
(a) At no stage of the proceeding be- written communication not on the pub-
tween its institution and the issuance lic record with respect to which reason-
of the final decision shall the Judge or able prior notice to all parties is not
Judicial Officer discuss ex parte the given, but it shall not include requests
merits of the proceeding with any per- for status reports on any matter or the
son who is connected with the pro- proceeding.
ceeding in an advocative or in an inves-
tigative capacity, or with any rep-
resentative of such person: Provided,
Subpart I—Rules of Practice Gov-
That procedural matters shall not be erning Cease and Desist Pro-
included within this limitation; and ceedings Under Section 2 of
the Capper-Volstead Act
Provided further, That the Judge or Ju-

dicial Officer may discuss the merits of
the case with such a person if all par- AUTHORITY: 7 U.S.C. 291, 292; 7 CFR 2.35,
ties to the proceeding, or their attor- 2.41.
52
SOURCE: 45 FR 6587, Jan. 29, 1980, unless Judge means any Administrative Law
otherwise noted. Judge appointed pursuant to 5 U.S.C.
3105 (the Administrative Procedure
§ 1.160 Scope and applicability of rules
in this part. Act) and assigned to the proceeding in-
volved.
The rules of practice in this part
Judicial Officer means an official of
shall be applicable to cease and desist
the United States Department of Agri-
proceedings, initiated upon complaint
culture delegated authority by the Sec-
by the Secretary of Agriculture, pursu-
ant to section 2 of the Capper-Volstead retary, pursuant to the Act of April 4,
Act. 1940 (7 U.S.C. 450c–450g) and Reorga-
nization Plan No. 2 of 1953 (5 U.S.C.
§ 1.161 Definitions. App. (1988)), to perform the function in-
As used in this part, words in the sin- volved (§ 2.35(a) of this chapter), or the
gle form shall be deemed to import the Secretary if he or she exercises the au-
plural, and vice versa, as the case may thority so delegated.
require. The following terms shall be Respondent means the cooperative as-
construed, respectively, to mean: sociations, or association, against
Act means the Capper-Volstead Act, whom a complaint has been issued.
approved February 18, 1922, 42 Stat. 388, [45 FR 6587, Jan. 29, 1980, as amended at 60
7 U.S.C. 291, 292. FR 8457, Feb. 14, 1995]
Association means a cooperative asso-
ciation, a federation of cooperatives, or § 1.162 Institution of proceedings.
other association of agricultural pro-
ducers, as defined in section 1 of the (a) Filing of information. Any person
Act. having information that any agricul-
Complainant or Secretary means the tural association, as defined in the
Secretary of Agriculture, United Capper-Volstead Act, is engaged in any
States Department of Agriculture, or practice which monopolizes or re-
any officer(s) or employee(s) to whom strains trade in interstate or foreign
authority has heretofore been dele- commerce to such an extent that the
gated, or whom authority may here- price of any agricultural product is un-
after be delegated, to act in his or her duly enhanced by reason thereof, may
stead. submit such information to the Sec-
Complaint means a formal complaint retary. Such information shall be in
instituted by the Secretary of Agri- writing and shall contain a complete
culture requiring respondent to show statement of facts detailing the price
cause why an order should not be made enhancement and the practices alleged.
directing it to cease and desist from (b) Consideration of information. The
acts of monopolization or restraint of Secretary shall consider all informa-
trade, which result in undue price en- tion filed under paragraph (a) of this
hancement. section, and any other information
Decision means: (1) the Judge’s deci-
which the Secretary may obtain relat-
sion, and includes (i) findings and con-
ing to a violation of section 2 of the
clusions and the reasons or basis there-
Act. If the Secretary finds that there is
for on all material issues of fact, law,
or discretion, (ii) order, and (iii) rul- reason to believe that any association
ings on proposed findings, conclusions monopolizes or restrains trade in inter-
and order submitted by the parties, and state or foreign commerce to such an
(2) the decision and order by the Judi- extent that the price of any agricul-
cial Officer upon an appeal of the tural product is unduly enhanced
Judge’s decision. thereby the Secretary shall cause a
Hearing means that part of the pro- complaint to be filed, requiring the as-
ceeding which involves the submission sociation to show cause why an order
of evidence before the Judge for the should not be made directing the asso-
ciation to cease and desist from such
record in the proceeding.

Hearing Clerk means the Hearing monopolization or restraint of trade.
Clerk, United States Department of The complaint shall be filed with the
Agriculture, Washington, DC 20250. Hearing Clerk, who shall assign to the
53
proceeding a docket number and effect § 1.166 Consent order.

service upon respondent. At any time, complainant and re-
[45 FR 6587, Jan. 29, 1980, as amended at 60 spondent may agree to the entry of a
FR 8457, Feb. 14, 1995] consent order. Such order shall be en-
tered by the Judge (prior to a decision)
§ 1.163 The complaint. or the Judicial Officer (after a decision
The complaint shall state briefly all by the Judge), and become effective on
allegations of fact which constitute a the date specified therein.
basis for the proceeding, and shall des- § 1.167 Conference.
ignate a time and place for the hearing
in the matter, which shall be at least (a) Purpose. Upon motion of a party
30 days after the service of the com- or upon the Judge’s own motion, the
plaint upon the respondent. Judge may direct the parties to attend
a conference when the Judge finds that
§ 1.164 Answer. the proceeding would be expedited by
discussions on matters of procedure
(a) Filing and service. Within 20 days and/or possible stipulations. The con-
after service of the complaint, or such ference may include discussions re-
other time as may be specified therein, garding:
the respondent shall file with the Hear- (1) Simplification of the issues;
ing Clerk, an answer, signed by the re- (2) Limitation of expert or other wit-
spondent or the respondent’s attorney. nesses;
The answer shall be served upon the (3) The orderly presentation of evi-
complainant by the Hearing Clerk. dence; and
(b) Contents. The answer shall clearly (4) Any other matters that may expe-
admit, deny, or offer an explanation in dite and aid in the disposition of the
response to each of the allegations of proceeding.
the complaint, and shall clearly set (b) Manner of the Conference. (1) The
forth any affirmative defense. conference shall be conducted by tele-
(c) Default. Failure to file an answer phone or correspondence unless the
shall constitute an admission of the al- Judge determines that conducting the
legations in the complaint, and may be conference by audio-visual tele-
the basis for a decision upon the pres- communication:
entation of a prima facie case by the (i) Is necessary to prevent prejudice
complainant. to a party;
(ii) Is necessary because of a dis-
[45 FR 6587, Jan. 29, 1980, as amended at 60 ability of any individual expected to
FR 8457, Feb. 14, 1995] participate in the conference; or
(iii) Would cost less than conducting
§ 1.165 Amendments. the conference by telephone or cor-
Amendments to the complaint may respondence. If the Judge determines
be made prior to the filing of an answer that a conference conducted by audio-
in which case the time for filing the visual telecommunication would meas-
answer shall be extended 20 days or for urably increase the United States De-
other time agreed to by the parties. partment of Agriculture’s cost of con-
After the answer is filed, amendments ducting the conference, the conference
to the complaint, or to the answer or shall be conducted by personal attend-
other pleading, may be made by agree- ance of any individual who is expected
ment of the parties or allowed at the to participate in the conference, by
discretion of the Judge. In case of an telephone, or by correspondence.
(2) If the conference is not conducted
amendment which significantly
by telephone or correspondence, the
changes the issues, the hearing shall,
conference shall be conducted by
on the request of a party, be postponed
audio-visual telecommunication unless
or adjourned for a reasonable period, if
the Judge determines that conducting

the Judge determines that such action the conference by personal attendance
is necessary to avoid prejudice to the of any individual who is expected to
party. participate in the conference:
54
(i) Is necessary to prevent prejudice reconsideration must be accompanied

to a party; by a memorandum in support of the
(ii) Is necessary because of a dis- motion stating the basis for the motion
ability of any individual expected to and the circumstances that require the
participate in the conference; or hearing to be conducted other than in
(iii) Would cost less than conducting accordance with the Judges’s notice.
the conference by audio-visual tele- (3) The hearing shall be conducted by
communication. audio-visual telecommunication unless
[60 FR 8457, Feb. 14, 1995] the Judge determines that conducting
the hearing by personal attendance of
§ 1.168 Procedure for hearing. any individual who is expected to par-
(a) Time and place. The oral hearing ticipate in the hearing:
shall be held at such time and place as (i) Is necessary to prevent prejudice
specified in the complaint, and not less to a party;
than 30 days after service thereof. The (ii) Is necessary because of a dis-
time and place of the hearing may be ability of any individual expected to
changed for good cause, by the Judge, participate in the hearing; or
upon motion of either complainant or (iii) Would cost less than conducting
respondent.
the hearing by audio-visual tele-
(b) Manner of hearing. (1) The Judge
communication. If the Judge deter-
shall file with the Hearing Clerk a no-
mines that a hearing conducted by
tice stating whether the hearing will
be conducted by telephone, audio-vis- audio-visual telecommunication would
ual telecommunication, or personal at- measurably increase the United States
tendance of any individual expected to Department of Agriculture’s cost of
attend the hearing and the Judge’s de- conducting the hearing, the hearing
termination regarding the manner of shall be conducted by personal attend-
hearing shall be made in accordance ance of any individual who is expected
with paragraphs (b)(3) and (b)(4) of this to participate in the hearing or by tele-
section. If any change in the manner of phone.
the hearing is made, the Judge shall (4) The Judge may, in his or her sole
file with the Hearing Clerk a notice of discretion or in response to a motion
the change, which notice shall be by a party to the proceeding, conduct
served on the parties, unless it is made the hearing by telephone if the Judge
during the course of an oral hearing finds that a hearing conducted by tele-
and made part of the transcript or re- phone:
cording, or actual notice is given to the (i) Would provide a full and fair evi-
parties. dentiary hearing;
(2)(i) Any party may move that the (ii) Would not prejudice any party;
hearing be conducted by telephone or and
personal attendance of any individual (iii) Would cost less than conducting
expected to attend the hearing rather
the hearing by audio-visual tele-
than by audio-visual telecommuni-
communication or personal attendance
cation. Any motion that the hearing be
of any individual who is expected to
conducted by telephone or personal at-
participate in the hearing.
tendance of any individual expected to
attend the hearing must be accom- (c) Appearances. The parties may ap-
panied by a memorandum in support of pear in person or by counsel or by
the motion stating the basis for the other representative. Persons who ap-
motion and the circumstances that re- pear as counsel or in a representative
quire the hearing to be conducted other capacity must conform to the stand-
than by audio-visual telecommuni- ards of ethical conduct required of
cation. practitioners before the courts of the
(ii) Within 10 days after the Judge United States.
issues a notice stating the manner in (d) Order of proceeding. Except as oth-
erwise may be agreed by the parties
which the hearing is to be conducted,

any party may move that the Judge re- and approved by the Judge, the com-
consider the manner in which the hear- plainant shall proceed first at the hear-
ing is to be conducted. Any motion for ing.
55
(e) Failure to appear. If respondent, part of the transcript or recording.

after being duly notified, fails to ap- Only objections made before the Judge
pear at the hearing, and no good cause may subsequently be relied upon in the
for such failure is established, com- proceeding.
plainant shall present a prime facie case (3) Official records or documents. An of-
on the matters denied in the answer. ficial record or document, if admissible
(f) Written statements of direct testi- for any purpose, shall be admissible in
mony. (1) Except as provided in para- evidence without the production of the
graph (f)(2) of this section, each party person who made or prepared the same,
must exchange with all other parties a and shall be prima facie evidence of the
written narrative verified statement of relevant facts stated therein. Such
the oral direct testimony that the record or document shall be evidenced
party will provide at any hearing to be by an official publication thereof, or by
conducted by telephone; the direct tes- a copy certified by a person having
timony of each employee or agent of legal authority to make such certifi-
the party that the party will call to cation.
provide oral direct testimony at any (4) Exhibits. Unless the Judge finds
hearing to be conducted by telephone; that the furnishing of multiple copies
and the direct testimony of each expert is impracticable, four copies of each ex-
witness that the party will call to prohibit shall be filed with the Judge un-
vide oral direct testimony at any hear- less the Judge finds that a greater or
ing to be conducted by telephone. The lesser number is desirable. A true copy
written direct testimony of witnesses of an exhibit may be substituted for
shall be exchanged by the parties at the original.
least 10 days prior to the hearing. The (5) Official notice. Official notice shall
oral direct testimony provided by a be taken of such matters as are judi-
witness at a hearing conducted by tele- cially noticed by the courts of the
phone will be limited to the presen- United States and of any other matter
tation of the written direct testimony, of technical, scientific, or commercial
unless the Judge finds that oral direct fact of established character: Provided,
testimony which is supplemental to That the opposing party shall be given
the written direct testimony would fur- adequate opportunity to show that
ther the public interest and would not such facts are erroneously noticed.
constitute surprise. (6) Offer of proof. Whenever evidence
(2) The parties shall not be required is deleted from the record, the party of-
to exchange testimony in accordance fering such evidence may make an
with this paragraph if the hearing is offer of proof, which shall be included
scheduled to begin less than 20 days in the transcript or recording. The
after the Judge’s notice stating the offer of proof shall consist of a brief
time of the hearing. statement describing the evidence ex-
(g) Evidence. (1) The testimony of wit- cluded. If the evidence consists of a
nesses at the hearing shall be upon brief oral statement or of an exhibit, it
oath or affirmation, transcribed or re- shall be inserted into the transcript or
corded verbatim, and subject to cross- recording in toto. In such event, it
examination. Evidence which is imma- shall be considered a part of the tran-
terial, irrelevant, or unduly repeti- script or recording and record if the
tious, or which is not of the sort upon Judicial Officer decides that the
which responsible persons are accus- Judge’s ruling in excluding the evi-
tomed to rely, shall be excluded insofar dence was erroneous and prejudicial.
as practicable. The Judge shall not allow the insertion
(2) Objections. If a party objects to of such excluded evidence in toto if the
the admission of any evidence or to the taking of such evidence will consume
limitation of the scope of any examina- considerable time at the hearing. In
tion or cross-examination, the party the latter event, if the Judicial Officer
shall briefly state the grounds of such decides that the Judge’s ruling exclud-
objections, whereupon an automatic ing the evidence was both prejudicial

exception will follow if the objection is and erroneous, the hearing may be re-
overruled by the Judge. The ruling of opened to permit the taking of such
the Judge on any objection shall be evidence.
56
(7) Affidavits. Affidavits may be sub- transcript or recording, the Judge may
mitted into evidence, in lieu of witness issue an order making any corrections
testimony, only to the extent, and in in the transcript or recording which
the manner agreed upon by the parties. the Judge finds are warranted, which
(h) Transcript or recording. (1) Hear- corrections shall be entered onto the
ings to be conducted by telephone shall original transcript or recording by the
be recorded verbatim by electronic re- Hearing Clerk (without obscurring the
cording device. Hearings conducted by original text).
audio-visual telecommunication or the (b) Proposed findings of fact, conclu-
personal attendance of any individual sions, order and briefs. The parties may
who is expected to participate in the file with the Hearing Clerk proposed
hearing shall be transcribed, unless the findings of fact, conclusions and orders
Judge finds that recording the hearing based solely upon the record and on
verbatim would expedite the pro- matters subject to official notice, and
ceeding and the Judge orders the hear- briefs in support thereof. The Judge
ing to be recorded verbatim. The Judge shall announce at the hearing a defi-
shall certify that to the best of his or nite period of time within which these
her knowledge and belief any recording documents may be filed.
made pursuant to this paragraph with (c) Judge’s decision. The Judge, within
exhibits that were accepted into evi- a reasonable time after the termi-
dence is the record of the hearing. nation of the period allowed for the fil-
(2) If a hearing is recorded verbatim, ing of proposed findings of fact, conclu-
a party requests the transcript of a sions and order, and briefs in support
hearing or part of a hearing, and the thereof, shall prepare, upon the basis of
Judge determines that the disposition the record and matters officially no-
of the proceeding would be expedited ticed, and shall file with the Hearing
by a transcript of the hearing or part Clerk, the Judge’s decision, a copy of
of a hearing, the Judge shall order the which shall be served by the Hearing
verbatim transcription of the recording Clerk upon each of the parties. Such
as requested by the party. decision shall become final and effec-
(3) Recordings or transcripts of hear- tive without further proceedings 35
ings shall be made available to any days after the date of service thereof
person at actual cost of duplication. upon the respondent, unless there is an
appeal to the Judicial Officer by a
[45 FR 6587, Jan. 29, 1980, as amended at 60
party to the proceeding pursuant to
FR 8457, Feb. 14, 1995]
§ 1.170: Provided, That no decision shall
§ 1.169 Post-hearing procedure and de- be final for purposes of a request for
cision. Judicial Review, as provided in
(a) Corrections to transcript or record- § 1.175(a), except a final decision of the
ing. (1) At any time, but not later than Judicial Officer on appeal.
the time fixed for filing proposed find- [45 FR 6587, Jan. 29, 1980, as amended at 60
ings of fact, conclusions and order, or FR 8458, Feb. 14, 1995]
briefs, as the case may be, any party
may file a motion proposing correc- § 1.170 Appeal to the Judicial Officer.
tions to the transcript or recording. (a) Filing of petition. Within 30 days
(2) Unless a party files such a motion after receiving service of the Judge’s
in the manner prescribed, the tran- decision, a party who disagrees with
script or recording shall be presumed, the decision, or any part thereof, or
except for obvious typographical er- any ruling by the Judge or any alleged
rors, to be a true, correct, and com- deprivation of rights, may appeal such
plete transcript or recording of the tes- decision to the Judicial Officer by fil-
timony given at the hearing and to ing an appeal petition with the Hearing
contain an accurate description or ref- Clerk. As provided in § 1.168(g)(2), objec-
erence to all exhibits received in evi- tions regarding evidence or a limita-
dence and made part of the hearing tion regarding examination or cross-ex-
record. amination or other ruling made before

(3) At any time prior to the filing of the Judge may be relied upon in an ap-
the Judge’s decision and after consider- peal. Each issue set forth in the peti-
ation of any objections filed as to the tion, and the arguments thereon, shall
57
be separately numbered; shall be plain- upon request of a party or upon the Ju-
ly and concisely stated; and shall con- dicial Officer’s own motion.
tain detailed citations to the record, (e) Scope of argument. Argument to be
statutes, regulations or authorities heard on appeal, whether oral or on
being relied upon in support thereof. A brief, shall be limited to the issues
brief may be filed in support of the ap- raised in the appeal or in the response
peal simultaneously with the petition. to the appeal, except that if the Judi-
(b) Response to appeal petition. Within cial Officer determines that additional
20 days after the service of a copy of an issues should be argued, the parties
appeal petition and any brief in sup- shall be given reasonable notice of such
port thereof, filed by a party to the determination, so as to permit prepara-
proceeding, any other party may file tion of adequate arguments on all
issues to be argued.
with the Hearing Clerk a response in
(f) Notice of argument; Postponement.
support of or in opposition to the ap-
The Hearing Clerk shall advise all par-
peal and in such response any relevant
ties of the time and place at which oral
issue, not presented in the appeal peti- argument will be heard. A request for
tion, may be raised. postponement of the argument must be
(c) Transmittal of record. Whenever an made by motion filed a reasonable
appeal of a Judge’s decision is filed and amount of time in advance of the date
a response thereto has been filed or fixed for argument.
time for filing a response has expired, (g) Order of argument. The appellant
the Hearing Clerk shall transmit to the is entitled to open and conclude the ar-
Judicial Officer the record of the pro- gument.
ceeding. Such record shall include: the (h) Submission on briefs. By agreement
pleadings; motions and requests filed of the parties, an appeal may be sub-
and rulings thereon; the transcript or mitted for decision on the briefs, but
recording of the testimony taken at the Judicial Officer may direct that
the hearing, together with the exhibits the appeal be argued orally.
filed in connection therewith; any doc- (i) Decision of the judicial officer on ap-
uments or papers filed in connection peal. As soon as practicable after the
with a prehearing conference; such pro- receipt of the record from the Hearing
posed findings of fact, conclusions, and Clerk, or, in case oral argument was
orders, and briefs in support thereof, as had, as soon as practicable thereafter,
may have been filed in connection with the Judicial Officer, upon the basis of
the proceeding; the Judge’s decision; and after due consideration of the
such exceptions, statements of objec- record and any matter of which official
tions and briefs in support thereof as notice is taken, shall rule on the ap-
may have been filed in the proceeding; peal. If the Judicial Officer decides
and the appeal petition, and such briefs that no change or modification of the
in support thereof and responses there- Judge’s decision is warranted, the Ju-
to as may have been filed in the pro- dicial Officer may adopt the Judge’s
ceeding. decision as the final order in the pro-
(d) Oral argument. A party bringing ceeding, preserving any right of the
an appeal may request, within the pre- party bringing the appeal to seek judi-
scribed time for filing such appeal, an cial review of such decision in the
opportunity for oral arguments before proper forum. A final order issued by
the Judicial Officer. Within the time the Judicial Officer shall be filed with
allowed for filing a response, appellee the Hearing Clerk. Such order may be
may file a request in writing for oppor- regarded by the respondent as final for
tunity for such an oral argument. Fail- purposes of a request for judicial re-
ure to make such request in writing, view as provided in § 1.175(a).
within the prescribed time period, shall [45 FR 6587, Jan. 29, 1980, as amended at 60
be deemed a waiver of oral argument. FR 8458, Feb. 14, 1995]
The Judicial Officer may grant, refuse,
§ 1.171 Intervention.
or limit any request for oral argument.

Oral argument shall not be transcribed Intervention under these rules shall
unless so ordered in advance by the Ju- not be allowed, except that, in the dis-
dicial Officer for good cause shown cretion of the Judicial Officer, or the
58
Judge, any person showing a substan- ticipated in the investigation pre-

tial interest in the outcome of the pro- ceding the institution of the pro-
ceeding shall be permitted to partici- ceeding or in determination that it
pate in oral or written argument pur- should be instituted or in the prepara-
suant to §§ 1.169 and 1.170. tion of the moving paper or in the de-
velopment of the evidence to be intro-
[45 FR 6587, Jan. 29, 1980, as amended at 60
FR 8458, Feb. 14, 1995] duced therein.
(b) Disqualification of Judge. (1) Any
§ 1.172 Motions and requests. party to the proceeding may, by mo-
tion made to the Judge, request that
(a) General. All motions and requests
the Judge disqualify himself or herself
shall be filed with the Hearing Clerk,
and withdraw from the proceeding.
and shall be served upon the parties,
Such motion shall set forth with par-
except those made on record during the
ticularity the alleged disqualification.
oral hearing. The Judge shall rule upon
The Judge may then either rule upon
all motions and requests filed or made
or certify the motion to the Judicial
prior to the filing of the certification
Officer, but not both.
of the transcript or recording. There-
(2) A Judge will withdraw from any
after, the Judicial Officer will rule on
proceeding in which the Judge deems
any motions or requests.
himself or herself disqualified for any
(b) Motions entertained. Any motion
reason.
will be entertained except a motion to
(c) Conduct. At no stage of the pro-
dismiss on the pleadings. All motions
ceeding between its institution and the
and requests concerning the complaint
issuance of the final decision shall the
must be made within the time allowed
Judicial Officer or the Judge discuss ex
for filing an answer.
parte the merits of the proceeding with
(c) Contents. All written motions and
any person who is connected with the
requests shall state the particular
proceeding as an advocate or in an in-
order, ruling, or action desired and the
vestigative capacity, or with any rep-
grounds therefor.
resentative of such person: Provided,
(d) Response to motions in request.
That procedural matters shall not be
Within ten days after service of any
included within the limitation: and
written motion or request, or within
Provided further, That the Judicial Offi-
such shorter or longer period as may be
cer of Judge may discuss the merits of
fixed by the Judge or the Judicial Offi-
the case with such a person if all par-
cer the opposing party may file a re-
ties to the proceeding, or their rep-
sponse to the motion or request.
resentatives, have been given an oppor-
(e) Certification to the judicial officer.
tunity to be present. Any memo-
The submission or certification of any
randum or other communication ad-
motion, request, objection, or other
dressed to the Judicial Officer or a
question to the Judicial Officer prior to
Judge, during the pendency of the pro-
the time when the Judge’s certification
ceeding, and relating to the merits
of the transcript is filed with the Hear-
thereof, by or on behalf of any party or
ing Clerk, shall be made by and in the
any interested person, shall be filed
discretion of the Judge. The Judge may
with the Hearing Clerk. A copy thereof
either rule upon or certify the motion,
shall be served upon the parties to the
request, objection, or other question to
proceeding, and, in the discretion of
the Judicial Officer, but not both.
the Judge or the Judicial Officer, op-
[45 FR 6587, Jan. 29, 1980, as amended at 60 portunity may be given to file a reply
FR 8458, Feb. 14, 1995] thereto within a specified period.
(d) Powers. Subject to review by the
§ 1.173 Judges. Judicial Officer as provided elsewhere
(a) Assignment. No Judge shall be as- in this part, the Judge, in any pro-
signed to serve in any proceeding who ceeding assigned to him or her shall
(1) has any pecuniary interest in any have power to:
matter or business involved in the pro- (1) Rule upon motions and requests;
ceeding, (2) is related within the third (2) Set the time, place, and manner of
degree by blood or marriage to any any conference, set the manner of the
party to the proceeding, or (3) has par- hearing, adjourn the hearing, and
59
change the time, place, and manner of shall be served upon the parties by the
the hearing; Hearing Clerk, or by some other em-
(3) Administer oaths and affirma- ployee of the Department, or by a U.S.
tions; Marshal or his Deputy. Service shall be
(4) Examine witnesses and receive made either (1) by delivering a copy of
relevant evidence; the document or paper to the indi-
(5) Admit or exclude evidence; vidual to be served or to a member of
(6) Hear oral argument on facts or the partnership to be served, or to the
law; president, secretary, or other executive
(7) Require each party to provide all officer or any director of the corpora-
other parties and the Judge with a tion or association to be served, or to
copy of any exhibit that the party in- the attorney or agent of record of such
tends to introduce into evidence prior individual, partnership, corporation,
to any hearing to be conducted by tele- organization, or association; or (2) by
phone or audio-visual telecommuni- leaving a copy of the document or
cation; paper at the principal office or place of
(8) Require that any hearing to be business or residence of such indi-
conducted by telephone or audio-visual vidual, partnership, corporation, orga-
telecommunication be conducted at lo- nization, or association, or of his or its
cations at which the parties and the attorney or agent of record and mail-
Judge are able to transmit and receive ing by regular mail another copy to
documents during the hearing; each person at such address; or (3) by
(9) Do all acts and take all measures registering or certifying and mailing a
necessary for the orderly presentation copy of the document or paper, ad-
of evidence, maintenance of order, and dressed to such individual, partnership,
the efficient conduct of the proceeding. corporation, organization, or associa-
(e) Who may act in the absence of the tion, or to his or its attorney or agent
Judge. In case of the absence of the of record, at his or its last known resi-
Judge or upon the Judge’s inability to dence or principal office or place of
act, the powers and duties to be per- business: Provided, That if the reg-
formed by the Judge under these Rules istered or certified document or paper
of Practice in connection with a pro- is returned undelivered because the ad-
ceeding assigned to the Judge may, dressee refused or failed to accept de-
without abatement of the proceeding, livery, the document or paper shall be
be assigned to any other Judge. served by remailing it by regular mail.
[45 FR 6587, Jan. 29, 1980, as amended at 60 Proof of service hereunder shall be
FR 8458, Feb. 14, 1995] made by the certification of the person
who actually made the service: Pro-
§ 1.174 Filing; service; extensions of vided, That if the service be made by
time; and computation of time. mail, as outlined in paragraph (b)(3) of
(a) Filing; Number of Copies. Except as this section proof of service shall be
otherwise provided by the Judge or the made by the return post office receipt,
Secretary, all documents or papers re- in the case of registered or certified
quired or authorized by the rules in mail, or by the certificate of the person
this part to be filed with the Hearing who mailed the matter by regular mail.
Clerk shall be filed in quadruplicate: The certificate and post office receipt
Provided, That, where there are parties contemplated herein shall be filed with
to the proceeding in addition to com- the Hearing Clerk, and the fact of fil-
plainant and respondent, an additional ing thereof shall be noted in the record
copy shall be filed for each such addi- of the proceeding.
tional party. Any document or paper, (c) Extension of time. The time for the
required or authorized under the rules filing of any document or paper re-
in this part to be filed with the Hearing quired or authorized under the rules in
Clerk, shall, during the course of an this part to be filed may be extended
oral hearing, be filed with the Judge. by the Judge prior to the filing of the
(b) Service; proof of service. Copies of certification of the transcript or re-

all such documents or papers required cording if there is good reason for the
or authorized by the rules in this part extension. In all instances in which
to be filed with the Hearing Clerk, time permits, notice of the request for
60
extension of the time shall be given to proceeding, together with a petition

the other party with opportunity to asking that the order be enforced.
submit views concerning the request. (c) Notice. The Secretary shall give
(d) Effective date of filing. Any docu- notice of the filing of a petition for en-
ment or paper required or authorized forcement or review to the Attorney
under the rules in this part to be filed General, and to the association, by
shall be deemed to be filed at the time service of a copy of the petition.
when it reaches the Department of Ag-
riculture in Washington, D.C.; or, if au- Subpart J—Procedures Relating to
thorized to be filed with an officer or
employee of the Department at any
Awards Under the Equal Ac-
place outside the District of Columbia, cess to Justice Act in Pro-
it shall be deemed to be filed at the ceedings Before the Depart-
time when it reaches the office of such ment
officer or employee.
(e) Computation of time. Saturdays, SOURCE: 67 FR 63237, Oct. 11, 2002, unless
Sundays and Federal holidays shall be otherwise noted.
included in computing the time al-
lowed for the filing of any document or GENERAL PROVISIONS
paper: Provided, That when such time
expires on a Saturday, Sunday or Fed- § 1.180 Definitions.
eral holiday, such period shall be ex- (a) The definitions contained in § 1.132
tended to include the next following of this part are incorporated into and
business day. made applicable to this subpart.
[45 FR 6587, Jan. 29, 1980, as amended at 60 (b) Adjudicative Officer means an ad-
FR 8459, Feb. 14, 1995] ministrative law judge, administrative
judge, or other person assigned to con-
§ 1.175 Procedure following entry of duct a proceeding covered by EAJA.
cease and desist order. (c) Agency means an organizational
(a) Request for judicial review. An as- unit of the Department whose head re-
sociation subject to a cease and desist ports to an official in the Office of the
order may, within thirty days fol- Secretary.
lowing the date of the order, request (d) Agency counsel means the attor-
the Secretary to institute proceedings ney from the Office of the General
for judicial review of the order. Such Counsel representing the agency of the
request shall, to the extent practicable, Department administering the statute
identify findings of fact, conclusions of involved in the proceeding.
law, and any part of the order which (e) Days means calendar days.
the association claims are in error. The (f) Department means the United
Secretary shall, thereupon, file in the States Department of Agriculture.
district in the judicial district in which
such association has its principal place § 1.181 Purpose of these rules.
of business, a certified copy of the The Equal Access to Justice Act, 5
order and of all records in the pro- U.S.C. 504 (called ‘‘EAJA’’ in this sub-
ceeding, including the request of the part), provides for the award of attor-
association, together with a petition ney fees and other expenses to eligible
asking that the order be affirmed and individuals and entities who are parties
enforced. to certain administrative proceedings
(b) Enforcement. If an association sub- (called ‘‘adversary adjudications’’) be-
ject to a cease and desist order fails or fore the Department. An eligible party
neglects, within thirty days of the date may receive an award when it prevails
of the order, or at any time thereafter, over the Department unless the posi-
to obey such order, and has not made a tion of the Department was substan-
request for judicial review as provided tially justified or special cir-
above, the Secretary shall file in the cumstances make an award unjust. Al-
district court in the judicial district in ternatively, an eligible party may re-
which such association has its prin- ceive an award in connection with an
cipal place of business a certified copy adversary adjudication arising from an
of the order and of all records in the agency action to enforce the party’s
61
compliance with a statutory or regu- proceedings covered include adversary

latory requirement where the demand adjudications under the following stat-
by the agency is substantially in excess utory provisions.
of the decision of the adjudicative offi-
cer and is unreasonable when compared Agricultural Marketing Agreement Act of
1937 (7 U.S.C. 608c(15)(A))
with such decision under the facts and
Animal Health Protection Act, sections 10414
circumstances of the case. The rules in and 10415 (7 U.S.C. 8313 and 8314).
this subpart describe the parties eligi- Animal Quarantine Laws (21 U.S.C. 104, 117,
ble for awards and the proceedings that 122, 127, 134e, and 135a)
are covered. They also explain how to Animal Welfare Act (7 U.S.C. 2149)
apply for awards, and the procedures Archaeological Resources Protection Act (16
and standards that the Department U.S.C. 470ff)
will use to make awards. Beef Research and Information Act (7 U.S.C.
2912)
§ 1.182 When EAJA applies. Capper-Volstead Act (7 U.S.C. 292)
EAJA applies to any adversary adju- Cotton Research and Promotion Act (7
dication pending or commenced before U.S.C. 2111)
the Department on or after August 5, Egg Products Inspection Act (21 U.S.C. 1047)
1985, except with respect to a pro- Egg Research and Consumer Information Act
ceeding covered under § 1.183(a)(1)(iii) of (7 U.S.C. 2713, 2714(b))
this part, which is effective on or after Endangered Species Act (16 U.S.C. 1540(a))
October 21, 1986. In addition, the provi- Federal Land Policy and Management Act
(43 U.S.C. 1766)
sions of § 1.185(b) relating to award for
Federal Meat Inspection Act (21 U.S.C. 604,
excessive demand apply only to adver-
606, 607(e), 608, 671)
sary adjudications commenced on or
Federal Seed Act (7 U.S.C. 1599)
after March 29, 1996. Changes in max- Horse Protection Act (15 U.S.C. 1823(c), 1825)
imum rates for attorney fees are effec- Packers and Stockyards Act (7 U.S.C. 193,
tive as of October 11, 2002. 204, 213, 218d, 221)
Perishable Agricultural Commodities Act (7
§ 1.183 Proceedings covered.
U.S.C. 499c(c), 499d(d), 499f(c), 499h(a),
(a)(1) The rules in this subpart apply 499h(b), 499h(c), 499i, 499m(a))
to adversary adjudications. These are: Plant Protection Act (7 U.S.C. 7734, 7735, and
(i) Adjudications required by statute 7736)
to be conducted by the Department Potato Research and Promotion Act (7
under 5 U.S.C. 554 in which the position U.S.C. 2620)
of the Department or any other agency Poultry Products Inspection Act (21 U.S.C.
of the United States, or any component 455, 456, 457(d), 467)
of an agency, is presented by an attor- Swine Health Protection Act (7 U.S.C.
ney or other representative who enters 3804(b), 3805(a))
an appearance and participates in the Title V of the Agricultural Risk Protection
Act of 2000, section 501(a) (7 U.S.C. 2279e).
proceeding,
U.S. Cotton Standards Act (7 U.S.C. 51b, 53)
(ii) Appeals of decisions of con-
U.S. Grain Standards Act (7 U.S.C. 79(g)(3),
tracting officers made pursuant to sec- 85, 86)
tion 6 of the Contract Disputes Act of U.S. Warehouse Act (7 U.S.C. 246, 253)
1978 (41 U.S.C. 605) before the Agri- Virus-Serum-Toxin Act (21 U.S.C. 156)
culture Board of Contract Appeals as Wheat and Wheat Foods Research and Nutri-
provided in section 8 of that Act (41 tion Education Act (7 U.S.C. 3409)
U.S.C. 607), and
(iii) Any hearing conducted under (b) The failure of the Department to
chapter 38 of title 31, United States identify a type of proceeding as an ad-
Code. versary adjudication shall not preclude
(2) Any proceeding in which the De- the filing of an application by a party
partment may prescribe a lawful who believes the proceeding is covered
present or future rate is not covered by by EAJA; whether the proceeding is
EAJA. Proceedings to grant or renew covered will then be an issue for resolu-
tion in proceedings on the application.
licenses also are excluded, but pro-

ceedings to modify, suspend, or revoke (c) If a proceeding includes both mat-
licenses are covered if they are other- ters covered by EAJA and matters spe-
wise ‘‘adversary adjudications.’’ The cifically excluded from coverage, any
62
award made will include only fees and net worth and number of employees of
expenses related to covered issues. an applicant shall be determined as of
[67 FR 63237, Oct. 11, 2002, as amended at 67
the date the applicant filed its appeal
FR 70674, Nov. 26, 2002] under 41 U.S.C. 606.
(d) In interpreting the criteria set
§ 1.184 Eligibility of applicants. forth in paragraph (b) of this section,
(a) To be eligible for an award of at- the following apply:
torney fees and other expenses under (1) An applicant who owns an unin-
EAJA, the applicant must meet one of corporated business will be considered
the following conditions: as an ‘‘individual’’ rather than a ‘‘sole
(1) The applicant must be a pre- owner of an unincorporated business’’
vailing party to the adversary adju- if the issues on which the applicant
dication for which it seeks an award; or prevails are related primarily to per-
(2) The applicant must be a party to sonal interests rather than to business
an adversary adjudication arising from interests.
an agency action to enforce the party’s (2) The employees of an applicant in-
compliance with a statutory or regu- clude all persons who regularly per-
latory requirement in which the de- form services for remuneration for the
mand by the agency was substantially applicant, under the applicant’s direc-
in excess of the decision of the adju- tion and control. Part-time employees
dicative officer and the demand is un- shall be included on a proportional
reasonable when compared with such basis.
decision under the facts and cir- (3) The net worth and number of em-
cumstances of the case. ployees of the applicant and all of its
(b) In addition to the criteria set out affiliates shall be aggregated to deter-
in paragraph (a) of this section, a party mine eligibility. Any individual, cor-
seeking an award must be one of the poration, or other entity that directly
following: or indirectly controls or owns a major-
(1) An individual with a net worth of ity of the voting shares or other inter-
not more than $2 million; est of the applicant, or any corporation
(2) The sole owner of an unincor- or other entity of which the applicant
porated business who has a net worth directly or indirectly owns or controls
of not more than $7 million, including a majority of the voting shares or
both personal and business interests, other interest, will be considered an af-
and not more than 500 employees; filiate for purposes of this subpart, un-
(3) A charitable or other tax-exempt less the adjudicative officer determines
organization described in section such treatment would be unjust and
501(c)(3) of the Internal Revenue Code contrary to the purposes of EAJA in
(26 U.S.C. 501(c)(3)) with not more than light of the actual relationship be-
500 employees; tween the affiliated entities. In addi-
(4) A cooperative association as de- tion, the adjudicative officer may de-
fined in section 15(a) of the Agricul- termine that financial relationships of
tural Marketing Act (2 U.S.C. 1141j(a)) the applicant other than those de-
with not more than 500 employees; scribed in this paragraph constitute
(5) Any other partnership, corpora- special circumstances that would make
tion, association, unit of local govern- an award unjust.
ment, or organization with a net worth (4) An applicant that participates in
of not more than $7 million and nor a proceeding primarily on behalf of one
more than 500 employees; or more other person or entity that
(6) For purposes only of paragraph would be ineligible is not itself eligible
(a)(2) of this section, a small entity as for an award.
defined in 5 U.S.C. 601.
(c) For the purpose of eligibility, the § 1.185 Standards for awards.
net worth and number of employees of (a) Prevailing party. (1) A prevailing
an applicant shall be determined as of applicant may receive an award for fees
the date the adversary adjudication and expenses incurred in connection

was initiated: Provided, that for pur- with a proceeding, or in a significant
poses of eligibility in proceedings cov- and discrete substantive portion of the
ered by § 1.183(a)(1)(ii) of this part, the proceeding, unless the position of the
63
Department was substantially justi- graph, no award for the fee of an attor-
fied. The position of the Department ney or agent under the rules in this
includes, in addition to the position subpart may exceed $150 per hour. No
taken by the Department in the adver- award to compensate an expert witness
sary adjudication, the action or failure may exceed the highest rate at which
to act by the Department upon which the Department pays expert witnesses,
the adversary adjudication is based. which is set out at § 1.150 of this part.
The burden of proof that an award However, an award also may include
should not be made to an eligible pre- the reasonable expenses of the attor-
vailing applicant because the position ney, agent, or witness as a separate
of the Department was substantially item, if the attorney, agent, or witness
justified is on the agency. ordinarily charges clients separately
(2) An award to a prevailing appli- for such expenses.
cant will be reduced or denied if the ap- (c) In determining the reasonableness
plicant has unduly or unreasonably of the fee sought for an attorney,
protracted the proceeding or if special agent, or expert witness, the adjudica-
circumstances make the award sought tive officer shall consider the fol-
unjust. lowing:
(b) Excessive demand. (1) If, in an ad- (1) If the attorney, agent or witness
versary adjudication arising from an is in private practice, his or her cus-
agency action to enforce a party’s com- tomary fee for similar services, or if an
pliance with a statutory or regulatory employee of the applicant, the fully al-
requirement, the demand by the agen- located cost of the services;
cy is substantially in excess of the de- (2) The prevailing rate for similar
cision of the adjudicative officer and is services in the community in which the
unreasonable when compared with such attorney, agent, or witness ordinarily
decision under the facts and cir- performs services;
cumstances of the case, the adjudica- (3) The time actually spent in the
tive officer shall award to the party representation of the applicant;
the fees and other expenses related to (4) The time reasonably spent in light
defending against the excessive de- of the difficulty or complexity of the
mand, unless the party has committed issues in the proceeding; and
a willful violation of law or otherwise (5) Such other factors as may bear on
acted in bad faith, or special cir- the value of the services provided.
cumstances make an award unjust. (d) The reasonable cost of any study,
Fees and expenses awarded under this analysis, engineering report, test,
paragraph shall be paid only as a con- project or similar matter prepared on
sequence of appropriations provided in behalf of a party may be awarded, to
advance. the extent that the charge for the serv-
(2) ‘‘Demand’’ means the express de- ice does not exceed the prevailing rate
mand of the agency which led to the for similar services, and the study or
adversary adjudication, but does not other matter was necessary for prepa-
include a recitation by the agency of ration of the applicant’s case.
the maximum statutory penalty: [67 FR 63237, Oct. 11, 2002, as amended at 76
(i) In the administrative complaint, FR 11668, Mar. 3, 2011]
or
(ii) Elsewhere when accompanied by § 1.187 Rulemaking on maximum rates
an express demand for a lesser amount. for attorney fees.
(a) If warranted by an increase in the
§ 1.186 Allowable fees and expenses. cost of living or by special cir-
(a) Awards will be based on rates cus- cumstances (such as limited avail-
tomarily charged by persons engaged ability of attorneys qualified to handle
in the business of acting as attorneys, certain types of proceedings), the De-
agents, and expert witnesses, even if partment may adopt regulations pro-
the services were made available with- viding that attorney fees may be
out charge or at reduced rate to the ap- awarded at a rate higher than $150 per
plicant. hour in some or all of the types of pro-
(b) In proceedings commenced on or ceedings covered by this part. The De-
after the effective date of this para- partment will conduct any rulemaking
64
proceedings for this purpose under the INFORMATION REQUIRED FROM

informal rulemaking procedures of the APPLICANTS
Administrative Procedure Act.
(b) Any person may file with the De- § 1.190 Contents of application.
partment a petition for rulemaking to (a) An application for an award of
increase the maximum rate for attor- fees and expenses under EAJA shall
ney fees in accordance with § 1.28 of identify the applicant and the pro-
this part. The petition should identify ceeding for which an award is sought.
the rate the petitioner believes the De- Unless the applicant is an individual,
partment should establish and the the application shall state the number
types of proceedings in which the rate of employees of the applicant and de-
should be used. It also should explain scribe briefly the type and purpose of
fully the reasons why the higher rate is its organization or business. The appli-
warranted. The Department will re- cation shall also:
(1) Show that the applicant has pre-
spond to the petition within 60 days
vailed and identify the position of the
after it is filed, by initiating a rule-
Department that the applicant alleges
making proceeding, denying the peti-
was not substantially justified and
tion, or taking other appropriate ac-
shall briefly state the basis for such al-
tion. legation; or
[67 FR 63237, Oct. 11, 2002, as amended at 76 (2) Show that the demand by the De-
FR 11668, Mar. 3, 2011] partment in the proceeding was sub-
stantially in excess of, and was unrea-
§ 1.188 Awards against other agencies. sonable when compared with, the deci-
If an applicant is entitled to an sion in the proceeding.
award because it prevails over another (b) The application also shall, as ap-
agency of the United States that par- propriate, include a declaration that
ticipates in a proceeding before the De- the applicant is a small entity as de-
fined in 5 U.S.C. 601 or a statement
partment and takes a position that is
that the applicant’s net worth does not
not substantially justified, the award
exceed $2 million (if an individual) or
or an appropriate portion of the award
$7 million (for all other applicants, in-
shall be made against that agency.
cluding their affiliates). However, an
§ 1.189 Delegations of authority. applicant may omit this statement if:
(1) It attaches a copy of a ruling by
(a) Except as provided in paragraph the Internal Revenue Service that it
(b) of this section, the Secretary of Ag- qualifies as an organization described
riculture delegates to the Judicial Offi- in section 501(c)(3) of the Internal Rev-
cer authority to take final action on enue Code (26 U.S.C. 501(c)(3)) or, in the
matters pertaining to the Act in pro- case of a tax-exempt organization not
ceedings covered by these rules. The required to obtain a ruling from the In-
Secretary by order may delegate au- ternal Revenue Service on its exempt
thority to take final action on matters status, a statement that describes the
pertaining to the Act in particular basis for the applicant’s belief that it
cases to other subordinate officials or qualifies under such section; or
bodies. (2) It states that it is a cooperative
(b)(1) The Secretary of Agriculture association as defined in section 15(a)
delegates to the Director of the Na- of the Agricultural Marketing Act (12
tional Appeals Division authority to U.S.C. 114j(a)).
take final actions on matters per- (c) The application shall state the
taining to the Act for proceedings amount of fees and expenses for which
under 7 CFR part 11. an award is sought.
(2) With respect to proceedings cov- (d) The application also may include
ered under § 1.183(b)(1)(ii) of this part, any other matters that the applicant
the Board of Contract Appeals is au- wishes the Department to consider in
thorized by statute (41 U.S.C. 607) to determining whether, and in what

amount, an award should be made.
take final action.
(e) The application shall be signed by
[68 FR 27435, May 20, 2003] the applicant or an authorized officer
65
or attorney of the applicant. It also Freedom of Information Act (§§ 1.1

shall contain or be accompanied by a through 1.23 of this part).
written verification under oath or af-
firmation under penalty of perjury that § 1.192 Documentation of fees and ex-
the information provided in the appli- penses.
cation and all accompanying material (a) The application shall be accom-
is true and complete to the best of the panied by full documentation of the
signer’s information and belief. fees and expenses, including the cost of
any study, analysis, engineering re-
§ 1.191 Net worth exhibit. port, test, project, or similar matter,
(a) An applicant, except a qualified for which an award is sought.
tax-exempt organization or cooperative (b) The documentation shall include
association, must provide with its ap- an affidavit from any attorney, agent,
plication a detailed exhibit showing or expert witness representing or ap-
the net worth of the applicant and any pearing on behalf of the party, stating
affiliates (as defined in § 1.184 of this the actual time expended and the rate
part) when the proceeding was initi- at which fees and other expenses were
ated. The exhibit may be in any form computed and describing the specific
convenient to the applicant that pro- services performed.
vides full disclosure of the applicant’s (1) The affidavit shall state the serv-
and its affiliates’ assets and liabilities ices performed. In order to establish
and is sufficient to determine whether the hourly rate, the affidavit shall
the applicant qualifies under the stand- state the hourly rate which is billed
ards in this subpart. The adjudicative and paid by the majority of clients dur-
officer may require an applicant to file ing the relevant time periods.
additional information to determine (2) If no hourly rate is paid by the
its eligibility for an award. majority of clients because, for in-
(b) Ordinarily, the net worth exhibit stance, the attorney or agent rep-
will be included in the public record of resents most clients on a contingency
the proceeding. However, an applicant basis, the attorney or agent shall pro-
that objects to public disclosure of in- vide information about two attorneys
formation in any portion of the exhibit or agents with similar experience, who
and believes there are legal grounds for perform similar work, stating their
withholding it from disclosure may hourly rate.
submit that portion of the exhibit di- (c) The documentation also shall in-
rectly to the adjudicative officer in a clude a description of any expenses for
sealed envelope labeled ‘‘Confidential which reimbursement is sought and a
Financial Information,’’ accompanied statement of the amounts paid and
by a motion to withhold the informa- payable by the applicant or by any
tion from public disclosure. The mo- other person or entity for the services
tion shall describe the information provided.
sought to be withheld and explain, in (d) The adjudicative officer may re-
detail, why it falls within one or more quire the applicant to provide vouch-
of the specific exemptions from manda- ers, receipts, or other substantiation
tory disclosure under the Freedom of for any fees or expenses claimed, pursu-
Information Act, 5 U.S.C. 552(b) (1) ant to § 1.199 of this part.
through (9). The material in question
shall be served on counsel representing § 1.193 Time for filing application.
the agency against which the applicant (a) An application may be filed when-
seeks an award, but need not be served ever the applicant has prevailed in the
on any other party to the proceeding. proceeding or in a significant and dis-
If the adjudicative officer finds that crete substantive portion of the pro-
the information should not be withheld ceeding, but in no case later than 30
from disclosure, it shall be placed in days after final disposition of the pro-
the public record of the proceeding. ceeding by the Department.
Otherwise, any request to inspect or (b) For the purposes of this subpart,
copy the exhibit shall be disposed of in final disposition means the date on
accordance with the established proce- which a decision or order disposing of
dures of the Department under the the merits of the proceeding or any
66
other complete resolution of the pro- statement shall extend the time for fil-
ceeding, such as a settlement or vol- ing an answer for an additional 30 days,
untary dismissal, become final and and further extensions may be granted
unappealable, both within the Depart- by the adjudicative officer upon re-
ment and to the courts. quest by agency counsel and the appli-
(c) If review or reconsideration is cant.
sought or taken of a decision as to (c) The answer shall explain in detail
which an applicant believes it has pre- any objections to the award requested
vailed, proceedings for the award of and identify the facts relied on in sup-
fees shall be stayed pending final dis- port of agency counsel’s position. If the
position of the underlying controversy. answer is based on any alleged facts
When the United States appeals the un- not already in the record of the pro-
derlying merits of an adversary adju- ceeding, agency counsel shall include
dication to a court, no decision on an with the answer either supporting affi-
application for fees and other expenses davits or a request for further pro-
in connection with that adversary ad- ceedings under § 1.199 of this part.
judication shall be made until a final
and unreviewable decision is rendered § 1.196 Reply.
by the court on the appeal or until the Within 15 days after service of an an-
underlying merits of the case have swer, the applicant may file a reply. If
been finally determined pursuant to the reply is based on any alleged facts
the appeal. not already in the record of the pro-
ceeding, the applicant shall include
PROCEDURES FOR CONSIDERING
with the reply either supporting affida-
APPLICATIONS
vits or a request for further pro-
§ 1.194 Filing and service of docu- ceedings under § 1.199 of this part.
ments.
§ 1.197 Comments by other parties.
Any application for an award or
other pleading or document related to Any party to a proceeding other than
an application shall be filed and served the applicant and agency counsel may
on all parties to the proceeding in the file comments on an application within
same manner as other pleadings in the 30 days after it is served or on an an-
proceeding except as provided in § 1.191 swer within 15 days after it is served. A
of this part for confidential financial commenting party may not participate
information. The provisions relating to further in proceedings on the applica-
filing, service, extensions of time, and tion, unless the adjudicative officer de-
computation of time contained in termines that the public interest re-
§ 1.147 of this part are incorporated into quires such participation in order to
and made applicable to this subpart, permit full exploration of matters
except that the statutory 30 day time raised in the comments.
limit on filing the application as set
§ 1.198 Settlement.
out in § 1.193 of this part may not be ex-
tended. The applicant and agency counsel
may agree on a proposed settlement of
§ 1.195 Answer to application. the award before final action on the ap-
(a) Within 30 days after service of an plication, either in connection with a
application, agency counsel may file an settlement of the underlying pro-
answer. If agency counsel fails to time- ceeding, or after the underlying pro-
ly answer or settle the application, the ceeding has been concluded. If a pre-
adjudicative officer, upon a satisfac- vailing party and agency counsel agree
tory showing of entitlement by the ap- on a proposed settlement of an award
plicant, may make an award for the ap- before an application has been filed,
plicant’s allowable fees and expenses. the application shall be filed with the
(b) If agency counsel and the appli- proposed settlement.
cant believe that the issues in the fee

application can be settled, they may § 1.199 Further proceedings.
jointly file a statement of intent to ne- (a) Ordinarily, the determination of
gotiate a settlement. The filing of this an award will be made on the basis of
67
the written record. However, on re- plicant unduly protracted the pro-
quest of either the applicant or agency ceedings, or whether special cir-
counsel, or on his or her own initiative, cumstances make an award unjust. If
the adjudicative officer may order fur- the applicant has sought an award
ther proceedings, such as an informal against more than one agency, the de-
conference, oral argument, additional cision shall allocate responsibility for
written submissions or, as to issues payment of any award made among the
other than substantial justification agencies, and shall explain the reasons
(such as the applicant’s eligibility or for the allocation made.
substantiation of fees and expenses),
pertinent discovery or an evidentiary § 1.201 Department review.
hearing. Such further proceedings shall (a) Except with respect to a pro-
be held only when necessary for full ceeding covered by § 1.183(a)(1)(ii) of
and fair resolution of the issues arising this part either the applicant or agency
from the application, and shall be con- counsel may seek review of the initial
ducted as promptly as possible. Wheth- decision on the fee application, in ac-
er the position of the Department was cordance with the provisions of
substantially justified shall be deter- §§ 1.145(a) and 1.146(a) of this part or in
mined on the basis of the administra- accordance with any delegation made
tive record, as a whole, which is made pursuant to § 1.189 of this part. If nei-
in the adversary adjudication for which ther the applicant nor agency counsel
fees and other expenses are sought. seeks review, the initial decision on
(b) A request that the adjudicative the fee application shall become a final
officer order further proceedings under decision of the Department 35 days
this section shall identify specifically after it is served upon the applicant. If
the information sought or the disputed review is taken, it will be in accord
issues, and shall explain specifically with the provisions of §§ 1.145(b)
why the additional proceedings are through (i) and 1.146(b) of this part, or
necessary to resolve the issues. (b) With respect to a proceeding cov-
(c) In the event that an evidentiary ered by § 1.183(a)(1)(ii) of this part, ei-
hearing is held, it shall be conducted ther party may seek reconsideration of
pursuant to §§ 1.130 through 1.151 of this the decision on the fee application in
part, except that any hearing in a pro- accordance with Rule 29 of the Board of
ceeding covered by § 1.183(a)(1)(ii) of Contract Appeals contained in § 24.21 of
this part shall be conducted pursuant this title. In addition, either party may
to Rules 17 through 25 of the Board of appeal a decision of the Board of Con-
Contract Appeals contained in § 24.21 of tract Appeals to the Court of Appeals
this title. for the Federal Circuit in accordance
with 41 U.S.C. 607.
§ 1.200 Decision.
The adjudicative officer or Board of § 1.202 Judicial review.
Contract Appeals shall issue an initial Judicial review of final agency deci-
decision on the application as expedi- sions on awards may be sought as pro-
tiously as possible after completion of vided in 5 U.S.C. 504(c)(2).
proceedings on the application. When-
ever possible, the decision shall be § 1.203 Payment of award.
made by the same administrative judge An applicant seeking payment of an
or panel that decided the contract ap- award shall submit to the head of the
peal for which fees are sought. The de- agency administering the statute in-
cision shall include written findings volved in the proceeding a copy of the
and conclusions on the applicant’s eli- final decision of the Department grant-
gibility and status as a prevailing ing the award, accompanied by a state-
party, and an explanation of the rea- ment that the applicant will not seek
sons for any difference between the review of the decision in the United
amount requested and the amount States courts. The agency will pay the
awarded. This decision also shall in- amount awarded to the applicant with-
clude, if at issue, findings on whether in 60 days, unless judicial review of the
the position of the Department was award or of the underlying decision of
substantially justified, whether the ap- the adversary adjudication has been
68
sought by the applicant or any other (e) USDA means the United States
party to the proceeding. Department of Agriculture.
(f) USDA agency means an organiza-
Subpart K—Appearance of USDA tional unit of USDA whose head re-
Employees as Witnesses in Ju- ports to an official within the Office of
the Secretary of Agriculture.
dicial or Administrative Pro-
(g) Valid summons, subpoena, or other
ceedings compulsory process means an order that
is served properly and within the legal
SOURCE: 55 FR 42347, Oct. 19, 1990, unless authority and the jurisdictional bound-
otherwise noted. aries of the court or administrative
agency or official that has issued it.
§ 1.210 Purpose.
(h) Witness fees means the amount of
This subpart sets forth procedures money paid to a witness as compensa-
governing the appearance of USDA em- tion for attendance at a judicial or ad-
ployees as witnesses in order to testify ministrative proceeding.
or produce official documents in judi-
cial or administrative proceedings § 1.212 General.
when such appearance is in their offi- No USDA employee may provide tes-
cial capacity or arises out of or is re- timony or produce documents in a judi-
lated to their employment with USDA. cial or administrative proceeding un-
These regulations do not apply to ap- less authorized in accordance with this
pearances by USDA employees as wit- subpart.
nesses in judicial or administrative
proceedings which are purely personal § 1.213 Appearance as a witness on be-
or do not arise out of or relate to their half of the United States.
employment with USDA. This subpart An employee of USDA may appear as
also does not apply to Congressional a witness on behalf of the United
requests or subpoenas for testimony or States in any judicial or administra-
documents. tive proceeding without the issuance of
§ 1.211 Definitions. a summons, subpoena, or other compul-
sory process. Employees should obtain
(a) Administrative proceeding means permission for such an appearance
any proceeding pending before any fed- from their immediate supervisor unless
eral, state, or local agency and under- the USDA agency or General Counsel
taken for the purpose of the issuance of has issued instructions providing oth-
any regulations, orders, licenses, per- erwise.
mits, or other rulings, or the adjudica-
tion of any matter, dispute, or con- § 1.214 Appearance as a witness on be-
troversy. half of a party other than the
(b) Appearance means testimony or United States where the United
production of documents the request States is not a party.
for which arises out of an employee’s (a) An employee of USDA served with
official duties with USDA or relates to a valid summons, subpoena, or other
his or her employment with USDA. For compulsory process demanding his or
the purpose of this subpart, an appear- her appearance, or otherwise requested
ance also includes an affidavit, deposi- to appear on behalf of a party other
tion, interrogatory, or other required than the United States in a judicial or
written submission. administrative proceeding in which the
(c) Judicial proceeding means any case United States is not a party, shall
or controversy pending before any fed- promptly notify the head of his or her
eral, state, or local court. USDA agency of the existence and na-
(d) Travel expenses means the amount ture of the order compelling his or her
of money paid to a witness for reim- appearance, or of the document re-
bursement for transportation, lodging, questing his or her attendance. He or
meals, and other miscellaneous ex- she shall also specify, if that is known,
penses in connection with attendance the nature of the judicial or adminis-
at a judicial or administrative pro- trative proceeding and the nature of
ceeding. the testimony or documents requested.
69
(b)(1) An employee of USDA served (i) what interest of USDA would be

with a valid summons, subpoena, or promoted by the employee’s testimony;
other compulsory process, or requested (ii) whether an appearance would re-
to appear as a witness on behalf of a sult in an unnecessary interference
party other than the United States in a with the duties of the USDA employee;
judicial or administrative proceeding (iii) whether an employee’s testi-
in which the United States is not a mony would result in the appearance of
party, may appear only if such appear- improperly favoring one litigant over
ance has been authorized by the head another.
of his or her USDA agency, with the (2) The considerations listed in para-
concurrence of the General Counsel, graph (e)(1) of this section are illus-
based upon a determination that such trative and not exhaustive.
an appearance is in the interest of
USDA. § 1.215 Subpoenas duces tecum for
USDA records in judicial or admin-
(2) An employee of USDA requested istrative proceedings in which the
to appear as a witness on behalf of a United States is not a party.
party other than the United States in a
(a) Subpoenas duces tecum for USDA
judicial or administrative proceeding
records in judicial or administrative
in which the United States is not a
proceedings in which the United States
party, without the service of a valid
is not a party shall be deemed to be re-
summons, subpoena, or other compul-
quests for records under the Freedom
sory process, may appear only if such
of Information Act and shall be han-
appearance has been authorized by the
dled pursuant to the rules governing
head of his or her USDA agency and ap-
public disclosure under subpart A of
proved by the appropriate Assistant
this part.
Secretary, Under Secretary or other (b) Whenever a subpoena duces tecum
general officer, and by the General compelling the production of records is
Counsel, based upon a determination served on a USDA employee in a judi-
that such an appearance is in the inter- cial or administrative proceeding in
est of USDA. which the United States is not a party,
(c) Unless an appearance is author- the employee, after consultation with
ized as provided in paragraphs (b)(1) or the General Counsel or his or her des-
(b)(2) of this section, the employee ignee, shall appear in response thereto,
shall appear at the stated time and respectfully decline to produce the
place (unless advised by the General records on the grounds that it is pro-
Counsel or his or her designee that the hibited by this section and state that
summons, subpoena, or other process the production of the records involved
was not validly issued or served), will be handled in accordance with sub-
produce a copy of these regulations and part A of this part.
respectfully decline to provide any tes-
timony. As appropriate, the General § 1.216 Appearance as a witness or
Counsel or his or her designee will reproduction of documents on behalf
quest the assistance of the Department of a party other than the United
of Justice or of a United States Attor- States where the United States is a
ney, in the case of a judicial pro- party.
ceeding; or of the official or attorney (a) An employee of USDA served with
representing the United States, in the a valid summons, subpoena, or other
case of an administrative proceeding, compulsory process demanding his or
to represent the interests of the em- her appearance, or otherwise requested
ployee and USDA. to appear or produce documents on be-
(d) If there is any question regarding half of a party other than the United
the validity of a summons, subpoena, States in a judicial or administrative
or other compulsory process, an em- proceeding in which the United States
ployee shall contact the Office of the is a party, shall promptly notify the
General Counsel for advice. head of his or her USDA agency and
(e)(1) In determining whether the em- the General Counsel or his or her des-
ployee’s appearance is in the interest ignee of the existence and nature of the
of USDA, authorizing officials should order compelling his or her appearance,
consider the following: or of the document requesting his or
70
her appearance. He or she shall also (e) If there is any question regarding
specify, if that is known, the nature of the validity of a summons, subpoena,
the judicial or administrative pro- or other compulsory process, an em-
ceeding and the nature of the testi- ployee shall contact the Office of the
mony or documents requested. General Counsel for advice.
(b)(1) Except as provided in para-
graph (b)(2) of this section, an em- § 1.217 Witness fees and travel ex-
penses.
ployee of USDA only may appear as a
witness or produce records on behalf of (a) Any employee of USDA who at-
a party other than the United States in tends a judicial or administrative pro-
a judicial or administrative proceeding ceeding as a witness in order to testify
in which the United States is a party if or produce official documents on behalf
such appearance or production has of the United States is entitled to trav-
been ordered by the service on the em- el expenses in connection with such ap-
ployee of a valid summons, subpoena, pearance in accordance with the Agri-
or other compulsory process issued by culture Travel Regulations.
a court, administrative agency, or (b) An employee of USDA who at-
other official authorized to compel his tends a judicial or administrative pro-
or her appearance. ceeding on behalf of the United States
(2) An employee requested to appear is not entitled to receive fees for such
as a witness or produce records on be- attendance.
half of a party other than the United (c) An employee of USDA who at-
States in a judicial or administrative tends a judicial or administrative pro-
proceeding in which the United States ceeding on behalf of a party other than
is a party, without being served a valid the United States when such appear-
summons, subpoena, or other compul- ance is in his or her official capacity or
sory process, may appear or produce arises out of or relates to his or her
records only if such appearance or pro- employment with USDA is entitled to
duction has been authorized by a rep- travel expenses in accordance with the
resentative of the Department of Jus- Agriculture Travel Regulations to the
tice, the United States Attorney, or extent that such expenses are not paid
other counsel who is representing the for by the court, agency, or official
United States in the case of a judicial compelling his or her appearance or by
proceeding; or by the official or attor- the party on whose behalf he or she ap-
ney representing the United States, in pears.
the case of an administrative pro- (d) An employee of USDA who at-
ceeding. tends a judicial or administrative pro-
(c) The head of the USDA agency ceeding on behalf of a party other than
shall consult with the General Counsel the United States when such appear-
or his or her designee as to whether ance is in his or her official capacity or
there are grounds to oppose the em- arises out of or relates to his or her
ployee’s attendance or production of employment with USDA is required to
documents and, if so, whether to seek collect the authorized fees for such
to quash the summons, subpoena, com- service and remit such fees to his or
pulsory process, or to deny authoriza- her USDA agency.
tion under paragraph (b)(2) of this sec-
§ 1.218 Penalty.
tion.
(d) As appropriate, the General Coun- An employee who testifies or pro-
sel or his or her designee will request duces records in a judicial or adminis-
the assistance of the Department of trative proceeding in violation of the
Justice, a United States Attorney, or provisions of this regulation shall be
other counsel representing the United subject to disciplinary action.
States, in the case of a judicial pro-
ceeding; or of the official or attorney § 1.219 Delegations.
representing the United States, in the (a) Except as provided in paragraphs

case of an administrative proceeding, (b), (c), or (d) of this section, the head
to represent the interest of the em- of a USDA agency may delegate his or
ployee and USDA. her responsibilities under this subpart,
71
including the requirement to be noti- 3809 of Title 31, United States Code, re-
fied of the receipt of a subpoena as pro- quires the Secretary to promulgate
vided in §§ 1.214(a) and 1.216(a) of this regulations necessary to implement
part, to employees of his or her agency the provisions of the statute.
as follows: (b) Purpose. This subpart—
(1) In the National office of the agen- (1) Establishes administrative proce-
cy, to a level no lower than two levels dures for imposing civil penalties and
below the agency head; assessments against persons who make,
(2) In a field component of an agency, submit, or present, or cause to be
to a level no lower than the official made, submitted, or presented, false,
who heads a state office. fictitious, or fraudulent claims or writ-
(b) Notwithstanding paragraph (a) of ten statements to authorities or to
this section, the Chief of the Forest their agents, and
Service may delegate his responsibil- (2) Specifies the hearing and appeal
ities under this subpart as follows: rights of persons subject to allegations
(1) In the National office of the For- of liability for such penalties and as-
est Service, to a level no lower than a sessments.
Deputy Chief of the Forest Service; (c) Scope. The procedures for impos-
(2) In a field component of the Forest ing civil penalties and assessments es-
Service, to a level no lower than a Re- tablished by this subpart are intended
gional Forester or Station Director. to enhance existing administrative en-
(c) Notwithstanding paragraph (a) of forcement efforts against fraud and to
this section, the General Counsel may provide an additional remedy against
delegate his responsibilities under this false, fictitious, and fraudulent claims
subpart as follows: and statements in the programs admin-
(1) In the National office of the Office istered by this Department.
of the General Counsel, to a level no
lower than an Assistant General Coun- § 1.302 Definitions.
sel; (a) Agency means a constituent orga-
(2) In the field component of the Of- nizational unit of the USDA.
fice of the General Counsel, to Re- (b) Agency Fraud Claims Officer—
gional Attorneys who may redelegate (AFCO) means an officer or employee
their responsibilities to Associate Re- of an agency who is designated by the
gional Attorneys and Assistant Re- head of that agency to receive the re-
gional Attorneys who report to them. ports of the investigating official,
(d) The responsibilities assigned to evaluate evidence, and make a rec-
heads of agencies and to Assistant and ommendation to the reviewing official
Under Secretaries in § 1.214(b)(2) of this with respect to the determination re-
part may not be redelegated. quired under § 1.305 of this part.
[58 FR 62495, Nov. 29, 1993; 58 FR 64353, Dec. (c) ALJ means an Administrative Law
6, 1993] Judge in USDA appointed pursuant to 5
U.S.C. 3105 or detailed to the USDA
Subpart L—Procedures Related to pursuant to 5 U.S.C. 3344.
Administrative Hearings Under (d) Authority means the USDA.
(e) Benefits means, except as other-
the Program Fraud Civil Rem- wise defined in this subpart, anything
edies Act of 1986 of value, including but not limited to
any advantage, preference, privilege,
AUTHORITY: 31 U.S.C. 3801–3812. license, permit, favorable decision, rul-
SOURCE: 56 FR 9582, Mar. 7, 1991, unless oth- ing, status, or loan guarantee.
erwise noted. Correctly designated at 57 FR (f) Claim means any request, demand,
3909, Feb. 3, 1992. or submission—
(1) Made to USDA for property, serv-
§ 1.301 Basis, purpose and scope. ices, or money (including money rep-
(a) Basis. This subpart implements resenting grants, loans, insurance, or
the Program Fraud Civil Remedies Act benefits);

of 1986, Public Law No. 99–509, Sections (2) Made to a recipient of property,
6101–6104, 100 Stat. 1874 (1986). This stat- services, or money from USDA or to a
ute added 31 U.S.C. 3801–3812. Section party to a contract with USDA—
72
(i) For property or services if the cating function for the Department
United States— under § 2.35 of this title, or the Sec-
(A) Provided such property or serv- retary if he exercises the authority so
ices; or delegated.
(B) Provided any portion of the funds (o) Knows or has reason to know
for the purchase of such property or means that a person, with respect to a
services; or claim or statement—
(C) Will reimburse such recipient or (1)(i) Has actual knowledge that the
party for the purchase of such property claim or statement is false, fictitious,
or services; or or fraudulent;
(ii) For the payment of money (in- (ii) Acts in deliberate ignorance of
cluding money representing grants, the truth or falsity of the claim or
loans, insurance, or benefits) if the statement; or
United States— (iii) Acts in reckless disregard of the
(A) Provided any portion of the truth or falsity of the claim or state-
money requested or demanded; or ment; and
(B) Will reimburse such recipient or (2) No proof of specific intent to de-
party for any portion of the money fraud is required.
paid on such request or demand; or (p) Makes means presents, submits, or
(3) Made to USDA which has the ef- causes to be made, presented, or sub-
fect of decreasing an obligation to pay mitted. As the context requires,
or account for property, services, or ‘‘making’’ or ‘‘made’’ shall likewise in-
money. clude the corresponding forms of such
(g) Complaint means the written no- terms.
tice served by the reviewing official on (q) Person means any individual,
the respondent under § 1.307 of this partnership, corporation, association,
part. or private organization, and includes
(h) Days means business days for all the plural of that term.
periods referred to in these regulations (r) Representative means an attorney
of 10 days or less and calendar days for who is a member in good standing of
all periods referred to in these regula- the bar of any State, Territory, or pos-
tions in excess of 10 days. session of the United States or of the
(i) Family means the individual’s par- District of Columbia or the Common-
ents, spouse, siblings, children, and wealth of Puerto Rico. This definition
grandchildren with respect to an indi- is not intended to foreclose pro se ap-
vidual making a claim or statement for pearances. An individual may appear
benefits. for himself or herself, and a corpora-
(j) Government means the United tion or other entity may appear by an
States Government. owner, officer, or employee of the cor-
(k) Household means a family or one poration or entity.
or more individuals occupying a single (s) Respondent means any person al-
residence. leged in a complaint issued under § 1.308
(l) Individual means a natural person. of this part to be liable for a civil pen-
(m) Investigating official means the alty or assessment under § 1.303 of this
Inspector General of USDA or an offi- part.
cer or employee of the Office of Inspec- (t) Reviewing official means an officer
tor General designated by the Inspec- or employee of USDA—
tor General and serving in a position (1) Who is designated by the Sec-
for which the rate of basic pay is not retary to make the determination re-
less than the minimum rate of basic quired under § 1.305 of this part;
pay for grade GS–16 under the General (2) Who is serving in a position for
Schedule. which the rate of basic pay is not less
(n) Judicial officer means an official of than the minimum rate of basic pay for
USDA delegated authority by the Sec- grade GS–16 under the General Sched-
retary, pursuant to the Act of April 4, ule; and
1940 (7 U.S.C. 450c–450g) and Reorga- (3) Who is—

nization Plan No. 2 of 1953, 67 Stat. 633, (i) Not subject to supervision by, or
as amended by Public Law No. 97–325 (7 required to report to, the investigating
U.S.C. 2201n.), to perform the adjudi- official; and
73
(ii) Not employed in the organiza- (2) Each voucher, invoice, claim
tional unit of USDA in which the inform, or other individual request or de-
vestigating official is employed. mand for property, services, food cou-
(u) Secretary means the Secretary of pons, or money constitutes a separate
Agriculture. claim.
(v) Statement means any representa- (3) A claim shall be considered made
tion, certification, affirmation, docu- to the USDA, recipient, or party when
ment, record, or accounting or book- such claim is actually made to an
keeping entry made— agent, fiscal intermediary, or other en-
(1) With respect to a claim or to ob- tity, including any State or political
tain the approval or payment of a
subdivision thereof, acting for or on be-
claim (including relating to eligibility
half of the USDA, recipient, or party.
to make a claim); or
(2) With respect to (including relat- (4) Each claim for property, services,
ing to eligibility for)— food coupons, or money is subject to a
(i) A contract with, or a bid or pro- civil penalty regardless of whether
posal for a contract with; or such property, services, food coupons,
(ii) A grant, loan, or benefit from, or money is actually delivered or paid.
USDA, or any State, political subdivi- (5) If the Government has made pay-
sion of a State, or other party, if the ment (including transferred property
United States Government provides or provided services) on a claim, a per-
any portion of the money or property son subject to a civil penalty under
under such contract or for such grant, paragraph (a)(1) of this section shall
loan, or benefit, or if the Government also be subject to an assessment of not
will reimburse such State, political more than twice the amount of such
subdivision, or party for any portion of claim or that portion thereof that is
the money or property under such con- determined to be in violation of para-
tract or for such grant, loan, or ben- graph (a)(1) of this section. Such as-
efit. sessment shall be in lieu of damages
(w) USDA means the U.S. Depart- sustained by the Government because
ment of Agriculture. of such claim.
§ 1.303 Basis for civil penalties and as- (b) Statements. (1) Except as provided
sessments. in paragraph (c) of this section, any
(a) Claims. (1) Except as provided in person who makes a written statement
paragraph (c) of this section, any per- that—
son who makes a claim that the person (i) The person knows or has reason to
knows or has reason to know— know—
(i) Is false, fictitious, or fraudulent; (A) Asserts a material fact which is
(ii) Includes or is supported by any false, fictitious, or fraudulent; or
written statement which asserts a ma- (B) Is false, fictitious, or fraudulent
terial fact which is false, fictitious, or because it omits a material fact that
fraudulent; the person making the statement had a
(iii) Includes or is supported by any duty to include in such statement; and
written statement that— (ii) Contains or is accompanied by an
(A) Omits a material fact; express certification or affirmation of
(B) Is false, fictitious, or fraudulent the truthfulness and accuracy of the
as a result of such omission; and contents of the statement, shall be sub-
(C) Is a statement in which the per- ject, in addition to any other remedy
son making such statement has a duty that may be prescribed by law, to a
to include such material fact; or
civil penalty of not more than the
(iv) Is for payment for the provision
amount specified at § 3.91(b)(11)(ii) of
of property or services which the per-
son has not provided as claimed,shall this title for each such statement.
be subject, in addition to any other (2) Each written representation, cer-
tification, or affirmation constitutes a
remedy that may be prescribed by law,

to a civil penalty of not more than the separate statement.
amount specified at § 3.91(b)(11)(i) of
this title for each such claim.
74
(3) A statement shall be considered cluding transferred property or pro-

made to the USDA when such state- vided services), an assessment may be
ment is actually made to an agent, fis- imposed against any such person or
cal intermediary, or other entity, in- jointly and severally against any com-
cluding any State or political subdivi- bination of such persons. The aggre-
sion thereof, acting for or on behalf of gate amount of the assessments col-
the USDA. lected with respect to such claim shall
(c) Benefits. (1) In the case of any not exceed twice the portion of such
claim or statement made by any indi- claim determined to be in violation of
vidual relating to any of the benefits paragraph (a)(1) of this section.
listed in paragraph (c)(2) of this section
[56 FR 9582, Mar. 7, 1991. Correctly designated
received by such individual, such indi- at 57 FR 3909, Feb. 3, 1992, as amended at 75
vidual may be held liable for penalties FR 17556, Apr. 7, 2010]
and assessments under this section
only if such claim or statement is § 1.304 Investigation.
made by such individual in making ap-
plication for such benefits with respect (a) The investigating official may in-
to such individual’s eligibility to re- vestigate allegations that a person is
ceive such benefits. liable under § 1.303 of this part.
(2) For purposes of this paragraph, (b) If an investigating official con-
the term benefits means— cludes that a subpoena pursuant to the
(i) Benefits under the food stamp pro- authority conferred by 31 U.S.C. 3804(a)
gram established under the Food is warranted, the investigating officer
Stamp Act of 1977 which are intended may issue a subpoena, which shall no-
as food assistance for the personal use tify the person to whom it is addressed
of the individual who receives the ben- of the authority under which it is
efits or for a member of the individ- issued and shall identify the informa-
ual’s family or household (as defined in tion, documents, reports, answers,
section 3(h) of the Food Stamp Act of records, accounts, papers, or data
1977); sought.
(ii) Benefits under the National (c) The investigating official may
School Lunch Act; designate a person to act on his behalf
(iii) Benefits under any housing as- to receive the documents or other ma-
sistance program for lower income terials sought by a subpoena issued
families or elderly or handicapped per- under paragraph (b) of this section.
sons which is administered by the Sec- (d) The person receiving such sub-
retary or USDA; poena shall be required to tender to the
(iv) Benefits under the special supple- investigating official or the person des-
mental food program for women, in- ignated to receive the documents a cer-
fants, and children established under tification that the documents or other
section 17 of the Child Nutrition Act of materials sought have been produced,
1966 which are intended for the per- or that such documents or other mate-
sonal use of the individual who receives rials are not available and the reasons
the benefits or for a member of the in- therefore, or that such documents or
dividual’s family or household. other materials, suitably identified,
(d) Intent. No proof of specific intent have been withheld based upon the as-
to defraud is required to establish li- sertion of an identified privilege.
ability under this section. (e) Each agency shall develop criteria
(e) More than one person liable. In any for determining which allegations that
case in which it is determined that a person is liable under § 1.303 of this
more than one person is liable for mak- part are to be referred to the inves-
ing a claim or statement under this tigating official.
section, each person may be held liable (f) If the investigating official con-
for a civil penalty under this section. cludes that an action under the Pro-
(f) Joint and several liability. In any gram Fraud Civil Remedies Act may be
case in which it is determined that warranted, the investigating official

more than one person is liable for mak- shall submit a report containing find-
ing a claim under this section on which ings and conclusions of such investiga-
the government has made payment (in- tion to the reviewing official.
75
(g) Nothing in this section shall pre- (6) A statement that there is a rea-
clude or limit an investigating offi- sonable prospect of collecting the
cial’s discretion to refer allegations di- amount specified in § 1.307(b)(2) of this
rectly to the Department of Justice for part and the reasons supporting such
suit under the False Claims Act or statement.
other civil relief, nor preclude or limit
such official’s discretion to defer or § 1.306 Prerequisites for issuing a com-
postpone a report or referral to the re- plaint.
viewing official in order to avoid inter- The reviewing official may issue a
ference with a criminal investigation complaint under § 1.307 of this part only
or prosecution. if:
(h) Nothing in this section modifies (a) The Attorney General or an As-
any responsibility of an investigating sistant Attorney General designated by
official to report violations of criminal the Attorney General approves the
law to the Attorney General. issuance of a complaint in a written
statement as provided in 31 U.S.C.
§ 1.305 Review by the reviewing offi- 3803(b)(1);
cial. (b) In the case of allegations of liabil-
(a) Upon receipt of the report of the ity under § 1.303(a) of this part with re-
investigating official, the reviewing of- spect to a claim, the reviewing official
ficial may refer the report to the ap- determines with respect to such claim,
propriate agency fraud claims officer or a group of related claims submitted
(AFCO) for a recommendation with re- at the same time, that the amount of
spect to the determination required money or the value of property or serv-
under this section. ices demanded or requested in viola-
(b) The AFCO shall evaluate the evi- tion of § 1.303(a) of this part does not
dence and make a recommendation to exceed $150,000; and
the reviewing officer within 45 days of (c) For the purposes of this section, a
receipt of the report of the inves- group of related claims submitted at
tigating official. the same time shall include only those
(c) The reviewing official is not claims arising from the same trans-
bound by the recommendation of the action (e.g., a single grant, loan, appli-
AFCO, and may accept or reject it. cation, or contract) that are submitted
(d) If, based on the report of the in- simultaneously as part of a single re-
vestigating official under § 1.304(f) of quest, demand, or submission, regard-
this part, the reviewing official deter- less of the amount of money or the
mines that there is adequate evidence value of property or services demanded
to believe that a person is liable under or requested.
§ 1.303 of this part, the reviewing offi- (d) Nothing in this section shall be
cial shall transmit to the Attorney construed to limit the reviewing offi-
General a written notice of the review- cial’s authority to join in a single com-
ing official’s intention to issue a complaint against a person claims that are
plaint under § 1.307 of this part. unrelated or were not submitted simul-
(e) Such notice shall include— taneously, regardless of the amount of
(1) A statement of the reviewing offi- money or the value of property or serv-
cial’s reasons for issuing a complaint; ices demanded or requested.
(2) A statement of the evidence that
supports the allegations of liability; § 1.307 Complaint.
(3) A description of the claims or (a) On or after the date the Depart-
statements upon which the allegations ment of Justice approves the issuance
of liability are based; of a complaint in accordance with 31
(4) An estimate of the amount of U.S.C. 3803(b)(1), the reviewing official
money or the value of property, serv- may serve a complaint on the respond-
ices, or other benefits requested or de- ent, as provided in § 1.308 of this part.
manded in violation of § 1.303 of this (b) The complaint shall state—
part; (1) The allegations of liability, in-

(5) A statement of any exculpatory or cluding the statutory basis for liabil-
mitigating circumstances that may re- ity, an identification of the claims or
late to the claims or statements; statements that are the basis for the
76
alleged liability, and the reasons that (5) May request a hearing.
liability allegedly arises from such
claims or statements; § 1.310 Default upon failure to file an
(2) The maximum amount of pen- answer.
alties and assessments for which the (a) If the respondent does not file an
respondent may be held liable; answer within the time prescribed in
(3) Instructions for requesting a hear- § 1.309(a) of this part, the reviewing of-
ing, including a specific advice of the ficial may refer the complaint together
respondent’s right to request a hearing with proof of service to the ALJ and re-
and to be represented by a representa- quest that the ALJ issue an order of
tive; and default imposing the penalties and as-
(4) That failure to file an answer sessments sought in the complaint. An
within 30 days of service of the com- answer must comply in all material re-
plaint may result in the imposition of spects with § 1.309(b) of this part in
the penalty and assessment sought in order to be considered filed within the
the complaint without right to appeal. time prescribed in § 1.310(a) of this part.
(c) At the same time the reviewing (b) Upon the referral of the complaint
official serves the complaint, he or she under paragraph (a) of this section, the
shall serve the respondent with a copy ALJ shall promptly serve on the re-
of these regulations. spondent, in the manner prescribed in
§ 1.308 Service of complaint and notice § 1.308 of this part, a notice that a deci-
of hearing. sion will be issued under this section.
(c) If the respondent fails to answer,
(a) Service of a complaint or notice
the ALJ shall assume the facts alleged
of hearing shall be made by certified or
in the complaint to be true and, if such
registered mail or by delivery in any
facts establish liability under § 1.303 of
manner authorized by Rule 4(d) of the
this part, the ALJ shall issue a deci-
Federal Rules of Civil Procedure.
sion imposing the penalties and assess-
(b) Proof of service, stating the name
ments sought in the complaint, not to
and address of the person on whom the
exceed the maximum amount allowed
notice was served, and the manner and
under the statute.
date of service, shall be made by:
(1) Affidavit of the individual making (d) A respondent who fails to file a
service; timely answer waives any right to a re-
(2) An acknowledged United States view of the penalty and assessment,
Postal Service return receipt card; or unless he can demonstrate extraor-
(3) Written acknowledgment by the dinary circumstances justifying the
respondent or his representative. failure to file an answer.
§ 1.309 Answer and request for hear- § 1.311 Referral of complaint and an-
ing. swer to the ALJ.
(a) Within 30 days of the date of re- Upon receipt of an answer, the re-
ceipt or refusal to accept service of the viewing official shall send to the ALJ
complaint, the respondent may file an copies of the complaint, proof of serv-
answer with the reviewing official. ice, and the answer.
(b) In the answer, the respondent—
(1) Shall admit or deny each of the § 1.312 Procedure where respondent
allegations of liability made in the does not request a hearing.
complaint; (a) If the respondent files an answer
(2) Shall state any defense upon with the reviewing official within the
which the respondent intends to rely; time period prescribed in § 1.309(a) of
(3) Shall state the name, address, and this part but does not request a hear-
telephone number of the person author- ing, the ALJ, upon receipt of the com-
ized to act as the respondent’s rep- plaint, proof of service, and answer,
resentative, if any; shall notify the respondent that a deci-
(4) May state any reasons why the re- sion will be issued under this section
spondent contends the penalty and as- and shall afford the parties 30 days in
sessment should be reduced or modi- which to submit documentary evidence
fied; and or other relevant written information,
77
including briefs or other written argu- senting a particular case may, in such
ments. At the end of that period, the case or in a factually related case—
ALJ shall issue a decision based upon (1) Conduct the hearing in such case;
the pleadings and the evidence sub- (2) Participate in or advise the ALJ
mitted, or if no evidence has been sub- in the decision in such case, or partici-
mitted, upon the pleadings. The burden pate in or advise in the review of the
of proof shall be as set forth in § 1.329 of decision in such case by the judicial of-
this part. ficer, except as a witness or representa-
(b) When a decision is to be issued tive in public proceedings; or
under this section, the ALJ shall have (3) Make the collection of penalties
discretion to permit, allow, limit, or and assessments under § 1.341 of this
otherwise control discovery to the ex- part.
tent set forth under §§ 1.322 thru 1.324 of (b) The ALJ shall not be responsible
this part. to or subject to the supervision or di-
rection of the investigating official or
§ 1.313 Procedure where respondent the reviewing official.
requests a hearing; notice of hear- (c) Except to the extent limited by
ing. paragraph (a) of this section, the rep-
(a) When the ALJ receives the com- resentative for USDA may be employed
plaint, proof of service, and an answer in any constituent agency of USDA, in-
requesting a hearing, the ALJ shall cluding the offices of either the inves-
promptly serve, in accordance with tigating official or the reviewing offi-
§ 1.308 of this part, a notice of hearing cial.
on all parties.
(b) Such notice shall include: § 1.316 Ex parte contacts.
(1) The tentative time and place, and Except to the extent required for the
the nature of the hearing; disposition of ex parte matters as au-
(2) The legal authority and jurisdic- thorized by law, the ALJ shall not con-
tion under which the hearing is to be sult or be consulted by any person or
held; party (except employees of the ALJ’s
(3) The matters of fact and law to be office) on any matter in issue, unless
asserted; on notice and opportunity for all par-
(4) A description of the procedures for ties to participate.
the conduct of the hearing; § 1.317 Disqualification of reviewing
(5) The name, address, and telephone official or ALJ.
number of the representative for the
USDA and the representative for the (a) A reviewing official or ALJ in a
respondent, if any; and particular case may disqualify himself
or herself at any time.
(6) Such other matters as the ALJ
(b) A party may file with the ALJ a
deems appropriate.
motion for disqualification of a review-
§ 1.314 Parties to the hearing. ing official or an ALJ. Such motion
shall be accompanied by an affidavit
(a) The parties to the hearing shall alleging personal bias or other reason
be the respondent and USDA. The pro- for disqualification.
ceeding shall be brought in the name of (c) Such motion and affidavit shall be
the Secretary. filed promptly upon the party’s dis-
(b) Pursuant to 31 U.S.C. 3730(c)(5), a covery of reasons requiring disquali-
private party plaintiff under the False fication, or such objections shall be
Claims Act may participate in pro- deemed waived.
ceedings under this subpart to the ex- (d) Such affidavit shall state specific
tent authorized by the provisions of facts that support the party’s belief
that Act. that personal bias or other reason for
disqualification exists and the time
§ 1.315 Separation of functions. and circumstances of the party’s dis-
(a) Neither the investigating official, covery of such facts. It shall be accom-
the reviewing official, nor any em- panied by a certificate of the rep-
ployee or agent of the USDA who takes resentative of record that it is made in
part in investigating, preparing, or pre- good faith.
78
(e) Upon the filing of such a motion (5) Issue subpoenas requiring the at-
and affidavit, the ALJ shall proceed no tendance of witnesses and the produc-
further in the case until he or she re- tion of documents at depositions or at
solves the matter of disqualification in hearings;
accordance with paragraph (f). (6) Rule on motions and other proce-
(f)(1) If the ALJ determines that a re- dural matters;
viewing official is disqualified, the ALJ (7) Regulate the scope and timing of
shall dismiss the complaint without discovery;
prejudice. (8) Regulate the course of the hearing
(2) If the ALJ disqualifies himself or and the conduct of attorneys and par-
herself, the case shall be reassigned ties;
promptly to another ALJ. (9) Examine witnesses;
(3) If the ALJ denies a motion to dis- (10) Receive, rule on, exclude, or
qualify, the authority head may deter- limit evidence;
mine the matter only as part of his or (11) Upon motion of a party take offi-
her review of the initial decision upon cial notice of facts;
appeal, if any. (12) Upon motion of a party, decide
cases, in whole or in part, by summary
§ 1.318 Rights of parties. judgment where there is no disputed
All parties may: issue of material fact;
(a) Be accompanied, represented, and (13) Conduct any conference, argu-
advised by a representative; ment, or hearing on motions in person
(b) Participate in any prehearing or or by telephone; and
post-hearing conference held by the (14) Exercise such other authority as
ALJ; is necessary to carry out the respon-
(c) Agree to stipulations of fact or sibilities of the ALJ under this sub-
law, which shall be made part of the part.
record; (c) The ALJ does not have the au-
(d) Conduct discovery; thority to decide upon the validity of
(e) Make opening and closing state- Federal statutes, regulations, or legal
ments at the hearing; opinions.
(f) Present evidence relevant to the
issues at the hearing; § 1.320 Prehearing conferences.
(g) Cross examine witnesses; (a) The ALJ may schedule a pre-
(h) Present oral arguments at the hearing conference at a reasonable
hearings; and time in advance of the hearing and
(i) Submit written briefs, proposed may schedule additional prehearing
findings of fact, and proposed conclu- conferences as appropriate.
sions of law after the hearing. (b) The ALJ may conduct any pre-
hearing conference in person or by tele-
§ 1.319 Authority of the ALJ. phone.
(a) The ALJ shall conduct a fair and (c) The ALJ may use prehearing con-
impartial hearing, avoid delay, main- ferences to discuss the following mat-
tain order, and assure that a record of ters:
the proceedings is made. (1) Simplification of the issues;
(b) The ALJ may: (2) The necessity or desirability of
(1) Set and change the date, time, amendments to the pleadings, includ-
and place of the hearing upon reason- ing the need for a more definite state-
able notice to the parties; ment;
(2) Continue or recess the hearing in (3) Stipulations, admissions of fact or
whole or part for a reasonable period of as to the contents and authenticity of
time; documents;
(3) Hold conferences to identify or (4) Whether the parties can agree to
simplify the issues, or to consider submission of the case on a stipulated
other matters that may aid in the ex- record;

peditious disposition of the proceeding; (5) Whether a party chooses to waive
(4) Administer oaths and affirma- appearance at an oral hearing and to
tions; submit only documentary evidence
79
(subject to the objection of other par- (1) Requests for production, inspec-
ties) and written argument. tion and photocopying of documents;
(6) Limitation of the number of wit- (2) Requests for admission of the au-
nesses; thenticity of any relevant document or
(7) Scheduling dates for the exchange the truth of any relevant fact;
of witness lists and of proposed exhib- (3) Written interrogatories; and
its; (4) Depositions.
(8) Discovery; (b) The ALJ shall set the schedule for
(9) The time and place for the hear- discovery.
ing; and (c) Requests for production of docu-
(10) Such other matters as may tend ments and requests for admission.
to expedite the fair and just disposition (1) A party may serve requests for
of the proceedings. production of documents or requests
(d) The ALJ shall issue an order con- for admission on another party.
taining all matters agreed upon by the (2) If a party served with such re-
parties or ordered by the ALJ at a pre- quests fails to respond timely, the re-
hearing conference. questing party may file a motion to
compel production or deem admissions,
§ 1.321 Disclosure of documents. as appropriate.
(a) Upon written request to the re- (3) A party served with such a request
viewing official, the respondent may may file a motion for a protective
review any relevant and material docu- order before the date on which a re-
ments, transcripts, records, and other sponse to the discovery request is due,
materials that relate to the allegations stating reasons why discovery should
set out in the complaint and upon be limited or should not be required.
which the findings and conclusions of (4) Within 15 days of service of a mo-
the investigating official under tion to compel or to deem matter ad-
§ 1.304(f) of this part are based unless mitted or a motion for a protective
such documents are privileged under order, the opposing party may file a re-
Federal law. Upon payment of fees for sponse.
duplication, the defendant may obtain (5) The ALJ may grant a motion to
copies of such documents. compel production or deem matter ad-
(b) Upon written request to the re- mitted or may deny a motion for a pro-
viewing official, the respondent also tective order only if he finds that—
may obtain a copy of all exculpatory (i) The discovery sought is necessary
information in the possession of the re- for the expeditious, fair, and reason-
viewing official or investigating offi- able consideration of the issues;
cial relating to the allegations in the (ii) It is not unduly costly or burden-
complaint, even if it is contained in a some;
document that would otherwise be (iii) It will not unduly delay the pro-
privileged. If the document would oth- ceeding; and
erwise be privileged, only that portion (iv) The information sought is not
containing exculpatory information privileged.
must be disclosed. (d) Depositions and written interrog-
(c) The notice sent to the Attorney atories. Depositions and written inter-
General from the reviewing official as rogatories are permitted only on the
described in § 1.305 of this part is not order of the ALJ.
discoverable under any circumstances. (1) A party seeking to use depositions
(d) The respondent may file a motion or written interrogatories may file a
to compel disclosure of the documents motion with the ALJ.
subject to the provisions of this sec- (2) A party and/or the potential depo-
tion. Such a motion may be filed with nent may file an opposition to the mo-
the ALJ following the filing of the an- tion or a motion for a protective order
swer pursuant to § 1.309 of this part. within 10 days of service of the motion.
(3) The ALJ may grant a motion al-

§ 1.322 Discovery. lowing the taking of a deposition or
(a) The following types of discovery the use of interrogatories or may deny
are authorized: a motion for a protective order only if
80
he finds that the moving party has sat- ies of prior statements of proposed wit-
isfied the standards set forth in para- nesses, and copies of proposed hearing
graph (c)(5) of this section and has exhibits, including copies of any writ-
shown that the information sought ten statements or depositions that a
cannot be obtained by any other party intends to offer in lieu of live
means. testimony in accordance with § 1.331(b)
(4) If the ALJ grants a motion per- of this part, shall be exchanged at least
mitting a deposition, he shall issue a 15 days in advance of the hearing, or at
subpoena, which may also require the such other time as may be set by the
witness to produce documents. The ALJ. A witness whose name does not
party seeking to depose shall serve the appear on the witness list shall not be
subpoena in the manner prescribed in permitted to testify and no exhibit not
§ 1.308 of this part. provided to the opposing party as pro-
(5) The party seeking to depose shall vided above shall be admitted into evi-
provide for the taking of a verbatim dence at the hearing absent a showing
transcript of the deposition, which it of good cause.
shall make available to all other par-
ties for inspection and copying. § 1.323 Subpoenas for attendance at
(e) Costs. The costs of discovery shall hearing.
be borne by the party seeking dis- (a) A party wishing to procure the
covery. appearance and testimony at the hear-
(f) In issuing a protective order, the ing of any individual may request that
ALJ may make any order which justice the ALJ issue a subpoena.
requires to protect a party or person
(b) A subpoena requiring the attend-
from annoyance, embarrassment, op-
ance and testimony of an individual
pression, or undue burden or expense,
may also require the individual to
including one or more of the following:
produce documents at such hearing.
(1) That the discovery not be had;
(2) That the discovery may be had (c) A party who desires the issuance
only on specified terms and conditions, of a subpoena shall file with the ALJ a
including a designation of the time or written request not less than 15 days
place; before the date fixed for the hearing
(3) That the discovery may be had unless otherwise allowed by the ALJ
only through a method of discovery for good cause shown. Such request
other than that requested; shall specify any documents to be pro-
(4) That certain matters not be induced and shall designate the witnesses
quired into, or that the scope of dis- whose attendance is sought to be re-
covery be limited to certain matters; quired and describe their addresses and
(5) That discovery be conducted with locations with sufficient particularity
no one present except persons des- to permit such witnesses to be found.
ignated by the ALJ; The subpoena shall specify the time
(6) That the contents of discovery or and place at which the witness is to ap-
evidence be sealed; pear and any documents the witness is
(7) That a deposition after being to produce. Such a request may be
sealed be opened only by order of the made ex parte.
ALJ; (d) When the ALJ issues a subpoena
(8) That a trade secret or other con- under this section, the party who re-
fidential research, development, com- quested such subpoena shall serve all
mercial information or facts pertaining other parties with notice of the names
to any criminal investigation, pro- and addresses of the individuals sub-
ceeding, or other administrative inves- poenaed and specify any documents re-
tigation not be disclosed or be dis- quired to be produced.
closed only in a designated way; or (e) A subpoena shall be served by de-
(9) That the parties simultaneously livery, or by registered mail or by cer-
file specified documents or information tified mail in the manner prescribed in
enclosed in sealed envelopes to be § 1.308 of this part. A subpoena upon a

opened as directed by the ALJ. party or upon an individual under the
(g) Exchange of witness lists, state- control of a party may be served by
ments, and exhibits. Witness lists, cop- first class mail.
81
(f) A party or the individual to whom personal delivery or by mail, setting

the subpoena is directed may file a mo- forth the manner of service, shall be
tion to quash the subpoena within five proof of service.
days of service or on or before the time
specified in the subpoena for compli- § 1.326 Computation of time.
ance if it is less than five days after (a) In computing any period of time
service. under this part or in an order issued
thereunder, the time begins with the
§ 1.324 Fees. day following the act, event, or default,
The party requesting a subpoena and includes the last day of the period,
shall pay the cost of the fees and mile- unless it is a Saturday, Sunday, or
age of any witness subpoenaed in the legal holiday observed by the Federal
amounts that would be payable to a Government, in which event it includes
witness in a proceeding in United the next business day.
States District Court. A check for wit- (b) When the period of time allowed
ness fees and mileage shall accompany is ten or fewer calendar days, inter-
the subpoena when served, except that mediate Saturdays, Sundays, and legal
when a subpoena is issued on behalf of holidays observed by the Federal Gov-
USDA, a check for witness fees and ernment shall be excluded from the
mileage need not accompany the sub- computation.
poena. (c) When a document has been served
by mail, an additional five days will be
§ 1.325 Form, filing and service of pa- added to the time permitted for any re-
pers. sponse.
(a) Form. (1) The original and two
copies of all papers in a proceeding § 1.327 Motions.
conducted under this subpart shall be (a) Motions shall state the relief
filed with the ALJ assigned to the case. sought, the authority relied upon, and
(2) Every pleading and paper filed in the facts alleged, and shall be filed
the proceeding shall contain a caption with the ALJ and served on all other
setting forth the title of the action, the parties.
case number assigned by the ALJ, and (b) Except for motions made during a
a designation of the paper (e.g., motion prehearing conference or at the hear-
to quash subpoena). ing, all motions shall be in writing.
(3) Every pleading and paper shall be The ALJ may require that oral mo-
signed by and shall contain the address tions be reduced to writing.
and telephone number of the represent- (c) The ALJ may require written mo-
ative for the party or the person on tions to be accompanied by supporting
whose behalf the paper was filed. memorandums.
(4) Papers are considered filed when (d) Within 15 days after a written mo-
they are mailed. Date of mailing may tion is served, or such other time as
be established by a certificate from the may be fixed by the ALJ, any party
party or his representative or by proof may file a response to such motion.
that the document was sent by cer- (e) The ALJ may not grant a written
tified or registered mail. motion prior to expiration of the time
(b) Service. A party filing a document for filing responses thereto, except
with the ALJ shall, at the time of fil- upon consent of the parties or fol-
ing, serve a copy of such document on lowing a hearing, but may overrule or
every other party. Service upon any deny such motion without awaiting a
party of any document other than the response.
complaint or notice of hearing shall be (f) The ALJ shall make every reason-
made by delivering or mailing a copy able effort to dispose of all outstanding
to the party’s last known address. motions prior to the beginning of the
When a party is represented by a rep- hearing.
resentative, service shall be made upon
§ 1.328 Sanctions.
such representative in lieu of the ac-

tual party. (a) The ALJ may sanction a person,
(c) Proof of service. A certificate of including any party or representative
the person serving the document by for:
82
(1) Failing to comply with a lawful tors by a preponderance of the evi-

order, subpoena, or procedure; dence.
(2) Failing to prosecute or defend an (c) The respondent shall prove any af-
action; or firmative defenses and any mitigating
(3) Engaging in other misconduct factors by a preponderance of the evi-
that interferes with the speedy, or- dence.
derly, or fair conduct of the hearing. (d) The hearing shall be open to the
(b) Any such sanction, including but public unless otherwise ordered by the
not limited to those listed in para- ALJ for good cause shown.
graphs (c), (d), and (e) of this section,
shall reasonably relate to the severity § 1.330 Location of hearing.
and nature of the failure or mis- (a) The hearing may be held—
conduct. (1) In any judicial district of the
(c) When a party fails to comply with United States in which the respondent
a subpoena or an order, including an resides or transacts business;
order for taking a deposition, the pro- (2) In any judicial district of the
duction of evidence within the party’s United States in which the claim or
control, or a request for admission, the statement in issue was made; or
ALJ may:
(3) In such other place as may be
(1) Draw an inference in favor of the
agreed upon by the respondent and the
requesting party with regard to the in-
ALJ.
formation sought;
(b) Each party shall have the oppor-
(2) In the case of requests for admis-
tunity to present argument with re-
sion, deem admitted each item as to
spect to the location of the hearing.
which an admission is requested;
(3) Prohibit the party failing to com- (c) The ALJ shall issue an order to
ply with such order from introducing the parties designating the time and
evidence concerning, or otherwise rely- the place of the hearing.
ing upon testimony relating to the in- § 1.331 Witnesses.
formation sought;
(4) Strike any part of the pleadings (a) Except as provided in paragraph
or other submissions of the party fail- (b) of this section, testimony at the
ing to comply with such request; or hearing shall be given orally by wit-
(5) Request that the Attorney Gen- nesses under oath or affirmation.
eral petition an appropriate district (b) At the discretion of the ALJ, tes-
court for an order to enforce a sub- timony may be admitted in the form of
poena. a written statement or deposition. Any
(d) If a party fails to prosecute or de- such written statement must be pro-
fend an action under this subpart com- vided to all other parties along with
menced by service of a complaint, the the last known address of such witness,
ALJ may dismiss the action or enter in a manner which allows sufficient
an initial decision imposing penalties time for other parties to subpoena such
and assessments. witness for cross-examination at the
(e) The ALJ may refuse to consider hearing. Prior written statements of
any motion or other action which is witnesses proposed to testify at the
not filed in a timely fashion. hearing and deposition transcripts
shall be exchanged as provided in
§ 1.329 The hearing and burden of § 1.322(g) of this part.
proof. (c) The ALJ shall permit the parties
(a) The ALJ shall conduct a hearing to conduct such cross-examination as
on the record in order to determine may be required for a full and true dis-
whether the respondent is liable for a closure of the facts.
civil penalty or assessment under (d) A witness may be cross-examined
§ 1.303 of this part, and if so, the appro- on any matter relevant to the pro-
priate amount of any such civil penalty ceeding without regard to the scope of
or assessment considering any aggra- his or her direct examination.

vating or mitigating factors. (e) Upon motion of any party, the
(b) The USDA shall prove respond- ALJ shall order witnesses excluded so
ent’s liability and any aggravating fac- that they cannot hear the testimony of
83
other witnesses. This rule does not au- stitute the record for the decision by
thorize exclusion of— the ALJ and the judicial officer.
(1) A party who is an individual; (c) The record may be inspected and
(2) In the case of a party that is not copied (upon payment of a reasonable
an individual, an officer or employee of fee) by anyone unless otherwise or-
the party designated by the representa- dered by the ALJ.
tive; or
(3) An individual whose presence is § 1.334 Post-hearing briefs.
shown by a party to be essential to the The ALJ may require the parties to
presentation of its case, including an file post-hearing briefs. In any event,
individual employed by the USDA en- any party may file a post-hearing brief.
gaged in assisting the representative The ALJ shall fix the time for filing
for USDA. such briefs, not to exceed 60 days from
the date the parties receive the tran-
§ 1.332 Evidence. script of the hearing or, if applicable,
(a) The ALJ shall determine the ad- the stipulated record. Such briefs may
missibility of evidence. be accompanied by proposed findings of
(b) Except as provided herein, the fact and conclusions of law. The ALJ
Federal Rules of Evidence are not ap- may permit the parties to file reply
plicable to the hearing, except that the briefs.
ALJ may in his discretion apply the § 1.335 Determining the amount of
Federal Rules of Evidence in order to penalties and assessments.
assure production of credible evidence.
(a) In determining an appropriate
(c) The ALJ shall exclude irrelevant
amount of civil penalties and assess-
and immaterial evidence.
ments, the ALJ and the judicial officer,
(d) Although relevant, evidence may
upon appeal, should evaluate any cir-
be excluded if its probative value is
cumstances that mitigate or aggravate
substantially outweighed by the danger
the violation and should articulate in
of unfair prejudice, confusion of the
their opinions the reasons that support
issues, or by considerations of undue
the penalties and assessments they im-
delay or needless presentation of cumu-
pose. Because of the intangible costs of
lative evidence.
fraud, the expense of investigating
(e) Although relevant, evidence may such conduct, and the need to deter
be excluded if it is privileged under others who might be similarly tempt-
Federal law. ed, ordinarily double damages and a
(f) Evidence concerning offers of com- significant civil penalty should be im-
promise or settlement shall be inad- posed.
missible to the extent provided in Rule (b) Although not exhaustive, the fol-
408 of the Federal Rules of Evidence. lowing factors are among those that
(g) The ALJ shall permit the parties may influence the ALJ and the judicial
to introduce rebuttal witnesses and officer in determining the amount of
evidence. penalties and assessments to impose
(h) All documents and other evidence with respect to the misconduct (i.e.,
offered or taken for the record shall be the false, fictitious, or fraudulent
open to examination by all parties un- claims or statements) charged in the
less otherwise ordered by the ALJ pur- complaint:
suant to § 1.322 of this part. (1) The number of false, fictitious, or
fraudulent claims or statements;
§ 1.333 The record. (2) The time period over which such
(a) The hearing will be recorded and claims or statements were made;
transcribed. Transcripts may be ob- (3) The degree of the respondent’s
tained from the reporter by anyone at culpability with respect to the mis-
a cost not to exceed the actual cost of conduct;
duplication. (4) The amount of money or the value
(b) The transcript of testimony, ex- of the property, services, or benefit

hibits and other evidence admitted at falsely claimed;
the hearing, and all papers and re- (5) The value of the Government’s ac-
quests filed in the proceeding con- tual loss as a result of the misconduct,
84
including foreseeable consequential amount of any penalties and assess-

damages and the costs of investigation; ments imposed.
(6) The relationship of the amount (b) The findings of fact shall include
imposed as civil penalties to the a finding on each of the following
amount of the Government’s loss; issues for every claim or statement
(7) The potential or actual impact of with respect to which a penalty or as-
the misconduct upon national defense, sessment was proposed:
public health or safety, or public con- (1) Whether any claim or statement
fidence in the management of Govern- identified in the complaint violates
ment programs and operations, includ- § 1.303 of this part;
ing particularly the impact on the in- (2) If the respondent is liable for pen-
tended beneficiaries of such programs; alties or assessments, the appropriate
(8) Whether the respondent has en- amount of any such penalties or assess-
gaged in a pattern of the same or simi- ments considering any mitigating or
lar misconduct; aggravating factors described in § 1.335
(9) Whether the respondent at- of this part.
tempted to conceal the misconduct; (c) The ALJ shall serve the initial de-
(10) The degree to which the respond- cision on all parties within 90 days
ent has involved others in the mis- after the time for submission of post-
conduct or in concealing it; hearing briefs and reply briefs (if per-
(11) Where the misconduct of employ- mitted) has expired. The ALJ shall in-
ees or agents is imputed to the re- clude with the initial decision a state-
spondent, the extent to which the re- ment describing the right of any re-
spondent’s practices fostered or at- spondent determined to be liable for a
tempted to preclude such misconduct; civil penalty or assessment to file no-
(12) Whether the respondent cooper- tice of appeal with the judicial officer.
ated in or obstructed an investigation The ALJ may extend the time period
of the misconduct; for serving the initial decision on the
(13) Whether the respondent assisted parties.
in identifying and prosecuting other (d) Unless the initial decision of the
wrongdoers; ALJ is timely appealed to the judicial
(14) The complexity of the program officer, or a motion for reconsideration
or transaction, and the degree of the of the initial decision is timely filed,
respondent’s sophistication with re- the initial decision shall constitute the
spect to it, including the extent of the final decision of the Secretary and
respondent’s prior participation in the shall be final and binding on the par-
program or in similar transactions; ties 30 days after it is issued by the
(15) Whether the respondent has been ALJ.
found, in any criminal, civil, or admin-
istrative proceeding to have engaged in § 1.337 Reconsideration of initial deci-
similar misconduct or to have dealt sion.
dishonestly with the government of the (a) Except as provided in paragraph
United States or of a State, directly or (d) of this section, any party may file a
indirectly; and motion for reconsideration of the ini-
(16) The need to deter the respondent tial decision within 20 days of receipt
and others from any engaging in the of the initial decision. If service was
same or similar misconduct. made by mail, receipt will be presumed
(c) Nothing in this section shall be to be five days from the date of mailing
construed to limit the ALJ or the judi- in the absence of contrary proof.
cial officer from considering any other (b) Every such motion must set forth
factors that in any given case may the matters claimed to have been erro-
mitigate or aggravate the acts for neously decided and the nature of the
which penalties and assessments are alleged errors. Such motion shall be
imposed. accompanied by a supporting brief.
(c) Responses to such motions shall
§ 1.336 Initial decision of the ALJ.
be allowed only upon request of the

(a) The ALJ shall issue an initial de- ALJ.
cision, which shall contain findings of (d) No party may file a motion for re-
fact, conclusions of law, and the consideration of an initial decision
85
that has been revised in response to a reconsideration under § 1.337 of this

previous motion for reconsideration. part has expired, the ALJ will forward
(e) The ALJ may dispose of a motion the record of the proceeding to the ju-
for reconsideration by denying it or by dicial officer.
issuing a revised initial decision. (e) A notice of appeal shall be accom-
(f) If the ALJ denies a motion for re- panied by a written brief specifying ex-
consideration, the initial decision shall ceptions to the initial decision and rea-
constitute the final decision of the au- sons supporting the exceptions.
thority head and shall be final and (f) The representative for USDA may
binding on the parties 30 days after the file a brief in opposition to exceptions
ALJ denies the motion, unless the ini- within 30 days of receiving the brief
tial decision is timely appealed to the proposing exceptions.
judicial officer in accordance with (g) There is no right to appear per-
§ 1.338 of this part. sonally before the judicial officer.
(g) If the ALJ issues a revised initial (h) There is no right to interlocutory
decision, that decision shall constitute appeal of rulings by the ALJ.
the final decision of the authority head (i) The judicial officer, in reviewing
and shall be final and binding on the the decision, shall not consider any ob-
parties 30 days after it is issued, unless jection that was not raised before the
it is timely appealed to the judicial of- ALJ unless a demonstration is made
ficer in accordance with § 1.338 of this that extraordinary circumstances
part. caused the failure to raise the objec-
tion.
§ 1.338 Appeal to the judicial officer. (j) If any party demonstrates to the
(a) Any respondent who has filed a satisfaction of the judicial officer that
timely answer and who is determined additional evidence not presented to
in an initial decision to be liable for a the ALJ is material and that there
civil penalty or assessment may appeal were reasonable grounds for the failure
such decision to the Secretary by filing to present such evidence to the ALJ,
a notice of appeal with the judicial of- the judicial officer shall remand the
ficer in accordance with this section. matter to the ALJ for consideration of
The judicial officer of USDA shall con- such additional evidence.
sider all appeals to the Secretary under (k) The judicial officer may affirm,
this subpart and render a decision on reduce, reverse, compromise, remand
behalf of the Secretary. or settle any penalty or assessment de-
(b)(1) A notice of appeal may be filed termined by the ALJ.
at any time within 30 days after the (l) The judicial officer shall promptly
ALJ issues an initial decision. How- serve each party to the appeal with a
ever, if another party files a motion for copy of the decision of the judicial offi-
reconsideration under § 1.337 of this cer and a statement describing the re-
part, consideration of the appeal shall spondent’s right to seek judicial re-
be stayed automatically pending reso- view.
lution of the motion for reconsider- (m) Unless a petition for review is
ation. filed as provided in 31 U.S.C. 3805 after
(2) If a motion for reconsideration is a respondent has exhausted all admin-
timely filed, a notice of appeal may be istrative remedies under this part and
filed within 30 days after the ALJ de- within 60 days after the date on which
nies the motion or issues a revised ini- the judicial officer serves the respond-
tial decision, whichever applies. ent with a copy of the judicial officer’s
(c) The judicial officer may extend decision, a determination that a re-
the initial 30-day period during which a spondent is liable under § 1.303 of this
notice of appeal may be filed for an ad- part is final and is not subject to judi-
ditional 30 days if the respondent files cial review.
a request for an extension within the
initial 30-day period and shows good § 1.339 Stays ordered by the Depart-
ment of Justice.
cause.
(d) If the respondent timely files a (a) If at any time the Attorney Gen-
notice of appeal with the judicial offi- eral or an Assistant Attorney General
cer and the time for filing motions for designated by the Attorney General
86
transmits to the Secretary a written § 1.341 Judicial review.

finding that continuation of the admin- Section 3805 of title 31, United States
istrative process described in this sub- Code, authorizes judicial review by an
part with respect to a claim or state- appropriate United States District
ment may adversely affect any pending Court of a final decision of the judicial
or potential criminal or civil action re- officer imposing penalties or assess-
lated to such claim or statement, the ments under this part and specifies the
judicial officer shall stay the process procedures for such review.
immediately.
(b) If the judicial officer stays the ad- § 1.342 Collection of civil penalties and
assessments.
ministrative process in accordance
with paragraph (a) of this section, the Sections 3806 and 3808(b) of title 31,
judicial officer may order the process United States Code, authorize actions
resumed only upon receipt of the writ- for collection of civil penalties and as-
ten authorization of the Attorney Gen- sessments imposed under this subpart
and specify the procedures for such ac-
eral.
tions.
§ 1.340 Stay pending appeal. § 1.343 Right to administrative offset.
(a) A decision is stayed automati- The amount of any penalty or assess-
cally pending disposition of a motion ment which has become final, or for
for reconsideration or of an appeal to which a judgment has been entered
the judicial officer. under § 1.341 or § 1.342 of this part, or
(b) The respondent may file with the any amount agreed upon in a settle-
ALJ a request for stay of the effective ment under § 1.345 of this part, may be
date of a decision of the judicial officer collected by administrative offset
pending judicial review. Such request under 31 U.S.C. 3716, except that an ad-
shall state the grounds upon which re- ministrative offset may not be made
spondent relies in requesting the stay, under this subsection against a refund
together with a copy of the notice(s) of of an overpayment of Federal taxes
appeal filed by respondent seeking re- then or later owing by the United
view of a decision of the judicial offi- States to the respondent.
cer. The filing of such a request shall § 1.344 Deposit to Treasury of the
automatically stay the effective date United States.
of the decision of the judicial officer All amounts collected pursuant to
until the ALJ rules upon the request. this subpart shall be deposited as mis-
(c) The representative for the USDA cellaneous receipts in the Treasury of
may file an opposition to respondent’s the United States.
request for a stay within 10 days of re-
ceipt of the request. If the representa- § 1.345 Settlement.
tive for the USDA fails to file such an (a) A respondent may make offers of
opposition within the allotted time, or compromise of settlement at any time.
indicates that the USDA has no objec- (b) The reviewing official has the ex-
tion to the request, the ALJ may grant clusive authority to compromise or
the stay without requiring respondent settle a case under this subpart at any
to give a bond or other security. time after the date on which the re-
(d) The ALJ may grant a contested viewing official is permitted to issue a
request where justice so requires and complaint and before the date on which
to the extent necessary to prevent ir- the ALJ issues a decision.
reparable harm but only upon the re- (c) The judicial officer has exclusive
authority to compromise or settle a
spondent’s giving of a bond or other
case under this subpart at any time
adequate security. The ALJ shall rule after the date on which the ALJ issues
promptly on a contested request for a decision, except during the pendency
stay.
of any appeal under § 1.341 of this part

(e) A decision of the ALJ denying re- or during the pendency of any action to
spondent’s request for a stay shall con- collect penalties and assessments
stitute final agency action. under § 1.342 of this part.
87
(d) The Attorney General has exclu- (a) Applicant or Sourcing area appli-
sive authority to compromise or settle cant means a person who submits a
a case under this subpart during the sourcing area application pursuant to
pendency of any appeal under § 1.341 of these rules, or a person who sourcing
this part, or any action to recover pen- area is subject to formal review pursu-
alties and assessments under § 1.342 of ant to 36 CFR 223.191(e).
this part. (b) Decision means:
(e) The investigating official may (1) The Judge’s initial decision made
recommend settlement terms to the re- in accordance with the provisions of 5
viewing official, the judicial officer, or U.S.C. 554, 556, 557, and 16 U.S.C. 620 et
the Attorney General, as appropriate. seq. and 36 CFR 223.190 and 223.191(e),
The reviewing official may recommend which includes the Judge’s findings and
settlement terms to the judicial offi- conclusions and the reasons or basis
cer, or the Attorney General, as appro- therefore on all material issues of fact,
priate. law or discretion, orders and rulings on
(f) Any settlement must be in writ- proposed findings, conclusions and or-
ing. ders submitted by the parties; and
(2) The decision and order by the Ju-
§ 1.346 Limitation. dicial officer upon appeal of the
The complaint referred to in § 1.307 of Judge’s decision.
this part with respect to a claim or (c) Determination is synonymous with
statement must be served in the man- decision.
ner specified in § 1.308 of this part with- (d) Hearing means that part of the
in 6 years after the date on which such proceeding which may be requested by
claim or statement is made. a party of record, and which involves
the submission of additional evidence
before the Administrative Law Judge
Subpart M—Rules of Practice for the record in the proceeding.
Governing Adjudication of (e) Hearing Clerk means the Office of
Sourcing Area Applications the Hearing Clerk, United States De-
and Formal Review of partment of Agriculture, Washington,
Sourcing Areas Pursuant to D.C. 20250.
the Forest Resources Con- (f) Judge means any Administrative
servation and Shortage Relief Law Judge Appointed pursuant to 5
Act of 1990 (16 U.S.C. 620 et U.S.C. 3105 and assigned to the pro-
seq.) ceeding involved.
(g) Judicial Officer means an official
of the United States Department of Ag-
AUTHORITY: 5 U.S.C. 556 and 16 U.S.C. 620 et
riculture delegated authority by the
seq.
Secretary of Agriculture, pursuant to
SOURCE: 59 FR 8824, Feb. 24, 1994, unless the Act of April 4, 1940 (7 U.S.C. 450c–
otherwise noted. 459g) and Reorganization Plan No. 2 of
1953 (5 U.S.C. 1988 ed., appendix, p.
§ 1.410 Meaning of words.
1280), to perform the function involved
As used in these procedures, words in (7 CFR 235(a)), or the Secretary of Agri-
the singular form shall be deemed to culture, if the authority so delegated is
import the plural, and vice versa, as exercised by the Secretary.
the circumstance may require. (h) Party of record or Party is a party
to the proceeding to determine ap-
§ 1.411 Definitions. proval or disapproval of a sourcing area
As used in these procedures, the application, including the proceeding
terms as defined in the Forest Re- for formal review of a sourcing area.
sources Conservation and Shortage Re- The sourcing area applicant and per-
lief Act of 1990, 16 U.S.C. 620 et seq. sons who submit written comments on
(Act) and in the regulations issued the sourcing area application at issue
thereunder, shall apply with equal during the 30 calendar day comment
force and effect. In addition and except period, including the Regional For-
as may be provided otherwise in these ester, are the parties of record. For
procedures: purposes of a formal review of a
88
sourcing area, the holder of the sourcing area holder submits a

sourcing area that is the subject of the sourcing area application to the Office
review and persons who submit written of the Administrative Law Judges, pur-
comments on the sourcing area appli- suant to 36 CFR 223.190, within 10 work-
cation at issue during the 30 calendar ing days after the meeting convened by
day comment period after institution the Regional Forester as part of the in-
of the formal review, including the Re- formal process.
gional Forester, are the parties of (2) Initiation of review by agency. If
record. the Forest Service wishes to begin a re-
(i) Sourcing Area Application means view of a sourcing area, the Regional
the application by which a person ap- Forester of the region in which the
plies for a sourcing area or the applica- manufacturing facility being sourced is
tion by which a sourcing area holder located shall begin an informal review,
applies for a formal review of a pursuant to 36 CFR 223.191(e). If no
sourcing area. agreement is reached in the informal
review process, the Regional Forester
§ 1.412 Institution of proceedings. of the region in which the manufac-
(a) Sourcing area applications. The turing facility being sourced is located
proceeding for determining sourcing shall transmit to the Office of Admin-
areas shall be instituted by receipt of a istrative Law Judges any submissions
sourcing area application by the Office received during the informal review
of Administrative Law Judges, pursu- process, within 5 working days of the
ant to 36 CFR 223.190. meeting convened during the informal
(b) Review of sourcing areas. Informal review (36 CFR 223.191(e)). Agreement is
review of a sourcing area precedes in- reached when all persons attending the
stitution of a formal review as follows: meeting convened by the Regional For-
(1) Request by Sourcing area holder. A ester to resolve differences as to the
sourcing area holder who wishes to proper sourcing area, including the Re-
begin a review of a sourcing area shall gional Forester, sign the document de-
send a written request for a review to scribing the sourcing area. Institution
the Regional Forester of the region in by the Forest Service of a formal re-
which the manufacturing facility being view of a sourcing area occurs when
sourced is located. The request shall the Office of Administrative Law
state the reason for the request. Judges receives the papers and docu-
(i) Informal review. The Regional For- ments submitted during the informal
ester shall begin an informal review, review process.
pursuant to 36 CFR 223.191(e), based on
the written request. If no agreement is § 1.413 Submission of a sourcing area
reached in the informal review process, application.
the Regional Forester of the region in A sourcing area applicant shall send
which the manufacturing facility being the application to the Office of Admin-
sourced is located shall transmit to the istrative Law Judges and shall, simul-
Office of Administrative Law Judges taneously, send a copy of the sourcing
any submissions received during the in- area application to the Forest Service
formal review process, within 5 work- Regional Forester of the region in
ing days of the meeting convened dur- which the manufacturing facility being
ing the informal review (36 CFR sourced is located. Where the sourcing
223.191)e)). Agreement is reached when area application will cover purchases
all persons attending the meeting con- from more than one agency, applica-
vened by the Regional Forester to re- tion is to be made to the agency from
solve differences as to the proper which the applicant expects to pur-
sourcing area, including the Regional chase the preponderance of its Federal
Forester, sign the document describing timber. The sourcing area applicant
the sourcing area. must also send a complete copy of the
(ii) Formal review. Institution by a application to each agency concerned.
sourcing area holder of a formal review The lead agency shall make the deci-
of the sourcing area occurs if the infor- sion in consultation with, and upon co-
mal review process does not result in signature of, the other agency(ies) con-
agreement among the parties, and the cerned. Sourcing area applications
89
must be signed by the persons making Judge for 30 calendar days following
the request, or in the case of a corpora- publication of the notice. Persons sub-
tion, by its chief executive officer, and mitting comments shall send a copy of
must be notarized. The application the comments to the Regional Forester
shall be on company letterhead. of the region in which the manufac-
turing facility being sourced is located.
§ 1.414 Docket number. All comments must be received by the
Each proceeding, following its insti- Judge and by the Regional Forester by
tution, shall be assigned a docket num- the 30th day of the comment period.
ber by the Hearing Clerk, and there-
after the proceeding shall be referred § 1.417 Review period.
to by such number. The Hearing Clerk (a) Review of comments. The sourcing
shall notify the sourcing area applicant area applicant, the sourcing area hold-
and the Regional Forester to whom the er whose sourcing area is the subject of
applicant submitted a copy of the ap- a formal review and other parties who
plication of the docket number and the submitted written comments will be
name of the Judge to whom the case allowed 10 working days from the close
has been assigned. In a formal review of the comment period to review the
of a sourcing area instituted by the written comments at the Regional For-
Forest Service, the Hearing Clerk shall ester’s office during regular business
inform the sourcing area holder whose hours.
sourcing area is subject to the review (b) Recommendation to Judge to ap-
and the Regional Forester who sub- prove or disapprove a sourcing area appli-
mitted the comments instituting the cation. During the 10 working day re-
formal review of the docket number view period, parties who have sub-
and the name of the Judge to whom the mitted written comments on an appli-
case has been assigned. cation or on a formal review of a
sourcing area may submit a written
§ 1.415 Notification of proceedings. recommendation to the Judge, includ-
The Regional Forester of the region ing an analysis of the facts and law as
in which the manufacturing facility to why the Judge should approve or
being sourced is located shall notify disapprove that application. A sourcing
prospective parties of the sourcing area area applicant whose sourcing area ap-
application and/or the formal review of plication is the subject of the pro-
a sourcing area after receipt of the ceeding, and a sourcing area holder
docket number and the name of the whose sourcing area is the subject of a
Judge to whom the proceeding has been formal review, may also submit a writ-
assigned, pursuant to § 1.414 of these ten recommendation to the Judge. The
rules. Notification will consist of publi- recommendation must be postmarked
cation of a notice in newspapers of gen- no later than the 10th working day of
eral circulation in the area included in the review period.
the sourcing area application. The Re- (c) Request for a hearing. The sourcing
gional Forester shall promptly notify area applicant, the sourcing area hold-
the Hearing Clerk of the date of the er whose sourcing area is the subject of
publication and the notice. Additional a formal review and persons who sub-
notification will be made through mitted written comments, or the attor-
agency mailing lists. Notification shall ney of record for a party in the pro-
include the docket number, the name ceeding, may review the comments and
of the Judge to whom the case has been request a hearing within 10 working
assigned and the mailing address of the days after the comment period, pursu-
Judge. In the case of a sourcing area ant to 36 CFR 233.190(h)(2). The request
review, notification will also state the must be postmarked no later than the
reason for the review. 10th working day of the review period.
An attorney may file an appearance of
§ 1.416 Comment period. record prior to the scheduled hearing.
Written comments on a sourcing area The request for a hearing shall be filed
application or on a formal review of a with the Judge. The hearing is for the
sourcing area shall include the docket purpose of supplementing the written
number and may be submitted to the record submitted prior to the hearing.
90
The written record submitted prior to be served by the Hearing Clerk upon
the hearing consists of papers and doc- each of the parties of record.
uments submitted during the 30 cal-
endar day comment period, the 10 § 1.419 Amendment of a sourcing area
working day review period, and any application.
motions submitted before the hearing. The sourcing area applicant may
For purposes of a formal review of a move to amend the sourcing area appli-
sourcing area, the written record also cation with clarifying and technical
consists of the papers and documents amendments at any time prior to the
submitted during the informal review. Judge’s initial determination if there
(1) Contents of the notice of hearing. is no hearing, or prior to the close of
The Judge shall issue a notice of hear- the hearing if there is a hearing.
ing regarding a particular sourcing
area application or regarding formal § 1.420 Consent recommendation.
review of a sourcing area application or Any time before the Judge files the
regarding formal review of a sourcing decision, the parties of record may
area to all parties of record for that ap- enter a consent recommendation. Such
plication or formal review. The notice consent recommendation shall be filed
of hearing shall contain a reference to with the Hearing Clerk, signed by the
the authority under which the sourcing parties with appropriate space for sig-
area is proposed or formally reviewed; nature by the Judge. The consent rec-
shall define the scope of the hearing; ommendation shall contain an admis-
shall contain a reference to the sion of the jurisdictional facts, the fac-
sourcing area that is the subject of the tual and legal basis for the rec-
hearing; and shall state the date, time ommended sourcing area, the consent
and place of such hearing; and shall to the issuance of the recommended de-
state the date, time and place of such cision as the final decision of the agen-
hearing; which shall be set with due re- cy without further procedure and such
gard for the necessity and convenience other admissions or statements as may
of the parties of record or their rep- be recommended by the parties. The
resentatives. The Judge shall schedule Judge shall review the recommenda-
a hearing no later than 21 calendar tion to determine whether such rec-
days after the 10 working day period ommendation conforms with the For-
for reviewing written comments ends. est Resources Conservation and Short-
The Judge may consolidate requests age Relief Act of 1990 (16 U.S.C. 620, et
for a hearing regarding the same appli- seq.), 36 CFR 223.190, 36 CFR 223.191(e)
cation. and these procedures. If the rec-
(2) Giving notice of hearing. The notice ommendation conforms to the afore-
of hearing shall be served upon the par- mentioned Act, regulations, and proce-
ties of record for the sourcing area ap- dures, the Judge may enter such deci-
plication at issue by the Hearing Clerk. sion without further procedure, unless
an error is apparent on the face of the
§ 1.418 Procedure upon no request for document. If the Judge enters the deci-
hearing. sion, such decision shall have the same
If no hearing is requested by a party force and effect as a decision issued
of record, the Judge shall issue an ini- after full hearing and shall become
tial decision based on the written final upon issuance to become effective
record and without further procedure in accordance with the terms of the de-
or hearing. If no hearing is requested, cision.
the written record consists of papers
and documents submitted during the § 1.421 Prehearing conferences and
30-day comment period, the 10-day re- procedures.
view period, and includes motions sub- (a) Purpose and scope. (1) Upon mo-
mitted before the Judge issues an ini- tion of a party of record or upon the
tial decision. For purposes of a formal Judge’s own motion, the Judge may di-
review of a sourcing area, the written rect the parties or their counsel to at-
record also consists of the papers and tend a conference at any reasonable
documents submitted during the infor- time, prior to or during the course of
mal review. Copies of the decision shall the hearing, when the Judge finds that
91
the proceeding would be expedited by a counsel at a prehearing conference is

prehearing conference. Reasonable no- unwarranted or impracticable, but de-
tice of the time and place of the con- termines that a conference would expe-
ference shall be given. The Judge may dite the proceeding, the Judge may
order each of the parties to furnish at conduct such conference by telephone
or subsequent to the conference any or or correspondence.
all of the following: (d) Order. Actions taken as a result of
(i) An outline of a party’s position; a conference shall be reduced to an ap-
(ii) The facts upon which the party propriate written order, unless the
will rely; Judge concludes that a stenographic
(iii) The legal theories upon which report shall suffice, or if the Judge
the party will rely; elects to make a statement on the
(iv) Copies of or a list of documents record at the hearing summarizing the
which the party anticipates intro- actions taken.
ducing at the hearing; and
(v) A list of anticipated witnesses § 1.422 Conduct of the hearing.
who will testify on behalf of the party. (a) Time and place. The hearing shall
At the discretion of the party fur- be held at the time and place fixed in
nishing such list of witnesses, the the notice of hearing. If any change in
names of the witnesses need not be fur- the time or place of the hearing is
nished if they are otherwise identified made, the Judge shall file with the
in some meaningful way such as a Hearing Clerk a notice of such change,
short statement of the type of evidence which notice shall be served upon the
they will offer. parties, unless it is made during the
(2) The Judge shall not order any of course of an oral script, or actual no-
the foregoing procedures that a party tice is given to the parties.
can show is inappropriate or unwar- (b) Appearances. The parties may ap-
ranted under the circumstances of the pear in person or by attorney of record
particular determination. in the proceeding. Any party who de-
(3) At the conference, the following sires to be heard in person shall, before
matters shall be considered: proceeding to testify, state his name,
(i) The simplification of issues; address, and occupation. If any such
(ii) The possibility of obtaining stip- person is appearing through counsel,
ulations of facts and of the authen- such person or such counsel shall, be-
ticity, accuracy, and admissibility of fore proceeding to testify or otherwise
documents, which will avoid unneces- to participate in the hearing, state for
sary proof; the record the authority to act as such
(iii) The limitation of the number of counsel or representative, and the
expert or other witnesses; names, addresses, and occupations of
(iv) Negotiation, compromise, or set- such person and such counsel. Any such
tlement of issues; person or such counsel shall give such
(v) The exchange of copies of pro- other information respecting his ap-
posed exhibits; pearance as the Judge may request.
(vi) The identification of documents Any person who appears as counsel
or matters of which official notice may must conform to the standards of eth-
be requested; ical conduct required of practitioners
(vii) A schedule to be followed by the before the courts of the United States.
parties for completion of the actions (c) Failure to appear. A party of
decided at the conference; and record who, after being duly notified,
(viii) Such other matters as may ex- fails to appear at the hearing without
pedite and aid in the disposition of the good cause, shall be deemed to have
proceeding. waived the right to an oral hearing in
(b) Reporting. A prehearing con- the proceeding. Failure to appear at a
ference will not be stenographically rehearing shall not be deemed to be a
ported unless so directed by the Judge. waiver of the right to be served with a
(c) Action in lieu of personal attend- copy of the Judge’s decision.

ance at a conference. In the event the (d) Order of proceeding. The Judge
Judge concludes that personal attend- shall determine the order in which the
ance by the Judge and the parties or parties shall proceed.
92
(e) Evidence—(1) In general. (i) The (5) Official records or documents. An of-
testimony of witnesses at a hearing ficial government record or document
shall be on oath or affirmation and or entry therein, if admissible for any
shall be subject to cross-examination. purpose, shall be admissible in evi-
Cross-examination shall be permitted dence without the production of the
to the extent required for a full and person who made or prepared the same,
true disclosure of the facts. The Judge and shall be prima facie evidence of the
may require that testimony on one relevant facts stated therein. Such
issue raised by numerous parties be record or document shall be evidenced
heard at one time. by an official publication thereof or a
(ii) Upon a finding of good cause, the copy certified by a person having legal
Judge may order that any witness be authority to make such certification.
examined separately and apart from all (6) Official notice. Official notice shall
other witnesses except those who may be taken of such matters as are judi-
be parties to the proceeding. cially noted by the courts of the United
(iii) After a witness has testified on States and of any other matter of tech-
direct examination, any other party nical, scientific, or commercial fact of
may request and obtain the production established character: Provided, That
of any statement, or part thereof, of the parties shall be given adequate no-
such witness in the possession of the tice of matters so noticed, and shall be
party who called the witness, which re- given adequate opportunity to show
lates to the subject matter as to which that such facts are erroneously no-
the witness has testified. Such produc- ticed.
(7) Offer of proof. Whenever evidence
tion shall be made according to the
is excluded by the Judge, the party of-
procedures and subject to the defini-
fering such evidence may make an
tions and limitations prescribed in the
offer of proof, which shall be included
Jencks Act (18 U.S.C. 3500).
in the transcript. The offer of proof
(iv) Evidence which is immaterial, or shall consist of a brief statement de-
unduly repetitious, or which is not of scribing the evidence excluded. If the
the sort upon which responsible per- evidence consists of a brief oral state-
sons are accustomed to rely, shall be ment, it shall be included in the tran-
excluded insofar as practicable. script in toto. If the evidence consists
(2) Objections. (i) If a party objects to of an exhibit, it shall be marked for
the admission of any evidence or to the identification and inserted in the hear-
limitation of the scope of any examina- ing record.
tion or cross-examination or to any (f) Transcript. Hearings shall be re-
other ruling of the Judge, the party corded and transcribed verbatim. Tran-
shall state briefly the grounds of such scripts thereof shall be made available
objection, whereupon an automatic ex- to any person, at actual cost of dupli-
ception will follow if the objection is cation (5 U.S.C. App. 2, section 11).
overruled by the Judge.
(ii) Only objections made before the § 1.423 Post-hearing procedure.
Judge may subsequently be relied upon (a) Corrections to transcript. (1) Within
in the proceeding. the period of time fixed by the Judge,
(3) Depositions. The deposition of any any party may file a motion proposing
witness shall be admitted in the man- corrections to the transcript.
ner provided in and subject to the pro- (2) Unless a party files such motion
visions of § 1.228 of these procedures. in the manner prescribed, the tran-
(4) Exhibits. Unless the Judge finds script shall be presumed, except for ob-
that the furnishing of copies is imprac- vious typographical errors, to be com-
ticable, two copies of each exhibit shall plete.
be filed with the Judge. The party sub- (3) As soon as practicable after the
mitting the exhibit shall serve on close of the hearing and after consider-
every other party of record a copy of ation of any timely objections filed as
the exhibit, pursuant to § 1.427(c) of to the transcript, the Judge shall issue
these procedures. A true copy of an ex- an order making any corrections to the
hibit may be substituted for the origi- transcript which the Judge finds are
nal. warranted, which corrections shall be
93
entered onto the original transcript by unless specifically mentioned herein or

the Hearing Clerk (without obscuring allowed in the discretion of the Judge.
the origianl text). (c) Contents. All written motions and
(b) Proposed findings of fact, conclu- requests shall state the particular
sions, order, and brief. Prior to the close order, ruling, or action desired and the
of the hearing, each party may submit grounds therefore.
for consideration proposed findings of (d) Response to motions and requests.
fact, conclusions, order, and brief in Within 5 days after service of any writ-
support thereof. A copy of each such ten motion or request, or within such
document filed by a party shall be shorter or longer period as may be
served upon each of the other parties. fixed by the Judge, an opposing party
(c) Judge’s decision. (1) The Judge may file a response to the motion or
may, upon motion of any party or in request. The other party shall have no
his or her own discretion, issue a deci- right to reply to the response.
sion orally at the close of the hearing,
§ 1.425 Judges.
or within 10 calendar days after the
close of the hearing, or within 10 cal- (a) Assignment. No Judge shall be as-
endar days after submission of the signed to serve in any proceeding who:
record, if no hearing is requested. (1) Has any pecuniary interest in any
(2) If the decision is announced oral- matter or business involved in the pro-
ly, a copy thereof, excerpted from the ceeding;
transcript of the record, shall be fur- (2) Is related within the third degree
nished to the parties by the Hearing by blood or marriage to any party to
Clerk. Irrespective of the date such the proceeding; or
copy is mailed, the issuance date of the (3) Has any conflict of interest which
decision shall be the date the oral deci- might impair the Judge’s objectivity in
sion was announced. the proceeding.
(3) If the decision is in writing, it (b) Disqualification of Judge. (1) Any
shall be filed with the Hearing Clerk party to the proceeding may, by mo-
and served upon the parties as provided tion made to the Judge, request that
in § 1.427. the Judge withdraw from the pro-
ceeding because of an alleged disquali-
(4) The Judge’s decision shall become
fying reason. Such motion shall set
effective without further proceedings
forth with particularity the grounds of
21 calendar days after the issuance of
alleged disqualification. The Judge
the decision, if announced orally at the
may then either rule upon or certify
hearing, or if the decision is in writing,
the motion to the Secretary, but not
21 calendar days after the date of serv-
both.
ice thereof upon the respondent, unless
(2) A Judge shall withdraw from any
there is an appeal to the Judicial Offi-
proceeding for any reason deemed by
cer by a party to the proceeding pursu-
the Judge to be disqualifying.
ant to § 1.426; Provided, however, that no
(c) Powers. Subject to review as pro-
decision shall be final for purposes of
vided elsewhere in this part, the Judge,
judicial review except a final decision
in any assigned proceeding shall have
of the Judicial Officer upon appeal.
power to:
(5) The Judicial Officer shall issue a (1) Rule upon motions and requests;
decision within 10 calendar days of the (2) Set the time and place of a pre-
receipt of the response to the appeal. hearing conference and the hearing, ad-
journ the hearing from time to time,
§ 1.424 Motions and requests.
and change the time and place of hear-
(a) General. All motions and requests ing;
shall be filed with the Hearing Clerk, (3) Administer oaths and affirma-
and served upon all the parties except tions;
motions and requests made on the (4) Request the presence of and exam-
record during the oral hearing. ine witnesses and receive relevant evi-
(b) Motions entertained. No dispositive dence at the hearing;

motions, including motions to dismiss (5) Take or order the taking of depo-
on the pleadings and motions for sum- sitions as authorized under these rules;
mary judgment, shall be entertained (6) Admit or exclude evidence;
94
(7) Hear oral argument on facts or porting brief are filed with the Judicial
law, Officer.
(8) Do all acts and take all measures (b) Response to appeal petition. Within
necessary for the maintenance of order, 10 calendar days after the service of a
including the exclusion of contuma- copy of an appeal petition and any
cious counsel or other persons; brief in support thereof, filed by a
(9) Request additional information party to the proceeding, any other
from any party to aid in the Judge’s party may file with the Hearing Clerk
determination; and a response in support of or in opposi-
(10) Take all other actions authorized tion to the appeal and in such response
under these procedures. any relevant issue, not presented in the
(d) Who may act in the absence of the appeal petition, may be raised. A party
Judge. In case of the absence of the filing a response to a petition of appeal
to the Judicial Officer shall serve the
Judge or the Judge’s inability to act,
other parties to the proceeding with a
the powers and duties to be performed
copy of the response. The copies of the
by the Judge under these rules of prac-
response shall be served on the parties
tice in connection with any assigned
to the proceeding on the same day as
proceeding may, without abatement of
the response is filed with the Judicial
the proceeding unless otherwise di-
Officer.
rected by the Chief Judge, be assigned
(c) Transmittal of record. Whenever an
to any other Judge.
appeal of a Judge’s decision is filed and
§ 1.426 Appeal to Judicial Officer. a response thereto has been filed or
time for filing a response has expired,
(a) Filing of petition. Within 10 cal- the Hearing Clerk shall transmit to the
endar days after receiving service of Judicial Officer the record of the pro-
the Judge’s decision, a party who dis- ceeding. Such record shall include: The
agrees with the decision, or any part pleadings; motions and requests filed
thereof, or any ruling by the Judge or and rulings thereon; the transcript of
any alleged deprivation of rights, may the testimony taken at the hearing, to-
appeal such decision to the Judicial Of- gether with the exhibits filed in con-
ficer by filing an appeal petition with nection therewith; any documents or
the Hearing Clerk. As provided in papers filed in connection with a pre-
§ 1.422(e)(2), objections regarding evi- hearing conference; such proposed find-
dence or a limitation regarding exam- ings of fact, conclusions, and orders,
ination or cross-examination or other and briefs in support thereof, as may
rulings made before the Judge may be have been filed in connection with the
relied upon in an appeal. Each issue set proceeding; the Judge’s decision; such
forth in the petition, and the argu- exceptions, statements of objections
ments thereon, shall be separately and briefs in support thereof as may
numbered; shall be plainly and con- have been filed in the proceeding; and
cisely stated; and shall contain de- the appeal petition, and such briefs in
tailed citations of the record, statutes, support thereof and responses thereto
regulations or authorities being relied as may have been filed in the pro-
upon in support thereof. A brief may be ceeding.
filed in support of the appeal simulta- (d) Decision of the Judicial Officer on
neously with the petition. A party fil- appeal. The Judicial Officer, upon the
ing a petition of appeal to the Judicial basis of and after due consideration of
Officer, and any brief in support there- the record and any matter of which of-
of, shall serve the other parties to the ficial notice is taken, shall rule on the
proceeding with a copy of the petition appeal within 4 months after the insti-
and supporting brief. The copies of the tution of the proceeding, pursuant to 16
petition and supporting brief shall be U.S.C. 620b(c)(3). If the Judicial Officer
served on the parties to the proceeding decides that no change or modification
with a copy of the petition and sup- of the Judge’s decision is warranted,
porting brief. The copies of the petition the Judicial Officer may adopt the
and supporting brief shall be served on Judge’s decision as the final order in
the parties to the proceeding on the the proceeding, preserving any right of
same day as the petition and sup- the party bringing the appeal to seek
95
judicial review of such decision in the or paper is returned undelivered be-

proper forum. A final order issued by cause the addressee refused or failed to
the Judicial Officer shall be filed with accept delivery, the document or paper
the Hearing Clerk. Such order may be shall be served by remailing it by reg-
regarded by a party as final for pur- ular mail; or
poses of judicial review. (iv) By mailing the document or
paper by regular mail.
§ 1.427 Filing; identification of parties (2) Proof of service hereunder shall be
of record; service; and computation made by the certificate of the person
of time. who actually made the service: Pro-
(a) Filing; number of copies. Except as vided, that if the service is made by
otherwise provided in this section, all mail, as outlined in paragraph (b)(3) of
documents or papers required or au- this section, proof of service shall be
thorized by the rules in this part to be made by the return post-office receipt,
filed with the Hearing Clerk shall be in the case of registered or certified
filed in duplicate. Any document or mail, and if that service is made by
paper required or authorized under the regular mail, as outlined in paragraphs
rules in this part to be filed with the (b)(3) and (b)(4) of this section, proof of
Hearing Clerk shall, during the course service shall be made by the certificate
of an oral hearing, be filed with the of the person who mailed the matter by
Judge. regular mail. The certificate and post-
(b) Parties of record shall receive a office receipt contemplated herein
list from the Hearing Clerk of the shall be filed with the Hearing Clerk,
names and addresses of all parties of and made a part of the record of the
record immediately after the close of proceeding. The Judge and the Hearing
the comment period. Clerk shall follow the procedures out-
(c) Service; proof of service. (1) Each lined in (c) for service of papers or doc-
party of record is responsible for serv- uments signed by the Judge and/or the
ing on every other party and to the Hearing Clerk.
Judge all papers and documents sub- (d) Effective date of filing. Any docu-
mitted after the comment period. Serv- ment or paper required or authorized
ice shall be made either: under the rules in this part to be filed
(i) By delivering a copy of the docu- shall be deemed to be filed at the time
ment or paper to the individual to be when it reaches the Hearing Clerk; or,
served or to a member of the partner- if authorized to be filed with another
ship to be served, or to the president, officer or employee of the Department
secretary, or other executive officer or it shall be deemed to be filed at the
a director of the corporation or asso- time when it reaches such officer or
ciation to be served, or to the attorney employee.
of record representing such individual, (e) Computations of time. Saturdays,
partnership, corporation, organization, Sundays and Federal holidays shall be
or association; or included in computing the time al-
(ii) By leaving a copy of the docu- lowed for the filing of any document or
ment or paper at the principal office or paper except as provided in these rules;
place of business or residence of such Provided, that, when such time expires
individual, partnership, corporation, on a Saturday, Sunday, or Federal hol-
organization, or association, or of the iday, such period shall be extended to
attorney or agent of record and mail- include the next following business
ing by regular mail another copy to day.
such person at such address; or
(iii) By registering or certifying and § 1.428 Depositions.
mailing a copy of the document or (a) Motion for taking deposition. Upon
paper, addressed to such individual, the motion of a party to the pro-
partnership, corporation, organization, ceeding, the Judge may, at any time
or association, or to the attorney or after the filing of the submission, order
agent of record, at the last known resi- the taking of testimony by deposition.
dence or principal office or place of The Motion shall be in writing, shall be
business of such person: Provided, That filed with the Hearing Clerk, and shall
if the registered or certified document set forth:
96
(1) The name and address of the pro- ties or as directed by the Judge. If the
posed deponent; examination is conducted by means of
(2) The name and address of the per- written questions, copies of the ques-
son (referred to hereafter in this sections shall be served upon the other
tion as the ‘‘officer’’) qualified under party to the proceeding and filed with
the regulations in this part to take the officer and the other party may
depositions, before whom the proposed serve cross questions and file them
examination is to be made; with the officer at any time prior to
(3) The proposed time and place of the time of the examination.
the examination; and (e) Certification by officer. The officer
(4) The reasons why such deposition shall certify on the deposition that the
should be taken, which shall be solely deponent was duly sworn and that the
for the purpose of eliciting testimony deposition is a true record of the depo-
which otherwise might not be available nent’s testimony. The officer shall
at the time of the hearing, for uses as then securely seal the deposition, to-
provided in paragraph (g) of this sec- gether with one copy thereof (unless
tion. there are more than two parties in the
(b) Judge’s order for taking deposition. proceeding, in which case there should
(1) If the Judge finds that testimony be another copy for each additional
may not be otherwise available at the party), in an envelope and mail the
hearing, the taking of the deposition same by registered or certified mail to
may be ordered. The order shall be the Hearing Clerk.
served upon the parties, and shall (f) Corrections to the transcript. (1) At
state: any time prior to the hearing any
(i) The time and place of the exam- party may file a motion proposing cor-
ination; rections to the transcript of the deposi-
(ii) The name of the officer before tion.
whom the examination is to be made; (2) Unless a party files such a motion
and in the manner prescribed, the tran-
(iii) The name of the deponent. script shall be presumed, except for ob-
(2) The officer and the time and place vious typographical errors, to be a
need not be the same as those sug- true, correct, and complete transcript
gested in the motion. of the testimony given in the deposi-
(c) Qualifications of officer. The depo- tion proceeding and to contain an accu-
sition shall be made before the Judge rate description or reference to all ex-
or before an officer authorized by the hibits in connection therewith, and
law of the United States or by the law shall be deemed to be certified correct
of the place of the examination to ad- without further procedure.
minister oaths, or before an officer au- (3) At any time prior to use of the
thorized by the Secretary to admin- deposition in accordance with para-
ister oaths. graph (g) of this section and after con-
(d) Procedure on examinations. (1) The sideration of any objections filed there-
deponent shall be subject to cross-ex- to, the Judge may issue an order mak-
amination. Objections to questions or ing any corrections in the transcript
documents shall be in short form, stat- which the Judge finds are warranted,
ing the grounds of objections relied which corrections shall be entered onto
upon. The questions propounded, to- the original transcript by the Hearing
gether with all objections made (but Clerk (without obscuring the original
not including argument or debate), text).
shall be recorded verbatim. In lieu of (g) Use of deposition. A deposition or-
oral examination, parties may trans- dered and taken in accordance with the
mit written questions to the officer provisions of this section may be used
prior to the examination and the offi- in a proceeding under these rules if the
cer shall propound such questions to Judge finds that the evidence is other-
the deponent. wise admissible and that the witness is
(2) The applicant shall arrange for dead; that the witness is unable to at-
the examination of the witness either tend or testify because of age, sickness,
by oral examination, or by written infirmity, or imprisonment; or that
questions upon agreement of the par- such exceptional circumstances exist
97
as to make it desirable, in the interests cause why his claim or interest in the
of justice, to allow the deposition to be proceeding should not be dismissed, de-
used. If the party upon whose motion nied, disregarded, or otherwise ad-
the deposition was taken refuses to versely affected on account of such vio-
offer it in evidence, any other party lation.
may offer the deposition or any thereof (e) To the extent consistent with the
in evidence. If only part of a deposition interests of justice and the policy of
is offered in evidence by a party, an ad- the underlying statute, a violation of
verse party may require the introduc- this section shall be sufficient grounds
tion of any other part which ought in for a decision adverse to the party who
fairness to be considered with the part knowingly commits a violation of this
introduced and any party may intro- section or who knowingly causes such
duce any other parts.
a violation to occur.
§ 1.429 Ex parte communications. (f) For purposes of this section ex
parte communication means an oral or
(a) At no stage of the proceeding be-
written communication not on the pub-
tween its institution and issuance of
the final decision shall an employee of lic record with respect to which reason-
the Department who is or may reasonable prior notice to all parties is not
ably be expected to be involved in the given, but it shall not include requests
decisional process of the proceeding for status reports on any matter or the
discuss ex parte the merits of the pro- proceeding.
ceeding with any person having an in-
terest in the proceeding, or with any Subpart N—Policy With Regard to
representative of such person: Provided, Indemnification of Depart-
That, procedural matters and status ment of Agriculture Employ-
reports shall not be included within
this limitation; and Provided further,
ees
That an employee of the Department
who is or may be involved in the AUTHORITY: 5 U.S.C. 301.
decisional process of the proceeding SOURCE: At 69 FR 28042, May 18, 2004, unless
may discuss the merits of the pro- otherwise noted.
ceeding if all parties of record have
been given notice and an opportunity § 1.501 Policy on employee indem-
to participate. A memorandum of any nification.
such discussion shall be included in the (a) Indemnification, under the con-
record. text of this section, shall be the policy
(b) No interested person shall make whereby the Department of Agri-
or knowingly cause to be made to the culture compensates an employee for
Judge an ex parte communication rel-
the legal consequences of conduct,
evant to the merits of the proceeding.
taken within the scope of his or her
(c) If the Judge reviews an ex parte
employment, giving rise to a verdict,
communication in violation of this sec-
judgment, or other monetary award
tion, the one who receives the commu-
nication shall place in the public rendered against the employee.
record of the proceeding: (b) The Department of Agriculture
(1) All such written communication; may indemnify a Department employee
(2) Memoranda stating the substance (which for the purposes of this regula-
of all such oral communications; and tion shall include a former employee)
(3) All written responses, and memo- for any verdict, judgment, or other
randa stating the substance of all oral monetary award rendered against such
responses thereto. employee, provided the Secretary or
(d) Upon receipt of a communication the Secretary’s designee determines, in
knowingly made or knowingly caused his or her discretion, that the conduct
to be made by a party in violation of giving rise to such verdict, judgment,
or award was taken within the scope of
this section, the Judge may, to the ex-

tent consistent with the interests of his or her employment with the De-
justice and the policy of the underlying partment, and such indemnification is
statute, require the party to show in the interest of the United States.
98
(c) The Department of Agriculture for a settlement of a personal damage

may pay for the settlement or com- claim.
promise of a personal damage claim (g) Any payment under this section
against a Department employee by the to indemnify a Department employee
payment of available funds, at any for a personal damage verdict, judg-
time, provided that the Secretary or ment, or award or to settle a personal
the Secretary’s designee determines, in damage claim shall be contingent upon
his or her discretion, that the alleged the availability of appropriated funds
conduct giving rise to the personal of the employing component of the
damage claim was taken within the United States Department of Agri-
scope of the employee’s employment, culture.
and such settlement or compromise is
in the interest of the United States. Subpart O—Conditions in FERC
(d) Absent exceptional cir- Hydropower Licenses
cumstances, as determined by the Sec-
retary or his or her designee, the De- AUTHORITY: 16 U.S.C. 797(e), 811, 823d.
partment will not entertain a request SOURCE: 70 FR 69817, Nov. 17, 2005, unless
to agree to indemnify or pay for a set- otherwise noted.
tlement of a personal damage claim be-
fore entry of an adverse judgment, ver- GENERAL PROVISIONS
dict, or other monetary award.
§ 1.601 What is the purpose of this sub-
(e) When a Department employee be- part, and to what license pro-
comes aware that an action has been ceedings does it apply?
filed against the employee in his or her
individual capacity as a result of con- (a) Hearing process. (1) The regula-
duct taken within the scope of his or tions in §§ 1.601 through 1.660 contain
rules of practice and procedure applica-
her employment, the employee should
ble to hearings on disputed issues of
immediately notify his or her super-
material fact with respect to manda-
visor that such an action is pending.
tory conditions that the Department of
The supervisor shall promptly there-
Agriculture, Forest Service (Forest
after notify the Office of the General Service) may develop for inclusion in a
Counsel. hydropower license issued under sub-
(f) A Department employee may re- chapter I of the Federal Power Act
quest indemnification to satisfy a ver- (FPA), 16 U.S.C. 791 et seq. The author-
dict, judgment, or monetary award en- ity to develop these conditions is
tered against the employee or to sat- granted by FPA section 4(e), 16 U.S.C.
isfy the requirements of a settlement 797(e), which authorizes the Secretary
proposal. The employee shall submit a of Agriculture to condition hydropower
written request, with appropriate docu- licenses issued by the Federal Energy
mentation that includes a copy of the Regulatory Commission (FERC).
verdict, judgment, award or settlement (2) The hearing process under this
proposal, as appropriate, to the head of subpart does not apply to recommenda-
his or her employing component, who tions that the Forest Service may sub-
shall thereupon submit it to the Gen- mit to FERC under FPA section 10(a),
eral Counsel, in a timely manner, a 16 U.S.C. 803(a).
recommended disposition of the re- (3) The FPA also grants the Depart-
quest. The Office of the General Coun- ment of the Interior the authority to
sel shall seek the views of the Depart- develop mandatory conditions and pre-
ment of Justice. The Office of the Gen- scriptions, and the Department of Com-
eral Counsel shall forward the employ- merce the authority to develop manda-
ee’s request, the employing compo- tory prescriptions, for inclusion in a
nent’s recommendation, and the Gen- hydropower license. Where the Forest
eral Counsel’s recommendation, along Service USDA and either or both of
with the time frame in which a deci- these other Departments develop con-
sion is needed, to the Secretary or his ditions or prescriptions to be included

or her designee for decision. The Sec- in the same hydropower license and
retary or his or her designee will decide where the Departments agree to con-
promptly whether to indemnify or pay solidate the hearings under § 1.623:
99
(i) A hearing conducted under this assigned to preside over the hearing
subpart will also address disputed process under this subpart.
issues of material fact with respect to Alternative means a condition that a
any condition or prescription devel- license party other than the Forest
oped by one of the other Departments; Service or another Department devel-
or ops as an alternative to a preliminary
(ii) A hearing requested under this condition from the Forest Service or
subpart will be conducted by one of the another Department, under FPA sec.
other Departments, pursuant to 43 CFR 33, 16 U.S.C. 823d.
45.1 et seq. or 50 CFR 221.1 et seq., as ap- Condition means a condition under
plicable. FPA sec. 4(e), 16 U.S.C. 797(e), for the
(4) The regulations in §§ 1.601 through adequate protection and utilization of
1.660 will be construed and applied to a reservation.
each hearing process to achieve a just Day means a calendar day.
and speedy determination, consistent Department means the Department of
with adequate consideration of the Agriculture, Department of Commerce,
issues involved and the provisions of or Department of the Interior.
§ 1.660(a). Discovery means a prehearing process
(b) Alternatives process. The regula- for obtaining facts or information to
tions in §§ 1.670 through 1.673 contain assist a party in preparing or pre-
rules of procedure applicable to the senting its case.
submission and consideration of alter- Ex parte communication means an oral
native conditions under FPA section or written communication to the ALJ
33, 16 U.S.C. 823d. That section allows that is made without providing all par-
any party to the license proceeding to ties reasonable notice and an oppor-
propose an alternative to a condition tunity to participate.
deemed necessary by the Forest Serv-
FERC means the Federal Energy Reg-
ice under section 4(e).
ulatory Commission.
(c) Reservation of authority. Where the
Forest Service means the USDA Forest
Forest Service notifies FERC that it is
Service.
reserving its authority to develop one
or more conditions during the term of FPA means the Federal Power Act, 16
the license, the hearing and alter- U.S.C. 791 et seq.
natives processes under this subpart Hearing Clerk means the Hearing
for such conditions will be available if Clerk, USDA, 1400 Independence Ave.,
and when the Forest Service exercises SW., Washington, DC 20250; phone: 202–
its reserved authority. The Forest 720–4443, facsimile: 202–720–9776.
Service will consult with FERC and no- Intervention means a process by
tify the license parties regarding how which a person who did not request a
to initiate the hearing process and al- hearing under § 1.621 can participate as
ternatives process at that time. a party to the hearing under § 1.622.
(d) Applicability. (1) This subpart ap- License party means a party to the li-
plies to any hydropower license pro- cense proceeding, as that term is de-
ceeding for which the license has not fined at 18 CFR 385.102(c).
been issued as of November 17, 2005 and License proceeding means a proceeding
for which one or more preliminary con- before FERC for issuance of a license
ditions or conditions have been or are for a hydroelectric facility under 18
filed with FERC. CFR parts 4 or 5.
(2) If the Forest Service has already Material fact means a fact that, if
filed one or more preliminary condi- proved, may affect a Department’s de-
tions or conditions as of November 17, cision whether to affirm, modify, or
2005, the special applicability provi- withdraw any condition or prescrip-
sions of § 1.604 also apply. tion.
NEPA document means an environ-
§ 1.602 What terms are used in this mental assessment or environmental
subpart?
impact statement issued to comply

As used in this subpart: with the requirements of the National
ALJ means an administrative law Environmental Policy Act of 1969, 42
judge appointed under 5 U.S.C. 3105 and U.S.C. 4321 et seq.
100
NFS means Deputy Chief, National Secretary means the Secretary of Ag-
Forest Systems, Forest Service. The riculture or his or her designee.
service and mailing address under this Senior Department employee has the
subpart is NFS, Washington Office same meaning as the term ‘‘senior em-
(WO) Lands Staff, Mail Stop 1124, 1400 ployee’’ in 5 CFR 2637.211(a).
Independence Avenue, SW., Wash- USDA means the United States De-
ington, DC 20250–0003, telephone 202– partment of Agriculture.
205–1248, facsimile number 202–205–1604. You refers to a party other than a De-
Office of Administrative Law Judges partment.
(OALJ) is the office within USDA in
which ALJs conduct hearings under § 1.603 How are time periods com-
the regulations in this subpart. puted?
Party means, with respect to USDA’s (a) General. Time periods are com-
hearing process: puted as follows:
(1) A license party that has filed a (1) The day of the act or event from
timely request for a hearing under: which the period begins to run is not
(i) Section 1.621; or included.
(ii) Either 43 CFR 45.21 or 50 CFR (2) The last day of the period is in-
221.21, with respect to a hearing process cluded.
consolidated under § 1.623; (i) If that day is a Saturday, Sunday,
(2) A license party that has filed a or federal holiday, the period is ex-
timely notice of intervention and re- tended to the next business day.
sponse under: (ii) The last day of the period ends at
5 p.m. at the place where the filing or
(i) Section 1.622; or
other action is due.
(ii) Either 43 CFR 45.22 or 50 CFR
(3) If the period is less than 7 days,
221.22, with respect to a hearing process
any Saturday, Sunday, or federal holi-
consolidated under § 1.623;
day that falls within the period is not
(3) The Forest Service, if it has filed included.
a preliminary condition; and (b) Extensions of time. (1) No extension
(4) Any other Department that has of time can be granted to file a request
filed a preliminary condition or pre- for a hearing under § 1.621, a notice of
scription, with respect to a hearing intervention and response under § 1.622,
process consolidated under § 1.623. an answer under § 1.624, or any docu-
Person means an individual; a partment under §§ 1.670 through 1.673.
nership, corporation, association, or (2) An extension of time to file any
other legal entity; an unincorporated other document under this subpart
organization; and any federal, state, may be granted only upon a showing of
tribal, county, district, territorial, or good cause.
local government or agency. (i) To request an extension of time, a
Preliminary condition or prescription party must file a motion under § 1.635
means a preliminary condition or pre- stating how much additional time is
scription filed by a Department with needed and the reasons for the request.
FERC under 18 CFR 4.34(b), 4.34(i), or (ii) The party must file the motion
5.22(a) for potential inclusion in a hy- before the applicable time period ex-
dropower license. pires, unless the party demonstrates
Prescription means a fishway pre- extraordinary circumstances that jus-
scribed under FPA sec. 18, 16 U.S.C. 811, tify a delay in filing.
to provide for the safe, timely, and ef- (iii) The ALJ may grant the exten-
fective passage of fish. sion only if:
Representative means a person who: (A) It would not unduly prejudice
(1) Is authorized by a party to rep- other parties; and
resent the party in a hearing process (B) It would not delay the decision
under this subpart; and under § 1.660.
(2) Has filed an appearance under
§ 1.610. § 1.604 What deadlines apply to pend-
Reservation has the same meaning as ing applications?

the term ‘‘reservations’’ in FPA sec. (a) Applicability. (1) This section ap-
3(2), 16 U.S.C. 796(2). plies to any case in which the Forest
101
Service has filed a preliminary condi- HEARING PROCESS

tion or condition with FERC before No-
vember 17, 2005 and FERC has not REPRESENTATIVES
issued a license as of that date. § 1.610 Who may represent a party,
(2) The deadlines in this section will and what requirements apply to a
apply in such a case, in lieu of any in- representative?
consistent deadline in other sections of (a) Individuals. A party who is an in-
this subpart. dividual may either represent himself
(b) Hearing process. (1) Any request or herself in the hearing process under
for a hearing under § 1.621 must be filed this subpart or authorize an attorney
with NFS by December 19, 2005. to represent him or her.
(2) Any notice of intervention and re- (b) Organizations. A party that is an
sponse under § 1.622 must be filed by organization or other entity may au-
January 3, 2006. thorize one of the following to rep-
(3) Upon receipt of a hearing request resent it:
under paragraph (b)(1) of this section, (1) An attorney;
the Forest Service must do the fol- (2) A partner, if the entity is a part-
lowing by March 17, 2006: nership;
(3) An officer or full-time employee,
(i) Comply with the requirements of
if the entity is a corporation, associa-
§ 1.623; tion, or unincorporated organization;
(ii) Determine jointly with any other (4) A receiver, administrator, execu-
Department that has received a hear- tor, or similar fiduciary, if the entity
ing request, after consultation with is a receivership, trust, or estate; or
FERC, a time frame for the hearing (5) An elected or appointed official or
process and a corresponding deadline an employee, if the entity is a federal,
for the Forest Service to file an answer state, tribal, county, district, terri-
under § 1.624; and torial, or local government or compo-
(iii) Issue a notice to each party nent.
specifying the time frame for the hear- (c) Appearance. A representative
ing process, including the deadline for must file a notice of appearance. The
the Forest Service to file an answer. notice must:
(c) Alternatives process. (1) Any alter- (1) Meet the form and content re-
native under § 1.671 must be filed with quirements for documents under § 1.611;
NFS by December 19, 2005. (2) Include the name and address of
the person on whose behalf the appear-
(2) Upon receipt of an alternative
ance is made;
under paragraph (c)(1) of this section, if (3) If the representative is an attor-
no hearing request is filed under para- ney, include a statement that he or she
graph (b)(1) of this section, the Forest is a member in good standing of the bar
Service must do the following by Feb- of the highest court of a state, the Dis-
ruary 15, 2006: trict of Columbia, or any territory or
(i) Determine jointly with any other commonwealth of the United States
Department that has received a related (identifying which one); and
alternative, after consultation with (4) If the representative is not an at-
FERC, a time frame for the filing of a torney, include a statement explaining
modified condition under § 1.672(b); and his or her authority to represent the
(ii) Issue a notice to the license party entity.
that has submitted the alternative, (d) Disqualification. The ALJ may dis-
specifying the time frame for the filing qualify any representative for mis-
of a modified condition. conduct or other good cause.
(3) Upon receipt of an alternative DOCUMENT FILING AND SERVICE
under paragraph (c)(1) of this section, if
a hearing request is also filed under § 1.611 What are the form and content
paragraph (b)(1) of this section, the requirements for documents under
Forest Service will follow the provi- §§ 1.610 through 1.660?

sions of paragraph (b)(3) of this section. (a) Form. Each document filed in a
case under §§ 1.610 through 1.660 must:
102
(1) Measure 81⁄2 by 11 inches, except (1) Before NFS refers a case for dock-
that a table, chart, diagram, or other eting under § 1.625, any documents
attachment may be larger if folded to must be filed with NFS. NFS’s address,
81⁄2 by 11 inches and attached to the telephone number, and facsimile num-
document; ber are set forth in § 1.602.
(2) Be printed on just one side of the (2) NFS will notify the parties of the
page; date on which it refers a case for dock-
(3) Be clearly typewritten, printed, or eting under § 1.625. After that date, any
otherwise reproduced by a process that documents must be filed with:
yields legible and permanent copies; (i) The Hearing Clerk, if USDA will
(4) Use 10 point font size or larger; be conducting the hearing. The Hearing
(5) Be double-spaced except for foot- Clerk’s address, telephone number, and
notes and long quotations, which may facsimile number are set forth in
be single-spaced; § 1.602; or
(6) Have margins of at least 1 inch; (ii) The hearings component of or
and used by another Department, if that
(7) Be bound on the left side, if Department will be conducting the
bound. hearing under § 1.625. The name, ad-
(b) Caption. Each document filed dress, telephone number, and facsimile
under §§ 1.610 through 1.660 must begin number of the appropriate hearings
with a caption that sets forth: component will be provided in the re-
(1) The name of the case under §§ 1.610 ferral notice from the Forest Service.
through 1.660 and the docket number, if (b) Method of filing. (1) A document
one has been assigned; must be filed with the appropriate of-
(2) The name and docket number of fice under paragraph (a) of this section
the license proceeding to which the using one of the following methods:
case under §§ 1.610 through 1.660 relates; (i) By hand delivery of the original
and document;
(3) A descriptive title for the docu- (ii) By sending the original document
ment, indicating the party for whom it by express mail or courier service for
is filed and the nature of the document. delivery on the next business day; or
(c) Signature. The original of each (iii) By sending the document by fac-
document filed under §§ 1.610 through simile if:
1.660 must be signed by the representa- (A) The document is 20 pages or less,
tive of the person for whom the docu- including all attachments;
ment is filed. The signature constitutes (B) The sending facsimile machine
a certification by the representative confirms that the transmission was
that he or she has read the document; successful; and
that to the best of his or her knowl- (C) The original of the document is
edge, information, and belief, the sent by regular mail on the same day.
statements made in the document are (2) Parties are encouraged, but not
true; and that the document is not required, to supplement any filing by
being filed for the purpose of causing providing the appropriate office with
delay. an electronic copy of the document on
(d) Contact information. Below the diskette or compact disc.
representative’s signature, the docu- (c) Date of filing. A document under
ment must provide the representative’s §§ 1.610 through 1.660 is considered filed
name, mailing address, street address on the date it is received. However, any
(if different), telephone number, fac- document received after 5 p.m. at the
simile number (if any), and electronic place where the filing is due is consid-
mail address (if any). ered filed on the next regular business
day.
§ 1.612 Where and how must docu- (d) Nonconforming documents. If any
ments be filed? document submitted for filing under
(a) Place of filing. Any documents re- §§ 1.610 through 1.660 does not comply
lating to a case under §§ 1.610 through with the requirements of §§ 1.610
1.660 must be filed with the appropriate through 1.660 or any applicable order,
office, as follows: it may be rejected. If the defect is
103
minor, the party may be notified of the (ii) The party acknowledges receipt
defect and given a chance to correct it. of the document by close of the next
business day.
§ 1.613 What are the requirements for (d) Acknowledgment of service. Any
service of documents? party who receives a document under
(a) Filed documents. Any document re- §§ 1.610 through 1.660 by electronic mail
lated to a case under §§ 1.610 through must promptly send a reply electronic
1.660 must be served at the same time mail message acknowledging receipt.
the document is delivered or sent for (e) Certificate of service. A certificate
filing. Copies must be served as follows: of service must be attached to each
(1) A complete copy of any request document filed under §§ 1.610 through
for a hearing under § 1.621 must be 1.660. The certificate must be signed by
served on FERC and each license party, the party’s representative and include
using one of the methods of service in the following information:
paragraph (c) of this section. (1) The name, address, and other con-
(2) A complete copy of any notice of tact information of each party’s rep-
intervention and response under § 1.622 resentative on whom the document was
must be: served;
(i) Served on FERC, the license appli- (2) The means of service, including
cant, any person who has filed a re- information indicating compliance
quest for hearing under § 1.621, and the with paragraph (c)(3) or (c)(4) of this
Forest Service, using one of the meth- section, if applicable; and
ods of service in paragraph (c) of this (3) The date of service.
section; and
INITIATION OF HEARING PROCESS
(ii) Sent to any other license party
using regular mail. § 1.620 What supporting information
(3) A complete copy of any other filed must the Forest Service provide
document must be served on each with its preliminary conditions?
party, using one of the methods of (a) Supporting information. (1) When
service in paragraph (c) of this section. the Forest Service files preliminary
(b) Documents issued by the Hearing conditions with FERC, it must include
Clerk or ALJ. A complete copy of any a rationale for the conditions and an
notice, order, decision, or other docu- index to the Forest Service’s adminis-
ment issued by the Hearing Clerk or trative record that identifies all docu-
the ALJ under §§ 1.610 through 1.660 ments relied upon.
must be served on each party, using (2) If any of the documents relied
one of the methods of service in para- upon are not already in the license pro-
graph (c) of this section. ceeding record, the Forest Service
(c) Method of service. Service must be must:
accomplished by one of the following (i) File them with FERC at the time
methods: it files the preliminary conditions; and
(1) By hand delivery of the document; (ii) Provide paper or electronic copies
(2) By sending the document by ex- to the license applicant.
press mail or courier service for deliv- (b) Service. In addition to serving a
ery on the next business day; copy of its preliminary conditions on
(3) By sending the document by fac- each license party, the Forest Service
simile if: must provide a copy to the Hearing
(i) The document is 20 pages or less, Clerk if and when a request for a hear-
including all attachments; ing is filed with respect to the prelimi-
(ii) The sending facsimile machine nary conditions.
confirms that the transmission was
successful; and § 1.621 How do I request a hearing?
(iii) The document is sent by regular (a) General. To request a hearing on
mail on the same day; or disputed issues of material fact with
(4) By sending the document, includ- respect to any condition filed by the
ing all attachments, by electronic mail Forest Service, you must:

if: (1) Be a license party; and
(i) A copy of the document is sent by (2) File with NFS a written request
regular mail on the same day; and for a hearing within 30 days after the
104
deadline for the Departments to file after the date of service of the request
preliminary conditions with FERC. for a hearing.
(b) Content. Your hearing request (2) A license party filing a notice of
must contain: intervention and response may not
(1) A numbered list of the factual raise issues of material fact beyond
issues that you allege are in dispute, those raised in the hearing request.
each stated in a single, concise sen- (b) Content. In your notice of inter-
tence; and vention and response you must explain
(2) The following information with your position with respect to the issues
respect to each issue: of material fact raised in the hearing
(i) The specific factual statements request under § 1.621(b).
made or relied upon by the Forest (1) If you agree with the information
Service under § 1.620(a) that you dis- provided by the Forest Service under
pute; § 1.620(a) or by the requester under
(ii) The basis for your opinion that § 1.621(b), your response may refer to
those factual statements are unfounded the Forest Service’s explanation or the
or erroneous; requester’s hearing request for support.
(iii) The basis for your opinion that (2) If you wish to rely on additional
any factual dispute is material; and information or analysis, your response
(iv) With respect to any scientific must provide the same level of detail
studies, literature, and other docu- with respect to the additional informa-
mented information supporting your tion or analysis as required under
opinions under paragraphs (b)(2)(ii) and § 1.621(b).
(b)(2)(iii) of this section, specific cita-
(c) Witnesses and exhibits. Your re-
tions to the information relied upon. If
sponse and notice must also list the
any such document is not already in
witnesses and exhibits that you intend
the license proceeding record, you
to present at the hearing, other than
must provide a copy with the request.
solely for impeachment purposes.
(c) Witnesses and exhibits. Your hear-
ing request must also list the witnesses (1) For each witness listed, you must
and exhibits that you intend to present provide:
at the hearing, other than solely for (i) His or her name, address, tele-
impeachment purposes. phone number, and qualifications; and
(1) For each witness listed, you must (ii) A brief narrative summary of his
provide: or her expected testimony; and
(i) His or her name, address, tele- (2) For each exhibit listed, you must
phone number, and qualifications; and specify whether it is in the license pro-
(ii) A brief narrative summary of his ceeding record.
or her expected testimony. (d) Page limits. (1) For each disputed
(2) For each exhibit listed, you must factual issue, the information provided
specify whether it is in the license pro- under paragraph (b) of this section may
ceeding record. not exceed two pages.
(d) Page limits. (1) For each disputed (2) For each witness, the information
factual issue, the information provided provided under paragraph (c)(1) of this
under paragraph (b)(2) of this section section may not exceed one page.
may not exceed two pages.
(2) For each witness, the information § 1.623 When will hearing requests be
provided under paragraph (c)(1) of this consolidated?
section may not exceed one page. (a) Initial Department coordination. If
the Forest Service has received a copy
§ 1.622 How do I file a notice of inter- of a hearing request, it must contact
vention and response? the other Departments within 10 days
(a) General. (1) To intervene as a after the deadline for filing hearing re-
party to the hearing process, you must: quests under § 1.621 and determine:
(i) Be a license party; and
(1) Whether any of the other Depart-

(ii) File with NFS a notice of inter- ments has also filed a preliminary con-
vention and a written response to any dition or prescription relating to the li-
request for a hearing within 15 days cense with FERC; and
105
(2) If so, whether the other Depart- (1) For each of the numbered factual
ment has also received a hearing re- issues listed under § 1.621(b)(1), the an-
quest with respect to the preliminary swer must explain the Forest Service’s
condition or prescription. position with respect to the issues of
(b) Decision on consolidation. Within material fact raised by the requester,
25 days after the deadline for filing including one or more of the following
hearing requests under § 1.621, if the statements as appropriate:
Forest Service has received a hearing (i) That the Forest Service is willing
request, it must: to stipulate to the facts as alleged by
(1) Consult with any other Depart- the requester;
ment that has also received a hearing
(ii) That the Forest Service believes
request; and
(2) Decide jointly with the other De- the issue listed by the requester is not
partment: a factual issue, explaining the basis for
(i) Whether to consolidate the cases such belief;
for hearing under paragraphs (c)(3)(ii) (iii) That the Forest Service believes
through (c)(3)(iv) of this section; and the issue listed by the requester is not
(ii) If so, which Department will con- material, explaining the basis for such
duct the hearing on their behalf. belief; or
(c) Criteria. Cases will or may be con- (iv) That the Forest Service agrees
solidated as follows: that the issue is factual, material, and
(1) All hearing requests with respect in dispute.
to any conditions from the same De- (2) The answer must also indicate
partment will be consolidated for hear- whether the hearing request will be
ing. consolidated with one or more other
(2) All hearing requests with respect hearing requests under § 1.623 and, if so:
to any prescriptions from the same De- (i) Identify any other hearing request
partment will be consolidated for hear- that will be consolidated with this
ing.
hearing request; and
(3) Any or all of the following may be
consolidated for hearing, if the Depart- (ii) State which Department will con-
ments involved determine that there duct the hearing and provide contact
are common issues of material fact or information for the appropriate De-
that consolidation is otherwise appro- partment hearings component.
priate: (c) Witnesses and exhibits. The Forest
(i) Two or more hearing requests Service’s answer must also list the wit-
with respect to any condition and any nesses and exhibits that it intends to
prescription from the same Depart- present at the hearing, other than sole-
ment; ly for impeachment purposes.
(ii) Two or more hearing requests (1) For each witness listed, the For-
with respect to conditions from dif- est Service must provide:
ferent Departments; (i) His or her name, address, tele-
(iii) Two or more hearing requests phone number, and qualifications; and
with respect to prescriptions from dif- (ii) A brief narrative summary of his
ferent Departments; or or her expected testimony.
(iv) Two or more hearing requests (2) For each exhibit listed, the Forest
with respect to any condition from one
Service must specify whether it is in
Department and any prescription from
the license proceeding record
another Department.
(d) Page limits. (1) For each disputed
§ 1.624 How will the Forest Service re- factual issue, the information provided
spond to any hearing requests? under paragraph (b)(1) of this section
(a) General. Within 45 days after the may not exceed two pages.
deadline in § 1.621(a)(2), the Forest (2) For each witness, the information
Service may file with the Hearing provided under paragraph (c)(1) of this
section may not exceed one page.
Clerk an answer to any hearing request

under § 1.621. (e) Notice in lieu of answer. If the For-
(b) Content. If the Forest Service files est Service elects not to file an answer
an answer: to a hearing request:
106
(1) The Forest Service is deemed to of the methods identified in

agree that the issues listed by the re- § 1.612(b)(1)(i) and (b)(1)(ii).
quester are factual, material, and in (2) NFS must serve a copy of the re-
dispute; ferral notice on FERC and each party
(2) The Forest Service may file a list to the hearing by one of the methods
of witnesses and exhibits with respect identified in § 1.613(c)(1) and (c)(2).
to the request only as provided in
§ 1.642(b); and § 1.626 What regulations apply to a
(3) The Forest Service must file a no- case referred for a hearing?
tice containing the information re- (a) If NFS refers the case to OALJ,
quired by paragraph (b)(2) of this sec- these regulations will continue to
tion, if the hearing request will be con- apply to the hearing process.
solidated with one or more other hear- (b) If NFS refers the case to the De-
ing requests under § 1.623. partment of the Interior’s Office of
Hearing and Appeals, the regulations
§ 1.625 What will the Forest Service do at 43 CFR 45.1 et seq. will apply from
with any hearing requests? that point.
(a) Case referral. Within 5 days after (c) If NFS refers the case to the De-
receipt of the Forest Service’s answer, partment of Commerce’s designated
NFS will refer the case for a hearing as ALJ office, the regulations at 50 CFR
follows: 221.1 et seq. will apply from that point.
(1) If the hearing is to be conducted
GENERAL PROVISIONS RELATED TO
by USDA, NFS will refer the case to
HEARINGS
the OALJ.
(2) If the hearing is to be conducted § 1.630 What will OALJ do with a case
by another Department, NFS will refer referral?
the case to the hearings component Within 5 days after issuance of the
used by that Department. referral notice under § 1.625(c), 43 CFR
(b) Content. The case referral will 45.25(c), or 50 CFR 221.25(c):
consist of the following: (a) The Hearing Clerk must:
(1) A copy of any preliminary condi- (1) Docket the case;
tion under § 1.620; (2) Assign an ALJ to preside over the
(2) The original of any hearing rehearing process and issue a decision;
quest under § 1.621; and
(3) The original of any notice of (3) Issue a docketing notice that in-
intervention and response under § 1.622; forms the parties of the docket number
(4) The original of any answer under and the ALJ assigned to the case; and
§ 1.624; and (b) The ALJ must issue a notice set-
(5) An original referral notice under ting the time, place, and method for
paragraph (c) of this section. conducting an initial prehearing con-
(c) Notice. At the time NFS refers the ference under § 1.640. This notice may
case for a hearing, it must provide a re- be combined with the docketing notice
ferral notice that contains the fol- under paragraph (a)(3) of this section.
lowing information:
(1) The name, address, telephone § 1.631 What are the powers of the
number, and facsimile number of the ALJ?
Department hearings component that The ALJ will have all powers nec-
will conduct the hearing; essary to conduct a fair, orderly, expe-
(2) The name, address, and other con- ditious, and impartial hearing process,
tact information for the representative consistent with the requirements of
of each party to the hearing process; § 1.660(a), including the powers to:
(3) An identification of any other (a) Administer oaths and affirma-
hearing request that will be consoli- tions;
dated with this hearing request; and (b) Issue subpoenas to the extent au-
(4) The date on which NFS is refer- thorized by law;
ring the case for docketing. (c) Rule on motions;

(d) Delivery and service. (1) NFS must (d) Authorize discovery as provided
refer the case to the appropriate De- for in §§ 1.641 through 1.647;
partment hearings component by one (e) Hold hearings and conferences;
107
(f) Regulate the course of hearings; the hearing process and issue a deci-
(g) Call and question witnesses; sion.
(h) Exclude any person from a hear-
ing or conference for misconduct or § 1.634 What is the law governing ex
other good cause; parte communications?
(i) Issue a decision consistent with (a) Ex parte communications with the
§ 1.660(b) regarding any disputed issues ALJ or his or her staff are prohibited
of material fact relating to the Forest in accordance with 5 U.S.C. 554(d).
Service’s or other Department’s condi- (b) This section does not prohibit ex
tion or prescription that has been re- parte inquiries concerning case status
ferred to the ALJ for hearing; and or procedural requirements, unless the
(j) Take any other action authorized inquiry involves an area of controversy
by law. in the hearing process.
§ 1.632 What happens if the ALJ be- § 1.635 What are the requirements for
comes unavailable? motions?
(a) If the ALJ becomes unavailable or (a) General. Any party may apply for
otherwise unable to perform the duties an order or ruling on any matter re-
described in § 1.631, the OALJ shall des- lated to the hearing process by pre-
ignate a successor. senting a motion to the ALJ. A motion
(b) If a hearing has commenced and may be presented any time after the
the ALJ cannot proceed with it, a suc- Hearing Clerk issues a docketing no-
cessor ALJ may do so. At the request tice under § 1.630.
of a party, the successor ALJ may re- (1) A motion made at a hearing may
call any witness whose testimony is be stated orally on the record, unless
material and disputed, and who is the ALJ directs that it be reduced to
available to testify again without writing.
undue burden. The successor ALJ may, (2) Any other motion must:
within his or her discretion, recall any (i) Be in writing;
other witness. (ii) Comply with the requirements of
§§ 1.610 through 1.613 with respect to
§ 1.633 Under what circumstances may form, content, filing, and service; and
the ALJ be disqualified? (iii) Not exceed 10 pages.
(a) The ALJ may withdraw from a (b) Content. (1) Each motion must
case at any time the ALJ deems him- state clearly and concisely:
self or herself disqualified. (i) Its purpose and the relief sought;
(b) At any time before issuance of the (ii) The facts constituting the
ALJ’s decision, any party may move grounds for the relief sought; and
that the ALJ disqualify himself or her- (iii) Any applicable statutory or reg-
self for personal bias or other valid ulatory authority.
cause. (2) A proposed order must accompany
(1) The party must file the motion the motion.
promptly after discovering facts or (c) Response. Except as otherwise re-
other reasons allegedly constituting quired by this subpart or by order of
cause for disqualification. the ALJ, any other party may file a re-
(2) The party must file with the mo- sponse to a written motion within 10
tion an affidavit or declaration setting days after service of the motion. When
forth the facts or other reasons in de- a party presents a motion at a hearing,
tail. any other party may present a re-
(c) The ALJ must rule upon the mo- sponse orally on the record.
tion, stating the grounds for the rul- (d) Reply. Unless the ALJ orders oth-
ing. erwise, no reply to a response may be
(1) If the ALJ concludes that the mo- filed.
tion is timely and meritorious, he or (e) Effect of filing. Unless the ALJ or-
she must disqualify himself or herself ders otherwise, the filing of a motion
and withdraw from the case. does not stay the hearing process.
(2) If the ALJ does not disqualify (f) Ruling. The ALJ will rule on the
himself or herself and withdraw from motion as soon as practicable, either
the case, the ALJ must continue with orally on the record or in writing. He
108
or she may summarily deny any dila- ference will ordinarily be held by tele-
tory, repetitive, or frivolous motion. phone, unless the ALJ orders other-
wise.
PREHEARING CONFERENCES AND (d) Preparation. (1) Each party’s rep-
DISCOVERY resentative must be fully prepared for
a discussion of all issues properly be-
§ 1.640 What are the requirements for
prehearing conferences? fore the conference, both procedural
and substantive. The representative
(a) Initial prehearing conference. The must be authorized to commit the
ALJ will conduct an initial prehearing party that he or she represents respect-
conference with the parties at the time ing those issues.
specified in the docketing notice under (2) Before the date set for the initial
§ 1.630, on or about the 20th day after prehearing conference, the parties’ rep-
issuance of the referral notice under resentatives must make a good faith
§ 1.625(c). effort:
(1) The initial prehearing conference (i) To meet in person, by telephone,
will be used:
or by other appropriate means; and
(i) To identify, narrow, and clarify
(ii) To reach agreement on discovery
the disputed issues of material fact and
and the schedule of remaining steps in
exclude issues that do not qualify for
the hearing process.
review as factual, material, and dis-
(e) Failure to attend. Unless the ALJ
puted;
(ii) To consider the parties’ motions orders otherwise, a party that fails to
for discovery under § 1.641 and to set a attend or participate in a conference,
deadline for the completion of dis- after being served with reasonable no-
covery; tice of its time and place, waives all
(iii) To discuss the evidence on which objections to any agreements reached
each party intends to rely at the hear- in the conference and to any con-
ing; sequent orders or rulings.
(iv) To set the deadline for submis- (f) Scope. During a conference, the
sion of written testimony under § 1.652; ALJ may dispose of any procedural
and matters related to the case.
(v) To set the date, time, and place of (g) Order. Within 2 days after the con-
the hearing. clusion of each conference, the ALJ
(2) The initial prehearing conference must issue an order that recites any
may also be used: agreements reached at the conference
(i) To discuss limiting and grouping and any rulings made by the ALJ dur-
witnesses to avoid duplication; ing or as a result of the conference.
(ii) To discuss stipulations of fact
and of the content and authenticity of § 1.641 How may parties obtain dis-
covery of information needed for
documents; the case?
(iii) To consider requests that the
ALJ take official notice of public (a) General. By agreement of the par-
records or other matters; ties or with the permission of the ALJ,
(iv) To discuss the submission of a party may obtain discovery of infor-
written testimony, briefs, or other doc- mation to assist the party in preparing
uments in electronic form; and or presenting its case. Available meth-
(v) To consider any other matters ods of discovery are:
that may aid in the disposition of the (1) Written interrogatories;
case. (2) Depositions as provided in para-
(b) Other conferences. The ALJ may in graph (h) of this section; and
his or her discretion direct the parties (3) Requests for production of des-
to attend one or more other prehearing ignated documents or tangible things
conferences, if consistent with the need or for entry on designated land for in-
to complete the hearing process within spection or other purposes.
90 days. Any party may by motion re- (b) Criteria. Discovery may occur only
quest a conference. as agreed to by the parties or as au-

(c) Notice. The ALJ must give the thorized by the ALJ in a written order
parties reasonable notice of the time or during a prehearing conference. The
and place of any conference. A con- ALJ may authorize discovery only if
109
the party requesting discovery dem- (f) Materials prepared for hearing. A
onstrates: party generally may not obtain dis-
(1) That the discovery will not unrea- covery of documents and tangible
sonably delay the hearing process; things otherwise discoverable under
(2) That the information sought: paragraph (b) of this section if they
(i) Will be admissible at the hearing were prepared in anticipation of or for
or appears reasonably calculated to the hearing by or for another party’s
lead to the discovery of admissible evi- representative (including the party’s
dence; attorney, expert, or consultant).
(ii) Is not already in the license pro- (1) If a party wants to discover such
ceeding record or otherwise obtainable materials, it must show:
by the party; (i) That it has substantial need of the
(iii) Is not cumulative or repetitious; materials in preparing its own case;
and and
(iv) Is not privileged or protected (ii) That the party is unable without
from disclosure by applicable law; undue hardship to obtain the substan-
(3) That the scope of the discovery is tial equivalent of the materials by
not unduly burdensome; other means.
(2) In ordering discovery of such ma-
(4) That the method to be used is the
terials when the required showing has
least burdensome method available;
been made, the ALJ must protect
(5) That any trade secrets or propri-
against disclosure of the mental im-
etary information can be adequately
pressions, conclusions, opinions, or
safeguarded; and
legal theories of an attorney.
(6) That the standards for discovery (g) Experts. Unless restricted by the
under paragraphs (f) through (h) of this ALJ, a party may discover any facts
section have been met, if applicable. known or opinions held by an expert
(c) Motions. A party may initiate dis- concerning any relevant matters that
covery: are not privileged. Such discovery will
(1) Pursuant to an agreement of the be permitted only if:
parties; or (1) The expert is expected to be a wit-
(2) By filing a motion that: ness at the hearing; or
(i) Briefly describes the proposed (2) The expert is relied on by another
method(s), purpose, and scope of the expert who is expected to be a witness
discovery; at the hearing, and the party shows:
(ii) Explains how the discovery meets (i) That it has a compelling need for
the criteria in paragraphs (b)(1) the information; and
through (b)(6) of this section; and (ii) That it cannot practicably obtain
(iii) Attaches a copy of any proposed the information by other means.
discovery request (written interrog- (h) Limitations on depositions. (1) A
atories, notice of deposition, or request party may depose a witness only if the
for production of designated documents party shows that the witness:
or tangible things or for entry on des- (i) Will be unable to attend the hear-
ignated land). ing because of age, illness, or other in-
(d) Timing of motions. A party must capacity; or
file any discovery motion under para- (ii) Is unwilling to attend the hearing
graph (c)(2) of this section within 7 voluntarily, and the party is unable to
days after issuance of the referral no- compel the witness’s attendance at the
tice under § 1.625(c). hearing by subpoena.
(e) Objections. (1) A party must file (2) Paragraph (h)(1)(ii) of this section
any objections to a discovery motion does not apply to any person employed
or to specific portions of a proposed by or under contract with the party
discovery request within 7 days after seeking the deposition.
service of the motion. (3) A party may depose a senior De-
(2) An objection must explain how, in partment employee only if the party
the objecting party’s view, the dis- shows:

covery sought does not meet the cri- (i) That the employee’s testimony is
teria in paragraphs (b)(1) through (b)(6) necessary in order to provide signifi-
of this section. cant, unprivileged information that is
110
not available from any other source or (ii) The ability of the objecting party
by less burdensome means; and to cure any prejudice;
(ii) That the deposition would not (iii) The extent to which presentation
significantly interfere with the em- of the evidence would disrupt the or-
ployee’s ability to perform his or her derly and efficient hearing of the case;
government duties. (iv) The importance of the evidence;
(i) Completion of discovery. All dis- and
covery must be completed within 25 (v) The reason for the failure to dis-
days after the initial prehearing con- close, including any bad faith or will-
ference, unless the ALJ sets a different fulness regarding the failure.
deadline.
§ 1.642 When must a party supplement written interrogatories?
or amend information it has pre- (a) Motion. Except upon agreement of
viously provided?
the parties, a party wishing to pro-
(a) Discovery. A party must promptly pound interrogatories must file a mo-
supplement or amend any prior re- tion under § 1.641(c).
sponse to a discovery request if it (b) ALJ order. During or promptly
learns that the response: after the initial prehearing conference,
(1) Was incomplete or incorrect when the ALJ will issue an order under
made; or § 1.641(b) with respect to any discovery
(2) Though complete and correct motion requesting the use of written
when made, is now incomplete or incor- interrogatories. The order will:
rect in any material respect. (1) Grant the motion and approve the
(b) Witnesses and exhibits. (1) Within 5 use of some or all of the proposed inter-
days after the date set for completion rogatories; or
of discovery, each party must file an (2) Deny the motion.
updated version of the list of witnesses (c) Answers to interrogatories. Except
and exhibits required under §§ 1.621(c), upon agreement of the parties, the
1.622(c), or 1.624(c). party to whom the proposed interrog-
(2) If a party wishes to include any atories are directed must file its an-
new witness or exhibit on its updated swers to any interrogatories approved
list, it must provide an explanation of by the ALJ within 15 days after
why it was not feasible for the party to issuance of the order under paragraph
include the witness or exhibit on its (b) of this section.
list under §§ 1.621(c), 1.622(c), or 1.624(c). (1) Each approved interrogatory must
(c) Failure to disclose. (1) A party that be answered separately and fully in
fails to disclose information required writing.
under §§ 1.621(c), 1.622(c), or 1.624(c), or (2) The party or its representative
paragraphs (a) or (b) of this section, must sign the answers to interrog-
will not be permitted to introduce as atories under oath or affirmation.
evidence at the hearing testimony from (d) Access to records. A party’s answer
a witness or other information that it to an interrogatory is sufficient when:
failed to disclose. (1) The information may be obtained
(2) Paragraph (c)(1) of this section from an examination of records, or
does not apply if the failure to disclose from a compilation, abstract, or sum-
was substantially justified or is harm- mary based on such records;
less. (2) The burden of obtaining the infor-
(3) Before or during the hearing, a mation from the records is substan-
party may object to the admission of tially the same for all parties;
evidence under paragraph (c)(1) of this (3) The answering party specifically
section. identifies the individual records from
(4) The ALJ will consider the fol- which the requesting party may obtain
lowing in determining whether to ex- the information and where the records
clude evidence under paragraphs (c)(1) are located; and
through (c)(3) of this section: (4) The answering party provides the
(i) The prejudice to the objecting requesting party with reasonable op-
party; portunity to examine the records and
111
make a copy, compilation, abstract, or tion, and the other parties must be
summary. given an opportunity for cross-exam-
ination.
§ 1.644 What are the requirements for (e) Representation of witness. The wit-
depositions? ness being deposed may have counsel or
(a) Motion and notice. Except upon another representative present during
agreement of the parties, a party wish- the deposition.
ing to take a deposition must file a mo- (f) Recording and transcript. Except as
tion under § 1.641(c). Any notice of dep- provided in paragraph (g) of this sec-
osition filed with the motion must tion, the deposition must be steno-
state: graphically recorded and transcribed at
(1) The time and place that the depo- the expense of the party that requested
sition is to be taken; the deposition.
(2) The name and address of the per- (1) Any other party may obtain a
son before whom the deposition is to be copy of the transcript at its own ex-
taken; pense.
(3) The name and address of the wit- (2) Unless waived by the deponent,
ness whose deposition is to be taken; the deponent will have 3 days after re-
and ceiving the transcript to read and sign
(4) Any documents or materials that it.
the witness is to produce. (3) The person before whom the depo-
(b) ALJ order. During or promptly sition was taken must certify the tran-
after the initial prehearing conference, script following receipt of the signed
the ALJ will issue an order under transcript from the deponent or expira-
§ 1.641(b) with respect to any discovery tion of the 3-day review period, which-
motion requesting the taking of a dep- ever occurs first.
osition. The order will: (g) Video recording. The testimony at
(1) Grant the motion and approve the a deposition may be recorded on video-
taking of the deposition, subject to any tape, subject to any conditions or re-
conditions or restrictions the ALJ may strictions that the parties may agree
impose; or to or the ALJ may impose, at the ex-
(2) Deny the motion. pense of the party requesting the re-
(c) Arrangements. If the parties agree cording.
to or the ALJ approves the taking of (1) The video recording may be in
the deposition, the party requesting conjunction with an oral examination
the deposition must make appropriate by telephone conference held under
arrangements for necessary facilities paragraph (c)(3) of this section.
and personnel. (2) After the deposition has been
(1) The deposition will be taken at taken, the person recording the deposi-
the time and place agreed to by the tion must:
parties or indicated in the ALJ’s order. (i) Provide a copy of the videotape to
(2) The deposition may be taken be- any party that requests it, at the re-
fore any disinterested person author- questing party’s expense; and
ized to administer oaths in the place (ii) Attach to the videotape a state-
where the deposition is to be taken. ment identifying the case and the depo-
(3) Any party that objects to the tak- nent and certifying the authenticity of
ing of a deposition because of the dis- the video recording.
qualification of the person before (h) Use of deposition. A deposition
whom it is to be taken must do so: may be used at the hearing as provided
(i) Before the deposition begins; or in § 1.653.
(ii) As soon as the disqualification
becomes known or could have been dis- § 1.645 What are the requirements for
covered with reasonable diligence. requests for documents or tangible
(4) A deposition may be taken by things or entry on land?
telephone conference call, if agreed to (a) Motion. Except upon agreement of
by the parties or approved in the ALJ’s the parties, a party wishing to request
order. the production of designated docu-
(d) Testimony. Each witness deposed ments or tangible things or entry on
must be placed under oath or affirma- designated land must file a motion
112
under § 1.641(c). A request may include support its case, any information, tes-
any of the following that are in the timony, document, or other evidence:
possession, custody, or control of an- (i) That the party improperly with-
other party: held; or
(1) The production of designated doc- (ii) That the party obtained from an-
uments for inspection and copying, other party in discovery;
other than documents that are already (4) Allow another party to use sec-
in the license proceeding record; ondary evidence to show what the in-
(2) The production of designated tan- formation, testimony, document, or
gible things for inspection, copying, other evidence withheld would have
testing, or sampling; or shown; or
(3) Entry on designated land or other (5) Take other appropriate action to
property for inspection and measuring, remedy the party’s failure to comply.
surveying, photographing, testing, or
sampling either the property or any § 1.647 What are the requirements for
designated object or operation on the subpoenas and witness fees?
property. (a) Request for subpoena. (1) Except as
(b) ALJ order. During or promptly provided in paragraph (a)(2) of this sec-
after the initial prehearing conference, tion, any party may file a motion re-
the ALJ will issue an order under questing the ALJ to issue a subpoena
§ 1.641(b) with respect to any discovery to the extent authorized by law for the
motion requesting the production of attendance of a person, the giving of
documents or tangible things or entry testimony, or the production of docu-
on land for inspection, copying, or ments or other relevant evidence dur-
other purposes. The order will: ing discovery or for the hearing.
(1) Grant the motion and approve the (2) A party may subpoena a senior
use of some or all of the proposed re- Department employee only if the party
quests; or shows:
(2) Deny the motion. (i) That the employee’s testimony is
(c) Compliance with order. Except necessary in order to provide signifi-
upon agreement of the parties, the cant, unprivileged information that is
party to whom any approved request not available from any other source or
for production is directed must permit by less burdensome means; and
the approved inspection and other ac-
(ii) That the employee’s attendance
tivities within 15 days after issuance of
would not significantly interfere with
the order under paragraph (a) of this
the ability to perform his or her gov-
section.
ernment duties.
§ 1.646 What sanctions may the ALJ (b) Service. (1) A subpoena may be
impose for failure to comply with served by any person who is not a party
discovery? and is 18 years of age or older.
(a) Upon motion of a party, the ALJ (2) Service must be made by hand de-
may impose sanctions under paragraph livering a copy of the subpoena to the
(b) of this section if any party: person named therein.
(1) Fails to comply with an order ap- (3) The person serving the subpoena
proving discovery; or must:
(2) Fails to supplement or amend a (i) Prepare a certificate of service
response to discovery under § 1.642(a). setting forth:
(b) The ALJ may impose one or more (A) The date, time, and manner of
of the following sanctions: service; or
(1) Infer that the information, testi- (B) The reason for any failure of serv-
mony, document, or other evidence ice; and
withheld would have been adverse to (ii) Swear to or affirm the certificate,
the party; attach it to a copy of the subpoena,
(2) Order that, for the purposes of the and return it to the party on whose be-
half the subpoena was served.
hearing, designated facts are estab-

lished; (c) Witness fees. (1) A party who sub-
(3) Order that the party not introduce poenas a witness who is not a party
into evidence, or otherwise rely on to must pay him or her the same fees and
113
mileage expenses that are paid wit- § 1.651 What are the parties’ rights
nesses in the district courts of the during the hearing?
United States. Consistent with the provisions of this
(2) A witness who is not a party and subpart, each party has the following
who attends a deposition or hearing at rights during the hearing, as necessary
the request of any party without hav- to assure full and accurate disclosure
ing been subpoenaed to do so is entitled of the facts:
to the same fees and mileage expenses (a) To present direct and rebuttal
as if he or she had been subpoenaed. evidence;
However, this paragraph does not apply (b) To make objections, motions, and
to federal employees who are called as arguments; and
witnesses by the Forest Service or an- (c) To cross-examine witnesses and to
other Department. conduct re-direct and re-cross exam-
(d) Motion to quash. (1) A person to ination as permitted by the ALJ.
whom a subpoena is directed may re-
quest by motion that the ALJ quash or § 1.652 What are the requirements for
modify the subpoena. presenting testimony?
(2) The motion must be filed: (a) Written direct testimony. Unless
(i) Within 5 days after service of the otherwise ordered by the ALJ, all di-
subpoena; or rect hearing testimony must be pre-
(ii) At or before the time specified in pared and submitted in written form.
the subpoena for compliance, if that is (1) Prepared written testimony must:
less than 5 days after service of the (i) Have line numbers inserted in the
subpoena. left-hand margin of each page;
(3) The ALJ may quash or modify the (ii) Be authenticated by an affidavit
subpoena if it: or declaration of the witness;
(i) Is unreasonable; (iii) Be filed within 5 days after the
(ii) Requires evidence during dis- date set for completion of discovery,
covery that is not discoverable; or unless the ALJ sets a different dead-
(iii) Requires evidence during a hear- line; and
ing that is privileged or irrelevant. (iv) Be offered as an exhibit during
(e) Enforcement. For good cause the hearing.
shown, the ALJ may apply to the ap- (2) Any witness submitting written
propriate United States District Court testimony must be available for cross-
for the issuance of an order compelling examination at the hearing.
the appearance and testimony of a wit- (b) Oral testimony. Oral examination
ness or the production of evidence as of a witness in a hearing, including on
set forth in a subpoena that has been cross-examination or redirect, must be
duly issued and served. conducted under oath and in the pres-
ence of the ALJ, with an opportunity
HEARING, BRIEFING, AND DECISION for all parties to question the witness.
(c) Telephonic testimony. The ALJ
§ 1.650 When and where will the hear- may by order allow a witness to testify
ing be held? by telephonic conference call.
(a) Except as provided in paragraph (1) The arrangements for the call
(b) of this section, the hearing will be must let each party listen to and speak
held at the time and place set at the to the witness and each other within
initial prehearing conference under the hearing of the ALJ.
§ 1.640, generally within 15 days after (2) The ALJ will ensure the full iden-
the date set for completion of dis- tification of each speaker so the re-
covery. porter can create a proper record.
(b) On motion by a party or on the (3) The ALJ may issue a subpoena
ALJ’s initiative, the ALJ may change under § 1.647 directing a witness to tes-
the date, time, or place of the hearing tify by telephonic conference call.
if he or she finds:
§ 1.653 How may a party use a deposi-
(1) That there is good cause for the

change; and tion in the hearing?
(2) That the change will not unduly (a) In general. Subject to the provi-
prejudice the parties and witnesses. sions of this section, a party may use
114
in the hearing any part or all of a depo- (ii) Segregate and exclude the mate-
sition taken under § 1.644 against any rial not offered in evidence, to the ex-
party who: tent practicable; and
(1) Was present or represented at the (iii) Provide copies of the entire doc-
taking of the deposition; or ument to the other parties appearing
(2) Had reasonable notice of the tak- at the hearing.
ing of the deposition. (2) The ALJ must give the other par-
(b) Admissibility. (1) No part of a depo- ties an opportunity to inspect the en-
sition will be included in the hearing tire document and offer in evidence
record, unless received in evidence by any other portions of the document.
the ALJ. (c) Official notice. (1) At the request of
(2) The ALJ will exclude from evi- any party at the hearing, the ALJ may
dence any question and response to take official notice of any matter of
which an objection: which the courts of the United States
(i) Was noted at the taking of the may take judicial notice, including the
deposition; and public records of any Department
(ii) Would have been sustained if the party.
witness had been personally present (2) The ALJ must give the other par-
and testifying at a hearing. ties appearing at the hearing an oppor-
tunity to show the contrary of an offi-
(3) If a party offers only part of a dep-
cially noticed fact.
osition in evidence:
(3) Any party requesting official no-
(i) An adverse party may require the
tice of a fact after the conclusion of
party to introduce any other part that
the hearing must show good cause for
ought in fairness to be considered with
its failure to request official notice
the part introduced; and
during the hearing.
(ii) Any other party may introduce (d) Stipulations. (1) The parties may
any other parts. stipulate to any relevant facts or to
(c) Videotaped deposition. If the depo- the authenticity of any relevant docu-
sition was recorded on videotape and is ments.
admitted into evidence, relevant por- (2) If received in evidence at the
tions will be played during the hearing hearing, a stipulation is binding on the
and transcribed into the record by the stipulating parties.
reporter. (3) A stipulation may be written or
made orally at the hearing.
exhibits, official notice, and stipula- § 1.655 What evidence is admissible at
tions? the hearing?
(a) General. (1) Except as provided in (a) General. (1) Subject to the provi-
paragraphs (b) through (e) of this sec- sions of § 1.642(b), the ALJ may admit
tion, any material offered in evidence, any written, oral, documentary, or de-
other than oral testimony, must be of- monstrative evidence that is:
fered in the form of an exhibit. (i) Relevant, reliable, and probative;
(2) Each exhibit offered by a party and
must be marked for identification. (ii) Not privileged or unduly repeti-
(3) Any party who seeks to have an tious or cumulative.
exhibit admitted into evidence must (2) The ALJ may exclude evidence if
provide: its probative value is substantially
(i) The original of the exhibit to the outweighed by the risk of undue preju-
reporter, unless the ALJ permits the dice, confusion of the issues, or delay.
substitution of a copy; and (3) Hearsay evidence is admissible.
(ii) A copy of the exhibit to the ALJ. The ALJ may consider the fact that
(b) Material not offered. If a document evidence is hearsay when determining
offered as an exhibit contains material its probative value.
not offered as evidence: (4) The Federal Rules of Evidence do
(1) The party offering the exhibit
not directly apply to the hearing, but

must: may be used as guidance by the ALJ
(i) Designate the matter offered as and the parties in interpreting and ap-
evidence; plying the provisions of this section.
115
(b) Objections. Any party objecting to for filing a reply brief, if any, will be
the admission or exclusion of evidence set by the ALJ.
shall concisely state the grounds. A (3) The ALJ may limit the length of
ruling on every objection must appear the briefs to be filed under this section.
in the record. (b) Content. (1) An initial brief must
include:
§ 1.656 What are the requirements for (i) A concise statement of the case;
transcription of the hearing?
(ii) A separate section containing
(a) Transcript and reporter’s fees. The proposed findings regarding the issues
hearing will be transcribed verbatim. of material fact, with supporting cita-
(1) The Forest Service will secure the tions to the hearing record;
services of a reporter and pay the re- (iii) Arguments in support of the par-
porter’s fees to provide an original ty’s position; and
transcript to the Forest Service on an (iv) Any other matter required by the
expedited basis. ALJ.
(2) Each party must pay the reporter (2) A reply brief, if requested by the
for any copies of the transcript ob- ALJ, must be limited to any issues
tained by that party. identified by the ALJ.
(b) Transcript Corrections. (1) Any (c) Form. (1) An exhibit admitted in
party may file a motion proposing cor- evidence or marked for identification
rections to the transcript. The motion in the record may not be reproduced in
must be filed within 5 days after re- the brief.
ceipt of the transcript, unless the ALJ
(i) Such an exhibit may be repro-
sets a different deadline.
duced, within reasonable limits, in an
(2) Unless a party files a timely mo-
appendix to the brief.
tion under paragraph (b)(1) of this sec-
(ii) Any pertinent analysis of an ex-
tion, the transcript will be presumed to
hibit may be included in a brief.
be correct and complete, except for ob-
vious typographical errors. (2) If a brief exceeds 20 pages, it must
(3) As soon as practicable after the contain:
close of the hearing and after consider- (i) A table of contents and of points
ation of any motions filed under para- made, with page references; and
graph (b)(1) of this section, the ALJ (ii) An alphabetical list of citations
will issue an order making any correc- to legal authority, with page ref-
tions to the transcript that the ALJ erences.
finds are warranted.
§ 1.657 What is the standard of proof? the ALJ’s decision?
The standard of proof is a preponder- (a) Timing. The ALJ must issue a de-
ance of the evidence. cision within the shorter of the fol-
lowing time periods:
§ 1.658 When will the hearing record (1) 30 days after the close of the hear-
close? ing under § 1.658; or
(a) The hearing record will close (2) 90 days after issuance of the refer-
when the ALJ closes the hearing, un- ral notice under § 1.625(c), 43 CFR
less he or she directs otherwise. 45.25(c), or 50 CFR 221.25(c).
(b) Evidence may not be added after (b) Content. (1) The decision must
the hearing record is closed, but the contain:
transcript may be corrected under (i) Findings of fact on all disputed
§ 1.656 (b). issues of material fact;
(ii) Conclusions of law necessary to
§ 1.659 What are the requirements for make the findings of fact (such as rul-
post-hearing briefs? ings on materiality and on the admissi-
(a) General. (1) Each party may file a bility of evidence); and
post-hearing brief within 10 days after (iii) Reasons for the findings and con-
the close of the hearing, unless the clusions.

ALJ sets a different deadline. (2) The ALJ may adopt any of the
(2) A party may file a reply brief only findings of fact proposed by one or
if requested by the ALJ. The deadline more of the parties.
116
(3) The decision will not contain con- the Forest Service to file preliminary
clusions as to whether any preliminary conditions with FERC.
condition or prescription should be (b) Content. Your proposal must in-
adopted, modified, or rejected, or clude:
whether any proposed alternative (1) A description of the alternative,
should be adopted or rejected. in an equivalent level of detail to the
(c) Service. Promptly after issuing his Forest Service’s preliminary condition;
or her decision, the ALJ must: (2) An explanation of how the alter-
(1) Serve the decision on each party native will provide for the adequate
to the hearing; and protection and utilization of the res-
(2) Forward a copy of the decision to ervation;
FERC, along with the complete hearing (3) An explanation of how the alter-
record, for inclusion in the license pro- native, as compared to the preliminary
ceeding record. condition, will:
(d) Finality. The ALJ’s decision under
(i) Cost significantly less to imple-
this section will be final, with respect
ment; or
to the disputed issues of material fact,
for any Department involved in the (ii) Result in improved operation of
hearing. To the extent the ALJ’s deci- the project works for electricity pro-
sion forms the basis for any condition duction;
or prescription subsequently included (4) An explanation of how the alter-
in the license, it may be subject to ju- native will affect:
dicial review under 16 U.S.C. 825l(b). (i) Energy supply, distribution, cost,
and use;
ALTERNATIVES PROCESS (ii) Flood control;
(iii) Navigation;
§ 1.670 How must documents be filed (iv) Water supply;
and served under §§ 1.670 through
1.673? (v) Air quality; and
(vi) Other aspects of environmental
(a) Filing. (1) For the alternatives quality; and
process, documents must be filed using
(5) Specific citations to any scientific
one of the methods set forth in
studies, literature, and other docu-
§ 1.612(b).
mented information relied on to sup-
(2) A document is considered filed on
port your proposal, including any as-
the date it is received. However, any
sumptions you are making (e.g., re-
document received after 5 p.m. at the
garding the cost of energy or the rate
place where the filing is due is consid-
of inflation). If any such document is
ered filed on the next regular business
day. not already in the license proceeding
(b) Service. (1) Any document filed record, you must provide a copy with
under this section must be served at the proposal.
the same time the document is deliv- § 1.672 What will the Forest Service do
ered or sent for filing. A complete copy with a proposed alternative?
of the document must be served on
each license party and FERC, using: If any license party proposes an al-
(i) One of the methods of service in ternative to a preliminary condition
§ 1.613(c); or under § 1.671(a)(1), the Forest Service
(ii) Regular mail. must do the following within 60 days
(2) The provisions of § 1.613 (d) and (e) after the deadline for filing comments
regarding acknowledgment and certifi- to FERC’s NEPA document under 18
cate of service apply to service under CFR 5.25(c):
this section. (a) Analyze the alternative under
§ 1.673; and
§ 1.671 How do I propose an alter- (b) File with FERC:
native? (1) Any condition that the Forest
(a) General. To propose an alter- Service adopts as its modified condi-
native, you must: tion; and

(1) Be a license party; and (2) Its analysis of the modified condi-
(2) File a written proposal with NFS tion and any proposed alternatives
within 30 days after the deadline for under § 1.673(c).
117
§ 1.673 How will the Forest Service (1) Energy supply, distribution, cost,
analyze a proposed alternative and and use;
formulate its modified condition? (2) Flood control;
(a) In deciding whether to adopt a (3) Navigation;
proposed alternative, the Forest Serv- (4) Water supply;
ice must consider evidence and sup- (5) Air quality; and
porting material provided by any li- (6) Preservation of other aspects of
cense party or otherwise available to environmental quality.
the Forest Service, including:
(1) Any evidence on the implementa- § 1.674 Has OMB approved the infor-
tion costs or operational impacts for mation collection provisions of
electricity production of the proposed §§ 1.670 through 1.673?
alternative; Yes. This rule contains provisions
(2) Any comments received on the that would collect information from
Forest Service’s preliminary condition; the public. It therefore requires ap-
(3) Any ALJ decision on disputed proval by the Office of Management
issues of material fact issued under and Budget (OMB) under the Paper-
§ 1.660 with respect to the preliminary work Reduction Act of 1995, 44 U.S.C.
condition; 3501 et seq. (PRA). According to the
(4) Comments received on any draft PRA, a Federal agency may not con-
or final NEPA documents; and duct or sponsor, and a person is not re-
(5) The license party’s proposal under quired to respond to, a collection of in-
§ 1.671. formation unless it displays a cur-
(b) The Forest Service must adopt a rently valid OMB control number that
proposed alternative if the Forest Serv- indicates OMB approval. OMB has re-
ice determines, based on substantial viewed the information collection in
evidence provided by any license party this rule and approved it under OMB
or otherwise available to the Forest control number 1094–0001.
Service, that the alternative:
(1) Will, as compared to the Forest
Service’s preliminary condition: PART 1a—LAW ENFORCEMENT
(i) Cost significantly less to imple- AUTHORITIES
ment; or
(ii) Result in improved operation of Sec.
the project works for electricity pro- 1a.1 General statement.
duction; and 1a.2 Authorization.
(2) Will provide for the adequate pro- 1a.3 Persons authorized.
tection and utilization of the reserva- 1a.4 Limitations.
tion. 1a.5 Responsibility of the Inspector Gen-
(c) When the Forest Service files with eral.
FERC the condition that the Forest AUTHORITY: Sec. 1337, Pub. L. 97–98; 5
Service adopts as its modified condi- U.S.C. 301; 5 U.S.C. App. I.
tion under §§ 1.672(b), it must also file:
SOURCE: 47 FR 2073, Jan. 14, 1982, unless
(1) A written statement explaining: otherwise noted.
(i) The basis for the adopted condi-
tion; and § 1a.1 General statement.
(ii) If the Forest Service is not adopt-
ing any alternative, its reasons for not This part sets forth the rules issued
doing so; and by the Secretary of Agriculture to im-
(2) Any study, data, and other factual plement section 1337 of Public Law 97–
information relied on that is not al- 98 relating to:
ready part of the licensing proceeding (a) Arrests without warrant for cer-
record. tain criminal felony violations;
(d) The written statement under (b) Execution of warrants for arrests,
paragraph (c)(1) of this section must searches of premises and seizures of
evidence; and
demonstrate that the Forest Service

gave equal consideration to the effects (c) The carrying of firearms by des-
of the condition adopted and any alter- ignated officials of the Office of Inspec-
native not adopted on: tor General.
118
Office of the Secretary, USDA § 1b.1
§ 1a.2 Authorization. ties will be exercised by designated of-

Any official of the Office of Inspector ficials of the Office of Inspector Gen-
General who is designated by the In- eral;
spector General according to §§ 1a.3 and (b) Establish criteria for qualifica-
1a.5 of this part and who is engaged in tion by officials of the Office of Inspec-
the performance of his/her official du- tor General who are designated to exer-
ties under the authority provided in cise the authorities granted in this
section 6, or described in section 9, of part;
the Inspector General Act of 1978 (5 (c) Monitor the implementation and
U.S.C. App.), is authorized to— exercise of the authorities granted by
(a) Make an arrest without a warrant this part;
for any criminal felony violation sub- (d) Designate, pursuant to §§ 1a.2, 1a.3
ject to § 1a.4, if such violation is com- and 1a.4, and the directives issued
mitted, or if the official has probable under paragraph (a) of this section, and
cause to believe that such violation is the criteria established under para-
being committed, in his/her presence; graph (b) of this section, employees
(b) Execute and serve a warrant for who have satisfied all the qualifica-
an arrest, for the search of premises, or tions set by the Inspector General to
the seizure of evidence if such warrant exercise the authorities granted by
is issued under authority of the United § 1a.2; and
States upon probable cause to believe (e) Submit to the Attorney General
that any criminal felony violation, of the United States the name of any
subject to § 1a.4, has been committed; employee of the Office of Inspector
and General designated pursuant to para-
(c) Carry a firearm. graph (d) of this section. Any designa-
tion not specifically disapproved by the
[50 FR 13759, Apr. 8, 1985]
Attorney General within 30 days after
§ 1a.3 Persons authorized. the date of submission shall be deemed
approved.
Any person who is employed in the
Office of Inspector General and who is
designated by the Inspector General in PART 1b—NATIONAL
accordance with and subject to § 1a. ENVIRONMENTAL POLICY ACT
and who conducts investigations of al-
leged or suspected felony criminal vio- Sec.
1b.1 Purpose.
lations of statutes administered by the
1b.2 Policy.
Secretary of Agriculture or any agency 1b.3 Categorical exclusions.
of the Department of Agriculture may 1b.4 Exclusion of agencies.
exercise the authorities listed in and
AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321 et
pursuant to § 1a.2. seq.; E.O. 11514, 3 CFR, 1966–1970 Comp., p. 902,
as amended by E.O. 11991, 3 CFR, 1978 Comp.,
§ 1a.4 Limitations.
p. 123; E.O. 12114, 3 CFR, 1980 Comp., p. 356; 40
The powers granted by §§ 1a.2(a) and CFR 1507.3.
1a.2(b) shall be exercised only when a SOURCE: 48 FR 11403, Mar. 18, 1983, unless
designated official is engaged in an in- otherwise noted.
vestigation of alleged or suspected fel-
ony violations of statutes administered § 1b.1 Purpose.
by the Secretary of Agriculture or any (a) This part supplements the regula-
agency of the Department. tions for implementation of the Na-
[50 FR 13759, Apr. 8, 1985] tional Environmental Policy Act
(NEPA), for which regulations were
§ 1a.5 Responsibility of the Inspector published by the Council on Environ-
General. mental Quality (CEQ) in 40 CFR parts
The Inspector General shall: 1500 through 1508. This part incor-
(a) Issue directives conforming to porates and adopts those regulations.
this part governing the exercise of the (b) This part sets forth Departmental
authorities granted by this part. These policy concerning NEPA, establishes
directives should contain the policies categorical exclusions of actions car-
and procedures by which the authori- ried out by the Department and its
119
§ 1b.2 7 CFR Subtitle A (1–1–12 Edition)
agencies, and sets forth those USDA § 1b.3 Categorical exclusions.

agencies which are excluded from the
(a) The following are categories of
requirement to prepare procedures im-
activities which have been determined
plementing NEPA.
not to have a significant individual or
[48 FR 11403, Mar. 18, 1983, as amended at 60 cumulative effect on the human envi-
FR 66481, Dec. 22, 1995] ronment and are excluded from the
preparation of environmental assess-
§ 1b.2 Policy. ment (EA’s) or environmental impact
(a) All policies and programs of the statement (EIS’s), unless individual
various USDA agencies shall be agency procedures prescribed other-
planned, developed, and implemented wise.
so as to achieve the goals and to follow (1) Policy development, planning and
the procedures declared by NEPA in implementation which relate to rou-
order to assure responsible stewardship tine activities, such as personnel, orga-
of the environment for present and fu- nizational changes, or similar adminis-
ture generations. trative functions;
(b) Each USDA agency is responsible (2) Activities which deal solely with
for compliance with this part, the regu- the funding of programs, such as pro-
lations of CEQ, and NEPA. Compliance gram budget proposals, disbursements,
will include the preparation and imple- and transfer or reprogramming of
mentation of specific procedures and funds;
processes relating to the programs and (3) Inventories, research activities,
activities of the individual agency, as and studies, such as resource inven-
necessary. tories and routine data collection when
(c) The Under Secretary, Natural Re- such actions are clearly limited in con-
sources and Environment (NR&E), is text and intensity;
responsible for ensuring that agency (4) Educational and informational
implementing procedures are con- programs and activities;
sistent with CEQ’s NEPA regulations (5) Civil and criminal law enforce-
and for coordinating NEPA compliance ment and investigative activities;
for the Department. The Under Sec- (6) Activities which are advisory and
retary, NR&E, through the Agricul- consultative to other agencies and pub-
tural Council on Environmental Qual- lic and private entities, such as legal
ity, will develop the necessary proc- counselling and representation;
esses to be used by the Office of the (7) Activities related to trade rep-
Secretary in reviewing, implementing, resentation and market development
and planning its NEPA activities, de- activities abroad.
terminations, and policies. (b) Agencies will identify in their
(d) In connection with the policies own procedures the activities which
and requirements set forth in this part, normally would not require an environ-
all USDA agencies are responsible for mental assessment or environmental
compliance with Executive Order 12114, impact statement.
‘‘Environmental Effects Abroad of (c) Notwithstanding the exclusions
Major Federal Actions.’’ Compliance listed in paragraphs (a) of this section
will include the preparation and imple- and § 1b.4, or identified in agency proce-
mentation of specific procedures and dures, agency heads may determine
processes relative to the programs and that circumstances dictate the need for
activities of the individual agencies, as preparation of an EA or EIS for a par-
necessary. Agencies shall consult with ticular action. Agencies shall continue
the Department of State; the Council to scrutinize their activities to deter-
on Environmental Quality; and the mine continued eligibility for categor-
Under Secretary, NR&E, prior to plac- ical exclusion.
ing procedures and processes in effect.

[48 FR 11403, Mar. 18, 1983, as amended at 60
[48 FR 11403, Mar. 18, 1983, as amended at 60 FR 66481, Dec. 22, 1995]
FR 66481, Dec. 22, 1995]
120
Office of the Secretary, USDA § 1c.101
§ 1b.4 Exclusion of agencies. 1c.116 General requirements for informed

consent.
(a) The USDA agencies and agency 1c.117 Documentation of informed consent.
units listed in paragraph (b) of this sec- 1c.118 Applications and proposals lacking
tion conduct programs and activities definite plans for involvement of human
that have been found to have no indi- subjects.
vidual or cumulative effect on the 1c.119 Research undertaken without the in-
tention of involving human subjects.
human environment. The USDA agen- 1c.120 Evaluation and disposition of applica-
cies and agency units listed in para- tions and proposals for research to be
graph (b) of this section are excluded conducted or supported by a Federal De-
from the requirements of preparing partment or Agency.
procedures to implement NEPA. Ac- 1c.121 [Reserved]
tions of USDA agencies and agency 1c.122 Use of Federal funds.
units listed in paragraph (b) of this sec- 1c.123 Early termination of research sup-
port: Evaluation of applications and pro-
tion are categorically excluded from posals.
the preparation of an EA or EIS unless 1c.124 Conditions.
the agency head determines that an ac-
AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b).
tion may have a significant environ-
mental effect. SOURCE: 56 FR 28012, 28018, June 18, 1991,
(b)(1) Agricultural Marketing Service unless otherwise noted.
(2) Economic Research Service
§ 1c.101 To what does this policy
(3) [Reserved] apply?
(4) Federal Corp Insurance Corpora-
tion (a) Except as provided in paragraph
(5) Food and Consumer Service (b) of this section, this policy applies
(6) Food Safety and Inspection Serv- to all research involving human sub-
ice jects conducted, supported or otherwise
(7) Foreign Agricultural Service subject to regulation by any federal de-
(8) Grain Inspection, Packers and partment or agency which takes appro-
Stockyards Administration priate administrative action to make
(9) National Agricultural Library the policy applicable to such research.
(10) National Agricultural Statistics This includes research conducted by
Service federal civilian employees or military
(11) Office of the General Counsel personnel, except that each department
(12) Office of the Inspector General or agency head may adopt such proce-
dural modifications as may be appro-
[60 FR 66481, Dec. 22, 1995, as amended at 76 priate from an administrative stand-
FR 4802, Jan. 27, 2011] point. It also includes research con-
ducted, supported, or otherwise subject
PART 1c—PROTECTION OF HUMAN to regulation by the federal govern-
SUBJECTS ment outside the United States.
(1) Research that is conducted or sup-
Sec. ported by a Federal department or
1c.101 To what does this policy apply? agency, whether or not it is regulated
1c.102 Definitions. as defined in § 1c.102(e), must comply
1c.103 Assuring compliance with this pol- with all sections of this policy.
icy—research conducted or supported by (2) Research that is neither con-
any Federal Department or Agency.
1c.104–1c.106 [Reserved]
ducted nor supported by a Federal de-
1c.107 IRB membership. partment or agency but is subject to
1c.108 IRB functions and operations. regulation as defined in § 1c.102(e) must
1c.109 IRB review of research. be reviewed and approved, in compli-
1c.110 Expedited review procedures for cer- ance with §§ 1c.101, 1c.102, and 1c.107
tain kinds of research involving no more through 1c.117 of this policy, by an in-
than minimal risk, and for minor stitutional review board (IRB) that op-
changes in approved research. erates in accordance with the pertinent
1c.111 Criteria for IRB approval of research.
1c.112 Review by institution.
requirements of this policy.
1c.113 Suspension or termination of IRB ap- (b) Unless otherwise required by de-
proval of research. partment or agency heads, research ac-
1c.114 Cooperative research. tivities in which the only involvement
1c.115 IRB records. of human subjects will be in one or
121
§ 1c.101 7 CFR Subtitle A (1–1–12 Edition)
more of the following categories are (ii) Procedures for obtaining benefits
exempt from this policy: or services under those programs;
(1) Research conducted in established (iii) possible changes in or alter-
or commonly accepted educational set- natives to those programs or proce-
tings, involving normal educational dures; or
practices, such as (i) Research on reg- (iv) Possible changes in methods or
ular and special education instruc- levels of payment for benefits or serv-
tional strategies, or (ii) research on the ices under those programs.
effectiveness of or the comparison (6) Taste and food quality evaluation
among instructional techniques, cur- and consumer acceptance studies, (i) if
ricula, or classroom management wholesome foods without additives are
methods. consumed or (ii) if a food is consumed
(2) Research involving the use of edu- that contains a food ingredient at or
cational tests (cognitive, diagnostic, below the level and for a use found to
aptitude, achievement), survey proce- be safe, or agricultural chemical or en-
dures, interview procedures or observa- vironmental contaminant at or below
tion of public behavior, unless: the level found to be safe, by the Food
(i) Information obtained is recorded and Drug Administration or approved
in such a manner that human subjects by the Environmental Protection
can be identified, directly or through Agency or the Food Safety and Inspec-
identifiers linked to the subjects; and tion Service of the U.S. Department of
(ii) Any disclosure of the human sub- Agriculture.
jects’ responses outside the research (c) Department or agency heads re-
could reasonably place the subjects at tain final judgment as to whether a
risk of criminal or civil liability or be particular activity is covered by this
damaging to the subjects’ financial policy.
standing, employability, or reputation. (d) Department or agency heads may
(3) Research involving the use of edu- require that specific research activities
cational tests (cognitive, diagnostic, or classes of research activities con-
aptitude, achievement), survey proce- ducted, supported, or otherwise subject
dures, interview procedures, or obser- to regulation by the department or
vation of public behavior that is not agency but not otherwise covered by
exempt under paragraph (b)(2) of this this policy, comply with some or all of
section, if: the requirements of this policy.
(i) The human subjects are elected or (e) Compliance with this policy re-
appointed public officials or candidates quires compliance with pertinent fed-
for public office; or eral laws or regulations which provide
(ii) Federal statute(s) require(s) with- additional protections for human sub-
out exception that the confidentiality jects.
of the personally identifiable informa- (f) This policy does not affect any
tion will be maintained throughout the state or local laws or regulations which
research and thereafter. may otherwise be applicable and which
(4) Research, involving the collection provide additional protections for
or study of existing data, documents, human subjects.
records, pathological specimens, or di- (g) This policy does not affect any
agnostic specimens, if these sources are foreign laws or regulations which may
publicly available or if the information otherwise be applicable and which pro-
is recorded by the investigator in such vide additional protections to human
a manner that subjects cannot be iden- subjects of research.
tified, directly or through identifiers (h) When research covered by this
linked to the subjects. policy takes place in foreign countries,
(5) Research and demonstration procedures normally followed in the
projects which are conducted by or sub- foreign countries to protect human
ject to the approval of department or subjects may differ from those set
agency heads, and which are designed forth in this policy. [An example is a
to study, evaluate, or otherwise exam- foreign institution which complies

ine: with guidelines consistent with the
(i) Public benefit or service pro- World Medical Assembly Declaration
grams; (Declaration of Helsinki amended 1989)
122
issued either by sovereign states or by § 1c.102 Definitions.

an organization whose function for the
(a) Department or agency head means
protection of human research subjects
the head of any federal department or
is internationally recognized.] In these
agency and any other officer or em-
circumstances, if a department or
ployee of any department or agency to
agency head determines that the proce- whom authority has been delegated.
dures prescribed by the institution af-
(b) Institution means any public or
ford protections that are at least
private entity or agency (including fed-
equivalent to those provided in this
eral, state, and other agencies).
policy, the department or agency head
(c) Legally authorized representative
may approve the substitution of the
means an individual or judicial or
foreign procedures in lieu of the proce-
other body authorized under applicable
dural requirements provided in this
law to consent on behalf of a prospec-
policy. Except when otherwise required
tive subject to the subject’s participa-
by statute, Executive Order, or the de-
tion in the procedure(s) involved in the
partment or agency head, notices of research.
these actions as they occur will be pub-
(d) Research means a systematic in-
lished in the FEDERAL REGISTER or will
vestigation, including research devel-
be otherwise published as provided in
opment, testing and evaluation, de-
department or agency procedures.
signed to develop or contribute to gen-
(i) Unless otherwise required by law, eralizable knowledge. Activities which
department or agency heads may waive meet this definition constitute re-
the applicability of some or all of the search for purposes of this policy,
provisions of this policy to specific re- whether or not they are conducted or
search activities or classes of research supported under a program which is
activities otherwise covered by this considered research for other purposes.
policy. Except when otherwise required For example, some demonstration and
by statute or Executive Order, the de- service programs may include research
partment or agency head shall forward activities.
advance notices of these actions to the (e) Research subject to regulation, and
Office for Human Research Protec- similar terms are intended to encom-
tions, Department of Health and pass those research activities for which
Human Services (HHS), or any suc- a federal department or agency has
cessor office, and shall also publish specific responsibility for regulating as
them in the FEDERAL REGISTER or in a research activity, (for example, In-
such other manner as provided in de- vestigational New Drug requirements
partment or agency procedures. 1 administered by the Food and Drug Ad-
[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, ministration). It does not include re-
June 28, 1991, as amended at 70 FR 36328, search activities which are inciden-
June 23, 2005] tally regulated by a federal department
or agency solely as part of the depart-
ment’s or agency’s broader responsi-
1 Institutions with HHS-approved assur- bility to regulate certain types of ac-
ances on file will abide by provisions of title tivities whether research or non-re-
45 CFR part 46 subparts A–D. Some of the search in nature (for example, Wage
other Departments and Agencies have incor-
and Hour requirements administered
porated all provisions of title 45 CFR part 46
into their policies and procedures as well.
by the Department of Labor).
However, the exemptions at 45 CFR 46.101(b) (f) Human subject means a living indi-
do not apply to research involving prisoners, vidual about whom an investigator
subpart C. The exemption at 45 CFR (whether professional or student) con-
46.101(b)(2), for research involving survey or ducting research obtains:
interview procedures or observation of public (1) Data through intervention or
behavior, does not apply to research with interaction with the individual, or
children, subpart D, except for research in-

(2) Identifiable private information.
volving observations of public behavior when
the investigator(s) do not participate in the Intervention includes both physical pro-
activities being observed. cedures by which data are gathered (for
123
example, venipuncture) and manipula- provide written assurance satisfactory

tions of the subject or the subject’s en- to the department or agency head that
vironment that are performed for re- it will comply with the requirements
search purposes. Interaction includes set forth in this policy. In lieu of re-
communication or interpersonal con- quiring submission of an assurance, in-
tact between investigator and subject. dividual department or agency heads
‘‘Private information’’ includes infor- shall accept the existence of a current
mation about behavior that occurs in a assurance, appropriate for the research
context in which an individual can rea- in question, on file with the Office for
sonably expect that no observation or Human Research Protections, HHS, or
recording is taking place, and informa- any successor office, and approved for
tion which has been provided for spe- federalwide use by that office. When
cific purposes by an individual and the existence of an HHS-approved as-
which the individual can reasonably surance is accepted in lieu of requiring
expect will not be made public (for ex- submission of an assurance, reports
ample, a medical record). Private infor- (except certification) required by this
mation must be individually identifi- policy to be made to department and
able (i.e., the identity of the subject is agency heads shall also be made to the
or may readily be ascertained by the Office for Human Research Protec-
investigator or associated with the in- tions, HHS, or any successor office.
formation) in order for obtaining the (b) Departments and agencies will
information to constitute research in- conduct or support research covered by
volving human subjects.
this policy only if the institution has
(g) IRB means an institutional review an assurance approved as provided in
board established in accord with and this section, and only if the institution
for the purposes expressed in this pol- has certified to the department or
icy.
agency head that the research has been
(h) IRB approval means the deter- reviewed and approved by an IRB pro-
mination of the IRB that the research vided for in the assurance, and will be
has been reviewed and may be con- subject to continuing review by the
ducted at an institution within the
IRB. Assurances applicable to federally
constraints set forth by the IRB and by
supported or conducted research shall
other institutional and federal require-
at a minimum include:
ments.
(1) A statement of principles gov-
(i) Minimal risk means that the prob-
erning the institution in the discharge
ability and magnitude of harm or dis-
comfort anticipated in the research are of its responsibilities for protecting the
not greater in and of themselves than rights and welfare of human subjects of
those ordinarily encountered in daily research conducted at or sponsored by
life or during the performance of rou- the institution, regardless of whether
tine physical or psychological exami- the research is subject to federal regu-
nations or tests. lation. This may include an appro-
(j) Certification means the official no- priate existing code, declaration, or
tification by the institution to the sup- statement of ethical principles, or a
porting department or agency, in ac- statement formulated by the institu-
cordance with the requirements of this tion itself. This requirement does not
policy, that a research project or activ- preempt provisions of this policy appli-
ity involving human subjects has been cable to department- or agency-sup-
reviewed and approved by an IRB in ac- ported or regulated research and need
cordance with an approved assurance. not be applicable to any research ex-
empted or waived under § 1c.101 (b) or
§ 1c.103 Assuring compliance with this (i).
policy—research conducted or sup- (2) Designation of one or more IRBs
ported by any Federal Department established in accordance with the re-
or Agency. quirements of this policy, and for
(a) Each institution engaged in re- which provisions are made for meeting
search which is covered by this policy space and sufficient staff to support
and which is conducted or supported by the IRB’s review and recordkeeping du-
a federal department or agency shall ties.
124
(3) A list of IRB members identified in such form and manner as the depart-
by name; earned degrees; representa- ment or agency head prescribes.
tive capacity; indications of experience (d) The department or agency head
such as board certifications, licenses, will evaluate all assurances submitted
etc., sufficient to describe each mem- in accordance with this policy through
ber’s chief anticipated contributions to such officers and employees of the de-
IRB deliberations; and any employ- partment or agency and such experts
ment or other relationship between or consultants engaged for this purpose
each member and the institution; for as the department or agency head de-
example: full-time employee, part-time termines to be appropriate. The depart-
employee, member of governing panel ment or agency head’s evaluation will
or board, stockholder, paid or unpaid take into consideration the adequacy
consultant. Changes in IRB member- of the proposed IRB in light of the an-
ship shall be reported to the depart- ticipated scope of the institution’s re-
ment or agency head, unless in accord search activities and the types of sub-
with § 1c.103(a) of this policy, the exist- ject populations likely to be involved,
ence of an HHS-approved assurance is the appropriateness of the proposed ini-
accepted. In this case, change in IRB tial and continuing review procedures
membership shall be reported to the in light of the probable risks, and the
Office for Human Research Protec- size and complexity of the institution.
tions, HHS, or any successor office. (e) On the basis of this evaluation,
(4) Written procedures which the IRB the department or agency head may
will follow (i) for conducting its initial approve or disapprove the assurance, or
and continuing review of research and enter into negotiations to develop an
for reporting its findings and actions to approvable one. The department or
the investigator and the institution;
agency head may limit the period dur-
(ii) for determining which projects re-
ing which any particular approved as-
quire review more often than annually
surance or class of approved assurances
and which projects need verification
shall remain effective or otherwise
from sources other than the investiga-
condition or restrict approval.
tors that no material changes have oc-
curred since previous IRB review; and (f) Certification is required when the
(iii) for ensuring prompt reporting to research is supported by a federal de-
the IRB of proposed changes in a re- partment or agency and not otherwise
search activity, and for ensuring that exempted or waived under § 1c.101 (b) or
such changes in approved research, (i). An institution with an approved as-
during the period for which IRB ap- surance shall certify that each applica-
proval has already been given, may not tion or proposal for research covered
be initiated without IRB review and by the assurance and by § 1c.103 of this
approval except when necessary to Policy has been reviewed and approved
eliminate apparent immediate hazards by the IRB. Such certification must be
to the subject. submitted with the application or pro-
(5) Written procedures for ensuring posal or by such later date as may be
prompt reporting to the IRB, appro- prescribed by the department or agen-
priate institutional officials, and the cy to which the application or proposal
department or agency head of (i) any is submitted. Under no condition shall
unanticipated problems involving risks research covered by § 1c.103 of the Pol-
to subjects or others or any serious or icy be supported prior to receipt of the
continuing noncompliance with this certification that the research has been
policy or the requirements or deter- reviewed and approved by the IRB. In-
minations of the IRB and (ii) any sus- stitutions without an approved assur-
pension or termination of IRB ap- ance covering the research shall certify
proval. within 30 days after receipt of a request
(c) The assurance shall be executed for such a certification from the de-
partment or agency, that the applica-
by an individual authorized to act for

the institution and to assume on behalf tion or proposal has been approved by
of the institution the obligations im- the IRB. If the certification is not sub-
posed by this policy and shall be filed mitted within these time limits, the
125
§§ 1c.104–1c.106 7 CFR Subtitle A (1–1–12 Edition)
application or proposal may be re- (d) Each IRB shall include at least
turned to the institution. one member who is not otherwise affili-
ated with the institution and who is
(Approved by the Office of Management and
Budget under Control Number 0990–0260.)
not part of the immediate family of a
person who is affiliated with the insti-
[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, tution.
June 28, 1991, as amended at 70 FR 36328, (e) No IRB may have a member par-
June 23, 2005] ticipate in the IRB’s initial or con-
tinuing review of any project in which
§§ 1c.104–1c.106 [Reserved] the member has a conflicting interest,
§ 1c.107 IRB membership. except to provide information re-
quested by the IRB.
(a) Each IRB shall have at least five (f) An IRB may, at its discretion, in-
members, with varying backgrounds to vite individuals with competence in
promote complete and adequate review special areas to assist in the review of
of research activities commonly con- issues which require expertise beyond
ducted by the institution. The IRB or in addition to that available on the
shall be sufficiently qualified through IRB. These individuals may not vote
the experience and expertise of its with the IRB.
members, and the diversity of the
members, including consideration of § 1c.108 IRB functions and operations.
race, gender, and cultural backgrounds In order to fulfill the requirements of
and sensitivity to such issues as com- this policy each IRB shall:
munity attitudes, to promote respect (a) Follow written procedures in the
for its advice and counsel in safe- same detail as described in § 1c.103(b)(4)
guarding the rights and welfare of and, to the extent required by,
human subjects. In addition to pos- § 1c.103(b)(5).
sessing the professional competence (b) Except when an expedited review
necessary to review specific research procedure is used (see § 1c.110), review
activities, the IRB shall be able to as- proposed research at convened meet-
certain the acceptability of proposed ings at which a majority of the mem-
research in terms of institutional com- bers of the IRB are present, including
mitments and regulations, applicable at least one member whose primary
law, and standards of professional con- concerns are in nonscientific areas. In
duct and practice. The IRB shall there- order for the research to be approved,
fore include persons knowledgeable in it shall receive the approval of a ma-
these areas. If an IRB regularly reviews jority of those members present at the
research that involves a vulnerable meeting.
category of subjects, such as children,
prisoners, pregnant women, or handi- § 1c.109 IRB review of research.
capped or mentally disabled persons, (a) An IRB shall review and have au-
consideration shall be given to the in- thority to approve, require modifica-
clusion of one or more individuals who tions in (to secure approval), or dis-
are knowledgeable about and experi- approve all research activities covered
enced in working with these subjects. by this policy.
(b) Every nondiscriminatory effort (b) An IRB shall require that infor-
will be made to ensure that no IRB mation given to subjects as part of in-
consists entirely of men or entirely of formed consent is in accordance with
women, including the institution’s con- § 1c.116. The IRB may require that in-
sideration of qualified persons of both formation, in addition to that specifi-
sexes, so long as no selection is made cally mentioned in § 1c.116, be given to
to the IRB on the basis of gender. No the subjects when in the IRB’s judg-
IRB may consist entirely of members ment the information would meaning-
of one profession. fully add to the protection of the rights
(c) Each IRB shall include at least and welfare of subjects.
one member whose primary concerns (c) An IRB shall require documenta-
are in scientific areas and at least one tion of informed consent or may waive
member whose primary concerns are in documentation in accordance with
nonscientific areas. § 1c.117.
126
(d) An IRB shall notify investigators the IRB. In reviewing the research, the
and the institution in writing of its de- reviewers may exercise all of the au-
cision to approve or disapprove the pro- thorities of the IRB except that the re-
posed research activity, or of modifica- viewers may not disapprove the re-
tions required to secure IRB approval search. A research activity may be dis-
of the research activity. If the IRB de- approved only after review in accord-
cides to disapprove a research activity, ance with the non-expedited procedure
it shall include in its written notifica- set forth in § 1c.108(b).
tion a statement of the reasons for its (c) Each IRB which uses an expedited
decision and give the investigator an review procedure shall adopt a method
opportunity to respond in person or in for keeping all members advised of re-
writing. search proposals which have been ap-
(e) An IRB shall conduct continuing proved under the procedure.
review of research covered by this pol- (d) The department or agency head
icy at intervals appropriate to the de- may restrict, suspend, terminate, or
gree of risk, but not less than once per choose not to authorize an institu-
year, and shall have authority to ob- tion’s or IRB’s use of the expedited re-
serve or have a third party observe the view procedure.
consent process and the research. [56 FR 28012, 28018, June 18, 1991, as amended
(Approved by the Office of Management and at 70 FR 36328, June 23, 2005]
Budget under Control Number 0990–0260)
§ 1c.111 Criteria for IRB approval of
[56 FR 28012, 28018, June 18, 1991, as amended research.
at 70 FR 36328, June 23, 2005]
(a) In order to approve research cov-
§ 1c.110 Expedited review procedures ered by this policy the IRB shall deter-
for certain kinds of research involv- mine that all of the following require-
ing no more than minimal risk, and ments are satisfied:
for minor changes in approved re- (1) Risks to subjects are minimized:
search.
(i) By using procedures which are con-
(a) The Secretary, HHS, has estab- sistent with sound research design and
lished, and published as a Notice in the which do not unnecessarily expose sub-
FEDERAL REGISTER, a list of categories jects to risk, and (ii) whenever appro-
of research that may be reviewed by priate, by using procedures already
the IRB through an expedited review being performed on the subjects for di-
procedure. The list will be amended, as agnostic or treatment purposes.
appropriate after consultation with (2) Risks to subjects are reasonable
other departments and agencies, in relation to anticipated benefits, if
through periodic republication by the any, to subjects, and the importance of
Secretary, HHS, in the FEDERAL REG- the knowledge that may reasonably be
ISTER. A copy of the list is available expected to result. In evaluating risks
from the Office for Human Research and benefits, the IRB should consider
Protections, HHS, or any successor of- only those risks and benefits that may
fice. result from the research (as distin-
(b) An IRB may use the expedited re- guished from risks and benefits of
view procedure to review either or both therapies subjects would receive even if
of the following: not participating in the research). The
(1) Some or all of the research ap- IRB should not consider possible long-
pearing on the list and found by the re- range effects of applying knowledge
viewer(s) to involve no more than mini- gained in the research (for example,
mal risk, the possible effects of the research on
(2) Minor changes in previously ap- public policy) as among those research
proved research during the period (of risks that fall within the purview of its
one year or less) for which approval is responsibility.
authorized. (3) Selection of subjects is equitable.
Under an expedited review procedure, In making this assessment the IRB
the review may be carried out by the should take into account the purposes
IRB chairperson or by one or more ex- of the research and the setting in
perienced reviewers designated by the which the research will be conducted
chairperson from among members of and should be particularly cognizant of
127
the special problems of research inappropriate institutional officials, and

volving vulnerable populations, such as the department or agency head.
children, prisoners, pregnant women, (Approved by the Office of Management and
mentally disabled persons, or economi- Budget under Control Number 0990–0260)
cally or educationally disadvantaged
[56 FR 28012, 28018, June 18, 1991, as amended
persons. at 70 FR 36328, June 23, 2005]
(4) Informed consent will be sought
from each prospective subject or the § 1c.114 Cooperative research.
subject’s legally authorized representa- Cooperative research projects are
tive, in accordance with, and to the ex- those projects covered by this policy
tent required by § 1c.116. which involve more than one institu-
(5) Informed consent will be appro- tion. In the conduct of cooperative re-
priately documented, in accordance search projects, each institution is re-
with, and to the extent required by sponsible for safeguarding the rights
§ 1c.117. and welfare of human subjects and for
(6) When appropriate, the research complying with this policy. With the
plan makes adequate provision for approval of the department or agency
monitoring the data collected to en- head, an institution participating in a
sure the safety of subjects. cooperative project may enter into a
(7) When appropriate, there are ade- joint review arrangement, rely upon
quate provisions to protect the privacy the review of another qualified IRB, or
of subjects and to maintain the con- make similar arrangements for avoid-
fidentiality of data. ing duplication of effort.
(b) When some or all of the subjects § 1c.115 IRB records.
are likely to be vulnerable to coercion
or undue influence, such as children, (a) An institution, or when appro-
priate an IRB, shall prepare and main-
prisoners, pregnant women, mentally
tain adequate documentation of IRB
disabled persons, or economically or
activities, including the following:
educationally disadvantaged persons,
(1) Copies of all research proposals re-
additional safeguards have been in- viewed, scientific evaluations, if any,
cluded in the study to protect the that accompany the proposals, ap-
rights and welfare of these subjects. proved sample consent documents,
progress reports submitted by inves-
§ 1c.112 Review by institution.
tigators, and reports of injuries to sub-
Research covered by this policy that jects.
has been approved by an IRB may be (2) Minutes of IRB meetings which
subject to further appropriate review shall be in sufficient detail to show at-
and approval or disapproval by officials tendance at the meetings; actions
of the institution. However, those offi- taken by the IRB; the vote on these ac-
cials may not approve the research if it tions including the number of members
has not been approved by an IRB. voting for, against, and abstaining; the
basis for requiring changes in or dis-
§ 1c.113 Suspension or termination of approving research; and a written sum-
IRB approval of research. mary of the discussion of controverted
An IRB shall have authority to sus- issues and their resolution.
(3) Records of continuing review ac-
pend or terminate approval of research
tivities.
that is not being conducted in accord-
(4) Copies of all correspondence be-
ance with the IRB’s requirements or
tween the IRB and the investigators.
that has been associated with unex- (5) A list of IRB members in the same
pected serious harm to subjects. Any detail as described is § 1c.103(b)(3).
suspension or termination of approval (6) Written procedures for the IRB in
shall include a statement of the rea- the same detail as described in
sons for the IRB’s action and shall be
§§ 1c.103(b)(4) and 1c.103(b)(5).

reported promptly to the investigator, (7) Statements of significant new
findings provided to subjects, as re-
quired by § 1c.116(b)(5).
128
(b) The records required by this pol- (2) A description of any reasonably
icy shall be retained for at least 3 foreseeable risks or discomforts to the
years, and records relating to research subject;
which is conducted shall be retained (3) A description of any benefits to
for at least 3 years after completion of the subject or to others which may rea-
the research. All records shall be acces- sonably be expected from the research;
sible for inspection and copying by au- (4) A disclosure of appropriate alter-
thorized representatives of the depart- native procedures or courses of treat-
ment or agency at reasonable times ment, if any, that might be advan-
and in a reasonable manner. tageous to the subject;
(Approved by the Office of Management and
(5) A statement describing the ex-
Budget under Control Number 0990–0260.) tent, if any, to which confidentiality of
records identifying the subject will be
[56 FR 28012, 28018, June 18, 1991, as amended maintained;
at 70 FR 36328, June 23, 2005]
(6) For research involving more than
minimal risk, an explanation as to
§ 1c.116 General requirements for in-
formed consent. whether any compensation and an ex-
planation as to whether any medical
Except as provided elsewhere in this treatments are available if injury oc-
policy, no investigator may involve a curs and, if so, what they consist of, or
human being as a subject in research where further information may be ob-
covered by this policy unless the inves- tained;
tigator has obtained the legally effec- (7) An explanation of whom to con-
tive informed consent of the subject or tact for answers to pertinent questions
the subject’s legally authorized rep- about the research and research sub-
resentative. An investigator shall seek jects’ rights, and whom to contact in
such consent only under circumstances the event of a research-related injury
that provide the prospective subject or to the subject; and
the representative sufficient oppor- (8) A statement that participation is
tunity to consider whether or not to voluntary, refusal to participate will
participate and that minimize the pos- involve no penalty or loss of benefits to
sibility of coercion or undue influence. which the subject is otherwise entitled,
The information that is given to the and the subject may discontinue par-
subject or the representative shall be ticipation at any time without penalty
in language understandable to the sub- or loss of benefits to which the subject
ject or the representative. No informed is otherwise entitled.
consent, whether oral or written, may (b) Additional elements of informed con-
include any exculpatory language sent. When appropriate, one or more of
through which the subject or the rep- the following elements of information
resentative is made to waive or appear shall also be provided to each subject:
to waive any of the subject’s legal (1) A statement that the particular
rights, or releases or appears to release treatment or procedure may involve
the investigator, the sponsor, the insti- risks to the subject (or to the embryo
tution or its agents from liability for or fetus, if the subject is or may be-
negligence. come pregnant) which are currently
(a) Basic elements of informed consent. unforeseeable;
Except as provided in paragraph (c) or (2) Anticipated circumstances under
(d) of this section, in seeking informed which the subject’s participation may
consent the following information shall be terminated by the investigator
be provided to each subject: without regard to the subject’s con-
(1) A statement that the study in- sent;
volves research, an explanation of the (3) Any additional costs to the sub-
purposes of the research and the ex- ject that may result from participation
pected duration of the subject’s partici- in the research;
pation, a description of the procedures (4) The consequences of a subject’s

to be followed, and identification of decision to withdraw from the research
any procedures which are experi- and procedures for orderly termination
mental; of participation by the subject;
129
(5) A statement that significant new provide emergency medical care, to the
findings developed during the course of extent the physician is permitted to do
the research which may relate to the so under applicable federal, state, or
subject’s willingness to continue par- local law.
ticipation will be provided to the sub- (Approved by the Office of Management and
ject; and Budget under Control Number 0990–0260)
(6) The approximate number of sub-
[56 FR 28012, 28018, June 18, 1991, as amended
jects involved in the study.
at 70 FR 36328, June 23, 2005]
(c) An IRB may approve a consent
procedure which does not include, or § 1c.117 Documentation of informed
which alters, some or all of the ele- consent.
ments of informed consent set forth (a) Except as provided in paragraph
above, or waive the requirement to ob- (c) of this section, informed consent
tain informed consent provided the IRB shall be documented by the use of a
finds and documents that: written consent form approved by the
(1) The research or demonstration IRB and signed by the subject or the
project is to be conducted by or subject subject’s legally authorized representa-
to the approval of state or local gov- tive. A copy shall be given to the per-
ernment officials and is designed to son signing the form.
study, evaluate, or otherwise examine: (b) Except as provided in paragraph
(i) Public benefit of service programs; (c) of this section, the consent form
(ii) procedures for obtaining benefits or may be either of the following:
services under those programs; (iii) (1) A written consent document that
possible changes in or alternatives to embodies the elements of informed
those programs or procedures; or (iv) consent required by § 1c.116. This form
possible changes in methods or levels may be read to the subject or the sub-
of payment for benefits or services ject’s legally authorized representa-
under those programs; and tive, but in any event, the investigator
(2) The research could not prac- shall give either the subject or the rep-
ticably be carried out without the resentative adequate opportunity to
waiver or alteration. read it before it is signed; or
(d) An IRB may approve a consent (2) A short form written consent doc-
procedure which does not include, or ument stating that the elements of in-
which alters, some or all of the ele- formed consent required by § 1c.116
ments of informed consent set forth in have been presented orally to the sub-
this section, or waive the requirements ject or the subject’s legally authorized
to obtain informed consent provided representative. When this method is
the IRB finds and documents that: used, there shall be a witness to the
(1) The research involves no more oral presentation. Also, the IRB shall
than minimal risk to the subjects; approve a written summary of what is
(2) The waiver or alteration will not to be said to the subject or the rep-
adversely affect the rights and welfare resentative. Only the short form itself
of the subjects; is to be signed by the subject or the
(3) The research could not prac- representative. However, the witness
ticably be carried out without the shall sign both the short form and a
waiver or alteration; and copy of the summary, and the person
(4) Whenever appropriate, the sub- actually obtaining consent shall sign a
jects will be provided with additional copy of the summary. A copy of the
pertinent information after participa- summary shall be given to the subject
tion. or the representative, in addition to a
(e) The informed consent require- copy of the short form.
ments in this policy are not intended (c) An IRB may waive the require-
to preempt any applicable federal, ment for the investigator to obtain a
state, or local laws which require addi- signed consent form for some or all
tional information to be disclosed in subjects if it finds either:
order for informed consent to be le- (1) That the only record linking the
gally effective. subject and the research would be the
(f) Nothing in this policy is intended consent document and the principal
to limit the authority of a physician to risk would be potential harm resulting
130
from a breach of confidentiality. Each research, the research shall first be re-
subject will be asked whether the sub- viewed and approved by an IRB, as pro-
ject wants documentation linking the vided in this policy, a certification sub-
subject with the research, and the submitted, by the institution, to the de-
ject’s wishes will govern; or partment or agency, and final approval
(2) That the research presents no given to the proposed change by the de-
more than minimal risk of harm to partment or agency.
subjects and involves no procedures for
which written consent is normally re- § 1c.120 Evaluation and disposition of
quired outside of the research context. applications and proposals for re-
In cases in which the documentation search to be conducted or sup-
ported by a Federal Department or
requirement is waived, the IRB may re- Agency.
quire the investigator to provide sub-
jects with a written statement regard- (a) The department or agency head
ing the research. will evaluate all applications and pro-
posals involving human subjects sub-
(Approved by the Office of Management and mitted to the department or agency
Budget under Control Number 0990–0260) through such officers and employees of
[56 FR 28012, 28018, June 18, 1991, as amended the department or agency and such ex-
at 70 FR 36328, June 23, 2005] perts and consultants as the depart-
ment or agency head determines to be
§ 1c.118 Applications and proposals appropriate. This evaluation will take
lacking definite plans for involve-
ment of human subjects. into consideration the risks to the sub-
jects, the adequacy of protection
Certain types of applications for against these risks, the potential bene-
grants, cooperative agreements, or con- fits of the research to the subjects and
tracts are submitted to departments or others, and the importance of the
agencies with the knowledge that sub- knowledge gained or to be gained.
jects may be involved within the period (b) On the basis of this evaluation,
of support, but definite plans would not the department or agency head may
normally be set forth in the applica- approve or disapprove the application
tion or proposal. These include activi- or proposal, or enter into negotiations
ties such as institutional type grants to develop an approvable one.
when selection of specific projects is
the institution’s responsibility; re- § 1c.121 [Reserved]
search training grants in which the ac-
tivities involving subjects remain to be § 1c.122 Use of Federal funds.
selected; and projects in which human Federal funds administered by a de-
subjects’ involvement will depend upon partment or agency may not be ex-
completion of instruments, prior ani- pended for research involving human
mal studies, or purification of com- subjects unless the requirements of
pounds. These applications need not be this policy have been satisfied.
reviewed by an IRB before an award
may be made. However, except for re- § 1c.123 Early termination of research
search exempted or waived under support: Evaluation of applications
and proposals.
§ 1c.101 (b) or (i), no human subjects
may be involved in any project sup- (a) The department or agency head
ported by these awards until the may require that department or agency
project has been reviewed and approved support for any project be terminated
by the IRB, as provided in this policy, or suspended in the manner prescribed
and certification submitted, by the in- in applicable program requirements,
stitution, to the department or agency. when the department or agency head
finds an institution has materially
§ 1c.119 Research undertaken without failed to comply with the terms of this
the intention of involving human policy.
subjects. (b) In making decisions about sup-
In the event research is undertaken porting or approving applications or

without the intention of involving proposals covered by this policy the de-
human subjects, but it is later pro- partment or agency head may take
posed to involve human subjects in the into account, in addition to all other
131
eligibility requirements and program 2.13 Status of prior delegations.

criteria, factors such as whether the
applicant has been subject to a termi- Subpart C—Delegations of Authority to the
Deputy Secretary, the Under Secre-
nation or suspension under paragarph
taries, and Assistant Secretaries for
(a) of this section and whether the ap-
Congressional Relations and Adminis-
plicant or the person or persons who tration
would direct or has have directed the
scientific and technical aspects of an 2.15 Deputy Secretary.
activity has have, in the judgment of 2.16 Under Secretary for Farm and Foreign
Agricultural Services.
the department or agency head, mate-
2.17 Under Secretary for Rural Develop-
rially failed to discharge responsibility ment.
for the protection of the rights and 2.18 Under Secretary for Food Safety.
welfare of human subjects (whether or 2.19 Under Secretary for Food, Nutrition,
not the research was subject to federal and Consumer Services.
regulation). 2.20 Under Secretary for Natural Resources
and Environment.
2.21 Under Secretary for Research, Edu-
§ 1c.124 Conditions. cation, and Economics.
With respect to any research project 2.22 Under Secretary for Marketing and
or any class of research projects the de- Regulatory Programs.
2.23 Assistant Secretary for Congressional
partment or agency head may impose
Relations.
additional conditions prior to or at the 2.24 Assistant Secretary for Administra-
time of approval when in the judgment tion.
of the department or agency head addi-
tional conditions are necessary for the Subpart D—Delegations of Authority to
protection of human subjects. Other General Officers and Agency Heads
2.27 Office of Administrative Law Judges.
PART 2—DELEGATIONS OF AU- 2.29 Chief Economist.
2.31 General Counsel.
THORITY BY THE SECRETARY OF 2.33 Inspector General.
AGRICULTURE AND GENERAL OF- 2.34 Director, National Appeals Division.
FICERS OF THE DEPARTMENT 2.35 Judicial Officer.
2.36 Director, Office of Communications.
Subpart A—General
Subpart E [Reserved]
Sec.
2.1 Establishment of the Department. Subpart F—Delegations of Authority by the
2.2 Authority of the Secretary to prescribe Under Secretary for Farm and Foreign
regulations. Agricultural Services
2.3 Authority of the Secretary to delegate 2.40 Deputy Under Secretary for Farm and
authority. Foreign Agricultural Services.
2.4 General officers. 2.42 Administrator, Farm Service Agency.
2.5 Order in which officers of the Depart- 2.43 Administrator, Foreign Agricultural
ment shall act as Secretary. Service.
2.44 Administrator, Risk Management
Subpart B—General Delegations of Agency and Manager, Federal Crop In-
Authority by the Secretary of Agriculture surance Corporation.
2.7 Authority to supervise and direct. Subpart G—Delegations of Authority by the

2.8 Delegations of authority to agency Under Secretary for Rural Development
heads to order that the United States
2.45 Deputy Under Secretary for Rural De-
flag be flown at half-staff.
velopment.
2.9 Additional delegations. 2.47 Administrator, Rural Utilities Service.
2.10 Limitations. 2.48 Administrator, Rural Business-Cooper-
2.11 New principles and periodic reviews. ative Service.
2.12 Secretary and general officers not pre- 2.49 Administrator, Rural Housing Service.
cluded from exercising delegated powers.
Subpart H—Delegations of Authority by the

Under Secretary for Food Safety
2.51 Deputy Under Secretary for Food Safe-
ty.
132
Office of the Secretary, USDA Pt. 2
2.53 Administrator, Food Safety and Inspec- 2.81 Administrator, Grain Inspection, Pack-
tion Service. ers and Stockyards Administration.
Subpart I—Delegations of Authority by the Subpart O—Delegations of Authority by the

Under Secretary for Food, Nutrition, Assistant Secretary for Congressional
and Consumer Services Relations
2.55 Deputy Under Secretary for Food, Nu- 2.83 Deputy Assistant Secretary for Con-
trition, and Consumer Services. gressional Relations.
2.57 Administrator, Food and Nutrition 2.85 Director, Office of Intergovernmental
Service. Affairs.
Subpart J—Delegations of Authority by the Subpart P—Delegations of Authority by the

Under Secretary for Natural Resources Assistant Secretary for Administration
and Environment
2.87 Deputy Assistant Secretary for Admin-
2.59 Deputy Under Secretaries for Natural istration.
Resources and Environment. 2.88 Assistant Secretary for Civil Rights.
2.60 Chief, Forest Service. 2.89 Chief Information Officer.
2.61 Chief, Natural Resources Conservation 2.90 Chief Financial Officer.
Service. 2.91 Director, Office of Human Resources
Management.
Subpart K—Delegations of Authority by the 2.92 Director, Office of Small and Disadvan-
Under Secretary for Research, Edu- taged Business Utilization.
cation, and Economics 2.93 Director, Office of Procurement and
Property Management.
2.63 Deputy Under Secretary for Research, 2.94 Director, Office of Advocacy and Out-
Education, and Economics. reach.
2.65 Administrator, Agricultural Research 2.95 Director, Office of Homeland Security
Service. and Emergency Coordination.
2.66 Director, National Institute of Food 2.96 Director, Office of Operations.
and Agriculture. 2.97 Director, Office of the Executive Secre-
2.67 Administrator, Economic Research tariat.
Service. 2.98 Director, Management Services.
2.68 Administrator, National Agricultural
Statistics Service. Subpart Q—Delegations of Authority by the
2.69 Director, Office of the Chief Scientist. General Counsel
Subpart L—Delegations of Authority by the 2.200 Deputy General Counsel.
Chief Economist
Subpart R—Delegations of Authority by the
2.70 Deputy Chief Economist. Assistant Secretary for Civil Rights
2.71 Director, Office of Risk Assessment and
Cost-Benefit Analysis. 2.300 Deputy Assistant Secretary for Civil
2.72 Chairman, World Agricultural Outlook Rights.
Board.
2.73 Director, Office of Energy Policy and Subpart S—Delegations of Authority by the
New Uses. Chief Information Officer
Subpart M [Reserved] 2.400 Deputy Chief Information Officer.
Subpart N—Delegations of Authority by the Subpart T—Delegations of Authority by the

Under Secretary for Marketing and Chief Financial Officer
Regulatory Programs 2.500 Deputy Chief Financial Officer.
2.77 Deputy Under Secretary for Marketing 2.501 Director, Office of Budget and Pro-
and Regulatory Programs. gram Analysis.
2.79 Administrator, Agricultural Marketing AUTHORITY: 5 U.S.C. 301 and Reorganization
Service. Plan No. 2 of 1953.
2.80 Administrator, Animal and Plant

Health Inspection Service. SOURCE: 60 FR 56393, Nov. 8, 1995, unless
otherwise noted.
133
Subpart A—General general officers: The Deputy Secretary,

the Under Secretary for Farm and For-
§ 2.1 Establishment of the Department. eign Agricultural Services; the Under
The Department of Agriculture was Secretary for Rural Development; the
created by the Act of May 15, 1862, and Under Secretary for Food Safety; the
by the Act of February 9, 1889, it was Under Secretary for Food, Nutrition,
made an executive department in the and Consumer Services; the Under Sec-
Federal Government under the super- retary for Natural Resources and Envi-
vision and control of the Secretary of ronment; the Under Secretary for Re-
Agriculture (7 U.S.C. 2201, 2202, 2204). search, Education, and Economics; the
Under Secretary for Marketing and
§ 2.2 Authority of the Secretary to pre- Regulatory Programs; the Assistant
scribe regulations. Secretary for Congressional Relations;
The general authority of the Sec- the Assistant Secretary for Adminis-
retary to prescribe regulations gov- tration; the Assistant Secretary for
erning the work of the Department is Civil Rights; the General Counsel; the
based on 5 U.S.C. 301 which provides Inspector General; the Chief Financial
that the head of an Executive depart- Officer; the Chief Information Officer;
ment may prescribe regulations for the the Judicial Officer; the Director, Of-
government of his department, the con- fice of Budget and Program Analysis;
duct of its employees, the distribution the Chief Economist; the Director, Na-
and performance of its business, and tional Appeals Division; and the Direc-
the custody, use and preservation of its tor of Communications.
records, papers, and property.
[75 FR 43367, July 23, 2010]
§ 2.3 Authority of the Secretary to del-
egate authority. § 2.5 Order in which officers of the De-
(a) The general authority of the Sec- partment shall act as Secretary.
retary to make delegations of his au- (a) Pursuant to Executive Order
thority is based on: 13542, ‘‘Providing an Order of Succes-
(1) Section 4(a) of Reorganization sion Within the Department of Agri-
Plan No. 2 of 1953 (5 U.S.C. App.), which culture’’ (75 FR 27921, May 18, 2010),
provides that the Secretary of Agri- during any period in which both the
culture may from time to time make Secretary and the Deputy Secretary
such provisions as he shall deem appro- have died, resigned, or are otherwise
priate authorizing the performance by unable to perform the functions and
any other officer, or by an agency or duties of the office of Secretary, the
employee, of the Department of Agri- following officials designated in para-
culture of any function of the Sec-
graphs (a)(1) through (a)(16) of this sec-
retary, including any function trans-
tion shall act as Secretary, in the order
ferred to the Secretary by the provi-
in which they are listed, until such
sions of this reorganization plan; and
time as the Secretary or Deputy Sec-
(2) Section 212(a)(1) of the Depart-
ment of Agriculture Reorganization retary is able to perform the functions
Act of 1994, Pub. L. No. 103–354, 7 U.S.C. and duties of that office. Each official
6912(a)(1), which provides that the Sec- shall act only in the event of the death,
retary may delegate to any agency, of- resignation, or inability to perform the
fice, officer, or employee of the Depart- functions and duties of Secretary of
ment the authority to perform any the immediately preceding official:
function transferred to the Secretary (1) Assistant Secretary of Agri-
under 7 U.S.C. 6912(a) or any other culture for Administration.
function vested in the Secretary as of (2) Under Secretary of Agriculture
the date of the enactment of the Act. for Marketing and Regulatory Pro-
(b) [Reserved] grams.
(3) Under Secretary of Agriculture
§ 2.4 General officers. for Food, Nutrition, and Consumer
The work of the Department is under Services.

the supervision and control of the Sec- (4) Under Secretary of Agriculture
retary who is assisted by the following for Food Safety.
134
(5) Under Secretary of Agriculture (e) Notwithstanding the provisions of

for Natural Resources and Environ- this section and Executive Order 13542,
ment. the President retains discretion, to the
(6) Under Secretary of Agriculture extent permitted by law, to depart
for Farm and Foreign Agricultural from the order of succession in para-
Services. graph (a) of this section in designating
(7) Under Secretary of Agriculture an acting Secretary.
for Rural Development.
(8) Under Secretary of Agriculture [75 FR 43367, July 23, 2010]
for Research, Education, and Econom-
ics. Subpart B—General Delegations
(9) General Counsel of the Depart- of Authority by the Secretary
ment of Agriculture. of Agriculture
(10) Chief of Staff, Office of the Sec-
retary. § 2.7 Authority to supervise and direct.
(11) Director, Kansas City Com-
modity Office, Farm Service Agency. Unless specifically reserved, or other-
(12) State Executive Directors of the wise delegated, the delegations of au-
Farm Service Agency for the States of thority to each general officer of the
California, Iowa, and Kansas, in order Department and each agency head con-
of seniority fixed by length of unbro- tained in this part includes the author-
ken service as State Executive Direc- ity to direct and supervise the employ-
tor of that State. ees engaged in the conduct of activities
(13) Regional Administrators of the under such official’s jurisdiction, and
Food and Nutrition Service for the the authority to take any action, exe-
Mountain Plains Regional Office (Den- cute any document, authorize any ex-
ver, Colorado), Midwest Regional Office penditure, promulgate any rule, regula-
(Chicago, Illinois), and Western Re- tion, order, or instruction required by
gional Office (San Francisco, Cali- or authorized by law and deemed by
fornia), in order of seniority fixed by the general officer or agency head to be
length of unbroken service as Regional necessary and proper to the discharge
Administrator of that Regional Office. of his or her responsibilities. This au-
(14) Chief Financial Officer of the De- thority will be exercised subject to ap-
partment of Agriculture. plicable administrative directives. Un-
(15) Assistant Secretary of Agri- less otherwise provided, a general offi-
culture for Civil Rights. cer or agency head may, subject to his
(16) Assistant Secretary of Agri- or her continuing responsibility for the
culture for Congressional Relations. proper discharge of delegations made
(b) If any two or more individuals to him, in this part, delegate and pro-
designated in paragraphs (a)(12) and vide for the redelegation of his or her
(a)(13) of this section were sworn in to,
authority to appropriate officers and
or commenced service in, their respec-
employees. Subject to the general su-
tive offices on the same day, prece-
pervision of the Secretary, agency
dence shall be determined by the al-
phabetical order of the State in which heads who are delegated authority
the individual serves. from a general officer, in this part, re-
(c) No individual who is serving in an port to and are under the supervision
office listed in paragraphs (a)(1) of that general officer.
through (a)(16) of this section in an
§ 2.8 Delegations of authority to agen-
acting capacity shall, by virtue of so
cy heads to order that the United
serving, act as Secretary pursuant to States flag be flown at half-staff.
this section.
(d) No individual who is serving in an Pursuant to section 5 of Proclama-
office listed in paragraphs (a)(1) tion 3044, 3 CFR, 1954–1958 Comp., p. 4,
through (a)(16) of this section shall act each general officer and agency head is
delegated authority to order that the
as Secretary unless that individual is

otherwise eligible to so serve under the United States flag shall be flown at
Federal Vacancies Reform Act of 1998 half-staff on buildings and grounds
(5 U.S.C. 3345, et seq.). under his or her jurisdiction or control.
135
This authority shall be exercised in ac- Subpart C—Delegations of Author-

cordance with directives promulgated ity to the Deputy Secretary,
by the Director, Office of Operations. the Under Secretaries, and
§ 2.9 Additional delegations. Assistant Secretaries for Con-
gressional Relations and Ad-
The authority granted to a general
officer may be exercised in the dis-
ministration
charge of any additional functions
which the Secretary may assign. EDITORIAL NOTE: Nomenclature changes to
subpart C appear at 60 FR 66713, Dec. 26, 1995.
§ 2.10 Limitations.
§ 2.15 Deputy Secretary.
The delegations made in this part
shall not be construed to confer upon The following delegation of authority
any general officer or agency head the is made by the Secretary of Agri-
authority of the Secretary to prescribe culture to the Deputy Secretary: Per-
regulations which by law require ap- form all of the duties and exercise all
proval of the President. of the powers and functions which are
now or which may hereafter be, vested
§ 2.11 New principles and periodic re- in the Secretary of Agriculture. This
views. delegation is subject to the limitation
in § 2.10.
In the exercise of authority delegated
by the Secretary, the application of § 2.16 Under Secretary for Farm and
new principles of major importance or Foreign Agricultural Services.
a departure from principles established
by the Secretary should be brought to (a) The following delegations of au-
the attention of the Secretary. General thority are made by the Secretary of
officers are responsible for assuring Agriculture to the Under Secretary for
that periodic reviews are conducted of Farm and Foreign Agricultural Serv-
the activities of the agencies assigned ices:
to their direction and supervision, as (1) Related to consolidated farm service.
required by 5 U.S.C. 305. (i) Formulate policies and administer
programs authorized by the Agricul-
§ 2.12 Secretary and general officers tural Adjustment Act of 1938, as
not precluded from exercising dele- amended (7 U.S.C. 1282 et seq.).
gated powers. (ii) Formulate policies and admin-
No delegation of authority by the ister programs authorized by the Agri-
Secretary or a general officer con- cultural Act of 1949, as amended (7
tained in this part shall preclude the U.S.C. 1441 et seq.).
Secretary or general officer from exer- (iii) Coordinate and prevent duplica-
cising any of the authority so deletion of aerial photographic work of the
gated. Department, including:
(A) Clearing photography projects;
§ 2.13 Status of prior delegations. (B) Assigning symbols for new aerial
Nothing in this part shall affect the photography, maintaining symbol
bylaws of the Commodity Credit Cor- records, and furnishing symbol books;
poration, the Federal Crop Insurance (C) Recording departmental aerial
Corporation, or the Rural Telephone photography flow and coordinating the
Bank. All delegations previously made issuance of aerial photography status
which are inconsistent with delega- maps of latest coverage;
tions made in this part are superseded; (D) Promoting interchange of tech-
however, any regulation, order, author- nical information and techniques to de-
ization, expenditure, or other instru- velop lower costs and better quality;
ment, heretofore issued or made pursu- (E) Representing the Department on
ant to any delegation of authority committees, task forces, work groups,
shall continue in full force and effect and other similar groups concerned
unless and until withdrawn or super- with aerial photography acquisition
seded pursuant to authority granted in and reproduction, and serving as liai-
this part. son with other governmental agencies
136
on aerial photography but excluding are carried out under section 210 of the
mapping; Agricultural Act of 1956 (7 U.S.C. 1859),
(F) Providing a Chairperson for the the Act of August 19, 1958, as amended
Photography Sales Committee of the (7 U.S.C. 1431 note), and section 709 of
Department; the Food and Agricultural Act of 1965,
(G) Coordinating development, prepa- as amended (7 U.S.C. 1446a–1), except as
ration, and issuance of specifications delegated in paragraph (a)(3) of this
for aerial photography for the Depart- section and to the Under Secretary for
ment; Food, Nutrition, and Consumer Serv-
(H) Coordinating and performing pro- ices in § 2.19, and assist the Under Sec-
curement, inspection, and application retary for Food, Nutrition, and Con-
of specifications for USDA aerial pho- sumer Services and the Assistant Sec-
tography; retary for Marketing and Regulatory
(I) Providing for liaison with EROS Programs in the procurement, han-
Data Center to support USDA pro- dling, payment, and related services
grams and research with satellite im- under section 32 of the Act of August
agery reproductions; and 24, 1935, as amended (7 U.S.C. 612c), the
(J) Maintaining library and files of Act of June 28, 1937, as amended (7
USDA aerial film and retrieving and U.S.C. 713c), the National School
supplying reproductions on request. Lunch Act, as amended (42 U.S.C. 1751,
(iv) Administer the Agricultural Con- et seq.), section 8 of the Child Nutrition
servation Program under title X of the Act of 1966, as amended (42 U.S.C. 1777),
Agricultural Act of 1970, as amended section 311 of the Older Americans Act
(16 U.S.C. 1501 et seq.), and under the of 1965, as amended (42 U.S.C. 3030a),
Soil Conservation and Domestic Allot- section 4(a) of the Agriculture and Con-
ment Act, as amended (16 U.S.C. 590g et sumer Protection Act of 1973, as
seq.). amended (7 U.S.C. 612c note), and sec-
(v) Administer the Emergency Con- tion 1114 of the Agriculture and Food
servation Program under the Agricul- Act of 1981 (7 U.S.C. 1431e).
tural Credit Act of 1978, as amended (16 (xi) [Reserved]
U.S.C. 2201 et seq.).
(xii) Administer the Agricultural
(vi) Conduct fiscal, accounting and
Foreign Investment Disclosure Act of
claims functions relating to Com-
1978 (7 U.S.C. 3501 et seq.), except those
modity Credit Corporation (CCC) pro-
functions delegated in § 2.21(a)(8)(xi).
grams for which the Under Secretary
(xiii) Administer energy management
for Farm and Foreign Agricultural
activities as assigned.
Services has been delegated authority
under paragraph (a)(3) of this section (xiv) Conduct producer referenda of
and, in conjunction with other agencies commodity promotion programs under
of the U.S. Government, develop and the Beef Research and Information
formulate agreements to reschedule Act, as amended (7 U.S.C. 2901 et seq.),
amounts due from foreign countries. and the Agricultural Promotion Pro-
(vii) Conduct assigned activities grams Act of 1990, as amended (7 U.S.C.
under the Strategic and Critical Mate- 6001 et seq.).
rials Stockpiling Act, as amended (50 (xv) Conduct field operations of di-
U.S.C. 98 et seq.). version programs for fresh fruits and
(viii) Supervise and direct Farm vegetables under section 32 of the Act
Service Agency State and county of- of August 29, 1935.
fices and delegate functions to be per- (xvi) Administer the U.S. Warehouse
formed by Farm Service Agency State Act, as amended (7 U.S.C. 241–273), and
and county committees. perform compliance examinations for
(ix) Administer the dairy indemnity Farm Service Agency programs.
program under the Act of August 13, (xvii) [Reserved]
1968, as amended (7 U.S.C. 450j et seq.). (xviii) Formulate and carry out the
(x) Administer procurement, proc- Conservation Reserve Program, includ-
essing, handling, distribution, disposi- ing the implementation of technical

tion, transportation, payment, and re- assistance, under the Food Security
lated services with respect to surplus Act of 1985, as amended (16 U.S.C. 1231
removal and supply operations which et seq.).
137
(xix) Carry out functions relating to sistance program under section 9011 of
highly erodible land and wetland con- that Act (7 U.S.C. 8111).
servation under sections 1211–1213 and (xxx) Administer the Grassland Re-
1221–1223 of the Food Security Act of serve Program under sections 1238N–
1985, as amended (16 U.S.C. 3811–3813 1238Q of the Food Security Act of 1985
and 3821–3823). (16 U.S.C. 3838n–3838q) in cooperation
(xx)–(xxii) [Reserved] with the Under Secretary for Natural
(xxiii) Formulate and administer reg- Resources and Environment.
ulations regarding program ineligi- (xxxi) Administer the provisions of
bility resulting from convictions under section 1240R of the Food Security Act
Federal or State law of planting, culti- of 1985 (16 U.S.C. 3839bb–5) regarding
vating, growing, producing, harvesting, voluntary public access and habitat in-
or storing a controlled substance, as centives.
required under section 1764 of the Food (xxxii) Implement the authority in
Security Act of 1985 (21 U.S.C. 881a). section 1241 of the Food Security Act of
(xxiv) [Reserved] 1985 (16 U.S.C. 3841) to accept and use
(xxv) Administer all programs of the voluntary contributions of non-Federal
Commodity Credit Corporation that funds in support of natural resources
provide assistance with respect to the conservation programs under subtitle
production of agricultural commod- D of title XII of that Act with respect
ities, including disaster assistance and to authorities delegated to the Under
the domestic marketing of such com- Secretary for Farm and Foreign Agri-
modities, except as may otherwise be cultural Services.
reserved by the Secretary of Agri- (xxxiii) In coordination with the As-
culture, and similar programs (includ- sistant Secretary for Administration,
ing commodity quality development issue receipts under section 2501A(e) of
programs) consigned by statute to the the Food, Agriculture, Conservation,
Secretary of Agriculture unless other- and Trade Act of 1990 (7 U.S.C. 2279–
wise delegated. 1(e)).
(xxxiv) Administer the following pro-
(xxvi) Administer the following pro-
visions of the Food, Conservation, and
visions of the Farm Security and Rural
Energy Act of 2008, Public Law 110–246:
Investment Act of 2002 with respect to
(A) Section 1605 relating to quality
functions otherwise delegated to the
incentive payments for covered oilseed
Under Secretary for Farm and Foreign
producers.
Agricultural Services:
(B) Section 1609 relating to the track-
(A) The equitable relief provisions of ing of benefits.
section 1613 (7 U.S.C. 7996). (C) Section 1612 relating to the hard
(B) The tracking of benefits under white wheat development program.
section 1614 (7 U.S.C. 7997). (D) Section 1613 relating to the
(C) The development of a plan and re- durum wheat quality program.
lated report to coordinate land retire- (E) Section 1621 relating to direct re-
ment and agricultural working land imbursement payments to geographi-
conservation programs under section cally disadvantaged farmers or ranch-
2005 (16 U.S.C. 3801 note). ers.
(xxvii) Formulate and carry out the (F) Section 10404 relating to market
Grassroots Source Water Protection loss assistance for asparagus producers.
Program authorized by the Food Secu- (G) Sections 12033 and 15101 relating
rity Act of 1985, as amended (16 U.S.C. to supplemental agricultural disaster
3839bb–2). assistance.
(xxviii) Administer cooperative (H) Section 14212 relating to the clo-
agreements authorized under 7 U.S.C. sure or relocation of county or field of-
2204b(b)(4) with respect to conservation fices of the Farm Service Agency.
programs. (I) Section 15353(a) relating to infor-
(xxix) Administer the feedstock flexi- mation reporting for Commodity Cred-
bility program for bioenergy producers it Corporation transactions.

under section 9010 of the Farm Secu- (xxxv) Implement the information
rity and Rural Investment Act of 2002 disclosure authorities of section
(7 U.S.C. 8110) and the biomass crop as- 1619(b)(3)(A) of the Food, Conservation,
138
and Energy Act of 2008 (7 U.S.C. ticipation Sales Act of 1966 (12 U.S.C.
8791(b)(3)(A)). 1717).
(2) Related to farm credit. (i) Admin- (vi) Administer the Emergency Loan
ister the Consolidated Farm and Rural and Guarantee Programs under sec-
Development Act (7 U.S.C. 1921 et seq.), tions 232, 234, 237, and 253 of the Dis-
except for the authority contained in aster Relief Act of 1970 (Pub. L. No. 91–
the following sections: 606), the Disaster Relief Act of 1969
(A) [Reserved] (Pub. L. No. 91–79), Pub. L. No. 92–385,
(B) Section 306 (7 U.S.C. 1926), relat- approved August 16, 1972, and the
ing to all programs in that section; Emergency Livestock Credit Act of
(C) Section 306A (7 U.S.C. 1926a) and 1974 (Pub. L. No. 93–357), as amended.
section 306B (7 U.S.C. 1926b), relating to (vii) Administer loans to homestead
the emergency community water as- or desertland entrymen and purchasers
sistance grant programs; of land in reclamation projects or to an
(D) Section 306C (7 U.S.C. 1926c) to entryman under the desertland law (7
administer the water and waste facility U.S.C. 1006a and 1006b).
loans and grants to alleviate health (viii) Administer the Federal Claims
risks; Collection Act of 1966, as amended (31
(E) Sections 309 (7 U.S.C. 1929) and U.S.C. 3711 et seq.), and joint regula-
309A (7 U.S.C. 1929a), regarding assets tions issued pursuant thereto by the
and programs related to rural develop- Attorney General and the Comptroller
ment; General (4 CFR chapter II), with re-
(F) Section 310A (7 U.S.C. 1931), relat- spect to claims of the Farm Service
ing to watershed and resource con- Agency.
servation and development loans;
(ix) Service, collect, settle, and liq-
(G) Section 310B (7 U.S.C. 1932), re-
uidate:
garding various Rural Development
(A) Deferred land purchase obliga-
programs;
tions of individuals under the Wheeler-
(H) Section 312(b) (7 U.S.C. 1942(b)),
Case Act of August 11, 1939, as amended
relating to small business enterprises;
(16 U.S.C. 590y), and under the item,
(I) Section 342 (7 U.S.C. 1013a);
‘‘Water Conservation and Utilization
(J) Section 364 (7 U.S.C. 2006f), sec-
projects’’ in the Department of the In-
tion 365 (7 U.S.C. 2008), section 366 (7
terior Appropriation Act, 1940 (53 Stat.
U.S.C. 2008a), section 367 (7 U.S.C.
719), as amended;
2008b), and section 368 (7 U.S.C. 2008c),
regarding assets and programs related (B) Puerto Rican Hurricane Relief
to rural development; and loans under the Act of July 11, 1956 (70
(K) Administrative provisions of sub- Stat. 525); and
title D of the Consolidated Farm and (C) Loans made in conformance with
Rural Development Act related to section 4 of the Southeast Hurricane
Rural Utilities Service, Rural Busi- Disaster Relief Act of 1965 (79 Stat.
ness-Cooperative Service, and Rural 1301).
Housing Service activities. (x) Administer loans to Indian tribes,
(L) Section 375 (7 U.S.C. 2008j), relat- tribal corporations, and purchasers of
ing to the National Sheep Industry Im- highly fractionated land (25 U.S.C. 488–
provement Center. 492).
(ii) Collect, service, and liquidate (xi) Administer the State Agricul-
loans made or insured by the Farm tural Loan Mediation Program under
Service Agency, or its predecessor title 5 of the Agricultural Credit Act of
agencies. 1987 (7 U.S.C. 5101 et seq.)
(iii) Administer the Rural Rehabili- (xii) Administer financial assistance
tation Corporation Trust Liquidation programs relating to Economic Oppor-
Act (40 U.S.C. 440 et seq.), and trust, liq- tunity Loans to Cooperatives under
uidation, and other agreements entered part A of title III and part D of title I
into pursuant thereto. and the necessarily related functions in
(iv) [Reserved] title VI of the Economic Opportunity

(v) Administer Farmers Home Ad- Act of 1964, as amended (42 U.S.C. 2763–
ministration or any successor agency 2768, 2841–2855, 2942, 2943(b), 2961), dele-
assets conveyed in trust under the Par- gated by the Director of the Office of
139
Economic Opportunity to the Sec- the European Union, the Food and Ag-
retary of Agriculture by documents riculture Organization of the United
dated October 23, 1964 (29 FR 14764), and Nations, the International Bank for
June 17, 1968 (33 FR 9850), respectively. Reconstruction and Development, the
(xiii) Exercise all authority and dis- Inter-American Development Bank,
cretion vested in the Secretary by sec- the Organization of American States,
tion 331(c) of the Consolidated Farm and other public and private U.S. and
and Rural Development Act, as amend- international organizations, and the
ed by section 2 of the Farmers Home contracting parties to the General
Administration Improvement Act of Agreement on Tariffs and Trade
1994, Pub. L. 103–248 (7 U.S.C. 1981(c)), (GATT) and the World Trade Organiza-
including the following: tion (WTO).
(A) Determine, with the concurrence (ii) Administer Departmental pro-
of the General Counsel, which actions grams concerned with development of
are to be referred to the Department of foreign markets for agricultural prod-
Justice for the conduct of litigation, ucts of the United States except func-
and refer such actions to the Depart- tions relating to export marketing op-
ment of Justice through the General erations under section 32 of the Act of
Counsel; August 23, 1935, as amended (7 U.S.C.
(B) Determine, with the concurrence 612c), delegated to the Assistant Sec-
of the General Counsel, which actions retary for Marketing and Regulatory
are to be referred to the General Coun- Programs, and utilization research del-
sel, for the conduct of litigation and
egated to the Under Secretary for Re-
refer such actions; and
search, Education, and Economics.
(C) Enter into contracts with private
(iii) Conduct studies of worldwide
sector attorneys for the conduct of liti-
gation, with the concurrence of the production, trade, marketing, prices,
General Counsel, after determining consumption, and other factors affect-
that the attorneys will provide coming exports and imports of U.S. agricul-
petent and cost effective representa- tural commodities; obtain information
tion for the Farm Service Agency. on methods used by other countries to
(xiv) Administer programs for Apple move farm commodities in world trade
Loans and Emergency Loans for Seed on a competitive basis for use in the
Producers under sections 203(f) and 253, development of programs of this De-
respectively, of the Agricultural Risk partment; provide information to do-
Protection Act of 2000 (7 U.S.C. 1421 mestic producers, the agricultural
note, Pub. L. 106–224). trade, the public and other interests;
(xv) Administer evaluations of direct and promote normal commercial mar-
and guaranteed loan programs under kets abroad. This delegation excludes
section 5301 of the Farm security and basic and long-range analyses of world
Rural Investment Act of 2002 (7 U.S.C. conditions and developments affecting
1922 note). supply, demand, and trade in farm
(3) Related to foreign agriculture. (i) products and general economic anal-
Coordinate the carrying out by Depart- yses of the international financial and
ment agencies of their functions in- monetary aspects of agricultural af-
volving foreign agricultural policies fairs as assigned to the Under Sec-
and programs and their operations and retary for Research, Education, and
activities in foreign areas. Act as liai- Economics.
son on these matters and functions re- (iv) Conduct functions of the Depart-
lating to foreign agriculture between ment relating to GATT, WTO, the
the Department of Agriculture and the Trade Expansion Act of 1962 (19 U.S.C.
Department of State, the United States 1801 et seq.), the Trade Act of 1974 (19
Trade Representative, the Trade Policy U.S.C. 2101 et seq.), the Trade Agree-
Committee, the Agency for Inter- ments Act of 1979 (19 U.S.C. 2501 et seq.),
national Development, and other de- the Omnibus Trade and Competition
partments, agencies, and committees Act of 1988 (19 U.S.C. 2901 et seq.), the
of the U.S. Government, foreign gov- provisions of subtitle B of title III of
ernments, the Organization for Eco- the North American Free Trade Agree-
nomic Cooperation and Development, ment Implementation Act, and other
140
legislation affecting international agri- visions of the Export Administration

cultural trade including the programs Act of 1969, as amended (50 U.S.C. App.
designed to reduce foreign tariffs and 2401 et seq.), except as reserved to the
other trade barriers. Secretary under paragraph (b)(2) of this
(v) Maintain a worldwide agricultural section.
intelligence and reporting system, in- (ix) Exercise the Department’s re-
cluding provision for foreign agricul- sponsibilities in connection with inter-
tural representation abroad to protect national negotiations of the Grains
and promote U.S. agricultural inter- Trade Convention and in the adminis-
ests, and to acquire information on de- tration of such Convention.
mand, competition, marketing, and (x) Plan and carry out programs and
distribution of U.S. agricultural com- activities under the foreign market
modities abroad pursuant to title VI of promotion authority of: The Wheat Re-
the Agricultural Act of 1954, as amend- search and Promotion Act (7 U.S.C.
ed (7 U.S.C. 1761–1768). 1292 note); the Cotton Research and
(vi) Exercise the Department’s func- Promotion Act (7 U.S.C. 2101–2118); the
tions with respect to the International Potato Research and Promotion Act (7
Coffee Agreement or any such future U.S.C. 2611–2627); the Egg Research and
agreement. Consumer Information Act of 1974 (7
(vii) Administer functions of the De- U.S.C. 2701–2718); the Beef Research and
partment relating to import controls, Information Act, as amended (7 U.S.C.
except those functions reserved to the 2901–2911); the Wheat and Wheat Foods
Secretary in paragraph (b) of this sec- Research and Nutrition Education Act
tion and those relating to section 8e of (7 U.S.C. 3401–3417); the Floral Research
the Agricultural Act of 1938 (7 U.S.C. and Consumer Information Act of 1981
608e–1), as assigned to the Assistant (7 U.S.C. 4301–4319); subtitle B of title I
Secretary for Marketing and Regu- of the Dairy and Tobacco Adjustment
latory Programs. These include: Act of 1983 (7 U.S.C. 4501–4514); the
(A) Functions under section 22 of the Honey Research, Promotion, and Con-
Agricultural Adjustment Act of 1933, as sumer Information Act of 1984, as
amended (7 U.S.C. 624); amended (7 U.S.C. 4601–4613); the Pork
(B) General note 15(c) to the Har- Promotion, Research, and Consumer
monized Tariff Schedule of the United Information Act of 1985 (7 U.S.C. 4801–
States (19 U.S.C. 1202); 4819); the Watermelon Research and
(C) Requests for emergency relief Promotion Act, as amended (7 U.S.C.
from duty-free imports of perishable 4901–4916); the Pecan Promotion and
products filed with the Department of Research Act of 1990 (7 U.S.C. 6001–
Agriculture under section 213(f) of the 6013); the Mushroom Promotion, Re-
Caribbean Basin Recovery Act of 1983 search, and Consumer Information Act
(19 U.S.C. 2703(f)); of 1990 (7 U.S.C. 6101–6112); the Lime Re-
(D) Section 404 of the Trade and Tar- search, Promotion, and Consumer In-
iff Act of 1984 (19 U.S.C. 2112 note); formation Act of 1990 (7 U.S.C. 6201–
(E) Section 204(d) of the Andean 6212); the Soybean Promotion, Re-
Trade Preference Act (19 U.S.C. search, and Consumer Information Act
3203(d)); of 1990 (7 U.S.C. 6301–6311); the Fluid
(F) Functions under sections 309 and Milk Promotion Act of 1990 (7 U.S.C.
316 of the North American Free Trade 6401–6417); the Fresh Cut Flowers and
Agreement Implementation Act (19 Fresh Cut Greens Promotion and Con-
U.S.C. 3358 and 3381); sumer Information Act (7 U.S.C. 6801–
(G) Section 301(a) of the United 6814); the Sheep Promotion, Research,
States-Canada Free Trade Agreement and Information Act of 1994 (7 U.S.C.
Implementation Act (19 U.S.C. 2112 7101–7111); the Commodity Promotion,
note); and Research, and Information Act of 1996
(H) Section 204 of the Agricultural (7 U.S.C. 7411–7425); the Canola and
Act of 1956, as amended (7 U.S.C. 1854). Rapeseed Research, Promotion, and
(viii) Represent the Department on Consumer Information Act (7 U.S.C.

the Interdepartmental Committee for 7441–7452); the National Kiwifruit Re-
Export Control and to conduct depart- search, Promotion, and Consumer In-
mental activities to carry out the pro- formation Act (7 U.S.C. 7461–7473); and,
141
the Popcorn Promotion, Research, and (xix) Determine the agricultural

Consumer Information Act (7 U.S.C. commodities acquired under price sup-
7481–7491). This authority includes de- port programs which are available for
termining the programs and activities export and allocate such commodities
to be undertaken and assuring that among the various export programs.
they are coordinated with the overall (xx) Conduct economic analyses per-
departmental programs to develop for- taining to the foreign sugar situation.
eign markets for U.S. agricultural (xxi) Exercise the Department’s func-
products. tions with respect to the International
(xi) Formulate policies and admin- Sugar Agreement or any such future
ister barter programs under which ag- agreements.
ricultural commodities are exported. (xxii) Exercise the Department’s re-
(xii) Perform functions of the Depart- sponsibilities with respect to tariff-
ment in connection with the develop- rate quotes for dairy products under
ment and implementation of agree- chapter 4 of the Harmonized Tariff
ments to finance the sale and expor- Schedule of the United States (19
tation of agricultural commodities U.S.C. 1202).
under Public Law 480, 83rd Congress, (xxiii) Serve as a focal point for han-
hereafter referred to as ‘‘Public Law dling quality or weight discrepancy in-
480’’ (7 U.S.C. 1691, 1701 et seq.). quiries from foreign buyers of U.S. ag-
(xiii) Administer commodity procure- ricultural commodities to insure that
ment and supply, transportation (other they are investigated and receive a
than from point of export, except for timely response and that reports there-
movement to trust territories or pos- of are made to appropriate parties and
sessions), handling, payment, and re- government officials in order that cor-
lated services in connection with pro- rective action may be taken.
grams under titles II and III of Public (xxiv) Establish and administer regu-
Law 480 (7 U.S.C. 1691, 1701 et seq.), and lations relating to foreign travel by
payment and related services with re- employees of the Department. Regula-
spect to export programs and barter tions will include, but not be limited
operations. to, obtaining and controlling passports,
(xiv) Coordinate within the Depart- obtaining visas, coordinating Depart-
ment activities arising under Public ment of State medical clearances and
Law 480 (except as delegated to the imposing requirements for itineraries
Under Secretary for Research, Edu- and contacting the Foreign Agricul-
cation, and Economics in § 2.21(a)(8)), tural Affairs Officers upon arrival in
and represent the Department in its re- the Officers’ country(ies) of responsi-
lationships in such matters with the bility.
Department of State, any interagency (xxv) Formulate policies and admin-
committee on Public Law 480, and ister programs and activities author-
other departments, agencies and com- ized by the Agricultural Trade Act of
mittees of the Government. 1978, as amended (7 U.S.C. 5601 et seq.).
(xv) Formulate policies and imple- (xxvi) Administer the Foreign Serv-
ment programs to promote the export ice personnel system for the Depart-
of dairy products, as authorized under ment in accordance with 22 U.S.C. 3922,
section 153 of the Food Security Act of except as otherwise delegated to the
1985, as amended (15 U.S.C. 713a–14). Assistant Secretary for Marketing and
(xvi) Formulate policies and imple- Regulatory Programs in § 2.22(a)(2)(i),
ment a program for the export sales of but including authority to approve
dairy products, as authorized by sec- joint regulations issued by the Depart-
tion 1163 of the Food Security Act of ment of State and authority to rep-
1985 (7 U.S.C. 1731 note). resent the Department of Agriculture
(xvii) Carry out activities relating to in all interagency consultations and
the sale, reduction, or cancellation of negotiations with the other foreign af-
debt, as authorized by title VI of the fairs agencies with respect to joint reg-
Agricultural Trade and Development ulations.

Act of 1954, as amended (7 U.S.C. 1738 et (xxvii) Establish and maintain U.S.
seq.). Agricultural Trade Offices, to develop,
(xviii) [Reserved] maintain and expand international
142
markets for U.S. agricultural commod- tunities through the operation of a De-
ities in accordance with title IV of partment information center, pursuant
Pub. L. No. 95–501 (7 U.S.C. 1765a-g). to 7 U.S.C. 2201.
(xxviii) Administer the programs (xxxix) Enter into contracts, grants,
under section 416(b) of the Agricultural cooperative agreements, and cost reim-
Act of 1949, as amended (7 U.S.C. bursable agreements relating to agri-
1431(b)), relating to the foreign dona- cultural research, extension, or teach-
tion of CCC stocks of agricultural coming activities (7 U.S.C. 3318, 3319a).
modities. (xl) Determine amounts reimbursable
(xxix)–(xxx) [Reserved] for indirect costs under international
(xxxi) Administer programs under agricultural programs and agreements
the Food for Progress Act of 1985 (7 (7 U.S.C. 3319).
U.S.C. 1736o).
(xli) Administer the Cochran Fellow-
(xxxii) Serve as Department adviser
ship Program (7 U.S.C. 3293).
on policies, organizational arrange-
ments, budgets, and actions to accom- (xlii) Determine quantity trigger lev-
plish international scientific and tech- els and impose additional duties under
nical cooperation in food and agri- the special safeguard measures in ac-
culture. cordance with U.S. note 2 to sub-
(xxxiii) Administer and direct the chapter IV of chapter 99 of the Har-
Department’s programs in inter- monized Tariff Schedule of the United
national development, technical assist- States (19 U.S.C. 1202).
ance, and training carried out under (xliii) Implement provisions of the
the Foreign Assistance Act, as amend- Trade Act of 1974 regarding adjustment
ed, as requested under such act (22 assistance for farmers (19 U.S.C. 2401–
U.S.C. 2151 et seq.). 2401g).
(xxxiv) Administer and coordinate as- (xliv) Implement section 3107 of the
signed Departmental programs in Farm Security and Rural Investment
international research and scientific Act of 2002 (7 U.S.C. 1736o–1).
and technical cooperation with other (xlv) Implement section 3205 of the
governmental agencies, land grant uni- Food, Conservation, and Energy Act of
versities, international organizations, 2008 (22 U.S.C. 7112 note) regarding the
international agricultural research Consultative Group to Eliminate the
centers, and other institutions (7 Use of Child Labor and Forced Labor in
U.S.C. 1624, 3291). Imported Agricultural Products, in
(xxxv) Direct and coordinate the De- consultation with the Under Secretary
partment’s participation in scientific for Marketing and Regulatory Pro-
and technical matters and exchange grams.
agreements between the United States (xlvi) Implement section 3206 of the
and other countries. Food, Conservation, and Energy Act of
(xxxvi) Direct and coordinate the De- 2008 (7 U.S.C. 1726c) regarding local and
partment’s work in international orga- regional food aid procurement projects.
nizations and interagency committees
(xlvii) Administer the Borlaug Inter-
concerned with food and agricultural
national Agricultural Science and
development programs (7 U.S.C. 2201–
Technology Fellowship Program (7
2202).
(xxxvii) Coordinate policy formula- U.S.C. 3319j).
tion for USDA international science (xlviii) Administer the grant program
and technology programs concerning for agricultural biotechnology research
international agricultural research and development for developing coun-
centers, international organizations, tries (7 U.S.C. 7631).
and international agricultural research (4) Related to risk management. (i) Ex-
and extension activities (7 U.S.C. 3291). ercise general supervision of the Fed-
(xxxviii) Disseminate, upon request, eral Crop Insurance Corporation.
information on subjects connected with (ii) Appoint such officers and employ-
agriculture which has been acquired by ees as may be necessary for the trans-
USDA agencies that may be useful to action of the business of the Federal
the U.S. private sector in expanding Crop Insurance Corporation and the
foreign markets and investment oppor- Risk Management Agency.
143
(iii) Conduct pilot programs involv- formation gathering and access re-
ing revenue insurance, risk manage- quests and orders; compliance with
ment savings accounts, or the use of Federal health and safety standards
futures markets to manage risk and and wage and labor standards applica-
support farm income. ble to covered work; and emergency
(iv) Provide education in manage- procurement powers;
ment of the financial risks inherent in (iii) Section 104(i)(11) of the Act (42
the production and marketing of agri- U.S.C. 9604(i)(11)), with respect to the
cultural commodities. reduction of exposure to significant
(v) Conduct a study and issue a re- risk to human health;
port on the efficacy and accuracy of (iv) Section 104(j) of the Act (42
the application of pack factors regard-
U.S.C. 9604(j)), with respect to the ac-
ing the measurement of farm-stored
quisition of real property and interests
production for purposes of providing
in real property required to conduct a
policies or plans of insurance under the
Federal Crop Insurance Act (7 U.S.C. remedial action;
1501 et seq.). (v) The first two sentences of section
(5) Related to committee management. 105(d) of the Act (42 U.S.C. 9605(d)),
Establish and reestablish regional, with respect to petition for prelimi-
state, and local advisory committees nary assessment of a release or threat-
for activities under his or her author- ened release;
ity. This authority may not be redele- (vi) Section 105(f) of the Act (42
gated. U.S.C. 9605(f)), with respect to consider-
(6) Related to defense and emergency ation of the availability of qualified
preparedness. Administer responsibil- minority firms in awarding contracts,
ities and functions assigned under the but excluding that portion of section
Defense Production Act of 1950, as 105(f) pertaining to the annual report
amended (50 U.S.C. App. 2061 et seq.), to Congress;
and title VI of the Robert T. Stafford (vii) Section 109 of the Act (42 U.S.C.
Disaster Relief and Emergency Assist- 9609), with respect to the assessment of
ance Act (42 U.S.C. 5195 et seq.), con- civil penalties for violations of section
cerning agricultural production; food 122 of the Act (42 U.S.C. 9622), and the
processing, storage, and distribution; granting of awards to individuals pro-
distribution of farm equipment and fer- viding information;
tilizer; rehabilitation and use of food, (viii) Section 111(f) of the Act (42
agricultural and related agribusiness U.S.C. 9611(f)), with respect to the des-
facilities; CCC resources; farm credit ignation of officials who may obligate
and financial assistance; and foreign money in the Hazardous Substances
agricultural intelligence and other for- Superfund;
eign agricultural matters.
(ix) Section 113(k) of the Act (42
(7) Related to environmental response.
U.S.C. 9613(k)), with respect to estab-
With respect to land and facilities
lishing an administrative record upon
under his or her authority, exercise the
which to base the selection of a re-
functions delegated to the Secretary by
sponse action and identifying and noti-
Executive Order 12580, 3 CFR, 1987
Comp., p. 193, under the following pro- fying potentially responsible parties;
visions of the Comprehensive Environ- (x) Section 116(a) of the Act (42 U.S.C.
mental Response, Compensation, and 9616(a)), with respect to preliminary as-
Liability Act of 1980 (‘‘the Act’’), as sessment and site inspection of facili-
amended: ties;
(i) Sections 104 (a), (b), and (c)(4) of (xi) Sections 117(a) and (c) of the Act
the Act (42 U.S.C. 9604 (a), (b), and (42 U.S.C. 9617(a) and (c)), with respect
(c)(4)), with respect to removal and re- to public participation in the prepara-
medial actions in the event of release tion of any plan for remedial action
or threatened release of a hazardous and explanation of variances from the
final remedial action plan for any re-
substance, pollutant, or contaminant

into the environment; medial action or enforcement action,
(ii) Sections 104(e)–(h) of the Act (42 including any settlement or consent
U.S.C. 9604(e)–(h)), with respect to in- decree entered into;
144
(xii) Section 119 of the Act (42 U.S.C. (ii) Recommend actions and policies
9119), with respect to indemnifying re- that enable USDA agencies under his
sponse action contractors; or her authority to comply with the in-
(xiii) Section 121 of the Act (42 U.S.C. tent, purposes, and standards of envi-
9621), with respect to cleanup stand- ronmental laws for pollution preven-
ards; and tion, control, and abatement.
(xiv) Section 122 of the Act (42 U.S.C. (iii) Consult with the United States
9622), with respect to settlements, but Environmental Protection Agency and
excluding section 122(b)(1) of the Act other appropriate Federal agencies in
(42 U.S.C. 9622(b)(1)), related to mixed developing pollution prevention, con-
funding agreements. trol, and abatement policies and pro-
(8) Related to compliance with environ- grams relating to agencies under his or
mental laws. With respect to facilities her authority.
and activities under his or her author- (iv) Recommend actions and policies
ity, to exercise the authority of the of the loan and grant programs under
Secretary of Agriculture pursuant to his or her authority concerning compli-
section 1–102 related to compliance ance with the Asset Conservation,
with applicable pollution control Lender Liability, and Deposit Insur-
standards and section 1–601 of Execu- ance Protection Act of 1996, Subtitle E
tive Order 12088, 3 CFR, 1978 Comp., p. of Public Law No. 104–208.
243, to enter into an inter-agency (b) The following authorities are re-
agreement with the United States En- served to the Secretary of Agriculture:
vironmental Protection Agency, or an (1) Related to farm service. (i) Appoint-
administrative consent order or a con- ment of Farm Service Agency State
sent judgment in an appropriate State, committeemen.
interstate, or local agency, containing (ii) Final approval of regulations re-
a plan and schedule to achieve and lating to the selection and exercise of
maintain compliance with applicable the functions of committees promul-
pollution control standards established gated under section 8(b) of the Soil
pursuant to the following: Conservation and Domestic Allotment
(i) Solid Waste Disposal Act, as Act, as amended (16 U.S.C. 590h(b)).
amended by the Resource Conservation (2) Related to foreign agriculture. (i)
and Recovery Act, as further amended Approving export controls with respect
by the Hazardous and Solid Waste to any agricultural commodity, includ-
Amendments, and the Federal Facility ing fats and oils or animal hides or
Compliance Act (42 U.S.C. 6901 et seq.); skins as provided for in the Export Ad-
ministration Act of 1969, as amended
(ii) Federal Water Pollution Preven-
(50 U.S.C. App. 2401 et seq.).
tion and Control Act, as amended (33
(ii) Advising the President that im-
U.S.C. 1251 et seq.);
ports are having the effect on programs
(iii) Safe Drinking Water Act, as
or operations of this Department re-
amended (42 U.S.C. 300f et seq.);
quired as a prerequisite for the imposi-
(iv) Clean Air Act, as amended (42 tion of import controls under section 22
U.S.C. 7401 et seq.); of the Agricultural Adjustment Act of
(v) Noise Control Act of 1972, as 1933, as amended (7 U.S.C. 624a), recom-
amended (42 U.S.C. 4901 et seq.); mending that the President cause an
(vi) Toxic Substances Control Act, as investigation to be made by the Tariff
amended (15 U.S.C. 2601 et seq.); Commission of the facts so that a de-
(vii) Federal Insecticide, Fungicide, termination can be made whether im-
and Rodenticide Act, as amended (7 port restrictions should be imposed
U.S.C. 136 et seq.); and under that Act, and determining under
(viii) Comprehensive Environmental section 204(e) of the Andean Trade
Response, Compensation, and Liability Preference Act (19 U.S.C. 3203(e)) that
Act of 1980, as amended by the Super- there exists a serious injury, or threat
fund Amendments and Reauthorization thereof and recommending to the
Act of 1986 (42 U.S.C. 9601 et seq.).
President whether or not to take ac-

(9) Related to hazardous materials man- tion.
agement. (i) Serve on the USDA Haz- (iii) Determining the agricultural
ardous Materials Policy Council. commodities and the quantities thereof
145
available for disposition under Public lated to rural people and the commu-
Law 480 (7 U.S.C. 1731). nities in which they live including
(3) Related to risk management. (i) Ap- rural industrialization; rural popu-
pointment of those members of the lation and manpower; local govern-
Board of Directors of the Federal Crop ment finance; income development
Insurance Corporation who are not al- strategies; housing; social services and
ready otherwise employed by the De- utilization; adjustments to changing
partment of Agriculture, and as au- economic and technical forces; and
thorized in 7 U.S.C. 1505(a) designating other related matters.
an Under Secretary of Agriculture to (4) Work with Federal agencies in en-
be a member of the Board in addition couraging the creation of rural commu-
to the Under Secretary responsible for nity development organizations.
the Federal crop insurance program (5) Assist other Federal agencies in
who is a Board member pursuant to 7 making rural community development
U.S.C. 1505(a). organizations aware of the Federal pro-
(ii) Appointment of the Adminis- grams available to them.
trator of the Risk Management Agency
(6) Advise rural community develop-
who also shall serve as the Manager of
ment organizations of the availability
the Federal Crop Insurance Corpora-
of Federal assistance programs.
tion.
(7) Advise other Federal agencies of
[60 FR 56393, Nov. 8, 1995, as amended at 61 the need for particular Federal pro-
FR 25775, May 23, 1996; 61 FR 37552, July 18, grams.
1996; 62 FR 1031, Jan. 8, 1997; 62 FR 19900, Apr.
24, 1997; 62 FR 40253, July 28, 1997; 65 FR 12427, (8) Assist rural community develop-
Mar. 9, 2000; 68 FR 27435, May 20, 2003; 71 FR ment organizations in making contact
35491, June 21, 2006; 71 FR 51421, Aug. 30, 2006; with Federal agencies whose assistance
74 FR 3401, Jan. 21, 2009; 75 FR 43368, July 23, may be of benefit to them.
2010] (9) Assist other Federal agencies and
national organizations in developing
§ 2.17 Under Secretary for Rural De-
velopment. means for extending their services ef-
fectively to rural areas.
(a) The following delegations of au- (10) Assist other Federal agencies in
thority are made by the Secretary of designating pilot projects in rural
Agriculture to the Under Secretary for areas.
Rural Economic and Community De-
(11) Conduct studies to determine
velopment:
how programs of the Department can
(1) Provide leadership and coordina-
be brought to bear on the economic de-
tion within the executive branch of a
velopment problems of the country and
Nationwide Rural Development Pro-
gram utilizing the services of executive assure that local groups are receiving
branch departments and agencies and adequate technical assistance from
the agencies, bureaus, offices, and serv- Federal agencies or from local and
ices of the Department of Agriculture State governments in formulating de-
in coordination with rural development velopment programs and in carrying
programs of State and local govern- out planned development activities.
ments (7 U.S.C. 2204). (12) Assist other Federal agencies in
(2) Coordinate activities relative to formulating manpower development
rural development among agencies re- and training policies.
porting to the Under Secretary for (13) Related to committee management.
Rural Economic and Community De- Establish and reestablish regional,
velopment and, through appropriate state, and local advisory committees
channels, serve as the coordinating of- for activities under his or her author-
ficial for other departmental agencies ity. This authority may not be re-dele-
having primary responsibilities for spe- gated.
cific titles of the Rural Development (14) Related to defense and emergency
Act of 1972, and allied legislation. preparedness. Administer responsibil-
(3) Administer a national program of ities and functions assigned under the
economic, social, and environmental Defense Production Act of 1950, as
research and analysis, statistical pro- amended (50 U.S.C. App. 2061 et seq.),
grams, and associated service work re- and title VI of the Robert T. Stafford
146
Disaster Relief and Emergency Assist- ble to covered work; and emergency
ance Act (42 U.S.C. 5195 et seq.), con- procurement powers;
cerning rural development credit and (iii) Section 104(i)(11) of the Act (42
financial assistance. U.S.C. 9604(i)(11)), with respect to the
(15) Related to energy. (i) Provide De- reduction of exposure to significant
partment-wide operational support and risk to human health;
coordination for loan and grant pro- (iv) Section 104(j) of the Act (42
grams to foster and encourage the pro- U.S.C. 9604(j)), with respect to the ac-
duction of fuels from agricultural and quisition of real property and interests
forestry products or by-products. in real property required to conduct a
(ii) Participate as a Department rep- remedial action;
resentative at conferences, meetings (v) The first two sentences of section
and other contacts including liaison 105(d) of the Act (42 U.S.C. 9605(d)),
with the Department of Energy and with respect to petitions for prelimi-
other government agencies and depart- nary assessment of a release or threat-
ments with respect to implementation ened release;
of established Department energy pol- (vi) Section 105(f) of the Act (42
icy. U.S.C. 9605(f)), with respect to consider-
(iii) Serve as Co-Chairperson of the ation of the availability of qualified
Energy Coordinating Committee of the minority firms in awarding contracts,
but excluding that portion of section
Department.
105(f) pertaining to the annual report
(16) Collect, service, and liquidate
to Congress;
loans made, insured, or guaranteed by
(vii) Section 109 of the Act (42 U.S.C.
the Rural Utilities Service, the Rural 9609), with respect to the assessment of
Housing Service, the Rural Business- civil penalties for violations of section
Cooperative Service, or their prede- 122 of the Act (42 U.S.C. 9622), and the
cessor agencies. granting of awards to individuals pro-
(17) Administer the Federal Claims viding information;
Collection Act of 1966 (31 U.S.C. 3711 et (viii) Section 111(f) of the Act (42
seq.), and joint regulations issued pur- U.S.C. 9611(f)), with respect to the des-
suant thereto by the Attorney General ignation of officials who may obligate
and the Comptroller General (4 CFR money in the Hazardous Substances
chapter II), with respect to claims of Superfund;
the Rural Housing Service, the Rural (ix) Section 113(k) of the Act (42
Business-Cooperative Service and the U.S.C. 9613(k)), with respect to estab-
Rural Utilities Service. lishing an administrative record upon
(18) With respect to land and facili- which to base the selection of a re-
ties under his or her authority, exer- sponse action and identifying and noti-
cise the functions delegated to the Sec- fying potentially responsible parties;
retary by Executive Order 12580, 3 CFR, (x) Section 116(a) of the Act (42 U.S.C.
1987 Comp., p. 193, under the following 9616(a)), with respect to preliminary as-
provisions of the Comprehensive Envi- sessment and site inspection of facili-
ronmental Response, Compensation, ties;
and Liability Act of 1980 (‘‘the Act’’), (xi) Sections 117(a) and (c) of the Act
as amended: (42 U.S.C. 9617(a) and (c)), with respect
(i) Sections 104(a), (b), and (c)(4) of to public participation in the prepara-
the Act (42 U.S.C. 9604(a), (b), and tion of any plan for remedial action
(c)(4)), with respect to removal and re- and explanation of variances from the
medial actions in the event of release final remedial action plan for any re-
or threatened release of a hazardous medial action or enforcement action,
substance, pollutant, or contaminant including any settlement or consent
into the environment; decree entered into;
(ii) Sections 104(e)–(h) of the Act (42 (xii) Section 119 of the Act (42 U.S.C.
U.S.C. 9604(e)–(h)), with respect to in- 9119), with respect to indemnifying re-
formation gathering and access response action contractors;

quests and orders; compliance with (xiii) Section 121 of the Act (42 U.S.C.
Federal health and safety standards 9621), with respect to cleanup stand-
and wage and labor standards applica- ards; and
147
(xiv) Section 122 of the Act (42 U.S.C. (ii) Administer the Rural Electrifica-
9622), with respect to settlements, but tion Act of 1938 (7 U.S.C. 903 note).
excluding section 122(b)(1) of the Act (iii) Designate the chief executive of-
(42 U.S.C. 9622(b)(1)), related to mixed ficer of the Rural Telephone Bank.
funding agreements. (iv) Administer the following sec-
(19) With respect to facilities and actions of the Consolidated Farm and
tivities under his or her authority, to Rural Development Act (7 U.S.C. 1921,
exercise the authority of the Secretary et seq.):
of Agriculture pursuant to section 1– (A) Section 306 (7 U.S.C. 1926), related
102 related to compliance with applica- to water and waste facilities.
ble pollution control standards and sec- (B) Section 306A (7 U.S.C. 1926a).
tion 1–601 of Executive Order 12088, 3 (C) Section 306B (7 U.S.C. 1926b).
CFR, 1978 Comp., p. 243, to enter into (D) Section 306C (7 U.S.C. 1926c).
an inter-agency agreement with the (E) Section 306D (7 U.S.C. 1926d).
United States Environmental Protec- (F) Section 306E (7 U.S.C. 1926e).
tion Agency, or an administrative con- (G) Section 309 (7 U.S.C. 1929) and
sent order or a consent judgment in an 309A (7 U.S.C. 1929a), relating to assets
appropriate State, interstate, or local and programs related to watershed fa-
agency, containing a plan and schedule cilities, resource and conservation fa-
to achieve and maintain compliance cilities, and water and waste facilities.
with applicable pollution control (H) Section 310A (7 U.S.C. 1931), relat-
standards established pursuant to the ing to watershed and resource con-
following: servation and development
(i) Solid Waste Disposal Act, as (I) Section 310B(b) (7 U.S.C. 1932(b)).
amended by the Resource Conservation (J) [Reserved]
and Recovery Act, as further amended (K) Administrative Provisions of sub-
by the Hazardous and Solid Waste title D of the consolidated Farm and
Amendments, and the Federal Facility Rural Development act relating to
Compliance Act (42 U.S.C. 6901 et seq.); rural utility activities.
(ii) Federal Water Pollution Preven- (L) Section 379B (7 U.S.C. 2008p).
tion and Control Act, as amended (33 (v) Administer section 8, and those
U.S.C. 1251 et seq.); functions with respect to repayment of
(iii) Safe Drinking Water Act, as obligations under section 4 of the Wa-
amended (42 U.S.C. 300f et seq.); tershed Protection and Flood Preven-
(iv) Clean Air Act, as amended (42 tion Act (16 U.S.C. 1006a, 1004) and ad-
U.S.C. 7401 et seq.); minister the Resource Conservation
(v) Noise Control Act of 1972, as and Development Program to assist in
amended (42 U.S.C. 4901 et seq.); carrying out resource conservation and
(vi) Toxic Substances Control Act, as development projects in rural areas
amended (15 U.S.C. 2601 et seq.); under section 32(e) of the Bankhead-
(vii) Federal Insecticide, Fungicide, Jones Farm Tenant Act (7 U.S.C.
and Rodenticide Act, as amended (7 1011(e)).
U.S.C. 136 et seq.); and (vi) Administer the Water and Waste
(viii) Comprehensive Environmental Loan Program (7 U.S.C. 1926–1).
Response, Compensation, and Liability (vii) Administer the Rural Waste-
Act of 1980, as amended by the Super- water Treatment Circuit Rider Pro-
fund Amendments and Reauthorization gram (7 U.S.C. 1926 note).
Act of 1986 (42 U.S.C. 9601 et seq.). (viii) Administer the Distance Learn-
(20) Related to rural utilities service. (i) ing and Medical Link Programs (7
Administer the Rural Electrification U.S.C. 950aaa et seq.).
Act of 1936, as amended (7 U.S.C. 901 et (ix) Administer Water and Waste Fa-
seq.) except for rural economic develop- cility Programs and activities (7 U.S.C.
ment loan and grant programs; (7 1926–1).
U.S.C. 940c and 950aa et seq.): Provided, (x) Administer the SEARCH Grants
however, that the Under Secretary for Small Communities Program (7
may utilize consultants and attorneys U.S.C. 2009ee et seq.)

for the provision of legal services pur- (xi) In coordination with the Assist-
suant to 7 U.S.C. 918, with the concur- ant Secretary for Administration, issue
rence of the General Counsel. receipts under section 2501A(e) of the
148
Food, Agriculture, Conservation, and (v) Administer loan programs in the

Trade Act of 1990 (7 U.S.C. 2279–1(e)). Appalachian region under sections 203
(21) Related to rural business-coopera- and 204 of the Appalachian Regional
tive. (i) Administer the Rural Economic Development Act of 1965 (40 U.S.C. App.
Development Loan and Grant Pro- 204).
grams under the Rural Electrification (vi) Administer section 601 of the
Act (7 U.S.C. 940c and 950aa et seq.). Powerplant and Industrial Fuel Use
(ii) Administer the following sections Act of 1978 (Pub. L. 95–620).
of the Consolidated Farm and Rural (vii) Administer the Drought and Dis-
Development Act (7 U.S.C. 1921 et seq.): aster Guaranteed Loan Program under
(A) Section 306(a)(110(A) (7 U.S.C. section 331 of the Disaster Assistance
1926(a)(11)(A)), relating to grants for Act of 1988 (7 U.S.C. 1929a note).
business technical assistance and plan- (viii) Administer the Disaster Assist-
ning. ance for Rural Business Enterprises
(B) [Reserved] Guaranteed Loan Program under sec-
(C) Sections 309 (7 U.S.C. 1929) and tion 401 of the Disaster Assistance Act
309A (7 U.S.C. 1929a), relating to assets of 1989 (7 U.S.C. 1929a note).
and programs related to rural develop- (ix) Administer the Rural Economic
ment. Development Demonstration Grant
(D) Section 310B (7 U.S.C. 1932), relat- Program (7 U.S.C. 2662a).
ing to various Rural Development pro-
(x) Administer the Economically Dis-
grams, except for subsection (b) of that
advantaged Rural Community Loan
section.
Program (7 U.S.C. 6616).
(E) Section 312(b) (7 U.S.C. 1942(b)),
(xi) Administer the assets of the Al-
relating to small business enterprises.
ternative Agricultural Research and
(F) Administrative Provisions of sub-
Commercialization Corporation and
title D of the Consolidated Farm and
the funds in the Alternative Agricul-
Rural Development Act relating to
tural Research and Commercialization
rural business-cooperative activities.
Fund in accordance with section 6201 of
(G) Section 378 (7 U.S.C. 2008m) relat-
the Farm Security and Rural Invest-
ing to the National Rural Development
ment Act of 2000 (note to 7 U.S.C. 5901
Partnership;
(repealed)).
(H) Section 379E (7 U.S.C. 2008s) relat-
ing to the Rural Microentrepreneur As- (xii) Administer programs authorized
sistance Program. by the Cooperative Marketing Act of
(I) Section 379F (7 U.S.C. 2000t) relat- 1926 (7 U.S.C. 451–457).
ing to the Expansion of Employment (xiii) Carry out the responsibilities of
Opportunities for Individuals with Dis- the Secretary of Agriculture relating
abilities in Rural Areas Program. to the marketing aspects of coopera-
(J) Section 379G (7 U.S.C. 2008u) re- tives, including economic research and
lating to Health Care Services. analysis, the application of economic
(K) Section 382A et seq. (7 U.S.C. research findings, technical assistance
2009aa et seq.) relating to the Delta Re- to existing and developing coopera-
gional Authority. tives, education on cooperatives, and
(L) Section 383A et seq. (7 U.S.C. statistical information pertaining to
2009bb et seq.) relating to the Northern cooperatives as authorized by the Agri-
Great Plains Regional Authority. cultural Marketing Act of 1946 (7 U.S.C.
(M) Section 384A et seq. (7 U.S.C. 1621–1627).
2009cc et seq.) relating to the Rural (xiv) Work with institutions and
Business Investment Program; international organizations throughout
(N) Section 385A et seq. (7 U.S.C. the world on subjects related to the de-
2009dd et seq.) relating to the Rural Col- velopment and operation of agricul-
laborative Investment Program. tural cooperatives. Such work may be
(iii) Administer Alcohol Fuels Credit carried out by:
Guarantee Program Account (Pub. L. (A) Exchanging materials and results
with such institutions or organiza-
102–341, 106 Stat. 895).

(iv) Administer section 1323 of the tions;
Food Security Act of 1985 (7 U.S.C. 1932 (B) Engaging in joint or coordinated
note). activities; or
149
(C) Stationing representatives at (xxii) Administer the Agriculture In-

such institutions or organizations in novation Center Demonstration pro-
foreign countries (7 U.S.C. 3291). gram (note to 7 U.S.C. 1621).
(xv) Administer in rural areas the (xxiii) Administer the renewable en-
process of designation, provision of ergy programs authorized in sections
monitoring and oversight, and provi- 9003, 9004, 9005, 9007, and 9009 of the
sion of technical assistance for Em- Farm Security and Rural Investment
powerment Zones and Enterprise Com- Act of 2002 (7 U.S.C. 8103, 8104, 8105,
munities pursuant to section 13301 of 8107, and 8109).
Public Law 103–66, Omnibus Budget (xxiv) Implement the information
Reconciliation Act of 1993 (26 U.S.C. disclosure authorities of section
1391 et seq.) 1619(b)(3)(A) of the Food, Conservation,
(xvi) Work with Federal agencies in and Energy Act of 2008 (7 U.S.C.
encouraging the creation of local rural 8791(b)(3)(A)).
community development organiza- (xxv) In coordination with the Assist-
tions. Within a State, assist other Fed- ant Secretary for Administration, issue
eral agencies in developing means for receipts under section 2501A(e) of the
extending their services effectively to Food, Agriculture, Conservation, and
rural areas and in designating pilot Trade Act of 1990 (7 U.S.C. 2279–1(e)).
projects in rural areas (7 U.S.C. 2204). (22) Related to rural housing. (i) Ad-
minister the following under the Con-
(xvii) Conduct assessments to deter-
solidated Farm and Rural Development
mine how programs of the Department
Act ( 7 U.S.C. 1921 et seq.):
can be brought to bear on the economic
(A) Section 306 (7 U.S.C. 1926), except
development problems of a State or
with respect to financing for water and
local area and assure that local groups
waste disposal facilities; or loans for
are receiving adequate and effective
rural electrification or telephone sys-
technical assistance from Federal
tems or facilities other than hydro-
agencies or from local and State gov-
electric generating and related dis-
ernments in formulating development
tribution systems and supplemental
programs and in carrying out planned
and supporting structures if they are
development activities (7 U.S.C. 2204b). eligible for Rural Utilities Service fi-
(xviii) Develop a process through nancing; and financing for grazing fa-
which State, sub-state and local rural cilities and irrigation and drainage fa-
development needs, goals, objectives, cilities; and subsection 306(a)(11).
plans, and recommendations can be re- (B) Section 309A (7 U.S.C. 1929a), re-
ceived and assessed on a continuing garding assets and programs relating
basis (7 U.S.C. 2204b). to community facilities.
(xix) Prepare local or area-wide rural (C) Administrative Provisions of sub-
development strategies based on the title D of the Consolidated Farm and
needs, goals, objectives, plans and rec- Rural Development Act relating to
ommendations of local communities, rural housing activities.
sub-state areas and States (7 U.S.C. (D) Section 379 (7 U.S.C. 2008n) relat-
2204b). ing to the Rural Telework program;
(xx) Develop a system of outreach in (E) Section 379A (7 U.S.C. 2008o) re-
the State or local area to promote lating to the Historic Barn Preserva-
rural development and provide for the tion program; and
publication and dissemination of infor- (F) Section 379C (7 U.S.C. 2008q) relat-
mation, through multi-media methods, ing to the Farm Workers Training
relating to rural development. Advise Grant program.
local rural development organizations (ii) Administer title V of the Housing
of availability of Federal programs and Act of 1949 (42 U.S.C. 1471 et seq.), ex-
the type of assistance available, and cept those functions pertaining to re-
assist in making contact with Federal search.
program (7 U.S.C. 2204; 7 U.S.C. 2204b). (iii) [Reserved]
(xxi) Administer the Value-Added Ag- (iv) Administer the Rural Housing
ricultural Product Market Develop- Disaster Program under sections 232,
ment Grant program (note to 7 U.S.C. 234, and 253 of the Disaster Relief Act
1621). of 1970 (Pub. L. No. 91–606).
150
(v) Exercise all authority and discre- developing pollution prevention, con-
tion vested in the Secretary by section trol, and abatement policies and pro-
510(d) of the Housing Act of 1949, as grams relating to agencies under his or
amended by section 1045 of the Stewart her authority.
B. McKinney Homeless Assistance (iv) Recommend actions and policies
Amendments Act of 1988, Pub. L. 100– of the loan and grant programs under
628 (42 U.S.C. 1480(d)), including the fol- his or her authority concerning compli-
lowing: ance with the Asset Conservation,
(A) Determine, with the concurrence Lender Liability, and Deposit Insur-
of the General Counsel, which actions ance Protection Act of 1996, Subtitle E
are to be referred to the Department of of Public Law No. 104–208.
Justice for the conduct of litigation, (24)–(25) [Reserved]
and refer such actions to the Depart- (26) Related cooperative agreements.
ment of Justice through the General Enter into cooperative agreements
Counsel; with other Federal agencies, State and
(B) Determine, with the concurrence local governments, and any other orga-
of the General Counsel, which actions nizations or individuals to improve the
are to be referred to the General Coun- coordination and effectiveness of Fed-
sel for the conduct of litigation and eral programs, services, and actions af-
refer such actions; and fecting rural areas, including the es-
(C) Enter into contracts with private
tablishment and financing of inter-
sector attorneys for the conduct of liti-
agency groups, as long as the objec-
gation, with the concurrence of the
tives of the agreement will serve the
General Counsel, after determining
mutual interest of the parties in rural
that the attorneys will provide com-
development activities (7 U.S.C.
petent and cost effective representa-
2204b(b)(4)).
tion for the Rural Housing Service and
representation by the attorney will ei- (27) Exercise the authority in section
ther accelerate the process by which a 10101 of the Disaster Relief and Recov-
family or person eligible for assistance ery Supplemental Appropriations Act,
under section 502 of the Housing Act of 2008, Public Law 110–329, div. B., regard-
1949 will be able to purchase and oc- ing the Rural Development Disaster
cupy the housing involved, or preserve Assistance Fund.
the quality of the housing involved. (28) Prepare and submit the report re-
(vi) Administer the Rural Fire- quired by section 6018(b) of the Food,
fighters and Emergency Personnel Conservation, and Energy Act of 2008,
Grant program (7 U.S.C. 2655). Public Law 110–246.
(vii) Implement the information dis- (29) Implement section 14218 of the
closure authorities of section Food, Conservation, and Energy Act of
1619(b)(3)(A) of the Food, Conservation, 2008 (7 U.S.C. 6941a).
and Energy Act of 2008 (7 U.S.C. (30) Related to biomass research and de-
8791(b)(3)(A)). velopment.
(viii) In coordination with the Assist- Administer section 9008 of FSRIA (7
ant Secretary for Administration, issue U.S.C. 8108) with respect to biomass re-
receipts under section 2501A(e) of the search and development, including ad-
Food, Agriculture, Conservation, and ministration of the Biomass Research
Trade Act of 1990 (7 U.S.C. 2279–1(e)). and Development Board and Biomass
(23) Related to hazardous materials Research and Development Technical
management. (i) Serve on the USDA Advisory Committee, and submission
Hazardous Materials Policy Council. of reports to Congress, except for the
(ii) Recommend actions and policies authority delegated to the Under Sec-
that enable USDA agencies under his retary for REE in § 2.21(a)(1)(cci) to
or her authority to comply with the in- carry out the Biomass Research and
tent, purposes, and standards of envi- Development Initiative; consult and
ronmental laws for pollution preven- coordinate, as appropriate, with the
tion, control, and abatement. Under Secretary for REE and other
(iii) Consult with the United States mission areas within the Department
Environmental Protection Agency and as deemed necessary in carrying out
other appropriate Federal agencies in the authorities delegated herein; and
151
serve as the designated point of con- (D) Talmadge-Aiken Act (7 U.S.C.

tact referenced in 7 U.S.C. 8108 for the 450) with respect to cooperation with
Department, except for purposes of ad- States in administration of the Federal
ministering the Biomass Research and Meat Inspection Act and the Poultry
Development Initiative as provided in Products Inspection Act;
§ 2.21(a)(1)(cci). (E) Humane Slaughter Act (7 U.S.C.
(b) The following authority is re- 1901–1906);
served to the Secretary of Agriculture: (F) National Laboratory Accredita-
(1) Related to rural business-cooperation Program (7 U.S.C. 138–138i) with
tive. Submission to the Congress of the respect to laboratories accredited only
report required pursuant to section for pesticide residue analysis in meat
1469 of Pub. L. No. 101–624. and poultry products;
(2) [Reserved] (G) Administer and conduct a Food
Safety Research Program (7 U.S.C. 427);
[60 FR 56393, Nov. 8, 1995, as amended at 65 and
FR 12427, Mar. 9, 2000; 66 FR 31107, June 11, (H) Conduct an education program
2001; 68 FR 27436, May 20, 2003; 74 FR 3402,
regarding the availability and safety of
Jan. 21, 2009; 75 FR 43368, July 23, 2010; 76 FR
52851, Aug. 24, 2011] processes and treatments that elimi-
nate or substantially reduce the level
§ 2.18 Under Secretary for Food Safe- of pathogens on meat, meat food prod-
ty. ucts, poultry, and poultry products (21
U.S.C. 679b).
(a) The following delegations of au- (iii) Coordinate with the Assistant
thority are made by the Secretary of Secretary for Marketing and Regu-
Agriculture to the Under Secretary for latory Programs the administration of
Food Safety: programs relating to human pathogen
(1) Related to food safety and inspec- reduction (such as salmonella enteritidis)
tion. (i) Exercise the functions of the pursuant to section 2 of the Act of Feb-
Secretary of Agriculture contained in ruary 2, 1903, as amended (21 U.S.C.
the Agricultural Marketing Act of 1946, 111), and sections 4 and 5 of the Act of
as amended (7 U.S.C. 1621–1627), relat- May 29, 1884, as amended (21 U.S.C. 120).
ing to voluntary inspection of poultry (iv) Enter into contracts, grants, or
and edible products thereof; voluntary cooperative agreements to further re-
inspection and certification of tech- search programs in the agricultural
nical animal fat; certified products for sciences (7 U.S.C. 3318).
dogs, cats, and other carnivora; vol- (2) Related to committee management.
untary inspection of rabbits and edible Establish and reestablish regional,
products thereof; and voluntary inspec- State, and local advisory committees
tion and certification of edible meat for activities under his or her author-
and other products. ity. This authority may not be redele-
(ii) Exercise the functions of the Sec- gated.
retary of Agriculture contained in the (3) Related to defense and emergency
following legislation: preparedness. Administer responsibil-
(A) Poultry Products Inspection Act, ities and functions assigned under the
as amended (21 U.S.C. 451–470, 472); Defense Production Act of 1950, as
(B) Federal Meat Inspection Act, as amended (50 U.S.C. App. 2061 et seq.),
amended, and related legislation, ex- and title VI of the Robert T. Stafford
cluding so much of section 18 as per- Disaster Relief and Emergency Assist-
tains to issuance of certificates of con- ance Act (42 U.S.C. 5195 et seq.), con-
dition of live animals intended and of- cerning the wholesomeness of meat and
fered for export (21 U.S.C. 601–613, 615– poultry and products thereof and in-
624, 641–645, 661, 671–680, 683, 691–692, 694– spection of eggs and egg products.
695); (4) Related to biotechnology. Coordi-
(C) Egg Products Inspection Act, ex- nate the development and carrying out
cept for the Shell Egg Surveillance by Department agencies of all matters
Program, voluntary laboratory anal- and functions pertaining to the Depart-

yses of egg products, and the Vol- ment’s regulation of biotechnology as
untary Egg Grading Program (21 U.S.C. they may affect the safety of meat,
1031–1056); poultry or egg products.
152
(5) Related to environmental response. lishing an administrative record upon

With respect to land and facilities which to base the selection of a re-
under his or her authority, exercise the sponse action and identifying and noti-
functions delegated to the Secretary by fying potentially responsible parties;
Executive Order 12580, 3 CFR, 1987 (x) Section 116(a) of the Act (42 U.S.C.
Comp., p. 193, under the following pro- 9616(a)), with respect to preliminary as-
visions of the Comprehensive Environ- sessment and site inspection of facili-
mental Response, Compensation, and ties;
Liability Act of 1980 (‘‘the Act’’), as (xi) Sections 117(a) and (c) of the Act
amended: (42 U.S.C. 9617(a) and (c)), with respect
(i) Sections 104 (a), (b), and (c)(4) of to public participation in the prepara-
the Act (42 U.S.C. 9604 (a), (b), and tion of any plan for remedial action
quests and orders; compliance with
(xiii) Section 121 of the Act (42 U.S.C.
Federal health and safety standards
9621), with respect to cleanup stand-
and wage and labor standards applica-
ards; and
ble to covered work; and emergency
procurement powers; (xiv) Section 122 of the Act (42 U.S.C.
(iii) Section 104(i)(11) of the Act (42 9622), with respect to settlements, but
U.S.C. 9604(i)(11)), with respect to the excluding section 122(b)(1) of the Act
reduction of exposure to significant (42 U.S.C. 9622(b)(1)), related to mixed
risk to human health; funding agreements.
(iv) Section 104(j) of the Act (42 (6) Related to compliance with environ-
U.S.C. 9604(j)), with respect to the ac- mental laws. With respect to facilities
quisition of real property and interests and activities under his or her author-
in real property required to conduct a ity, to exercise the authority of the
remedial action; Secretary of Agriculture pursuant to
(v) The first two sentences of section section 1–102 related to compliance
105(d) of the Act (42 U.S.C. 9605(d)), with applicable pollution control
with respect to petitions for prelimi- standards and section 1–601 of Execu-
nary assessment of a release or threat- tive Order 12088, 3 CFR, 1978 Comp., p.
ened release; 243, to enter into an inter-agency
(vi) Section 105(f) of the Act (42 agreement with the United States En-
U.S.C. 9605(f)), with respect to consider- vironmental Protection Agency, or an
ation of the availability of qualified administrative consent order or a con-
minority firms in awarding contracts, sent judgment in an appropriate State,
but excluding that portion of section interstate, or local agency, containing
105(f) pertaining to the annual report a plan and schedule to achieve and
to Congress; maintain compliance with applicable
(vii) Section 109 of the Act (42 U.S.C. pollution control standards established
9609), with respect to the assessment of pursuant to the following:
civil penalties for violations of section (i) Solid Waste Disposal Act, as
122 of the Act (42 U.S.C. 9622), and the amended by the Resource Conservation
granting of awards to individuals pro- and Recovery Act, as further amended
viding information; by the Hazardous and Solid Waste
(viii) Section 111(f) of the Act (42 Amendments, and the Federal Facility
U.S.C. 9611(f)), with respect to the des- Compliance Act (42 U.S.C. 6901 et seq.);
ignation of officials who may obligate (ii) Federal Water Pollution Preven-
money in the Hazardous Substances

Superfund; U.S.C. 1251 et seq.);
(ix) Section 113(k) of the Act (42 (iii) Safe Drinking Water Act, as
U.S.C. 9613(k)), with respect to estab- amended (42 U.S.C. 300f et seq.);
153
(iv) Clean Air Act, as amended (42 (1) Related to food and nutrition. (i)
U.S.C. 7401 et seq.); Administer the following legislation:
(v) Noise Control Act of 1972, as (A) The Food and Nutrition Act of
amended (42 U.S.C. 4901 et seq.); 2008, as amended (7 U.S.C. 2011–2036),
(vi) Toxic Substances Control Act, as except for section 25, regarding assist-
amended (15 U.S.C. 2601 et seq.); ance for community food projects.
(vii) Federal Insecticide, Fungicide, (B) Richard B. Russell National
and Rodenticide Act, as amended (7 School Lunch Act, as amended (42
U.S.C. 136 et seq.); and U.S.C. 1751–1769i), except procurement
(viii) Comprehensive Environmental of agricultural commodities and other
Response, Compensation, and Liability foods under section 6 thereof.
Act of 1980, as amended by the Super- (C) Child Nutrition Act of 1966, as
fund Amendments and Reauthorization amended (42 U.S.C. 1771–1790).
Act of 1986 (42 U.S.C. 9601 et seq.). (D) Sections 933–939 of the Food, Ag-
(7) Related to hazardous materials man- riculture, Conservation, and Trade Act
agement. (i) Serve on the USDA Haz- Amendments of 1991 (7 U.S.C. 5930
ardous Materials Policy Council. note).
(ii) Recommend actions and policies (E) Section 301 of the Healthy Meals
that enable the USDA agency under his for Healthy Americans Act of 1994
or her authority to comply with the in- (Pub. L. 103–448).
tent, purposes, and standards of envi- (F) Section 4402 of the Farm Security
ronmental laws for pollution preven- and Rural Investment Act of 2002 (7
tion, control, and abatement. U.S.C. 3007).
(iii) Consult with the United States (G) Section 4403 of the Farm Security
Environmental Protection Agency and and Rural Investment Act of 2002 (7
other appropriate Federal agencies in U.S.C. 3171 note).
developing pollution prevention, con- (H) Section 4404 of the Farm Security
trol, and abatement policies and pro- and Rural Investment Act of 2002 (2
grams relating to agencies under his or U.S.C. 1161).
her authority. (I) Section 4142 of the Food, Con-
(iv) Exercise primary responsibility servation, and Energy Act of 2008 (Pub.
to regulate drug, pesticide, and envi- L. 110–246).
ronmental contaminants in food prod- (J) Section 4301 of the Food, Con-
ucts as covered by the Federal Insecti- servation, and Energy Act of 2008 (42
cide, Fungicide, and Rodenticide Act, U.S.C. 1758a).
as amended (7 U.S.C. 136 et seq.), includ- (K) Section 4305 of the Food, Con-
ing the Food Quality Protection Act of servation, and Energy Act of 2008 (42
1996, Public Law 104–170, and the Toxic U.S.C. 1755a).
Substances Control Act, as amended (15 (L) Section 4307 of the Food, Con-
U.S.C. 2601 et seq.), as implemented by servation, and Energy Act of 2008 (Pub.
the Food Safety and Inspection Service L. 110–246).
through a Memorandum of Under- (M) Section 4405 of the Food, Con-
standing with the United States De- servation, and Energy Act of 2008 (7
partment of Health and Human Serv- U.S.C. 7517).
ices, Food and Drug Administration, (ii) Administer those functions relat-
and the United States Environmental ing to the distribution and donation of
Protection Agency. agricultural commodities and products
[60 FR 56393, Nov. 8, 1995, as amended at 65 thereof under the following legislation:
FR 12428, Mar. 9, 2000; 68 FR 27436, May 20, (A) Clause (3) of section 416(a) of the
2003; 74 FR 3402, Jan. 21, 2009] Agricultural Act of 1949, as amended (7
U.S.C. 1431(a)), except the estimate and
§ 2.19 Under Secretary for Food, Nutri- announcement of the types and vari-
tion, and Consumer Services. eties of food commodities, and the
(a) The following delegations of au- quantities thereof, to become available
for distribution thereunder;
thority are made by the Secretary of

Agriculture to the Under Secretary for (B) Section 709 of the Food and Agri-
Food, Nutrition, and Consumer Serv- culture Act of 1965, as amended (7
ices: U.S.C. 1446a–1);
154
(C) Section 32 of the Act of August 24, (vi) Administer those functions under
1935, as amended (7 U.S.C. 612c), as sup- title IV of the Personal Responsibility
plemented by the Act of June 28, 1937, and Work Opportunity Reconciliation
as amended (15 U.S.C. 713c), and related Act of 1996 (8 U.S.C. 1612) relating to
legislation; the eligibility of aliens for benefits
(D) Section 9 of the Act of September under the domestic food assistance pro-
6, 1958, as amended (7 U.S.C. 1431b); grams.
(E) Section 210 of the Agricultural (2) Related to consumer advice. (i) De-
Act of 1956 (7 U.S.C. 1859), except with velop and implement USDA policy and
respect to donations to Federal penal procedural guidelines for carrying out
and correctional institutions; the Department’s Consumer Affairs
(F) [Reserved] Plan.
(G) Section 311 of the Older Ameri- (ii) Advise the Secretary and other
cans Act of 1965, as amended (42 U.S.C. policy level officials of the Department
3030a); on consumer affairs policies and pro-
(H) Sections 412 and 413(b) of the Rob- grams.
ert T. Stafford Disaster Relief and (iii) Coordinate USDA consumer af-
Emergency Assistance Act (42 U.S.C. fairs activities and monitor and ana-
5179, 5180(b)); lyze agency procedures and perform-
(I) Sections 4 and 5 of the Agriculture ance.
and Consumer Protection Act of 1973, (iv) Represent the Department at
as amended (7 U.S.C. 612c note); conferences, meetings and other con-
(J) Section 1114 of the Agriculture tacts where consumer affairs issues are
and Food Act of 1981, as amended (7 discussed, including liaison with the
U.S.C. 1431e); White House and other governmental
(K) Section 1336 of the Agriculture agencies and departments.
and Food Act of 1981 (Pub. L. 97–98); (v) Work with the Office of Budget
(L) Emergency Food Assistance Act and Program Analysis and the Office of
of 1983 (7 U.S.C. 612c note); Communications to ensure coordina-
(M) Sections 3(b)–(i), 3A and 4 of the tion of USDA consumer affairs and
Commodity Distribution Reform Act public participation programs, policies
and WIC Amendments of 1987 (7 U.S.C. and information, and to prevent dupli-
612c note); and cation of responsibilities.
(N) Section 110 of the Hunger Preven- (vi) Serve as a consumer ombudsman
tion Act of 1988 (7 U.S.C. 612c note). and communication link between con-
(iii) Administer those functions re- sumers and the Department.
lating to the distribution of supple- (vii) Approve the designation of agen-
mental nutrition assistance program cy Consumer Affairs Contacts.
benefits under section 412 of the Robert (3) Related to human nutrition informa-
T. Stafford Disaster Relief and Emer- tion. (i) Develop techniques and equip-
gency Assistance Act (42 U.S.C. 5179). ment to assist consumers in the home
(iv) In connection with the functions and in institutions in selecting food
assigned in paragraphs (a)(1)(i), (ii) and that supplies a nutritionally adequate
(iii) of this section, relating to the dis- diet.
tribution and donation of agricultural (ii) Develop family food plans at dif-
commodities and products thereof and ferent costs for use as standards by
supplemental nutrition assistance pro- families of different sizes, sex-age com-
gram benefits to eligible recipients, au- position, and economic levels.
thority to determine the requirements (iii) Develop suitable and safe prepa-
for such agricultural commodities and ration and management procedures to
products thereof and supplemental nu- retain nutritional and eating qualities
trition assistance program benefits to of food served in homes and institu-
be so distributed. tions.
(v) Develop food plans for use in es- (iv) Develop materials to aid the pub-
tablishing supplemental nutrition as- lic in meeting dietary needs, with em-
sistance benefit levels, and assess the phasis on food selection for good nutri-
nutritional impact of Federal food pro- tion and appropriate cost, and food
grams. preparation to avoid waste, maximize
155
nutrient retention, minimize food safe- (2) [Reserved]

ty hazards, and conserve energy. [60 FR 56393, Nov. 8, 1995, as amended at 68
(v) Develop food plans for use in es- FR 27436, May 20, 2003; 74 FR 3402, Jan. 21,
tablishing food stamp benefit levels, 2009]
and assess the nutritional impact of
Federal food programs. § 2.20 Under Secretary for Natural Re-
(vi) Coordinate nutrition education sources and Environment.
promotion and professional education (a) The following delegations of au-
projects within the Department. thority are made by the Secretary of
(vii) Analyze data from food con- Agriculture to the Under Secretary for
sumption surveys in coordination with Natural Resources and Environment:
the Under Secretary for Research, Edu- (1) Related to environmental quality. (i)
cation, and Economics to provide a Administer the implementation of the
basis for evaluating dietary adequacy. National Environmental Policy Act for
(viii) Consult with the Federal and the United States Department of Agri-
State agencies, the Congress, univer- culture (USDA).
sities, and other public and private or- (ii) Represent USDA on Regional Re-
ganizations and the general public response Teams on hazardous spills and
garding household food consumption, oil spills pursuant to the Comprehen-
individual intake, and dietary ade- sive Environmental Response, Com-
quacy, and implications of the survey pensation, and Liability Act, as amend-
on public policy regarding food and nu- ed (42 U.S.C. 9601 et seq.), the Clean
trition policies (7 U.S.C. 3171–3175). Water Act, as amended (33 U.S.C. 1251
et seq.), the Oil Pollution Act (OPA), as
(ix) In conjunction with the Depart-
amended (33 U.S.C. 2701 et seq.), Execu-
ment of Health and Human Services,
tive Order 12580, 3 CFR, 1987 Comp., p.
administer section 4403 of the Food,
193, Executive Order 12777, 3 CFR, 1991
Conservation, and Energy Act of 2008 (7
Comp., p. 351, and the National Contin-
U.S.C. 5311a).
gency Plan, 40 CFR part 300.
(x) Enter into contracts, grants, and
(iii) Represent USDA in contacts
cooperative agreements in accordance
with the United States Environmental
with section 1472 of the National Agri-
Protection Agency, the Council on En-
cultural Research, Extension, and
vironmental Quality, and other organi-
Teaching Policy Act of 1977 (7 U.S.C.
zations or agencies on matters related
3318).
to assigned responsibilities.
(4) Related to committee management. (iv) Formulate and promulgate USDA
Establish and reestablish regional, policy relating to environmental activ-
State, and local advisory committees ity and natural resources.
for activities under his or her author- (v) Provide staff support for the Sec-
ity. This authority may not be redele- retary in the review of environmental
gated. impact statements.
(5) Related to defense and emergency (vi) Provide leadership in USDA for
preparedness. Administer responsibil- general land use activities including
ities and functions assigned under the implementation of Executive Order
Defense Production Act of 1950, as 11988, Flood Plain Management, 3 CFR,
amended (50 U.S.C. App. 2061 et seq.), 1977 Comp., p. 117, and Executive Order
and title VI of the Robert T. Stafford 11990, Protection of Wetlands, 3 CFR,
Disaster Relief and Emergency Assist- 1977 Comp., p. 121.
ance Act (42 U.S.C. 5195 et seq.), con- (vii) Take such action as may be nec-
cerning food stamp assistance. essary, including issuance of adminis-
(b) The following authority is re- trative orders, and enter into agree-
served to the Secretary of Agriculture: ments with any person to perform any
(1) Related to food and nutrition. Au- response action under sections 106(a)
thority to appoint the members of the and 122 (except subsection (b)(1)) of the
National Advisory Council on Mater- Comprehensive Environmental Re-
nal, Infant, and Fetal Nutrition as di- sponse, Compensation, and Liability
rected in section 17(k) of the Child Nu- Act of 1980, as amended (42 U.S.C.
trition Act of 1966, as amended (42 9606(a), 9622), pursuant to sections
U.S.C. 1786(k)). 4(c)(3) and 4(d)(3) of Executive Order
156
No. 12580, as amended by Executive 521), and special forest receipts acts, as
Order No. 13016, to be exercised only follows: (Pub. L. 337, 74th Cong., 49
with the concurrence of the General Stat. 866, as amended by Pub. L. 310,
Counsel. 78th Cong., 58 Stat. 227; Pub. L. 505,
(viii) Exercise the functions of the 75th Cong., 52 Stat. 347, as amended by
Secretary of Agriculture authorized in Pub. L. 310, 78th Cong., 58 Stat. 227;
Title V of the Department of the Inte- Pub. L. 634, 75th Cong., 52 Stat. 699, as
rior and Related Agencies Appropria- amended by Pub. L. 310, 78th Cong., 58
tions Act of 1998, Pub. L. 105–83, relat- Stat. 227; Pub. L. 748, 75th Cong., 52
ing to the acquisition of the New World Stat. 1205, as amended by Pub. L. 310,
Mine and other priority land acquisi- 78th Cong., 58 Stat. 227; Pub. L. 427,
tions, land exchanges, and other activi- 76th Cong., 54 Stat. 46; Pub. L. 589, 76th
ties. Cong., 54 Stat. 297; Pub. L. 591, 76th
(ix) Serve on the USDA Hazardous Cong., 54 Stat. 299; Pub. L. 637, 76th
Materials Policy Council. Cong., 54 Stat. 402; Pub. L. 781, 84th
(x) Recommend actions and policies Cong., 70 Stat. 632).
that enable agencies under his or her (iii) As necessary for administrative
authority to comply with the intent, purposes, divide into and designate as
purposes, and standards of environ- national forests any lands of 3,000 acres
mental laws for pollution prevention, or more which are acquired under or
control, and abatement. subject to the Weeks Act of March 1,
(xi) Consult with the United States 1911, as amended, and which are contig-
Environmental Protection Agency and uous to existing national forest bound-
other appropriate Federal agencies in aries established under the authority
developing pollution prevention, con- of the Weeks Act.
trol, and abatement policies and pro- (iv) Plan and administer wildlife and
grams relating to agencies under his or fish conservation rehabilitation and
her authority.
habitat management programs on Na-
(2) Related to forestry. (i) Provide na-
tional Forest System lands, pursuant
tional leadership in forestry. (As used
to 16 U.S.C. 670g, 670h, and 670o.
here and elsewhere in this section, the
term ‘‘forestry’’ encompasses renew- (v) For the purposes of the National
able and nonrenewable resources of for- Forest System Drug Control Act of 1986
ests, including lands governed by the (16 U.S.C. 559b-f), specifically designate
Alaska National Interest Lands Con- certain specially trained officers and
servation Act, forest-related rangeland, employees of the Forest Service, not
grassland, brushland, woodland, and al- exceeding 500, to have authority in the
pine areas including but not limited to performance of their duties within the
recreation, range, timber, minerals, boundaries of the National Forest Sys-
watershed, wildlife and fish; natural tem:
scenic, scientific, cultural, and historic (A) To carry firearms;
values of forests and related lands; and (B) To enforce and conduct investiga-
derivative values such as economic tions of violations of section 401 of the
strength and social well-being). Controlled Substance Act (21 U.S.C.
(ii) Protect, manage, and administer 841) and other criminal violations re-
the national forests, national forest lating to marijuana and other con-
purchase units, national grasslands, trolled substances that are manufac-
and other lands and interests in lands tured, distributed, or dispensed on Na-
administered by the Forest Service, tional Forest System lands;
which collectively are designated as (C) To make arrests with a warrant
the National Forest System. This dele- or process for misdemeanor violations,
gation covers the acquisition and dis- or without a warrant for violations of
position of lands and interests in lands such misdemeanors that any such offi-
as may be authorized for the protec- cer or employee has probable cause to
tion, management, and administration believe are being committed in that
of the National Forest System, includ- employee’s presence or view, or for a

ing the authority to approve acquisi- felony with a warrant or without a
tion of land under the Weeks Act of warrant if that employee has probable
March 1, 1911, as amended (16 U.S.C. cause to believe that the person being
157
arrested has committed or is commit- (xi) Coordinate activities with other

ting such a felony; agencies in USDA, other Federal and
(D) To serve warrants and other proc- State agencies, forestry schools, and
ess issued by a court or officer of com- private entities and individuals (16
petent jurisdiction; U.S.C. 1643).
(E) To search, with or without a war- (xii) Enter into contracts, grants,
rant or process, any person, place, or and cooperative agreements for the
conveyance according to Federal law or support of scientific research in for-
rule of law; and estry activities (7 U.S.C. 427i(a), 1624; 16
(F) To seize, with or without warrant U.S.C. 582a–8, 1643–1645, 1649).
or process, any evidentiary item ac- (xiii) Enter into cooperative research
cording to Federal law or rule of law. and development agreements with in-
(vi) Authorize the Forest Service to dustry, universities, and others; insti-
cooperate with the law enforcement of- tute a cash award program to reward
ficials of any Federal agency, State, or scientific, engineering, and technical
political subdivision, in the investiga- personnel; award royalties to inven-
tion of violations of, and enforcement tors; and retain and use royalty income
of, section 401 of the Controlled Sub- (15 U.S.C. 3710a–3710c).
stances Act (21 U.S.C. 841), other laws (xiv) Enter into contracts, grants, or
and regulations relating to marijuana cooperative agreements to further re-
and other controlled substances, and search, extension, or teaching pro-
State drug control laws or ordinances, grams in the food and agricultural
within the boundaries of the National sciences (7 U.S.C. 3152, 3318).
Forest System. (xv) Enter into cost-reimbursable
(vii) Administer programs under sec- agreements relating to agricultural re-
tion 23 of the Federal Highway Act (23 search, extension, or teaching activi-
U.S.C. 101(a), 120(f), 125(a)–(c), 138, ties (7 U.S.C. 3319a).
202(a)–(b), 203, 204(a)–(h), 205(a)–(d), 211, (xvi) Administer programs of cooper-
317, 402(a)). ative forestry assistance in the protec-
(viii) Exercise the administrative ap- tion, conservation, and multiple re-
peal functions of the Secretary of Agri- source management of forests and re-
culture in review of decisions of the lated resources in both rural and urban
Chief of the Forest Service pursuant to areas and forest lands in foreign coun-
36 CFR parts 215 and 217 and 36 CFR tries (16 U.S.C. 2101–2114).
part 251, subpart C. (xvii) Provide assistance to States
(ix) Conduct, support, and cooperate and other units of government in forest
in investigations, experiments, tests, resources planning and forestry rural
and other activities deemed necessary revitalization (7 U.S.C. 6601, 6611–6617;
to obtain, analyze, develop, dem- 16 U.S.C. 2107).
onstrate, and disseminate scientific in- (xviii) Conduct a program of tech-
formation about protecting, managing, nology implementation for State for-
and utilizing forest and rangeland re- estry personnel, private forest land-
newable resources in rural, suburban, owners and managers, vendors, forest
and urban areas in the United States operators, public agencies, and individ-
and foreign countries. The activities uals (16 U.S.C. 2107).
conducted, supported, or cooperated in (xix) Administer Rural Fire Protec-
shall include, but not be limited to: re- tion and Control Programs (16 U.S.C.
newable resource management re- 2106).
search, renewable resource environ- (xx) Provide technical assistance on
mental research; renewable resource forestry technology or the implemen-
protection research; renewable re- tation of the Conservation Reserve and
source utilization research, and renew- Softwood Timber Programs authorized
able resource assessment research (16 in sections 1231–1244 and 1254 of the
U.S.C. 1641–1647). Food Security Act of 1985 (16 U.S.C.
3831–3844; 7 U.S.C. 1981 note).
(x) Use authorities and means avail-

able to disseminate the knowledge and (xxi) Administer forest insect, dis-
technology developed from forestry re- ease, and other pest management pro-
search (16 U.S.C. 1645). grams (16 U.S.C. 2104).
158
(xxii) Exercise the custodial func- (B) Keeping a record of mapping done
tions of the Secretary for lands and in- by USDA agencies;
terests in lands under lease or contract (C) Preparing and submitting re-
of sale to States and local agencies quired USDA reports;
pursuant to title III of the Bankhead- (D) Serving as liaison on mapping
Jones Farm Tenant Act and administer with the Office of Management and
reserved and reversionary interests in Budget, Department of Interior, and
lands conveyed under that Act (7 other departments and establishments;
U.S.C. 1010–1012). (E) Promoting interchange of tech-
(xxiii) Under such general program nical mapping information, including
criteria and procedures as may be es- techniques which may reduce costs or
tablished by the Natural Resources improve quality; and
Conservation Service: (F) Maintaining the mapping records
(A) Administer the forestry aspects formerly maintained by the Office of
of the programs listed in paragraphs Operations.
(a)(2)(xxiii)(A)(1), (2) and (3) of this sec- (xxvii) Administer the radio fre-
tion on the National Forest System, quency licensing work of USDA, in-
rangelands with national forest bound- cluding:
aries, adjacent rangelands which are
(A) Representing USDA on the Inter-
administered under formal agreement,
departmental Radio Advisory Com-
and other forest lands;
mittee and its Frequency Assignment
(1) The cooperative river basin sur-
Subcommittee of the National Tele-
veys and investigations program (16
communications and Information Ad-
U.S.C. 1006);
ministration, Department of Com-
(2) The Eleven Authorized Watershed
merce;
Improvement Programs and Emer-
(B) Establishing policies, standards,
gency Flood Prevention Measures Pro-
and procedures for allotting and as-
gram under the Flood Control Act (33
signing frequencies within USDA and
U.S.C. 701b–1); and
for obtaining effective utilization of
(3) The Small Watershed Protection
them;
Program under the Pilot Watershed
Protection and Watershed Protection (C) Providing licensing action nec-
and Flood Prevention Acts (7 U.S.C. essary to assign radio frequencies for
701a-h; 16 U.S.C. 1001–1009); and use by the agencies of USDA and main-
(B) Exercise responsibility in connec- tenance of the records necessary in
tion with the forestry aspects of the connection therewith;
Resource Conservation and Develop- (D) Providing inspection of USDA’s
ment Program authorized by title III of radio operations to ensure compliance
the Bankhead-Jones Farm Tenant Act with national and international regula-
(7 U.S.C. 1011(e)). tions and policies for radio frequency
(xxiv) Provide assistance to the Farm use; and
Service Agency in connection with the (E) Representing USDA in all mat-
Agricultural Conservation Program, ters relating to responsibilities and au-
the Naval Stores Conservation Pro- thorities under the Federal Water
gram, and the Cropland Conversion Power Act, as amended (16 U.S.C. 791–
Program (16 U.S.C. 590g-q). 823).
(xxv) Provide assistance to the Rural (xxviii) [Reserved]
Housing Service in connection with (xxix) Administer the Youth Con-
grants and loans under authority of servation Corps Act (42 U.S.C. precede
section 303 of the Consolidated Farm 2711 note) for USDA.
and Rural Development Act, 7 U.S.C. (xxx) Establish and operate the Job
1923; and consultation with the Depart- Corps Civilian Conservation Centers on
ment of Housing and Urban Develop- National Forest System lands as au-
ment under the authority of 40 U.S.C. thorized by title I, sections 106 and 107
461(e). of the Economic Opportunity Act of
(xxvi) Coordinate mapping work of 1964 (42 U.S.C. 2716–2717), in accordance

USDA including: with the terms of an agreement dated
(A) Clearing mapping projects to pre- May 11, 1967, between the Secretary of
vent duplication; Agriculture and the Secretary of
159
Labor; and administration of other co- international programs for the man-
operative manpower training and work agement and protection of forests,
experience programs where the Forest rangelands, wildlife, fisheries and re-
Service serves as host or prime sponsor lated natural resources (16 U.S.C. 4501–
with other Departments of Federal, 4505).
State, or local governments. (xxxix) Enter into pilot projects with
(xxxi) Administer the Volunteers in the Bureau of Land Management
the National Forests Act of 1972 (16 (BLM), U.S. Department of the Inte-
U.S.C. 558a–558d, 558a note). rior, in support of the Service First ini-
(xxxii) Exercise the functions of the tiative for the purpose of promoting
Secretary of Agriculture authorized in customer service and efficiency in
the Alaska National Interest Lands managing National Forest System
Conservation Act (16 U.S.C. 3101–3215). lands and public lands and delegate to
(xxxiii) Exercise the functions of the BLM employees those Forest Service
Secretary as authorized in the Wild authorities necessary to carry out pilot
and Scenic Rivers Act (16 U.S.C. 1271– projects (Public Law 106–291).
1278). (xl) At the request of the Director,
(xxxiv) Jointly administer gypsy Homeland Security Staff (Director),
moth eradication activities with the designate law enforcement personnel of
Assistant Secretary for Marketing and the Forest Service to assist the Direc-
Regulatory Programs, under the au- tor in providing for the personal secu-
thority of section 102 of the Organic rity for the Secretary and the Deputy
Act of 1944, as amended; and the Act of Secretary in the National Forest Sys-
April 6, 1937, as amended (7 U.S.C. 147a, tem.
148, 148a–148e); and the Talmadge Aiken (xli) Implement the information dis-
Act (7 U.S.C. 450), by assuming primary closure authorities of section
responsibility for treating isolated 1619(b)(3)(A) of the Food, Conservation,
gypsy moth infestations on Federal and Energy Act of 2008 (7 U.S.C.
lands, and on State and private lands 8791(b)(3)(A)).
contiguous to infested Federal lands, (xlii) Administer a program for pro-
and any other infestations over 640 viding loans to eligible units of local
acres on State and private lands. government to finance the purchase of
(xxxv) Exercise the functions of the equipment to monitor, remove, dispose
Secretary authorized in the Federal of, and replace infested trees located
Onshore Oil and Gas Leasing Reform under their jurisdiction and within the
Act of 1987 (30 U.S.C. 226 et seq.). borders of quarantined areas (16 U.S.C.
(xxxvi) Administer the Public Lands 2104a).
Corps program (16 U.S.C. 1721 et seq.) (xliii) Conduct a competitive re-
for USDA consistent with the Depart- search and development program to en-
ment’s overall national service pro- courage the use of forest biomass for
gram. energy (7 U.S.C. 8112).
(xxxvii) Jointly administer the For- (xliv) Administer the community
estry Incentives Program with the Nat- wood energy program providing grants
ural Resources Conservation Service, for community wood energy plans and
in consultation with State Foresters, energy systems (7 U.S.C. 8113).
under section 4 of the Cooperative For- (3) Related to natural resources con-
estry Assistance Act of 1978 (16 U.S.C. servation. (i) Provide national leader-
2103). ship in the conservation, development
(xxxviii) Focusing on countries that and productive use of the Nation’s soil,
could have a substantial impact on water, and related resources. Such
global warming, provide assistance leadership encompasses soil, water,
that promotes sustainable development plant, and wildlife conservation; small
and global environmental stability; watershed protection and flood preven-
share technical, managerial, extension, tion; and resource conservation and de-
and administrative skills; provide edu- velopment. Integrated in these pro-
cation and training opportunities; en- grams are erosion control, sediment re-
gage in scientific exchange; and co- duction, pollution abatement, land use
operate with domestic and inter- planning, multiple use, improvement of
national organizations that further water quality, and several surveying
160
and monitoring activities related to (4) Assistance in developing programs

environmental improvement. All are relating to natural beauty; and
designed to assure: (5) Assistance to other USDA agen-
(A) Quality in the natural resource cies in connection with the administra-
base for sustained use; tion of their programs, as follows:
(B) Quality in the environment to (i) To the Farm Service Agency in
provide attractive, convenient, and sat- the development and technical serv-
isfying places to live, work, and play; icing of certain programs, such as the
and Agricultural Conservation Program
(C) Quality in the standard of living and other such similar conservation
based on community improvement and programs;
adequate income. (ii) To the Rural Housing Service in
(ii) Provide national leadership in connection with their loan and land
and evaluate and coordinate land use disposition programs;
policy, and administer the Farmland (B) Soil Surveys, including:
Protection Policy Act (7 U.S.C. 4201 et (1) Providing leadership for the Fed-
seq.), including the Farms for the Fu- eral part of the National Cooperative
ture Program authorized by sections Soil Survey which includes conducting
1465–1470 of the Food, Agriculture, Con- and publishing soil surveys;
servation, and Trade Act of 1990, as (2) Conducting soil surveys for re-
amended (7 U.S.C. 4201 note), except as source planning and development; and
otherwise delegated to the Under Sec-
(3) Performing the cartographic serv-
retary for Research, Education, and
ices essential to carrying out the func-
Economics in § 2.21(a)(1)(lxii).
tions of the Natural Resources Con-
(iii) Administer the basic program of
servation Service, including furnishing
soil and water conservation under Pub.
photographs, mosaics, and maps;
L. No. 46, 74th Congress, as amended,
(C) Conducting and coordinating
and related laws (16 U.S.C. 590 a-f, i-l,
snow surveys and making water supply
q, q-1; 42 U.S.C. 3271–3274; 7 U.S.C. 2201),
forecasts pursuant to Reorganization
including:
Plan No. IV of 1940 (5 U.S.C. App.);
(A) Technical and financial assist-
ance to land users in carrying out lo- (D) Operating plant materials centers
cally adapted soil and water conserva- for the assembly and testing of plant
tion programs primarily through soil species in conservation programs, in-
and water conservation districts in the cluding the use, administration, and
several States, the District of Colum- disposition of lands under the adminis-
bia, the Commonwealth of Puerto Rico, tration of the Natural Resources Con-
and the Commonwealth of the North- servation Service for such purposes
ern Mariana Islands, American Samoa, under title III of the Bankhead-Jones
Guam, the Virgin Islands, and Feder- Farm Tenant Act (7 U.S.C. 1010–1011);
ally recognized Native American and
tribes, but also to communities, water- (E) Providing leadership in the
shed groups, Federal and State agen- inventorying and monitoring of soil,
cies, and other cooperators. This au- water, land, and related resources of
thority includes such assistance as: the Nation.
(1) Comprehensive planning assist- (iv) Administer the Watershed Pro-
ance in nonmetropolitan districts; tection and Flood Prevention Pro-
(2) Assistance in the field of income- grams, including:
producing recreation on rural non-Fed- (A) The eleven authorized watershed
eral lands; projects authorized under 33 U.S.C.
(3) Forestry assistance, as part of 702b–1;
total technical assistance to private (B) The emergency flood control
land owners and land users when such work under 33 U.S.C. 701b–1;
services are an integral part of land (C) The Cooperative River Basin Sur-
management and such services are not veys and Investigations Programs
under 16 U.S.C. 1006;
available from a State agency; and for-

estry services in connection with (D) The pilot watershed projects
windbreaks and shelter belts to prevent under 16 U.S.C. 590 a-f and 16 U.S.C.
wind and water erosion of lands; 1001–1009;
161
(E) The Watershed Protection and (xi) Administer the search and rescue
Flood Prevention Program under 16 operations authorized under 7 U.S.C.
U.S.C. 1001–1010, including rehabilita- 2273.
tion of water resource structural meas- (xii) Administer section 202(c) of the
ures constructed under certain Depart- Colorado River Basin Salinity Control
ment of Agriculture programs under 16 Act, 43 U.S.C. 1592(c), including:
U.S.C. 1012, except for responsibilities (A) Identify salt source areas and de-
assigned to the Under Secretary for termine the salt load resulting from ir-
Rural Development. rigation and watershed management
(F) The joint investigations and sur- practices;
veys with the Department of the Army (B) Conduct salinity control studies
under 16 U.S.C. 1009; and of irrigated salt source areas;
(G) The Emergency Conservation (C) Provide technical and financial
Program and the Emergency Water- assistance in the implementation of sa-
shed Protection Program under sec- linity control projects including the
tions 401–405 of the Agricultural Credit development of salinity control plans,
Act of 1978, 16 U.S.C. 2201–2205, except technical services for application, and
for the provisions of sections 401 and certification of practice applications;
402, 16 U.S.C. 2201–2202, as administered (D) Develop plans for implementing
by the Under Secretary for Farm and measures that will reduce the salt load
Foreign Agricultural Services. of the Colorado River;
(E) Develop and implement long-term
(v) Administer the Great Plains Con-
monitoring and evaluation plans to
servation Program and the Critical
measure and report progress and ac-
Lands Resources Conservation Pro-
complishments in achieving program
gram under 16 U.S.C. 590p(b), 590q and
objectives; and
590q–3.
(F) Enter into and administer con-
(vi) Administer the Resource Con- tracts with program participants and
servation and Development Program waive cost-sharing requirements when
under 16 U.S.C. 590 a–f; 7 U.S.C. 1010– such cost-sharing requirements would
1011; and 16 U.S.C. 3451–3461, except for result in a failure to proceed with need-
responsibilities assigned to the Under ed on-farm measures.
Secretary for Rural Economic and (xiii) Except as otherwise delegated,
Community Development. administer natural resources conserva-
(vii) Responsibility for entering into tion authorities, including authorities
long-term contracts for carrying out related to programs of the Commodity
conservation and environmental meas- Credit Corporation that provide assist-
ures in watershed areas. ance with respect to natural resources
(viii) Provide national leadership for conservation, under Title XII of the
and administer the Soil and Water Re- Food Security Act of 1985 (the Act), as
sources Conservation Act of 1977 (16 amended (16 U.S.C. 3801 et seq.), includ-
U.S.C. 2001 et seq.). ing the following:
(ix) Administer the Rural Clean (A) Technical assistance related to
Water Program and other responsibil- the conservation of highly erodible
ities assigned under section 35 of the lands and wetlands pursuant to sec-
Clean Water Act of 1977 (33 U.S.C. 1251 tions 1211–1223 of the Act (16 U.S.C.
et seq.). 3811–3823).
(x) Monitor actions and progress of (B) Technical assistance related to
USDA in complying with Executive the Conservation Reserve Program au-
Order 11988, Flood Plain Management, 3 thorized by sections 1231–1235A of the
CFR, 1977 Comp., p. 117, and Executive Act (16 U.S.C. 3831–3835a).
Order 11990, Protection of Wetlands, 3 (C) The Wetlands Reserve Program
CFR, 1977 Comp., p. 121, regarding man- and the Emergency Wetlands Reserve
agement of floodplains and protection Program authorized by sections 1237–
of wetlands; monitor USDA efforts on 1237F of the Act (16 U.S.C. 3837–3837f)
protection of important agricultural, and the Emergency Supplemental Ap-

forest and rangelands; and provide staff propriations for Relief from the Major,
assistance to the USDA Natural Re- Widespread Flooding in the Midwest
sources and Environment Committee. Act, Public Law 103–75.
162
(D) The Conservation Security Pro- (Q) The Grassland Reserve Program
gram authorized by sections 1238–1238C under sections 1238N–1238Q of the Act
(16 U.S.C. 3838–3838c) and the Conserva- (16 U.S.C. 3838n–3838q) in cooperation
tion Stewardship Program authorized with the Under Secretary for Farm and
by sections 1238D–1238G (16 U.S.C. Foreign Agricultural Services.
3838d–3838g). (R) The authority in section 1241 of
(E) The Farmland Protection Pro- the Act (16 U.S.C. 3841) to accept and
gram authorized by sections 1238H– use voluntary contributions of non-
1238I of the Act (16 U.S.C. 3838h–3838i). Federal funds in support of natural re-
(F) The Farm Viability Program au- sources conservation programs under
thorized by section 1238J of the Act (16 subtitle D of title XII of the Act with
U.S.C. 3838j). respect to authorities delegated to the
(G) The Environmental Easement Under Secretary for Natural Resources
Program authorized by sections 1239– and Environment.
1239D of the Act (16 U.S.C. 3839–3839d). (xiv) Approve and transmit to the
(H) The Environmental Quality In- Congress comprehensive river basin re-
centives Program authorized by sec- ports.
tions 1240–1240I of the Act (16 U.S.C. (xv) Provide representation on the
3839aa–3839aa–9). Water Resources Council and river
basin commissions created by 42 U.S.C.
(I) The conservation of private graz-
1962, and on river basin interagency
ing lands authorized by section 1240M
committees.
of the Act (16 U.S.C. 3839bb).
(xvi) Administer the following provi-
(J) The Wildlife Habitat Incentives
sions of the Farm Security and Rural
Program authorized by section 1240N of
Investment Act of 2002 with respect to
the Act (16 U.S.C. 3839bb–1).
functions otherwise delegated to the
(K) The program for soil erosion and Under Secretary for Natural Resources
sedimentation control in the Great and Environment:
Lakes basin authorized by section (A) The equitable relief provisions of
1240P of the Act (16 U.S.C. 3839bb–3). section 1613 (7 U.S.C. 7996).
(L) The delivery of technical assist- (B) The tracking of benefits under
ance under section 1242 of the Act (16 section 1614 (7 U.S.C. 7997).
U.S.C. 3842), including the approval of (C) The development of a plan and re-
persons or entities outside of USDA to lated report to coordinate land retire-
provide technical services. ment and agricultural working land
(M) The authority for partnerships conservation programs under section
and cooperation provided by section 2005 (16 U.S.C. 3801 note).
1243 of the Act (16 U.S.C. 3843), except (xvii) Administer the Water Bank
for responsibilities assigned to the Program under the Water Bank Act (16
Under Secretary for Farm and Foreign U.S.C. 1301 et seq.).
Agricultural Services. (xviii) Administer the agricultural
(N) The incentives for certain farm- management assistance provisions of
ers and ranchers and Indian tribes and section 524(b) of the Federal Crop In-
the protection of certain proprietary surance Act, as amended (7 U.S.C.
information related to natural re- 1524(b)), except for responsibilities as-
sources conservation programs as pro- signed to the Under Secretary for Farm
vided by section 1244 of the Act (16 and Foreign Agricultural Services.
U.S.C. 3844), except for responsibilities (xix) Coordinate USDA input and as-
assigned to the Under Secretary for sistance to the Department of Com-
Farm and Foreign Agricultural Serv- merce and other Federal agencies con-
ices. sistent with section 307 of the Coastal
(O) The Agriculture Conservation Ex- Zone Management Act of 1972 (16 U.S.C.
perienced Services Program authorized 1456), and coordinate USDA review of
by section 1252 of the Act (16 U.S.C. qualifying state and local government
3851). coastal management plans or programs
(P) The authority under sections prepared under such Act and submitted
1261–1262 of the Act (16 U.S.C. 3861–3862) to the Secretary of Commerce, con-
to establish and utilize State Technical sistent with section 306(a) and (c) of
Committees. such Act (16 U.S.C. 1455(a) and (c)).
163
(xx) Administer the Healthy Forests Pollution Control Act (33 U.S.C.
Reserve Program authorized by sec- 1321(f)(5)), and section 1006(b)(2) of the
tions 501–508, Title V of the Healthy Oil Pollution Act of 1990 (33 U.S.C.
Forests Restoration Act of 2003 (16 2706(b)(2)).
U.S.C. 6571–6578). (ii) With respect to land and facilities
(xxi) Implement the information dis- under his or her authority, to exercise
closure authorities of section the functions delegated to the Sec-
1619(b)(3)(A) of the Food, Conservation, retary by Executive Order 12580, 3 CFR,
and Energy Act of 2008 (7 U.S.C. 1987 Comp., p. 193, under the following
8791(b)(3)(A)). provisions of the Comprehensive Envi-
(xxii) In coordination with the As- ronmental Response, Compensation,
sistant Secretary for Administration, and Liability Act of 1980 (‘‘the Act’’),
issue receipts under section 2501A(e) of as amended:
the Food, Agriculture, Conservation, (A) Sections 104(a), (b), and (c)(4) of
and Trade Act of 1990 (7 U.S.C. 2279– the Act (42 U.S.C. 9604(a), (b), and
1(e)). (c)(4)), with respect to removal and re-
(xxiii) Authorize employees of the medial actions in the event of release
Natural Resources Conservation Serv- or threatened release of a hazardous
ice to carry and use firearms for per- substance, pollutant, or contaminant
sonal protection while conducting field into the environment;
work in remote locations in the per- (B) Sections 104(e)–(h) of the Act (42
formance of their official duties (7 U.S.C. 9604(e)–(h)), with respect to in-
U.S.C. 2274a). formation gathering and access re-
(4) Related to committee management. quests and orders; compliance orders;
Establish and reestablish regional, compliance with Federal health and
state, and local advisory committees safety standards and wage and labor
for activities under his or her author- standards applicable to covered work;
ity. This authority may not be redele- and emergency procurement powers;
gated. (C) Section 104(i)(11) of the Act (42
(5) Related to defense and emergency U.S.C. 9604(i)(11)), with respect to the
preparedness. Administer responsibil- reduction of exposure to significant
ities and functions assigned under the risk to human health;
Defense Production Act of 1950, as (D) Section 104(j) of the Act (42 U.S.C.
amended (50 U.S.C. App. 2061 et seq.) 9604(j)), with respect to the acquisition
and title VI of the Robert T. Stafford of real property and interests in real
Disaster Relief and Emergency Assist- property required to conduct a reme-
ance Act (42 U.S.C. 5195 et seq.), relat- dial action;
ing to agricultural land and water, for- (E) The first two sentences of section
ests and forest products, rural fire de- 105(d) of the Act (42 U.S.C. 9605(d)),
fense, and forestry research. with respect to petitions for prelimi-
(6) Related to surface mining control nary assessment of a release or threat-
and reclamation. Administer respon- ened release;
sibilities and functions assigned to the (F) Section 105(f) of the Act (42 U.S.C.
Secretary of Agriculture under the 9605(f)), with respect to consideration
Surface Mining Control and Reclama- of the availability of qualified minor-
tion Act of 1977 (30 U.S.C. 1201 et seq.). ity firms in awarding contracts, but ex-
(7) Related to environmental response. cluding that portion of section 105(f) of
(i) With respect to land and facilities the Act pertaining to the annual report
under his or her authority, to exercise to Congress;
the functions delegated to the Sec- (G) Section 109 of the Act (42 U.S.C.
retary by Executive Order 12580, 3 CFR, 9609), with respect to the assessment of
1987 Comp., p. 193, and Executive Order civil penalties for violations of section
12777, 3 CFR, 1991 Comp., p. 351, to act 122 of the Act (42 U.S.C. 9622), and the
as Federal trustee for natural re- granting of awards to individuals pro-
sources in accordance with section viding information;
107(f) of the Comprehensive Environ- (H) Section 111(f) of the Act (42 U.S.C.
mental Response, Compensation, and 9611(f)), with respect to the designation
Liability Act of 1980 (42 U.S.C. 9607(f)), of officials who may obligate money in
section 311(f)(5) of the Federal Water the Hazardous Substances Superfund;
164
(I) Section 113(g) of the Act (42 U.S.C. applicable pollution control standards
9613(g)), with respect to receiving noti- established pursuant to the following:
fication of a natural resource trustee’s (i) Solid Waste Disposal Act, as
intent to file suit; amended by the Resource Conservation
(J) Section 113(k) of the Act (42 and Recovery Act, the Hazardous and
U.S.C. 9613(k)), with respect to estab- Solid Waste Amendments, and the Fed-
lishing an administrative record upon eral Facility Compliance Act (42 U.S.C.
which to base the selection of a re- 6901 et seq.);
sponse action and identifying and noti- (ii) Federal Water Pollution Preven-
fying potentially responsible parties; tion and Control Act, as amended (33
(K) Section 116(a) of the Act (42 U.S.C. 1251 et seq.);
U.S.C. 9616(a)), with respect to prelimi- (iii) Safe Drinking Water Act, as
nary assessment and site inspection of amended (42 U.S.C. 300f et seq.);
facilities; (iv) Clean Air Act, as amended (42
(L) Section 117(a) and (c) of the Act U.S.C. 7401 et seq.);
(42 U.S.C. 9617(a) and (c)), with respect (v) Noise Control Act of 1972, as
to public participation in the prepara- amended (42 U.S.C. 4901 et seq.);
tion of any plan for remedial action (vi) Toxic Substances Control Act, as
and explanation of variances from the amended (15 U.S.C. 2601 et seq.);
final remedial action plan for any re- (vii) Federal Insecticide, Fungicide,
medial action or enforcement action, and Rodenticide Act, as amended (7
including any settlement or consent U.S.C. 136 et seq.); and
decree entered into; (viii) Comprehensive Environmental
(M) Section 119 of the Act (42 U.S.C. Response, Compensation, and Liability
9619), with respect to indemnifying re- Act of 1980, as amended by the Super-
sponse action contractors; fund Amendments and Reauthorization
(N) Section 121 of the Act (42 U.S.C. Act of 1986 (42 U.S.C. 9601 et seq.).
9621), with respect to cleanup stand- (9) Related to historic preservation. Ad-
ards; and minister the implementation of the
(O) Section 122 of the Act (42 U.S.C. National Historic Preservation Act of
9622), with respect to settlements, but 1966, 16 U.S.C. 470 et seq., Executive
excluding section 122(b)(1) of the Act Order 11593, 3 CFR, 1971–1975 Comp., p.
559, and regulations of the Advisory
(42 U.S.C. 9622(b)(1)), relating to mixed
Council on Historic preservation, 36
funding agreements.
CFR part 800, for the Department of
(iii) With respect to land and facili-
Agriculture with authority to name
ties under his or her authority, to exer-
the Secretary’s designee to the Advi-
cise the authority vested in the Sec-
sory Council on Historic Preservation.
retary of Agriculture to act as the
(b) The following authorities are re-
‘‘Federal Land Manager’’ pursuant to
served to the Secretary of Agriculture:
the Clean Air Act, as amended (42 (1) Related to natural resource con-
U.S.C. 7401 et seq.). servation. Designation of new project
(8) Related to compliance with environ- areas in which the resource conserva-
mental laws. With respect to facilities tion and development program assist-
and activities under his or her author- ance will be provided.
ity, to exercise the authority of the (2) [Reserved]
Secretary of Agriculture pursuant to
section 1–102 related to compliance [60 FR 56393, Nov. 8, 1995, as amended at 62
with applicable pollution control FR 1031, Jan. 8, 1997; 64 FR 32797, June 18,
1999; 64 FR 34967, June 30, 1999; 65 FR 12428,
standards and section 1–601 of Execu- Mar. 9, 2000; 67 FR 59135, Sept. 30, 2002; 68 FR
tive Order 12088, 3 CFR, 1978 Comp., p. 27437, May 20, 2003; 69 FR 34252, June 21, 2004;
243, to enter into an inter-agency 72 FR 36859, July 6, 2007; 74 FR 3403, Jan. 21,
agreement with the United States En- 2009; 75 FR 43368, July 23, 2010]
vironmental Protection Agency, or an
administrative consent order or a con- § 2.21 Under Secretary for Research,
sent judgment in an appropriate United Education, and Economics.
States District Court with an appro- (a) The following delegations of au-
priate State, interstate, or local agen- thority are made by the Secretary of
cy, containing a plan and schedule to Agriculture to the Under Secretary for
achieve and maintain compliance with Research, Education, and Economics
165
(who holds the title of Chief Scientist (v) Conduct research on the control
of the Department). of undesirable species of honey bees in
(1) Related to research, extension, and cooperation with specific foreign gov-
education.(i) Direct, coordinate and ernments (7 U.S.C. 284).
provide national leadership and sup- (vi) Administer the appropriation for
port for research, extension and teach- the endowment and maintenance of
ing programs in the food and agricul- colleges for the benefit of agriculture
tural sciences to meet major needs and and the mechanical arts (7 U.S.C. 321–
challenges in development of new food 326a).
and fiber; food and agriculture viabil- (vii) Administer teaching funds au-
ity and competitiveness in the global thorized by section 22 of the Bankhead
economy; enhancing economic opportu- Jones Act, as amended (7 U.S.C. 329).
nities and quality of life for rural (viii) Administer a Cooperative Agri-
America; food and agricultural system cultural Extension Program in accord-
productivity and development of new ance with the Smith-Lever Act, as
crops and new uses; the environment amended (7 U.S.C. 341–349).
and natural resources; or the pro- (ix) Cooperate with the States for the
motion of human health and welfare purpose of encouraging and assisting
pursuant to the National Agricultural them in carrying out research related
Research, Extension, and Teaching to the problems of agriculture in its
Policy of 1977, as amended (7 U.S.C. broadest aspects under the Hatch Act,
3101 et seq.). as amended (7 U.S.C. 361a–361i).
(ii) Provide national leadership and (x) Evaluate, assess, and report to
support for research, extension, and congressional agriculture committees
teaching programs in the food and agri- on the merits of proposals for agricul-
cultural sciences to carry out sustain- tural research facilities in the States,
able agriculture research and edu- and ensure that each research activity
cation; a National Plant Genetic Re- conducted by an Agricultural Research
sources Program; a national agricul- Service facility serves a national or
tural weather information system; re- multistate need (7 U.S.C. 390 et seq.).
search regarding the production, prepa- (xi) Conduct research concerning do-
ration, processing, handling, and stor- mestic animals and poultry, their pro-
age of agricultural products; a Plant tection and use, the causes of con-
and Animal Pest and Disease Control tagious, infectious, and communicable
Program; and any other provisions pur- diseases, and the means for the preven-
suant to title XVI of the Food, Agri- tion and cure of the same (7 U.S.C. 391).
culture, Conservation, and Trade Act (xii) Conduct research related to the
of 1990 (Pub. L. No. 101–624, 104 Stat. dairy industry and to the dissemina-
3703), except the provisions relating to tion of information for the promotion
the USDA Graduate School in section of the dairy industry (7 U.S.C. 402).
1669 and the provisions relating to al- (xiii) Conduct research and dem-
ternative agricultural research and onstrations at Mandan, ND, related to
commercialization under sections 1657– dairy livestock breeding, growing, and
1664 (7 U.S.C. 5801 et seq.). feeding, and other problems pertaining
(iii) Coordinate USDA policy and to the establishment of the dairy and
conduct programs relative to the Fed- livestock industries (7 U.S.C. 421–422).
eral Insecticide, Fungicide, and (xiv) Conduct research on new uses
Rodenticide Act, as amended (7 U.S.C. for cotton and on cotton ginning and
136 et seq.) and coordinate the Depart- processing (7 U.S.C. 423–424).
ment’s Integrated Pest Management (xv) Administer and conduct research
Programs and the Pesticide Assess- into the basic problems of agriculture
ment Program (7 U.S.C. 136–136y). in its broadest aspects, including, but
(iv) Carry out research, technology not limited to, production, marketing
development, technology transfer, and (other than statistical and economic
demonstration projects related to the research but including research related
economic feasibility of the manufac- to family use of resources), distribu-

ture and commercialization of natural tion, processing, and utilization of
rubber from plants containing hydro- plant and animal commodities; prob-
carbons (7 U.S.C. 178–178n). lems of human nutrition; development
166
of markets for agricultural commod- (xxvii) Conduct research to develop

ities; discovery, introduction, and and determine methods for the humane
breeding of new crops, plants, and ani- slaughter of livestock (7 U.S.C. 1904).
mals, both foreign and native; con- (xxviii) Administer a competitive
servation development; and develop- grant program for nonprofit institu-
ment of efficient use of farm buildings, tions to establish and operate centers
homes, and farm machinery except as for rural technology or cooperative de-
otherwise delegated in § 2.22(a)(1)(ii) velopment (7 U.S.C. 1932(f)).
and § 2.79(a)(2) (7 U.S.C. 427, 1621–1627, (xxix) Administer a Nutrition Edu-
1629, 2201, and 2204). cation Program for Food Stamp recipi-
(xvi) Conduct research on varietal ents and for the distribution of com-
improvement of wheat and feed grains modities on reservations (7 U.S.C.
to enhance their conservation and en- 2020(f)).
vironmental qualities (7 U.S.C. 428b). (xxx) Conduct education and exten-
(xvii) [Reserved] sion programs and a pilot project re-
(xviii) Enter into agreements with lated to nutrition education (7 U.S.C.
and receive funds from any State, 2027(a) and 5932).
other political subdivision, organiza- (xxxi) [Reserved]
tion, or individual for the purpose of (xxxii) Develop and maintain na-
conducting cooperative research tional and international library and in-
projects (7 U.S.C. 450a). formation systems and networks and
(xix) Carry out a program (IR–4 Pro- facilitate cooperation and coordination
gram) for the collection of residue and of the agricultural libraries of colleges,
efficacy data in support of minor use universities, USDA, and their closely
pesticide registration or reregistration allied information gathering and dis-
and to determine tolerances for minor semination units in conjunction with
use chemical residues in or on agricul- private industry and other research li-
tural commodities (7 U.S.C. 450i). braries (7 U.S.C. 2201, 2204, 3125a, and
(xx) Administer the Agriculture and 3126).
Food Research Initiative for competi- (xxxiii) Accept gifts and order dis-
tive grants for fundamental and ap- bursements from the Treasury for car-
plied research, extension, and edu- rying out of National Agricultural Li-
cation to address food and agricultural brary (NAL) functions (7 U.S.C. 2264–
sciences; administer a program of mak- 2265).
ing special grants for research, exten- (xxxiv) Propagate bee-breeding stock
sion, or education activities (7 U.S.C. and release bee germplasm to the pub-
450i(b), (c)). lic (7 U.S.C. 283).
(xxi)–(xxii) [Reserved] (xxxv) Administer, in cooperation
(xxiii) Conduct research related to with land-grant colleges and univer-
soil and water conservation, engineer- sities where applicable, a rural devel-
ing operations, and methods of cultiva- opment research and extension pro-
tion to provide for the control and pre- gram, a small farm research and exten-
vention of soil erosion (7 U.S.C. 1010 sion program, and a rural health and
and 16 U.S.C. 590a). safety education program under the
(xxiv) Maintain four regional re- Rural Development Act of 1972, as
search laboratories and conduct re- amended (7 U.S.C. 2661–2667).
search at such laboratories to develop (xxxvi) Administer a cooperative ex-
new scientific, chemical, and technical tension program under the Farmer-to-
uses and new and extended markets Consumer Direct Marketing Act of 1976
and outlets for farm commodities and (7 U.S.C. 3004).
products and the byproducts thereof (7 (xxxvii) Coordinate the development
U.S.C. 1292). and carrying out by Department agen-
(xxv) Conduct a Special Cotton Re- cies of all matters and functions per-
search Program designed to reduce the taining to agricultural research con-
cost of producing upland cotton in the ducted or funded by the Department in-
United States (7 U.S.C. 1441 note). volving biotechnology, including the
(xxvi) [Reserved] development and implementation of
167
guidelines for oversight of research ac- ondary education and 2-year postsec-
tivities, acting as liaison on all mat- ondary education, including grants to
ters and functions pertaining to agri- public secondary schools, institutions
cultural research in biotechnology be- of higher education that award an asso-
tween agencies within the Department ciate’s degree, other institutions of
and between the Department and other higher education, and nonprofit organi-
governmental, educational, or private zations; and report to Congress on the
organizations and carrying out any distribution of funds to carry out such
other activities authorized by (7 U.S.C. teaching programs (7 U.S.C. 3152).
3121). (xlv) [Reserved]
(xxxviii) [Reserved] (xlvi) Administer the National Agri-
(xxxix) Establish and oversee the Na- cultural Science Award for research or
tional Agricultural Research, Exten- advanced studies in the food and agri-
sion, Education, and Economics Advi- cultural sciences (7 U.S.C. 3153).
sory Board (7 U.S.C. 3123). (xlvii) [Reserved]
(xl) Provide and distribute informa- (xlviii) Administer a National Food
tion and data about Federal, State, and Human Nutrition Research and Ex-
local, and other Rural Development As- tension Program. Establish and admin-
sistance Programs and services avail- ister a Human Nutrition Intervention
able to individuals and organizations. and Health Promotion Research Pro-
To the extent possible, NAL shall use gram (7 U.S.C. 3171–3175).
telecommunications technology to dis- (xlix) Administer and direct an Ani-
seminate such information to rural mal Health and Disease Research Pro-
areas (7 U.S.C. 3125b). gram under the National Agricultural
(xli) Assemble and collect food and Research, Extension, and Teaching
nutrition educational material, includ- Policy Act of 1977, as amended (7 U.S.C.
ing the results of nutrition research, 3191–3201).
training methods, procedures, and (l) Support continuing agricultural
other materials related to the purposes and forestry extension and research, at
of the National Agricultural Research, 1890 land-grant colleges, including
Extension, and Teaching Policy Act of Tuskegee University, and administer a
1977, as amended; maintain such infor- grant program for five National Re-
mation; and provide for the dissemina- search and Training Centers (7 U.S.C.
tion of such information and materials 3221, 3222, 3222c, 3222d).
on a regular basis to State educational (li) Administer grants to 1890 land-
agencies and other interested parties (7 grant colleges, including Tuskegee
U.S.C. 3126). University, through Federal-grant
(xlii) Conduct programs related to funds to help finance research facilities
composting research and extension (7 and equipment including agricultural
U.S.C. 3130). libraries (7 U.S.C. 3223).
(xliii) Conduct a program of grants to (lii) Establish and administer com-
States to expand, renovate, or improve petitive grants to Hispanic-serving In-
schools of veterinary medicine (7 stitutions for the purpose of promoting
U.S.C. 3151). and strengthening the ability of His-
(xliv) Promote and strengthen higher panic-serving Institutions to carry out
education in the food and agricultural education, applied research, and re-
sciences; administer grants to colleges lated community development pro-
and universities; maintain a national grams (7 U.S.C. 3241).
food and agricultural education infor- (liii) Provide policy direction and co-
mation system; conduct programs re- ordinate the Department’s work with
garding the evaluation of teaching pro- national and international institutions
grams and continuing education; ad- and other persons throughout the
minister the National Food and Agri- world in the performance of agricul-
cultural Sciences Teaching, Extension, tural research, extension, teaching,
and Research Awards Program to rec- and development activities; administer
ognize and promote excellence in a program of competitive grants for

teaching, extension, and research in collaborative projects involving Fed-
the food and agricultural sciences; ad- eral scientists or scientists from col-
minister programs relating to sec- leges and universities working with
168
scientists at international agricultural by making grants to eligible institu-

research centers in other nations focus- tions for research and extension to fa-
ing either on new technologies and pro- cilitate or expand production and mar-
grams for increasing the production of keting of aquacultural food species and
food and fiber or training scientists products; making grants to States to
and a program of competitive grants to formulate Aquaculture development
colleges and universities to strengthen plans for the production and marketing
United States economic competitive- of aquacultural species and products;
ness and to promote international mar- and conducting a program of research,
ket development; establish a program extension and demonstration at
in coordination with the Foreign Agri- aquacultural demonstration centers (7
cultural Service to place interns from U.S.C. 3321–22).
United States colleges and universities (lx) Administer a Cooperative Range-
at Foreign Agricultural Service field land Research Program (7 U.S.C. 3331–
offices overseas; and provide a biennial
3336).
report to the Committee on Agri-
(lxi) Conduct a program of basic re-
culture of the House of Representatives
and the Committee on Agriculture, Nu- search on cancer in animals and birds
trition, and Forestry of the Senate on (7 U.S.C. 3902).
efforts of the Federal Government to (lxii) Design and implement edu-
coordinate international agricultural cational programs and distribute mate-
research within the Federal Govern- rials in cooperation with the coopera-
ment, and to more effectively link the tive extension services of the States
activities of domestic and inter- emphasizing the importance of produc-
national agricultural researchers, par- tive farmland, and designate a farm-
ticularly researchers of the Agricul- land information center, pursuant to
tural Research Service (7 U.S.C. 3291, section 1544 of the Farmland Protec-
3292b). tion Policy Act (7 U.S.C. 4205).
(liv) Provide for an agricultural re- (lxiii) [Reserved]
search and development program with (lxiv) Administer programs and con-
the United States/Mexico Foundation duct projects for research, extension,
for Science (7 U.S.C. 3292a). and education on sustainable agri-
(lv) Administer a program of com- culture (7 U.S.C. 5811–5813).
petitive grants to colleges and univer- (lxv) Conduct research and coopera-
sities and State cooperative institu- tive extension programs to optimize
tions for the acquisition of special pur- crop and livestock production poten-
pose scientific research equipment for tial, integrated resource management,
use in the food and agricultural and integrated crop management (7
sciences (7 U.S.C. 3310a). U.S.C. 5821).
(lvi) Enter into contracts, grants, or (lxvi) Design, implement, and develop
cooperative agreements to further re- handbooks, technical guides, and other
search, extension, or teaching pro- educational materials emphasizing sus-
grams in the food and agriculture
tainable agriculture production sys-
sciences (7 U.S.C. 3318).
tems and practices (7 U.S.C. 5831).
(lvii) Enter into cost-reimbursable
agreements with State cooperative in- (lxvii) Administer a competitive
stitutions or other colleges and univer- grant program to organizations to
sities for the acquisition of goods or carry out a training program on sus-
services in support of research, exten- tainable agriculture (7 U.S.C. 5832).
sion, or teaching activities in the food (lxviii) Administer a national re-
and agricultural sciences, including search program on genetic resources to
the furtherance of library and related provide for the collection, preserva-
information programs (7 U.S.C. 3319a). tion, and dissemination of genetic ma-
(lviii) Conduct research and develop- terial important to American food and
ment and implement a program for the agriculture production (7 U.S.C. 5841–
5844).
development of supplemental and al-

ternative crops (7 U.S.C. 3319d). (lxix) Conduct remote-sensing and
(lix) Administer an Aquaculture As- other weather-related research (7
sistance Program, involving centers, U.S.C. 5852).
169
(lxx) Establish an Agricultural (lxxx) Administer a competitive high

Weather Office and administer a na- priority research and extension grants
tional agricultural weather informa- program in specified subject areas (7
tion system, including a competitive U.S.C. 5925), except as delegated to the
grants program for research in atmos- Under Secretary for Marketing and
pheric sciences and climatology (7 Regulatory Programs in § 2.22(a)(2)(xli).
U.S.C. 5852–5853). (lxxxi) Administer a program of com-
(lxxi) Administer a research and ex- petitive grants to support research and
tension grant program to States to ad- extension activities in Nutrient Man-
minister programs for State agricul- agement Research and Extension (7
tural weather information systems (7 U.S.C. 5925a).
U.S.C. 5854). (lxxxii) Administer competitive
(lxxii) Administer grants and conduct grants to support research and exten-
research programs to measure micro- sion activities regarding organically
biological and chemical agents associ- grown and processed agricultural com-
ated with the production, preparation, modities (7 U.S.C. 5925b).
processing, handling, and storage of ag- (lxxxiii) [Reserved]
ricultural products (7 U.S.C. 5871–5874). (lxxxiv) Formulate and carry out the
(lxxiii) Administer and conduct re- Veterinary Medicine Loan Repayment
search and extension programs on inte- Act program authorized by the Na-
grated pest management, including re- tional Veterinary Medical Service Act
search to benefit floriculture (7 U.S.C. (7 U.S.C. 3151a).
5881). (lxxxv)–(lxxxvii) [Reserved]
(lxxiv) Establish a National Pesticide (lxxxviii) Establish and administer a
Resistance Monitoring Program and program for the development and utili-
disseminate information on materials zation of an agricultural communica-
and methods of pest and disease con- tions network (7 U.S.C. 5926).
trol available to agricultural producers (lxxxix)–(xc) [Reserved]
through the pest and disease control (xci) Administer education programs
database (7 U.S.C. 5882). on Indian reservations and tribal juris-
(lxxv) Administer and conduct re- dictions (7 U.S.C. 5930).
search and grant programs on the con- (xcii) [Reserved]
trol and eradication of exotic pests (7 (xciii) Administer a demonstration
U.S.C. 5883). grants program for support of an as-
(lxxvi) Conduct research and edu- sistive technology program for farmers
cational programs to study the biology with disabilities (7 U.S.C. 5933).
and behavior of chinch bugs (7 U.S.C. (xciv)–(xcvi) [Reserved]
5884). (xcvii) Administer the Small Busi-
(lxxvii) Administer research pro- ness Innovation Development Act of
grams and grants for risk assessment 1982 for USDA (15 U.S.C. 638(e)–(k)).
research to address concerns about the (xcviii) Coordinate Departmental
environmental effects of biotechnology policies under the Toxic Substance
(7 U.S.C. 5921). Control Act (15 U.S.C. 2601–2629).
(lxxviii) Administer a rural elec- (xcix) Provide educational and tech-
tronic commerce extension program nical assistance in implementing and
through grants to regional rural devel- administering the Conservation Re-
opment centers and competitive grants serve Program authorized in sections
to land-grant colleges and universities 1231–1244 of the Food Security Act of
and to colleges and universities (in- 1985 (Pub. L. No. 99–198, 99 Stat. 1509 (16
cluding community colleges) with agri- U.S.C. 3831–3844)).
cultural or rural development pro- (c) Enter into cooperative research
grams (7 U.S.C. 5923). and development agreements with in-
(lxxix) Conduct a research initiative dustry, universities, and others; insti-
known as the Agricultural Genome Ini- tute a cash award program to reward
tiative, and make grants or enter into scientific, engineering, and technical
cooperative agreements on a competi- personnel; award royalties to inven-
tive basis to carry out the Initiative (7 tors; and retain and use royalty income
U.S.C. 5924). (15 U.S.C. 3710a–3710c).
170
(ci) Coordinate USDA activities dele- (cxiii) Authorize the use of the 4-H
gated under 15 U.S.C. 3710a–3710c. Club name and emblem (18 U.S.C. 707).
(cii) Conduct educational and dem- (cxiv) Maintain a National Arbo-
onstrational work in Cooperative Farm retum for the purposes of research and
Forestry Programs (16 U.S.C. 568). education concerning tree and plant
(ciii) Administer a cooperative for- life, and order disbursements from the
estry program in accordance with the Treasury, in accordance with the Act
McIntire-Stennis Cooperative Forestry of March 4, 1927 (20 U.S.C. 191 et seq.).
Act, and administer a competitive for- (cxv) Conduct research on foot-and-
estry, natural resources, and environ-
mouth disease and other animal dis-
mental grant program (16 U.S.C. 582A–
eases (21 U.S.C. 113a).
582A–8).
(civ) Establish and administer the (cxvi) Conduct research on the con-
Forestry Student Grant Program to trol and eradication of cattle grubs
provide competitive grants to assist (screwworms) (21 U.S.C. 114e).
the expansion of the professional edu- (cxvii) Obtain and furnish Federal ex-
cation of forestry, natural resources, cess property to eligible recipients for
and environmental scientists (16 U.S.C. use in the conduct of research and ex-
1649). tension programs (40 U.S.C. 483(d)(2)).
(cv) Provide for an expanded and (cxviii) Conduct research demonstra-
comprehensive extension program for tion and promotion activities related
forest and rangeland renewable re- to farm dwellings and other buildings
sources (16 U.S.C. 1671–1676). for the purposes of reducing costs and
(cvi) Provide technical, financial, and adapting and developing fixtures and
educational assistance to State for- appurtenances for more efficient and
esters and State extension directors on economical farm use (42 U.S.C. 1476(b)).
rural forestry assistance (16 U.S.C. (cxix) Carry out research, demonstra-
2102). tion, and educational activities author-
(cvii) Provide educational assistance
ized in section 202(c) of the Colorado
to State foresters under the Forest
River Basin Salinity Control Act (43
Stewardship Program (16 U.S.C. 2103a).
(cviii) Implement and conduct an U.S.C. 1592(c)).
educational program to assist the de- (cxx) Conduct research on losses of
velopment of Urban and Community livestock in interstate commerce due
Forestry Programs (16 U.S.C. 2105). to injury or disease (45 U.S.C. 71 note).
(cix) Provide staff support to the Sec- (cxxi) Administer a Cooperative Agri-
retary of Agriculture in his or her role cultural Extension Program related to
as permanent Chair for the Joint Sub- agriculture, uses of solar energy with
committee on Aquaculture established respect to agriculture, home econom-
by the National Aquaculture Act of ics, and rural energy in the District of
1980 and coordinate aquacultural ac- Columbia (D.C. Code 38–1202.09).
tivities within the Department (16 (cxxii) [Reserved]
U.S.C. 2805). (cxxiii) Exercise the responsibilities
(cx) Perform research, development, of the Secretary under regulations
and extension activities in aquaculture dealing with Equal Employment Oppor-
(16 U.S.C. 2804 and 2806). tunity in the Cooperative Extension
(cxi) Provide educational assistance Service (part 18 of this title).
to farmers regarding the Agricultural
(cxxiv) Represent the Department on
Water Quality Protection Program (16
the Federal Interagency Council on
U.S.C. 3838b).
(cxii) Copy and deliver on demand se- Education.
lected articles and other materials (cxxv) Assure the acquisition, preser-
from the Department’s collections by vation, and accessibility of all informa-
photographic reproduction or other tion concerning food and agriculture
means within the permissions, con- by providing leadership to and coordi-
nation of the acquisition programs and
straints, and limitations of sections

106, 107, and 108 of the Copyright Act of related activities of the library and in-
October 19, 1976, (17 U.S.C. 106, 107, and formation systems, with the agencies
108). of USDA, other Federal departments
171
and agencies, State agricultural exper- of the Arboretum, Washington, DC; the
iment stations, colleges and univer- U.S. Meat Animal Research Center,
sities, and other research institutions Clay Center, NE; the Agricultural Re-
and organizations. search Center, Beltsville, MD; and the
(cxxvi) Formulate, write, or prescribe Animal Disease Center, Plum Island,
bibliographic and technically related NY, over which the United States has
standards for the library and informa- exclusive or concurrent criminal juris-
tion services of USDA (7 U.S.C. 3125a et diction, in accordance with the limita-
seq.). tions and requirements of the Federal
(cxxvii) Determine by survey or other Property and Administrative Services
appropriate means, the information Act of 1949, as amended (40 U.S.C. 471 et
needs of the Department’s scientific, seq.), the Act of June 1, 1948, as amend-
professional, technical, and adminis- ed (40 U.S.C. 318 et seq.), and the poli-
trative staffs, its constituencies, and cies, procedures, and controls pre-
the general public in the areas of food, scribed by the General Services Admin-
agriculture, the environment, and istration. Any rules or regulations pro-
other related areas. mulgated under this authority shall be
(cxxviii) Represent the Department approved by the Director, Office of Op-
on all library and information science erations, and the General Counsel prior
matters before Congressional Commit- to issuance.
tees and appropriate commissions, and (cxxxiv) Represent the Department
provide representation to the coordi- on the National Science and Tech-
nating committees of the Federal and nology Council.
State governments concerned with li- (cxxxv) Administer the Department’s
brary and information science activi- Patent Program except as delegated to
ties. the General Counsel in § 2.31(e).
(cxxix) Represent the Department in (cxxxvi) Review cooperative research
international organizational activities and development agreements entered
and on international technical com- into pursuant to 15 U.S.C. 3710a–3710c,
mittees concerned with agricultural with authority to disapprove or require
science, education, and development the modification of any such agree-
activities, including library and infor- ment.
mation science activities. (cxxxvii) Establish and administer a
(cxxx) Prepare and disseminate com- 1994 Institutions Endowment Fund and
puter files, indexes and abstracts, bib- to enter into agreements necessary to
liographies, reviews, and other analyt- do this (Section 533(b) and (c) of the
ical information tools. Equity in Educational Land-Grant Sta-
(cxxxi) Arrange for the consolidated tus Act of 1994, 7 U.S.C. 301 note).
purchasing and dissemination of print- (cxxxviii) Make grants in equal
ed and automated indexes, abstracts, amounts to 1994 Land-Grant Institu-
journals, and other widely used infor- tions to be used in the same manner as
mation resources and services. is prescribed for colleges under the Act
(cxxxii) Provide assistance and sup- of August 30, 1890 (7 U.S.C. 321 et seq.),
port to professional organizations and and subject to the requirements of such
others concerned with library and in- Act (Section 534(a) of the Equity in
formation science matters and issues. Educational Land-Grant Status Act of
(cxxxiii) Pursuant to the authority 1994, 7 U.S.C. 301 note).
delegated by the Administrator of Gen- (cxxxix) Make competitive Institu-
eral Services to the Secretary of Agri- tional Capacity Building Grants to as-
culture in 34 FR 6406, 36 FR 1293, 36 FR sist 1994 Land-Grant Institutions with
18440, and 38 FR 23838, appoint uni- constructing, acquiring, and remod-
formed armed guards and special po- eling buildings, laboratories, and other
licemen, make all needful rules and capital facilities (including fixtures
regulations, and annex to such rules and equipment) necessary to conduct
and regulations such reasonable pen- instructional activities more effec-
alties (not to exceed those prescribed tively in agriculture and sciences (Sec-
in 40 U.S.C. 318(c), as will ensure their tion 535 of the Equity in Educational
enforcement, for the protection of per- Land-Grant Status Act of 1994, 7 U.S.C.
sons, property, buildings, and grounds 301 note).
172
(cxl) Make competitive grants to 1994 that is a priority and has national,
Land-Grant Institutions to conduct ag- multistate, or regional significance (7
ricultural research that addresses high U.S.C. 7611).
priority concerns of tribal, national, or (clii) Solicit and consider input and
multistate significance (Section 536 of recommendations from persons who
the Equity in Educational Land-Grant conduct or use agricultural research,
Status Act of 1994, 7 U.S.C. 301 note). extension, or education and, after con-
(cxli) Implement and administer the sultation with appropriate subcabinet
Community Food Projects Program, officials, establish priorities for agri-
Innovative Programs for Addressing cultural research, extension, and edu-
Common Community Problems, and cation activities conducted or funded
the Healthy Urban Food Enterprise by the Department; promulgate regula-
Center pursuant to the provisions of
tions concerning implementation of a
section 25 of the Food and Nutrition
process for obtaining stakeholder input
Act of 2008 (7 U.S.C. 2034).
at 1862, 1890, and 1994 Institutions and
(cxlii) [Reserved]
Hispanic-serving agricultural colleges
(cxliii) Coordinate the Department of
Agriculture summer intern program and universities; and ensure that feder-
pursuant to section 922 of the Federal ally supported and conducted agricul-
Agriculture Improvement and Reform tural research, extension, and edu-
Act (7 U.S.C. 2279c). cation activities are accomplished in
(cxliv) Develop and carry out a sys- accord with identified management
tem to monitor and evaluate agricul- principles (7 U.S.C. 7612).
tural research and extension activities (cliii) Establish procedures that pro-
conducted or supported by the Depart- vide for scientific peer review of each
ment that will enable the Secretary to agricultural research grant adminis-
measure the impact and effectiveness tered on a competitive basis, and for
of research, extension, and education merit review of each agricultural ex-
programs according to priorities, goals, tension or education grant adminis-
and mandates established by law. Con- tered, on a competitive basis, by the
duct a comprehensive review of state- National Institute of Food and Agri-
of-the-art information technology sys- culture (7 U.S.C. 7613(a)).
tems for use in developing the system (cliv) Consider the results of the an-
(7 U.S.C. 3129). nual review performed by the National
(cxlv) Make grants, competitive Agricultural Research, Extension, Edu-
grants, and special research grants to, cation, and Economics Advisory Board
and enter into cooperative agreements regarding the relevance to priorities of
and other contracting instruments the funding of all agricultural re-
with, policy research centers (7 U.S.C. search, extension, or education activi-
3155). ties conducted or funded by the Depart-
(cxlvi) Conduct a pilot research pro-
ment and the adequacy of funding,
gram to link major cancer and heart
when formulating each request for pro-
and other circulatory disease research
posals, and evaluating proposals, in-
efforts with agricultural research ef-
forts to identify compounds in vegeta- volving an agricultural research, ex-
bles and fruits that prevent these dis- tension, or education activity funded,
eases (7 U.S.C. 3174a). on a competitive basis, by the Depart-
(clvii)–(clix) [Reserved] ment; and solicit and consider input
(cl) Provide technical assistance to from persons who conduct or use agri-
farmers and ranchers under the Envi- cultural research, extension, or edu-
ronmental Quality Incentives Program cation regarding the prior year’s re-
(16 U.S.C. 3830 et seq.). quest for proposals for each activity
(cli) Ensure that agricultural refunded on a competitive basis (7 U.S.C.
search conducted by the Agricultural 7613(c)).
Research Service, and agricultural re- (clv) Establish, in consultation with
appropriate subcabinet officials, proce-
search, extension, or education activi-

ties administered by the National In- dures to ensure scientific peer review
stitute of Food and Agriculture on a of all research activities conducted by
competitive basis address a concern the Department (7 U.S.C. 7613(d)).
173
(clvi) Require a procedure to be es- (clxviii) Develop a national program

tablished by each 1862, 1890, and 1994 In- of safe food handling education for
stitution and Hispanic-serving agricul- adults and young people to reduce the
tural college and university, for merit risk of food-borne illness (7 U.S.C.
review of each agricultural research 7655).
and extension activity funded and re- (clxix) Conduct a performance eval-
view of the activity in accordance with uation to determine whether federally
the procedure (7 U.S.C. 7613(e)). funded agricultural research, exten-
(clvii)–(clix) [Reserved] sion, and education programs result in
(clx) Coordinate the resources of the public goods that have national or
Department to develop, commercialize, multistate significance, including
and promote the use of biobased prod- through a contract with one or more
ucts, and enter into cooperative agree- entities to provide input and rec-
ments with private entities to operate ommendations with respect to feder-
pilot plants and other large-scale prep- ally funded agricultural research, ex-
aration facilities under which the fa- tension, and education programs (7
cilities and technical expertise of the U.S.C. 7671).
Agricultural Research Service may be (clxx) Request the National Academy
made available (7 U.S.C. 7624). of Sciences to conduct a study of the
role and mission of federally funded ag-
(clxi) [Reserved]
ricultural research, extension, and edu-
(clxii) Administer competitive grants
cation (7 U.S.C. 7672).
for integrated, multifunctional agricul-
(clxxi) Take a census of agriculture
tural research, education, and exten- in 1998 and every fifth year thereafter
sion activities (7 U.S.C. 7626). pursuant to the Census of Agriculture
(clxiii) Administer a coordinated pro- Act of 1997, Public Law 105–113 (7 U.S.C.
gram of research, extension, and edu- 2204g); ensure that the census of agri-
cation to improve the competitiveness, culture documents the number, loca-
viability, and sustainability of small tion, and economic contributions of so-
and medium size dairy, livestock, and cially disadvantaged farmers or ranch-
poultry operations (7 U.S.C. 7627). ers in agricultural production (7 U.S.C.
(clxiv) Administer grants to con- 2279(h)).
sortia of land-grant colleges and uni- (clxxii) Cooperate with other Federal
versities to enhance the ability of the agencies (including the National
consortia to carry out multi-State re- Science Foundation) in issuing joint
search projects aimed at understanding requests for proposals, awarding
and combating diseases of wheat, grants, and administering grants under
triticale, and barley caused by Fusar- any competitive agricultural research,
ium graminearum and related fungi or education, or extension grant program
Tilletia indica and related fungi (7 (7 U.S.C. 3319b).
U.S.C. 7628). (clxxiii) Administer a program of
(clxv) Operate and administer the competitive grants, establish edu-
Food Animal Residue Avoidance Data- cation teams, and establish an online
base through contracts, grants, or co- clearinghouse of curricula and training
operative agreements with appropriate materials and programs, all for train-
colleges or universities (7 U.S.C. 7642). ing, education, outreach, and technical
(clxvi) Update on a periodic basis, nu- assistance initiatives for the benefit of
trient composition data and report to beginning farmers and ranchers (7
Congress the method that will be used U.S.C. 3319f).
to update the data and the timing of (clxxiv) Administer agricultural re-
the update (7 U.S.C. 7651). search, education, and extension ac-
(clxvii) Establish and maintain a tivities (including through competitive
Food Safety Research Information Of- grants), using any authority available
fice at the National Agricultural Li- to the Secretary, to reduce the vulner-
brary to provide to the research com- ability of the United States food and
munity and the general public informa- agricultural system to chemical or bio-
tion on publicly and privately funded logical attack, to continue partner-
food safety research initiatives (7 ships with institutions of higher edu-
U.S.C. 7654(a)). cation and other institutions to help
174
form stable, long-term programs to en- Policy Research Institute (section 10805
hance the biosecurity of the United of Pub. L. 107–171).
States, to make competitive grants to (clxxxiii) Administer grants to assist
universities and qualified research in- the land-grant university in the Dis-
stitutions for research on trict of Columbia to acquire, alter, or
counterbioterrorsims, and to counter repair facilities or relevant equipment
or otherwise respond to chemical or bi- necessary for conducting agricultural
ological attack (7 U.S.C. 3351). research (7 U.S.C. 3222b–1).
(clxxv) Administer a program of com- (clxxxiv) Administer grants to assist
petitive grants to colleges and univer- the land-grant institutions in insular
sities for expansion and security up- areas to acquire, alter, or repair facili-
grades to enhance the security of agri- ties or relevant equipment necessary
culture against bioterrorism threats (7 for conducting agricultural research (7
U.S.C. 3352). U.S.C. 3222b–2).
(clxxvi) Administer programs for dis- (clxxxv) Enter into agreements nec-
tance education grants and resident in- essary to administer an Hispanic-Serv-
struction grants to eligible institutions ing Agricultural Colleges and Univer-
in insular areas that have demon- sities Fund; enter into agreements nec-
strable capacity to carry out teaching essary to administer a program of
and extension programs in the food and making annual payments to Hispanic-
agricultural sciences (7 U.S.C. 3361– serving agricultural colleges and uni-
3363). versities; administer an institutional
(clxxvii) [Reserved] capacity-building grants program for
(clxxviii) Administer a program of Hispanic-serving agricultural colleges
cooperative research (including and universities; administer a competi-
through competitive award of grants tive grants program to fund funda-
and cooperative agreements to colleges mental and applied research at His-
and universities) and extension panic-serving agricultural colleges and
projects on carbon cycling in soils and universities (7 U.S.C. 3243).
plants, the exchange of other green- (clxxxvi) Administer the New Era
house gases from agriculture, and the Rural Technology Program to make
carbon sequestration benefits of con- grants for technology development, ap-
servation practices (7 U.S.C. 6711). plied research, and training to aid in
(clxxix) Administer a program, in co- the development of an agriculture-
ordination with State veterinarians based renewable energy workforce (7
and other appropriate State animal U.S.C. 3319e).
health professionals, to conduct re- (clxxxvii) Administer a competitive
search, testing, and evaluation of pro- grants program to assist NLGCA Insti-
grams for the control and management tutions in maintaining and expanding
of Johne’s disease in livestock (7 U.S.C. capacity to conduct education, re-
7629). search, and outreach activities relating
(clxxx) Administer a program of to agriculture, renewable resources,
grants to the Girl Scouts of the United and other similar disciplines (7 U.S.C.
States of America, the Boy Scouts of 3319i).
America, the National 4-H Council, and (clxxxviii) Administer the Agricul-
the National FFA Organization to es- tural Bioenergy Feedstock and Energy
tablish pilot projects to expand the Efficiency Research and Extension Ini-
programs carried out by the organiza- tiative to enhance the production of
tions in rural areas and small towns (7 biomass energy crops and the energy
U.S.C. 7630). efficiency of agricultural operations (7
(clxxxi) Oversee implementation of U.S.C. 5925e).
the termination of Federal schedule A (clxxxix) Administer a competitive
civil service appointments of State ag- research and extension grants program
ricultural extension employees at land- to improve the farm management
grant colleges and universities (section
knowledge and skills of agricultural

7220 of Pub. L. 107–171). producers and establish and maintain a
(clxxxii) Administer a program of national, publicly available farm finan-
grants to the Food and Agricultural cial management database to support
175
improved farm management (7 U.S.C. the Department for purposes of admin-

5925f). istering the Biomass Research and De-
(cxc) Administer the Specialty Crop velopment Initiative.
Research Initiative (7 U.S.C. 7632). (ccii) Administer a competitive
(cxci) Exchange, sell, or otherwise grants program to encourage basic and
dispose of animals, animal products, applied research and the development
plants, and plant products, and use the of qualified agricultural counter-
sale or other proceeds to acquire such measures (7 U.S.C. 8921).
items or to offset costs related to the (cciii) Administer a competitive
maintenance, care, or feeding of such grants program to promote the devel-
items (7 U.S.C. 2241a). opment of teaching programs in agri-
(cxcii) Establish and administer a culture, veterinary medicine, and dis-
pilot program at the Beltsville Agricul- ciplines closely allied to the food and
tural Research Center and National agriculture system to increase the
Agricultural Library to lease non- number of trained individuals with an
excess property (7 U.S.C. 3125a note). expertise in agricultural biosecurity (7
(cxciii) Lease land at the U.S.C. 8922).
Grazinglands Research Laboratory at (cciv) Administer a program of pro-
El Reno, Oklahoma, pursuant to sec- viding grants to Alaska Native serving
tion 7503 of the Food, Conservation, institutions and Native Hawaiian serv-
and Energy Act of 2008 (Pub. L. 110– ing institutions for the purpose of pro-
246). moting and strengthening the ability
(cxciv) Administer a competitive re- of those institutions to carry out edu-
search and education grants program cation, applied research, and related
relating to antibiotics and antibiotic- community development programs (7
resistant bacteria (7 U.S.C. 3202). U.S.C. 3156).
(cxcv) Administer a competitive (2) Related to committee management.
grants program to establish and main- Establish or reestablish regional, state
tain a Farm and Ranch Stress Assist- and local advisory committees for the
ance Network (7 U.S.C. 5936). activities authorized. This authority
(cxcvi) Administer a competitive may not be redelegated.
grants program relating to seed dis- (3) Related to defense and emergency
tribution (7 U.S.C. 415–1). preparedness. Administer the respon-
(cxcvii) Administer a natural prod- sibilities and functions assigned under
ucts research program (7 U.S.C. 5937). the Defense Production Act of 1950, as
(cxcviii) Administer a Sun Grants amended (50 U.S.C. App. 2061 et seq.),
Program (7 U.S.C. 8114). and title VI of the Robert T. Stafford
(cxcix) Administer a competitive Disaster Relief and Emergency Assist-
grants program relating to agricultural ance Act (42 U.S.C. 5195 et seq.), con-
and rural transportation research and cerning scientific and educational pro-
education (7 U.S.C. 5938). grams; estimates of supplies of agricul-
(cc) Administer a program of pro- tural commodities and evaluation of
viding competitive grants to Hispanic- requirements therefor; coordination of
serving institutions for the purpose of damage assessment; food and agricul-
establishing an undergraduate scholar- tural aspects of economic stabilization,
ship program to assist in the recruit- economic research, and agricultural
ment, retention, and training of His- statistics; and the coordination of en-
panics and other under-represented ergy programs.
groups in forestry and related fields (16 (4) Related to rural development ac-
U.S.C. 1649a). tivities. Provide guidance and direc-
(cci) Administer the Biomass Re- tion for the accomplishment of activi-
search and Development Initiative (7 ties authorized under Section V of the
U.S.C. 8108(e)); consult and coordinate, Rural Development Act of 1972, as
as appropriate, with the Under Sec- amended (7 U.S.C. 2661 et seq.), for pro-
retary for RD and other mission areas grams under the control of the Under
of the Department as deemed necessary Secretary for Research, Education, and

in carrying the authorities delegated Economics, coordinating the policy as-
herein; serve as the designated point of pects thereof with the Under Secretary
contact referenced in 7 U.S.C. 8108 for for Rural Development.
176

Liability Act of 1980 (‘‘the Act’’), as (xi) Sections 117 (a) and (c) of the Act
amended: (42 U.S.C. 9617 (a) and (c)), with respect
ards; and
(iv) Section 104(j) of the Act (42 (6) Related to compliance with environ-
U.S.C. 9604(j)), with respect to the ac- mental laws. With respect to facilities
quisition of real property and interests and activities under his or her author-
in real property required to conduct a ity, to exercise the authority of the
remedial action; Secretary of Agriculture pursuant to
(v) The first two sentences of section section 1–102 related to compliance
105(d) of the Act (42 U.S.C. 9605(d)), with applicable pollution control
with respect to petitions for prelimi- standards and section 1–601 of Execu-
nary assessment of a release or threat- tive Order 12088, 3 CFR, 1978 Comp., p.
ened release; 243, to enter into an inter-agency
(vi) Section 105(f) of the Act (42 agreement with the United States En-
U.S.C. 9605(f)), with respect to consider- vironmental Protection Agency, or an
ation of the availability of qualified administrative consent order or a con-
minority firms in awarding contracts, sent judgment in an appropriate State,
but excluding that portion of section interstate, or local agency, containing
105(f) pertaining to the annual report a plan and schedule to achieve and
to Congress; maintain compliance with applicable
(vii) Section 109 of the Act (42 U.S.C. pollution control standards established
9609), with respect to the assessment of pursuant to the following:
civil penalties for violations of section (i) Solid Waste Disposal Act, as
122 of the Act (42 U.S.C. 9622), and the amended by the Resource Conservation
granting of awards to individuals pro- and Recovery Act, as further amended
viding information; by the Hazardous and Solid Waste
(viii) Section 111(f) of the Act (42 Amendments, and the Federal Facility
U.S.C. 9611(f)), with respect to the des- Compliance Act (42 U.S.C. 6901 et seq.);
ignation of officials who may obligate (ii) Federal Water Pollution Preven-

Superfund; U.S.C. 1251 et seq.);
177
(iv) Clean Air Act, as amended (42 (A) Design and carry out periodic na-
U.S.C. 7401 et seq.); tionwide food consumption surveys to
(v) Noise Control Act of 1972, as measure household food consumption;
amended (42 U.S.C. 4901 et seq.); (B) Design and carry out a contin-
(vi) Toxic Substances Control Act, as uous, longitudinal individual intake
amended (15 U.S.C. 2601 et seq.); survey of the United States population
(vii) Federal Insecticide, Fungicide, and special high-risk groups; and
and Rodenticide Act, as amended (7 (C) Design and carry out methodo-
U.S.C. 136 et seq.); and logical research studies to develop im-
(viii) Comprehensive Environmental proved procedures for collecting house-
Response, Compensation, and Liability hold and individual food intake con-
Act of 1980, as amended by the Super- sumption data;
fund Amendments and Reauthorization (iv) [Reserved]
Act of 1986 (42 U.S.C. 9601 et seq.). (v) Co-chair with the Assistant Sec-
(7) Related to national food and human retary for Health, Department of
nutrition research. (i) Administer a Na- Health and Human Services, the Inter-
tional Food and Human Nutrition Re- agency Board for Nutrition Monitoring
search Program under the National Ag- and Related Research for the develop-
ricultural Research, Extension, and ment and coordination of a Ten-Year
Teaching Policy Act of 1977, as amend- Comprehensive Plan as required by
ed. As used herein the term ‘‘research’’ Pub. L. No. 101–445, 7 U.S.C. 5301 et seq.
includes: (8) Related to economic research and
(A) Research on the nutrient com- statistical reporting. (i) Conduct eco-
position of foods and the effects of agri- nomic research on matters of impor-
cultural practices, handling, food proc- tance to cooperatives as authorized by
essing, and cooking on the nutrients the Agricultural Marketing Act of 1946
they contain; (7 U.S.C. 1621–1627).
(B) Surveillance of the nutritional (ii) Conduct economic and social
benefits provided to participants in the science research and analyses relating
food programs administered by the De- to:
partment; and (A) Food and agriculture situation
(C) Research on the factors affecting and outlook;
food preference and habits (7 U.S.C. (B) The production, marketing, and
3171–3175, 3177). distribution of food and fiber products
(ii) The authority in paragraph (excluding forest and forest products),
(a)(7)(i) of this section includes the au- including studies of the performance of
thority to: the food and agricultural sector of the
(A) Appraise the nutritive content of economy in meeting needs and wants of
the U.S. food supply; consumers;
(B) Develop and make available data (C) Basic and long-range, worldwide,
on the nutrient composition of foods economic analyses and research on sup-
needed by Federal, State, and local ply, demand, and trade in food and
agencies administering food and nutri- fiber products and the effects on the
tion programs, and the general public, U.S. food and agriculture system, in-
to improve the nutritional quality of cluding general economic analyses of
diets; the international financial and mone-
(C) Coordinate nutrition education tary aspects of agricultural affairs;
research projects within the Depart- (D) Natural resources, including
ment; and studies of the use and management of
(D) Maintain data generated on food land and water resources, the quality
composition in a National Nutrient of these resources, resource institu-
Data Bank. tions, and watershed and river basin
(iii) Conduct, in cooperation with the development problems; and
Department of Health and Human (E) Rural people and communities, as
Services, the National Nutrition Moni- authorized by title II of the Agricul-

toring and Related Research Program. tural Marketing Act of 1946, as amend-
Included in this delegation is the au- ed (7 U.S.C. 1621–1627), and the Act of
thority to: June 29, 1935, as amended (7 U.S.C. 427).
178
(iii) Perform economic and other so- cultural system. Such work may be
cial science research under section carried out by:
104(b)(1) and (3) of the Agricultural (A) Exchanging research materials
Trade Development and Assistance Act and results with the institutions or
of 1954, as amended, with funds admin- persons;
istered by the Foreign Agricultural (B) Engaging in joint or coordinated
Service (7 U.S.C. 1704). research;
(iv) Prepare crop and livestock esti- (C) Entering into cooperative ar-
mates and administer reporting pro- rangements with Departments and
grams, including estimates of produc- Ministries of Agriculture in other na-
tion, supply, price, and other aspects of tions to conduct research, extension;
the U.S. agricultural economy, collec- and education activities (limited to ar-
tion of statistics, conduct of enumera- rangements either involving no ex-
tive and objective measurement sur- change of funds or involving disburse-
veys, construction and maintenance of ments by the agency to the institu-
sampling frames, and related activi- tions of other nations), and then re-
ties. Prepare reports of the Agricul- porting these arrangements to the Sec-
tural Statistics Board covering official retary of Agriculture;
state and national estimates (7 U.S.C. (D) Stationing representatives at
476, 951, and 2204). such institutions or organizations in
(v) Take such security precautions as foreign countries; or
are necessary to prevent disclosure of (E) Entering into agreements with
crop or livestock report information land-grant colleges and universities,
prior to the scheduled issuance time other organizations, institutions, or in-
approved in advance by the Secretary dividuals with comparable goals, and
of Agriculture and take such actions as with the concurrence of the Foreign
are necessary to avoid disclosure of Agricultural Service, USDA, inter-
confidential data or information sup- national organizations (limited to
plied by any person, firm, partnership, agreements either involving no ex-
corporation, or association (18 U.S.C. change of funds or involving disburse-
1902, 1903, and 2072). ments by the agency to the coop-
(vi) Improve statistics in the Depart- erator), and then reporting these agree-
ment; maintain liaison with OMB and ments to the Secretary of Agriculture
other Federal agencies for coordination (7 U.S.C. 3291(a)).
of statistical methods and techniques. (xi) Prepare for transmittal by the
(vii) Investigate and make findings Secretary to the President and both
as to the effect upon the production of Houses of Congress, an analytical re-
food and upon the agricultural econ- port under section 5 of the Agricultural
omy of any proposed action pending be- Foreign Investment Disclosure Act of
fore the Administrator of the Environ- 1978 (7 U.S.C. 3504) concerning the ef-
mental Protection Agency for presen- fect on family farms and rural commu-
tation in the public interest, before nities of holdings, acquisitions, and
said Administrator, other agencies, or transfers of U.S. agricultural land by
before the courts. foreign persons.
(viii) Review economic data and anal- (xii) Enter into contracts, grants, or
yses used in speeches by Department cooperative agreements to further re-
personnel and in materials prepared for search and statistical reporting pro-
release through the press, radio, and grams in the food and agricultural
television. sciences (7 U.S.C. 3318).
(ix) Coordinate all economic analysis (xiii) Enter into cost-reimbursable
and review all decisions involving sub- agreements relating to agricultural re-
stantial economic policy implications. search and statistical reporting (7
(x) Cooperate and work with national U.S.C. 3319a).
and international institutions and (xiv) Conduct surveys and analysis
other persons throughout the world in and publish reports relating to organic
the performance of agricultural reproduction, handling, distribution, re-

search and extension activities to pro- tail, and trend studies (including con-
mote and support the development of a sumer purchasing patterns); develop
viable and sustainable global and agri- surveys and report statistical analysis
179
on organically produced agricultural on topics that can benefit from sci-

products (7 U.S.C. 5925c). entific input to ensure informed deci-
(xv) Assist the Under Secretary for sion-making at the highest levels of
Marketing and Regulatory Programs Government.
with respect to Dairy Product Manda- (ii) Facilitate the coordination and
tory Reporting (7 U.S.C. 1637–1637b). collaboration within the Department
(xvi) Include in each issuance of pro- on high priority science issues that
jections of net farm income an esti- will benefit from intra-Departmental
mate of the net farm income earned by collaboration, including coordinating
commercial producers in the United the assessment of the relevance, qual-
States that will in addition show the ity, performance, and impact of the De-
estimate of net farm income attrib- partment’s efforts in science.
utable to commercial producers of live-
(iii) Build partnerships within the
stock, loan commodities, and agricul-
scientific community by serving as a
tural commodities other than loan
point of contact for interactions with
commodities (7 U.S.C. 7998).
other agencies of science, universities,
(xvii) Ensure that studies carried out
and other external members of the sci-
by the Economic Research Service doc-
entific community for the purpose of
ument the number, location, and eco-
nomic contributions of socially dis- leveraging and promoting relationships
advantaged farmers or ranchers in ag- to explore common scientific interests
ricultural production (7 U.S.C. 2279(h)). and shared goals.
(9) Related to immigration. Serve as (iv) Develop mechanisms to address
the designee of the Secretary pursuant scientific integrity within the Depart-
to Section 212(e) of the Immigration ment.
and Nationality Act, as amended, 8 (v) Serve as Chair of the USDA
U.S.C. 1182(e) and 22 CFR 41.63(2)(3). Science Council.
(10) Related to hazardous materials (12) Related to coordination of agricul-
management. (i) Serve on the USDA tural research, education, and extension
Hazardous Materials Policy Council. programs and activities. Coordinate the
(ii) Recommend actions and policies agricultural research, education, and
that enable USDA agencies under his extension activities of the Department
or her authority to comply with the in- pursuant to sections 251(c)(2) and
tent, purposes, and standards of envi- 251(d)(2) of the Department of Agri-
ronmental laws for pollution preven- culture Reorganization Act of 1994 (7
tion, control, and abatement. U.S.C. 6971(c)(2), (d)(2)).
(iii) Consult with the United States (b) The following authorities are re-
Environmental Protection Agency and served to the Secretary of Agriculture:
other appropriate Federal agencies in (1) Related to science and education.
developing pollution prevention, con-
(i)–(iii) [Reserved]
trol, and abatement policies and pro-
grams relating to agencies under his or (iv) Final concurrence in Equal Em-
her authority. ployment Opportunity Programs with-
(iv) Serve as a USDA Environmental in the cooperative extension programs
Executive responsible for coordinating submitted under part 18 of this title.
waste prevention; recycling; and the (v) Approve selection of State direc-
procurement, acquisition, and use of tors of extension.
recycled products and environmentally (vi) Approve the memoranda of un-
preferable products, including biobased derstanding between the land-grant
products, and services pursuant to Ex- universities and USDA related to coop-
ecutive Order 13101 (dual assignment erative extension programs.
with the Assistant Secretary for Ad- (2) Related to economic research and
ministration). statistical reporting. (i) Final approval
(11) Related to scientific integrity. (i) and issuance of the monthly crop re-
Provide to the Secretary information port (7 U.S.C. 411a).
180
(ii) Final action on rules and regula- recommend revisions of current proce-
tions for the Agricultural Statistics dures.
Board. (vi) Serve as the focal point for all
[60 FR 56393, Nov. 8, 1995, as amended at 62
Department transportation matters in-
FR 65593, Dec. 15, 1997; 64 FR 40735, July 28, cluding development of policies and
1999; 65 FR 5414, Feb. 4, 2000; 65 FR 12428, Mar. strategies.
9, 2000; 65 FR 31245, May 17, 2000; 68 FR 27437, (vii) Cooperate with other Depart-
May 20, 2003; 72 FR 12701, Mar. 19, 2007; 74 FR mental agencies in the development
3403, Jan. 21, 2009; 75 FR 43368, July 23, 2010; and recommendation of policies for in-
76 FR 4802, Jan. 27, 2011; 76 FR 9641, Feb. 22, land transportation of USDA and CCC-
2011; 76 FR 10756, Feb. 28, 2011; 76 FR 52851,
Aug. 24, 2011]
owned commodities in connection with
USDA programs.
§ 2.22 Under Secretary for Marketing (viii) Exercise the functions of the
and Regulatory Programs. Secretary of Agriculture with respect
(a) The following delegations of au- to the following legislation:
thority are made by the Secretary to (A) U.S. Cotton Standards Act (7
the Under Secretary for Marketing and U.S.C. 51–65);
Regulatory Programs: (B) Cotton futures provisions of the
(1) Related to agricultural marketing. Internal Revenue Code of 1954 (26
(i) Exercise the functions of the Sec- U.S.C. 4854, 4862–4865, 4876, and 7263);
retary of Agriculture contained in the (C) Cotton Statistics and Estimates
Agricultural Marketing Act of 1946, as Act, as amended (7 U.S.C. 471–476), ex-
amended (7 U.S.C. 1621–1627), including cept as otherwise assigned;
payments to State Departments of Ag- (D) Naval Stores Act (7 U.S.C. 91–99);
riculture in connection with coopera- (E) Tobacco Inspection Act (7 U.S.C.
tive marketing service projects under 511–511q);
section 204(b) (7 U.S.C. 1623(b)), but ex- (F) Wool Standard Act (7 U.S.C. 415b-
cepting matters otherwise assigned. 415d);
(ii) Conduct marketing efficiency re- (G) Agricultural Marketing Agree-
search and development activities di- ment Act of 1937, as amended (7 U.S.C.
rectly applicable to the conduct of the 601, 602, 608a-608e, 610, 612, 614, 624, 671–
Wholesale Market Development Pro- 674);
gram, specifically: (H) Cotton Research and Promotion
(A) Studies of facilities and methods Act (7 U.S.C. 2101–2118), except as dele-
used in physical distribution of food gated to the Under Secretary for Farm
and other farm products; and Foreign Agricultural Services in
(B) Studies designed to improve han- § 2.16(a)(3)(x);
dling of all agricultural products as (I) Export Apple and Pear Act (7
they are moved from farms to con- U.S.C. 581–590);
sumers; and (J) Export Grape and Plum Act (7
(C) application of presently available U.S.C. 591–599);
scientific knowledge to the solution of (K) Titles I, II, IV, and V of the Fed-
practical problems encountered in the eral Seed Act, as amended (7 U.S.C.
marketing of agricultural products (7 1551–1575, 1591–1611);
U.S.C. 1621–1627). (L) Perishable Agricultural Commod-
(iii) Exercise the functions of the ities Act (7 U.S.C. 499a-499s);
Secretary of Agriculture relating to (M) Produce Agency Act (7 U.S.C.
the transportation activities contained 491–497);
in section 203(j) of the Agricultural (N) Tobacco Seed and Plant Expor-
Marketing Act of 1946 (7 U.S.C. 1622(j)) tation Act (7 U.S.C. 516–517);
as amended, but excepting matters oth- (O) Tobacco Statistics Act (7 U.S.C.
erwise assigned. 501–508);
(iv) Administer transportation ac- (P) Section 401(a) of the Organic Act
tivities under section 201 of the Agri- of 1944 (7 U.S.C. 415e);
cultural Adjustment Act of 1938 (7 (Q) Agricultural Fair Practices Act (7
U.S.C. 1291). U.S.C. 2301–2306);

(v) Apply results of economic re- (R) Wheat Research and Promotion
search and operations analysis to Act (7 U.S.C. 1292 note), except as dele-
evaluate transportation issues and to gated to the Under Secretary for Farm
181
and Foreign Agricultural Services in Secretary for Marketing and Regu-

§ 2.16(a)(3)(x); latory Programs shall, to the extent
(S) Plant Variety Protection Act (7 practicable, use the commodity pro-
U.S.C. 2321–2331, 2351–2357, 2371–2372, curement, handling, payment and re-
2401–2404, 2421–2427, 2441–2443, 2461–2463, lated services of the Farm Service
2481–2486, 2501–2504, 2531–2532, 2541–2545, Agency;
2561–2569, 2581–2583), except as delegated (DD) Act of May 23, 1980, regarding
to the Judicial Officer; inspection of dairy products for export
(T) Subtitle B of title I and section (21 U.S.C. 693);
301(4) of the Dairy and Tobacco Adjust- (EE) The Pork Promotion, Research
ment Act of 1983 (7 U.S.C. 4501–4513, and Consumer Information Act of 1985
4514(4)), except as delegated to the (7 U.S.C. 4801–4819), except as delegated
Under Secretary for Farm and Foreign to the Under Secretary for Farm and
Agricultural Services in § 2.16(a)(3)(x); Foreign Agricultural Services in
(U) Potato Research and Promotion § 2.16(a)(3)(x);
Act (7 U.S.C. 2611–2627), except as dele- (FF) The Watermelon Research and
gated to the Under Secretary for Farm Promotion Act (7 U.S.C. 4901–4916), ex-
and Foreign Agricultural Services in cept as delegated to the Under Sec-
§ 2.16(a)(3)(x); retary for Farm and Foreign Agricul-
(V) [Reserved] tural Services in § 2.16(a)(3)(x);
(W) Egg Research and Consumer In- (GG) The Honey Research, Pro-
formation Act (7 U.S.C. 2701–2718), ex- motion, and Consumer Information Act
cept as delegated to the Under Sec- (7 U.S.C. 4601–4612), except as delegated
retary for Farm and Foreign Agricul- to the Under Secretary for Farm and
tural Services in § 2.16(a)(3)(x); Foreign Agricultural Services in
(X) Beef Research and Information § 2.16(a)(3)(x);
Act, as amended (7 U.S.C. 2901–2918), ex- (HH) Subtitles B and C of the Dairy
cept as delegated to the Under Sec- Production Stabilization Act of 1983, as
retary for Farm and Foreign Agricul- amended (7 U.S.C. 4501–4513, 4531–4538);
tural Services in §§ 2.16(a)(1)(xiv) and (II) The Floral Research and Con-
(a)(3)(x); sumer Information Act (7 U.S.C. 4301–
(Y) Wheat and Wheat Foods Research 4319), except as delegated to the Under
and Nutrition Education Act (7 U.S.C. Secretary for Farm and Foreign Agri-
3401–3417), except as delegated to the cultural Services in § 2.16(a)(3)(x);
Under Secretary for Farm and Foreign (JJ) Section 213 of the Tobacco Ad-
Agricultural Services in justment Act of 1983, as amended (7
§ 2.16(a)(3)(x); U.S.C. 511r);
(Z) Egg Products Inspection Act re- (KK) National Laboratory Accredita-
lating to the Shell Egg Surveillance tion Program (7 U.S.C. 138–138i) with
Program, voluntary laboratory anal- respect to laboratories accredited for
yses of egg products, and the Vol- pesticide residue analysis in fruits and
untary Egg Grading Program (21 U.S.C. vegetables and other agricultural com-
1031–1056); modities, except those laboratories
(AA) Section 32 of the Act of August analyzing only meat and poultry prod-
24, 1935 (7 U.S.C. 612c), as supplemented ucts;
by the Act of June 28, 1937 (15 U.S.C. (LL) Pecan Promotion and Research
713c), and related legislation, except Act of 1990 (7 U.S.C. 6001–6013), except
functions which are otherwise assigned as delegated to the Under Secretary for
relating to the domestic distribution Farm and Foreign Agricultural Serv-
and donation of agricultural commod- ices in § 2.16(a)(3)(x);
ities and products thereof following the (MM) Mushroom Promotion, Re-
procurement thereof; search, and Consumer Information Act
(BB) Procurement of agricultural of 1990 (7 U.S.C. 6101–6112), except as
commodities and other foods under sec- delegated to the Under Secretary for
tion 6 of the National School Lunch Farm and Foreign Agricultural Serv-
Act of 1946, as amended (42 U.S.C. 1755); ices in § 2.16(a)(3)(x);

(CC) In carrying out the procurement (NN) Lime Research, Promotion, Re-
functions in paragraphs (a)(1)(viii)(AA) search, and Consumer Information Act
and (BB) of this section, the Assistant of 1990 (7 U.S.C. 6201–6212), except as
182
delegated to the Under Secretary for cept as delegated to the Under Sec-
Farm and Foreign Agricultural Serv- retary for Farm and Foreign Agricul-
ices in § 2.16(a)(3)(x); tural Services in § 2.16(a)(3)(x);
(OO) Soybean Promotion, Research, (AAA) The National Kiwifruit Re-
and Consumer Information Act (7 search, Promotion, and Consumer In-
U.S.C. 6301–6311), except as delegated to formation Act (7 U.S.C. 7461–7473), ex-
the Under Secretary for Farm and For- cept as delegated to the Under Sec-
eign Agricultural Services in retary for Farm and Foreign Agricul-
§ 2.16(a)(3)(x); tural Services in § 2.16(a)(3)(x);
(PP) Fluid Milk Promotion Act of (BBB) The Popcorn Promotion, Re-
1990 (7 U.S.C. 6401–6417), except as dele- search, and Consumer Information Act
gated to the Under Secretary for Farm (7 U.S.C. 7481–7491), except as delegated
and Foreign Agricultural Services in to the Under Secretary for Farm and
§ 2.16(a)(3)(x); Foreign Agricultural Services in
(QQ) Producer Research and Pro- § 2.16(a)(3)(x).
motion Board Accountability (104 Stat. (CCC) Farmers’ Market Promotion
3927); Program (7 U.S.C. 2005).
(RR) Consistency with International (DDD) National Organic Certification
Obligations of the United States (7 Cost-Share Program (7 U.S.C. 6523).
U.S.C. 2278); (EEE) Exemption of Certified Or-
(SS) Organic Foods Production Act of ganic Products from Assessment (7
1990 (7 U.S.C. 6501–6522), provided that U.S.C. 7401).
the Administrator, Agricultural Mar- (FFF) Country of Origin Labeling (7
keting Service, will enter into agree- U.S.C. 1638–1638(d)).
ments, as necessary, with the Adminis- (GGG) Hass Avocado Promotion, Re-
trator, Food Safety and Inspection search, and Consumer Information Act
Service, to provide inspection services; of 2000 (7 U.S.C. 7801–7813).
(TT) Pesticide Recordkeeping (7 (HHH) Section 7407 of the Farm Secu-
U.S.C. 136i–1) with the provision that rity and Rural Investment Act of 2002
the Administrator, Agricultural Mar- (7 U.S.C. 5925c), with respect to the col-
keting Service, will enter into agree- lection and distribution of comprehen-
ments, as necessary, with other Fed- sive reporting of prices relating to or-
eral agencies; ganically produced agricultural prod-
(UU) The International Carriage of ucts.
Perishable Foodstuffs Act (7 U.S.C. (III) Livestock Mandatory Reporting
4401–4406); (7 U.S.C. 1635–1636i).
(VV) The Sheep Promotion, Re- (JJJ) Section 375 of the Consolidated
search, and Information Act (7 U.S.C. Farm and Rural Development Act (7
7101–7111), except as delegated to the U.S.C. 2008j).
Under Secretary for Farm and Foreign (KKK) Section 101 of the Specialty
Agricultural Services in § 2.16(a)(3)(x); Crops Competitiveness Act of 2004 (7
and U.S.C. 1621 note).
(WW) The Fresh Cut Flowers and (LLL) Section 1502 of the Food, Con-
Fresh Cut Greens Promotion and Con- servation, and Energy Act of 2008 (7
sumer Information Act (7 U.S.C. 6801– U.S.C. 8772).
6814), except as delegated to the Under (MMM) Section 1509 of the Food, Con-
Secretary for Farm and Foreign Agri- servation, and Energy Act of 2008 (Pub.
cultural Services in § 2.16(a)(3)(x). L. 110–246).
(XX) Commodity Promotion and (NNN) Section 10105 of the Food, Con-
Evaluation (7 U.S.C. 7401); servation, and Energy Act of 2008 (7
(YY) The Commodity Promotion, Re- U.S.C. 7655a).
search, and Information Act of 1996 (7 (OOO) Section 10107 of the Food, Con-
U.S.C. 7411–7425), except as delegated to servation, and Energy Act of 2008 (7
the Under Secretary for Farm and For- U.S.C. 1622b).
eign Agricultural Services in (PPP) Section 10403 of the Food, Con-
§ 2.16(a)(3)(x); servation, and Energy Act of 2008 (7

(ZZ) The Canola and Rapeseed Re- U.S.C. 1622c).
search, Promotion, and Consumer In- (ix) Furnish, on request, copies of
formation Act (7 U.S.C. 7441–7452), ex- programs, pamphlets, reports, or other
183
publications for missions or programs (vii) Horse Protection Act (15 U.S.C.
as may otherwise be delegated or as- 1821–1831);
signed to the Assistant Secretary for (viii) 28 Hour Law, as amended (49
Marketing and Regulatory Programs, U.S.C. 80502);
and charge user fees therefor, as au- (ix) Export Animal Accommodation
thorized by section 1121 of the Agri- Act, as amended (46 U.S.C. 3901–3902);
culture and Food Act of 1981, as amend- (x) Purebred Animal Duty Free Entry
ed by section 1769 of the Food Security Provisions of Tariff Act of June 17,
Act of 1985, 7 U.S.C. 2242a. 1930, as amended (19 U.S.C. 1202, part 1,
(x) Collect, summarize, and publish Item 100.01);
data on the production, distribution, (xi) Virus-Serum-Toxin Act (21 U.S.C.
and stocks of sugar. 151–159).
(xi) Administer a program for Dairy (xii) Conduct diagnostic and related
Product Mandatory Reporting (7 U.S.C. activities necessary to prevent, detect,
1637–1637b), with the assistance of the control or eradicate foot-and-mouth
Under Secretary for Research, Edu- disease and other foreign animal dis-
cation, and Economics. eases (21 U.S.C. 113a);
(xii) Assist the Under Secretary for (xiii) The Agricultural Marketing
Farm and Foreign Agricultural Serv- Act of 1946, sections 203, 205, as amend-
ices with implementing section 3205 of ed (7 U.S.C. 1622, 1624), with respect to
the Food, Conservation, and Energy voluntary inspection and certification
Act of 2008 (22 U.S.C. 7112 note) regard- of animal products; inspection, testing,
ing the Consultative Group to Elimi- treatment, and certification of ani-
nate the Use of Child Labor and Forced mals; and a program to investigate and
Labor in Imported Agricultural Prod- develop solutions to the problems re-
ucts. sulting from the use of sulfonamides in
(2) Related to animal and plant health swine;
inspection. Exercise the functions of the (xiv) Talmadge Aiken Act (7 U.S.C.
Secretary of Agriculture under the fol- 450) with respect to cooperation with
lowing authorities: States in control and eradication of
(i) Administer the Foreign Service plant and animal diseases and pests;
personnel system for employees of the (xv) The Federal Noxious Weed Act of
Animal and Plant Health Inspection 1974, as amended (7 U.S.C. 2801 note;
Service in accordance with 22 U.S.C. 2814).
3922, except that this delegation does (xvi) The Endangered Species Act of
not include the authority to represent 1973 (16 U.S.C. 1531–1544);
the Department of Agriculture in (xvii) Executive Order 11987, 3 CFR,
interagency consultations and negotia- 1977 Comp., p. 116;
tions with other foreign affairs agen- (xviii) Section 101(d), Organic Act of
cies regarding joint regulations, nor 1944 (7 U.S.C. 430);
the authority to approve joint regula- (xix) The Swine Health Protection
tions issued by the Department of Act, as amended (7 U.S.C. 3801–3813);
State relating to administration of the (xx) Lacey Act Amendments of 1981,
Foreign Service; as amended (16 U.S.C. 3371–3378);
(ii) The Terminal Inspection Act, as (xxi) Title III (and title IV to the ex-
amended (7 U.S.C. 166); tent that it relates to activities under
(iii) The Honeybee Act, as amended (7 title III,) of the Federal Seed Act, as
U.S.C. 281–286); amended (7 U.S.C. 1581–1610);
(iv) Section 18 of the Federal Meat (xxii) Authority to prescribe the
Inspection Act, as amended, as it per- amounts of commuted traveltime al-
tains to the issuance of certificates of lowances and the circumstances under
condition of live animals intended and which such allowances may be paid to
offered for export (21 U.S.C. 618); employees covered by the Act of Au-
(v) The responsibilities of the United gust 28, 1950 (7 U.S.C. 2260);
States under the International Plant (xxiii) The Act of March 2, 1931 (7
Protection Convention; U.S.C. 426–426b);

(vi) (Laboratory) Animal Welfare (xxiv) The Act of December 22, 1987 (7
Act, as amended (7 U.S.C. 2131–2159); U.S.C. 426c);
184
(xxv) Authority to work with devel- (xxxviii) Section 10202 of the Food,
oped and transitional countries on ag- Conservation, and Energy Act of 2008 (7
ricultural and related research and ex- U.S.C. 7761).
tension, with respect to animal and (xxxix) Section 10204 of the Food,
plant health, including providing tech- Conservation, and Energy Act of 2008 (7
nical assistance, training, and advice U.S.C. 7701 note).
to persons from such countries engaged (xl) Section 14216 of the Food, Con-
in such activities and the stationing of servation, and Energy Act of 2008 (Pub.
scientists of national and international L. 110–246).
institutions in such countries (7 U.S.C.
(xli) Section 1672(h)(3) of the Food,
3291(a)(3));
Agriculture, Conservation, and Trade
(xxvi) Authority to prescribe and col-
Act of 1990 (7 U.S.C. 5925(h)(3)) regard-
lect fees under the Act of August 31,
1951, as amended (31 U.S.C. 9701), and ing honey bee pest and pathogen sur-
sections 2508 and 2509 of the Food, Agri- veillance.
culture, Conservation, and Trade Act (3) Related to grain inspection, packers
of 1990 (21 U.S.C. 136, 136a), as amended; and stockyards. (i) Exercise the author-
(xxvii) The provisions of 35 U.S.C. 156; ity of the Secretary of Agriculture con-
(xviii) Enter into cooperative retained in the U.S. Grain Standards Act,
search and development agreements as amended (7 U.S.C. 71–87h).
with industry, universities, and others; (ii) Exercise the functions of the Sec-
institute a cash award program to re- retary of Agriculture contained in the
ward scientific, engineering, and tech- Agricultural Marketing Act of 1946, as
nical personnel; award royalties to in- amended (7 U.S.C. 1621–1627), relating
ventors; and retain and use royalty in- to inspection and standardization ac-
come (15 U.S.C. 3710a–3710c); and tivities relating to grain.
(xxix) The Alien Species Prevention (iii) Administer the Packers and
and Enforcement Act of 1992 (39 U.S.C. Stockyards Act, as amended and sup-
3015 note). plemented (7 U.S.C. 181–229).
(xxxx) Sections 901–905 of the Federal (iv) Enforce provisions of the Con-
Agriculture Improvement and Reform sumer Credit Protection Act (15 U.S.C.
Act of 1996 (7 U.S.C. 1901 note). 1601–1655, 1681–1681t) with respect to
(xxxi) Plant Protection Act (Title IV, any activities subject to the Packers
Pub. L. 106–224, 114 Stat. 438, 7 U.S.C. and Stockyards Act, 1921, as amended
7701–7772). and supplemented.
(xxxii) Animal Health Protection Act (v) Exercise the functions of the Sec-
(7 U.S.C. 8301–8317). retary of Agriculture contained in sec-
(xxxiii) Section 10504 of the Farm Se- tion 1324 of the Food Security Act of
curity and Rural Investment Act of 1985 (7 U.S.C. 1631).
2002 (7 U.S.C. 8318). (vi) Administer responsibilities and
(xxxiv) Title V of the Agricultural functions assigned to the Secretary in
Risk Protection Act of 2000 (7 U.S.C. section 11006 of the Food, Conservation,
2279e and 2279f).
and Energy Act of 2008 (7 U.S.C. 228
(xxxv) The responsibilities of the note), with respect to the Packers and
United States related to activities of
Stockyards Act, 1921.
the Office of International des
(4) Related to committee management.
Epizooties.
Establish and reestablish regional,
(xxxvi) Implement the information
disclosure authorities of section State, and local advisory committees
1619(b)(3)(A) of the Food, Conservation, for activities under his or her author-
and Energy Act of 2008 (7 U.S.C. ity. This authority may not be redele-
8791(b)(3)(A)). gated.
(xxxvii) Section 7524 of the Food, (5) Related to defense and emergency
Conservation, and Energy Act of 2008 preparedness. (i) Administer respon-
sibilities and functions assigned under
(21 U.S.C. 113a note), except for the sus-

pension, revocation, or other impair- the Defense Production Act of 1950, as
ment of a permit issued under that sec- amended (50 U.S.C. App. 2061 et seq.),
tion. and title VI of the Robert T. Stafford
185
Disaster Relief and Emergency Assist- in real property required to conduct a

ance Act (42 U.S.C. 5195 et seq.), con- remedial action;
cerning protection of livestock, poul- (v) The first two sentences of section
try and crops and products thereof 105(d) of the Act (42 U.S.C. 9605(d)),
from biological and chemical warfare; with respect to petitions for prelimi-
and utilization or disposal of livestock nary assessment of a release or threat-
and poultry exposed to radiation. ened release;
(ii) Title II, Subtitles B and C, of the (vi) Section 105(f) of the Act (42
Public Health Security and Bioter- U.S.C. 9605(f)), with respect to consider-
rorism Preparedness and Response Act ation of the availability of qualified
of 2002 (7 U.S.C. 8401 note, 8401, 8411). minority firms in awarding contracts,
(6) Related to biotechnology. Coordi- but excluding that portion of section
nate the development and carrying out 105(f) pertaining to the annual report
by Department agencies of all matters to Congress;
and functions pertaining to the Depart- (vii) Section 109 of the Act (42 U.S.C.
ment’s regulation of biotechnology, 9609), with respect to the assessment of
and act as liaison on all matters and civil penalties for violations of section
functions pertaining to the regulation 122 of the Act (42 U.S.C. 9622), and the
of biotechnology between agencies granting of awards to individuals pro-
within the Department and between viding information;
the Department and governmental and (viii) Section 111(f) of the Act (42
private organizations. Provided, that U.S.C. 9611(f)), with respect to the des-
with respect to biotechnology matters ignation of officials who may obligate
affecting egg products, the Assistant money in the Hazardous Substances
Secretary shall consult and coordinate Superfund;
activities of Department agencies with (ix) Section 113(k) of the Act (42
the Under Secretary for Food Safety. U.S.C. 9613(k)), with respect to estab-
Liability Act of 1980 (‘‘the Act’’), as (xi) Sections 117(a) and (c) of the Act
amended: (42 U.S.C. 9617(a) and (c)), with respect
ble to covered work; and emergency (xiv) Section 122 of the Act (42 U.S.C.
procurement powers; 9622), with respect to settlements, but
(iii) Section 104(i)(11) of the Act (42 excluding section 122(b)(1) of the Act
U.S.C. 9604(i)(11)), with respect to the (42 U.S.C. 9622(b)(1)), related to mixed
reduction of exposure to significant funding agreements.
risk to human health; (8) Related to compliance with environ-

(iv) Section 104(j) of the Act (42 mental laws. With respect to facilities
U.S.C. 9604(j)), with respect to the ac- and activities under his or her author-
quisition of real property and interests ity, to exercise the authority of the
186
Secretary of Agriculture pursuant to (iii) Consult with the United States

section 1–102 related to compliance Environmental Protection Agency and
with applicable pollution control other appropriate Federal agencies in
standards and section 1–601 of Execu- developing pollution prevention, con-
tive Order 12088, 3 CFR, 1978 Comp., p. trol, and abatement policies and pro-
243, to enter into an inter-agency grams relating to agencies under his or
agreement with the United States En- her authority.
vironmental Protection Agency, or an (b) The following authorities are re-
administrative consent order or a con- served to the Secretary of Agriculture:
sent judgment in an appropriate State, (1) Relating to agricultural mar-
interstate, or local agency, containing keting.
a plan and schedule to achieve and (i) Promulgation, with the Secretary
maintain compliance with applicable of the Treasury of joint regulations
pollution control standards established under section 402(b) of the Federal Seed
pursuant to the following: Act, as amended (7 U.S.C. 1592(b)).
(i) Solid Waste Disposal Act, as (ii) Appoint members of the National
amended by the Resource Conservation Dairy Promotion and Research Board
and Recovery Act, as further amended established by section 113(b) of the
by the Hazardous and Solid Waste Dairy and Tobacco Adjustment Act of
Amendments, and the Federal Facility 1983 (7 U.S.C. 4504(b)).
Compliance Act (42 U.S.C. 6901 et seq.); (iii) Appoint members of the Na-
(ii) Federal Water Pollution Preven- tional Processor Advertising and Pro-
tion and Control Act, as amended (33 motion Board established by section
U.S.C. 1251 et seq.); 1999H(b)(4) of the Fluid Milk Pro-
(iii) Safe Drinking Water Act, as motion Act of 1990 (7 U.S.C. 6407(b)).
(iv) Appoint members of the Cotton
(iv) Clean Air Act, as amended (42
Board established by section 7(a) of the
U.S.C. 7401 et seq.);
Cotton Research and Promotion Act,
(v) Noise Control Act of 1972, as
as amended (7 U.S.C. 2106(a));
amended (42 U.S.C. 4901 et seq.);
(vi) Toxic Substances Control Act, as (v) Appoint members of the Egg
amended (15 U.S.C. 2601 et seq.); Board established by section 8(a) of the
(vii) Federal Insecticide, Fungicide, Egg Research and Consumer Informa-
and Rodenticide Act, as amended (7 tion Act (7 U.S.C. 2707(a));
U.S.C. 136 et seq.); and (vi) Appoint members of the
(viii) Comprehensive Environmental Floraboard established by section
Response, Compensation, and Liability 1707(1) of the Floral Research and Con-
Act of 1980, as amended by the Super- sumer Information Act (7 U.S.C.
fund Amendments and Reauthorization 4306(1));
Act of 1986 (42 U.S.C. 9601 et seq.). (vii) Appoint members of the Honey
(9) Related to the Capper-Volstead Act. Board established by section 7(c)(1) of
Serve as a member of the Capper-Vol- the Honey Research, Promotion, and
stead Act Committee to identify cases Consumer Information Act, as amended
of undue price enhancement by associa- (7 U.S.C. 4606(c));
tions of producers and issue complaints (viii) Appoint members of the Lime
requiring such associations to show Board established by section 1955(b)(2)
cause why an order should not be made of the Lime Research, Promotion, and
directing them to cease and desist from Consumer Information Act of 1990 (7
monopolization or restraint of trade (7 U.S.C. 6204(b));
U.S.C. 292). (ix) Appoint members of the Mush-
(10) Related to hazardous materials room Council established by section
management. (i) Serve on the USDA 1925(b)(1)(B) of the Mushroom Pro-
Hazardous Materials Policy Council. motion, Research, and Consumer Infor-
(ii) Recommend actions and policies mation Act of 1990 (7 U.S.C. 6104(b));
that enable USDA agencies under his (x) Appoint members of the Pecan
or her authority to comply with the in- Marketing Board established by sec-
tent, purposes, and standards of envi- tion 1910(b)(8)(E) of the Pecan Pro-
ronmental laws for pollution preven- motion and Research Act of 1990 (7
tion, control, and abatement. U.S.C. 6005(b));
187
(xi) Appoint members of the National (xxii) Appoint members of boards es-
Potato Promotion Board established by tablished by section 515(b)(2)(A) of the
section 308(a)(4) of the Potato Research Commodity Promotion, Research, and
and Promotion Act as amended (7 Information Act of 1996 (7 U.S.C.
U.S.C. 2617(a)); 7414(b)).
(xii) Appoint members of the Na- (2) Related to animal and plant health
tional Watermelon Promotion Board inspection. (i) Determination that an
established by section 1647(c) of the emergency or extraordinary emergency
Watermelon Research and Promotion exists under the Animal Health Protec-
Act (7 U.S.C. 4906(c)); tion Act (7 U.S.C. 8306, 8316).
(xiii) Appoint members of the (ii) Determination that an emergency
PromoFlor Council established by sec- or extraordinary emergency exists
tion 5(b) of the Fresh Cut Flowers and under the Plant Protection Act (7
Fresh Cut Greens Act of 1993 (7 U.S.C. U.S.C. 7715, 7772).
6804(b)); (iii) Approval of requests for appor-
(xiv) Appoint members of the Na- tionment of reserves for the control of
tional Kiwifruit Board established by outbreaks of insects, plant diseases,
section 555(c)(1) of the National and animal diseases to the extent nec-
Kiwifruit Research, Promotion, and essary to meet emergency conditions
Consumer Information Act (7 U.S.C. (31 U.S.C. 1512).
7464(c)); (iv) The suspension, revocation, or
(xv) Appoint members of Popcorn other impairment of a permit issued
Board established by section 575(b)(1) of under section 7524 of the Food, Con-
the Popcorn Promotion, Research, and servation, and Energy Act of 2008 (21
Consumer Information Act (7 U.S.C. U.S.C. 113a note).
7484(b)); [60 FR 56393, Nov. 8, 1995, as amended at 61
(xvi) Appoint members of the Wheat FR 25776, May 23, 1996; 61 FR 68541, Dec. 30,
Industry Council established by section 1996; 62 FR 40254, July 28, 1997; 65 FR 12428,
1706(a) of the Wheat and Wheat Foods Mar. 9, 2000; 65 FR 49471, Aug. 14, 2000; 68 FR
Research and Nutrition Education Act 27439, May 20, 2003; 70 FR 55706, Sept. 23, 2005;
(7 U.S.C. 3405(a)); 74 FR 3405, Jan. 21, 2009; 76 FR 4802, Jan. 27,
2011]
(xvii) Appoint members of the Cattle-
men’s Beef Promotion and Research EDITORIAL NOTE: At 70 FR 55706, Sept. 23,
Board established by section 5(1) of the 2005, the Department of Agriculture pub-
lished a document in the FEDERAL REGISTER,
Beef Research and Information Act as
attempting to amend § 2.22, by revising para-
amended (7 U.S.C. 2904(1)); graph (a)(2)(xxxi). However, because of inac-
(xviii) Appoint members of the Na- curate amendatory language, this amend-
tional Pork Board established by sec- ment could not be incorporated. For the con-
tion 1619(a)(1) of the Pork Promotion, venience of the user, the language at 70 FR
Research, and Consumer Information 55706 is set forth as follows:
Act of 1985 (7 U.S.C. 4808(a)); § 2.22 Under Secretary for Marketing and
(xix) Appoint members of the United Regulatory Programs.
Soybean Board established by section (a) * * *
1969(b)(1) of the Soybean Promotion, (2) * * *
Research, and Consumer Information
Act (7 U.S.C. 6304(b));
* * * * *
(xx) Appoint members of the Na-
tional Sheep Promotion, Research, and (xxxii) Plant Protection Act, as amended (7
Information Board established by sec- U.S.C. 7701–7786).
tion 5(b) of the Sheep Promotion, Re-
search, and Information Act (7 U.S.C. * * * * *
7104(b)(1);
(xxi) Appoint members of the Na- § 2.23 Assistant Secretary for Congres-
tional Canola and Rapeseed Board es- sional Relations.
tablished by section 535(b)(1) of the (a) The following delegations of au-

Canola and Rapeseed Research, Pro- thority are made by the Secretary of
motion, and Consumer Information Act Agriculture to the Assistant Secretary
(7 U.S.C. 7444(b)); for Congressional Relations:
188
(1) Related to congressional affairs. (i) § 2.24 Assistant Secretary for Adminis-
Exercise responsibility for coordina- tration.
tion of all congressional matters in the (a) The following delegations of au-
Department. thority are made by the Secretary of
(ii) Maintain liaison with the Con- Agriculture to the Assistant Secretary
gress and the White House on legisla- for Administration:
tive Matters of concern to the Depart- (1) Related to civil rights.(i) Provide
ment. overall leadership, coordination, and
(2) Related to intergovernmental affairs. direction for the Department’s pro-
(i) Coordinate all programs involving grams of civil rights, including pro-
intergovernmental affairs including gram delivery, compliance, and equal
State and local government relations employment opportunity, with empha-
and liaison with: sis on the following:
(A) National Association of State De- (A) Actions to enforce Title VI of the
partments of Agriculture; Civil Rights Act of 1964, 42 U.S.C. 2000d,
prohibiting discrimination in federally
(B) Office of Intergovernmental Rela-
assisted programs.
tions (Office of Vice President); (B) Actions to enforce Title VII of
(C) Advisory Commission on Inter- the Civil Rights Act of 1964, as amend-
governmental Relations; ed, 42 U.S.C. 2000e, prohibiting dis-
(D) Council of State Governments; crimination in Federal employment.
(E) National Governors Conference; (C) Actions to enforce Title IX of the
(F) National Association of Counties; Education Amendments of 1972, 20
(G) National League of Cities; U.S.C. 1681, et seq., prohibiting dis-
(H) International City Managers As- crimination on the basis of sex in
sociation; USDA education programs and activi-
(I) U.S. Conference of Mayors; and ties funded by the Department.
(J) Such other State and Federal (D) Actions to enforce the Age Dis-
agencies, departments and organiza- crimination Act of 1975, 42 U.S.C. 6102,
prohibiting discrimination on the basis
tions as are necessary in carrying out
of age in USDA programs and activities
the responsibilities of this office.
funded by the Department.
(ii) Maintain oversight of the activi- (E) Actions to enforce section 504 of
ties of USDA representatives to the 10 the Rehabilitation Act of 1973, as
Federal Regional councils. amended, 29 U.S.C. 794, prohibiting dis-
(iii) Serve as the USDA contact with crimination against individuals with
the Advisory Commission on Intergov- disabilities in USDA programs and ac-
ernmental Relations for implementa- tivities funded or conducted by the De-
tion of OMB Circular A–85 to provide partment.
advance notification to state and local (F) Actions to enforce related Execu-
governments of proposed changes in tive Orders, Congressional mandates,
Department programs that affect such and other laws, rules, and regulations,
governments. as appropriate.
(iv) Act as the department represent- (ii) Evaluate Departmental agency
ative for Federal executive board mat- programs, activities, and impact state-
ters. ments for civil rights concerns.
(v) Serve as the official with the prin- (iii) Analyze and evaluate program
cipal responsibility for the implemen- participation data and equal employ-
tation of Executive Order 13175, includ- ment opportunity data.
ing consultation and collaboration (iv) Provide leadership and coordi-
nate Departmentwide programs of pub-
with tribal officials, and coordinate the
lic notification regarding the avail-
Department’s programs involving as-
ability of USDA programs on a non-
sistance to American Indians and Alas-
discriminatory basis.
ka Natives. (v) Coordinate with the Department
(b) [Reserved]
of Justice on matters relating to title

[60 FR 56393, Nov. 8, 1995, as amended at 68 VI of the Civil Rights Act of 1964 (42
FR 27439, May 20, 2003; 69 FR 34252, June 21, U.S.C. 2000d), title IX of the Education
2004] Amendments of 1972 (20 U.S.C. 1681, et
189
seq.), and section 504 of the Rehabilita- applicable, make recommendations to

tion Act of 1973, as amended (29 U.S.C. the Secretary that relief be granted
794), except those matters in litigation, under 7 U.S.C. 6998(d) notwithstanding
including administrative enforcement the finality of National Appeals Divi-
actions, which shall be coordinated by sion decisions, as to complaints filed
the Office of the General Counsel. under parts 15a, 15b, and 15d of this
(vi) Coordinate with the Department title.
of Health and Human Services on mat- (xiv) Conduct civil rights investiga-
ters relating to the Age Discrimination tions and compliance reviews Depart-
Act of 1975, 42 U.S.C. 6102, except those mentwide.
matters in litigation, including admin- (xv) Develop regulations, plans, and
istrative enforcement actions, which procedures necessary to carry out the
shall be coordinated by the Office of Department’s civil rights programs, in-
the General Counsel. cluding the development, implementa-
(vii) Order proceedings and hearings tion, and coordination of Action Plans.
in the Department pursuant to §§ 15.9(e) (xvi) Related to Equal Employment Op-
and 15.86 of this title which concern portunity (EEO). Designate the Depart-
consolidated or joint hearings within ment’s Director of Equal Employment
the Department or with other Federal Opportunity with authority:
departments and agencies. (A) To perform the functions and re-
(viii) Order proceedings and hearings sponsibilities of that position under 29
in the Department pursuant to § 15.8 of CFR part 1614, including the authority:
this title after the program agency has
(1) To make changes in programs and
advised the applicant or recipient of
procedures designed to eliminate dis-
his or her failure to comply and has de-
criminatory practices and improve the
termined that compliance cannot be
Department’s EEO program.
secured by voluntary means.
(2) To provide EEO services for man-
(ix) Issue orders to give a notice of
agers and employees.
hearing or the opportunity to request a
hearing pursuant to part 15 of this (3) To make final agency decisions on
title; arrange for the designation of an EEO complaints by Department em-
Administrative Law Judge to preside ployees or applicants for employment
over any such hearing; and determine and order such corrective measures in
whether the Administrative Law Judge such complaints as may be considered
so designated will make an initial deci- necessary, including the recommenda-
sion or certify the record to the Sec- tion for such disciplinary action as is
retary of Agriculture with his or her warranted when an employee has been
recommended findings and proposed ac- found to have engaged in a discrimina-
tion. tory practice.
(x) Authorize the taking of action (B) Administer the Department’s
pursuant to § 15.8(a) of this title relat- EEO program.
ing to compliance by ‘‘other means au- (C) Oversee and manage the EEO
thorized by law.’’ counseling function for the Depart-
(xi) Make determinations required by ment.
§ 15.8(d) of this title that compliance (D) Process formal EEO complaints
cannot be secured by voluntary means, by employees or applicants for employ-
and then take action, as appropriate. ment.
(xii) Make determinations that pro- (E) Investigate Department EEO
gram complaint investigations per- complaints and make final decisions on
formed under § 15.6 of this title estab- EEO complaints, except in those cases
lish a proper basis for findings of dis- where the Assistant Secretary for Ad-
crimination, and that actions taken to ministration (or a person in the imme-
correct such findings are adequate. diate office of the Assistant Secretary
(xiii) Investigate (or make deter- for Administration) or the Assistant
minations that program complaint in- Secretary for Civil Rights (or a person
vestigations establish a proper basis directly supervised by the Assistant

for final determinations), make final Secretary for Civil Rights) has partici-
determinations on both the merits and pated in the events that gave rise to
required corrective action, and, where the matter.
190
(F) Order such corrective measures in (a)(1) to general officers of the Depart-
EEO complaints as may be considered ment and heads of Departmental agen-
necessary, including the recommenda- cies.
tion for such disciplinary action as is (2) Related to information technology
warranted when an employee has been and information resources.
found to have engaged in a discrimina- (i) [Reserved]
tory practice. (ii) Oversee all information tech-
(G) Provide liaison on EEO matters nology and information resource man-
concerning complaints and appeals agement activities relating to the pro-
with the Department agencies and De- grams and operations of the Depart-
partment employees. ment and component agencies. This
(H) Conduct EEO evaluations and de- oversight includes approving informa-
velop policy regarding EEO programs. tion technology investments, moni-
(I) Provide liaison on EEO programs toring and evaluating the performance
and activities with the Equal Employ- of those investments and information
ment Opportunity Commission and the resource management activities, ap-
Office of Personnel Management. proval of all architectures and compo-
(xvii) Administer the discrimination nents thereto and determining whether
appeals and complaints program for to continue, modify, or terminate an
the Department, including all formal information technology program or
individual or group appeals, where the project.
system provides for an avenue of re- (iii) Provide advice and other assist-
dress to the Department level, Equal ance to the Secretary and other senior
Employment Opportunity Commission, management personnel to ensure that
or other outside authority. information technology is acquired and
(xviii) Make final determinations, or managed for the Department con-
enter into settlement agreements, on sistent with chapter 35 of title 44,
discrimination complaints in federally United States Code (Coordination of
conducted programs subject to the Federal Information Policy).
Equal Credit Opportunity Act. This (iv) Develop, implement, and main-
delegation includes the authority to tain a sound and integrated Depart-
make compensatory damage awards ment-wide information technology ar-
whether pursuant to a final determina- chitecture.
tion or in a settlement agreement (v) Promote the effective and effi-
under the authority of the Equal Credit cient design and operation of all major
Opportunity Act and the authority to information resources management
obligate agency funds, including Com- processes for the Department, includ-
modity Credit Corporation and Federal ing improvements to work processes of
Crop Insurance Corporation funds to the Department.
satisfy such an award. (vi) Approve the acquisition or pro-
(xix) Make final determinations in curement of information technology
proceedings under part 15f of this title resources by, or on behalf of, any De-
where review of an administrative law partment agency or office.
judge decision is undertaken. (vii) Collaborate with Department
(xx) Provide civil rights and equal procurement personnel with respect to
employment opportunity support serv- information technology acquisition
ices, with authority to take actions re- strategy and policy.
quired by law or regulation to perform (viii) Designate the Major Informa-
such services for: tion Technology Systems Executive in
(A) The Secretary of Agriculture. USDA to integrate and unify the man-
(B) The general officers of the De- agement process for the Department’s
partment. major information technology system
(C) The offices and agencies reporting acquisitions and to monitor implemen-
to the Assistant Secretary for Admin- tation of the policies and practices set
istration. forth in Office of Management and
(D) Any other offices or agencies of Budget (OMB) Circular No. A–109,
the Department as may be agreed. Major Systems Acquisitions, for infor-
(xxi) Redelegate, as appropriate, any mation technology. This includes the
authority delegated under paragraph authority to:
191
(A) Ensure that OMB Circular No. A– including review of Department and
109 is effectively implemented for in- Agency activities for compliance.
formation technology systems in the (E) Assist OMB in the performance of
Department and that the management its functions assigned under the Paper-
objectives of the Circular are realized. work Reduction Act of 1995 (44 U.S.C.
(B) Review the program management 3501–3520), including review of Depart-
of each major information technology ment and Agency activities for compli-
system acquisition. ance.
(C) Approve the appointment of the (xi) The Assistant Secretary for Ad-
program manager for each major infor- ministration is also responsible for the
mation technology systems acquisi- following:
tion. (A) Provide Department-wide guid-
(D) Designate any Departmental in- ance and direction in planning, devel-
formation technology acquisition as a oping, documenting, and managing ap-
major system acquisition under OMB plications software projects in accord-
Circular No. A–109. ance with Federal and Department in-
(ix) On an annual basis: formation processing standards, proce-
(A) Assess Department-wide per- dures, and guidelines.
sonnel requirements regarding knowl-
(B) Provide Department-wide guid-
edge and skill in information resources
ance and direction in all aspects of in-
management, and the adequacy of such
formation technology, including: Fea-
requirements, to achieve the perform-
sibility studies; economic analyses;
ance goals established for information
systems design; acquisition of equip-
resources management.
ment, software, services, and
(B) Develop strategies and specific
timesharing arrangements; systems in-
plans for hiring, training, and profes-
stallation; systems performance and
sional development at the executive
capacity evaluation; information tech-
and management level to meet per-
nology investment governance; cyber-
sonnel information technology per-
security; and privacy. Monitor these
sonnel requirements.
activities for agencies’ major systems
(C) Report to the Secretary on
development efforts to assure effective
progress made in improving informa-
and economic use of resources and
tion resources management capability.
compatibility among systems of var-
(x) Designate the senior official to
ious agencies when required.
carry out the responsibilities of the De-
(C) Manage the Enterprise Data Cen-
partment under chapter 35 of title 44,
ters, including setting rates to recover
United States Code (Coordination of
the cost of goods and services within
Federal Information Policy), including:
approved policy and funding levels; and
(A) Ensure that the information poli-
oversee the delivery of Enterprise Data
cies, principles, standards, guidelines,
Center goods and services, with author-
rules and regulations prescribed by
ity to take actions required by law or
OMB are appropriately implemented
regulation to perform such services for:
within the Department.
(B) Review proposed Department re- (1) The Secretary of Agriculture.
porting and record keeping require- (2) The general officers of the Depart-
ments, including those contained in ment.
rules and regulations, to ensure that (3) The offices and agencies reporting
they impose the minimum burden upon to the Assistant Secretary for Admin-
the public and have practical utility istration.
for the Department. (4) Any other offices or agencies of
(C) Develop and implement proce- the Department as may be agreed.
dures for assessing the burden to the (D) Manage a comprehensive set of
public and costs to the Department of end user office automation services, in-
information requirements contained in cluding setting rates to recover the
proposed legislation affecting Depart- cost of goods and services within ap-
ment programs. proved policy and funding levels; and

(D) Assist OMB in the performance of oversee the delivery of goods and serv-
its functions assigned under the E-Gov- ices associated with end user office au-
ernment Act of 2002 (Pub. L. 107–347), tomation services, with authority to
192
take actions required by law or regula- transmission equipment, software,

tion to perform such services for any maintenance, and related supplies.
offices or agencies of the Department (L) Manage Departmental tele-
as may be agreed (except for the Office communications contracts.
of the Secretary, the general officers of (M) Provide technical advice
the Department, and the agencies and throughout the Department.
offices reporting to the Assistant Sec- (N) Implement a program for apply-
retary for Administration, as specified ing information resources management
in § 2.24(a)(11)(i)). technology to improve productivity in
(E) Manage the Agricultural Security
the Department.
Operations Center to enable the De-
(O) Plan, develop, install, and operate
partment to effectively monitor, de-
tect, analyze, protect, report, and re- computer-based systems for message
spond against known cyber exchange, scheduling, computer confer-
vulnerabilities, attacks, and exploi- encing, televideo technologies, and
tations. other applications of office automation
(F) Manage the Department’s Certifi- technology which can be commonly
cation and Accreditation process to en- used by multiple Department agencies
sure the Department and agencies have and offices.
successfully conducted periodic risk as- (P) Represent the Department in con-
sessments of its systems; grant the au- tacts with the Government Account-
thority to operate for systems that ability Office, the General Services Ad-
have successfully completed the Cer- ministration, OMB, the National Insti-
tification and Accreditation process; tute of Standards and Technology, and
and rescind or suspend the authority to other organizations or agencies on
operate for systems subject to repeated matters related to delegated respon-
and/or significant security issues. sibilities.
(G) Ensure that OMB Circular No. A– (xii) Implement policies established
16, Coordination of Geographic Infor- pursuant to paragraphs (a)(2)(ii)
mation and Related Spatial Data Ac- through (a)(2)(xi) of this section by:
tivities, is effectively implemented in (A) Disposing of information tech-
the Department and that the manage- nology that is acquired by a Depart-
ment objectives of the Circular are re- ment agency in violation of procedures
alized; and provide Department-wide or standards for the Department Infor-
guidance and direction in governing, mation Systems Technology Architec-
developing, implementing, and main- ture.
taining a sound and integrated (B) Establishing information tech-
geospatial architecture. nology and information resources man-
(H) Review and evaluate information agement performance standards for
technology activities related to dele-
agency Chief Information Officers, in-
gated functions to assure that they
formation resources managers, and
conform to all applicable Federal and
project managers to be used in the per-
Department information technology
formance appraisal process.
management policies, plans, standards,
procedures, and guidelines. (C) Approving the selection of agency
(I) Design, develop, implement, and Chief Information Officers and agency
revise systems, processes, work meth- major information technology system
ods, and techniques to improve the project managers in accordance with
management and operational effective- OMB policies.
ness of information resources. (D) Providing recommendations to
(J) Administer the Departmental Agency Heads for the removal or re-
records, forms, reports and Directives placement of information technology
Management Programs. project managers, when, in the opinion
(K) Manage all aspects of the USDA of the Assistant Secretary for Adminis-
Telecommunications Program includ- tration, applicable laws and policies
are being violated, or, when the cost,
ing planning, development, acquisition,

and use of equipment and systems for schedule, or performance of an infor-
voice, data, and communications, ex- mation technology project would indi-
cluding the actual procurement of data cate management deficiencies.
193
(E) Withdrawing agencies’ authority General may direct; and facilitate pub-
to obligate funds on Information Tech- lic understanding of the purposes of the
nology programs or projects if the statutory exemptions contained in 5
agency violates the Assistant Sec- U.S.C. 552.
retary for Administration policies, (3) Related to financial systems and
standards, or Department Information budget formulation and execution.
Systems Technology Architecture. (i) [Reserved]
(F) Requiring agencies to validate (ii) Oversee all financial management
and verify major information tech- activities relating to the programs and
nology systems through the use of an operations of the Department and com-
existing contract for such purpose des- ponent agencies.
ignated by the Assistant Secretary for (iii) Develop and maintain an inte-
Administration. grated accounting and financial system
(G) Requiring approval by the Assist- for the Department and component
ant Secretary for Administration of agencies, including financial reporting
any proposed acquisition of informa- and internal controls, which—
tion technology (whether through the (A) Complies with applicable ac-
award or modification of a procure- counting principles, standards, and re-
ment contract, a cooperative or other quirements, and internal control stand-
agreement with a non-Federal party, or ards;
an interagency agreement) to ensure
(B) Complies with such policies and
technical conformance to the Depart-
requirements as may be prescribed by
ment technical architecture.
the Director of the Office of Manage-
(H) Providing guidance to USDA re-
ment and Budget (OMB);
garding implementation of Section 508
(C) Complies with any other require-
of the Rehabilitation Act, as well as
ments applicable to such systems; and
on-going consultative assistance re-
garding information technology acces- (D) Provides for complete, reliable,
sibility, and reviewing progress made consistent, and timely information
toward achieving information tech- which is prepared on a uniform basis
nology accessibility for USDA employ- and which is responsive to the financial
ees and individuals with disabilities. information needs of Department man-
(xiii) Related to the Privacy Act. Ap- agement and for the development and
point a Department Privacy Act Offi- reporting of cost information, the inte-
cer; oversee general officers and agency gration of accounting and budgeting
heads in the development and imple- information, and the systematic meas-
mentation of policies issued pursuant urement of performance.
to the provisions of the Privacy Act, 5 (iv) Make recommendations to the
U.S.C. 552a; and provide consultation Secretary regarding the selection of
and guidance regarding those policies. the Deputy Chief Financial Officer of
(xiv) Related to the Freedom of Infor- the Department, and selection of prin-
mation Act. Designate the Chief Free- cipal financial officers of component
dom of Information Act Officer for the agencies of the Department.
Department; oversee general officers (v) Direct, manage, and provide pol-
and agency heads in efficient and ap- icy guidance and oversight of Depart-
propriate compliance with the provi- ment financial management personnel,
sions of the Freedom of Information activities, and operations, including:
Act (5 U.S.C. 552); monitor implementa- (A) Prepare and annually revise a De-
tion of 5 U.S.C. 552 throughout the partmental plan to—
agency and keep the Secretary, the (1) Implement the 5-year financial
General Counsel, and the Attorney management plan prepared by the Di-
General informed regarding agency rector of OMB under 31 U.S.C.
performance in its implementation; 3512(a)(3).
recommend to the Secretary necessary (2) Comply with the requirements es-
adjustments to agency practices, poli- tablished for agency financial state-
cies, personnel, and funding to improve ments under 31 U.S.C. 3515 and with the
implementation of 5 U.S.C. 552; review requirements for audits of Department
and report to the Attorney General, financial statements established in 31
through the Secretary, as the Attorney U.S.C. 3521(e) and (f).
194
(B) Develop Departmental financial ommendations, or other material that

management budgets, including the are the property of the Department or
oversight and recommendation of ap- that are available to the Department,
proval of component agency financial and that relate to programs and oper-
management budgets. ations with respect to which the Chief
(C) Recruit, select, and train per- Financial Officer has responsibilities,
sonnel to carry out Departmental fi- except that this grant allows no access
nancial management functions. greater than that permitted under any
(D) Approve and manage Depart- other law to records, reports, audits,
mental, and approve component agen- reviews, documents, papers, rec-
cy, financial management systems de- ommendations, or other material of
sign or enhancement projects. the Office of Inspector General.
(E) Implement and approve Depart-
(x) Request such information or as-
mental, and approve component agen-
sistance as may be necessary for car-
cy, asset management systems, includ-
rying out the duties and responsibil-
ing systems for cash management,
ities granted by the Chief Financial Of-
credit management, debt collection,
and property and inventory manage- ficers Act of 1990 (Pub. L. 101–576), from
ment and control. any Federal, State, or local govern-
(vi) Prepare and transmit, by not mental entity.
later than 60 days after the submission (xi) To the extent and in such
of the audit report required by 31 amounts as may be provided in advance
U.S.C. 3521(f), an annual report to the by appropriations acts, enter into con-
Secretary and the Director of OMB, tracts and other arrangements with
which shall include: public agencies and with private per-
(A) A description and analysis of the sons for the preparation of financial
status of financial management of the statements, studies, analyses, and
Department. other services, and make such pay-
(B) The annual financial statements ments as may be necessary to carry
prepared under 31 U.S.C. 3521. out the duties and prerogatives of the
(C) The audit report transmitted to Chief Financial Officer.
the Secretary under 31 U.S.C. 3521. (xii) Designate the Department’s
(D) A summary of the reports on in- Comptroller of the Department Work-
ternal accounting and administrative ing Capital Fund.
control systems submitted to the (xiii) Establish Departmental poli-
President and the Congress under the cies, standards, techniques, and proce-
amendments made by the Federal Man- dures applicable to all USDA agencies
agers’ Financial Integrity Act of 1982 for the following areas:
(31 U.S.C. 1113, 3512).
(A) Development, maintenance, re-
(E) Other information the Secretary
view and approval of all departmental,
considers appropriate to inform fully
and review and approval of component
the President and the Congress con-
agency, internal control, fiscal, finan-
cerning the financial management of
cial management and accounting sys-
the Department.
tems including the financial aspects of
(vii) Monitor the financial execution
of the budget of the Department in repayment management and property
lation to projected and actual expendi- systems.
tures, and prepare and submit to the (B) Selection, standardization, and
Secretary timely performance reports. simplification of program delivery
(viii) Review, on a biennial basis, the processes utilizing grants, cooperative
fees, royalties, rent, and other charges agreements and other forms of Federal
imposed by the Department for serv- assistance.
ices and things of value it produces, (C) Review and approval of Federal
and make recommendations on revis- assistance, internal control, fiscal, ac-
ing those charges to reflect costs in- counting and financial management
regulations and instructions proposed
curred by the Department in providing

those services and things of value. or issued by USDA agencies for con-
(ix) Access all records, reports, au- formity with Departmental require-
dits, reviews, documents, papers, rec- ments.
195
(D) Section 5301 of the Anti-Drug (D) Reviewing and monitoring agency
Abuse Act of 1988 (21 U.S.C. 862) as it implementation of Federal assistance
relates to grants, loans, and licenses. policies.
(xiv) Establish policies related to the (E) Reviewing and approving agen-
Department Working Capital Fund. cies’ accounting systems documenta-
(xv) Approve regulations, procedures tion including related development
and rates for goods and services fi- plans, activities, and controls.
nanced through the Department Work- (F) Monitoring agencies’ progress in
ing Capital Fund which will impact the developing and revising accounting and
financial administration of the Fund. financial management systems and in-
(xvi) Exercise responsibility and au- ternal controls.
thority for operating USDA’s financial (G) Evaluating agencies’ financial
and subsidiary management systems systems to determine the effectiveness
and related administrative systems in- of procedures employed, compliance
cluding: Departmentwide payroll and with regulations, and the appropriate-
personnel information systems, statis- ness of policies and practices.
tics, administrative payments, billings (H) Promulgation of Department
and collections, and related reporting schedule of fees and charges for repro-
systems that are either requested by ductions, furnishing of copies and mak-
the agencies or required by the Depart- ing searches for official records pursu-
ment. ant to the Freedom of Information Act,
(xvii) Manage the National Finance 5 U.S.C. 552.
Center (NFC). (I) Monitoring USDA implementation
(xviii) Provide management support of section 5301 of the Anti-Drug Abuse
services for the NFC, and by agreement Act of 1988 (21 U.S.C. 862) as it relates
with agency heads concerned, provide to grants, loans, and licenses.
such services for other USDA tenants (xx) Establish Department and ap-
housed in the same facility. As used proving component agency programs,
herein, such management support serv- policies, standards, systems, tech-
ices shall include: niques and procedures to improve the
management and operational efficiency
(A) Personnel services, as listed in
and effectiveness of the USDA includ-
§ 2.24(a)(4)(x), and organizational sup-
ing:
port services, with authority to take
actions required by law or regulation (A) Increased use of operations re-
search and management science in the
to perform such services.
areas of productivity and management.
(B) Procurement, property manage-
(B) All activities financed through
ment, space management, communica-
the Department Working Capital Fund.
tions, messenger, paperwork manage-
ment, and related administrative serv- (xxi) Develop Departmental policies,
standards, techniques, and procedures
ices, with authority to take actions re-
for the conduct of reviews and analysis
quired by law or regulation to perform
of the utilization of the resources of
such services.
State and local governments, other
(xix) Exercise responsibility and au- Federal agencies and of the private sec-
thority for all matters related to the tor in domestic program operations.
Department’s accounting and financial
(xxii) Represent the Department in
operations including such activities as: contacts with OMB, General Services
(A) Financial administration, includ- Administration, GAO, Department of
ing accounting and related activities. the Treasury, Office of Personnel Man-
(B) Reviewing financial aspects of agement, Department of Health and
agency operations and proposals. Human Services, Department of Labor,
(C) Furnishing consulting services to Environmental Protection Agency, De-
agencies to assist them in developing partment of Commerce, Congress of the
and maintaining accounting and finan- United States, State and local govern-
cial management systems and internal
ments, universities, and other public

controls, and for other purposes con- and private sector individuals, organi-
sistent with delegations in paragraph zations or agencies on matters related
(a)(3)(xiii) of this section. to assigned responsibilities.
196
(xxiii) Establish policies related to retary, general officers and other De-
travel by USDA employees. partment and agency officials in for-
(xxiv) Exercise responsibility for co- mulating and implementing USDA
ordinating and overseeing the imple- policies and programs.
mentation of the Government Perform- (F) Review and analyze legislation,
ance and Results Act of 1993, Public regulations, and policy options to de-
Law 103–62, at the Department. termine their impact on USDA pro-
(xxv) Provide budget, accounting, fis- grams and policy objectives and on the
cal and related financial management Department’s budget.
services, with authority to take action (G) Monitor ongoing studies with sig-
required by law or regulation to pro- nificant program or policy implica-
vide such services for Working Capital tions.
Funds and general appropriated and (4) Related to human resources manage-
trust funds for: ment.(i) Formulate and issue Depart-
(A) The Secretary of Agriculture. ment policy, standards, rules, and reg-
(B) The general officers of the De- ulations relating to human resources
partment, except the Inspector Gen- management.
eral. (ii) Provide human resources man-
(C) The offices and agencies reporting agement procedural guidance and oper-
to the Assistant Secretary for Admin- ational instructions.
istration. (iii) Set standards for human re-
(D) Any other offices and agencies of sources data systems.
the Department as may be agreed. (iv) Inspect and evaluate human re-
(xxvi) Develop, promulgate, and co- sources management operations and
ordinate Department-wide policy con- issue instructions or take direct action
cerning nonprocurement debarment to insure conformity with appropriate
and suspension. laws, Executive Orders, Office of Per-
(xxvii) Prepare and submit to Con- sonnel Management (OPM) rules and
gress reports on conferences sponsored regulations, and other appropriate
or held by the Department or attended rules and regulations.
by employees of the Department (7 (v) Exercise final authority in all
U.S.C. 2255b). human resources matters, including in-
(xxviii) Related to budget formulation dividual cases, that involve the juris-
and program analysis.(A) Designate the diction of more than one General Offi-
Department’s Budget Officer and exer- cer or agency head, or otherwise as
cise general responsibility and author- deemed appropriate.
ity for all matters related to the De- (vi) Receive, review, and recommend
partment’s budgeting affairs including: action on all requests for the Sec-
(1) Resource administration, includ- retary’s approval in human resources
ing all phases of the acquisition, and matters.
distribution of funds and staff years. (vii) Authorize and make final deci-
(2) Legislative and regulatory report- sions on adverse actions, except in
ing and related activities. those cases where the Assistant Sec-
(B) Provide staff assistance for the retary for Administration has partici-
Secretary, general officers, and other pated.
Department and agency officials. (viii) Represent the Department in
(C) Formulate and promulgate De- human resources matters in all con-
partmental budgetary, legislative and tacts outside the Department.
regulatory policies and procedures. (ix) Exercise specific authorities in
(D) Represent the Department in con- the following operational matters:
tacts with OMB, the GAO, the Depart- (A) Waive repayment of training ex-
ment of the Treasury, Congressional penses where an employee fails to ful-
Committees on Appropriations, and fill service agreement.
other organizations and agencies on (B) Establish or change standards
matters related to his or her responsi- and plans for awards to private citi-
bility. zens.
(E) Coordinate and/or conduct policy (C) Execute, change, extend, or
and program analyses on agency oper- renew:
ations and proposals to assist the Sec- (1) Labor-Management Agreements.
197
(2) Certifications of supervisory/man- (Q) Initiate and take adverse action

agerial and non-labor union employee in cases involving a violation of the
and professional organizations or asso- merit system.
ciations. (R) Any other human resources oper-
(D) Represent the Department in con- ational matter.
tacts with the national offices of labor (x) As used in this section, the term
organizations in fulfilling the Depart- human resources includes:
ment’s national consultation obliga- (A) Position management.
tions under 5 U.S.C. 7113. (B) Position classification.
(E) Change a position (with no mate- (C) Employment.
rial change in duties) from one pay sys- (D) Pay administration.
tem to another. (E) Automation of human resources
(F) Grant restoration rights, and re- data and systems.
lease employees with administrative (F) Hours of duty.
reemployment rights. (G) Performance management.
(G) Authorize any mass dismissals of (H) Promotions.
employees in the Washington, DC, met- (I) Employee development.
ropolitan area. (J) Incentive Programs.
(H) Approve ‘‘normal line of pro- (K) Leave.
motion’’ cases in the excepted service (L) Retirement.
where not in accordance with time-in- (M) Human resources program man-
grade criteria. agement accountability and evalua-
(I) Make the final decision on all tion.
classification appeals filed with the De- (N) Social security.
partment of Agriculture. (O) Life insurance.
(J) Authorize all employment actions (P) Health benefits.
(except nondisciplinary separations (Q) Unemployment compensation.
and LWOP) and classification actions (R) Labor management relations.
for senior level and equivalent posi- (S) Intramanagement consultation.
tions including Senior Executive Serv- (T) [Reserved]
ice positions and special authority pro- (U) Discipline.
fessional and scientific positions re- (V) Appeals.
sponsible for carrying out research and (W) Drug Testing Program.
development functions. (X) Worklife Program.
(K) Authorize all employment ac- (Y) Transit Subsidy Program.
tions (except LWOP) for the following (Z) Alternative Dispute Resolution.
positions: (xi) Maintain, review, and update De-
(1) Schedule C. partmental delegations of authority.
(2) Non-career Senior Executive Serv- (xii) Authorize organizational
ice or equivalent. changes.
(3) Administrative Law Judge. (xiii) Formulate and promulgate de-
(L) Authorize and make final deci- partmental organizational objectives
sions on adverse actions for positions and policies.
in GS–1—15 or equivalent. (xiv) Approve coverage and waiver of
(M) Authorize and make final deci- individual law enforcement and fire-
sions on adverse actions for positions fighter positions under the special re-
in the career Senior Executive Service tirement provisions of the Civil Service
or equivalent. Retirement System and the Federal
(N) Approve the details of Depart- Employees Retirement System.
ment employees to the White House. (xv) Provide for diversity and inclu-
(O) Authorize adverse actions based sion, as follows:
in whole or in part on an allegation of (A) Establish, direct, and provide pol-
violation of 5 U.S.C. chapter 73, sub- icy and oversight for a Department-
chapter III, for employees in the ex- wide Special Emphasis Program (SEP)
cepted service.
including: Women, African Americans,

(P) Authorize long-term training in Hispanics, Asian/Pacific Islanders, Na-
programs which require Department- tive Americans, Disabled, and Gay/Les-
wide competition. bian/Bisexual/Transgender.
198
(B) Provide oversight and support for retary on the Department’s ADR ac-
Departmental SEP recognition pro- tivities.
grams. (xxi) Redelegate, as appropriate, any
(C) Direct and oversee the Depart- authority delegated under paragraphs
ment-wide SEPM Council. (a)(4)(i) through (a)(4)(xx) to general of-
(D) Administer Federal Equal Oppor- ficers of the Department and heads of
tunity Recruitment Program. Departmental agencies.
(xvi) Oversee and manage the Depart- (xxii) Related to ethics. Provide ad-
ment’s administrative grievance pro- ministrative supervision for the Office
gram. of Ethics.
(xvii) Make final decisions in those (5) Related to small and disadvantaged
cases where an agency head has ap- business utilization. (i) In compliance
pealed the recommended decision of a with Public Law 95–507, the Assistant
grievance examiner.
Secretary for Administration is des-
(xviii) Administer the administrative ignated as the Department’s Director
appeals process related to the inclusion
for Small and Disadvantaged Business
of positions in the testing designated
Utilization. The Director of Small and
position listing in the Department’s
Disadvantaged Business Utilization has
Drug-Free Workplace Program and des-
ignate the final appeal officer for that specific responsibilities under the
Program. Small Business Act, 15 U.S.C. 644(k).
(xix) Formulate and issue Depart- These duties include being responsible
ment policy, standards, rules, and reg- for the following:
ulations relating to the Senior Sci- (A) Administer the Department’s
entific Research Service (7 U.S.C. 7657). small and disadvantaged business ac-
(xx) Related to conflict management. tivities related to procurement con-
(A) Designate the senior official to tracts, minority bank deposits, and
serve as the Department Dispute Reso- grants and loan activities affecting
lution Specialist under the Administra- small and minority businesses includ-
tive Dispute Resolution Act of 1996, 5 ing women-owned business, and the
U.S.C. 571, et seq., and provide leader- small business, small minority busi-
ship, direction and coordination for the ness and small women-owned business
Department’s conflict prevention and subcontracting programs.
resolution activities. (B) Provide Departmentwide liaison
(B) Issue Departmental regulations, and coordination of activities related
policies, and procedures relating to the to small, small disadvantaged, and
use of Alternative Dispute Resolution women-owned businesses with the
(ADR) to resolve employment com- Small Business Administration and
plaints and grievances, workplace dis- others in public and private sector.
putes, Departmental program disputes, (C) Develop policies and procedures
and contract and procurement dis-
required by the applicable provision of
putes.
the Small Business Act, as amended, to
(C) Provide ADR services for:
include the establishment of goals.
(1) The Secretary of Agriculture.
(D) Implement and administer pro-
(2) The general officers of the Depart-
grams described under sections 8 and 15
ment.
of the Small Business Act, as amended
(3) The offices and agencies reporting
(15 U.S.C. 637 and 644).
to the Assistant Secretary for Admin-
istration. (E) In compliance with the Veterans
(4) Any other office or agency of the Benefits Act of 2003 (Pub. L. 108–183)
Department as may be agreed. amending the Small Business Act, im-
(D) Develop and issue standards for plement and administer procurement
mediators and other ADR neutrals uti- programs for small business concerns
lized by the Department. owned and controlled by service-dis-
(E) Coordinate ADR activities abled veterans.
throughout the Department. (ii) In compliance with the Javits-

(F) Monitor agency ADR programs Wagner-O’Day Act (41 U.S.C. 46 et seq.),
and report at least annually to the Sec-
199
implement and administer the Depart- with the Office of the Federal Environ-
ment’s AbilityOne program for pur- mental Executive, the Council on Envi-
chases from qualified nonprofit agen- ronmental Quality, the Office of Man-
cies for the blind or for the severely agement and Budget (OMB), the De-
disabled. partment of Energy, and other Govern-
(6) Related to procurement and property ment agencies in these matters.
management.(i) Exercise full Depart- (J) Implementation of a program for
mentwide contracting and procurement the Federal procurement of biobased
authority. products and of a voluntary ‘‘USDA
(ii) Promulgate policies, standards, Certified Biobased Product’’ labeling
techniques, and procedures, and rep- program (7 U.S.C. 8102).
resent the Department, in the fol- (K) Entering into cooperative agree-
lowing: ments to further research programs in
(A) Acquisition, including, but not the food and agricultural sciences, re-
limited to, the procurement of sup- lated to establishing and implementing
plies, services, equipment, and con- Federal biobased procurement and vol-
struction. untary biobased labeling programs (7
(B) Socioeconomic programs relating U.S.C. 3318).
to contracting. (L) Implementation of the policies
(C) Selection, standardization, and and procedures set forth in OMB Cir-
simplification of program delivery cular No. A–76, Performance of Com-
processes utilizing contracts. mercial Activities.
(D) Acquisition, leasing, utilization, (iii) Exercise the following special
value analysis, construction, mainte- authorities:
nance, and disposition of real and per- (A) Designate the Departmental De-
sonal property, including control of barring Officer to perform the func-
space assignments. tions of 48 CFR part 9, subpart 9.4 re-
(E) Motor vehicle and aircraft fleet lated to procurement activities, except
and other vehicular transportation. for commodity acquisitions on behalf
(F) Transportation of things (traffic of the Commodity Credit Corporation
management). (7 CFR part 1407); with authority to re-
(G) Prevention, control, and abate- delegate suspension and debarment au-
ment of pollution with respect to Fed- thority for contracts awarded under
eral facilities and activities under the the School Lunch and Surplus Removal
control of the Department (Executive Programs (42 U.S.C. 1755 and 7 U.S.C.
Order 12088, ‘‘Federal Compliance With 612c).
Pollution Control Standards,’’ 3 CFR, (B) Conduct liaison with the Office of
1978 Comp., p. 243). the Federal Register (1 CFR part 16) in-
(H) Implementation of the Uniform cluding the making of required certifi-
Relocation Assistance and Real Prop- cations pursuant to 1 CFR part 18.
erty Acquisition Policies Act of 1970 (42 (C) Maintain custody and permit ap-
U.S.C. 4601, et seq.). propriate use of the official seal of the
(I) Development and implementation Department.
of sustainable operations actions in- (D) Establish policy for the use of the
cluding establishing and achieving official flags of the Secretary and the
greenhouse gas emission reduction Department.
goals, reducing energy intensity, in- (E) Coordinate collection and disposi-
creasing renewable energy use, increas- tion of personal property of historical
ing water efficiency, reducing petro- significance.
leum use and increasing alternative (F) Make information returns to the
fuel use, increasing recycling and Internal Revenue Service as prescribed
waste diversion, preventing pollution, by 26 U.S.C. 6050M and by 26 CFR
reducing use of toxic chemicals, pro- 1.6050M–1 and such other Treasury reg-
curing sustainable products and serv- ulations, guidelines or procedures as
ices, achieving sustainable principles may be issued by the Internal Revenue
for new and existing buildings, pro- Service in accordance with 26 U.S.C.
moting electronic stewardship, and 6050M. This includes making such
continuing environmental manage- verifications or certifications as may
ment system use. Maintain liaison be required by 26 CFR 1.6050M–1 and
200
making the election allowed by 26 CFR (E) Approving any Departmental and
1.6050M–1(d)(5)(1). component agency procurement sys-
(G) Promulgate regulations for the tems and processes.
management of contracting and pro- (F) Managing and enhancing career
curement for information technology development of the Department’s ac-
and telecommunication equipment, quisition workforce.
software, services, maintenance and re- (G) Participating in the development
lated supplies. of Governmentwide procurement poli-
(H) Represent the Department in cies, regulations, and standards, and
working with the Government Ac- determining specific areas where Gov-
countability Office (GAO), the General ernmentwide performance standards
Services Administration, OMB, and should be established and applied.
other organizations or agencies on (H) Developing unique Departmental
matters related to assigned responsibil- standards as required.
(I) Overseeing the development of
ities.
procurement goals, guidelines, and in-
(iv) Serve as the Acquisition Execu-
novation.
tive in the Department to integrate (J) Measuring and evaluating pro-
and unify the management process for curement office performance against
the Department’s major system acqui- stated goals.
sitions and to monitor implementation (K) Advising the Secretary whether
of the policies and practices set forth goals are being achieved.
in OMB Circular No. A–109, Major Sys- (L) Prescribing standards for agency
tems Acquisitions. This includes the Procurement Executives.
authority to: (M) Redelegating, suspending, or re-
(A) Ensure that OMB Circular No. A– voking, as appropriate, the authority
109 is effectively implemented in the in paragraph (a)(6)(v)(A) of this section
Department and that the management to agency Procurement Executives or
objectives of the Circular are realized. other qualified agency officials with no
(B) Review the program management power of further redelegation.
of each major system acquisition. (N) Redelegating, suspending, or re-
(C) Designate the program manager voking, as appropriate, the authorities
for each major systems acquisition. in paragraphs (a)(6)(v)(B), (C), (D), (F),
(D) Designate any Departmental ac- and (G) of this section to agency Pro-
quisition as a major system acquisition curement Executives or other qualified
under OMB Circular No. A–109. agency officials with the power of fur-
(v) Pursuant to Executive Order ther redelegation.
12931, ‘‘Federal Procurement Reform,’’ (vi) Represent the Department in es-
3 CFR, 1994 Comp., p. 925, and sections tablishing standards for acquisition
16, 22, and 37 of the Office of Federal transactions within the electronic data
Procurement Policy Act, as amended, interchange environment.
41 U.S.C. 414, 418b, and 433, designate (vii) Designate the Departmental
the Senior Procurement Executive for Task Order Ombudsman pursuant to 41
U.S.C. 253j.
the Department and delegate responsi-
(viii) Designate the Departmental
bility for the following:
Remedy Coordination Official pursuant
(A) Prescribing and publishing De- to 41 U.S.C. 255 to determine whether
partmental acquisition policies, payment to any contractor should be
advisories, regulations, and procedures. reduced or suspended based on substan-
(B) Taking any necessary actions tial evidence that the request of the
consistent with policies, regulations, contractor for advance, partial, or
and procedures with respect to pur- progress payment is based on fraud.
chases, contracts, leases, agreements, (ix) Review and approve exemptions
and other transactions. for USDA contracts, subcontracts,
(C) Designating contracting officers. grants, agreements, and loans from the
(D) Establishing clear lines and limi- requirements of the Clean Air Act, as
tations of contracting authority amended (42 U.S.C. 7401, et seq.), the
through written delegations of author- Federal Water Pollution Control Act,
ity. as amended (33 U.S.C. 1251, et seq.), and
201
Executive Order 11738, ‘‘Providing for formance’’ (74 FR 52117, Oct. 8, 2009) re-
Administration of the Clean Air Act sponsible for developing and achieving
and the Federal Water Pollution Con- greenhouse gas emission reduction tar-
trol Act With Respect to Federal Con- gets, developing and implementing a
tracts, Grants, or Loans,’’ 3 CFR, 1971– Strategic Sustainability Performance
1975 Comp., p. 799, when he or she deter- Plan, achieving sustainable practice
mines that the paramount interest of goals in Executive Order 13423,
the United States so requires as pro- ‘‘Strengthening Federal Environ-
vided in these acts and Executive Order mental, Energy, and Transportation
and the regulations of the EPA (2 CFR Management,’’ 3 CFR, 2007 Comp., p.
1532.1140). 191, and reporting USDA’s progress to
(x) Transfer excess research equip- OMB and the Council on Environ-
ment to eligible educational institu- mental Quality.
tions or certain non-profit organiza- (xvi) Pursuant to the Office of Fed-
tions for the conduct of technical and eral Procurement Policy Act (Act), as
scientific education and research ac- amended (41 U.S.C. 401, et seq.), des-
tivities under section 11(i) of the Ste- ignate the Department’s Advocate for
venson-Wydler Technology Innovation Competition with the responsibility for
Act of 1980 (15 U.S.C. 3710(i)) (7 CFR section 20 of the Act (41 U.S.C. 418), in-
part 2812). cluding:
(xi) Promulgate policy and obtain (A) Reviewing the procurement ac-
and furnish Federal excess personal tivities of the Department.
property in accordance with section 923 (B) Developing new initiatives to in-
of Public Law 104–127 (7 U.S.C. 2206a), crease full and open competition.
to support research, educational, tech- (C) Developing goals and plans and
nical and scientific activities or for re- recommending actions to increase
lated programs, to: competition.
(A) Any 1994 Institutions (as defined (D) Challenging conditions unneces-
in section 532 of the Equity in Edu- sarily restricting competition in the
cational Land-Grant Status Act of 1994 acquisition of supplies and services.
(Pub. L. 103–382; 7 U.S.C. 301 note)). (E) Promoting the acquisition of
(B) Any Institutions eligible to re- commercial items.
ceive funds under the Act of August 30, (F) Designating an Advocate for
1890 (7 U.S.C. 321, et seq.) including Competition for each procuring activ-
Tuskegee University. ity within the Department.
(C) Any Hispanic-serving Institutions (xvii) Related to compliance with envi-
(as defined in sections 316(b) of the ronmental laws and sustainable operating
Higher Education Act of 1965 (20 U.S.C. requirements. (A) Serve as Chair of the
1059c(b)). USDA Sustainable Operations Council.
(xii) Make available to organizations (B) Represent USDA in consulting or
excess or surplus computers or other working with the EPA, the Council on
technical equipment of the Department Environmental Quality, the Domestic
for the purpose of distribution to cit- Policy Council, and others to develop
ies, towns, or local government entities policies relating to hazardous mate-
in rural areas (7 U.S.C. 2206b). rials management and Federal facili-
(xiii) Issue regulations and directives ties compliance with applicable pollu-
to implement or supplement the Fed- tion control laws.
eral Acquisition Regulations (48 CFR (C) Monitor, review, evaluate, and
Chapters 1 and 4). oversee hazardous materials manage-
(xiv) Issue regulations and directives ment program activities and compli-
to implement or supplement the Fed- ance Department-wide.
eral Property Management Regulations (D) Monitor, review, evaluate, and
(41 CFR chapter 101) and the Federal oversee USDA agency expenditures for
Management Regulation (41 CFR chap- hazardous materials management pro-
ter 102). gram accomplishments.
(xv) Serve as USDA Senior Sustain- (E) Represent USDA on the National
ability Officer under Executive Order Response Team and exercise responsi-
13514, ‘‘Federal Leadership in Environ- bility for USDA response efforts for
mental, Energy, and Economic Per- hazardous substance releases and oil
202
spills pursuant to the Comprehensive Implementation,’’ 3 CFR, 1987 Comp., p.

Environmental Response, Compensa- 193 (Executive Order 13308, ‘‘Further
tion, and Liability Act of 1980, as Amendment to Executive Order 12580,
amended (42 U.S.C. 9601, et seq.); the As Amended, Superfund Implementa-
Clean Water Act, as amended (33 U.S.C. tion,’’ 3 CFR, 2003 Comp., p. 239).
1251, et seq.); Oil Pollution Act, as (xviii) Related to occupational safety
amended (33 U.S.C. 2701, et seq.); Execu- and health.(A) Establish Department-
tive Order 12580, ‘‘Superfund Implemen- wide safety and health policy and pro-
tation,’’ 3 CFR, 1987 Comp., p. 193; Ex- vide leadership in the development, co-
ecutive Order 12777, ‘‘Implementation ordination, and implementation of re-
of section 311 of the Federal Water Pol- lated standards, techniques, and proce-
lution Control Act of October 18, 1972, dures, and represent the Department in
as amended, and the Oil Pollution Act complying with laws, Executive Orders
of 1990,’’ 3 CFR, 1991 Comp., p. 351, and and other policy and procedural
the National Oil and Hazardous Sub- issuances related to occupational safe-
stances Contingency Plan, 40 CFR Part ty and health and workers’ compensa-
300. tion programs within the Department.
(F) Approve disbursements from the (B) Represent the Department in all
New World Mine Response and Restora- rulemaking, advisory, or legislative ca-
tion Account, approve the New World pacities on any groups, committees, or
Mine Response and Restoration Plan, Governmentwide activities that affect
and make quarterly reports to Con- the Department’s Occupational Safety
gress under Sections 502(d) and (f) of and Health Management Program; and
Title V of the Department of the Inte- serve as the USDA Designated Safety
rior and Related Agencies Appropria- and Health Official.
tions Act of 1998, Public Law 105–83.
(C) Determine and provide Depart-
(G) Ensure that the Hazardous Mate-
mentwide technical services and re-
rials Management Program Depart-
gional staff support for the safety and
ment-wide is accomplished with regard
health programs.
to, and in compliance with, Executive
(D) Administer the computerized
Order 12898, ‘‘Federal Actions to Ad-
management information systems for
dress Environmental Justice in Minor-
the collection, processing and dissemi-
ity Populations and Low-Income Popu-
nation of data related to the Depart-
lations,’’ 3 CFR, 1994 Comp. p. 859.
ment’s occupational safety and health
(H) Take such action as may be nec-
programs.
essary, with the affected agency head
and with the concurrence of the Gen- (E) Administer the Department’s Oc-
eral Counsel, including issuance of ad- cupational Health and Preventive Med-
ministrative orders and agreements icine Program, as well as design and
with any person to perform any re- operate employee assistance and work-
sponse action under sections 106(a) and ers’ compensation activities.
122 (except subsection (b)(1)) of the (F) Provide education and training
Comprehensive Environmental Re- on a Departmentwide basis for safety
sponse, Compensation, and Liability and health-related issues and develop
Act of 1980, as amended (42 U.S.C. resource and operational manuals.
9606(a), 9622), pursuant to sections (7) Related to advocacy and outreach.
4(c)(3) and 4(d)(3) of Executive Order (i) Ensure that small farms and
12580, ‘‘Superfund Implementation,’’ 3 ranches, beginning farmers or ranch-
CFR, 1987 Comp., p. 193, as amended by ers, and socially disadvantaged farmers
Executive Order 13016, ‘‘Amendment to or ranchers have access to, and equi-
Executive Order No. 12580,’’ 3 CFR, 1996 table participation in, programs and
Comp., p. 214. services of the Department pursuant to
(I) Represent USDA on the EPA section 226B(c) of the Department of
Brownfields Federal Partnership and Agriculture Reorganization Act of 1994
coordinate USDA support for (7 U.S.C. 6934(c)).
(ii) Oversee the Advisory Committee
Brownfields redevelopment and estab-

lish policy and guidance for the imple- for Beginning Farmers and Ranchers.
mentation of the June 2003 amendment (iii) Oversee the operations of the Of-
to Executive Order 12580, ‘‘Superfund fice of Small Farms Coordination.
203
(iv) Administer section 2501 of the clearances for USDA employees and
Food, Agriculture, Conservation, and contractors.
Trade Act of 1990 (7 U.S.C. 2279), except (ii) Administer the Department
for authorities related to the Census of Emergency Preparedness Program.
Agriculture and economic studies in This includes:
subsection (h) of that section. (A) Coordinate the delegations and
(v) Establish and oversee the Minor- assignments made to the Department
ity Farmer Advisory Committee pursu- under the Defense Production Act of
ant to section 14008 of FCEA (7 U.S.C. 1950, 50 U.S.C. App. 2061, et seq.; the
2279 note). Robert T. Stafford Disaster Relief and
(vi) Administer the low-income mi- Emergency Assistance Act, 42 U.S.C.
grant and seasonal farmworker grants 5121, et seq.; and by Executive Orders
program under section 2281 of the Food, 12148, ‘‘Federal Emergency Manage-
Agriculture, Conservation, and Trade ment,’’ 3 CFR, 1979 Comp., p. 412, 12919,
Act of 1990 (42 U.S.C. 5177a). ‘‘National Defense Industrial Resources
(vii) Consult with appropriate enti- Preparedness,’’ 3 CFR, 1994 Comp., p.
ties regarding integration of farm- 901, and 12656, ‘‘Assignment of Emer-
worker interests into Department pro- gency Preparedness Responsibilities,’’ 3
grams, including assisting farmworkers CFR, 1988 Comp., p. 585; or any suc-
in becoming agricultural producers or cessor to these Executive Orders, to en-
landowners, and research, program im- sure that the Department has suffi-
provements, and agricultural education cient capabilities to respond to any oc-
opportunities for low-income and mi- currence, including natural disaster,
grant seasonal farmworkers. military attack, technological emer-
(viii) Administer the grants program gency, or any all hazards incident.
under section 14204 of FCEA (7 U.S.C. (B) Manage the Department Emer-
2008q–1) to improve the supply, sta- gency Operations Center at Head-
bility, safety, and training of the agri- quarters and the Secretary’s alter-
cultural labor force. native facilities; provide senior staff
(ix) Administer and coordinate a with international, national, and re-
USDA outreach program in collabora- gional situational awareness reports;
tion with USDA agencies. and provide and maintain current in-
(x) Administer section 2501A of the formation systems technology and Na-
Food, Agriculture, Conservation, and tional Security Systems to support
Trade Act of 1990 (7 U.S.C. 2279–1), in- USDA executive crisis management ca-
cluding the authority to coordinate De- pability.
partment policy for the issuance of re- (C) Provide facilities and equipment
ceipts under subsection (e) of that sec- to facilitate inter-agency coordination
tion. during emergencies.
(xi) Provide strategic planning and (D) Activate the USDA incident man-
performance measurement, coordinate agement system in accordance with the
outreach activities, monitor goals and National Response Framework and the
objectives, and evaluate programs, of National Incident Management System
Department programs and activities in the event of a major incident; and
involving small farms or ranches and provide oversight and coordination of
beginning or socially disadvantaged the Department’s Emergency Support
farmers or ranchers. Functions as outlined in the National
(xii) Administer the USDA/1994 Land Response Framework.
Grant Institutions (Tribal Colleges) (E) Develop and promulgate policies
Programs. for the Department regarding emer-
(xiii) Administer the USDA/1890 Liai- gency preparedness and national secu-
son Officer Program. rity, including matters relating to
(xiv) Administer the Hispanic Serv- anti-terrorism and agriculture-related
ing Institutions National Program. emergency preparedness planning both
(8) Related to homeland security, per- national and international, and guid-
sonnel and document security, and emer- ance to USDA State and County Emer-
gency coordination.(i) Provide adminis- gency Boards.
trative supervision to the unit that (F) Establish and provide oversight of
grants, denies, or revokes security a Department-wide training program
204
for the National Incident Management (v) Coordinate interaction between

System to include Incident Command Department agencies and private sec-
System, National Response Frame- tor businesses and industries in emer-
work, Continuity programs, and Crit- gency planning and public education
ical Infrastructure Protection pro- under Department authorities dele-
gram. gated or assigned under the National
(G) Provide representation and liai- Response Framework, National Infra-
son for the Department in contacts structure Protection Plan, Defense
with other Federal entities and organi- Production Act of 1950, 50 U.S.C. App.
zations, including the National Secu- 2061, et seq., and Robert T. Stafford Dis-
rity Council, Homeland Security Coun- aster Relief and Emergency Assistance
cil, Office of Management and Budget, Act, 42 U.S.C. 5121, et seq.
Department of Homeland Security, (vi) Oversee the Department’s ability
Federal Emergency Management Agen- to collect and disseminate information
cy, Office of The Director of National and prepare for an agricultural disease
Intelligence, and Department of De- emergency, agroterrorist act, or other
fense concerning matters of a national threat to agricultural biosecurity, and
security, natural disaster, other emer- coordinate such activities among agen-
gencies, and agriculture/food-related cies and offices within the Department
international civil emergency planning (7 U.S.C. 8912).
and related activities.
(vii) Administer a funded competitive
(H) Act as the primary USDA rep- grant program to support the develop-
resentative for anti-terrorism activi-
ment and expansion of advanced train-
ties.
ing programs in agricultural biosecu-
(I) Develop and submit a coordinated
rity planning and response for food
budget request for homeland security
science professionals and veterinar-
requirements.
ians; administer a funded competitive
(J) Provide guidance and direction
grant and low-interest loan assistance
regarding radiological emergency pre-
program to assist States in assessing
paredness programs and the implemen-
agricultural disease response capa-
tation of the National Response
bility (7 U.S.C. 8913).
Framework’s Nuclear/Radiological In-
cident Annex to Departmental staff of- (viii) Promulgate Departmental poli-
fices, mission areas, and agencies. cies, standards, techniques, and proce-
(K) Provide program leadership and dures; and represent the Department in
coordination for USDA’s radiological maintaining the security of physical
emergency preparedness requirements facilities and providing security guid-
with respect to Emergency Manage- ance to the Food and Agricultural Sec-
ment and Assistance (44 CFR parts 350– tor nationwide.
352). (A) Lead and coordinate the develop-
(L) Represent USDA on the Federal ment and maintenance of a mission
Radiological Preparedness Coordi- critical facility inventory with agency
nating Committee (FRPCC) and Re- involvement to ensure proper security
gional Assistance Committees (RACs) countermeasures are implemented in
and assist them in carrying out their the Department’s most critical infra-
functions. structure.
(M) Support USDA in its manage- (B) Provide guidance to USDA agen-
ment of the Department’s emergency cies in matters of physical security
response program with respect to radi- through use of physical security assess-
ological emergency response activities. ments and development of mitigation
(iii) Provide for the personal security strategies.
to the Secretary and the Deputy Sec- (C) Provide guidance to USDA agen-
retary. cies and the Food and Agricultural
(iv) Serve as the primary point of Sector in matters of security through
use of assessments and development of
contact for Government Account-

ability Office (GAO) and Office of the mitigation strategies.
Inspector General (OIG) audits of (D) Represent and act as liaison for
USDA homeland security activities. the Department in contacts with other
205
Federal security entities and organiza- resources are in a constant state of

tions, including the Interagency Secu- readiness.
rity Committee and the Department of (x) Provide for the development and
Homeland Security. administration of a Public Trust pro-
(E) Provide guidance and direction to gram for the safeguarding of national
ensure physical security and agri- security information:
culture/food security are fully inte- (A) Direct and administer USDA’s
grated in USDA’s security prepara- public trust program established pursu-
tions, which are reported to and coordi- ant to 5 CFR part 731 and Executive
nated with the White House. Order 13488, ‘‘Granting Reciprocity on
(F) Provide assistance to the USDA Excepted Service and Federal Con-
agencies in preparation for and during tractor Employee Fitness and Reinves-
a disaster to identify critical assets tigating Individuals in Positions of
and possible alternate storage loca- Public Trust’’ (74 FR 4111, Jan. 22,
tions. 2009).
(G) Conduct physical security inves- (B) Direct and administer USDA’s
tigations and compliance reviews De- program under which information is
partment-wide. safeguarded pursuant to Executive
Order 13526, ‘‘Classified National Secu-
(H) Review and provide coordinated
rity Information’’ (75 FR 707, Jan. 5,
technical physical security assess-
2010), or subsequent orders.
ments for all new construction of lab-
(C) Establish and maintain Informa-
oratories, data centers, germplasm re-
tion Security policies and procedures
positories, and other mission critical
for classifying, declassifying, safe-
infrastructure during the design phase,
guarding, and disposing of classified
and all leased facilities prior to con-
national security information and ma-
tract award.
terials.
(I) Oversee and manage physical se- (D) Investigate or delegate authority
curity aspects of the Common Identi- to investigate any potential com-
fication Card (LincPass) Program to promises of classified national security
ensure National Institute of Standards information and take corrective action
and Technology (NIST) and General for violations or infractions under sec-
Services Administration (GSA) compli- tion 5.5(b) of Executive Order 13526 or
ancy within the National Capital Re- any subsequent order.
gion and the physical access to USDA (E) Develop and maintain oversight
facilities. of all facilities throughout USDA
(J) Provide enterprise connectivity where classified national security in-
to agency physical access control sys- formation is or will be safeguarded, dis-
tems that provide cost leveraging and cussed, or processed including sole au-
provisioning/de-provisioning nation- thority to liaison with the Central In-
wide. telligence Agency concerning guidance,
(ix) Provide oversight and coordina- approval, requirements, and oversight
tion of the development and adminis- of USDA secure facilities.
tration of the Department Continuity (F) Act as the USDA focal point to
Program. This includes: identify, receive, disseminate and safe-
(A) Provide guidance and direction guard USDA related intelligence infor-
regarding continuity of operations to mation as required; convey informa-
the Office of the Secretary, Depart- tion to USDA policy officials; and li-
mental staff offices, mission areas, and aise with the intelligence community,
agencies. as appropriate.
(B) Represent and act as liaison for (xi) Control within USDA the acqui-
the Department in contacts with other sition, use, and disposal of material
Federal entities and organizations con- and equipment that can be a source of
cerning matters of assigned continuity ionizing radiation.
program responsibilities. (A) Promulgate policies and proce-
(C) Oversee Department continuity of dures for ensuring the safety of USDA
operations and emergency relocation employees, the public, and the environ-
facility planning, development, equipment resulting from USDA’s use of ion-
ping, and preparedness to ensure that izing radiation sources.
206
(B) Maintain and ensure compliance technologies and reasonable accom-

with the Nuclear Regulatory Commis- modations.
sion regulations (Title 10, Code of Fed- (D) General supplies, shipping and re-
eral Regulations) and license(s) issued ceiving, warehouse and labor services.
to USDA for the acquisition, use, and (E) Operation of a USDA Consoli-
disposal of radioactive materials. dated Forms and Publications Dis-
(9) Related to operations support to the tribution Center for storage and na-
Department of Agriculture headquarters tionwide distribution of USDA program
complex, George Washington Carver Cen- forms and publications.
ter, and leased facilities in the Wash- (F) Excess personal property oper-
ington metro area. (i) Provide services ations with disposition responsibility
relating to facilities management and for all USDA agencies in the Wash-
daily operational support for agencies ington, DC metropolitan area.
and offices occupying USDA’s head- (G) Operation of a GSA authorized
quarters complex, George Washington Federal excess property Sales Center
Carver Center, and, in coordination for USDA property and other govern-
with the General Services Administra- ment agencies in the Washington, DC
tion (GSA), USDA leased facilities in metropolitan area via Memorandum of
the Washington, DC metropolitan area, Understanding (MOU).
as well as at emergency relocation (iii) Promulgate Departmental regu-
sites and certain critical facilities lations, standards, techniques, and pro-
specified by the Assistant Secretary for cedures and represent the Department
Administration in the following areas: in managing and maintaining a com-
(A) Acquiring, leasing, utilizing, con- prehensive physical and technical secu-
structing, maintaining, and disposing rity program including access control,
of real property, including control of management of special police officer
space assignments, and architecture and guard services, executive driving,
parking, ID badging in accordance with
and engineering design oversight.
HSPD–12, occupant emergency and
(B) Sustainable Operations leader-
warden services at the USDA Head-
ship and management in the areas of
quarters Complex, George Washington
internal energy efficiency, conserva-
Carver Center and, in coordination
tion and recycling in support of Execu-
with GSA, USDA leased facilities in
tive Orders 13423, ‘‘Strengthening Fed-
the Washington, DC metropolitan area,
eral Environmental, Energy, and
as well as at emergency relocation
Transportation Management,’’ 3 CFR,
sites and certain critical facilities
2007 Comp., p. 193, and 13514, ‘‘Federal
specified by the Assistant Secretary for
Leadership in Environmental, Energy, Administration.
and Economic Performance’’ (74 FR (iv) Provide management and over-
52117, Oct. 8, 2009). sight of the Secretary’s People’s Gar-
(C) Occupational health, safety, and den initiative and the USDA Visitor’s
related functions; and environmental Center for education and outreach to
compliance pursuant to Executive USDA and the public.
Order 12088, ‘‘Federal Compliance with (v) Represent the Department in con-
Pollution Control Standards,’’ 3 CFR, tacts with other organizations or agen-
1978 Comp., p. 243, to ensure actions are cies on matters related to assigned re-
taken for the prevention, control, and sponsibilities.
abatement of environmental pollution. (10) Related to Secretarial correspond-
(ii) Provide centralized Departmental ence. (i) Exercise responsibility for all
business services including: correspondence control and related
(A) Printing, copy reproducing, offset records management functions for the
composing, mail management and de- Office of the Secretary.
livery, and automated mailing lists. (ii) Provide administrative, editorial,
(B) USDA Nationwide mail manage- and project management support serv-
ment policy. ices to the Immediate Office of the Sec-
(C) Operation of a disability resource retary.

center for all USDA agencies in the (11) Related to shared management serv-
Washington, DC metropolitan area and ices.(i) Provide a full range of services,
nationwide in the areas of accessible including: Procurement of supplies,
207
services, and equipment; travel sup- (C) The offices and agencies reporting
port, conference management, general to the Assistant Secretary for Admin-
administrative support including co- istration.
ordination of office renovations and (D) Any other offices and agencies of
moves (within USDA Whitten Build- the Department as may be agreed.
ing); budget, accounting, fiscal, and re- (12) Related to Office of Administrative
lated financial management services; Law Judges. (i) Assign, after appro-
information technology services re- priate consultation with other general
lated to end user office automation, officers, to the Office of Administrative
desktop computers, enterprise net- Law Judges proceedings not subject to
working support, handheld devices and 5 U.S.C. 556 and 557, involving the hold-
voice telecommunications; with au- ings of hearings and performance of re-
thority to take actions required by law lated duties pursuant to the applicable
or regulation to perform said services rules of practice, when the Assistant
for: Secretary for Administration deter-
(A) The Secretary of Agriculture. mines that because of the nature of the
(B) The general officers of the De- proceeding it would be desirable for the
partment, except the Inspector Gen- proceeding to be presided over by an
eral. Administrative Law Judge and that
(C) The offices and agencies reporting such duties and responsibilities would
to the Assistant Secretary for Admin- not be inconsistent with those of an
istration. Administrative Law Judge.
(D) Any other offices or agencies of (ii) Provide administrative super-
the Department as may be agreed. vision of the Office of Administrative
(ii) Prepare responses to requests Law Judges.
under the Freedom of Information Act (iii) Maintain overall responsibility
with authority to take actions as re- and control over the Hearing Clerk’s
quired by law or regulation for the of- activities which include the custody of
fices and agencies reporting to the As- and responsibility for the control,
sistant Secretary for Administration. maintenance, and servicing of the
(iii) Administer the records manage- original and permanent records of all
ment program in support of Depart- USDA administrative proceedings con-
mental Management, and prepare and ducted under the provisions of 5 U.S.C.
coordinate responses to management 556 and 557:
audits by the Inspector General and (A) Receiving, filing and acknowl-
the Government Accountability Office edging the receipt of complaints, peti-
with authority to take actions as re- tions, answers, briefs, arguments, and
quired by law or regulation for the of- all other documents that may be sub-
fices and agencies reporting to the As- mitted to the Secretary or the Depart-
sistant Secretary for Administration. ment of Agriculture in such pro-
(iv) Provide administrative and fi- ceedings.
nancial management support in the (B) Receiving and filing complaints,
award and administration of grants, notices of inquiry, orders to show
cooperative agreements, and Memo- cause, notices of hearing, designations
randa of Understanding in support of of Administrative Law Judges or pre-
Departmental Management programs, siding officers, answers, briefs, argu-
with authority to take actions as re- ments, orders, and all other documents
quired by law or regulation for the of- that may be promulgated or issued by
fices and agencies reporting to the As- the Secretary or other duly authorized
sistant Secretary for Administration. officials of the Department of Agri-
(v) Provide human resources oper- culture in such proceedings.
ational services for the following (with (C) Supervising the service upon the
the exception of Senior Executives, parties concerned of any documents
Senior Level positions, and Political that are required to be served, and
Appointees): where required, preserving proof of
(A) The Secretary of Agriculture. service.

(B) The general officers of the De- (D) Keeping a docket record of all
partment. such documents and proceedings.
208
(E) Filing a stenographic record of Subpart D—Delegations of Author-

each administrative hearing where a ity to Other General Officers
transcript is required. and Agency Heads
(F) Preparing for certification and
certifying under the Secretary’s fac- EDITORIAL NOTE: Nomenclature changes to
simile signature, material on file in subpart D appear at 60 FR 66713, Dec. 26, 1995.
the Hearing Clerk’s office.
(G) Performing any other clerical du- § 2.27 Office of Administrative Law
ties with respect to the documents rel- Judges.
ative to such proceedings as may be re- (a) The following designations are
quired to be performed. made by the Secretary of Agriculture
(H) Cooperating with the Office of to the Office of Administrative Law
Operations in the letting of contracts Judges:
for stenographic and reporting serv- (1) Administrative law judges (for-
ices; and forwarding vouchers to appro- merly hearing examiners) are des-
priate agencies for payment. ignated pursuant to 5 U.S.C. 556(b)(3) to
hold hearings and perform related du-
(I) Receiving and compiling data,
ties in proceedings subject to 5 U.S.C.
views or comments filed in response to 556 and 557, arising under the Agricul-
notices of proposed standards or rules tural Marketing Agreement Act of 1937,
or regulations. as amended (7 U.S.C. 601 et seq.); the
(J) Performing upon request the fol- Commodity Exchange Act as amended
lowing services with respect to any (7 U.S.C. 1 et seq.); the Perishable Agri-
hearings in such proceedings: cultural Commodities Act, as amended
(1) Arranging for suitable hearing (7 U.S.C. 499a et seq.); the Federal Seed
place. Act, as amended (7 U.S.C. 1551 et seq.);
(2) Arranging for stenographic re- the (Laboratory) Animal Welfare Act,
porting of hearings and handling de- as amended (7 U.S.C. 2131 et seq.); the
tails in connection therewith. Packers and Stockyards Act, 1921, as
(13) Other general. (i) Administer the amended and supplemented (7 U.S.C.
181 et seq.); the Forest Resources Con-
debarment authorities in section 14211
servation and Shortage Relief of 1990
of the Food, Conservation, and Energy
(16 U.S.C. 630 et seq.); and any other
Act of 2008 (7 U.S.C. 2209j). acts providing for hearings to which
(ii) [Reserved] the provisions of 5 U.S.C. 556 and 557,
(b) The following authorities are re- are applicable. Pursuant to the applica-
served to the Secretary of Agriculture: ble rules of practice, the administra-
(1) Related to financial systems and tive law judges shall make initial deci-
budget formulation and execution. sions in adjudication and rate pro-
(i) Final approval of the Depart- ceedings subject to 5 U.S.C. 556 and 557.
ment’s program and financial plans. Such decisions shall become final with-
(ii) [Reserved] out further proceedings unless there is
(2) Related to human resources manage- an appeal to the Secretary by a party
ment. Make final determinations in the to the proceeding in accordance with
the applicable rules of practice: Pro-
following areas:
vided, however, that no decision shall
(i) Separation of employees for secu- be final for purposes of judicial review
rity reasons. except a final decision of the Secretary
(ii) Restoration to duty of employees upon appeal. As used herein, ‘‘Sec-
following suspension from duty for se- retary’’ means the Secretary of Agri-
curity reasons. culture, the Judicial Officer, or other
(iii) Reinstatement or restoration to officer or employee of the Department
duty or the employment of any person delegated, pursuant to the Act of April
separated for security reasons. 4, 1940 (7 U.S.C. 450c–450g), and Reorga-
(iv) Issuance of temporary certifi- nization Plan No. 2 of 1953 (5 U.S.C.
cates to occupy sensitive positions. App.), ‘‘regulatory functions’’ as that

term is defined in the 1940 Act, in act-
[75 FR 43368, July 23, 2010] ing as final deciding officer in adju-
dication and rate proceedings subject
209
to 5 U.S.C. 556 and 557. Administrative prepared by any agency of the Depart-
Law Judges are delegated authority to ment.
hold hearings and perform related du- (iii) Enter into contracts, grants, or
ties as provided in the Rules of Prac- cooperative agreements to further re-
tice Governing Cease and Desist Pro- search programs in the food and agri-
ceedings Under Section 2 of the Capper- culture sciences (7 U.S.C. 3318).
Volstead Act, set forth in part 1, sub- (3) Related to food and agriculture out-
part I of this title. look and situation. (i) Coordinate and
(2) [Reserved] review all crop and commodity data
(b) The Chief Administrative Law used to develop outlook and situation
Judge is delegated the following ad- material within the Department.
ministrative responsibilities subject to (ii) Oversee and clear for consistency
the guidance and control of the Assist- analytical assumptions and results of
ant Secretary for Administration (See all estimates and analyses which sig-
§ 2.24(a)(12)): nificantly relate to international and
(1) Exercise general responsibility domestic commodity supply and de-
and authority for all matters related to mand, including such estimates and
the administrative activities of the Of- analyses prepared for public distribu-
fice of Administrative Law Judges; and tion by the Foreign Agricultural Serv-
(2) Direct the functions of the Hear- ice, the Economic Research Service, or
ing Clerk as set out in § 2.24(a)(12)(iii). by any other agency or office of the De-
[60 FR 56393, Nov. 8, 1995, as amended at 75 partment.
FR 43380, July 23, 2010] (4) Related to weather and climate. (i)
Advise the Secretary on climate and
§ 2.29 Chief Economist. weather activities, and coordinate the
(a) The following delegations of au- development of policy options on
thority are made by the Secretary of weather and climate.
Agriculture to the Chief Economist: (ii) Coordinate all weather and cli-
(1) Related to economic analysis. (i) Co- mate information and monitoring ac-
ordinate economic analyses of, and re- tivities within the Department and
view Department decisions involving, provide a focal point in the Depart-
policies and programs that have sub- ment for weather and climate informa-
stantial economic implications. tion and impact assessment.
(ii) Review and assess the economic (iii) Arrange for appropriate rep-
impact of all significant regulations resentation to attend all meetings,
proposed by any agency of the Depart- hearings, and task forces held outside
ment. the Department which require such
(iii) Review economic data and anal- representation.
yses used in speeches and Congres- (iv) Designate the Executive Sec-
sional testimony by Department per- retary of the USDA Weather and Cli-
sonnel and in materials prepared for re- mate Program Coordinating Com-
lease through the press, radio, and tele- mittee.
vision. (5) Related to interagency commodity
(2) Related to risk assessment. (i) Re- estimates committees. (i) Establish Inter-
sponsible for assessing the risks to agency Commodity Estimates Commit-
human health, human safety, or the tees for Commodity Credit Corporation
environment, and for preparing cost- price-supported commodities, for major
benefit analyses, with respect to pro- products thereof, and for commodities
posed major regulations, and for pub- where a need for such a committee has
lishing such assessments and analyses been identified, in order to bring to-
in the FEDERAL REGISTER as required gether estimates and supporting anal-
by section 304 of the Department of Ag- yses from participating agencies, and
riculture Reorganization Act of 1994 (7 to develop official estimates of supply,
U.S.C. 2204e). utilization, and prices for commodities,
(ii) Provide direction to Department including the effects of new program
agencies in the appropriate methods of proposals on acreage, yield, production,

risk assessment and cost-benefit anal- imports, domestic utilization, price, in-
yses and coordinate and review all risk come, support programs, carryover, ex-
assessments and cost-benefit analyses ports, and availabilities for export.
210
(ii) Designate the Chairman, who (ii) Pursuant to section 218(e) of the
shall also act as Secretary, for all INA (8 U.S.C. 1188 note), provide con-
Interagency Commodity Estimates sultation to the Attorney General and
Committees. the Secretary of Labor concerning all
(iii) Assure that all committee mem- regulations to implement 8 U.S.C.
bers have the basic assumptions, back- 101(a)(15)(H)(ii)(a) and 1188 providing
ground data and other relevant data re- for the importation of H–2A workers;
garding the overall economy and mar- (iii) Pursuant to section 210(h) of the
ket prospects for specific commodities. INA (8 U.S.C. 1160(h)), promulgate regu-
(iv) Review for consistency of analyt- lations to define ‘‘seasonal agricultural
ical assumptions and results all pro- services’’ for purposes of the Special
posed decisions made by Commodity Agricultural Worker (SAW) Program;
Estimates Committees prior to any re- (iv) Pursuant to section 210A(a) of
lease outside the Department. the INA (8 U.S.C. 1161(a)), determine
(6) Related to remote sensing. (i) Pro- jointly with the Secretary of Labor the
vide technical assistance, coordination, number (if any) of additional special
and guidance to Department agencies agricultural workers, known as ‘‘re-
in planning, developing, and carrying plenishment agricultural workers’’
out satellite remote sensing activities (RAWs), who should be admitted to the
to assure full consideration and evalua- United States or otherwise acquire the
tion of advanced technology. status of aliens lawfully admitted for
(ii) Coordinate administrative, man- temporary residence during fiscal
agement, and budget information relat- years 1990 through 1993 to meet a short-
ing to the Department’s remote sens- age of workers to perform seasonal ag-
ing activities including: ricultural services in the United States
during each such fiscal year;
(A) Inter- and intra-agency meetings,
(v) Pursuant to section 210A(a)(7) of
correspondence, and records;
the INA (8 U.S.C. 1161(a)(7)), determine
(B) Budget and management tracking jointly with the Secretary of Labor
systems; and emergency requests to increase the
(C) Inter-agency contacts and tech- shortage number;
nology transfer. (vi) Pursuant to section 210A(a)(8) of
(iii) Designate the Executive Sec- the INA (8 U.S.C. 1161(a)(8)), determine
retary for the Remote Sensing Coordi- jointly with the Secretary of Labor re-
nation Committee. quests to decrease the number of man-
(7) Related to long-range commodity days of seasonal agricultural services
and agricultural-sector projections. Es- required of RAWs to avoid deportation
tablish committees of the agencies of and for naturalization under section
the Department to coordinate the de- 210A(d)(5)(A) and (B) of the INA (8
velopment of a set of analytical as- U.S.C. 1161(d)(5)(A) and (B));
sumptions and long-range agricultural- (vii) Pursuant to section 210A(b)(1) of
sector projections (2 years and beyond) the INA (8 U.S.C. 1161(b)(1)), calculate
based on commodity projections con- jointly with the Secretary of Labor and
sistent with these assumptions and co- annual numerical limitation on the
ordinated through the Interagency number of RAWs who may be admitted
Commodity Estimates Committees. or otherwise acquire the status of
(8) Related to agricultural labor affairs. aliens lawfully admitted for temporary
Exercise the following functions of the residence during fiscal years 1990
Secretary under the Immigration and through 1993 under section 210A(c)(1) of
Nationality Act (INA), as amended (8 the INA (8 U.S.C. 1161(c)(1)); and
U.S.C. 1101 et seq.): (viii) Pursuant to section 210A(b)(2)
(i) Pursuant to section 214(c) of INA of the INA (8 U.S.C. 1161(b)(2)), estab-
(8 U.S.C. 1184(c)), provide consultation lish jointly with the Secretary of
to the Attorney General and the Sec- Labor the information that must be re-
retary of Labor concerning the ques- ported by any person or entity who em-
tion of the importation of aliens as ploys SAWs or RAWs in seasonal agri-

nonimmigrant temporary agricultural cultural services during fiscal years
workers, known as ‘‘H–2A’’ workers, 1989 through 1992, and to designate
under 8 U.S.C. 1101(a)(15)(H)(ii)(a); jointly with the Secretary of Labor the
211
official to whom the person or entity Executive orders, including those in-
must furnish such certification. volving testimony and reports on legis-
(9) Related to the Capper-Volstead Act. lative proposals.
Serve as Chairman of the Capper-Vol- (vi) Provide Departmental oversight
stead Act Committee to identify cases and coordination with respect to re-
of undue price enhancement by associa- sources available for energy and en-
tions of producers and issue complaints ergy-related activities, including funds
requiring such associations to show transferred to USDA from other de-
cause why an order should not be made partments or agencies of the Federal
directing them to cease and desist from Government pursuant to interagency
monopolization or restraint of trade. agreements.
The Chairman is authorized to call (vii) Administer a competitive bio-
upon any agency of the Department for diesel fuel education grants program (7
support in carrying the functions of U.S.C. 8106).
the Committee (7 U.S.C. 292). (viii) Implement a memorandum of
(10) Related to committee management. understanding with the Secretary of
Establish and reestablish regional, Energy regarding cooperation in the
state, and local advisory committees application of hydrogen and fuel cell
for activities under his or her author- technology programs for rural commu-
ity. This authority may not be redele- nities and agricultural producers.
gated. (ix) Conduct a study on biofuels in-
(11) Related to energy. (i) Advise the frastructure under section 9002 of the
Secretary and other policy-level offi- Food, Conservation, and Energy Act of
cials of the Department on energy poli- 2008 (Pub. L. 110–246).
cies and programs, including legisla-
tive and budget proposals. [60 FR 56393, Nov. 8, 1995, as amended at 63
(ii) Serve as or designate the Depart- FR 66979, Dec. 4, 1998; 64 FR 40735, July 28,
ment representative at hearings, con- 1999; 68 FR 27442, May 20, 2003; 73 FR 56706,
ferences, meetings and other contacts Sept. 30, 2008; 74 FR 3405, Jan. 21, 2009]
with respect to energy and energy-re-
§ 2.31 General Counsel.
lated matters, including liaison with
the Department of Energy, the Envi- The General Counsel, as the chief law
ronmental Protection Agency and officer of the Department, is legal ad-
other governmental agencies and de- viser to the Secretary and other offi-
partments. cials of the Department and respon-
(iii) Enter into contracts, grants, or sible for providing legal services for all
cooperative agreements to further re- the activities of the Department. The
search programs in the food and agri- delegations of authority by the Sec-
culture sciences (7 U.S.C. 3318). retary of Agriculture to the General
(iv) Enter into cost-reimbursable Counsel include the following:
agreements relating to agricultural re- (a) Consider, ascertain, adjust, deter-
search (7 U.S.C. 3319a). mine, compromise, and settle claims
(v) Provide Department leadership in: pursuant to the Federal Tort Claims
(A) Analyzing and evaluating exist- Act, as amended (28 U.S.C. 2671–2680),
ing and proposed energy policies and and the regulations of the Attorney
strategies, including those regarding General contained in 28 CFR part 14;
the allocation of scarce resources; delegate the authority to consider, as-
(B) Developing energy policies and certain, adjust, determine, com-
strategies, including those regarding promise, and settle, pursuant to the
the allocation of scarce resources; Federal Tort Claims Act as amended
(C) Reviewing and evaluating Depart- (28 U.S.C. 2671–2680) and the regulations
mental energy and energy-related proof the Attorney General contained in 28
grams and programs progress; CFR part 14, claims less than $2500 that
(D) Developing agricultural and rural allege the negligence or wrongful act of
components of national energy policy an employee of a USDA agency; and
plans; and consider, ascertain, adjust, determine

(E) Preparing reports on energy and compromise, and settle claims pursu-
energy-related polices and programs ant to section 920 of the Federal Agri-
required under Acts of Congress and culture Improvement and Reform Act
212
of 1996, Public Law 104–127 (7 U.S.C. (1) Render legal opinions on ques-
2262a). tions arising in the conduct of the De-
(b) Certify documents as true copies partment’s activities;
of those on file in the Department. (2) Prepare or review regulations;
(c) Sign releases of claims of the (3) Draft proposed legislation;
United States against private persons (4) Prepare or review contracts,
for damage to or destruction of prop- mortgages, deeds, leases, and other
erty of the department, except those documents; and
claims cognizable under the Contract (5) Examine titles to land to be ac-
Disputes Act of 1978 (41 U.S.C. 601 et quired or accepted as security for
seq.). loans.
(d) Responsible for the overall man- (m) Perform such other legal services
agement and operation of the Law Li- as may be required in the administra-
brary, furnishing complete legal and tion of the Department’s activities, in-
legislative library services to the Of- cluding the defense program.
fice of the General Counsel and the De- (n) Serve as a member of the Capper-
partment. Volstead Act Committee to identify
(e) Make determinations as to wheth- cases of undue price enhancement by
er employees of the Department may associations of producers and issue
retain commercial rights in inventions; complaints requiring such associations
prepare patent applications and pros- to show cause why an order should not
ecute the same before the Patent Of- be made directing them to cease and
fice. desist from monopolization or restraint
(f) Represent the Department in for- of trade (7 U.S.C. 292).
mal rulemaking and adjudicatory pro- (o) Settle claims for damage to, or
ceedings held in connection with the loss of, privately owned property pur-
administration of the Department’s ac- suant to the provisions of 31 U.S.C.
tivities, and decide whether initial de- 3723.
cisions of the administrative law (p) Serve on the USDA Hazardous
judges shall be appealed by the Depart- Materials Policy Council.
ment to the Secretary.
(g) Represent the Department in con- [60 FR 56393, Nov. 8, 1995, as amended at 61
nection with legal issues that arise in FR 49237, Sept. 19, 1996; 65 FR 12429, Mar. 9,
its relations with the Congress, the 2000; 70 FR 23927, May 6, 2005; 70 FR 30610,
General Accounting Office, or other May 27, 2005]
agencies of the Government. § 2.33 Inspector General.
(h) Represent the Department in pro-
ceedings before the Interstate Com- (a) The following delegations of au-
merce Commission involving freight thority are made by the Secretary of
rates on farm commodities, and in ap- Agriculture to the Inspector General:
peals from decisions of the Commission (1) Advise the Secretary and General
to the courts. officers in the planning, development,
(i) In civil actions arising out of the and execution of Department policies
activities of the Department, present and programs.
the Department’s case to the Attorney (2) At the request of the Director,
General and U.S. attorneys and, upon Homeland Security Staff (Director),
request of the Department of Justice, determine the availability of law en-
assist in the preparation and trial of forcement personnel of the Office of In-
such cases and in the briefing and argu- spector General to assist the Director
ment of such cases at the appellate in providing for the personal security
level. for the Secretary and the Deputy Sec-
(j) Review cases having criminal as- retary.
pects and refer them to the Depart- (3) Serve as liaison official for the
ment of Justice. Department for all audits of USDA per-
(k) Act as liaison between the De- formed by the General Accounting Of-
partment and the Department of Jus- fice.

tice. (4) In addition to the above delega-
(l) Perform the following legal serv- tions of authority, the Inspector Gen-
ices: eral, under the general supervision of
213
the Secretary, has specific duties, re- § 2.35 Judicial Officer.

sponsibilities, and authorities pursuant (a) Pursuant to the Act of April 4,
to the Inspector General Act of 1978, 1940, as amended (7 U.S.C. 450c–450g),
Pub. L. No. 95–452, 5 U.S.C. App. and Reorganization Plan No. 2 of 1953 (5
(b) The following authority is re- U.S.C. app.), the Secretary of Agri-
served to the Secretary of Agriculture: culture makes the following delega-
Approving the implementation in the tions of authority to the Judicial Offi-
Office of Inspector General of adminis- cer. The Judicial Officer is authorized
trative policies or procedures that con- to:
travene standard USDA administrative (1) Act as final deciding officer in ad-
policies as promulgated by the Assist- judicatory proceedings subject to 5
ant Secretary for Administration. U.S.C. 556 and 557;
(2) Act as final deciding officer in ad-
judicatory proceedings which are or
FR 36859, July 6, 2007]
may be subject to the ‘‘Rules of Prac-
§ 2.34 Director, National Appeals Divi- tice Governing Formal Adjudicatory
sion. Proceedings Instituted by the Sec-
retary Under Various Statutes’’ set
The Director, National Appeals Divi- forth in part 1, subpart H, of this title;
sion, under the general supervision of (3) Act as final deciding officer in ad-
the Secretary, has specific duties, re- judicatory proceedings which are or
sponsibilities, and authorities pursuant may be subject to the ‘‘Rules of Prac-
to subtitle H of the Department of Ag- tice Governing Cease and Desist Pro-
riculture Reorganization Act of 1994, ceedings Under Section 2 of the Capper-
Pub. L. No. 103–354, title II (7 U.S.C. Volstead Act’’ set forth in part 1, sub-
6991 et seq.), including: part I, of this title;
(a) Deciding appeals from adverse de- (4) Act as final deciding officer in ad-
cisions, made by an officer or employee judicatory proceedings subject to the
of an agency of the Department des- ‘‘Procedures Related to Administrative
ignated by the Secretary, that are ad- Hearings Under the Program Fraud
verse to participants. The term ‘‘agen- Civil Remedies Act of 1986’’ set forth in
cy’’ shall include the following and any part 1, subpart L, of this title;
predecessor agency: the Farm Service (5) Act as final deciding officer in ad-
Agency; the Commodity Credit Cor- judicatory proceedings subject to the
poration (with respect to domestic pro- ‘‘Rules of Practice Governing Adjudica-
grams); the Federal Crop Insurance tion of Sourcing Area Applications and
Corporation; the Rural Housing Serv- Formal Review of Sourcing Areas Pur-
ice; the Rural Business-Cooperative suant to the Forest Resources Con-
Service; the Natural Resources Con- servation and Shortage Relief Act of
servation Service; and a State, county, 1990 (16 U.S.C. 620, et seq.)’’ set forth in
or area committee established under part 1, subpart M, of this title;
section 8(b)(5) of the Soil Conservation (6) Act as final deciding officer in
and Domestic Allotment Act (16 U.S.C. rate proceedings under the Packers and
590h(b)(5)); and Stockyards Act, as amended and sup-
(b) The authority to appoint such plemented (7 U.S.C. 181–229);
hearing officers and other employees as (7) Act as final deciding officer in
are necessary for the administration of reparation proceedings under statutes
the activities of the Division. administered by the United States De-
(c) Prepare a report each year on the partment of Agriculture;
(8) Act as final deciding officer in ap-
number of requests for equitable relief
peals under section 63 of the Plant Va-
and the disposition of such requests for
riety Protection Act (7 U.S.C. 2443),
inclusion in the report of the Secretary
and in reexamination proceedings
to Congress on equitable relief requests
under section 91 of the Plant Variety
made to the Department under farm
Protection Act, as amended (7 U.S.C.
and conservation programs (7 U.S.C.
2501);
7996(g)(2). (9) Act as final deciding officer in ad-
[60 FR 56393, Nov. 8, 1995, as amended at 68 judicatory proceedings under section
FR 27442, May 20, 2003] 359i of the Agricultural Adjustment
214
Act of 1938, as amended (7 U.S.C. and services for general officers of the
1359ii); Department.
(10) Issue rules of practice applicable (2) Related to information activities. (i)
to proceedings conducted under section Advise the secretary and general offi-
359i of the Agricultural Adjustment cers in the planning, development, and
Act of 1938, as amended (7 U.S.C. execution of Department policies and
1359ii); programs.
(11) Act as final deciding officer in (ii) Direct and coordinate the overall
adjudicatory proceedings subject to the formulation and development of poli-
‘‘Rules of Practice Governing Pro- cies, programs, plans, procedures,
ceedings on Petitions To Modify or To standards and organization structures
Be Exempted From Marketing Orders’’ and staffing patterns for the informa-
set forth in sections 900.50 through tion activities of the Department and
900.71 of this title; its agencies, both in Washington and in
(12) Act as final deciding officer in the field.
adjudicatory proceedings subject to the (iii) Exercise final review and ap-
‘‘Rules of Practice Governing Pro- proval of all public information mate-
ceedings on Petitions to Modify or To rial prepared by the Department and
Be Exempted from Research, Pro- its agencies and select the most effec-
motion, and Information Programs’’ tive method and audience for distrib-
set forth in part 1200, subpart B, of this uting this information.
title; and (iv) Serve as the central public infor-
(13) Act as final deciding officer in mation authority in the USDA, with
adjudicatory proceedings subject to authority to determine policy for all
‘‘Appeals of Quality Control (‘QC’) USDA and Agency communication ac-
Claims’’ set forth in part 283 of this tivities, as well as emergency public
title. information and messaging commu-
(b) The delegation of authority from nication activities, in order to provide
the Secretary of Agriculture to the Ju- leadership and centralized operational
dicial Officer in paragraph (a) of this direction for all USDA public informa-
section shall not be construed to limit tion activities and ensure all materials
the authority of the Judicial Officer to shall effectively support USDA policies
perform any functions, in addition to and programs, including the defense
those identified in the Act of April 4, program.
1940, as amended (7 U.S.C. 450c–450g), (v) Serve as the central printing au-
which may be assigned by the Sec- thority in the USDA, with authority to
retary of Agriculture to the Judicial represent the USDA with Joint Com-
Officer. mittee on Printing of the Congress, the
(c) As used in this section, the term Government Printing Office, and other
Judicial Officer shall mean any person Federal and State agencies on informa-
or persons so designated by the Sec- tion matters.
retary of Agriculture. (vi) Cooperate with and secure the
cooperation of commercial, industrial
[68 FR 27443, May 20, 2003, as amended at 75 and other nongovernmental agencies
FR 43380, July 23, 2010] and concerns regarding information
work as required in the execution of
§ 2.36 Director, Office of Communica- the Department’s programs.
tions.
(vii) Plan and direct communication
(a) Delegations. The following delega- research and training for the Depart-
tions of authority are made by the Sec- ment and its agencies.
retary of Agriculture to Director, Of- (viii) [Reserved]
fice of Communications: (ix) Supervise and provide leadership
(1) Related to public affairs. (i) Advise and final clearance for the planning,
and counsel general officers on public production, and distribution of visual
affairs matters to the Department. information material for the depart-
(ii) Organize and direct the activities ment and its agencies in Washington,
of a public affairs office to include D.C., and the field, and provide such in-
press relations of the secretary of agri- formation services as may be deemed
culture and other executive functions necessary.
215
(x) Maintain overall responsibility policy guidance and direction by the

and control over the preparation of the Under Secretary, the following delega-
‘‘Agricultural Decisions.’’ tion of authority is made to the Dep-
(xi) Administer, direct and coordi- uty Under Secretary for Farm and For-
nate publications and user fee author- eign Agricultural Services, to be exer-
ity granted under section 1121 of the cised only during the absence or un-
Agriculture and Food Act of 1981, as availability of the Under Secretary:
amended by section 1769 of the Food Perform all the duties and exercise all
Security Act of 1985, 7 U.S.C. 2242a; and the powers which are now or which
publish any appropriate regulations may hereafter be delegated to the
necessary to the exercise of this au- Under Secretary for Farm and Foreign
thority. Agricultural Services: Provided, that
(xii) Serve as the central authority this authority shall be exercised by the
to determine policy, plans, procedures, respective Deputy Under Secretary in
and standards for the Department and the order in which he or she has taken
agency strategic communications
office as a Deputy Under Secretary.
plans; request, receive, review, and ap-
prove agency communications plans; § 2.42 Administrator, Farm Service
and provide centralized communication Agency.
strategies for the Secretary and agen-
cies, including the creativity, produc- (a) Delegations. Pursuant to § 2.16(a)(1)
tion, and oversight of communication through (a)(4) and (a)(6) through (a)(8),
products. subject to the reservations in
(xiii) When required, support and co- § 2.16(b)(1), the following delegations of
ordinate staffing of a JIC as identified authority are made by the Under Sec-
in the NIMS, and if required, establish retary for Farm and Foreign Agricul-
and administer a JIC to provide a tural Services to the Administrator,
structure for developing and delivering Farm Service Agency:
incident-related coordinated messages. (1) Formulate policies and administer
(xiv) Serve as the central authority programs authorized by the Agricul-
to determine policy, plans, procedures, tural Adjustment Act of 1938, as
guidelines, and standards for the cre- amended (7 U.S.C. 1282 et seq.).
ation and use of logos/marks by the De- (2) Formulate policies and administer
partment’s mission areas, staff offices programs authorized by the Agricul-
or agencies, not otherwise provided for tural Act of 1949, as amended (7 U.S.C.
by specific laws and regulations, and 1441 et seq.), except the provisions of
excluding the Official USDA Seal and section 416(a)(1), (a)(2) and (b) of the
Official USDA Symbol. Agricultural Act of 1949, as amended,
(b) [Reserved] unless specifically provided herein.
[60 FR 56393, Nov. 8, 1995, as amended at 74 (3) Coordinate and prevent duplica-
FR 19373, Apr. 29, 2009; 76 FR 66601, 66602, Oct. tion of aerial photographic work of the
27, 2011] Department, including:
(i) Clearing photography projects;
Subpart E [Reserved] (ii) Assigning symbols for new aerial
photography, maintaining symbol
Subpart F—Delegations of Author- records, and furnishing symbol books;
ity by the Under Secretary for (iii) Recording departmental aerial
Farm and Foreign Agricultural photography flow and coordinating the
Services issuance of aerial photography status
maps of latest coverage;
(iv) Promoting interchange of tech-
EDITORIAL NOTE: Nomenclature changes to
subpart F appear at 60 FR 66713, Dec. 26, 1995. nical information and techniques to de-
velop lower costs and better quality;
§ 2.40 Deputy Under Secretary for (v) Representing the Department on
Farm and Foreign Agricultural committees, task forces, work groups,
Services. and other similar groups concerned

Pursuant to § 2.16(a), subject to res- with aerial photography acquisition
ervations in § 2.16(b), and subject to and reproduction;
216
(vi) Providing a Chairperson for the (11) Administer procurement, proc-

Photography Sales Committee of the essing, handling, distribution, disposi-
Department; tion, transportation, payment, and re-
(vii) Coordinating development, prep- lated services with respect to surplus
aration, and issuance of specifications removal and supply operations which
for aerial photography for the Depart- are carried out under section 210 of the
ment; Agricultural Act of 1956 (7 U.S.C. 1859),
(viii) Coordinating and performing the Act of August 19, 1958, as amended
procurement, inspection, and applica- (7 U.S.C. 1431 note), and section 709 of
tion of specifications for USDA aerial the Food and Agriculture Act of 1965,
photography; as amended (7 U.S.C. 1446a-1), except as
(ix) Maintaining library and files of delegated to the Under Secretary for
USDA aerial film and retrieving and Food, Nutrition, and Consumer Serv-
supplying reproductions on request. ices in § 2.19 and to the Under Secretary
(4) Administer the Agricultural Con- for Farm and Foreign Agricultural
servation Program under title X of the Services in § 2.16(a)(3), and assist the
Agricultural Act of 1970, as amended Food and Consumer Service and the
(16 U.S.C. 1501 et seq.), and under the Agricultural Marketing Service in the
Soil Conservation and Domestic Allot- procurement, handling, payment, and
ment Act, as amended (16 U.S.C. 590g et related services under section 32 of the
seq.). Act of August 24, 1935, as amended (7
(5) Administer responsibilities and U.S.C. 612c), the Act of June 28, 1937, as
functions assigned under the Defense amended (7 U.S.C. 713c), the National
Production Act of 1950, as amended (50 School Lunch Act, as amended (42
U.S.C. App. 2061 et seq.), and title VI of U.S.C. 1751 et seq.), section 8 of the
the Robert T. Stafford Disaster Relief Child Nutrition Act of 1966, as amended
and Emergency Assistance Act (42 (42 U.S.C. 1777), section 311 of the Older
U.S.C. 5195 et seq.), relating to agricul- Americans Act of 1965, as amended (42
tural production; food processing, stor- U.S.C. 3030a), and section 4(a) of the
age, and distribution of farm equip- Agriculture and Consumer Protection
ment and fertilizers. rehabilitation and Act of 1973, as amended (7 U.S.C. 612c
use of feed, agricultural and related ag- note), and section 1114 of the Agri-
ribusiness facilities; and farm credit culture and Food Act of 1981 (7 U.S.C.
and financial assistance. 1431e).
(6) Administer the Emergency Con- (12) Administer commodity procure-
servation Program under the Agricul- ment and supply, transportation (other
tural Credit Act of 1978, as amended (16 than from point of export, except for
U.S.C. 2201 et seq.). movement to trust territories or pos-
(7) Conduct fiscal, accounting and sessions), handling, payment,and re-
claims functions relating to CCC pro- lated services in connection with pro-
grams for which the Foreign Agricul- grams under titles II and III of Public
tural Service has been delegated au- Law 480 (7 U.S.C. 1691, 1701, et seq.) and
thority under § 2.43 and, in conjunction section 3107 of the Farm Security and
with other agencies of the U.S. Govern- Rural Investment Act of 2002 (7 U.S.C.
ment, develop and formulate agree- 1736o–1) (except for the authority under
ments to reschedule amounts due from section 3107(d) to designate federal
foreign countries. agencies that is reserved to the Presi-
(8) Conduct assigned activities under dent), and payment and related serv-
the Strategic and Critical Materials ices with respect to export programs
Stockpiling Act, as amended (50 U.S.C. and barter operations.
98 et seq.). (13) [Reserved]
(9) Supervise and direct Farm Service (14) Administer the Agricultural For-
Agency State and county offices and eign Investment Disclosure Act of 1978
designate functions to be performed by (7 U.S.C. 3501 et seq.) except those func-
Farm Service Agency State and county tions delegated in § 2.21(a)(8)(xi).
committees. (15) Administer energy management

(10) Administer the Dairy Indemnity activities as assigned.
Program under the Act of August 13, (16) Conduct producer referenda of
1968, as amended (7 U.S.C. 450j et seq.). commodity promotion programs under
217
the Beef Research and Information (v) The first two sentences of section
Act, as amended (7 U.S.C. 2901 et seq.) 105(d) of the Act (42 U.S.C. 9605(d)),
and the Agricultural Promotion Pro- with respect to petition for prelimi-
grams Act of 1990, as amended (7 U.S.C. nary assessment of a release or threat-
6001 et seq.). ened release;
(17) Conduct field operations of diver- (vi) Section 105(f) of the Act (42
sion programs for fresh fruits and vege- U.S.C. 9605(f)), with respect to consider-
tables under section 32 of the Act of ation of the availability of qualified
August 29, 1935. minority firms in awarding contracts,
(18) Administer the U. S. Warehouse but excluding that portion of section
Act, as amended (7 U.S.C. 241–273), and 105(f) pertaining to the annual report
perform compliance examinations for to Congress;
Farm Service Agency programs.
(vii) Section 109 of the Act (42 U.S.C.
(19) [Reserved]
9609), with respect to the assessment of
(20) Formulate and carry out the
civil penalties for violations of section
Conservation Reserve Program, includ-
122 of the Act (42 U.S.C. 9622), and the
ing the implementation of technical
assistance, under the Food Security granting of awards to individuals pro-
Act of 1985, as amended (16 U.S.C. 1232 viding information;
et seq.). (viii) Section 111(f) of the Act (42
(21) Carry out functions relating to U.S.C. 9611(f)), with respect to the des-
highly erodible land and wetland con- ignation of officials who may obligate
servation under sections 1211–1213 and money in the Hazardous Substances
1221–1223 of the Food Security Act of Superfund;
1985, as amended (16 U.S.C. 3811–3813 (ix) Section 113(k) of the Act (42
and 3821–3823). U.S.C. 9613(k)), with respect to estab-
(22) With respect to land and facili- lishing an administrative record upon
ties under his or her authority, exer- which to base the selection of a re-
cise the functions delegated to the Sec- sponse action and identifying and noti-
retary by Executive Order 12580, 3 CFR, fying potentially responsible parties;
1987 Comp., p. 193, under the following (x) Section 116(a) of the Act (42 U.S.C.
provisions of the Comprehensive Envi- 9616(a)), with respect to preliminary as-
ronmental Response, Compensation, sessment and site inspection of facili-
and Liability Act of 1980 (‘‘the Act’’), ties;
as amended: (xi) Sections 117(a) and (c) of the Act
(i) Sections 104(a), (b), and (c)(4) of (42 U.S.C. 9617(a) and (c)), with respect
the Act (42 U.S.C. 9604(a), (b), and to public participation in the prepara-
(c)(4)), with respect to removal and re- tion of any plan for remedial action
medial actions in the event of release and explanation of variances from the
or threatened release of a hazardous final remedial action plan for any re-
substance, pollutant, or contaminant medial action or enforcement action,
into the environment; including any settlement or consent
(ii) Sections 104(e)–(h) of the Act (42 decree entered into;
U.S.C. 9604(e)–(h)), with respect to in-
(xii) Section 119 of the Act (42 U.S.C.
formation gathering and access re-
9119), with respect to indemnifying re-
sponse action contractors;
and wage and labor standards applica- (xiii) Section 121 of the Act (42 U.S.C.
ble to covered work; and emergency 9621), with respect to cleanup stand-
procurement powers; ards; and
(iii) Section 104(i)(11) of the Act (42 (xiv) Section 122 of the Act (42 U.S.C.
U.S.C. 9604(i)(11)), with respect to the 9622), with respect to settlements, but
reduction of exposure to significant excluding section 122(b)(1) of the Act
risk to human health; (42 U.S.C. 9622(b)(1)), related to mixed
(iv) Section 104(j) of the Act (42 funding agreements.
(23) With respect to facilities and ac-

quisition of real property and interests tivities under his or her authority, to
in real property required to conduct a exercise the authority of the Secretary
remedial action; of Agriculture pursuant to section 1–
218
102 related to compliance with applica- to the Emergency Community Water

ble pollution control standards and sec- Assistance Grant Programs;
tion 1–601 of Executive Order 12088, 3 (iv) Section 306C (7 U.S.C. 1926c) to
CFR, 1978 Comp., p. 243, to enter into administer the water and waste facility
an inter-agency agreement with the loans and grants to alleviate health
United States Environmental Protec- risks;
tion Agency, or an administrative con- (v) Sections 309 (7 U.S.C. 1929) and
sent order or a consent judgment in an 309A (7 U.S.C. 1929a), regarding assets
appropriate State, interstate, or local and programs related to rural develop-
agency, containing a plan and schedule ment;
to achieve and maintain compliance (vi) Section 310A (7 U.S.C. 1931), re-
with applicable pollution control lating to watershed and resource con-
standards established pursuant to the servation and development loans;
following: (vii) Section 310B (7 U.S.C. 1932), re-
(i) Solid Waste Disposal Act, as garding various Rural Development
amended by the Resource Conservation programs;
and Recovery Act, as further amended (viii) Section 312(b) (7 U.S.C. 1942(b)),
by the Hazardous and Solid Waste relating to small business enterprises;
Amendments, and the Federal Facility (ix) Section 342 (7 U.S.C. 1013a);
Compliance Act (42 U.S.C. 6901 et seq.);
(x) Section 364 (7 U.S.C. 2006f), sec-
(ii) Federal Water Pollution Preven- tion 365 (7 U.S.C. 2008), section 366 (7
tion and Control Act, as amended (33 U.S.C. 2008a), section 367 (7 U.S.C.
U.S.C. 1251 et seq.); 2008b), and section 368 (7 U.S.C. 2008c),
(iii) Safe Drinking Water Act, as regarding assets and programs related
amended (42 U.S.C. 300f et seq.); to rural development; and
(iv) Clean Air Act, as amended (42 (xi) Administrative provisions of sub-
U.S.C. 7401 et seq.); title D of the Consolidated Farm and
(v) Noise Control Act of 1972, as Rural Development Act related to
amended (42 U.S.C. 4901 et seq.); Rural Utilities Service, Rural Busi-
(vi) Toxic Substances Control Act, as ness-Cooperative Service, and Rural
amended (15 U.S.C. 2601 et seq.); Housing Service activities.
(vii) Federal Insecticide, Fungicide, (xii) Section 375 (7 U.S.C. 2008j), relat-
and Rodenticide Act, as amended (7 ing to the National Sheep Industry Im-
U.S.C. 136 et seq.); and provement Center.
(viii) Comprehensive Environmental (29) Collect, service, and liquidate
Response, Compensation, and Liability loans made or insured by the Farm
Act of 1980, as amended by the Super- Service Agency, or its predecessor
fund Amendments and Reauthorization agencies.
Act of 1986 (42 U.S.C. 9601 et seq.). (30) Administer the Rural Rehabilita-
(24)–(26) [Reserved] tion Corporation Trust Liquidation Act
(27) Formulate and administer regu- (40 U.S.C. 440 et seq.), and trust, liquida-
lations regarding program ineligibility tion, and other agreements entered
resulting from convictions under Fed- into pursuant thereto.
eral or State law of planting, culti- (31) [Reserved]
vating, growing, producing, harvesting, (32) Administer Farmers Home Ad-
or storing a controlled substance, as ministration or any successor agency
required under section 1764 of the Food assets conveyed in trust under the Par-
Security Act of 1985 (21 U.S.C. 881a). ticipation Sales Act of 1966 (12 U.S.C.
(28) Administer the Consolidated 1717).
Farm and Rural Development Act (7 (33) Administer the emergency loan
U.S.C. 1921 et seq.) except for the au- and guarantee programs under sections
thority contained in the following sec- 232, 234, 237, and 253 of the Disaster Re-
tions: lief Act of 1970 (Pub. L. No. 91–606), the
(i) [Reserved] Disaster Relief Act of 1969 (Pub. L. No.
(ii) Section 306 (7 U.S.C. 1926), relat-
91–79), Pub. L. No. 92–385, approved Au-

ing to all programs in that section; gust 16, 1972, and the Emergency Live-
(iii) Section 306A (7 U.S.C. 1926a) and stock Credit Act of 1974 (Pub. L. No. 93–
Section 306B (7 U.S.C. 1926b), relating 357), as amended.
219
(34) Administer loans to homestead (i) Determine, with the concurrence

or desertland entrymen and purchasers of the General Counsel, which actions
of land in reclamation projects or to an are to be referred to the Department of
entryman under the desertland law (7 Justice for the conduct of litigation,
U.S.C. 1006a and 1006b). and refer such actions to the Depart-
(35) Administer the Federal Claims ment of Justice through the General
Collection Act of 1966, as amended (31 Counsel;
U.S.C. 3711 et seq.), and joint regula- (ii) Determine, with the concurrence
tions issued pursuant thereto by the of the General Counsel, which actions
Attorney General and the Comptroller are to be referred to the General Coun-
General (4 CFR chapter II), with re- sel, for the conduct of litigation and
spect to claims of the Farm Service refer such actions; and
Agency. (iii) Enter into contracts with pri-
(36) Service, collect, settle, and liq- vate sector attorneys for the conduct
uidate: of litigation, with the concurrence of
(i) Deferred land purchase obligations the General Counsel, after determining
of individuals under the Wheeler-Case that the attorneys will provide com-
Act of August 11, 1939, as amended (16 petent and cost effective representa-
U.S.C. 590y), and under the item, tion for the Farm Service Agency.
‘‘Water Conservation and Utilization (41) [Reserved]
projects’’ in the Department of the In- (42) Administer the provisions con-
terior Appropriation Act, 1940 (53 Stat. cerning the end-use certificate system
719), as amended; authorized pursuant to section 301(f) of
(ii) Puerto Rican Hurricane Relief the North American Free Trade Imple-
loans under the Act of July 11, 1956 (70 mentation Act (19 U.S.C. 3391(f)).
Stat. 525); and (43) Determine the type and quantity
(iii) Loans made in conformance with of commodities that are available for
section 4 of the Southeast Hurricane programming under section 416(b) of
Disaster Relief Act of 1965 (79 Stat. the Agricultural Act of 1949 (7 U.S.C.
1301). 1431(b)), and the Food for Progress Act
(37) Administer loans to Indian of 1985 (7 U.S.C. 1736o), and arrange for
tribes, tribal corporations, and pur- the processing, packaging, transpor-
chasers of highly fractionated land (25 tation, handling and delivery to port of
U.S.C. 488–492). such commodities in connection there-
(38) Administer the State Agricul- with.
tural Loan Mediation Program under (44) [Reserved]
title 5 of the Agricultural Credit Act of (45) Administer all programs of the
1987 (7 U.S.C. 5101 et seq.). Commodity Credit Corporation that
(39) Administer financial assistance provide assistance with respect to the
programs relating to Economic Oppor- production of agricultural commod-
tunity Loans to Cooperatives under ities, including disaster assistance and
part A of title III and part D of title I the domestic marketing of such com-
and the necessarily related functions in modities, except as may otherwise be
title VI of the Economic Opportunity reserved by the Under Secretary for
Act of 1964, as amended (42 U.S.C. 2763– Farm and Foreign Agricultural Serv-
2768, 2841–2855, 2942, 2943(b), 2961), dele- ices, and similar programs (including
gated by the Director of the Office of commodity quality development pro-
Economic Opportunity to the Sec- grams) consigned by statute to the
retary of Agriculture by documents Secretary of Agriculture unless other-
dated October 23, 1964 (29 FR 14764), and wise delegated.
June 17, 1968 (33 FR 9850), respectively. (46) Administer the following provi-
(40) Exercise all authority and discre- sions of the Farm Security and Rural
tion vested in the Secretary by section Investment Act of 2002 with respect to
331(c) of the Consolidated Farm and functions otherwise delegated to the
Rural Development Act, as amended by Administrator, Farm Service Agency:
section 2 of the Farmers Home Admin- (i) The equitable relief provisions of
istration Improvement Act of 1994, section 1613 (7 U.S.C. 7996).
Pub. L. No. 103–248 (7 U.S.C. 1981(c)), in- (ii) The tracking of benefits under
cluding the following: section 1614 (7 U.S.C. 7997).
220
(iii) The development of a plan and (56) Administer the following provi-
related report to coordinate land re- sions of the Food, Conservation, and
tirement and agricultural working land Energy Act of 2008, Public Law 110–246:
conservation programs under section (i) Section 1605 relating to quality in-
2005 (16 U.S.C. 3801 note). centive payments for covered oilseed
(47) Administer programs for Apple producers.
Loans and Emergency Loans for Seed (ii) Section 1609 relating to the track-
Producers under section 203(f) and 253, ing of benefits.
respectively, of the Agricultural Risk (iii) Section 1612 relating to the hard
Protection Act of 2000 (7 U.S.C. 1421 white wheat development program.
note, Pub. L. 106–224). (iv) Section 1613 relating to the
(48) Administer evaluations of direct durum wheat quality program.
and guaranteed loan programs under (v) Section 1621 relating to direct re-
section 5301 of the Farm Security and imbursement payments to geographi-
Rural Investment Act of 2002 (7 U.S.C. cally disadvantaged farmers or ranch-
1992 note). ers.
(49) Formulate and carry out the (vi) Section 10404 relating to market
Grassroots Source Water Protection loss assistance for asparagus producers.
Program, authorized by the Food Secu- (vii) Sections 12033 and 15101 relating
rity Act of 1985, as amended (16 U.S.C. to supplemental agricultural disaster
3839bb–2). assistance.
(50) Administer cooperative agree- (viii) Section 14212 relating to the
ments under 7 U.S.C. 2204b(b)(4) with closure or relocation of county or field
respect to conservation programs. offices of the Farm Service Agency.
(ix) Section 15353(a) relating to infor-
(51) Administer the feedstock flexi-
mation reporting for Commodity Cred-
bility program for bioenergy producers
it Corporation transactions.
under section 9010 of the Farm Secu-
(57) Implement the information dis-
rity and Rural Investment Act of 2002
closure authorities of section
(7 U.S.C. 8110) and the biomass crop as-
1619(b)(3)(A) of the Food, Conservation,
sistance program under section 9011 of
and Energy Act of 2008 (7 U.S.C.
that Act (7 U.S.C. 8111).
8791(b)(3)(A)).
(52) Administer those portions of the (b) Reservations. The following au-
Grassland Reserve Program under sec- thorities are reserved to the Under Sec-
tions 1238N–1238Q of the Food Security retary for Farm and Foreign Agricul-
Act of 1985 (16 U.S.C. 3838n–3838q) that tural Services:
are or become the responsibility of the
(1) Designating counties and areas for
Under Secretary for Farm and Foreign
emergency programs under Pub. L. No.
Agricultural Services.
85–58, as amended.
(53) Administer the provisions of sec- (2) Making and issuing notes to the
tion 1240R of the Food Security Act of Secretary of the Treasury for the pur-
1985 (16 U.S.C. 3839bb–5) regarding vol- poses of the Agricultural Credit Insur-
untary public access and habitat incen- ance Fund as authorized by the Con-
tives. solidated Farm and Rural Development
(54) Implement the authority in sec- Act (7 U.S.C. 1929).
tion 1241 of the Food Security Act of
1985 (16 U.S.C. 3841) to accept and use [60 FR 56393, Nov. 8, 1995, as amended at 61
voluntary contributions of non-Federal FR 25776, May 23, 1996; 61 FR 37552, July 18,
1996; 62 FR 1031, Jan. 8, 1997; 62 FR 19901, Apr.
funds in support of natural resources 24, 1997; 68 FR 27443, May 20, 2003; 69 FR 34254,
conservation programs under subtitle June 21, 2004; 71 FR 35491, June 21, 2006; 71 FR
D of title XII of that Act with respect 51421, Aug. 30, 2006; 74 FR 3406, Jan. 21, 2009;
to authorities delegated to the Admin- 75 FR 43380, July 23, 2010]
istrator, Farm Service Agency.
(55) In coordination with the Direc- § 2.43 Administrator, Foreign Agricul-
tor, Office of Advocacy and Outreach, tural Service.
issue receipts under section 2501A(e) of (a) Delegations. Pursuant to § 2.16

the Food, Agriculture, Conservation, (a)(3) and (a)(6), subject to reservations
and Trade Act of 1990 (7 U.S.C. 2279– in § 2.16(b)(2), the following delegations
1(e)). of authority are made by the Under
221
Secretary for Farm and Foreign Agri- development of programs of this De-
cultural Services to the Administrator, partment; provide information to do-
Foreign Agricultural Service: mestic producers, the agricultural
(1) Coordinate the carrying out by trade, the public and other interests;
Department agencies of their functions and promote normal commercial mar-
involving foreign agriculture policies kets abroad. This delegation excludes
and programs and their operations and basic and long-range analyses of world
activities in foreign areas. Act as liai- conditions and developments affecting
son on these matters and functions re- supply, demand, and trade in farm
lating to foreign agriculture between products and general economic anal-
the Department of Agriculture and the yses of the international financial and
Department of State, the United States monetary aspects of agricultural af-
Trade Representative, the Trade Policy fairs as assigned to the Under Sec-
Committee, the Agency for Inter- retary for Research, Education, and
national Development and other de- Economics.
partments, agencies and committees of (4) Administer Departmental pro-
the U.S. Government, foreign govern- grams concerned with development of
ments, the Organization for Economic foreign markets for agricultural prod-
Cooperation and Development, the Eu- ucts of the United States except func-
ropean Union, the Food and Agri- tions relating to export marketing op-
culture Organization of the United Na- erations under section 32, of the Act of
tions, the International Bank for Re- August 23, 1935, as amended (7 U.S.C.
construction and Development, the 612c), delegated to the Assistant Sec-
Inter-American Development Bank, retary for Marketing and Regulatory
the Organization of American States, Programs.
and other public and private United (5) Exercise the Department’s func-
States and international organizations, tions with respect to the International
and the contracting parties to the Gen- Coffee Agreement or any such future
eral Agreement on Tariffs and Trade agreement.
(GATT) and the World Trade Organiza- (6) Administer functions of the De-
tion (WTO). partment relating to import controls
(2) Conduct functions of the Depart- including, among others, functions
ment relating to GATT, WTO, the under section 22 of the Agricultural
Trade Expansion Act of 1962 (19 U.S.C. Adjustment Act of 1933, as amended (7
1801 et seq.), the Trade Act of 1974 (19 U.S.C. 624), the Harmonized Tariff
U.S.C. 2101 et seq.), the Trade Agree- Schedule of the United States (19
ments Act of 1979 (19 U.S.C. 2501 et seq.), U.S.C. 1202), and section 204 of the Ag-
the Omnibus Trade and Competition ricultural Act of 1956, as amended (7
Act of 1988 (19 U.S.C. 2901 et seq.), the U.S.C. 1854) but not including those
provisions of subtitle B of title III of functions reserved to the Secretary
the North American Free Trade Agree- under § 2.16(b)(2) and those relating to
ment Implementation Act (except the section 8e of the Agricultural Adjust-
provisions concerning the end-use cer- ment Act of 1933, as amended (7 U.S.C.
tificate system authorized pursuant to 608e–1), as assigned to the Assistant
section 321(f) of that Act (19 U.S.C. Secretary for Marketing and Regu-
3391(f)) delegated to the Administrator, latory Programs.
Farm Service Agency), and other legis- (7) Represent the Department on the
lation affecting international agricul- Interdepartmental Committee for Ex-
tural trade including the programs de- port Control and conduct Depart-
signed to reduce foreign tariffs and mental activities to carry out the pro-
other trade barriers. visions of the Export Administration
(3) Conduct studies of worldwide pro- Act of 1969, as amended (50 U.S.C. App.
duction, trade, marketing, prices, con- 2401 et seq.), except as reserved to the
sumption, and other factors affecting Secretary under § 2.16(b)(2).
exports and imports of U.S. agricul- (8) Exercise the Department’s respon-
tural commodities; obtain information sibilities in connection with inter-

on methods used by other countries to national negotiations of the Grains
move farm commodities in world trade Trade Convention and in the adminis-
on a competitive basis for use in the tration of such Convention.
222
(9) Provide foreign agricultural intel- section 153 of the Food Security Act of
ligence and other foreign agricultural 1985, as amended (15 U.S.C. 713a–14).
services in support of programs admin- (19) Formulate policies and imple-
istered by the Department under the ment a program for the export sales of
Defense Production Act of 1950, as dairy products, as authorized by sec-
amended (50 U.S.C. App. 2061 et seq.), tion 1163 of the Food Security Act of
and title VI of the Robert T. Stafford 1985 (7 U.S.C. 1731 note).
Disaster Relief and Emergency Assist- (20) Carry out activities relating to
ance Act (42 U.S.C. 5195 et seq.). the sale, reduction, or cancellation of
(10) Conduct economic analyses per- debt, as authorized by title VI of the
taining to the foreign sugar situation. Agricultural Trade and Development
(11) Exercise the Department’s func- Act of 1954, as amended (7 U.S.C. 1738 et
tions with respect to the International seq.).
Sugar Agreement or any such future (21) [Reserved]
agreements.
(22) Allocate among the various ex-
(12) Exercise the Department’s re-
port programs agricultural commod-
sponsibilities with respect to tariff-
ities determined under § 2.16(a)(3)(xix)
rate quotes for dairy products under
to be available for export.
chapter 4 of the Harmonized Tariff
Schedule of the United States (19 (23) Maintain a worldwide agricul-
U.S.C. 1202). tural intelligence and reporting sys-
(13) Serve as a focal point for han- tem, including provision for foreign ag-
dling quality or weight discrepancy in- ricultural representation abroad to
quiries from foreign buyers of U.S. ag- protect and promote U.S. agricultural
ricultural commodities to insure that interests, and to acquire information
they are investigated and receive a on demand, competition, marketing,
timely response and that reports there- and distribution of U.S. agricultural
of are made to appropriate parties and commodities abroad pursuant to title
government officials in order that cor- VI of the Agricultural Act of 1954, as
rective action may be taken. amended (7 U.S.C. 1761–1768).
(14) Formulate policies and admin- (24) Plan and carry out programs and
ister programs and activities author- activities under the foreign market
ized by the Agricultural Trade Act of promotion authority of: The Wheat Re-
1978, as amended (7 U.S.C. 5601 et seq.). search and Promotion Act (7 U.S.C.
(15) Formulate policies and admin- 1292 note); the Cotton Research and
ister barter programs under which ag- Promotion Act (7 U.S.C. 2101–2118); the
ricultural commodities are exported. Potato Research and Promotion Act (7
(16) Perform functions of the Depart- U.S.C. 2611–2627); the Egg Research and
ment in connection with the develop- Consumer Information Act of 1974 (7
ment and implementation of agree- U.S.C. 2701–2718); the Beef Research and
ments to finance the sale and expor- Information Act, as amended (7 U.S.C.
tation of agricultural commodities on 2901–2911); the Wheat and Wheat Foods
long-term credit or for foreign cur- Research and Nutrition Education Act
rencies under Public Law 480 (7 U.S.C. (7 U.S.C. 3401–3417); the Floral Research
1691, 1701 et seq.). and Consumer Information Act of 1981
(17) Coordinate within the Depart- (7 U.S.C. 4301–4319); subtitle B of title I
ment activities arising under Public of the Dairy and Tobacco Adjustment
Law 480 (except as delegated to the Act of 1983 (7 U.S.C. 4501–4514); the
Under Secretary for Research, Edu- Honey Research, Promotion, and Con-
cation, and Economics in § 2.21(a)(8)), sumer Information Act of 1984, as
and to represent the Department in its amended (7 U.S.C. 4601–4613); the Pork
relationships in such matters with the Promotion, Research, and Consumer
Department of State, any interagency Information Act of 1985 (7 U.S.C. 4801–
committee on Public Law 480, and 4819); the Watermelon Research and
other departments, agencies and com- Promotion Act, as amended (7 U.S.C.
mittees of the Government. 4901–4916); the Pecan Promotion and

(18) Formulate policies and imple- Research Act of 1990 (7 U.S.C. 6001–
ment programs to promote the export 6013); the Mushroom Promotion, Re-
of dairy products, as authorized under search, and Consumer Information Act
223
of 1990 (7 U.S.C. 6101–6112); the Lime Re- ities in accordance with title IV of
search, Promotion, and Consumer In- Pub. L. No. 95–501 (7 U.S.C. 1765a–g).
formation Act of 1990 (7 U.S.C. 6201– (28) Administer the programs under
6212); the Soybean Promotion, Re- section 416(b) of the Agricultural Act of
search, and Consumer Information Act 1949, as amended (7 U.S.C. 1431(b)), re-
of 1990 (7 U.S.C. 6301–6311); the Fluid lating to the foreign donation of CCC
Milk Promotion Act of 1990 (7 U.S.C. stocks of agricultural commodities, ex-
6401–6417); the Fresh Cut Flowers and cept as otherwise delegated in
Fresh Cut Greens Promotion and Con- § 2.42(a)(43).
sumer Information Act (7 U.S.C. 6801– (29)–(30) [Reserved]
6814); the Sheep Promotion, Research, (31) Administer programs under the
and Information Act of 1994 (7 U.S.C. Food for Progress Act of 1985 (7 U.S.C.
7101–7111); the Commodity Promotion, 1736o), except as otherwise delegated in
Research, and Information Act of 1996 § 2.42(a)(43).
(7 U.S.C. 7411–7425); the Canola and (32) Serve as Department adviser on
Rapeseed Research, Promotion, and policies, organizational arrangements,
Consumer Information Act (7 U.S.C. budgets, and actions to accomplish
7441–7452); the National Kiwifruit Re- International Scientific and Technical
search, Promotion, and Consumer In- Cooperation in Food and Agriculture.
formation Act (7 U.S.C. 7461–7473); and, (33) Administer and direct the De-
the Popcorn Promotion, Research, and partment’s programs in international
Consumer Information Act (7 U.S.C. development, technical assistance, and
7481–7491). This authority includes de- training carried out under the Foreign
termining the programs and activities Assistance Act, as amended, as re-
to be undertaken and assuring that quested under such act (22 U.S.C. 2151 et
they are coordinated with the overall seq.).
departmental programs to develop for- (34) Administer and coordinate as-
eign markets for U.S. agricultural signed Departmental programs in
products. international research and scientific
(25) Establish and administer regula- and technical cooperation with other
tions relating to foreign travel by em- governmental agencies, land grant uni-
ployees of the Department. Regula- versities, international organizations,
tions will include, but not be limited international agricultural research
to, obtaining and controlling passports, centers, and other institutions (7
obtaining visas, coordinating Depart- U.S.C. 1624, 3291).
ment of State medical clearances and (35) Direct and coordinate the De-
imposing requirements for itineraries partment’s participation in scientific
and contacting the Foreign Agricul- and technical matters and exchange
tural Affairs Officers upon arrival in agreements between the United States
the Officers’ country(ies) of responsi- and other countries.
bility. (36) Direct and coordinate the De-
(26) Administer the Foreign Service partment’s work with international or-
personnel system for the Department ganizations and interagency commit-
in accordance with 22 U.S.C. 3922, ex- tees concerned with food and agricul-
cept as otherwise delegated in tural development programs (7 U.S.C.
§ 2.80(a)(1), but including authority to 2201 and 2202).
represent the Department of Agri- (37) Coordinate policy formulation
culture in all interagency consulta- for USDA international science and
tions and negotiations with the other technology programs concerning inter-
foreign agencies with respect to joint national agricultural research centers,
regulations and authority to approve international organizations, and inter-
regulations issued by the Department national agricultural research and ex-
of State relating to the administration tension activities (7 U.S.C. 3291).
of the Foreign Service. (38) Disseminate, upon request, infor-
(27) Establish and maintain U.S. Ag- mation on subjects connected with ag-
ricultural Trade Offices to develop, riculture which has been acquired by
maintain and expand international USDA agencies that may be useful to
markets for U.S. agricultural commod- the U.S. private sector in expanding
224
foreign markets and investment oppor- (49) Administer the grant program
tunities through the operation of a De- for agricultural biotechnology research
partment information center, pursuant and development for developing coun-
to 7 U.S.C. 2201. tries (7 U.S.C. 7631).
(39) Enter into contracts, grants, co- (b) [Reserved]
operative agreements, and cost reim-
bursable agreements relating to agri- [60 FR 56393, Nov. 8, 1995, as amended at 61
cultural research, extension, or teach- FR 25776, May 23, 1996; 61 FR 37552, July 18,
ing activities (7 U.S.C. 3318, 3319a). 1996; 62 FR 40254, July 28, 1997; 68 FR 27443,
May 20, 2003; 69 FR 34254, June 21, 2004; 74 FR
(40) Determine amounts reimbursable
3407, Jan. 21, 2009]
for indirect costs under international
agricultural programs and agreements § 2.44 Administrator, Risk Manage-
(7 U.S.C. 3319). ment Agency and Manager, Federal
(41) Administer the Cochran Fellow- Crop Insurance Corporation.
ship Program (7 U.S.C. 3293).
(42) Determine quantity trigger lev- (a) Delegations. Pursuant to
els and impose additional duties under § 2.16(a)(4), subject to reservations in
the special safeguard measures in ac- § 2.16(b)(3), the following delegations of
cordance with U.S. note 2 to sub- authority are made by the Under Sec-
chapter IV of chapter 99 of the Har- retary for Farm and Foreign Agricul-
monized Tariff Schedule of the United tural Services to the Administrator,
States (19 U.S.C. 1202). Risk Management Agency, and Man-
(43) Implement provisions of the ager Federal Crop Insurance Corpora-
Trade Act of 1974 regarding adjustment tion:
assistance for farmers. (19 U.S.C. 2401– (1) Appoint such officers and employ-
2401g). ees as may be necessary for the trans-
(44) Implement section 3107 of the action of the business of the Federal
Farm Security and Rural Investment Crop Insurance Corporation and the
Act of 2002 (7 U.S.C. 1736o-1). Risk Management Agency.
(45) Support remote sensing activi- (2) Conduct pilot programs involving
ties of the Department and research revenue insurance, risk management
with satellite imagery including:
savings accounts, or the use of futures
(i) Providing liaison with U.S. space
markets to manage risk and support
programs;
farm income.
(ii) Providing administrative man-
agement of the USDA Remote Sensing (3) Provide education in management
Archive and the transfer of satellite of the financial risks inherent in the
imagery to all USDA agencies; production and marketing of agricul-
(iii) Coordinating all agency satellite tural commodities.
imagery data needs; and (4) Conduct a study and issue a report
(iv) Arranging for acquisition, and on the efficacy and accuracy of the ap-
preparation of imagery for use to the plication of pack factors regarding the
extent of existing capabilities. measurement of farm-stored produc-
(46) Implement section 3205 of the tion for purposes of providing policies
Food, Conservation, and Energy Act of or plans of insurance under the Federal
2008 (22 U.S.C. 7112 note) regarding the Crop Insurance Act (7 U.S.C. 1501 et
Consultative Group to Eliminate the seq.).
Use of Child Labor and Forced Labor in (b) [Reserved]
Imported Agricultural Products, in
consultation with the Administrator of [62 FR 19901, Apr. 24, 1997, as amended at 74
the Agricultural Marketing Service. 3407, Jan. 21 2009]
(47) Implement section 3206 of the
Food, Conservation, and Energy Act of Subpart G—Delegations of Au-
2008 (7 U.S.C. 1726c) regarding local and thority by the Under Secretary
regional food aid procurement projects. for Rural Development
(48) Administer the Borlaug Inter-

national Agricultural Science and
Technology Fellowship Program (7 EDITORIAL NOTE: Nomenclature changes to
subpart G appear at 60 FR 66713, Dec. 26, 1995.
U.S.C. 3319j).
225
§ 2.45 Deputy Under Secretary for cilities, resource and conservation fa-
Rural Development. cilities, and water and waste facilities.
Pursuant to § 2.17(a), subject to res- (viii) Section 305 (7 U.S.C. 1926) relat-
ervations in § 2.17(b), and subject to ing to hazardous weather early warn-
policy guidance and direction by the ing systems.
Under Secretary, the following delega- (ix) Section 310A (7 U.S.C. 1931), re-
tion of authority is made to the Dep- lating to watershed and resource con-
uty Under Secretary for Rural Develop- servation and development.
ment, to be exercised only during the (x) Section 310B(b) (7 U.S.C. 1932(b)).
absence or unavailability of the Under (xi) [Reserved]
Secretary: Perform all the duties and (xii) Section 342 (7 U.S.C. 1013p).
exercise all the powers which are now (xiii) Administrative Provisions of
or which may hereafter be delegated to subtitle D of the Consolidated Farm
the Under Secretary for Rural Develop- and Rural Development Act relating to
ment. Rural Utilities Service activities.
[75 FR 43380, July 23, 2010] (xiv) Section 379B (7 U.S.C. 2009;).
(5) Administer section 8, and those
§ 2.47 Administrator, Rural Utilities functions with respect to repayment of
Service. obligations under section 4, of the Wa-
(a) Delegations. Pursuant to §§ 2.17 tershed Protection and Flood Preven-
(a)(14) and (a)(16) through (a)(20), and tion Act (16 U.S.C. 1006a, 1004) and ad-
subject to policy guidance and direc- minister the Resource Conservation
tion by the Under Secretary for Rural and Development Program to assist in
Economic and Community Develop- carrying out resource conservation and
ment, the following delegations of au- development projects in rural areas
thority are made by the Under Sec- under section 32(e) of the Bankhead-
retary for Rural Economic and Com- Jones Farm Tenant Act (7 U.S.C.
munity Development to the Adminis- 1011(e)).
trator, Rural Utilities Service: (6) Administer the Water and Waste
(1) Administer the Rural Electrifica- Loan Program (7 U.S.C. 1926–1).
tion Act of 1936, as amended (7 U.S.C. (7) Administer the Rural Wastewater
901, et seq.) except for rural economic Treatment Circuit Rider Program (7
development loan and grant programs U.S.C. 1926 note).
(7 U.S.C. 940c and 950aa, et seq.): Pro- (8) Collect, service, and liquidate
vided, however, that the Administrator loans made, insured, or guaranteed by
may utilize consultants and attorneys the Rural Utilities Service or its prede-
for the provision of legal services pur- cessor agencies.
suant to 7 U.S.C. 918, with the concur- (9) Administer the Federal Claims
rence of the General Counsel. Collection Act of 1966 (31 U.S.C. 3711 et
(2) Administer the Rural Electrifica- seq.), and joint regulations issued pur-
tion Act of 1938 (7 U.S.C. 903 note). suant thereto by the Attorney General
(3) The Administrator, Rural Utili- and the Comptroller General (4 CFR
ties Service is designated to serve as chapter II), with respect to the claims
the chief executive officer of the Rural of the Rural Utilities Service.
Telephone Bank. (10) Administer responsibilities and
(4) Administer the following sections function assigned under the Defense
of the Consolidated Farm and Rural Production Act of 1950, as amended (50
Development Act (7 U.S.C. 1921, et seq.): U.S.C. App. 2061 et seq.) and title VI of
(i) Section 306 (7 U.S.C. 1926), related the Robert T. Stafford Disaster Relief
to water and waste facilities. and Emergency Assistance Act (42
(ii) Section 306A (7 U.S.C. 1926a). U.S.C. 5195 et seq.), relating to rural de-
(iii) Section 306B (7 U.S.C. 1926b). velopment credit and financial assist-
(iv) Section 306C (7 U.S.C. 1926c). ance.
(v) Section 306D (7 U.S.C. 1926d). (11) With respect to land and facili-
(vii) Section 306E (7 U.S.C. 1926e). ties under his or her authority, exer-
(vii) Sections 309 (7 U.S.C. 1929 and cise the functions delegated to the Sec-
309A (7 U.S.C. 1929a), relating to assets retary by Executive Order 12580, 3 CFR,
and programs related to watershed fa- 1987 Comp., p. 193, under the following
226

as amended: (42 U.S.C. 9617(a) and (c)), with respect
ble to covered work; and emergency ards; and
(iv) Section 104(j) of the Act (42 (12) With respect to facilities and ac-
U.S.C. 9604(j)), with respect to the activities under his or her authority, to
quisition of real property and interests exercise the authority of the Secretary
in real property required to conduct a of Agriculture pursuant to section 1–
remedial action; 102 related to compliance with applica-
(v) The first two sentences of section ble pollution control standards and sec-
105(d) of the Act (42 U.S.C. 9605(d)), tion 1–601 of Executive Order 12088, 3
with respect to petitions for prelimi- CFR, 1978 Comp., p. 243, to enter into
nary assessment of a release or threat- an inter-agency agreement with the
ened release; United States Environmental Protec-
(vi) Section 105(f) of the Act (42 tion Agency, or an administrative con-
U.S.C. 9605(f)), with respect to consider- sent order or a consent judgment in an
ation of the availability of qualified appropriate State, interstate, or local
minority firms in awarding contracts, agency, containing a plan and schedule
but excluding that portion of section to achieve and maintain compliance
105(f) pertaining to the annual report with applicable pollution control
to Congress; standards established pursuant to the
(vii) Section 109 of the Act (42 U.S.C. following:
9609), with respect to the assessment of (i) Solid Waste Disposal Act, as
civil penalties for violations of section amended by the Resource Conservation
122 of the Act (42 U.S.C. 9622), and the and Recovery Act, as further amended
granting of awards to individuals pro- by the Hazardous and Solid Waste
viding information; Amendments, and the Federal Facility
(viii) Section 111(f) of the Act (42 Compliance Act (42 U.S.C. 6901 et seq.);
U.S.C. 9611(f)), with respect to the des-
(ii) Federal Water Pollution Preven-
ignation of officials who may obligate
U.S.C. 1251 et seq.);
Superfund;
lishing an administrative record upon (iv) Clean Air Act, as amended (42
which to base the selection of a re- U.S.C. 7401 et seq.);

fying potentially responsible parties; amended (42 U.S.C. 4901 et seq.);
(x) Section 116(a) of the Act (42 U.S.C. (vi) Toxic Substances Control Act, as
9616(a)), with respect to preliminary as- amended (15 U.S.C. 2601 et seq.);
227
(vii) Federal Insecticide, Fungicide, under the Rural Electrification Act (7

and Rodenticide Act, as amended (7 U.S.C. 940c and 950aa et seq.).
U.S.C. 136 et seq.); and (2) Administer the following sections
(viii) Comprehensive Environmental of the Consolidated Farm and Rural
Response, Compensation, and Liability Development Act (7 U.S.C. 1921 et seq.):
Act of 1980, as amended by the Super- (i) Section 306(a)(11)(A) (7 U.S.C.
fund Amendments and Reauthorization 1926(a)(11)(A)), related grants for busi-
Act of 1986 (42 U.S.C. 9601 et seq.). ness technical assistance and planning;
(13) Administer the Distance Learn- (ii) [Reserved]
ing and Medical Link Programs (7 (iii) Sections 309 (7 U.S.C. 1929) and
U.S.C. 950aaa et seq.). 309A (7 U.S.C. 1929a), relating to assets
(14) Administer water and waste fa- and programs related to rural develop-
cility programs and activities (7 U.S.C. ment;
1926–1). (iv) Section 310B (7 U.S.C. 1932), relat-
(15) Admnister the SEARCH Grants ing to various Rural Development pro-
for Small Communities Program (7 grams, except for subsection (b) of that
U.S.C. 2009ee et seq.). section.
(16) In coordination with the Direc- (v) Section 312(b) (7 U.S.C. 1942(b)),
tor, Office of Advocacy and Outreach, relating to small business enterprises;
issue receipts under section 2501A(e) of and
the Food, Agriculture, Conservation, (vi) Administrative Provisions of sub-
and Trade Act of 1990 (7 U.S.C. 2279– title D of the Consolidated Farm and
1(e)). Rural Development Act relating to
(b) Reservations. The following au-
Rural Business-Cooperative Service ac-
thority is reserved to the Under Sec-
tivities;
retary for Rural Economic and Com-
(vii) Section 378 (7 U.S.C., 2008m) re-
munity Development:
lating to the National Rural Develop-
(1) Making and issuing notes to the
ment Partnership; and
Secretary of the Treasury for the pur-
poses of the Rural Development Insur- (viii) Section 379E (7 U.S.C. 2008s) re-
ance Fund as authorized by the Con- lating to the Rural Microentrepreneur
solidated Farm and Rural Development Assistance Program.
Act (7 U.S.C. 1929a). (ix) Section 379F (7 U.S.C. 2000t) re-
(2) Administering loans for rural tele- lating to the Expansion of Employment
phone facilities and service in rural Opportunities for Individuals with Dis-
areas as authorized by the Consoli- abilities in Rural Areas Program.
dated Farm and Rural Development (x) Section 379G (7 U.S.C. 2008u) relat-
Act (7 U.S.C. 1921 et seq.). ing to Health Care Services.
(xi) Section 382A et seq. (7 U.S.C.
[60 FR 56393, Nov. 8, 1995, as amended at 66 2009aa et seq.) relating to the Delta Re-
FR 16593, Mar. 27, 2001; 68 FR 27443, May 20,
gional Authority.
2003; 74 FR 3407, Jan. 21, 2009; 75 FR 43380,
July 23, 2010] (xii) Section 383A et seq. (7 U.S.C.
2009bb et seq.) relating to the Northern
§ 2.48 Administrator, Rural Business- Great Plains Regional Authority.
Cooperative Service. (xiii) Section 384A et seq. (7 U.S.C.
(a) Delegations. Pursuant to § 2.17 2009cc et seq.) relating to the Rural
(a)(1), (a)(2), (a)(14), (a)(16) through Business Investment program.
(a)(19) and (a)(21), subject to reserva- (xiv) Section 385A et seq. (7 U.S.C.
tions in § 2.17(b)(1), and subject to pol- 2009dd et seq.) relating to the Rural Col-
icy guidance and direction by the laborative Investment Program.
Under Secretary for Rural Economic (3) Administer Alcohol Fuels Credit
and Community Development, the fol- Guarantee Program Account (Pub L.
lowing delegations of authority are No. 102–341, 106 Stat. 895).
made by the Under Secretary for Rural (4) Administer section 1323 of the
Economic and Community Develop- Food Security Act of 1985 (7 U.S.C. 1932
note).
ment to the Administrator, Rural Busi-

ness-Cooperative Service: (5) Administer loan programs in the
(1) Administer the rural economic de- Appalachian region under sections 203
velopment loan and grant programs and 204 of the Appalachian Regional
228
Development Act of 1965 (40 U.S.C. App. of the Rural Business-Cooperative

204). Service.
(6) Administer section 601 of the Pow- (16) Administer responsibilities and
erplant and Industrial Fuel Use Act of functions assigned under the Defense
1978 (Pub. L. No. 95–620). Production Act of 1950, as amended (50
(7) Administer the Drought and Dis- U.S.C. App. 2061 et seq.), and title VI of
aster Guaranteed Loan program under the Robert T. Stafford Disaster Relief
section 331 of the Disaster Assistance and Assistance Act (42 U.S.C. 5195 et
Act of 1988 (7 U.S.C. 1929a note). seq.), relating to rural development
(8) Administer the Disaster Assist- credit and financial assistance.
ance for Rural Business Enterprises (17) With respect to land and facili-
Guaranteed Loan Program under sec- ties under his or her authority, exer-
tion 401 of the Disaster Assistance Act cise the functions delegated to the Sec-
of 1989 (7 U.S.C. 1929a note). retary by Executive Order 12580, 3 CFR,
(9) Administer the Rural Economic 1987 Comp., p. 193, under the following
Development Demonstration Grant provisions of the Comprehensive Envi-
Program (7 U.S.C. 2662a). ronmental Response, Compensation,
(10) Administer the Economically and Liability Act of 1980 (‘‘the Act’’),
Disadvantaged Rural Community Loan as amended:
program (7 U.S.C. 6616). (i) Sections 104 (a), (b), and (c)(4) of
(11) Administer programs authorized the Act (42 U.S.C. 9604 (a), (b), and
by the Cooperative Marketing Act of (c)(4)), with respect to removal and re-
1926 (7 U.S.C. 451–457). medial actions in the event of release
(12) Carry out the responsibilities of or threatened release of a hazardous
the Secretary of Agriculture relating substance, pollutant, or contaminant
to the marketing aspects of coopera- into the environment;
tives, including economic research and (ii) Sections 104(e)–(h) of the Act (42
analysis, the application of economic U.S.C. 9604(e)–(h)), with respect to in-
research findings, technical assistance formation gathering and access re-
to existing and developing coopera- quests and orders; compliance with
tives, education on cooperatives, and Federal health and safety standards
statistical information pertaining to and wage and labor standards applica-
cooperatives as authorized by the Agri- ble to covered work; and emergency
cultural Marketing Act of 1946 (7 U.S.C. procurement powers;
1621–1627). (iii) Section 104(i)(11) of the Act (42
(13) Work with institutions and inter- U.S.C. 9604(i)(11)), with respect to the
national organizations throughout the reduction of exposure to significant
world on subjects related to the devel- risk to human health;
opment and operation of agricultural (iv) Section 104(j) of the Act (42
cooperatives. Such work may be car- U.S.C. 9604(j)), with respect to the ac-
ried out by: quisition of real property and interests
(i) Exchanging materials and results in real property required to conduct a
with such institutions or organiza- remedial action;
tions; (v) The first two sentences of section
(ii) Engaging in joint or coordinated 105(d) of the Act (42 U.S.C. 9605(d)),
activities; or with respect to petitions for prelimi-
(iii) Stationing representatives at nary assessment of a release or threat-
such institutions or organizations in ened release;
foreign countries (7 U.S.C. 3291). (vi) Section 105(f) of the Act (42
(14) Collect, service, and liquidate U.S.C. 9605(f)), with respect to consider-
loans made, insured, or guaranteed by ation of the availability of qualified
the Rural Business-Cooperative Service minority firms in awarding contracts,
or its predecessor agencies. but excluding that portion of section
(15) Administer the Federal Claims 105(f) pertaining to the annual report
Collection Act of 1966 (31 U.S.C. 3711 et to Congress;
seq.), and joint regulations issued pur- (vii) Section 109 of the Act (42 U.S.C.
suant thereto by the Attorney General 9609), with respect to the assessment of
and the Comptroller General (4 CFR civil penalties for violations of section
chapter II), with respect to the claims 122 of the Act (42 U.S.C. 9622), and the
229
granting of awards to individuals pro- Amendments, and the Federal Facility

viding information; Compliance Act (42 U.S.C. 6901 et seq.);
(viii) Section 111(f) of the Act (42 (ii) Federal Water Pollution Preven-
U.S.C. 9611(f)), with respect to the des- tion and Control Act, as amended (33
ignation of officials who may obligate U.S.C. 1251 et seq.);
money in the Hazardous Substances (iii) Safe Drinking Water Act, as
Superfund; amended (42 U.S.C. 300f et seq.);
(ix) Section 113(k) of the Act (42 (iv) Clean Air Act, as amended (42
U.S.C. 9613(k)), with respect to estab- U.S.C. 7401 et seq.);
lishing an administrative record upon (v) Noise Control Act of 1972, as
which to base the selection of a re- amended (42 U.S.C. 4901 et seq.);
sponse action and identifying and noti- (vi) Toxic Substances Control Act, as
(x) Section 116(a) of the Act (42 U.S.C. (vii) Federal Insecticide, Fungicide,
9616(a)), with respect to preliminary as- and Rodenticide Act, as amended (7
sessment and site inspection of facili- U.S.C. 136 et seq.); and
ties; (viii) Comprehensive Environmental
(xi) Sections 117 (a) and (c) of the Act Response, Compensation, and Liability
(42 U.S.C. 9617 (a) and (c)), with respect Act of 1980, as amended by the Super-
to public participation in the prepara- fund Amendments and Reauthorization
tion of any plan for remedial action Act of 1986 (42 U.S.C. 9601 et seq.).
and explanation of variances from the (19) Administer in rural areas the
final remedial action plan for any re- process of designation, provision of
medial action or enforcement action, monitoring and oversight, and provi-
including any settlement or consent sion of technical assistance for Em-
decree entered into; powerment Zones and Enterprise Com-
(xii) Section 119 of the Act (42 U.S.C. munities pursuant to section 13301 of
9119), with respect to indemnifying re- Pub. L. No. 103–66, Omnibus Budget
sponse action contractors; Reconciliation Act of 1993 (26 U.S.C.
(xiii) Section 121 of the Act (42 U.S.C. 1391 et seq.).
9621), with respect to cleanup stand- (20) Provide leadership and coordina-
ards; and tion within the executive branch at the
(xiv) Section 122 of the Act (42 U.S.C. state and local level of Federal rural
9622), with respect to settlements, but development program utilizing the
excluding section 122(b)(1) of the Act services of executive branch depart-
(42 U.S.C. 9622(b)(1)), related to mixed ments and agencies and the agencies,
funding agreements. bureaus, offices, and services of the De-
(18) With respect to facilities and ac- partment of Agriculture in coordina-
tivities under his or her authority, to tion with rural development programs
exercise the authority of the Secretary of State and local governments (7
of Agriculture pursuant to section 1– U.S.C. 2204).
102 related to compliance with applica- (21) Coordinate, at the state and local
ble pollution control standards and sec- level, activities relative to rural devel-
tion 1–601 of Executive Order 12088, 3 opment among agencies reporting to
CFR, 1978 Comp., p. 243, to enter into the Under Secretary for Rural Eco-
an inter-agency agreement with the nomic and Community Development
United States Environmental Protec- and, through appropriate channels,
tion Agency, or an administrative conserve as the coordinating agency for
sent order or a consent judgment in an other departmental agencies having
appropriate State, interstate, or local primary responsibilities, in coordina-
agency, containing a plan and schedule tion with rural development programs
to achieve and maintain compliance of State and local governments (7
with applicable pollution control U.S.C. 2204).
standards established pursuant to the (22) Work with Federal agencies in
following: encouraging the creation of local rural
(i) Solid Waste Disposal Act, as community development organiza-

amended by the Resource Conservation tions. Within a State, assist other Fed-
and Recovery Act, as further amended eral agencies in developing means for
by the Hazardous and Solid Waste extending their services effectively to
230
rural areas and in designating pilot curity and Rural Investment Act of
projects in rural areas (7 U.S.C. 2204). 2002 (7 U.S.C. 8103, 8104, 8105, 8107, and
(23) Conduct assessments to deter- 8109).
mine how programs of the Department (31) Implement the information dis-
can be brought to bear on the economic closure authorities of section
development problems of a State or 1619(b)(3)(A) of the Food, Conservation,
local area and assure that local groups and Energy Act of 2008 (7 U.S.C.
are receiving adequate and effective 8791(b)(3)(A)).
technical assistance from Federal (32) In coordination with the Direc-
agencies or from local and State gov- tor, Office of Advocacy and Outreach,
ernments in formulating development issue receipts under section 2501A(e) of
programs and in carrying out planned the Food, Agriculture, Conservation,
development activities (7 U.S.C. 2204b). and Trade Act of 1990 (7 U.S.C. 2279–
(24) Develop a process through which 1(e)).
State, sub-state and local rural devel- (b) Reservation. The following author-
opment needs, goals, objectives, plans, ity is reserved to the Under Secretary
and recommendations can be received for Rural Economic and Community
and assessed on a continuing basis (7 Development: Making and issuing
U.S.C. 2204b). notes to the Secretary of the Treasury
(25) Prepare local or area-wide rural for the purposes of the Rural Develop-
development strategies based on the ment Insurance Fund as authorized by
needs, goals, objectives, plans and rec- the Consolidated Farm and Rural De-
ommendations of local communities, velopment Act (7 U.S.C. 1929a).
sub-state areas and States (7 U.S.C.
2204b). [60 FR 56393, Nov. 8, 1995, as amended at 66
(26) Develop a system of outreach in FR 33107, June 11, 2001; 68 FR 27444, May 20,
the State or local area to promote 2003; 73 FR 3407, Jan. 21, 2009; 75 FR 43380,
July 23, 2010]
rural development and provide for the
publication and dissemination of infor- § 2.49 Administrator, Rural Housing
mation, through multi-media methods, Service.
relating to rural development. Advise
local rural development organizations (a) Delegations. Pursuant to
of availability of Federal programs and § 2.17(a)(14), (a)(16) through (a)(19) and
the type of assistance available, and (a)(22), and subject to policy guidance
assist in making contact with Federal and directions by the Under Secretary
program contact (7 U.S.C. 2204; 7 U.S.C. for Rural Economic and Community
2204b). Development, the following delegations
(27) Administer the assets of the Al- are made by the Under Secretary for
ternative Agricultural Research and Rural Economic and Community De-
Commercialization Corporation and velopment to the Administrator, Rural
the funds in the Alternative Agricul- Housing Service:
tural Research and Commercialization (1) Administer the following under
Fund in accordance with section 6201 of the Consolidated Farm and Rural De-
the Farm Security and Rural Invest- velopment Act (7 U.S.C. 1921 et seq.):
ment Act of 2000 (see note to 7 U.S.C. (i) Section 306 (7 U.S.C. 1926) except
5901 (repealed)). subsection 306(a)(11) and except financ-
(28) Administer the Value-Added Ag- ing for water and waste disposal facili-
ricultural Product Market Develop- ties; hazardous weather early warning
ment Grant program (note to 7 U.S.C. systems; grazing facilities; irrigation
1621). and drainage facilities; rural elec-
(29) Administer the Agriculture Inno- trification or telephone systems or fa-
vation Center Demonstration program cilities; and hydro-electric generating
(note to 7 U.S.C. 1621). and related distribution systems and
(30) Administer the Renewable En- supplemental and supporting struc-
ergy Systems and Energy Efficiency tures if they are eligible for Rural Util-
ities financing;
Improvements program (7 U.S.C. 8106).

(30) Administer the renewable energy (ii) Section 309A (7 U.S.C. 1929a), re-
programs authorized in sections 9003, garding assets and programs relating
9004, 9005, 9007, and 9009 of the Farm Se- to community facilities; and
231
(iii) Administrative Provisions of (7) Administer the Federal Claims

subtitle D of the Consolidated Farm Collection Act of 1966 (31 U.S.C. 3711 et
and Rural Development Act relating to seq.), and joint regulations issued pur-
Rural Housing Service activities; suant thereto by the Attorney General
(iv) Section 379 (7 U.S.C. 2008n) relat- and the Comptroller General (4 CFR
ing to the Rural Telework program. chapter II), with respect to claims of
(v) Section 379A (7 U.S.C. 2008o) relat- the Rural Housing Service.
ing to the Historic Barn Preservation (8) Administer responsibilities and
program. function assigned under the Defense
(vi) Section 379C (7 U.S.C. 2008q) re- Production Act of 1950, as amended (50
lating to the Farm Workers Training U.S.C. App. 2061 et seq.) and title VI of
Grant program. the Robert T. Stafford Disaster Relief
(2) Administer title V of the Housing and Emergency Assistance Act (42
Act of 1949 (42 U.S.C. 1471 et seq.), ex- U.S.C. 5195 et seq.), relating to rural
cept those functions pertaining to re- housing and community development
search. credit and financial assistance.
(3) [Reserved] (9) With respect to land and facilities
(4) Administer the rural housing dis- under his or her authority, exercise the
aster program under sections 232, 234, functions delegated to the Secretary by
and 253 of the Disaster Relief Act of Executive Order 12580, 3 CFR, 1987
1970 (Pub. L. No. 91–606). Comp., p. 193, under the following pro-
(5) Collect, service, and liquidate visions of the Comprehensive Environ-
loans made, insured or guaranteed by mental Response, Compensation, and
the Rural Housing Service or its prede- Liability Act of 1980 (‘‘the Act’’), as
cessor agencies. amended:
(6) Exercise all authority and discre- (i) Sections 104 (a), (b), and (c)(4) of
tion vested in the Secretary by section the Act (42 U.S.C. 9604(a), (b), and
510(d) of the Housing Act of 1949, as (c)(4)), with respect to removal and re-
amended by section 1045 of the Stewart medial actions in the event of release
B. McKinney Homeless Assistance or threatened release of a hazardous
Amendments Act of 1988, Pub. L. No. substance, pollutant, or contaminant
100–628 (42 U.S.C. 1480(d)), including the into the environment;
following: (ii) Sections 104(e)–(h) of the Act (42
(i) Determine, with the concurrence U.S.C. 9604(e)–(h)), with respect to in-
of the General Counsel, which actions formation gathering and access re-
are to be referred to the Department of quests and orders; compliance with
Justice for the conduct of litigation, Federal health and safety standards
and refer such actions to the Depart- and wage and labor standards applica-
ment of Justice through the General ble to covered work; and emergency
Counsel; procurement powers;
(ii) Determine, with the concurrence (iii) Section 104(i)(11) of the Act (42
of the General Counsel, which actions U.S.C. 9604(i)(11)), with respect to the
are to be referred to the General Coun- reduction of exposure to significant
sel for the conduct of litigation and risk to human health;
refer such actions; and (iv) Section 104(j) of the Act (42
(iii) Enter into contracts with pri- U.S.C. 9604(j)), with respect to the ac-
vate sector attorneys for the conduct quisition of real property and interests
of litigation, with the concurrence of in real property required to conduct a
the General Counsel, after determining remedial action;
that the attorneys will provide com- (v) The first two sentences of section
petent and cost effective representa- 105(d) of the Act (42 U.S.C. 9605(d)),
tion for the Rural Housing Service and with respect to petitions for prelimi-
representation by the attorney will ei- nary assessment of a release or threat-
ther accelerate the process by which a ened release;
family or person eligible for assistance (vi) Section 105(f) of the Act (42
under section 502 of the Housing Act of U.S.C. 9605(f)), with respect to consider-
1949 will be able to purchase and ocation of the availability of qualified
cupy the housing involved, or preserve minority firms in awarding contracts,
the quality of the housing involved. but excluding that portion of section
232
105(f) pertaining to the annual report standards established pursuant to the

to Congress; following:
(vii) Section 109 of the Act (42 U.S.C. (i) Solid Waste Disposal Act, as
9609), with respect to the assessment of amended by the Resource Conservation
civil penalties for violations of section and Recovery Act, as further amended
122 of the Act (42 U.S.C. 9622), and the by the Hazardous and Solid Waste
Superfund;
(iv) Clean Air Act, as amended (42
lishing an administrative record upon U.S.C. 7401 et seq.);
which to base the selection of a re- (v) Noise Control Act of 1972, as
sponse action and identifying and noti- amended (42 U.S.C. 4901 et seq.);
fying potentially responsible parties; (vi) Toxic Substances Control Act, as
(x) Section 116(a) of the Act (42 U.S.C. amended (15 U.S.C. 2601 et seq.);
9616(a)), with respect to preliminary as- (vii) Federal Insecticide, Fungicide,
sessment and site inspection of facili- and Rodenticide Act, as amended (7
ties; U.S.C. 136 et seq.); and
(xi) Sections 117 (a) and (c) of the Act (viii) Comprehensive Environmental
(42 U.S.C. 9617 (a) and (c)), with respect Response, Compensation, and Liability
to public participation in the prepara- Act of 1980, as amended by the Super-
tion of any plan for remedial action fund Amendments and Reauthorization
and explanation of variances from the Act of 1986 (42 U.S.C. 9601 et seq.).
final remedial action plan for any re- (11) Administer the Rural Fire-
medial action or enforcement action, fighters and Emergency Personnel
including any settlement or consent Grant program (7 U.S.C. 2655).
decree entered into; (12) Implement the information dis-
(xii) Section 119 of the Act (42 U.S.C. closure authorities of section
9119), with respect to indemnifying re- 1619(b)(3)(A) of the Food, Conservation,
sponse action contractors; and Energy Act of 2008 (7 U.S.C.
(xiii) Section 121 of the Act (42 U.S.C. 8791(b)(3)(A)).
(13) In coordination with the Direc-
ards; and
tor, Office of Advocacy and Outreach,
(xiv) Section 122 of the Act (42 U.S.C.
issue receipts under section 2501A(e) of
9622), with respect to settlements, but
the Food, Agriculture, Conservation,
excluding section 122(b)(1) of the Act
and Trade Act of 1990 (7 U.S.C. 2279–
(42 U.S.C. 9622(b)(1)), related to mixed
funding agreements. 1(e)).
(10) With respect to facilities and ac- (b) Reservation. The following author-
tivities under his or her authority, to ity is reserved to the Under Secretary
exercise the authority of the Secretary for Rural Economic and Community
of Agriculture pursuant to section 1– Development: Making and issuing
102 related to compliance with applica- notes to the Secretary of the Treasury
ble pollution control standards and sec- for the purposes the Rural Develop-
tion 1–601 of Executive Order 12088, 3 ment Insurance Fund as authorized by
CFR, 1978 Comp., p. 243, to enter into the Consolidated Farm and Rural De-
an inter-agency agreement with the velopment Act (7 U.S.C. 1929(a)) and
United States Environmental Protec- the Rural Housing Insurance Fund as
tion Agency, or an administrative con- authorized by title V of the Housing
sent order or a consent judgment in an Act of 1949 (41 U.S.C. 1487).
appropriate State, interstate, or local [60 FR 56393, Nov. 8, 1995, as amended at 66

agency, containing a plan and schedule FR 16593, Mar. 27, 2001; 68 FR 27444, May 20,
to achieve and maintain compliance 2003; 74 FR 3408, Jan. 21, 2009; 75 FR 43380,
with applicable pollution control July 23, 2010]
233
Subpart H—Delegations of Author- (iv) Talmadge-Aiken Act (7 U.S.C.

ity by the Under Secretary for 450) with respect to cooperation with
Food Safety States in administration of the Federal
Meat Inspection Act and the Poultry
§ 2.51 Deputy Under Secretary for Products Inspection Act;
Food Safety. (v) Humane Slaughter Act (7 U.S.C.
Pursuant to § 2.18, and subject to pol- 1901–1906); and
icy guidance and direction by the (vi) Defense Production Act of 1950,
Under Secretary, the following delega- as amended (50 U.S.C. App. 2061 et seq.),
tion of authority is made by the Under and title VI of the Robert T. Stafford
Secretary for Food Safety to the Dep- Disaster Relief and Emergency Assist-
uty Under Secretary for Food Safety, ance Act (42 U.S.C. 5195 et seq.), relat-
to be exercised only during the absence ing to wholesomeness of meat and
or unavailability of the Under Sec- poultry and products thereof and in-
retary: Perform all the duties and exer- spection of egg and egg products.
cise all the powers which are now or (3) With respect to land and facilities
which may hereafter be delegated to under his or her authority, exercise the
the Under Secretary for Food Safety. functions delegated to the Secretary by
Executive Order 12580, 3 CFR, 1987
[75 FR 43381, July 23, 2010]
Comp., p. 193, under the following pro-
§ 2.53 Administrator, Food Safety and visions of the Comprehensive Environ-
Inspection Service. mental Response, Compensation, and
Liability Act of 1980 (‘‘the Act’’), as
(a) Delegations. Pursuant to § 2.18, the
amended:
following delegations of authority are
made by the Under Secretary for Food (i) Sections 104 (a), (b), and (c)(4) of
Safety to the Administrator, Food the Act (42 U.S.C. 9604 (a), (b), and
Safety and Inspection Service: (c)(4)), with respect to removal and re-
(1) Exercise the functions of the Sec- medial actions in the event of release
retary of Agriculture contained in the or threatened release of a hazardous
Agricultural Marketing Act of 1946, as substance, pollutant, or contaminant
amended (7 U.S.C. 1621–1627), relating into the environment;
to voluntary inspection of poultry and (ii) Sections 104(e)–(h) of the Act (42
edible products thereof; voluntary in- U.S.C. 9604(e)–(h)), with respect to in-
spection and certification of technical formation gathering and access re-
animal fat; certified products for dogs, quests and orders; compliance with
cats and other carnivora; voluntary in- Federal health and safety standards
spection of rabbits and edible products and wage and labor standards applica-
thereof; and voluntary inspection and ble to covered work; and emergency
certification of edible meat and other procurement powers;
products. (iii) Section 104(i)(11) of the Act (42
(2) Exercise the functions of the Sec- U.S.C. 9604(i)(11)), with respect to the
retary of Agriculture contained in the reduction of exposure to significant
following legislation: risk to human health;
(i) Poultry Products Inspection Act, (iv) Section 104(j) of the Act (42
as amended (21 U.S.C. 451–470, 472); U.S.C. 9604(j)), with respect to the ac-
(ii) Federal Meat Inspection Act, as quisition of real property and interests
amended, and related legislation, ex- in real property required to conduct a
cluding so much of section 18 as per- remedial action;
tains to issuance of certificates of con- (v) The first two sentences of section
dition of live animals intended and of- 105(d) of the Act (42 U.S.C. 9605(d)),
fered for export (21 U.S.C. 601–613, 615– with respect to petitions for prelimi-
624, 641–645, 661, 671–680, 683, 691–692, 694– nary assessment of a release or threat-
695); ened release;
(iii) Egg Products Inspection Act, ex- (vi) Section 105(f) of the Act (42
cept for the shell egg surveillance pro- U.S.C. 9605(f)), with respect to consider-
gram, voluntary laboratory analyses of ation of the availability of qualified
egg products, and the voluntary egg minority firms in awarding contracts,
grading program (21 U.S.C. 1031–1056); but excluding that portion of section
234

(x) Section 116(a) of the Act (42 U.S.C. (vii) Federal Insecticide, Fungicide,
9616(a)), with respect to preliminary as- and Rodenticide Act, as amended (7
sessment and site inspection of facili- U.S.C. 136 et seq.); and
ties; (viii) Comprehensive Environmental
(xi) Sections 117 (a) and (c) of the Act Response, Compensation, and Liability
(42 U.S.C. 9617 (a) and (c)), with respect Act of 1980, as amended by the Super-
to public participation in the prepara- fund Amendments and Reauthorization
tion of any plan for remedial action Act of 1986 (42 U.S.C. 9601 et seq.).
and explanation of variances from the
(5) Administer the National Labora-
tory Accreditation Program (7 U.S.C.
medial action or enforcement action,
138–138i) with respect to laboratories
including any settlement or consent
accredited only for pesticide residue
decree entered into;
analysis in meat and poultry products.
(xii) Section 119 of the Act (42 U.S.C.
(6) Administer and conduct a food
safety research program (7 U.S.C. 427).
(xiii) Section 121 of the Act (42 U.S.C. (7) Coordinate with the Animal and
9621), with respect to cleanup stand- Plant Health Inspection Service the ad-
ards; and ministration of programs relating to
(xiv) Section 122 of the Act (42 U.S.C. human pathogen reduction (such as sal-
9622), with respect to settlements, but monella enteritidis) pursuant to section
excluding section 122(b)(1) of the Act 2 of the Act of February 2, 1903, as
(42 U.S.C. 9622(b)(1)), related to mixed amended (21 U.S.C. 111), and sections 4
funding agreements. and 5 of the Act of May 29, 1884, as
(4) With respect to facilities and ac- amended (21 U.S.C. 120).
tivities under his or her authority, to (8) Enter into contracts, grants, or
exercise the authority of the Secretary cooperative agreements to further re-
of Agriculture pursuant to section 1– search programs in the agricultural
102 related to compliance with applica- sciences (7 U.S.C. 3318).
ble pollution control standards and sec- (9) Conduct an education program re-
tion 1–601 of Executive Order 12088, 3 garding the availability and safety of
CFR, 1978 Comp., p. 243, to enter into processes and treatments that elimi-
an inter-agency agreement with the nate or substantially reduce the level
United States Environmental Protec- of pathogens on meat, meat food prod-
tion Agency, or an administrative con- ucts, poultry, and poultry products (21
sent order or a consent judgment in an U.S.C. 679b).
(b) [Reserved]
appropriate State, interstate, or local

agency, containing a plan and schedule [60 FR 56393, Nov. 8, 1995, as amended at 68
to achieve and maintain compliance FR 27444, May 20, 2003.; 74 FR 3408, Jan. 21,
with applicable pollution control 2009]
235
Subpart I—Delegations of Author- (vii) Section 4403 of the Farm Secu-

ity by the Under Secretary for rity and Rural Investment Act of 2002
Food, Nutrition, and Con- (7 U.S.C. 3171 note).
sumer Services (viii) Section 4404 of the Farm Secu-
rity and Rural Investment Act of 2002
§ 2.55 Deputy Under Secretary for (2 U.S.C. 1161).
Food, Nutrition, and Consumer (ix) Section 4142 of the Food, Con-
Services. servation, and Energy Act of 2008 (Pub.
Pursuant to § 2.19(a), subject to res- L. 110–246).
ervations in § 2.19(b), and subject to (x) Section 4301 of the Food, Con-
policy guidance and direction by the servation, and Energy Act of 2008 (42
Under Secretary, the following delega- U.S.C. 1758a).
tion of authority is made by the Under (xi) Section 4305 of the Food, Con-
Secretary for Food, Nutrition, and servation, and Energy Act of 2008 (42
Consumer Services to the Deputy U.S.C. 1755a).
Under Secretary for Food, Nutrition (xii) Section 4307 of the Food, Con-
and Consumer Services, to be exercised servation, and Energy Act of 2008 (Pub.
only during the absence or unavail- L. 110–246).
ability of the Under Secretary: Per- (xiii) Section 4405 of the Food, Con-
form all the duties and exercise all the servation, and Energy Act of 2008 (7
powers which are now or which may U.S.C. 7517).
hereafter be delegated to the Under (2) Administer those functions relat-
Secretary for Food, Nutrition, and ing to the distribution and donation of
Consumer Services. agricultural commodities and products
thereof under the following legislation:
§ 2.57 Administrator, Food and Nutri-
tion Service. (i) Clause (3) of section 416(a) of the
Agricultural Act of 1949, as amended (7
(a) Delegations. Pursuant to U.S.C. 1431(a)), except the estimate and
§ 2.19(a)(1), (a)(2) and (a)(5), subject to announcement of the types and vari-
reservations in § 2.91(b), the following eties of food commodities, and the
delegations of authority are made by quantities thereof, to become available
the Under Secretary for Food, Nutri- for distribution thereunder;
tion, and Consumer Services to the Ad-
(ii) Section 709 of the Food and Agri-
ministrator, Food and Nutrition Serv-
culture Act of 1965, as amended (7
ice:
U.S.C. 1446a–1);
(1) Administer the following legisla-
tion: (iii) Section 32 of the Act of August
24, 1935, as amended (7 U.S.C. 612c), as
(i) The Food and Nutrition Act of
supplemented by the Act of June 28,
2008, as amended (7 U.S.C. 2011–2036),
1937 (15 U.S.C. 713c), and related legisla-
except for section 25, regarding assist-
ance for community food projects. tion;
(ii) Richard B. Russell National (iv) Section 9 of the Act of September
School Lunch Act, as amended (42 6, 1958 (7 U.S.C. 1431b);
U.S.C. 1751–1769i), except procurement (v) Section 210 of the Agricultural
of agricultural commodities and other Act of 1956 (7 U.S.C. 1859), except with
foods under section 6 thereof. respect to donations to Federal penal
(iii) Child Nutrition Act of 1966, as and correctional institutions;
amended (42 U.S.C. 1771–1790). (vi) [Reserved]
(iv) Sections 933–939 of the Food, Ag- (vii) Section 311 of the Older Ameri-
riculture, Conservation, and Trade Act cans Act of 1965, as amended (42 U.S.C.
Amendments of 1991 (7 U.S.C. 5930 3030a);
note). (viii) Sections 412 and 413(b) of the
(v) Section 301 of the Healthy Meals Robert T. Stafford Disaster Relief and
for Healthy Americans Act of 1994 Emergency Assistance Act (42 U.S.C.
5179, 5180(b));
(Pub. L. 103–448).
(vi) Section 4402 of the Farm Secu- (ix) Sections 4 and 5 of the Agri-
rity and Rural Investment Act of 2002 culture and Consumer Protection Act
(7 U.S.C. 3007). of 1973, as amended (7 U.S.C. 612c note);
236
(x) Section 1114 of the Agriculture tacts where consumer affairs issues are
and Food Act of 1981, as amended (7 discussed, including liaison with the
U.S.C. 1431e); White House and other governmental
(xi) Section 1336 of the Agriculture agencies and departments.
and Food Act of 1981 (Pub. L. No. 97–98); (11) Work with the Office of Budget
(xii) Emergency Food Assistance Act and Program Analysis and the Office of
of 1983 (7 U.S.C. 612c note); Communications to ensure coordina-
(xiii) Sections 3(b)–(i), 3A and 4 of the tion of USDA consumer affairs and
Commodity Distribution Reform Act public participation programs, policies
and WIC Amendments of 1987 (7 U.S.C. and information, and to prevent dupli-
612c note); and cation of responsibilities.
(xiv) Section 110 of the Hunger Pre- (12) Serve as a consumer ombudsman
vention Act of 1988 (7 U.S.C. 612c note). and communication link between con-
(3) Administer those functions relat- sumers and the Department.
ing to the distribution of supplemental (13) Approve the designation of agen-
nutrition assistance program benefits cy Consumer Affairs Contacts.
under section 412 of the Robert T. Staf- (14) Administer those functions under
ford Disaster Relief and Emergency As- title IV of the Personal Responsibility
sistance Act (42 U.S.C. 5179). and Work Opportunity Reconciliation
(4) In connection with the functions Act of 1996 (8 U.S.C. 1612) relating to
assigned in paragraphs (a)(1), (a)(2), and the eligibility of aliens for benefits
(a)(3) of this section, relating to the under the domestic food assistance pro-
distribution and donation of agricul- grams.
tural commodities and products there- (b) [Reserved]
of and supplemental nutrition assist-
ance program benefits to eligible re-
FR 35787, July 1, 1998; 68 FR 27444, May 20,
cipients, authority to determine the re- 2003; 74 FR 3408, Jan. 21, 2009]
quirements for such agricultural com-
modities and products thereof and sup-
plemental nutrition assistance pro- Subpart J—Delegations of Author-
gram benefits to be so distributed. ity by the Under Secretary for
(5) Receive donation of food commod- Natural Resources and Envi-
ities under clause (3) of section 416(a) of ronment
the Agricultural Act of 1949, as amend-
ed, section 709 of the Food and Agri- EDITORIAL NOTE: Nomenclature changes to
culture Act of 1965, as amended, section subpart J appear at 60 FR 66713, Dec. 26, 1995.
5 of the Agriculture and Consumer Pro-
tection Act of 1973, section 1114(a) of § 2.59 Deputy Under Secretaries for
the Agriculture and Food Act of 1981, Natural Resources and Environ-
and section 202(a) and 202A of the ment.
Emergency Food Assistance Act of Pursuant to § 2.20(a), subject to res-
1983. ervations in § 2.20(b), and subject to
(6) Authorize defense emergency sup- policy guidance and direction by the
plemental nutrition assistance pro- Under Secretary, the following delega-
gram benefits. tion of authority is made by the Under
(7) Develop and implement USDA Secretary for Natural Resources and
policy and procedural guidelines for Environment to the Deputy Under Sec-
carrying out the Department’s Con- retaries for Natural Resources and En-
sumer Affairs Plan. vironment, to be exercised only during
(8) Advise the Secretary and other the absence or unavailability of the
policy level officials of the Department Under Secretary: Perform all the du-
on consumer affairs policies and pro- ties and exercise all the powers which
grams. are now or which may hereafter be del-
(9) Coordinate USDA consumer af- egated to the Under Secretary for Nat-
fairs activities and monitor and ana- ural Resources and Environment. Pro-
lyze agency procedures and perform- vided, that, except in the absence of
ance. both the Under Secretary and a Deputy
(10) Represent the Department at Under Secretary, this authority shall
conferences, meetings and other con- be exercised by the respective Deputy
237
Under Secretary only with respect to 70 Stat. 632) is limited to acquisitions

the area or responsibility assigned to of less than $250,000 in value.
him or her. (3) As necessary for administrative
purposes, divide into and designate as
§ 2.60 Chief, Forest Service. national forests any lands of 3,000 acres
(a) Delegations. Pursuant to or less which are acquired under or
§ 2.20(a)(1), (a)(2), (a)(6), (a)(7)(ii) and subject to the Weeks Act of March 1,
(a)(8), the following delegations of au- 1911, as amended, and which are contig-
thority are made by the Under Sec- uous to existing national forest bound-
retary for Natural Resources and Envi- aries established under the authority
ronment to the Chief of the Forest of the Weeks Act.
Service: (4) Plan and administer wildlife and
fish conservation rehabilitation and
(1) Provide national leadership in for-
habitat management programs on Na-
estry. (As used here and elsewhere in
tional Forest System lands, pursuant
this section, the term ‘‘forestry’’ en-
to 16 U.S.C. 670g, 670h, and 670o.
compasses renewable and nonrenewable
(5) For the purposes of the National
resources of forests, including lands
Forests System Drug Control Act of
governed by the Alaska National Inter-
1986 (16 U.S.C. 559–f), specifically des-
est Lands Conservation Act, forest-re-
ignate certain specially trained officers
lated rangeland, grassland, brushland,
and employees of the Forest Service,
woodland, and alpine areas including
not exceeding 500, to have authority in
but not limited to recreation, range, the performance of their duties within
timber, minerals, watershed, wildlife the boundaries of the National Forest
and fish; natural scenic, scientific, cul- System:
tural, and historic values of forests and (i) To carry firearms;
related lands; and derivative values (ii) To enforce and conduct investiga-
such as economic strength and social tions of violations of section 401 of the
well being). Controlled Substance Act (21 U.S.C.
(2) Protect, manage, and administer 481) and other criminal violations re-
the national forests, national forest lating to marijuana and other con-
purchase units, national grasslands, trolled substances that are manufac-
and other lands and interests in lands tured, distributed, or dispensed on Na-
administered by the Forest Service, tional Forest System lands;
which collectively are designated as (iii) To make arrests with a warrant
the National Forest System. This dele- or process for misdemeanor violations,
gation covers the acquisition and dis- or without a warrant for violations of
position of lands and interest in lands such misdemeanors that any such offi-
as may be authorized for the protec- cer or employee has probable cause to
tion, management, and administration believe are being committed in that
of the National Forest System, except employee’s presence or view, or for a
that the authority to approve acquisi- felony with a warrant or without a
tion of land under the Weeks Act of warrant if that employee has probable
March 1, 1911, as amended, and special cause to believe that the person being
forest receipts acts (Pub. L. No. 337, arrested has committed or is commit-
74th Cong., 49 Stat. 866, as amended by ting such a felony;
Pub. L. No. 310, 78th Cong., 58 Stat. 227; (iv) To serve warrants and other
Pub. L. No. 505, 75th Cong., 52 Stat. 347, process issued by a court or officer of
as amended by Pub. L. No. 310, 78th competent jurisdiction;
Cong., 58 Stat. 227; Pub. L. No. 634, 75th (v) To search, with or without a war-
Cong., 52 Stat. 699, as amended by Pub. rant or process, any person, place, or
L. No. 310, 78th Cong., 58 Stat. 227; Pub. conveyance according to Federal law or
L. No. 748, 75th Cong., 52 Stat. 1205, as rule of law; and
amended by Pub. L. No. 310, 78th Cong., (vi) To seize, with or without warrant
58 Stat. 227; Pub. L. No. 427, 76th Cong., or process, any evidentiary item ac-
54 Stat. 46; Pub. L. No. 589, 76th Cong., cording to Federal law or rule of law.
54 Stat. 297; Pub. L. No. 591, 76th Cong., (6) Cooperate with the law enforce-
54 Stat. 299; Pub. L. No. 637, 76th Cong., ment officials of any Federal agency,
54 Stat. 402; Pub. L. No. 781, 84th Cong., State, or political subdivision, in the
238
investigation of violations of, and en- (14) Enter into contracts, grants, or
forcement of, section 401 of the Con- cooperative agreements to further re-
trolled Substances Act (21 U.S.C. 841), search, extension, or teaching pro-
other laws and regulations relating to grams in the food and agricultural
marijuana and other controlled sub- sciences (7 U.S.C. 3152, 3318).
stances, and State drug control laws or (15) Enter into cost-reimbursable
ordinances, within the boundaries of agreements relating to agricultural re-
the National Forest System. search, extension, or teaching activi-
(7) Administer programs under sec- ties (7 U.S.C. 3319a).
tion 23 of the Federal Highway Act (23 (16) Administer programs of coopera-
U.S.C. 101(a), 120(f), 125(a)–(c), 138, tive forestry assistance in the protec-
202(a)–(b), 203, 204(a)–(h), 205(a)–(d), 211,
tion, conservation, and multiple re-
317, 401(a)).
source management of forests and re-
(8) Administer provisions of the Sur-
lated resources in both rural and urban
face Mining Control and Reclamation
areas and forest lands in foreign coun-
Act of 1977 (30 U.S.C. 1272, 1305) as they
tries (16 U.S.C. 2101–2114).
relate to management of the National
Forest System. (17) Provide assistance to States and
(9) Conduct, support, and cooperate other units of government in forest re-
in investigations, experiments, tests, sources planning and forestry rural re-
and other activities deemed necessary vitalization (7 U.S.C. 6601, 6611–6617; 16
to obtain, analyze, develop, dem- U.S.C. 2107).
onstrate, and disseminate scientific in- (18) Conduct a program of technology
formation about protecting, managing, implementation for State forestry per-
and utilizing forest and rangeland re- sonnel, private forest landowners and
newable resources in rural, suburban, managers, vendors, forest operators,
and urban areas in the United States public agencies, and individuals (16
and foreign countries. The activities U.S.C. 2107).
conducted, supported, or cooperated in (19) Administer rural fire protection
shall include, but not be limited to: re- and control program (16 U.S.C. 2106).
newable resource management re- (20) Provide technical assistance on
search; renewable resource environ- forestry technology or the implemen-
mental research; renewable resource tation of the conservation reserve and
protection research, renewable re- softwood timber programs authorized
source utilization research, and renew- in sections 1231–1244 and 1254 of the
able resource assessment research (16 Food Security Act of 1985 (16 U.S.C.
U.S.C. 1641–1647). 3831–3844; 7 U.S.C. 1981 note).
(10) Use authorities and means avail- (21) Administer forest insect, disease,
able to disseminate the knowledge and and other pest management programs
technology developed from forestry re- (16 U.S.C. 2104).
search (16 U.S.C. 1645).
(22) Exercise the custodial functions
(11) Coordinate activities with other
of the Secretary for lands and interests
agencies in USDA, other Federal and
in lands under lease or contract of sale
State agencies, forestry schools, and
to States and local agencies pursuant
private entities and individuals (16
U.S.C. 1643). to title III of the Bankhead-Jones
(12) Enter into contracts, grants, and Farm Tenant Act and administer re-
cooperative agreements for the support served and reversionary interests in
of scientific research in forestry activi- lands conveyed under that Act (7
ties (7 U.S.C. 427i(a), 1624; 16 U.S.C. U.S.C. 1010–1012).
582a–8, 1643–1645, 1649). (23) Under such general program cri-
(13) Enter into cooperative research teria and procedures as may be estab-
and development agreements with in- lished by the Natural Resources Con-
dustry, universities, and others; insti- servation Service:
tute a cash award program to reward (i) Administer the forestry aspects of
the programs listed in paragraphs
scientific, engineering, and technical

personnel; award royalties to inven- (a)(23)(i)(A), (B), and (C) of this section
tors; and retain and use royalty income on the National Forest System, range-
(15 U.S.C. 3710a–3710c). lands with national forest boundaries,
239
adjacent rangelands which are admin- (i) Representing USDA on the Inter-
istered under formal agreement, and departmental Radio Advisory Com-
other forest lands: mittee and its Frequency Assignment
(A) The cooperative river basin sur- Subcommittee of the National Tele-
veys and investigations program (16 communications and Information Ad-
U.S.C. 1006); ministration, Department of Com-
(B) The eleven authorized watershed merce;
improvement programs and emergency (ii) Establishing policies, standards,
flood prevention measures program and procedures for allotting and as-
under the Flood Control Act (33 U.S.C. signing frequencies within USDA and
701b-1); for obtaining effective utilization of
(C) The small watershed protection them;
program under the Pilot Watershed (iii) Providing licensing action nec-
Protection and Watershed Protection essary to assign radio frequencies for
and Flood Prevention Acts (7 U.S.C. use by the agencies of USDA and main-
701a-h; 16 U.S.C. 1001–1009). tenance of the records necessary in
(ii) Exercise responsibility in connec- connection therewith; and
tion with the forestry aspects of the re- (iv) Providing inspection of USDA’s
source conservation and development radio operations to ensure compliance
program authorized by title III of the with national and international regula-
Bankhead-Jones Farm Tenant Act (7 tions and policies for radio frequency
U.S.C. 1011(e)). use.
(24) Provide assistance to the Farm (28) Represent USDA in all matters
Service Agency in connection with the relating to responsibilities and au-
agricultural conservation program, the thorities under the Federal Water
naval stores conservation program, and Power Act, as amended (16 U.S.C. 791–
the cropland conversion program (16 823).
U.S.C. 590g–q). (29) [Reserved]
(25) Provide assistance to the Rural (30) Administer the Youth Conserva-
Housing Service in connection with tion Corps Act (42 U.S.C. precede 2711
grants and loans under authority of note) for USDA.
section 303 of the Consolidated Farm (31) Establish and operate the Job
and Rural Development Act, 7 U.S.C. Corps Civilian Conservation Centers on
1923; and consultation with the Depart- National Forest System lands as au-
ment of Housing and Urban Develop- thorized by title I, sections 106 and 107
ment under the authority of 40 U.S.C. of the Economic Opportunity Act of
461(e). 1964 (42 U.S.C. 2716–2717), in accordance
(26) Coordinate mapping work of with the terms of an agreement dated
USDA including: May 11, 1967, between the Secretary of
(i) Clearing mapping projects to pre- Agriculture and the Secretary of
vent duplication; Labor; and administration of other co-
(ii) Keeping a record of mapping done operative manpower training and work
by USDA agencies; experience programs where the Forest
(iii) Preparing and submitting re- Service serves as host or prime sponsor
quired USDA reports; with other Departments of Federal,
(iv) Serving as liaison on mapping State, or local governments.
with the Office of Management and (32) Administer the Volunteers in the
Budget, Department of the Interior, National Forests Act of 1972 (16 U.S.C.
and other departments and establish- 558a-558d, 558a note).
ments; (33) Exercise the functions of the Sec-
(v) Promoting interchange of tech- retary of Agriculture authorized in the
nical mapping information, including Alaska National Interest Lands Con-
techniques which may reduce costs or servation Act (16 U.S.C. 3101–3215).
improve quality; and (34) Administer responsibilities and
(vi) Maintaining the mapping records functions assigned under the Defense
formerly maintained by the Office of Production Act of 1950, as amended (50

Operations. U.S.C. App. 2061 et seq.), and title VI of
(27) Administer the radio frequency the Robert T. Stafford Disaster Relief
licensing work of USDA, including: and Emergency Assistance Act (42
240
U.S.C. 5195 et seq.), relating to forests and Liability Act of 1980 (‘‘the Act’’),
and forest products, rural fire defense, as amended:
and forestry research. (i) Sections 104 (a), (b), and (c)(4) of
(35) Represent USDA on Regional Re- the Act (42 U.S.C. 9604 (a), (b), and
sponse Teams on hazardous spills and (c)(4)), with respect to removal and re-
oil spills pursuant to the Comprehen- medial actions in the event of release
sive Environmental Response, Com- or threatened release of a hazardous
pensation, and Liability Act, as amend- substance, pollutant, or contaminant
ed ( 42 U.S.C. 9601 et seq.), the Clean into the environment;
Water Act, as amended (33 U.S.C. 1251 (ii) Sections 104 (e)–(h) of the Act (42
et seq.), the Oil Pollution Act (OPA), as U.S.C. 9604 (e)–(h)), with respect to in-
amended (33 U.S.C. 2701 et seq.), Execu- formation gathering and access re-
tive Order 12580, 3 CFR, 1987 Comp., p. quests and orders; compliance with
193, Executive Order 12777, 3 CFR, 1991 Federal health and safety standards
Comp., p. 351, and the National Contin- and wage and labor standards applica-
gency Plan, 40 CFR Part 300. ble to covered work; and emergency
(36) Exercise the functions of the Sec- procurement powers;
retary as authorized in the Wild and (iii) Section 104(i)(11) of the Act (42
Scenic Rivers Act (16 U.S.C. 1271–1278), U.S.C. 9604(i)(11)), with respect to the
except for making recommendations to reduction of exposure to significant
the President regarding additions to risk to human health;
the National Wild and Scenic Rivers (iv) Section 104(j) of the Act (42
System. U.S.C. 9604(j)), with respect to the ac-
(37) Issue proposed rules relating to quisition of real property and interests
the authorities delegated in this sec- in real property required to conduct a
tion, issue final rules and regulations remedial action;
as provided in 36 CFR 261.70, issue tech- (v) The first two sentences of section
nical amendments and corrections to 105(d) of the Act (42 U.S.C. 9605(d)),
final rules issued by the Secretary or with respect to petitions for prelimi-
Under Secretary for Natural Resources nary assessment of a release or threat-
and Environment, and issue proposed ened release;
and final rules necessary and appro- (vi) Section 105(f) of the Act (42
priate to carry out title VIII of the U.S.C. 9605(f)), with respect to consider-
Alaska National Interest Lands Con- ation of the availability of qualified
servation Act (16 U.S.C. 3101–3215) with minority firms in awarding contracts,
regard to National Forest System but excluding that portion of section
Lands. 105(f) of the Act pertaining to the an-
(38) Jointly administer gypsy moth nual report to Congress;
eradication activities with the Animal (vii) Section 109 of the Act (42 U.S.C.
and Plant Health Inspection Service, 9609), with respect to the assessment of
under the authority of section 102 of civil penalties for violations of section
the Organic Act of 1944, as amended; 122 of the Act (42 U.S.C. 9622), and the
and the Act of April 6, 1937, as amended granting of awards to individuals pro-
(7 U.S.C. 147a, 148, 148a–148e); and the viding information;
Talmadge Aiken Act (7 U.S.C. 450), by (viii) Section 111(f) of the Act (42
assuming primary responsibility for U.S.C. 9611(f)), with respect to the des-
treating isolated gypsy moth infesta- ignation of officials who may obligate
tions on Federal lands, and on State money in the Hazardous Substances
and private lands contiguous to in- Superfund;
fested Federal lands, and any other in- (ix) Section 113(g) of the Act (42
festations over 640 acres on State and U.S.C. 9613(g)), with respect to receiv-
private lands. ing notification of a natural resource
(39) With respect to land and facili- trustee’s intent to file suit;
ties under his or her authority, to exer- (x) Section 113(k) of the Act (42
cise the functions delegated to the Sec- U.S.C. 9613(k)), with respect to estab-
retary by Executive Order 12580, 3 CFR, lishing an administrative record upon

1987 Comp., p. 193, under the following which to base the selection of a re-
provisions of the Comprehensive Envi- sponse action and identifying and noti-
ronmental Response, Compensation, fying potentially responsible parties;
241
(xi) Section 116(a) of the Act (42 (iv) Clean Air Act, as amended (42
U.S.C. 9616(a)), with respect to prelimi- U.S.C. 7401 et seq.);
nary assessment and site inspection of (v) Noise Control Act of 1972, as
facilities; amended (42 U.S.C. 4901 et seq.);
(xii) Section 117 (a) and (c) of the Act (vi) Toxic Substances Control Act, as
(42 U.S.C. 9617 (a) and (c)), with respect amended, (15 U.S.C. 2601 et seq.);
to public participation in the prepara- (vii) Federal Insecticide, Fungicide,
tion of any plan for remedial action and Rodenticide Act, as amended (7
and explanation of variances from the U.S.C. 136 et seq.); and
final remedial action plan for any re- (viii) Comprehensive Environmental
medial action or enforcement action, Response, Compensation, and Liability
including any settlement or consent
Act of 1980, as amended by the Super-
decree entered into;
fund Amendments and Reauthorization
Act of 1986 (42 U.S.C. 9601 et seq.).
(42) With respect to land and facili-
ties under his or her authority, exer-
(xiv) Section 121 of the Act (42 U.S.C.
cise the functions delegated to the Sec-
retary by Executive Order 12580, 3 CFR,
ards; and
1987 Comp., p. 193, and Executive Order
(xv) Section 122 of the Act (42 U.S.C.
12777, 3 CFR, 1991 Comp., p. 351, to act
excluding section 122(b)(1) of the Act as Federal trustee for natural re-
(42 U.S.C. 9622(b)(1)), related to mixed sources in accordance with section
funding agreements. 107(f) of the Comprehensive Environ-
(40) Exercise the functions of the Sec- mental Response, Compensation, and
retary authorized in the Federal On- Liability Act of 1980 (42 U.S.C 9607(f)),
shore Oil and Gas Leasing Reform Act section 311(f)(5) of the Federal Water
of 1987 (30 U.S.C. 226 et seq.). Pollution Control Act (33 U.S.C.
(41) With respect to facilities and ac- 1321(f)(5)), and section 1006(b)(2) of the
tivities under his or her authority, to Oil Pollution Act of 1990 (33 U.S.C.
exercise the authority of the Secretary 2706(b)(2)).
of Agriculture pursuant to section 1– (43) With respect to land and facili-
102 related to compliance with applica- ties under his or her authority, to exer-
ble pollution control standards and sec- cise the authority vested in the Sec-
tion 1–601 of Executive Order 12088, 3 retary of Agriculture to act as the
CFR, 1978 Comp., p. 243, to enter into ‘‘Federal Land Manager’’ pursuant to
an inter-agency agreement with the the Clean Air Act, as amended, 42
United States Environmental Protec- U.S.C. 7401 et seq.
tion Agency, or an administrative con- (44) Administer the Public Lands
sent order or a consent judgment in an Corps program (16 U.S.C. 1721 et seq.)
appropriate United States District for USDA consistent with the Depart-
Court with an appropriate State, inter- ment’s overall national service pro-
state, or local agency, containing a gram.
plan and schedule to achieve and main-
(45) Jointly administer the Forestry
tain compliance with applicable pollu-
Incentives Program with the Natural
tion control standards established pur-
suant to the following: Resources Conservation Service, in
consultation with State Foresters,
(i) Solid Waste Disposal Act, as
amended by the Resource Conservation under section 4 of the Cooperative For-
and Recovery Act, the Hazardous and estry Assistance Act of 1978 (16 U.S.C.
Solid Waste Amendment, and the Fed- 2103).
eral Facility Compliance Act (42 U.S.C. (46) Focusing on countries that could
6901 et seq.); have a substantial impact on global
(ii) Federal Water Pollution Preven- warming, provide assistance that pro-
tion and Control Act, as amended (33 motes sustainable development and
U.S.C. 1251 et seq.); global environmental stability; share

(iii) Safe Drinking Water Act, as technical, managerial, extension, and
242
administrative skills; provide edu- community wood energy plans and en-
cation and training opportunities; energy systems (7 U.S.C. 8113).
gage in scientific exchange; and co- (b) Reservations. The following au-
operate with domestic and inter- thorities are reserved to the Under Sec-
national organizations that further retary for Natural Resources and Envi-
international programs for the man- ronment:
agement and protection of forests, (1) The authority to issue final rules
rangelands, wildlife, fisheries and re- and regulations relating to the admin-
lated natural resources (16 U.S.C. 4501– istration of Forest Service programs,
4505). except as provided in 36 CFR 261.70 and
(47) Exercise the functions of the Sec- § 2.60(a)(37).
retary of Agriculture authorized in (2) As deemed necessary for adminis-
Title V of the Department of the Inte- trative purposes, the authority to di-
rior and Related Agencies Appropria- vide into and designate as national for-
tions Act of 1998, Pub. L. 105–83, relat- ests any lands of more than 3,000 acres
ing to the acquisition so the New World acquired under or subject to the Weeks
Mines and other priority land acquisi- Act of March 1, 1911, as amended (16
tions, land exchanges, and other activi- U.S.C. 521).
ties. (3) The authority to make rec-
(48) Enter into pilot projects with the ommendations to the Administrator of
Bureau of Land Management (BLM), General Services regarding transfer to
U.S. Department of the Interior, in other Federal, State, or Territorial
support of the Service First initiative agencies lands acquired under the
for the purpose of promoting customer Bankhead-Jones Farm Tenant Act, to-
service and efficiency in managing Na- gether with recommendations on the
tional Forest System lands and public conditions of use and administration of
lands and delegate to BLM employees such lands, pursuant to the provisions
of section 32(c) of title III of the
those Forest Service authorities nec-
Bankhead-Jones Farm Tenant Act (7
essary to carry out those pilot projects
U.S.C. 1011(c), and Executive Order
(Pub. L. 106–291).
11609, 3 CFR, 1971–1975 Comp., p. 586).
(49) At the request of the Director, (4) Making recommendations to the
Homeland Security Staff (Director), President for establishing new units or
designate law enforcement personnel of adding to existing units of the National
the Forest Service to assist the Direc- Wild and Scenic Rivers System (16
tor in providing for the personal secu- U.S.C. 1271–1278); National Scenic
rity for the Secretary and the Deputy Trails System (16 U.S.C. 1241–1249) and
Secretary in the National Forest Sys- the National Wilderness Preservation
tem. System (16 U.S.C. 1131–1136).
(50) Implement the information dis- (5) Signing of declarations of taking
closure authorities of section and requests for condemnation of prop-
1619(b)(3)(A) of the Food, Conservation, erty as authorized by law to carry out
and Energy Act of 2008 (7 U.S.C. the mission of the Forest Service (40
8791(b)(3)(A)). U.S.C. 257).
(51) Administer a program, through (6) Approval of acquisition of land
the Deputy Chief of State and Private under the Weeks Act of March 1, 1911,
Forestry, for providing loans to eligible as amended (16 U.S.C. 521), and special
units of local government to finance forest receipts acts (Pub. L. No. 337,
the purchase of equipment to monitor, 74th Cong., 49 Stat. 866, as amended by
remove, dispose of, and replace infested Pub. L. No. 310, 78th Cong., 58 Stat. 227;
trees located under their jurisdiction Pub. L. No. 505, 75th Cong., 52 Stat. 347,
and within the borders of quarantined as amended by Pub. L. No. 310, 78th
areas (16 U.S.C. 2104a). Cong., 58 Stat. 227; Pub. L. No. 634, 75th
(52) Conduct a competitive research Cong., 52 Stat. 699, as amended by Pub.
and development program to encourage L. No. 310, 78th Cong., 58 Stat. 227; Pub.
the use of forest biomass for energy (7
L. No. 748, 75th Cong., 52 Stat. 1205, as

U.S.C. 8112). amended by Pub. L. No. 310, 78th Cong.,
(53) Administer the community wood 58 Stat. 227; Pub. L. No. 427, 76th Cong.,
energy program providing grants for 54 Stat. 46; Pub. L. No. 589, 76th Cong.,
243
54 Stat. 297; Pub. L. No. 591, 76th Cong., (2) Provide national leadership in
54 Stat. 299; Pub. L. No. 637, 76th Cong., evaluating and coordinating land use
54 Stat. 402; Pub. L. No. 781, 84th Cong., policy, and administer the Farmland
70 Stat. 632) of $250,000 or more in value Protection Policy Act (7 U.S.C. 4201 et
for national forest purposes. seq.), including the Farms for the Fu-
(7) The authority to approve dis- ture Program authorized by sections
bursements from the New World Mine 1465–1470 of the Food, Agriculture, Con-
Response and Restoration Account and servation, and Trade Act of 1990 (7
the authority to prepare and approve U.S.C. 4201 note), except as otherwise
the New World Mine Response and Res- delegated to the Administrator, Agri-
toration Plan, including the coordina- cultural Research Service in
tion of the response and restoration ac- § 2.65(a)(80) and the Director, National
tivities of the Forest Service and the Institute of Food and Agriculture in
other Federal and State agencies, and § 2.66(a)(76).
make quarterly reports to Congress (3) Administer the basic program of
under section 502(d) and (f) of Title V of soil and water conservation under Pub.
the Department of the Interior and Re- L. No. 46, 74th Congress, as amended,
lated Agencies Appropriations Act of and related laws (16 U.S.C. 590a–f, 1–1,
1998, Pub. L. 105–83. q, q–1; 42 U.S.C. 3271–3274; 7 U.S.C. 2201),
[60 FR 56393, Nov. 8, 1995, as amended at 64 including:
FR 34967, June 30, 1999; 65 FR 12429, Mar. 9, (i) Technical and financial assistance
2000; 67 FR 59135, Sept. 20, 2002; 72 FR 36859, to land users in carrying out locally
July 6, 2007; 74 FR 3408, Jan. 21, 2009] adapted soil and water conservation
§ 2.61 Chief, Natural Resources Con- programs primarily through soil and
servation Service. water conservation districts in the sev-
eral States, the District of Columbia,
(a) Delegations. Pursuant to § 2.20 the Commonwealth of Puerto Rico, and
(a)(1), (a)(3), (a)(5), (a)(6), (a)(7)(ii) and the Commonwealth of the Northern
(a)(8), subject to reservations in Mariana Islands, American Samoa,
§ 2.20(b)(1), the following delegations of Guam, the Virgin Islands, and Feder-
authority are made by the Under Sec- ally recognized Native American
retary for Natural Resources and Envi- tribes, but also to communities, water-
ronment to the Chief of the Natural shed groups, Federal and State agen-
Resources Conservation Service: cies, and other cooperators. This au-
(1) Provide national leadership in the thority includes such assistance as:
conservation, development and produc-
(A) Comprehensive planning assist-
tive use of the Nation’s soil, water, and
ance in nonmetroplitan districts;
related resources. Such leadership en-
compasses soil, water, plant, and wild- (B) Assistance in the field of income-
life conservation; small watershed pro- producing recreation on rural non-Fed-
tection and flood prevention; and re- eral lands;
source conservation and development. (C) Forestry assistance, as part of
Integrated in these programs are ero- total technical assistance to private
sion control, sediment reduction, pollu- land owners and land users when such
tion abatement, land use planning, services are an integral part of land
multiple use, improvement of water management and such services are not
quality, and several surveying and available from a State agency; and for-
monitoring activities related to envi- estry services in connection with
ronmental improvement. All are de- windbreaks and shelter belts to prevent
signed to assure: wind and water erosion of lands;
(i) Quality in the natural resource (D) Assistance in developing pro-
base for sustained use; grams relating to natural beauty; and
(ii) Quality in the environment to (E) Assistance to other USDA agen-
provide attractive, convenient, and sat- cies in connection with the administra-
isfying places to live, work, and play; tion of their programs, as follows:
and (1) To the Farm Service Agency in

(iii) Quality in the standard of living the development and technical serv-
based on community improvement and icing of certain programs, such as the
adequate income. Agricultural Conservation Program
244
and other such similar conservation ures constructed under certain Depart-
programs; ment of Agriculture programs under 16
(2) To the Rural Housing Service in U.S.C. 1012, except for responsibilities
connection with their loan and land assigned to the Rural Housing Service
disposition programs. and the Forest Service.
(ii) Soil Surveys, including: (vi) The joint investigations and sur-
(A) Providing leadership for the Fed- veys with the Department of the Army
eral part of the National Cooperative under 16 U.S.C. 1009; and
Soil Survey which includes conducting (vii) The Emergency Conservation
and publishing soil surveys; Program and the Emergency Water-
(B) Conducting soil surveys for re- shed Protection Program under sec-
source planning and development; and tions 401–405 of the Agricultural Credit
(C) Performing the cartographic serv- Act of 1978, 16 U.S.C. 2201–2205, except
ices essential to carrying out the func- for the provisions of sections 401 and
tions of the Natural Resources Con- 402, 16 U.S.C. 2201–2202, as administered
servation Service, including furnishing by the Farm Service Agency.
photographs, mosaics, and maps. (5) Administer the Great Plains Con-
(iii) Conducting and coordinating servation Program and the Critical
snow surveys and making water supply Lands Resources Conservation Pro-
forecasts pursuant to Reorganization gram under 16 U.S.C. 590p(b).
Plan No. IV of 1940 (5 U.S.C. App.);
(6) Administer the Resource Con-
(iv) Operating plant materials cen-
servation and Development Program
ters for the assembly and testing of
under 16 U.S.C. 590a–f; 7 U.S.C. 1010–
plant species in conservation programs,
1011; and 16 U.S.C. 3451–3461, except for
including the use, administration, and
responsibilities assigned to the Rural
disposition of lands under the adminis-
Utilities Service.
tration of the Natural Resources Con-
(7) Responsibility for entering into
servation Service for such purposes
long-term contracts for carrying out
under title III of the Bankhead-Jones
conservation and environmental meas-
Farm Tenant Act (7 U.S.C. 1010–1011);
ures in watershed areas.
and
(v) Providing leadership in the (8) Provide national leadership for
inventorying and monitoring of soil, and administer the Soil and Water Re-
water, land, and related resources of sources Conservation Act of 1977 (16
the Nation. U.S.C. 2001 et seq.), except for respon-
(4) Administer the Watershed Protec- sibilities assigned to other USDA agen-
tion and Flood Prevention Programs, cies.
including: (9) Administer Rural Clean Water
(i) The eleven authorized watershed Program and other responsibilities as-
projects authorized under 33 U.S.C. signed under section 35 of the Clean
702b–1, except for responsibilities as- Water Act of 1977 (33 U.S.C. 1251 et seq.).
signed to the Forest Service; (10) Monitor actions and progress of
(ii) The emergency flood control USDA in complying with Executive
work under 33 U.S.C. 701b–1, except for Order 11988, Flood Plain Management, 3
responsibilities assigned to the Forest CFR, 1977 Comp., p. 117, and Executive
Service; Order 11990, Protection of Wetlands, 3
(iii) The Cooperative River Basin CFR, 1977 Comp., p. 121, regarding man-
Surveys and Investigations Programs agement of floodplains and protection
under 16 U.S.C. 1006, except for respon- of wetlands; monitor USDA efforts on
sibilities assigned to the Forest Serv- protection of important agricultural,
ice; forest and rangelands; and provide staff
(iv) The pilot watershed projects assistance to the USDA Natural Re-
under 16 U.S.C. 590a–f, and 16 U.S.C. sources and Environment Committee.
1001–1009, except for responsibilities as- (11) Administer the search and rescue
signed to the Forest Service; operations authorized under 7 U.S.C.
2273.
(v) The Watershed Protection and

Flood Prevention Program under 16 (12) Administer section 202(c) of the
U.S.C. 1001–1010, including rehabilita- Colorado River Basin Salinity Control
tion of water resource structural meas- Act, 43 U.S.C. 1592(c) including:
245
(i) Identify salt source areas and de- (v) The Farmland Protection Pro-
termine the salt load resulting from ir- gram authorized by sections 1238H–
rigation and watershed management 1238I of the Act (16 U.S.C. 3838h–3838i);
practices; (vi) The Farm Viability Program au-
(ii) Conduct salinity control studies thorized by section 1238J of the Act (16
of irrigated salt source areas; U.S.C. 3838j);
(iii) Provide technical and financial (vii) The Environmental Easement
assistance in the implementation of sa- Program authorized by sections 1239–
linity control projects including the 1239D of the Act (16 U.S.C. 3839–3839d);
development of salinity control plans, (viii) The Environmental Quality In-
technical services for application, and centives Program authorized by sec-
certification of practice applications; tions 1240–1240I of the Act (16 U.S.C.
(iv) Develop plans for implementing 3839aa–3839aa–9);
measures that will reduce the salt load (xix) The conservation of private
of the Colorado River; grazing lands authorized by section
1240M of the Act (16 U.S.C. 3839bb);
(v) Develop and implement long-term
(x) The Wildlife Habitat Incentives
monitoring and evaluation plans to
Program authorized by section 1240N of
measure and report progress and ac-
the Act (16 U.S.C. 3839bb–1);
complishments in achieving program
(xi) The program for soil erosion and
objectives; and
sedimentation control in the Great
(vi) Enter into and administer con- Lakes basin authorized by section
tracts with program participants and 1240P of the Act (16 U.S.C. 3839bb–3);
waive cost-sharing requirements when (xii) The delivery of technical assist-
such cost-sharing requirements would ance under section 1242 of the Act (16
result in a failure to proceed with need- U.S.C. 3842), including the approval of
ed on-farm measures. persons or entities outside of USDA to
(13) Administer natural resources provide technical services;
conservation authorities, including au- (xiii) The authority for partnerships
thorities related to programs of the and cooperation provided by section
Commodity Credit Corporation that 1243 of the Act (16 U.S.C. 3843), except
provide assistance with respect to nat- for responsibilities assigned to the
ural resources conservation, under Under Secretary for Farm and Foreign
Title XII of the Food Security Act of Agricultural Services; and
1985 (the Act), as amended (16 U.S.C. (xiv) The incentives for certain farm-
3801 et seq.), including the following: ers and ranchers and Indian tribes and
(i) Technical assistance related to the protection of certain proprietary
the conservation of highly erodible information related to natural re-
lands and wetlands pursuant to sec- sources conservation programs as pro-
tions 1211–1223 of the Act (16 U.S.C. vided by section 1244 of the Act (16
3811–3823); U.S.C. 3844), except for responsibilities
(ii) Technical assistance related to assigned to the Administrator, Farm
the Conservation Reserve Program au- Service Agency.
thorized by sections 1231–1235A of the (xv) The Agriculture Conservation
Act (16 U.S.C. 3831–3835a); Experienced Services Program author-
(iii) The Wetlands Reserve Program ized by section 1252 of the Act (16
and the Emergency Wetlands Reserve U.S.C. 3851).
Program authorized by sections 1237– (xvi) The authority under sections
1237F of the Act (16 U.S.C. 3837–3837f) 1261–1262 of the Act (16 U.S.C. 3861–3862)
and the Emergency Supplemental Ap- to establish and utilize State Technical
propriations for Relief from the Major, Committees.
Widespread Flooding in the Midwest (xvii) Those portions of the Grassland
Act, Pub. L. 103–75; Reserve Program under sections 1238N–
(iv) The Conservation Security Pro- 1238Q of the Act (16 U.S.C. 3838n–3838q)
gram authorized by sections 1238–1238C that are or become the responsibility
(16 U.S.C. 3838–3838c) and the Conserva- of the Under Secretary for Natural Re-
tion Stewardship Program authorized sources and Environment.
by sections 1238D–1238G (16 U.S.C. (xviii) The authority in section 1241
3838d–3838g). of the Act (16 U.S.C. 3841) to accept and
246
use voluntary contributions of non- under the Surface Mining Control and
Federal funds in support of natural re- Reclamation Act of 1977 (30 U.S.C. 1201
sources conservation programs under et seq.), except for responsibilities as-
subtitle D of title XII of the Act with signed to the Forest Service.
respect to authorities delegated to the (23) With respect to land and facili-
Chief, Natural Resources Conservation ties under his or her authority, to exer-
Service. cise the functions delegated to the Sec-
(14) Approve and transmit to the Con- retary by Executive Order 12580, 3 CFR,
gress comprehensive river basin re- 1987 Comp., p. 193, under the following
ports. provisions of the Comprehensive Envi-
(15) Provide representation on the ronmental Response, Compensation,
Water Resources Council and river and Liability Act of 1980 (‘‘the Act’’),
basin commissions created by 42 U.S.C. as amended:
1962, and on river basin interagency (i) Sections 104(a), (b), and (c)(4) of
committees. the Act (42 U.S.C. 9604(a), (b), and
(16) Jointly administer the Forestry (c)(4)), with respect to removal and re-
Incentives Program with the Forest medial actions in the event of release
Service, in consultation with State or threatened release of a hazardous
Foresters, under section 4 of the Coop- substance, pollutant, or contaminant
erative Forestry Assistance Act of 1978 into the environment;
(16 U.S.C. 2103).
(ii) Sections 104(e)–(h) of the Act (42
(17) Administer the Water Bank Pro-
U.S.C. 9604 (e)–(h)), with respect to in-
gram under the Water Bank Act (16
formation gathering and access re-
U.S.C. 1301 et seq.).
(18) Administer the agricultural man-
agement assistance provisions of sec-
tion 524(b) of the Federal Crop Insur-
ance Act, as amended (7 U.S.C. 1524(b)),
procurement powers;
except for responsibilities assigned to
(iii) Section 104(i)(11) of the Act (42
the Administrator, Risk Management
U.S.C. 9604(i)(11)), with respect to the
Agency.
reduction of exposure to significant
(19) Administer the Healthy Forests
risk to human health;
Reserve Program authorized by sec-
tions 501–508, Title V of the Healthy (iv) Section 104(j) of the Act (42
Forests Restoration Act of 2003 (16 U.S.C. 9604(j)), with respect to the ac-
U.S.C. 6571–6578). quisition of real property and interests
(20) Coordinate USDA input and as- in real property required to conduct a
sistance to the Department of Com- remedial action;
merce and other Federal agencies con- (v) The first two sentences of section
sistent with section 307 of the Coastal 105(d) of the Act (42 U.S.C. 9605(d)),
Zone Management Act of 1972 (16 U.S.C. with respect to petitions for prelimi-
1456), and coordinate USDA review of nary assessment of a release or threat-
qualifying state and local government ened release;
coastal management plans or programs (vi) Section 105(f) of the Act (42
prepared under such Act and submitted U.S.C. 9605(f)), with respect to consider-
to the Secretary of Commerce, con- ation of the availability of qualified
sistent with section 306(a) and (c) of minority firms in awarding contracts,
such Act (16 U.S.C. 1455(a) and (c)). but excluding that portion of section
(21) Administer responsibilities and 105(f) of the Act pertaining to the an-
functions assigned under the Defense nual report to Congress;
Production Act of 1950, as amended (50 (vii) Section 109 of the Act (42 U.S.C.
U.S.C. App. 2061 et seq.), and title VI of 9609), with respect to the assessment of
the Robert T. Stafford Disaster Relief civil penalties for violations of section
and Emergency Assistance Act (42 122 of the Act (42 U.S.C. 9622) and the
U.S.C. 5195 et seq.), relating to agricul- granting of awards to individuals pro-
viding information;
tural lands and water.

(22) Administer the Abandoned Mine (viii) Section 111(f) of the Act (42
Reclamation Program for Rural Lands U.S.C. 9611(f)), with respect to the des-
and other responsibilities assigned ignation of officials who may obligate
247
money in the Hazardous Substances (ii) Federal Water Pollution Preven-

Superfund; tion and Control Act, as amended (33
(ix) Section 113(k) of the Act (42 U.S.C. 1251 et seq.);
U.S.C. 9613(k)), with respect to estab- (iii) Safe Drinking Water Act, as
lishing an administrative record upon amended (42 U.S.C. 300f et seq.);
which to base the selection of a re- (iv) Clean Air Act, as amended (42
sponse action and identifying and noti- U.S.C. 7401 et seq.);
fying potentially responsible parties; (v) Noise Control Act of 1972, as
(x) Section 116(a) of the Act (42 U.S.C. amended (42 U.S.C. 4901 et seq.);
9616(a)), with respect to preliminary as- (vi) Toxic Substances Control Act, as
amended, (15 U.S.C. 2601 et seq.);
sessment and site inspection of facili-
(vii) Federal Insecticide, Fungicide,
ties;
and Rodenticide Act, as amended (7
(xi) Section 117(a) and (c) of the Act U.S.C. 136 et seq.); and
(42 U.S.C. 9617(a) and (c)), with respect (viii) Comprehensive Environmental
to public participation in the prepara- Response, Compensation, and Liability
tion of any plan for remedial action Act of 1980, as amended by the Super-
and explanation of variances from the fund Amendments and Reauthorization
final remedial action plan for any re- Act of 1986 (42 U.S.C. 9601 et seq.).
medial action or enforcement action, (25) Administer the following provi-
including any settlement or consent sions of the Farm Security and Rural
decree entered into; Investment Act of 2002 with respect to
(xii) Section 119 of the Act (42 U.S.C. functions otherwise delegated to the
9619), with respect to indemnifying re- Chief, Natural Resources and Environ-
sponse action contractors; ment:
(xiii) Section 121 of the Act (42 U.S.C. (i) The equitable relief provisions of
9621), with respect to cleanup stand- section 1613 (7 U.S.C. 7996);
ards; and (ii) The tracking of benefits under
(xiv) Section 122 of the Act (42 U.S.C. section 1614 (7 U.S.c. 7997); and
9622), with respect to settlement, but (iii) The development of a plan and
excluding section 122(b)(1) of the Act related report to coordinate land re-
(42 U.S.C. 9633(b)(1)), related to mixed tirement and agricultural working land
funding agreements. conservation programs under section
(24) With respect to facilities and ac- 2005 (16 U.S.C. 3801 note).
tivities under his or her authority, to (26) Implement the information dis-
closure authorities of section
exercise the authority of the Secretary
1619(b)(3)(A) of the Food, Conservation,
of Agriculture pursuant to section 1–
and Energy Act of 2008 (7 U.S.C.
102 related to compliance with applica-
8791(b)(3)(A)).
ble pollution control standards and sec-
(27) In coordination with the Direc-
tion 1–601 of Executive Order 12088, 3
tor, Office of Advocacy and Outreach,
CFR, 1978 Comp., p. 243, to enter into issue receipts under section 2501A(e) of
an inter-agency agreement with the the Food, Agriculture, Conservation,
United States Environmental Protec- and Trade Act of 1990 (7 U.S.C. 2279–
tion Agency, or an administrative con- 1(e)).
sent order or a consent judgment in an (28) Authorize employees of the Nat-
appropriate United States District ural Resources Conservation Service to
Court with an appropriate State, inter- carry and use firearms for personal
state, or local agency, containing a protection while conducting field work
plan and schedule to achieve and main- in remote locations in the performance
tain compliance with applicable pollu- of their official duties (7 U.S.C. 2274a).
tion control standards established pur- (b) Reservations. The following au-
suant to the following: thorities are reserved to the Under Sec-
(i) Solid Waste Disposal Act, as retary for Natural Resources and Envi-
amended by the Resource Conservation ronment:
and Recovery Act, the Hazardous and
(1) Executing cooperative agreements

Solid Waste Amendments, and the Fed- and memoranda of understanding for
eral Facility Compliance Act (42 U.S.C. multi-agency cooperation with con-
6901 et seq.); servation districts and other districts
248
organized for soil and water conserva- (2) Conduct research related to the
tion within States, territories, posses- economic feasibility of the manufac-
sions, and American Indian Nations. ture and commercialization of natural
(2) Approving additions to authorized rubber from hydrocarbon-containing
Resource Conservation and Develop- plants (7 U.S.C. 178–178n).
ment Projects that designate new (3) Conduct research on the control of
project areas in which resource con- undesirable species of honeybees in co-
servation and development program as- operation with specific foreign govern-
sistance will be provided, and with- ments (7 U.S.C. 284).
drawing authorization for assistance, (4) Conduct research concerning do-
pursuant to 16 U.S.C. 590a-f; 7 U.S.C. mestic animals and poultry, their pro-
1010–1011; 16 U.S.C. 3451–3461. tection and use, the causes of con-
(3) Giving final approval to and tagious, infectious, and communicable
transmitting to the Congress water-
diseases, and the means for the preven-
shed work plans that require congres-
tion and cure of the same (7 U.S.C. 391).
sional approval.
(5) Conduct research related to the
[60 FR 56393, Nov. 8, 1995, as amended at 62 dairy industry and to the dissemina-
FR 1031, Jan. 8, 1997; 68 FR 27444, May 20, tion of information for the promotion
2003; 74 FR 3409, Jan. 21, 2009; 75 FR 43381,
July 23, 2010; 76 FR 4802, Jan. 27, 2011]
of the dairy industry (7 U.S.C. 402).
(6) Conduct research and demonstra-
tions at Mandan, ND, related to dairy
Subpart K—Delegations of Author- livestock breeding, growing, and feed-
ity by the Under Secretary for ing, and other problems pertaining to
Research, Education, and Ec- the establishment of the dairy and live-
onomics stock industries (7 U.S.C. 421–422).
(7) Conduct research on new uses for
§ 2.63 Deputy Under Secretary for Re-
search, Education, and Economics. cotton and on cotton ginning and proc-
essing (7 U.S.C. 423–424).
Pursuant to § 2.21(a), subject to res- (8) Conduct research into the basic
ervations in § 2.21(b), and subject to problems of agriculture in its broadest
policy guidance and direction by the aspects, including, but not limited to,
Under Secretary, the following delega-
production, marketing (other than sta-
tion of authority is made by the Under
tistical and economic research but in-
Secretary for Research, Education, and
cluding research related to family use
Economics, to be exercised only during
of resources), distribution, processing,
the absence or unavailability of the
and utilization of plant and animal
Under Secretary: Perform all the du-
commodities; problems of human nu-
ties and exercise all the powers which
trition; development of markets for ag-
are now or which may hereafter be del-
ricultural commodities; discovery, in-
egated to the Under Secretary for Re-
troduction, and breeding of new crops,
search, Education, and Economics.
plants, animals, both foreign and na-
§ 2.65 Administrator, Agricultural Re- tive; conservation development; and
search Service. development of efficient use of farm
(a) Delegations. Pursuant to buildings, homes, and farm machinery
§ 2.21(a)(1), (a)(3) and (a)(5) through except as otherwise delegated in
(a)(7), subject to reservations in §§ 2.22(a)(1)(ii) and 2.79(a)(2) (7 U.S.C.
§ 2.21(b)(1), the following delegations of 427, 1621–1627, 1629, 2201 and 2204).
authority are made by the Under Sec- (9) Conduct research on varietal im-
retary for Research, Education, and provement of wheat and feed grains to
Economics to the Administrator, Agri- enhance their conservation and envi-
cultural Research Service: ronmental qualities (7 U.S.C. 428b).
(1) Coordinate USDA policy relative (10) [Reserved]
to the Federal Insecticide, Fungicide, (11) Enter into agreements with and
and Rodenticide Act, as amended (7 receive funds from any State, other po-
U.S.C. 136 et seq.) and coordinate the litical subdivision, organization, or in-
Department’s Integrated Pest Manage- dividual for the purpose of conducting
ment Programs and the Pesticide As- cooperative research projects (7 U.S.C.
sessment Program (7 U.S.C. 136–136y). 450a).
249
(12) Conduct research under the IR–4 stitutions or other colleges and univer-
program (7 U.S.C. 450i(e)). sities for the acquisition of goods or
(13) Conduct research related to soil services in support of research, exten-
and water conservation, engineering sion, or teaching activities in the food
operations, and methods of cultivation and agricultural sciences, including
to provide for the control and preven- the furtherance of library and related
tion of soil erosion (7 U.S.C. 1010 and 16 information programs (7 U.S.C. 3319a).
U.S.C. 590a). (24) Conduct research for the develop-
(14) Maintain four regional research ment of supplemental and alternative
laboratories and conduct research at crops (7 U.S.C. 3319d).
such laboratories to develop new sci- (25) Conduct research on potential
entific, chemical, and technical uses uses for compost from agricultural
and new and extended markets and wastes, including evaluating the appli-
outlets for farm commodities and prod- cation of compost on soil, plants, and
ucts and the by-products thereof (7 crops (7 U.S.C. 3130).
U.S.C. 1292). (26) [Reserved]
(15) Conduct a Special Cotton Re-
(27) Cooperate and work with na-
search Program designed to reduce the
tional and international institutions,
cost of producing upland cotton in the
Departments and Ministries of Agri-
United States (7 U.S.C. 1441 note).
culture in other nations, land-grant
(16) Conduct research to formulate
colleges and universities, and other
new uses for farm and forest products
persons throughout the world in the
(7 U.S.C. 1632(b)).
performance of agricultural research
(17) Conduct research to develop and
activities (7 U.S.C. 3291).
determine methods for the humane
(28) Provide a biennial report to the
slaughter of livestock (7 U.S.C. 1904).
Committee on Agriculture of the House
(18) Provide national leadership and
of Representatives and the Committee
support for research programs and
on Agriculture, Nutrition, and For-
other research activities in the food
estry of the Senate on efforts of the
and agricultural sciences to meet
Federal Government to coordinate
major needs and challenges in food and
international agricultural research
agricultural system productivity; de-
within the Federal Government, and to
velopment of new food, fiber, and en-
more effectively link the activities of
ergy sources; agricultural energy use
domestic and international agricul-
and production; natural resources; pro-
tural researchers, particularly re-
motion of the health and welfare of
searchers of the Agricultural Research
people; human nutrition; and inter-
Service (7 U.S.C. 3291(d)(2)).
national food and agriculture pursuant
to the National Agricultural Research, (29) Conduct a program of basic re-
Extension, and Teaching Policy Act of search on cancer in animals and birds
1977, as amended (7 U.S.C. 3101 et seq.). (7 U.S.C. 3902).
(19) [Reserved] (30) Conduct and coordinate Depart-
(20) Administer the National Agricul- mental research programs on water
tural Science Award for research or ad- quality and nutrient management (7
vanced studies in the food and agricul- U.S.C. 5504).
tural sciences (7 U.S.C. 3153). (31) Conduct research to optimize
(21) Conduct program evaluations to crop and livestock production poten-
improve the administration and effec- tial, integrated resource management,
tiveness of agricultural research and and integrated crop management (7
education programs (7 U.S.C. 3317). U.S.C. 5821).
(22) Enter into contracts, grants, or (32) Administer a national research
cooperative agreements to further re- program on genetic resources to pro-
search programs and library and re- vide for the collection, preservation,
lated information programs supporting and dissemination of genetic material
research, extension, and teaching pro- important to American food and agri-
culture production (7 U.S.C. 5841).
grams in the food and agricultural

sciences (7 U.S.C. 3318). (33) Conduct remote-sensing and
(23) Enter into cost-reimbursable other weather-related research (7
agreements with State cooperative in- U.S.C. 5852).
250
(34) Administer grants and conduct Amendments, and the Federal Facility
research programs to measure micro- Compliance Act (42 U.S.C. 6901 et seq.);
biological and chemical agents associ- (ii) Federal Water Pollution Preven-
ated with the production, preparation, tion and Control Act, as amended (33
processing, handling, and storage of ag- U.S.C. 1251 et seq.);
ricultural products (7 U.S.C. 5871–5874). (iii) Safe Drinking Water Act, as
(35) Conduct research on integrated amended (42 U.S.C. 300f et seq.);
pest management, including research (iv) Clean Air Act, as amended (42
to benefit floriculture (7 U.S.C. 5881). U.S.C. 7401 et seq.);
(36) Conduct research in the control (v) Noise Control Act of 1972, as
and eradication of exotic pests (7 amended (42 U.S.C. 4901 et seq.);
U.S.C. 5883). (vi) Toxic Substances Control Act, as
(37) Conduct research to study the bi- amended (15 U.S.C. 2601 et seq.);
ology and behavior of chinch bugs (7 (vii) Federal Insecticide, Fungicide,
U.S.C. 5884). and Rodenticide Act, as amended (7
(38) Administer a grant program for U.S.C. 136 et seq.); and
risk assessment research to address (viii) Comprehensive Environmental
concerns about the environmental ef- Response, Compensation, and Liability
fects of biotechnology (7 U.S.C. 5921). Act of 1980, as amended by the Super-
(39) Conduct a research initiative fund Amendments and Reauthorization
known as the Agricultural Genome Ini- Act of 1986 (42 U.S.C. 9601 et seq.).
tiative, and make grants or enter into (50) Perform research and administer
cooperative agreements on a competi- grants for research and development in
tive basis to carry out the Initiative (7 aquaculture (16 U.S.C. 2804).
U.S.C. 5924). (51) Maintain a National Arboretum
(40) Facilitate access, including for the purposes of research and edu-
through the National Agricultural Li- cation concerning tree and plant life,
brary, by research and extension pro- and order disbursements from the
fessionals, farmers, and other inter- Treasury, in accordance with the Act
ested persons in the United States to, of March 4, 1927 (20 U.S.C. 191 et seq.).
and the use by those persons of, or- (52) Conduct research on foot-and-
ganic research conducted outside the mouth disease and other animal dis-
United States (7 U.S.C. 5925d). eases (21 U.S.C. 113a).
(41)–(47) [Reserved] (53) Conduct research on the control
(48) Coordinate Departmental poli- and eradication of cattle grubs
cies under the Toxic Substances Con- (screwworms) (21 U.S.C. 114e).
trol Act (15 U.S.C. 2601–2629). (54) [Reserved]
(49) With respect to facilities and ac- (55) Conduct research on losses of
tivities under his or her authority, to livestock in interstate commerce due
exercise the authority of the Secretary to injury or disease (45 U.S.C. 71 note).
of Agriculture pursuant to section 1– (56) [Reserved]
102 related to compliance with applica- (57) Pursuant to the authority dele-
ble pollution control standards and sec- gated by the Administrator of General
tion 1–601 of Executive Order 12088, 3 Services to the Secretary of Agri-
CFR, 1978 Comp., p. 243, to enter into culture in 34 FR 6406, 36 FR 1293, 36 FR
an inter-agency agreement with the 18840, and 38 FR 23838, appoint uni-
United States Environmental Protec- formed armed guards and special po-
tion Agency, or an administrative con- licemen, make all needful rules and
sent order or a consent judgment in an regulations, and annex to such rules
appropriate State, interstate, or local and regulations such reasonable pen-
agency, containing a plan and schedule alties (not to exceed those prescribed
to achieve and maintain compliance in 40 U.S.C. 318(c)), as will insure their
with applicable pollution control enforcement, for the protection of per-
standards established pursuant to the sons, property, buildings, and grounds
following: of the Arboretum, Washington, DC; the
(i) Solid Waste Disposal Act, as U.S. Meat Animal Research Center,
amended by the Resource Conservation Clay Center, NE.; the Agricultural Re-
and Recovery Act, as further amended search Center, Beltsville, MD; and the
by the Hazardous and Solid Waste Animal Disease Center, Plum Island,
251
NY, over which the United States has (iv) Section 104(j) of the Act (42
exclusive or concurrent criminal juris- U.S.C. 9604(j)), with respect to the ac-
diction, in accordance with the limita- quisition of real property and interests
tions and requirements of the Federal in real property required to conduct a
Property and Administrative Services remedial action;
Act of 1949, as amended (40 U.S.C. 471 et (v) The first two sentences of section
seq.), the Act of June 1, 1948, as amend- 105(d) of the Act (42 U.S.C. 9605(d)),
ed (40 U.S.C. 318 et seq.), and the poli- with respect to petitions for prelimi-
cies, procedures, and controls pre- nary assessment of a release or threat-
scribed by the General Services Admin- ened release;
istration. Any rules or regulations pro- (vi) Section 105(f) of the Act (42
mulgated under this authority shall be U.S.C. 9605(f)), with respect to consider-
approved by the Director, Office of Op- ation of the availability of qualified
erations, and the General Counsel prior minority firms in awarding contracts,
to issuance. but excluding that portion of section
(58) Administer the Department’s 105(f) pertaining to the annual report
Patent Program except as delegated to to Congress;
the General Counsel in § 2.31(e). (vii) Section 109 of the Act (42 U.S.C.
(59) Provide management support 9609), with respect to the assessment of
services for the Economic Research civil penalties for violations of section
Service, the National Institute of Food 122 of the Act (42 U.S.C. 9622), and the
and Agriculture, and the National Ag- granting of awards to individuals pro-
ricultural Statistics Service as agreed viding information;
upon by the agencies with authority to
(viii) Section 111(f) of the Act (42
take actions required by law or regula-
U.S.C. 9611(f)), with respect to the des-
tion. As used herein, the term manage-
ignation of officials who may obligate
ment support services includes budget,
finance, personnel, procurement, prop-
Superfund;
erty management, communications,
paperwork management, ADP support,
and related administrative services.
lishing an administrative record upon
(60) With respect to land and facili-
ties under his or her authority, exer-
cise the functions delegated to the Sec-
fying potentially responsible parties;
retary by Executive Order 12580, 3 CFR,
1987 Comp., p. 193, under the following (x) Section 116(a) of the Act (42 U.S.C.
provisions of the Comprehensive Envi- 9616(a)), with respect to preliminary as-
ronmental Response, Compensation, sessment and site inspection of facili-
and Liability Act of 1980 (‘‘the Act’’), ties;
as amended: (xi) Sections 117(a) and (c) of the Act
(i) Sections 104 (a), (b), and (c)(4) of (42 U.S.C. 9617 (a) and (c)), with respect
the Act (42 U.S.C. 9604 (a), (b), and to public participation in the prepara-
U.S.C. 9604(e)–(h)), with respect to in- (xii) Section 119 of the Act (42 U.S.C.
formation gathering and access re- 9119), with respect to indemnifying re-
quests and orders; compliance with sponse action contractors;
Federal health and safety standards (xiii) Section 121 of the Act (42 U.S.C.
and wage and labor standards applica- 9621), with respect to cleanup stand-
252
(61) Carry out research activities au- (i) Design and carry out periodic na-
thorized in section 202(c) of the Colo- tionwide food consumption surveys to
rado River Basin Salinity Control Act measure household food consumption;
(43 U.S.C. 1592(c)). (ii) Design and carry out a contin-
(62) Perform food and agricultural re- uous, longitudinal individual intake
search in support of functions assigned survey of the United States population
to the Department under the Defense and special high-risk groups; and
Production Act of 1950, as amended (50 (iii) Design and carry out methodo-
U.S.C. App. 2061 et seq.), and title VI of logical research studies to develop im-
the Robert T. Stafford Disaster Relief proved procedures for collecting house-
and Emergency Assistance Act (42 hold and individual food intake con-
U.S.C. 5195 et seq.). sumption data;
(63) Propagate bee-breeding stock and (67) [Reserved]
release bee germplasm to the public (7 (68) Provide staff support to the
U.S.C. 283). Under Secretary for Research, Edu-
(64) Administer a National Food and cation, and Economics related to the
Human Nutrition Research Program Ten-Year Comprehensive Plan and the
and a Human Nutrition Intervention Interagency Board for Nutrition Moni-
and Health Promotion Research Pro- toring and Related Research required
gram under the National Agricultural by Pub. L. No. 101–445, 7 U.S.C. 5301 et
Research, Extension, and Teaching seq.
Policy Act of 1977, as amended. As used (69) Obtain and furnish excess prop-
herein the term ‘‘research’’ includes: erty to eligible recipients for use in the
(i) Research on the nutrient composi- conduct of research and extension pro-
tion of foods and the effects of agricul- grams.
tural practices, handling, food proc- (70) [Reserved]
essing, and cooking on the nutrients (71) Establish and maintain a Food
they contain; Safety Research Information Office at
(ii) Surveillance of the nutritional the National Agricultural Library to
benefits provided to participants in the provide to the research community and
food programs administered by the De- the general public information on pub-
partment; and licly and privately funded food safety
(iii) Research on the factors affecting research initiatives (7 U.S.C. 7654(a)).
food preference and habits. (7 U.S.C. (72) Develop and maintain library and
3171–3175, 3177). information systems and networks and
(65) The authority in paragraph facilitate cooperation and coordination
(a)(64) of this section includes the au- of the agricultural libraries of colleges,
thority to: universities, USDA, and their closely
(i) Appraise the nutritive content of allied information gathering and dis-
the U.S. food supply; semination units in conjunction with
(ii) Develop and make available data private industry and other research li-
on the nutrient composition of foods braries (7 U.S.C. 2201, 2204, 3125a, and
needed by Federal, State, and local 3126).
agencies administering food and nutri- (73) Accept gifts and order disburse-
tion programs, and the general public, ments from the Treasury for the ben-
to improve the nutritional quality of efit of the National Agricultural Li-
diets; brary or for the carrying out of any of
(iii) Coordinate nutrition education its functions (7 U.S.C. 2264–2265).
research and professional education (74) Provide for the dissemination of
projects within the Department; and appropriate rural health and safety in-
(iv) Maintain data generated on food formation resources possessed by the
composition in a National Nutrient National Agricultural Library Rural
Data Bank. Information Center, in cooperation
(66) Conduct, in cooperation with the with State educational program efforts
Department of Health and Human (7 U.S.C. 2662).
Services, the National Nutrition Moni- (75) Provide national leadership in

toring and Related Research Program. the development and maintenance of
Included in this delegation is the au- library and related information sys-
thority to: tems and other activities to support
253
the research, extension, and teaching control available to agricultural pro-

programs in the food and agricultural ducers through the pest and disease
sciences pursuant to the National Agri- control database (7 U.S.C. 5882).
cultural Research, Extension, and (84) Represent the Department on all
Teaching Policy Act of 1977, as amend- library and information science mat-
ed (7 U.S.C. 3101 and 3121). ters before Congressional Committees
(76) Administer the programs and and appropriate commissions, and pro-
services of the National Agricultural vide representation to the coordinating
Library consistent with its charge to committees of the Federal and State
serve as the primary agricultural infor- governments concerned with library
mation resource of the United States and information science activities.
and enter into agreements and receive (85) Represent the Department in
funds from various entities to conduct international organizational activities
National Agricultural Library activi- and on international technical com-
ties (7 U.S.C. 3125a). mittees concerned with library and in-
(77) Provide and distribute informa- formation science activities.
tion and data about Federal, State, (86) Prepare and disseminate com-
local, and other rural development as- puter files, indexes and abstracts, bib-
sistance programs and services avail- liographies, reviews and other analyt-
able to individuals and organizations. ical information tools.
To the extent possible, the National (87) Arrange for the consolidated pur-
Agricultural Library shall use tele- chasing and dissemination of printed
communications technology to dis- and automated indexes, abstracts, jour-
seminate such information to rural nals, and other widely used informa-
areas (7 U.S.C. 3125b). tion resources and services.
(78) Assemble and collect food and (88) Provide assistance and support to
nutrition educational materials, in- professional organizations and others
cluding the results of nutrition re- concerned with library and information
search, training methods, procedures, science matters and issues.
and other materials related to the pur- (89) Copy and deliver on demand se-
poses of the National Agricultural Re- lected articles and other materials
search, Extension, and Teaching Policy from the National Agricultural Li-
Act of 1977, as amended; maintain such brary’s collections by photographic re-
information; and provide for the dis- production or other means within the
semination of such information and permissions, constraints, and limita-
materials on a regular basis to State tions of sections 106, 107, and 108 of the
educational agencies and other inter- Copyright Act of October 19, 1976 (17
ested parties (7 U.S.C. 3126). U.S.C. 106, 107 and 108).
(79) Conduct program evaluations to (90) Formulate, write, or prescribe
improve the administration and effi- bibliographic and technically related
cacy of the National Agricultural Li- standards for the library and informa-
brary and related information systems tion services of USDA (7 U.S.C. 3125a et
in the food and agricultural sciences (7 seq.).
U.S.C. 3317). (91) Assure the acquisition, preserva-
(80) Administer the National Agricul- tion, and accessibility of all informa-
tural Library, including the farmland tion concerning food and agriculture
information center, pursuant to sec- by providing leadership to and coordi-
tion 1544(b) of the Farmland Protection nation of the acquisition programs and
Policy Act (7 U.S.C. 4205(b)). related activities of the library and in-
(81) Support Department water pro- formation systems, with the agencies
grams through participation in State of USDA, other Federal departments
water quality coordination programs and agencies, State agricultural exper-
and dissemination of agrichemical in- iment stations, colleges and univer-
formation (7 U.S.C. 5503–5506). sities, and other research institutions
(82) Provide a repository of agri- and organizations.
culture and ground water quality plan- (92) Determine by survey or other ap-
ning information (7 U.S.C. 5505). propriate means, the information needs
(83) Disseminate information on ma- of the Department’s scientific, profes-
terials and methods of pest and disease sional, technical, and administrative
254
staffs, its constituencies, and the gen- ing the prior year’s request for pro-
eral public in the areas of food, agri- posals for each activity funded on a
culture, the environment, and other re- competitive basis (7 U.S.C. 7613(c)).
lated areas. (102) Establish procedures that en-
(93) Review cooperative research and sure scientific peer review of all re-
development agreements entered into search activities conducted by the Ag-
pursuant to 15 U.S.C. 3710a–3710c, with ricultural Research Service (7 U.S.C.
authority to disapprove or require the 7613(d)).
modification of any such agreement. (103) Coordinate the resources of the
(94) Administer the Stuttgart Na- Department to develop, commercialize,
tional Aquaculture Research Center (16 and promote the use of biobased prod-
U.S.C. 778 et seq.; Pub. L. 104–127, sec. ucts, and enter into cooperative agree-
889). ments with private entities to operate
(95) Provide technical and edu- pilot plants and other large-scale prep-
cational assistance to conserve and en- aration facilities under which the fa-
hance private grazing land resources cilities and technical expertise of the
(16 U.S.C. 2005b). Agricultural Research Service may be
(96) Provide technical assistance to made available (7 U.S.C. 7624).
farmers and ranchers under the Envi- (104) Administer grants to consortia
ronmental Quality Incentives Program of land-grant colleges and universities
(16 U.S.C. 3830 et seq.).
to enhance the ability of the consortia
(97) Enter into cooperative research
to carry out multi-State research
and development agreements with in-
projects aimed at understanding and
dustry, universities, and others; insti-
combating diseases of wheat, triticale,
tute a cash award program to reward
and barley caused by Fusarium
scientific, engineering, and technical
graminearum and related fungi or
personnel; award royalties to inven-
Tilletia indica and related fungi (7
tors; and retain and use royalty income
U.S.C. 7628).
(15 U.S.C. 3710a–3710c).
(105) Administer a program of fees to
(98) Coordinate USDA activities dele-
support the Patent Culture Collection
gated under 15 U.S.C. 3710a–3710c.
maintained and operated by the Agri-
(99) Ensure that agricultural research
cultural Research Service (7 U.S.C.
conducted by the Agricultural Re-
7641).
search Service (ARS) addresses a con-
cern that is a priority and has na- (106) Update on a periodic basis, nu-
tional, multistate, or regional signifi- trient composition data, and report to
cance (7 U.S.C. 7611). Congress the method that will be used
(100) Solicit and consider input and to update the data and the timing of
recommendations from persons who the update (7 U.S.C. 7651).
conduct or use agricultural research, (107) Ensure that each research activ-
extension, or education (7 U.S.C. ity conducted by an Agricultural Re-
7612(b)). search Service facility serves a na-
(101) Consider the results of the an- tional or multistate need (7 U.S.C.
nual review performed by the Agricul- 390a(e)).
tural Research, Extension, Education, (108) Exchange, sell, or otherwise dis-
and Economics Advisory Board regard- pose of animals, animal products,
ing the relevance to priorities of the plants, and plant products, and use the
funding of all agricultural research, ex- sale or other proceeds to acquire such
tension, or education activities con- items or to offset costs related to the
ducted or funded by the Department maintenance, care, or feeding of such
and the adequacy of funding when for- items (7 U.S.C. 2241a).
mulating each request for proposals, (109) Establish and administer a pilot
and evaluating proposals, involving an program at the Beltsville Agricultural
agricultural research, extension, or Research Center and National Agricul-
education activity funded, on a com- tural Library to lease nonexcess prop-
erty (7 U.S.C. 3125a note).
petitive basis, by the Department; and

solicit and consider input from persons (110) Lease land at the Grazinglands
who conduct or use agricultural re- Research Laboratory at El Reno, Okla-
search, extension, or education regard- homa, pursuant to section 7503 of the
255
Food, Conservation, and Energy Act of use chemical residues in or on agricul-

2008 (Pub. L. 110–246). tural commodities (7 U.S.C. 450i(e)).
(111) Administer a natural products (7) Administer the Agriculture and
research program (7 U.S.C. 5937). Food Research Initiative for competi-
(112) Provide staff support to the tive grants for fundamental and ap-
Under Secretary for Research, Edu- plied research, extension, and edu-
cation, and Economics related to the cation to address food and agricultural
National Agricultural Research, Exten- sciences (7 U.S.C. 450i(b)).
sion, Education, and Economics Advi- (8) Administer a program of making
sory Board (7 U.S.C. 3123). special grants for research, extension,
(113) Carry out pollinator health re- or education activities (7 U.S.C.
search activities (7 U.S.C. 5925(h)(2)). 450i(c)).
(b) [Reserved] (9) [Reserved]
(10) Administer, in cooperation with
FR 65594, Dec. 15, 1997; 65 FR 5416, Feb. 4, land-grant colleges and universities
2000; 68 FR 27445, May 20, 2003; 74 FR 3409, where applicable, a rural development
Jan. 21, 2009; 75 FR 43381, July 23, 2010; 76 FR research and extension program, a
4802, 4803, Jan. 27, 2011] small farm research and extension pro-
gram, and a rural health and safety
§ 2.66 Director, National Institute of education program under the Rural De-
Food and Agriculture. velopment Act of 1972, as amended (7
(a) Delegations. Pursuant to § 2.21 U.S.C. 2661–2667).
(a)(1) and (a)(3), subject to the reserva- (11) Provide national leadership and
tions in § 2.21(b)(1), the following dele- support for cooperative research and
gations of authority are made by the extension programs and other coopera-
Under Secretary for Research, Edu- tive activities in the food and agricul-
cation and Economics (Under Sec- tural sciences to meet major needs and
retary) to the Director, National Insti- challenges in food and agricultural sys-
tute of Food and Agriculture, who shall tem productivity; development of new
report directly to the Under Secretary. food, fiber, and energy sources; agricul-
(1) Administer research and tech- tural energy use and production; nat-
nology development grants related to ural resources; promotion of the health
the economic feasibility of the manu- and welfare of people; human nutrition;
facture and commercialization of nat- and international food and agriculture
ural rubber from hydrocarbon-con- pursuant to the National Agricultural
taining plants (7 U.S.C. 178–178n). Research, Extension, and Teaching
(2) Administer the appropriation for Policy Act of 1977, as amended (7 U.S.C.
the endowment and maintenance of 3101 et seq.).
colleges for the benefit of agriculture (12) Conduct a program of grants to
and the mechanical arts (7 U.S.C. 321– States to expand, renovate, or improve
326a). schools of veterinary medicine (7
(3) Administer teaching funds author- U.S.C. 3151).
ized by section 22 of the Bankhead (13) Promote and strengthen higher
Jones Act, as amended (7 U.S.C. 329). education in the food and agricultural
(4) Cooperate with the States for the sciences; administer grants to colleges
purpose of encouraging and assisting and universities; maintain a national
them in carrying out research related food and agricultural education infor-
to the problems of agriculture in its mation system; conduct programs re-
broadest aspects under the Hatch Act, garding the evaluation of teaching pro-
as amended (7 U.S.C. 361a–361i). grams and continuing education; ad-
(5) Administer an agricultural re- minister the National Food and Agri-
search facilities proposal review proc- cultural Sciences Teaching, Extension,
ess for submission to Congress (7 U.S.C. and Research Awards Program to rec-
390, 390a(a)–(d)). ognize and promote excellence in
(6) Carry out a program (IR–4 Pro- teaching, extension, and research in
gram) for the collection of residue and the food and agricultural sciences; ad-
efficacy data in support of minor use minister programs relating to sec-
pesticide registration or reregistration ondary education and 2-year postsec-
and to determine tolerances for minor ondary education, including grants to
256
public secondary schools, institutions versities at Foreign Agricultural Serv-

of higher education that award an asso- ice field offices overseas (7 U.S.C. 3291,
ciate’s degree, other institutions of 3292b).
higher education, and nonprofit organi- (21) Administer a program of com-
zations; and report to Congress on the petitive grants to colleges and univer-
distribution of funds to carry out such sities and State cooperative institu-
teaching programs (7 U.S.C. 3152). tions for the acquisition of special pur-
(14)–(15) [Reserved] pose scientific research equipment for
(16) Make grants, competitive grants, use in the food and agricultural
and special research grants to, and sciences (7 U.S.C. 3310a).
enter into agreements and other con- (22) Conduct program evaluations to
tracting instruments with policy re- improve the administration and effi-
search centers (7 U.S.C. 3155). cacy of the cooperative research grants
(17) Conduct a program of grants to and extension programs involving
States to support continuing animal State agricultural experiment stations,
health and disease research programs cooperative extension services, and col-
under the National Agricultural Re- leges and universities (7 U.S.C. 3317).
search, Extension, and Teaching Policy (23) Enter into contracts, grants, or
Act of 1977, as amended (7 U.S.C. 3191– cooperative agreements to further re-
3201). search, extension or teaching activities
(18) Support continuing agricultural in the food and agricultural sciences (7
and forestry extension and research, at U.S.C. 3318)
1890 land-grant colleges, including (24) Enter into cost-reimbursable
Tuskegee University, and administer a agreements with State cooperative in-
grant program for five National Re- stitutions or other colleges and univer-
search and Training Centennial Cen- sities for the acquisition of goods or
ters (7 U.S.C. 3221, 3222, 3222c, 3222d). services in support of research, exten-
(19) Administer grants to 1890 land- sion, or teaching activities in the food
grant colleges, including Tuskegee and agricultural sciences, including
University, through Federal-grant the furtherance of library and related
funds to help finance and upgrade agri- information programs (7 U.S.C. 3319a).
cultural and food science facilities (25) Conduct research and develop
which are used for research, extension, and implement a program for the de-
and resident instruction (7 U.S.C. velopment of supplemental and alter-
3222b). native crops (7 U.S.C. 3319d).
(20) Provide policy direction and co- (26) Administer an Aquaculture As-
ordinate the Department’s work with sistance Program, involving centers,
national and international institutions by making grants to eligible institu-
and other persons throughout the tions for research and extension to fa-
world in the performance of agricul- cilitate or expand production and mar-
tural research, extension, teaching, keting of aquacultural food species and
and development activities; administer products; making grants to States to
a program of competitive grants for formulate aquaculture development
collaborative projects involving Fed- plans for the production and marketing
eral scientists or scientists from col- of aquacultural species and products;
leges and universities working with conducting a program of research, ex-
scientists at international agricultural tension and demonstration at
research centers in other nations focus- aquacultural demonstration centers (7
ing either on new technologies and pro- U.S.C. 3321–3322).
grams for increasing the production of (27) [Reserved]
food and fiber or training scientists (28) Administer a cooperative range-
and a program of competitive grants to land research program (7 U.S.C. 3331–
colleges and universities to strengthen 3336).
United States economic competitive- (29) Administer grants for basic re-
ness and to promote international mar- search on cancer in animals and birds
ket development; and establish a pro- (7 U.S.C. 3902).

gram in coordination with the Foreign (30) Administer programs and con-
Agricultural Service to place interns duct projects in cooperation with other
from United States colleges and uni- agencies for research and education on
257
sustainable agriculture (7 U.S.C. 5811– (41) [Reserved]

5813). (42) Administer a competitive high
(31) Administer a cooperative re- priority research and extension grants
search and extension program to opti- program in specified subject areas (7
mize crop and livestock production po- U.S.C. 5925), except as delegated to the
tential in integrated resource manage- Administrator, Agricultural Research
ment and integrated crop management Service in § 2.65(a)(113) and the Admin-
systems (7 U.S.C. 5821). istrator, Animal and Plant Health In-
(32) Establish an Agricultural Weath- spection Service in § 2.80(a)(47).
er Office and administer a national ag- (43) Administer a program of com-
ricultural weather information system, petitive grants to support research and
including competitive grants program extension activities in Nutrient Man-
for research in atmospheric sciences agement Research and Extension (7
and climatology (7 U.S.C. 5852–5853). U.S.C. 5925a).
(33) Administer a cooperative exten- (44) Administer competitive grants to
sion program on agricultural weather support research and extension activi-
forecasts and climate information for ties regarding organically grown and
agricultural producers and administer processed agricultural commodities (7
a grant program to States to admin- U.S.C. 5925b).
ister programs for State agricultural (45)–(49) [Reserved]
weather information systems (7 U.S.C. (50) Administer the Small Business
5854). Innovation Development Act of 1982 for
(34) In cooperation with the Agricul- USDA (15 U.S.C. 638(e)-(k)).
tural Research Service, administer (51) Administer a cooperative for-
competitive research grants regarding estry program in accordance with the
the production, preparation, proc- McIntire-Stennis Cooperative Forestry
essing, handling, and storage of agri- Act, and administer a competitive for-
culture products (7 U.S.C. 5871–5874). estry, natural resources, and environ-
(35) Administer a grants and con- mental grant program (16 U.S.C. 582a–
tracts program on integrated pest man- 582a–8).
agement including research to benefit (52) Establish and administer the
floriculture and administer an exten- Forestry Student Grant Program to
sion program developed for integrated provide competitive grants to assist
pest management (7 U.S.C. 5881). the expansion of the professional edu-
(36) Administer a grants program to cation of forestry, natural resources,
States on the control of infestations and environmental scientists (16 U.S.C.
and eradication of exotic pests (7 1649).
U.S.C. 5883). (53) Provide staff support to the Sec-
(37) Administer a grant program for retary of Agriculture in his or her role
risk assessment research to address as permanent Chair for the Joint Sub-
concerns about the environmental ef- committee on Aquaculture established
fects of biotechnology (7 U.S.C. 5921). by the National Aquaculture Act of
(38) [Reserved] 1980 and coordinate aquacultural re-
(39) Administer a rural electronic sponsibilities within the Department
commerce extension program through (16 U.S.C. 2805).
grants to regional rural development (54) Administer extension education
centers and competitive grants to land- programs in aquaculture and admin-
grant colleges and universities and to ister grants related to research and de-
colleges and universities (including velopment in aquaculture (16 U.S.C.
community colleges) with agricultural 2806).
or rural development programs (7 (55) Coordinate research by cooper-
U.S.C. 5923). ating State research institutions and
(40) Conduct a research initiative administer education and information
known as the Agricultural Genome Ini- activities assigned under the Defense
tiative; and make grants or enter coop- Production Act of 1950, as amended (50
erative agreements on a competitive U.S.C. App. 2061 et seq.), and title VI of

basis with individuals and organiza- the Robert T. Stafford Disaster Relief
tions to carry out the Initiative (7 and Emergency Assistance Act (42
U.S.C. 5924). U.S.C. 5195 et seq.).
258
(56) [Reserved] (79) Administer a competitive grant

(57) Represent the Department on the program to organizations to carry out
Federal Interagency Council on Edu- a training program on sustainable agri-
cation. culture (7 U.S.C. 5832).
(58)–(60) [Reserved] (80) Establish a national pesticide re-
(61) Administer a cooperative agri- sistance monitoring program (7 U.S.C.
cultural extension program in accord- 5882).
ance with the Smith-Lever Act, as (81) Conduct educational programs on
amended (7 U.S.C. 341–349). the biology and behavior of chinch
(62) Administer a cooperative agri- bugs (7 U.S.C. 5884).
cultural extension program relating to (82) Administer education programs
agriculture, uses of solar energy with on Indian reservations and tribal juris-
respect to agriculture, home econom- dictions (7 U.S.C. 5930).
ics, and rural energy in the District of
(83) Administer competitive grants to
Columbia (DC Code 38–1202.09).
States to establish a pilot project to
(63) Conduct educational and dem-
coordinate food and nutrition edu-
onstration work related to the dis-
tribution and marketing of agricul- cation programs (7 U.S.C. 2027(a) and
tural products under the Agricultural 5932).
Marketing Act of 1946, as amended (7 (84) Administer a demonstration
U.S.C. 1621–1627). grants program for support of an as-
(64) Administer a competitive grant sistive technology program for farmers
program for non-profit institutions to with disabilities (7 U.S.C. 5933).
establish and operate centers for rural (85) Conduct educational and dem-
technology or cooperative development onstrational work in cooperative farm
(7 U.S.C. 1932(f)). forestry programs (16 U.S.C. 568).
(65) Administer a nutrition education (86) Provide for an expanded and com-
program for Food Stamp recipients and prehensive extension program for for-
for the distribution of commodities on est and rangeland renewable resources
reservations (7 U.S.C. 2020(f)). (16 U.S.C. 1671–1676).
(66)–(71) [Reserved] (87) [Reserved]
(72) Administer a cooperative exten- (88) Provide technical, financial, and
sion program under the Farmer-to-Con- educational assistance to State for-
sumer Direct Marketing Act of 1976 (7 esters and State extension directors on
U.S.C. 3004). rural forestry assistance (16 U.S.C.
(73) Identify and compile information 2102).
on methods of composting agricultural (89) Provide educational assistance to
wastes and its potential uses and de- State foresters under the Forest Stew-
velop educational programs on ardship Program (16 U.S.C. 2103a).
composting (7 U.S.C. 3130).
(90) Implement and conduct an edu-
(74) Administer a National Food and
cational program to assist the develop-
Human Nutrition Research and Exten-
ment of urban and community forestry
sion Program (7 U.S.C. 3171–3173, 3175)
programs (16 U.S.C. 2105).
(75) [Reserved]
(91) Provide educational assistance to
(76) Design educational programs, im-
plement, and distribute materials in farmers regarding the Agricultural
cooperation with the cooperative ex- Water Quality Protection Program (16
tension services of the States empha- U.S.C. 3838b).
sizing the importance of productive (92) Authorize the use of the 4-H Club
farmland pursuant to section 1544(a) of name and emblem (18 U.S.C. 707).
the Farmland Protection Policy Act (7 (93) Conduct demonstrational and
U.S.C. 4205(a)). promotional activities related to farm
(77) [Reserved] dwellings and other buildings for the
(78) Design, implement, and develop purposes of reducing costs and adapt-
ing and developing fixtures and appur-
handbooks, technical guides, and other

educational materials emphasizing sus- tenances for more efficient and eco-
tainable agriculture production sys- nomical farm use (42 U.S.C. 1476(b)).
tems and practices (7 U.S.C. 5831). (94) [Reserved]
259
(95) Exercise the responsibilities of (103) [Reserved]

the Secretary under regulations deal- (104) Develop and carry out a system
ing with Equal Employment Oppor- to monitor and evaluate agricultural
tunity (part 18 of this title). research and extension activities con-
(96) Carry out demonstration and ducted or supported by the Department
educational activities authorized in of Agriculture that will enable the Sec-
section 202(c) of the Colorado River retary to measure the impact and ef-
Basin Salinity Control Act (43 U.S.C. fectiveness of research, extension, and
1592(c)). education programs according to prior-
(97) Provide educational and tech- ities, goals, and mandates established
nical assistance in implementing and by law. Conduct a comprehensive re-
administering the conservation reserve view of state-of-the-art information
program authorized in sections 1231–
technology systems for use in devel-
1244 of the Food Security Act of 1985
oping the system (7 U.S.C. 3129).
(Pub. L. No. 99–198, 99 Stat. 1509, 16
U.S.C. 3831–3844). (105) Conduct a pilot research pro-
(98) Establish and administer a 1994 gram to link major cancer and heart
Institutions Endowment Fund and to and other circulatory disease research
enter into agreements necessary to do efforts with agricultural research ef-
this (Section 533(b)(c) of the Equity in forts to identify compounds in vegeta-
Educational Land-Grant Status Act of bles and fruits that prevent these dis-
1994, 7 U.S.C. 301 note). eases (7 U.S.C. 3174a).
(99) Make grants in equal amounts to (106) Administer grants to 1890 land-
1994 Land-Grant Institutions to be used grant colleges, including Tuskegee
in the same manner as is prescribed for University, through Federal-grant
colleges under the Act of August 30, funds to help finance research facilities
1890 (26 Stat. 417, chapter 841; 7 U.S.C. and equipment including agricultural
321 et seq.) (commonly known as the libraries (7 U.S.C. 3223).
Second Morrill Act), and subject to the (107) Establish and administer com-
requirements of such Act (Sections 533 petitive grants to Hispanic-serving In-
and 534 of the Equity in Educational stitutions for the purpose of promoting
Land-Grant Act of 1994, 7 U.S.C. 301 and strengthening the ability of His-
note). panic-serving Institutions to carry out
(100) Make competitive Institutional education, applied research, and re-
Capacity Building Grants to assist 1994 lated community development pro-
Institutions with constructing, acquir- grams (7 U.S.C. 3241).
ing, and remodeling buildings, labora- (108) [Reserved]
tories, and other capital facilities (in- (109) Award a grant, on a competitive
cluding fixtures and equipment) nec- basis, to establish a red meat safety re-
essary to conduct instructional activi-
search center at an eligible research fa-
ties more effectively in agriculture and
cility (7 U.S.C. 5929).
sciences (Section 535 of the Equity in
Educational Land-Grant Status Act of (110) Coordinate the development and
1994, 7 U.S.C. 301 note). carrying out by Department agencies
(101) Make competitive grants to 1994 of all matters and functions pertaining
Land-Grant Institutions to conduct ag- to agricultural research conducted or
ricultural research that addresses high funded by the Department involving
priority concerns of tribal, national, or biotechnology, including the develop-
multistate significance (Section 536 of ment and implementation of guidelines
the Equity in Educational Land-Grant for oversight of research activities,
Status Act of 1994, 7 U.S.C. 301 note). acting as liaison on all matters and
(102) Implement and administer the functions pertaining to agricultural re-
Community Food Projects Program, search in biotechnology between agen-
Innovative Programs for Addressing cies within the Department and be-
Common Community Problems, and tween the Department and other gov-
ernmental, educational, or private or-
the Healthy Urban Food Enterprise

Center pursuant to the provisions of ganizations and carrying out any other
section 25 of the Food and Nutrition activities authorized by (7 U.S.C. 3121).
Act of 2008 (7 U.S.C. 2034). (111)–(112) [Reserved]
260
(113) Provide technical and edu- Agricultural Research, Extension, Edu-

cational assistance to conserve and en- cation, and Economics Advisory Board
hance private grazing land resources regarding the relevance to priorities of
(16 U.S.C. 2005b). the funding of all agricultural re-
(114) Provide technical assistance to search, extension, or education activi-
farmers and ranchers under the Envi- ties conducted or funded by the Depart-
ronmental Quality Incentives Program ment and the adequacy of funding,
(16 U.S.C. 3830 et seq.). when formulating each request for pro-
(115) Coordinate USDA policy and posals, and evaluating proposals, in-
conduct programs relative to the Fed- volving an agricultural research, ex-
eral Insecticide, Fungicide, and tension, or education activity funded,
Rodenticide Act, as amended (7 U.S.C. on a competitive basis, by the Depart-
136, et seq.) and coordinate the Depart- ment; and solicit and consider input
ment’s Integrated Pest Management from persons who conduct or use agri-
Programs and the Pesticide Assess- cultural research, extension, or edu-
ment Program (7 U.S.C. 136–136y). cation regarding the prior year’s re-
(116) [Reserved] quest for proposals for each activity
(117) Represent the Department in funded on a competitive basis (7 U.S.C.
international organizational activities 7613(c)).
and on international technical com- (123) Require a procedure to be estab-
mittees concerned with agricultural lished by each 1862, 1890, and 1994 Insti-
science, education, and development tution and Hispanic-serving agricul-
activities, including library and infor- tural college and university, for merit
mation science activities. review of each agricultural research
(118) [Reserved] and extension activity funded and re-
(119) Ensure that agricultural review of the activity in accordance with
search, extension, or education activi- the procedure (7 U.S.C. 7613(e)).
ties administered, on a competitive
(124)–(127) [Reserved]
basis, by the National Institute of Food
(128) Administer competitive grants
and Agriculture address a concern that
for integrated, multifunctional agricul-
is a priority and has national,
multistate, or regional significance (7 tural research, education, and exten-
U.S.C. 7611). sion activities (7 U.S.C. 7626).
(120) Solicit and consider input and (129) Operate and administer the
recommendations from persons who Food Animal Residue Avoidance Data-
conduct or use agricultural research, base through contracts, grants, or co-
extension, or education; ensure that operative agreements with appropriate
Federally supported and conducted ag- colleges or universities (7 U.S.C. 7642).
ricultural research, extension, and edu- (130) Develop a national program of
cation activities are accomplished in safe food handling education for adults
accord with identified management and young people to reduce the risk of
principles; and promulgate regulations food-borne illness (7 U.S.C. 7655).
concerning implementation of a proc- (131) Cooperate with other Federal
ess for obtaining stakeholder input at agencies (including the National
1862, 1890, and 1994 Institutions and His- Science Foundation) in issuing joint
panic-serving agricultural colleges and requests for proposals, awarding
universities (7 U.S.C. 7612(b), (c), and grants, and administering grants under
(d)). any competitive agricultural research,
(121) Establish procedures that pro- education, or extension grant program
vide for scientific peer review of each (7 U.S.C. 3319b).
agricultural research grant adminis- (132) Administer a program of com-
tered, on a competitive basis, and for petitive grants, establish education
merit review of each agricultural ex- teams, and establish an online clear-
tension or education grant adminis- inghouse of curricula and training ma-
tered, on a competitive basis, by the terials and programs, all for training,
National Institute of Food and Agri- education, outreach, and technical as-
culture (7 U.S.C. 7613(a)). sistance initiatives for the benefit of
(122) Consider the results of the an- beginning farmers and ranchers (7
nual review performed by the National U.S.C. 3319f).
261
(133) Administer agricultural re- (139) Oversee implementation of the

search, education, and extension ac- termination of Federal schedule A civil
tivities (including through competitive service appointments of State agricul-
grants), using any authority available tural extension employees at land-
to the Secretary, to reduce the vulner- grant colleges and universities (section
ability of the United States food and 7220 of Pub. L. 107–171).
agricultural system to chemical or bio- (140) Administer and direct a pro-
logical attack, to continue partner- gram of grants to the Food and Agri-
ships with institutions of higher edu- cultural Policy Research Institute (sec-
cation and other institutions to help tion 10805 of Pub. L. 107–171).
form stable, long-term programs to en-
(141) Formulate and carry out the
hance the biosecurity of the United
States, to make competitive grants to Veterinary Medicine Loan Repayment
universities and qualified research in- Act program authorized by the Na-
stitutions for research on tional Veterinary Medical Service Act
counterbioterrorism, and to counter or (7 U.S.C. 3151a).
otherwise respond to chemical or bio- (142) Administer grants to assist the
logical attack (7 U.S.C. 3351). land-grant university in the District of
(134) Administer a program of com- Columbia to acquire, alter, or repair fa-
petitive grants to colleges and univer- cilities or relevant equipment nec-
sities for expansion and security up- essary for conducting agricultural re-
grades to enhance the security of agri- search (7 U.S.C. 3222b–1).
culture against bioterrorism (7 U.S.C. (143) Administer grants to assist the
3352). land-grant institutions in insular areas
(135) Administer programs for dis- to acquire, alter, or repair facilities or
tance education grants and resident in- relevant equipment necessary for con-
struction grants to eligible institutions ducting agricultural research (7 U.S.C.
in insular areas that have demon- 3222b–2).
strable capacity to carry out teaching (144) Enter into agreements nec-
and extension programs in the food and
essary to administer an Hispanic-Serv-
agricultural sciences (7 U.S.C. 3361–
ing Agricultural Colleges and Univer-
3363).
(136) Administer a program of cooper- sities Fund; enter into agreements nec-
ative research (including through com- essary to administer a program of
petitive award of grants and coopera- making annual payments to Hispanic-
tive agreements to colleges and univer- serving agricultural colleges and uni-
sities) and extension projects on carbon versities; administer an institutional
cycling in soils and plants, the ex- capacity-building grants program for
change of other greenhouse gases from Hispanic-serving agricultural colleges
agriculture, and the carbon sequestra- and universities; administer a competi-
tion benefits of conservation practices tive grants program to fund funda-
(7 U.S.C. 6711). mental and applied research at His-
(137) Administer a program, in co- panic-serving agricultural colleges and
ordination with State veterinarians universities (7 U.S.C. 3243).
and other appropriate State animal (145) Administer the New Era Rural
health professionals, to conduct re- Technology Program to make grants
search, testing, and evaluation of pro- for technology development, applied
grams for the control and management research, and training to aid in the de-
of Johne’s disease in livestock (7 U.S.C. velopment of an agriculture-based re-
7629). newable energy workforce (7 U.S.C.
(138) Administer a program of grants 3319e).
to the Girl Scouts of the United States
(146) Administer a competitive grants
of America, the Boy Scouts of America,
program to assist NLGCA Institutions
the National 4-H Council, and the Na-
tional FFA Organization to establish in maintaining and expanding capacity
to conduct education, research, and
pilot projects to expand the programs

carried out by the organizations in outreach activities relating to agri-
rural areas and small towns (7 U.S.C. culture, renewable resources, and other
7630). similar disciplines (7 U.S.C. 3319i).
262
(147) Administer the Agricultural of teaching programs in agriculture,

Bioenergy Feedstock and Energy Effi- veterinary medicine, and disciplines
ciency Research and Extension Initia- closely allied to the food and agri-
tive to enhance the production of bio- culture system to increase the number
mass energy crops and the energy effi- of trained individuals with an expertise
ciency of agricultural operations (7 in agricultural biosecurity (7 U.S.C.
U.S.C. 5925e). 8922).
(148) Administer a competitive re- (159) Administer a program of pro-
search and extension grants program viding grants to Alaska Native serving
to improve the farm management institutions and Native Hawaiian serv-
knowledge and skills of agricultural ing institutions for the purpose of pro-
producers and establish and maintain a moting and strengthening the ability
national, publicly available farm finan- of those institutions to carry out edu-
cial management database to support cation, applied research, and related
improved farm management (7 U.S.C. community development programs (7
5925f). U.S.C. 3156).
(149) Administer the Specialty Crop (b) [Reserved]
Research Initiative (7 U.S.C. 7632).
(150) Administer a competitive re- FR 65595, Dec. 15, 1997; 65 FR 5417, Feb. 4,
search and education grants program 2000; 68 FR 27445, May 20, 2003; 72 FR 12701,
relating to antibiotics and antibiotic- Mar. 19, 2007; 74 FR 3409, Jan. 21, 2009;75 FR
resistant bacteria (7 U.S.C. 3202). 43381, July 23, 2010; 76 FR 4803, Jan. 27, 2011;
(151) Administer a competitive grants 76 FR 52852, Aug. 24, 2011]
program to establish and maintain a
Farm and Ranch Stress Assistance § 2.67 Administrator, Economic Re-
Network (7 U.S.C. 5936). search Service.
(152) Administer a competitive grants (a) Delegations. Pursuant to § 2.21
program relating to seed distribution (7 (a)(3), (a)(8) and (a)(9), subject to res-
U.S.C. 415–1). ervations in § 2.21(b)(2), the following
(153) Administer a Sun Grants Pro- delegations of authority are made by
gram (7 U.S.C. 8114). the Under Secretary for Research, Edu-
(154) Administer a competitive grants cation, and Economics to the Adminis-
program relating to agricultural and trator, Economic Research Service:
rural transportation research and edu- (1) Conduct economic research on
cation (7 U.S.C. 5938). matters of importance to cooperatives
(155) Administer a program of pro- as authorized by the Agricultural Mar-
viding competitive grants to Hispanic- keting Act of 1946 (7 U.S.C. 1621–1627).
serving institutions for the purpose of (2) Conduct economic and social
establishing an undergraduate scholar- science research and analyses relating
ship program to assist in the recruit- to:
ment, retention, and training of His- (i) Food and agriculture situation
panics and other under-represented and outlook;
groups in forestry and related fields (16 (ii) The production, marketing, and
U.S.C. 1649a). distribution of food and fiber products
(156) Administer the Biomass Re- (excluding forest and forest products),
search and Development Initiative (7 including studies of the performance of
U.S.C. 8108(e)); consult and coordinate, the food and agricultural sector of the
as appropriate, with the Under Sec- economy in meeting needs and wants of
retary for Rural Development and consumers;
other mission areas of the Department (iii) Basic and long-range, worldwide,
as deemed necessary in carrying out economic analyses and research on sup-
the authorities delegated herein. ply, demand, and trade in food and
(157) Administer a competitive grants fiber products and the effects on the
program to encourage basic and applied U.S. food and agriculture system, in-
research and the development of quali- cluding general economic analyses of
fied agricultural countermeasures (7 the international financial and mone-

U.S.C. 8921). tary aspects of agricultural affairs;
(158) Administer a competitive grants (iv) Natural resources, including
program to promote the development studies of the use and management of
263
land and water resources, the quality (v) Entering into agreements with
of these resources, resource institu- land-grant colleges and universities,
tions, and watershed and river basin other organizations, institutions, or in-
development problems; and dividuals with comparable goals, and
(v) Rural people and communities, as with the concurrence of the Office of
authorized by title II of the Agricul- International Cooperation and Devel-
tural Marketing Act of 1946, as amend- opment, USDA, international organiza-
ed (7 U.S.C. 1621–1627), and the Act of tions (limited to agreements either in-
June 29, 1935, as amended (7 U.S.C. 427). volving no exchange of funds or involv-
(3) Perform economic and other so- ing disbursements by the agency to the
cial science research under section cooperator), and then reporting these
104(b)(1) and (3) of the Agricultural agreements to the Under Secretary for
Trade Development and Assistance Act Research, Education, and Economics (7
of 1954, as amended, with funds admin- U.S.C. 3291(a)).
istered by the Foreign Agricultural (7) Prepare for transmittal by the
Service (7 U.S.C. 1704(b)(1), (3)). Secretary to the President and both
(4) Investigate and make findings as Houses of Congress, an analytical re-
to the effect upon the production of port under section 5 of the Agricultural
food and upon the agricultural econ- Foreign Investment Disclosure Act of
omy of any proposed action pending be- 1978 (7 U.S.C. 3504) concerning the ef-
fore the Administrator of the Environ- fect of holdings, acquisitions, and
mental Protection Agency for presen- transfers of U.S. agricultural land by
tation in the public interest, before foreign persons.
said Administrator, other agencies, or (8) Administer responsibilities and
before the courts. functions assigned under the Defense
(5) Review economic data and anal- Production Act of 1950, as amended (50
yses used in speeches by Department U.S.C. App. 2061 et seq.), and title VI of
personnel and in materials prepared for the Robert T. Stafford Disaster Relief
release through the press, radio and and Emergency Assistance Act (42
television. U.S.C. 5195 et seq.), concerning esti-
(6) Cooperate and work with national mates of supplies of agricultural com-
and international institutions and modities and evaluation of require-
other persons throughout the world in ments therefor; food and agricultural
the performance of agricultural re- aspects of economic stabilization and
search and extension activities to pro- economic research; and coordination of
mote and support the development of a energy programs.
viable and sustainable global agricul- (9) Enter into contracts, grants, or
tural system. Such work may be car- cooperative agreements to further re-
ried out by: search programs in the food and agri-
(i) Exchanging research materials cultural sciences (7 U.S.C. 3318).
and results with the institutions or (10) Enter into cost-reimbursable
persons; agreements relating to agricultural re-
(ii) Engaging in joint or coordinated search (7 U.S.C. 3319a).
research; (11) Represent the Department in
(iii) Entering into cooperative ar- international organizational activities
rangements with Departments and and on international technical com-
Ministries of Agriculture in other na- mittees concerned with agricultural
tions to conduct research, extension; science, education, and development
and education activities (limited to ar- activities, including library and infor-
rangements either involving no ex- mation science activities.
change of funds or involving disburse- (12) Facilitate access by research and
ments by the agency to the institu- extension professionals, farmers, and
tions of other nations), and then re- other interested persons in the United
porting these arrangements to the States to, and the use by those persons
Under Secretary for Research, Edu- of, organic research conducted outside
cation, and Economics; the United States (7 U.S.C. 5925d).

(iv) Stationing representatives at (13)–(14) [Reserved]
such institutions or organizations in (15) Solicit and consider input and
foreign countries; or recommendations from persons who
264
conduct or use agricultural research, § 2.68 Administrator, National Agricul-

extension, or education (7 U.S.C. tural Statistics Service.
7612(b)). (a) Delegations. Pursuant to § 2.21
(16) Consider the results of the an- (a)(3) and (a)(8), subject to reservations
nual review performed by the Agricul- in § 2.21(b)(2), the following delegations
tural Research, Extension, Education, of authority are made by the Under
and Economics Advisory Board regard- Secretary for Research, Education, and
ing the relevance to priorities of the Economics to the Administrator, Na-
funding of all agricultural research, ex- tional Agricultural Statistics Service:
tension, or education activities con- (1) Prepare crop and livestock esti-
ducted or funded by the Department mates and administer reporting pro-
and the adequacy of funding, when for- grams, including estimates of produc-
mulating each request for proposals, tion, supply, price, and other aspects of
and evaluating proposals, involving an the U.S. agricultural economy, collec-
agricultural research, extension, or tion of statistics, conduct of enumera-
education activity funded, on a com- tive and objective measurement sur-
petitive basis, by the Department; and veys, construction and maintenance of
solicit and consider input from persons sampling frames, and related activi-
who conduct or use agricultural re- ties. Prepare reports of the Agricul-
search, extension, or education regard- tural Statistics Board of the Depart-
ing the prior year’s request for pro- ment of Agriculture covering official
posals for each activity funded on a state and national estimates (7 U.S.C.
competitive basis (7 U.S.C. 7613(c)). 476, 951, and 2204).
(17) Establish procedures that ensure (2) Take such security precautions as
scientific peer review of all research are necessary to prevent disclosure of
activities conducted by the Economic crop or livestock report information
Research Service (7 U.S.C. 7613(d)). prior to the scheduled issuance time
(18) Include in each issuance of pro- approved in advance by the Secretary
jections of net farm income an esti- of Agriculture and take such actions as
mate of the net farm income earned by are necessary to avoid disclosure of
commercial producers in the United confidential data or information sup-
States that will in addition show the plied by any person, firm, partnership,
estimate of net farm income attrib- corporation, or association (18 U.S.C.
utable to commercial producers of live- 1902, 1905, and 2072).
stock, loan commodities, and agricul- (3) Improve statistics in the Depart-
tural commodities other than loan ment; maintain liaison with OMB and
commodities (7 U.S.C. 7998). other Federal agencies for coordination
of statistical methods and techniques.
(19) Conduct surveys and analysis and
(4) Administer responsibilities and
publish reports relating to organic pro-
functions assigned under the Defense
duction, handling, distribution, retail,
Production Act of 1950, as amended (50
and trend studies (including consumer
U.S.C. App. 2061 et seq.), and title VI of
purchasing patterns) (7 U.S.C. 5925c).
the Robert T. Stafford Disaster Relief
(20) Ensure that studies carried out and Emergency Assistance Act (42
by the Economic Research Service doc- U.S.C. 5195 et seq.), concerning coordi-
ument the number, location, and eco- nation of damage assessment; and food
nomic contributions of socially dis- and agricultural aspects of agricultural
advantaged farmers or ranchers in ag- statistics.
ricultural production (7 U.S.C. 2279(h)). (5) Enter into contracts, grants, or
(b) Reservation. The following author- cooperative agreements to further re-
ity is reserved to the Under Secretary search and statistical reporting pro-
for Research, Education, and Econom- grams in the food and agricultural
ics: Review all proposed decisions hav- sciences (7 U.S.C. 3318).
ing substantial economic policy impli- (6) Enter cost-reimbursable agree-
cations. ments relating to agricultural research
[60 FR 56393, Nov. 8, 1995, as amended at 62 and statistical reporting (7 U.S.C.

FR 65596, Dec. 15, 1997; 64 FR 40736, July 28, 3319a).
1999; 65 FR 5418, Feb. 4, 2000; 68 FR 27446, May (7) Cooperate and work with national
20, 2003; 74 FR 3410, Jan. 21, 2009] and international institutions and
265
other persons throughout the world in duced agricultural products (7 U.S.C.

the performance of agricultural re- 5925c).
search and extension activities to pro- (11) Assist the Administrator, Agri-
mote and support the development of a cultural Marketing Service with re-
viable and sustainable global agricul- spect to Dairy Product Mandatory Re-
tural system. Such work may be car- porting (7 U.S.C. 1637–1637b).
ried out by: (b) Reservation. The following author-
(i) Exchanging research materials ity is reserved to the Under Secretary
and results with the institutions or for Research, Education, and Econom-
persons; ics: Review all proposed decisions hav-
(ii) Engaging in joint or coordinated ing substantial economic policy impli-
research; cations.
(iii) Entering into cooperative ar-
rangements with Departments and [60 FR 56393, Nov. 8, 1995, as amended at 62
FR 65596, Dec. 15, 1997; 65 FR 5418, Feb. 4,
Ministries of Agriculture in other na-
2000; 68 FR 27446, May 20, 2003; 74 FR 3410,
tions to conduct research, extension, Jan. 21, 2009]
and education activities (limited to ar-
rangements either involving no ex- § 2.69 Director, Office of the Chief Sci-
change of funds or involving disburse- entist.
ments by the agency to the institu-
(a) Delegations. Pursuant to
tions of other nations), and then re-
§ 2.21(a)(11) and (a)(12), the following
porting these arrangements to the
delegations of authority are made by
Under Secretary for Research, Edu-
the Under Secretary for Research, Edu-
cation, and Economics;
cation, and Economics to the Director,
(iv) Stationing representatives at
Office of the Chief Scientist.
such institutions or organizations in
foreign countries; or (1) Provide to the Under Secretary
(v) entering into agreements with (Chief Scientist of the Department) in-
land-grant colleges and universities, formation on topics that can benefit
other organizations, institutions, or in- from scientific input to ensure in-
dividuals with comparable goals, and, formed decision-making at the highest
with the concurrence of the Foreign levels of Government.
Agricultural Service, international or- (2) Assist the Chief Scientist with fa-
ganizations (limited to agreements ei- cilitating the coordination and collabo-
ther involving no exchange of funds or ration within the Department on high
involving disbursements by the agency priority science issues that will benefit
to the cooperator), and then reporting from intra-Departmental collabora-
these agreements to the Under Sec- tion, including coordinating the assess-
retary for Research, Education, and ment of the relevance, quality, per-
Economics (7 U.S.C. 3291(a)). formance, and impact of the Depart-
(8) Represent the Department in ment’s efforts in science.
international organizational activities (3) Assist the Chief Scientist with
and on international technical com- building partnerships within the sci-
mittees concerned with agricultural entific community and with the Chief
science, education, and development Scientist’s role as point of contact for
activities, including library and infor- interactions with other agencies of
mation science activities. science, universities, and other exter-
(9) Take a census of agriculture in nal members of the scientific commu-
1998 and every fifth year thereafter nity for the purpose of leveraging and
pursuant to the Census of Agriculture promoting relationships to explore
Act of 1997, Public Law 105–113 (7 U.S.C. common scientific interests and shared
2204g); ensure that the census of agri- goals.
culture documents the number, loca- (4) Assist the Chief Scientist with de-
tion, and economic contributions of so- veloping mechanisms to address sci-
cially disadvantaged farmers or ranch- entific integrity within the Depart-
ment.
ers in agricultural production (7 U.S.C.

2279(h)). (5) [Reserved]
(10) Develop surveys and report sta- (6) Assist the Chief Scientist in car-
tistical analysis on organically pro- rying out sections 251(c)(2) and 251(d)(2)
266
of the Department of Agriculture Reor- (2) Provide direction to Department

ganization Act of 1994 (7 U.S.C. agencies in the appropriate methods of
6971(c)(2), (d)(2)) by exercising the du- risk assessment and cost-benefit anal-
ties set forth in section 25 l(e)(3)(E) of yses and coordinate and review all risk
that Act (7 U.S.C. 6971(e)(3)(E)) through assessments and cost-benefit analyses
a series of divisions organized by the prepared by any agency of the Depart-
following focus areas: ment.
(i) Renewable energy, natural re- (3) Enter into contracts, grants, or
sources, and environment; cooperative agreements to further re-
(ii) Food safety, nutrition, and search programs in the food and agri-
health; culture sciences (7 U.S.C. 3318).
(iii) Plant health and production and (b) Reservation. The following author-
plant products; ity is reserved to the Chief Economist:
(iv) Animal health and production Review all proposed decisions having
and animal products; substantial economic policy implica-
(v) Agricultural systems and tech- tions.
nology; and [60 FR 56393, Nov. 8, 1995, as amended at 63
(vi) Agricultural economics and rural FR 66979, Dec. 4, 1998]
communities.
(b) The divisions will be headed by § 2.72 Chairman, World Agricultural
Division Chiefs/Senior Advisors (or a Outlook Board.
similar title), and will be known collec- (a) Delegations. Pursuant to § 2.29
tively as the Research, Education, and (a)(3) through (a)(7), the following dele-
Extension Office. gations of authority are made by the
[76 FR 10756, Feb. 28, 2011]
Chief Economist to the Chairman,
World Agricultural Outlook Board:
(1) Related to food and agriculture out-
Subpart L—Delegations of look and situation. (i) Coordinate and
Authority by the Chief Economist review all crop and commodity data
used to develop outlook and situation
§ 2.70 Deputy Chief Economist. material within the Department.
Pursuant to § 2.29, the following dele- (ii) Oversee and clear for consistency
gation of authority is made by the analytical assumptions and results of
Chief Economist to the Deputy Chief all estimates and analyses which sig-
Economist, to be exercised only during nificantly relate to international and
the absence or unavailability of the domestic commodity supply and de-
Chief Economist: Perform all the du- mand, including such estimates and
ties and exercise all the powers which analyses prepared for public distribu-
are now or which may hereafter be del- tion by the Foreign Agricultural Serv-
egated to the Chief Economist. ice, the Economic Research Service, or
by any other agency or office of the De-
§ 2.71 Director, Office of Risk Assess- partment.
ment and Cost-Benefit Analysis. (2) Related to weather and climate. (i)
(a) Delegations. Pursuant to Advise the Secretary on climate and
§ 2.29(a)(2), the following delegations of weather activities, and coordinate the
authority are by the Chief Economist development of policy options on
to the Director, Office of Risk Assess- weather and climate.
ment and Cost-Benefit Analysis: (ii) Coordinate all weather and cli-
(1) Responsible for assessing the risks mate information and monitoring ac-
to human health, human safety, or the tivities within the Department and
environment, and for preparing cost- provide a focal point in the Depart-
benefit analyses, with respect to pro- ment for weather and climate informa-
posed major regulations, and for pub- tion and impact assessment.
lishing such assessments and analyses (iii) Arrange for appropriate rep-
in the FEDERAL REGISTER as required resentation to attend all meetings,

by section 304 of the Department of Ag- hearings, and task forces held outside
riculture Reorganization Act of 1994 (7 the Department which require such
U.S.C. 2204e) representation.
267
(iv) Designate the Executive Sec- velopment of a set of analytical as-

retary of the USDA Weather and Cli- sumptions and long-range agricultural-
mate Program Coordinating Com- sector projections (2 years and beyond)
mittee. based on commodity projections con-
(3) Related to interagency commodity sistent with these assumptions and co-
estimates committees. (i) Establish Inter- ordinated through the Interagency
agency Commodity Estimates Commit- Commodity Estimates Committees.
tees for Commodity Credit Corporation (b) Reservation. The following author-
price-supported commodities, for major ity is reserved to the Chief Economist:
products thereof, and for commodities Review all proposed decisions having
where a need for such a committee has substantial economic policy implica-
been identified, in order to bring to- tions.
gether estimates and supporting anal-
yses from participating agencies, and § 2.73 Director, Office of Energy Policy
to develop official estimates of supply, and New Uses.
utilization, and prices for commodities, (a) Delegations. Pursuant to
including the effects of new program § 2.29(a)(11), the following delegations
proposals on acreage, yield, production, of authority are made by the Chief
imports, domestic utilization, price, in- Economist to the Director, Office of
come, support programs, carryover, ex- Energy Policy and New Uses:
ports, and availabilities for export. (1) Providing Department leadership
(ii) Designate the Chairman, who in:
shall also act as Secretary, for all (i) Analyzing and evaluating existing
Interagency Commodity Estimates and proposed energy policies and strat-
Committees. egies, including those regarding the al-
(iii) Assure that all committee mem- location of scarce resources;
bers have the basic assumptions, back- (ii) Developing energy policies and
ground data and other relevant data re- strategies, including those regarding
garding the overall economy and mar- the allocation of scarce resources;
ket prospects for specific commodities. (iii) Reviewing and evaluating De-
(iv) Review for consistency of analyt- partmental energy and energy-related
ical assumptions and results all pro- programs and program progress;
posed decisions made by Commodity (iv) Developing agricultural and
Estimates Committees prior to any re- rural components of national energy
lease outside the Department. policy plans;
(4) Related to remote sensing. (i) Pro- (v) Preparing reports on energy and
vide technical assistance, coordination, energy-related policies and programs
and guidance to Department agencies required under Act of Congress and Ex-
in planning, developing, and carrying ecutive Orders, including those involv-
out satellite remote sensing activities ing testimony and reports on legisla-
to assure full consideration and evalua- tive proposals.
tion of advanced technology. (2) Providing Departmental oversight
(ii) Coordinate administrative, man- and coordination with respect to re-
agement, and budget information relat- sources available for energy and en-
ing to the Department’s remote sens- ergy-related activities, including funds
ing activities including: transferred to USDA from departments
(A) Inter- and intra-agency meetings, and agencies of the Federal govern-
correspondence, and records; ment pursuant to interagency agree-
(B) Budget and management tracking ments.
systems; and (3) Representing the Chief Economist
(C) Inter-agency contacts and tech- at conferences, meetings, and other
nology transfer. contacts where energy matters are dis-
(iii) Designate the Executive Sec- cussed, including liaison with the De-
retary for the Remote Sensing Coordi- partment of Energy, the Environ-
nation Committee. mental Protection Agency, and other
(5) Related to long-range commodity governmental departments and agen-

and agricultural-sector projections. Es- cies.
tablish committees of the agencies of (4) Providing the Chief Economist
the Department to coordinate the de- with such assistance as requested to
268
perform the duties delegated to the Di- latory Programs to the Deputy Under
rector concerning energy and new uses. Secretary for Marketing and Regu-
(5) Working with the Office of the As- latory Programs, to be exercised only
sistant Secretary for Congressional Re- during the absence or unavailability of
lations to maintain Congressional and the Under Secretary: Perform all the
public contacts in energy matters, in- duties and exercise all the powers
cluding development of legislative pro- which are now or which may hereafter
posals, preparation of reports on legis- be delegated to the Under Secretary for
lation pending in congress, appearances Marketing and Regulatory Programs:
before Congressional committees, and Provided, that this authority shall be
related activities. exercised by the respective Deputy
(6) These delegations exclude the en- Under Secretary in the order in which
ergy management actions related to he or she has taken office as a Deputy
the internal operations of the Depart- Under Secretary.
ment as delegated to the Assistant Sec- [75 FR 79950, Dec. 21, 2010]
retary for Administration.
(7) Conduct a program on the eco- § 2.79 Administrator, Agricultural Mar-
nomic feasibility of new uses of agri- keting Service.
cultural products. Assist agricultural (a) Delegations. Pursuant to
researchers by evaluating the economic § 2.22(a)(1), (a)(5) and (a)(8), subject to
and market potential of new agricul- reservations in § 2.22(b)(1), the fol-
tural products in the initial phase of lowing delegations of authority are
development and contributing to made by the Under Secretary for Mar-
prioritization of the Departmental re- keting and Regulatory Programs to the
search agenda. Administrator, Agricultural Marketing
(8) Administer a competitive bio- Service:
diesel fuel education grants program (7 (1) Exercise the functions of the Sec-
U.S.C. 8106). retary of Agriculture contained in the
(9) Implement a memorandum of un- Agricultural Marketing Act of 1946, as
derstanding with the Secretary of En- amended (7 U.S.C. 1621–1627), including
ergy regarding cooperation in the ap- payments to State departments of agri-
plication of hydrogen and fuel cell culture in connection with cooperative
technology programs for rural commu- marketing service projects under sec-
nities and agricultural producers. tion 204(b) (7 U.S.C. 1623(b)), but except-
(10) Conduct a study on biofuels ining matters otherwise assigned.
frastructure under section 9002 of the (2) Conduct marketing efficiency re-
Food, Conservation, and Energy Act of search and development activities di-
2008 (Pub. L. 110–246). rectly applicable to the conduct of the
(b) [Reserved] Wholesale Market Development Pro-
[64 FR 40736, July 28, 1999, as amended at 68 gram, specifically:
FR 27446, May 20, 2003; 74 3410, Jan. 21, 2009] (i) Studies of facilities and methods
used in physical distribution of food
and other farm products;
Subpart M [Reserved] (ii) Studies designed to improve han-
dling of all agricultural products as
Subpart N—Delegations of Author- they are moved from farms to con-
ity by the Under Secretary for sumers; and
Marketing and Regulatory (iii) application of presently avail-
Programs able scientific knowledge to the solu-
tion of practical problems encountered
§ 2.77 Deputy Under Secretary for in the marketing of agricultural prod-
Marketing and Regulatory Pro- ucts (7 U.S.C. 1621–1627).
grams. (3) Exercise the functions of the Sec-
Pursuant to § 2.22(a), subject to res- retary of Agriculture relating to the
ervations in § 2.22(b), and subject to transportation activities contained in
policy guidance and direction by the section 203(j) of the Agricultural Mar-
Under Secretary, the following delega- keting Act of 1946 (7 U.S.C. 1622(j)) as
tion of authority is made by the Under amended, but excepting matters other-
Secretary for Marketing and Regu- wise assigned.
269
(4) Administer transportation activi- (xviii)–(xxi) [Reserved]

ties under section 201 of the Agricul- (xxii) Section 401(a) of the Organic
tural Adjustment Act of 1938 (7 U.S.C. Act of 1944 (7 U.S.C. 415e);
1291). (xxiii) Agricultural Fair Practices
(5) Apply results of economic re- Act (7 U.S.C. 2301–2306);
search and operations analysis to (xxiv) Wheat Research and Pro-
evaluate transportation issues and to motion Act (7 U.S.C. 1292 note), except
recommend revisions of current proce- as specified in § 2.43(a)(24);
dures. (xxv) Plant Variety Protection Act (7
(6) Serve as the focal point for all De- U.S.C. 2321–2331, 2351–2357, 2371- 2372,
partment transportation matters in- 2401–2404, 2421–2427, 2441–2443, 2461–2463,
cluding development of policies and 2481–2486, 2501–2504, 2531–2532, 2541–2545,
strategies. 2561–2569, 2581–2583), except as delegated
(7) Cooperate with other Depart- to the Judicial Officer;
mental agencies in the development (xxvi) Subtitle B of title I and section
and recommendation of policies and 301(4) of the Dairy and Tobacco Adjust-
programs for inland transportation of ment Act of 1983 (7 U.S.C. 4501–4513,
USDA and CCC-owned commodities in 4514(4)), except as specified in
connection with USDA programs. § 2.43(a)(24);
(8) Exercise the functions of the Sec-
(xxvii) Potato Research and Pro-
retary of Agriculture contained in the
motion Act (7 U.S.C. 2611–2627), except
following legislation:
as specified in § 2.43(a)(24);
(i) U.S. Cotton Standards Act (7
(xxviii)–(xxx) [Reserved]
U.S.C. 51–65);
(ii) Cotton futures provisions of the (xxxi) Egg Research and Consumer
Internal Revenue Code of 1954 (26 Information Act (7 U.S.C. 2701–2718), ex-
U.S.C. 4854, 4862–4865, 4876, and 7263); cept as delegated in § 2.43(a)(24);
(iii) Cotton Statistics and Estimates (xxxii) Beef Research and Informa-
Act, as amended (7 U.S.C. 471–476), ex- tion Act, as amended, (7 U.S.C. 2901–
cept as otherwise assigned; 2918), except as delegated in
(iv) [Reserved] §§ 2.42(a)(29) and 2.43(a)(24);
(v) Naval Stores Act (7 U.S.C. 91–99); (xxxiii) Wheat and Wheat Foods Re-
(vi) Tobacco Inspection Act (7 U.S.C. search and Nutrition Education Act (7
511–511q); U.S.C. 3401–3417), except as delegated in
(vii) Wool Standards Act (7 U.S.C. § 2.43(a)(24);
415–415d); (xxxiv) Egg Products Inspection Act
(viii) Agricultural Marketing Agree- relating to the shell egg surveillance
ment Act of 1937, as amended (7 U.S.C. program, voluntary laboratory anal-
601, 602, 608a-608e, 610, 612, 614, 624, 671– yses of egg products, and the voluntary
674); egg grading program (21 U.S.C. 1031–
(ix) Cotton Research and Promotion 1056);
Act (7 U.S.C. 2101–2118), except as speci- (xxxv) Section 32 of the Act of Au-
fied in § 2.43(a)(24); gust 24, 1935 (7 U.S.C. 612c), as supple-
(x) Export Apple and Pear Act (7 mented by the Act of June 28, 1937 (15
U.S.C. 581–590); U.S.C. 713c), and related legislation, ex-
(xi) Export Grape and Plum Act (7 cept functions which are otherwise as-
U.S.C. 591–599); signed relating to the domestic dis-
(xii) Titles I, II, IV, and V of the Fed- tribution and donation of agricultural
eral Seed Act, as amended (7 U.S.C. commodities and products thereof fol-
1551–1575, 1591–1611); lowing the procurement thereof;
(xiii) Perishable Agricultural Com- (xxxvi) Procurement of agricultural
modities Act (7 U.S.C. 499a-499s); commodities and other foods under sec-
(xiv) Produce Agency Act (7 U.S.C. tion 6 of the National School Lunch
491–497); Act of 1946, as amended (42 U.S.C. 1755);
(xv) Tobacco Seed and Plant Expor- (xxxvii) In carrying out the procure-
tation Act (7 U.S.C. 516–517); ment functions in paragraphs

(xvi) [Reserved] (a)(8)(xxxv) and (xxxvi) of this section,
(xvii) Tobacco Statistics Act (7 the Administrator, Agricultural Mar-
U.S.C. 501–508); keting Service shall, to the extent
270
practicable, use the commodity pro- (lii) Consistency with International

curement, handling, payment and re- Obligations of the United States (7
lated services of the Farm Service U.S.C. 2278);
Agency; (liii) Organic Foods Production Act
(xxxviii) Act of May 23, 1908, regard- of 1990 (7 U.S.C. 6501–6522) provided that
ing inspection of dairy products for ex- the Administrator, Agricultural Mar-
port (21 U.S.C. 693); keting Service, will enter into agree-
(xxxix) The Pork Promotion, Re- ments, as necessary, with the Adminis-
search, and Consumer Information Act trator, Food Safety and Inspection
of 1985 (7 U.S.C. 4801–4819), except as Service, to provide inspection services;
specified in § 2.43(a)(24); (liv) Pesticide Recordkeeping (7
(xl) The Watermelon Research and U.S.C. 136i–l) with the provision that
the Administrator, Agricultural Mar-
Consumer Information Act (7 U.S.C.
keting Service, will enter into agree-
4901–4616), except as specified in
ments, as necessary, with other Fed-
§ 2.43(a)(24);
eral agencies;
(xli) The Honey Research, Pro- (lv) The International Carriage of
motion, and Consumer Information Act Perishable Foodstuffs Act (7 U.S.C.
(7 U.S.C. 4601–4612), except as specified 4401–4406);
in § 2.43(a)(24); (lvi) The Sheep Promotion, Research,
(xlii) Subtitles B and C of the Dairy and Information Act (7 U.S.C. 7101–
Production Stabilization Act of 1983, as 7111), except as specified in § 2.43(a)(24);
amended (7 U.S.C. 4501–4513, 4531–4538); and
(xliii) The Floral Research and Con- (lvii) The Fresh Cut Flowers and
sumer Information Act (7 U.S.C. 4301– Fresh Cut Greens Promotion and Con-
4319), except as specified in § 2.43(a)(24); sumer Information Act (7 U.S.C. 6801–
(xliv) Section 213 of the Tobacco Ad- 6814), except as specified in § 2.43(a)(24).
justment Act of 1983, as amended (7 (lviii) Commodity Promotion and
U.S.C. 511r); Evaluation (7 U.S.C. 7401);
(xlv) National Laboratory Accredita- (lix) Commodity Promotion, Re-
tion Program (7 U.S.C. 138–138i) with search, and Information Act of 1996 (7
respect to laboratories accredited for U.S.C. 7411–7425), except as specified in
pesticide residue analysis in fruits and § 2.43(a)(24);
vegetables and other agricultural com- (lx) The Canola and Rapeseed Re-
modities, except those laboratories search, Promotion, and Consumer In-
analyzing only meat and poultry prod- formation Act (7 U.S.C. 7441–7452), ex-
ucts; cept as specified in § 2.43(a)(24);
(xlvi) Pecan Promotion and Research (lxi) The National Kiwifruit Re-
Act of 1990 (7 U.S.C. 6001–6013), except search, Promotion, and Consumer In-
as specified in § 2.43(a)(24); formation Act (7 U.S.C. 7461–7473), ex-
cept as specified in § 2.43(a)(24); and
(xlvii) Mushroom Promotion, Re-
(lxii) The Popcorn Promotion, Re-
search, and Consumer Information Act
of 1990 (7 U.S.C. 6101–6112), except as
(7 U.S.C. 7481–7491), except as specified
specified in § 2.43(a)(24);
in § 2.43(a)(24).
(xlviii) Lime Research, Promotion, (lxiii) Farmers’ Market Promotion
and Consumer Information Act of 1990 Program (7 U.S.C. 2005).
(7 U.S.C. 6201–6212), except as specified (lxiv) National Organic Certification
in § 2.43(a)(24); Cost-Share Program (7 U.S.C. 6523).
(xlix) Soybean Promotion, Research, (lxv) Exemption of Certified Organic
and Consumer Information Act (7 Products from Assessment (7 U.S.C.
U.S.C. 6301–6311), except as specified in 7401).
§ 2.43(a)(24); (lxvi) Country of Origin Labeling (7
(l) Fluid Milk Promotion Act of 1990 U.S.C. 1638–1638(d)).
(7 U.S.C. 6401–6417), except as specified (lxvii) Hass Avocado Promotion, Re-
in § 2.43(a)(24);

(li) Producer Research and Pro- of 2000 (7 U.S.C. 7801–7813).
motion Board Accountability (104 Stat. (lxviii) Section 7407 of the Farm Se-
3927); curity and Rural Investment Act of
271
2002 (7 U.S.C. 5925c), with respect to the (ii) Sections 104(e)–(h) of the Act (42
collection and distribution of com- U.S.C. 9604(e)–(h)), with respect to in-
prehensive reporting of prices relating formation gathering and access re-
to organically produced agricultural quests and orders; compliance with
products. Federal health and safety standards
(lxix) Livestock Mandatory Report- and wage and labor standards applica-
ing (7 U.S.C. 1635–1636i). ble to covered work; and emergency
(lxx) Section 375 of the Consolidated procurement powers;
Farm and Rural Development Act (7 (iii) Section 104(i)(11) of the Act (42
U.S.C. 2008j). U.S.C. 9604(i)(11)), with respect to the
(lxxi) Section 101 of the Specialty reduction of exposure to significant
Crops Competitiveness Act of 2004 (7 risk to human health;
U.S.C. 1621 note). (iv) Section 104(j) of the Act (42
(lxxii) Section 1502 of the Food, Con- U.S.C. 9604(j)), with respect to the ac-
servation, and Energy Act of 2008 (7 quisition of real property and interests
U.S.C. 8772). in real property required to conduct a
remedial action;
(lxxiii) Section 1509 of the Food, Con-
(v) The first two sentences of section
servation, and Energy Act of 2008 (Pub.
105(d) of the Act (42 U.S.C. 9605(d)),
L. 110–246).
with respect to petitions for prelimi-
(lxxiv) Section 10105 of the Food,
nary assessment of a release or threat-
Conservation, and Energy Act of 2008 (7
ened release;
U.S.C. 7655a).
(vi) Section 105(f) of the Act (42
(lxxv) Section 10107 of the Food, Con- U.S.C. 9605(f)), with respect to consider-
servation, and Energy Act of 2008 (7 ation of the availability of qualified
U.S.C. 1622b). minority firms in awarding contracts,
(lxxvi) Section 10403 of the Food, but excluding that portion of section
Conservation, and Energy Act of 2008 (7 105(f) pertaining to the annual report
U.S.C. 1622c). to Congress;
(9) Furnish, on request, copies of pro- (vii) Section 109 of the Act (42 U.S.C.
grams, pamphlets, reports, or other 9609), with respect to the assessment of
publications for missions or programs civil penalties for violations of section
as may otherwise be delegated or as- 122 of the Act (42 U.S.C. 9622), and the
signed to the Administrator, Agricul- granting of awards to individuals pro-
tural Marketing Service and charge viding information;
user fees therefore, as authorized by (viii) Section 111(f) of the Act (42
section 1121 of the Agriculture and U.S.C. 9611(f)), with respect to the des-
Food Act of 1981, as amended by sec- ignation of officials who may obligate
tion 1769 of the Food Security Act of money in the Hazardous Substances
1985, 7 U.S.C. 2242a. Superfund;
(10) Collect, summarize, and publish (ix) Section 113(k) of the Act (42
data on the production, distribution, U.S.C. 9613(k)), with respect to estab-
and stocks of sugar. lishing an administrative record upon
(11) With respect to land and facili- which to base the selection of a re-
ties under his or her authority, exer- sponse action and identifying and noti-
cise the functions delegated to the Sec- fying potentially responsible parties;
retary by Executive Order 12580, 3 CFR, (x) Section 116(a) of the Act (42 U.S.C.
1987 Comp., p. 193, under the following 9616(a)), with respect to preliminary as-
as amended: (42 U.S.C. 9617 (a) and (c)), with respect
272
(xii) Section 119 of the Act (42 U.S.C. (14) Assist the Administrator of the
9119), with respect to indemnifying re- Foreign Agricultural Service with im-
sponse action contractors; plementing section 3205 of the Food,
(xiii) Section 121 of the Act (42 U.S.C. Conservation, and Energy Act of 2008
9621), with respect to cleanup stand- (22 U.S.C. 7112 note) regarding the Con-
ards; and sultative Group to Eliminate the Use
(xiv) Section 122 of the Act (42 U.S.C. of Child Labor and Forced Labor in Im-
9622), with respect to settlements, but ported Agricultural Products.
excluding section 122(b)(1) of the Act (b) [Reserved]
(42 U.S.C. 9622(b)(1)), related to mixed [60 FR 56393, Nov. 8, 1995, as amended at 61
funding agreements. FR 25776, May 23, 1996; 62 FR 37485, July 14,
(12) With respect to facilities and ac- 1997; 62 FR 40255, July 28, 1997; 68 FR 27446,
tivities under his or her authority, to May 20, 2003; 74 FR 3411, Jan. 21, 2009]
of Agriculture pursuant to section 1– § 2.80 Administrator, Animal and Plant
102 related to compliance with applica- Health Inspection Service.
ble pollution control standards and sec- (a) Delegations. Pursuant to § 2.22(a)(2)
tion 1–601 of Executive Order 12088, 3 and (a)(6) through (a)(9), and subject to
CFR, 1978 Comp., p. 243, to enter into reservations in § 2.22(b)(2), the fol-
an inter-agency agreement with the lowing delegations of authority are
United States Environmental Protec- made by the Under Secretary for Mar-
tion Agency, or an administrative con- keting and Regulatory Programs to the
sent order or a consent judgment in an Administrator, Animal and Plant
appropriate State, interstate, or local Health Inspection Service: Exercise
agency, containing a plan and schedule functions of the Secretary of Agri-
to achieve and maintain compliance culture under the following authori-
with applicable pollution control ties:
standards established pursuant to the (1) Administer the Foreign Service
following: personnel system for employees of the
(i) Solid Waste Disposal Act, as Animal and Plant Health Inspection
amended by the Resource Conservation Service in accordance with 22 U.S.C.
and Recovery Act, as further amended 3922, except that this delegation does
by the Hazardous and Solid Waste not include the authority to approve
Amendments, and the Federal Facility joint regulations issued by the Depart-
Compliance Act (42 U.S.C. 6901 et seq.); ment of State relating to administra-
(ii) Federal Water Pollution Preven- tion of the Foreign Service, nor an au-
tion and Control Act, as amended (33 thority to represent the Department of
U.S.C. 1251 et seq.); Agriculture in interagency consulta-
(iii) Safe Drinking Water Act, as tions and negotiations with the other
amended (42 U.S.C. 300f et seq.); foreign affairs agencies with respect to
(iv) Clean Air Act, as amended (42 joint regulations.
U.S.C. 7401 et seq.); (2) The Terminal Inspection Act, as
(v) Noise Control Act of 1972, as amended (7 U.S.C. 166).
amended (42 U.S.C. 4901 et seq.); (3) The Honeybee Act, as amended (7
(vi) Toxic Substances Control Act, as U.S.C. 281–286).
amended (15 U.S.C. 2601 et seq.); (4) Section 18 of the Federal Meat In-
(vii) Federal Insecticide, Fungicide, spection Act, as amended, as it per-
and Rodenticide Act, as amended (7 tains to the issuance of certificates of
U.S.C. 136 et seq.); and condition of live animals intended and
(viii) Comprehensive Environmental offered for export (21 U.S.C. 618).
Response, Compensation, and Liability (5) The responsibilities of the United
Act of 1980, as amended by the Super- States under the International Plant
fund Amendments and Reauthorization Protection Convention.
Act of 1986 (42 U.S.C. 9601 et seq.). (6) (Laboratory) Animal Welfare Act,
(13) Administer a program for Dairy as amended (7 U.S.C. 2131–2159).
Product Mandatory Reporting (7 U.S.C. (7) Horse Protection Act (15 U.S.C.
1637–1637b), with the assistance of the 1821–1831).
Administrator, National Agricultural (8) 28 Hour Law, as amended (49
Statistics Service. U.S.C. 80502).
273
(9) Export Animal Accommodation employees covered by the Act of Au-

Act, as amended (46 U.S.C. 3901–3902). gust 28, 1950 (7 U.S.C. 2260).
(10) Purebred animal duty-free-entry (24) Provide management support
provision of Tariff Act of June 17, 1930, services for the Grain Inspection,
as amended (19 U.S.C. 1202, part 1, Item Packers and Stockyards Administra-
100.01). tion, and the Agricultural Marketing
(11) Virus-Serum-Toxin Act (21 U.S.C. Service as agreed upon by the agencies
151–159). with authority to take actions required
(12) Conduct diagnostic and related by law or regulation. As used herein,
activities necessary to prevent, detect, the term management support services
control or eradicate foot-and-mouth includes budget, finance, personnel,
disease and other foreign animal dis- procurement, property management,
eases (21 U.S.C. 113a). communications, paperwork manage-
(13) The Agricultural Marketing Act ment, and related administrative serv-
of 1946, section 203, 205, as amended (7 ices.
U.S.C. 1622, 1624), with respect to vol- (25) Coordinate the development and
untary inspection and certification of carrying out by Department agencies
animal products; inspection, testing, of all matters and functions pertaining
treatment, and certification of ani- to the Department’s regulation of bio-
mals; and a program to investigate and technology, and act as liaison on all
develop solutions to the problems re-
matters and functions pertaining to
sulting from the use of sulfonamides in
the regulation of biotechnology be-
swine.
tween agencies within the Department
(14) Talmadge-Aiken Act (7 U.S.C.
and between the Department and other
450) with respect to cooperation with
governmental and private organiza-
States in control and eradication of
plant and animal diseases and pests. tions.
(15) Defense Production Act of 1950, (26) The Act of March 2, 1931 (7 U.S.C.
as amended (50 U.S.C. App. 2061 et seq.), 426–426b).
and title VI of the Robert T. Stafford (27) The Act of December 22, 1987 (7
Disaster Relief and Emergency Assist- U.S.C. 426c).
ance Act (42 U.S.C. 5195 et seq.), relat- (28) Authority to work with devel-
ing to protection of livestock, poultry oped and transitional countries on ag-
and crops and products thereof from bi- ricultural and related research and ex-
ological and chemical warfare; and uti- tension, with respect to animal and
lization or disposal of livestock and plant health, including providing tech-
poultry exposed to radiation. nical assistance, training, and advice
(16) The Federal Noxious Weed Act of to persons from such countries engaged
1974, as amended (7 U.S.C. 2801 note; in such activities and the stationing of
2814). scientists at national and international
(17) The Endangered Species Act of institutions in such countries (7 U.S.C.
1973 (16 U.S.C. 1531–1544). 3291(a)(3)).
(18) Executive Order 11987, 3 CFR, 1977 (29) With respect to land and facili-
Comp., p. 116. ties under his or her authority, exer-
(19) Section 101(d), Organic Act of cise the functions delegated to the Sec-
1944 (7 U.S.C. 430). retary by Executive Order 12580, 3 CFR,
(20) The Swine Health Protection 1987 Comp., p. 193, under the following
Act, as amended (7 U.S.C. 3801–3813). provisions of the Comprehensive Envi-
(21) Lacey Act Amendments of 1981, ronmental Response, Compensation,
as amended (16 U.S.C. 3371–3378). and Liability Act of 1980 (‘‘the Act’’),
(22) Title III (and title IV to the ex- as amended:
tent that it relates to activities under (i) Sections 104 (a), (b), and (c)(4) of
title III) of the Federal Seed Act, as the Act (42 U.S.C. 9604 (a), (b), and
amended (7 U.S.C. 1581–1610). (c)(4)), with respect to removal and re-
medial actions in the event of release
(23) Authority to prescribe the

amounts of commuted traveltime al- or threatened release of a hazardous
lowances and the circumstances under substance, pollutant, or contaminant
which such allowances may be paid to into the environment;
274
ble to covered work; and emergency (xiv) Section 122 of the Act (42 U.S.C.
procurement powers; 9622), with respect to settlements, but
(iii) Section 104(i)(11) of the Act (42 excluding section 122(b)(1) of the Act
U.S.C. 9604(i)(11)), with respect to the (42 U.S.C. 9622(b)(1)), related to mixed
reduction of exposure to significant funding agreements.
risk to human health; (30) With respect to facilities and ac-
(iv) Section 104(j) of the Act (42
tivities under his or her authority, to
remedial action;
(v) The first two sentences of section
105(d) of the Act (42 U.S.C. 9605(d)), tion 1–601 of Executive Order 12088, 3
with respect to petitions for prelimi- CFR, 1978 Comp., p. 243, to enter into
nary assessment of a release or threat- an inter-agency agreement with the
ened release; United States Environmental Protec-
(vi) Section 105(f) of the Act (42 tion Agency, or an administrative con-
U.S.C. 9605(f)), with respect to consider- sent order or a consent judgment in an
ation of the availability of qualified appropriate State, interstate, or local
minority firms in awarding contracts, agency, containing a plan and schedule
but excluding that portion of section to achieve and maintain compliance
105(f) pertaining to the annual report with applicable pollution control
to Congress; standards established pursuant to the
(vii) Section 109 of the Act (42 U.S.C. following:
9609), with respect to the assessment of (i) Solid Waste Disposal Act, as
civil penalties for violations of section amended by the Resource Conservation
122 of the Act (42 U.S.C. 9622), and the and Recovery Act, as further amended
granting of awards to individuals pro- by the Hazardous and Solid Waste
viding information; Amendments, and the Federal Facility
(viii) Section 111(f) of the Act (42 Compliance Act (42 U.S.C. 6901 et seq.);
U.S.C. 9611(f)), with respect to the des- (ii) Federal Water Pollution Preven-
ignation of officials who may obligate tion and Control Act, as amended (33
money in the Hazardous Substances U.S.C. 1251 et seq.);
Superfund; (iii) Safe Drinking Water Act, as
(ix) Section 113(k) of the Act (42 amended (42 U.S.C. 300f et seq.);
U.S.C. 9613(k)), with respect to estab- (iv) Clean Air Act, as amended (42
lishing an administrative record upon U.S.C. 7401 et seq.);
amended (42 U.S.C. 4901 et seq.);
fying potentially responsible parties;
(x) Section 116(a) of the Act (42 U.S.C. (vi) Toxic Substances Control Act, as
9616(a)), with respect to preliminary as- amended (15 U.S.C. 2601 et seq.);
sessment and site inspection of facili- (vii) Federal Insecticide, Fungicide,
ties; and Rodenticide Act, as amended (7
(xi) Sections 117 (a) and (c) of the Act U.S.C. 136 et seq.); and
(42 U.S.C. 9617 (a) and (c)), with respect (viii) Comprehensive Environmental
to public participation in the prepara- Response, Compensation, and Liability
tion of any plan for remedial action Act of 1980, as amended by the Super-
and explanation of variances from the fund Amendments and Reauthorization
Act of 1986 (42 U.S.C. 9601 et seq.).

medial action or enforcement action, (31) Authority to prescribe and col-
including any settlement or consent lect fees under the Act of August 31,
decree entered into; 1951, as amended (31 U.S.C. 9701), and
275
sections 2508 and 2509 of the Food, Agri- Act of 1990 (7 U.S.C. 5925(h)(3)) regard-
culture, Conservation, and Trade Act ing honey bee pest and pathogen sur-
of 1990 (21 U.S.C. 136, 136a), as amended. veillance.
(32) The provisions of 35 U.S.C. 156. (b) Reservation. The following author-
(33) Enter into cooperative research ity is reserved to the Under Secretary
and development agreements with infor Marketing and Regulatory Pro-
dustry, universities, and others; insti- grams: The authority to make deter-
tute a cash award program to reward minations under 35 U.S.C. 156 as to
scientific, engineering, and technical whether an applicant acted with due
personnel; award royalties to inven- diligence.
tors; and retain and use royalty income
(15 U.S.C. 3710a–3710c). [60 FR 56393, Nov. 8, 1995, as amended at 61
FR 68541, Dec. 30, 1996; 65 FR 49471, Aug. 14,
(34) The Alien Species Prevention and
2000; 68 FR 27446, May 20, 2003; 70 FR 55706,
Enforcement Act of 1992 (39 U.S.C. 3015 Sept. 23, 2005; 74 FR 3411, Jan. 21, 2009; 76 FR
note). 4803, Jan. 27, 2011]
(35) Sections 901–905 of the Federal
Agriculture Improvement and Reform § 2.81 Administrator, Grain Inspection,
Act of 1996 (7 U.S.C. 1901 note). Packers and Stockyards Adminis-
(36) Plant Protection Act, as amend- tration.
ed (7 U.S.C. 7701–7786). (a) Delegations. Pursuant to
(37) Animal Health Protection Act (7 §§ 2.22(a)(3) and (a)(9), the following del-
U.S.C. 8301–8317). egations of authority are made by the
(38) Section 10504 of the Farm Secu- Under Secretary for Marketing and
rity and Rural Investment Act of 2002 Regulatory Programs to the Adminis-
(7 U.S.C. 8318). trator, Grain Inspection, Packers and
(39) Title V of the Agricultural Risk Stockyards Administration:
Protection Act of 2000 (7 U.S.C. 2279e
(1) Administer the United States
and 2279f).
Grain Standards Act, as amended (7
(40) The responsibilities of the United
U.S.C. 71–87h).
States related to activities of the Of-
(2) Exercise the functions of the Sec-
fice International des Epizooties.
retary of Agriculture contained in the
(41) Public Health Security and Bio-
Agricultural Marketing Act of 1946, as
terrorism Preparedness and Response
amended (7 U.S.C. 1621–1627), relating
Act of 2002 (Title II, Subtitles B and C;
to inspection and standardization ac-
of the Public Health Security and Bio-
tivities related to grain.
terrorism Preparedness Response Act
of 2002 (7 U.S.C. 8401 note, 8401, 8411)). (3) Administer the Packers and
(42) Implement the information dis- Stockyards Act, 1921, as amended and
closure authorities of section supplemented.
1619(b)(3)(A) of the Food, Conservation, (4) Enforce provisions of the Con-
and Energy Act of 2008 (7 U.S.C. sumer Credit Protection Act (15 U.S.C.
8791(b)(3)(A)). 1601–1665, 1681–1681t), with respect to
(43) Section 7524 of the Food, Con- any activities subject to the Packers
servation, and Energy Act of 2008 (21 and Stockyards Act, 1921, as amended
U.S.C. 113a note), except for the sus- and supplemented.
pension, revocation, or other impair- (5) Exercise the functions of the Sec-
ment of a permit issued under that secretary of Agriculture contained in sec-
tion. tion 1324 of the Food Security Act of
(44) Section 10202 of the Food, Con- 1985 (7 U.S.C. 1631).
servation, and Energy Act of 2008 (7 (6) Administer responsibilities and
U.S.C. 7761). functions assigned to the Secretary in
(45) Section 10204 of the Food, Con- section 11006 of the Food, Conservation,
servation, and Energy Act of 2008 (7 and Energy Act of 2008 (7 U.S.C. 228
U.S.C. 7701 note). note), with respect to the Packers and
(46) Section 14216 of the Food, Con- Stockyards Act, 1921.
servation, and Energy Act of 2008 (Pub. (7) With respect to land and facilities
L. 110–246). under his or her authority, exercise the
(47) Section 1672(h)(3) of the Food, functions delegated to the Secretary by
Agriculture, Conservation, and Trade Executive Order 12580, 3 CFR, 1987
276
Comp., p. 193, under the following pro- (x) Section 116(a) of the Act (42 U.S.C.
visions of the Comprehensive Environ- 9616(a)), with respect to preliminary as-
mental Response, Compensation, and sessment and site inspection of facili-
Liability Act of 1980 (‘‘the Act’’), as ties;
amended: (xi) Sections 117 (a) and (c) of the Act
(i) Sections 104 (a), (b), and (c)(4) of (42 U.S.C. 9617 (a) and (c)), with respect
the Act (42 U.S.C. 9604 (a), (b), and to public participation in the prepara-
U.S.C. 9604(e)–(h)), with respect to in- (xii) Section 119 of the Act (42 U.S.C.
formation gathering and access re- 9119), with respect to indemnifying re-
quests and orders; compliance with sponse action contractors;
Federal health and safety standards (xiii) Section 121 of the Act (42 U.S.C.
and wage and labor standards applica- 9621), with respect to cleanup stand-
(iii) Section 104(i)(11) of the Act (42
excluding section 122(b)(1) of the Act
U.S.C. 9604(i)(11)), with respect to the
(42 U.S.C. 9622(b)(1)), related to mixed
reduction of exposure to significant
funding agreements.
risk to human health;
(8) With respect to facilities and ac-
(iv) Section 104(j) of the Act (42
tivities under his or her authority, to
remedial action;
(v) The first two sentences of section tion 1–601 of Executive Order 12088, 3
105(d) of the Act (42 U.S.C. 9605(d)), CFR, 1978 Comp., p. 243, to enter into
with respect to petitions for prelimi- an inter-agency agreement with the
nary assessment of a release or threat- United States Environmental Protec-
ened release; tion Agency, or an administrative con-
(vi) Section 105(f) of the Act (42 sent order or a consent judgment in an
U.S.C. 9605(f)), with respect to consider- appropriate State, interstate, or local
ation of the availability of qualified agency, containing a plan and schedule
minority firms in awarding contracts, to achieve and maintain compliance
but excluding that portion of section with applicable pollution control

277
(vii) Federal Insecticide, Fungicide, (x) Such other State and Federal
and Rodenticide Act, as amended (7 agencies, departments, and organiza-
U.S.C. 136 et seq.); and tions as are necessary in carrying out
(viii) Comprehensive Environmental the responsibilities of this office.
Response, Compensation, and Liability (2) Maintain oversight of the activi-
Act of 1980, as amended by the Super- ties of USDA representatives to the 10
fund Amendments and Reauthorization Federal Regional councils.
Act of 1986 (42 U.S.C. 9601 et seq.). (3) Serve as the USDA contact with
(b) [Reserved] the Advisory Commission on Intergov-
ernmental Relations for implementa-
FR 3411, Jan. 21, 2009] tion of OMB Circular A–85 to provide
advance notification to State and local
governments of proposed changes in
Subpart O—Delegations of Au- Department programs that affect such
thority by the Assistant Sec- governments.
retary for Congressional Rela- (4) Act as the Department represent-
tions ative for Federal executive board mat-
ters.
§ 2.83 Deputy Assistant Secretary for (5) Serve as the official with the prin-
Congressional Relations.
cipal responsibility for the implemen-
Pursuant to § 2.23, and subject to pol- tation of Executive Order 13175, includ-
icy guidance and direction by the As- ing consultation and collaboration
sistant Secretary, the following delega- with tribal officials, and coordinate the
tion of authority is made by the Assist- Department’s programs involving as-
ant Secretary for Congressional Rela- sistance to American Indians and Alas-
tions to the Deputy Assistant Sec- ka Natives.
retary for Congressional Relations, to (b) [Reserved]
be exercised only during the absence or
unavailability of the Assistant Sec- [60 FR 56393, Nov. 8, 1995, as amended at 68
FR 27447, May 20, 2003; 69 FR 34254, June 21,
retary: Perform all duties and exercise 2004]
all powers which are now or which may
hereafter be delegated to the Assistant
Secretary for Congressional Relations. Subpart P—Delegations of Author-
ity by the Assistant Secretary
§ 2.85 Director, Office of Intergovern- for Administration
mental Affairs.
(a) Delegations. Pursuant to § 2.23, SOURCE: 75 FR 43381, July 23, 2010, unless
the following delegations of authority otherwise noted.
are made by the Assistant Secretary
for Congressional Relations to the Di- § 2.87 Deputy Assistant Secretary for
rector, Office of Intergovernmental Af- Administration.
fairs: Pursuant to § 2.24(a), and subject to
(1) Coordinate all programs involving reservations in § 2.24(b), the following
intergovernmental affairs including delegation of authority is made by the
State and local government relations Assistant Secretary for Administration
and liaison with: to the Deputy Assistant Secretary for
(i) National Association of State De- Administration, to be exercised only
partments of Agriculture; during the absence or unavailability of
(ii) Office of Intergovernmental Rela- the Assistant Secretary: Perform all
tions (Office of Vice President); the duties and exercise all the powers
(iii) Advisory Commission on Inter- which are now or which may hereafter
governmental Relations; be delegated to the Assistant Secretary
(iv) Council of State Governments; for Administration: Provided, that this
(v) National Governors Conference; authority shall be exercised first by a
(vi) National Association of Counties; respective non-career Deputy Assistant
(vii) National League of Cities; Secretary in the order in which he or

(viii) International City Managers she has taken office as Deputy Assist-
Association; ant Secretary, and second by a career
(ix) U.S. Conference of Mayors; and Deputy Assistant Secretary.
278
§ 2.88 Assistant Secretary for Civil VI of the Civil Rights Act of 1964 (42
Rights. U.S.C. 2000d), title IX of the Education
(a) Delegations. Pursuant to Amendments of 1972 (20 U.S.C. 1681, et
§ 2.24(a)(1), and with due deference for seq.), and section 504 of the Rehabilita-
delegations to other Departmental tion Act of 1973, as amended (29 U.S.C.
Management officials, the following 794), except those matters in litigation,
delegations of authority are made by including administrative enforcement
the Assistant Secretary for Adminis- actions, which shall be coordinated by
tration to the Assistant Secretary for the Office of the General Counsel.
Civil Rights: (6) Coordinate with the Department
(1) Provide overall leadership, coordi- of Health and Human Services on mat-
nation, and direction for the Depart- ters relating to the Age Discrimination
ment’s programs of civil rights, includ- Act of 1975, 42 U.S.C. 6102, except those
ing program delivery, compliance, and matters in litigation, including admin-
equal employment opportunity, with istrative enforcement actions, which
emphasis on the following: shall be coordinated by the Office of
(i) Actions to enforce Title VI of the the General Counsel.
Civil Rights Act of 1964, 42 U.S.C. 2000d, (7) Order proceedings and hearings in
prohibiting discrimination in federally the Department pursuant to §§ 15.9(e)
assisted programs. and 15.86 of this title which concern
(ii) Actions to enforce Title VII of consolidated or joint hearings within
the Civil Rights Act of 1964, as amend- the Department or with other Federal
ed, 42 U.S.C. 2000e, prohibiting dis- departments and agencies.
crimination in Federal employment. (8) Order proceedings and hearings in
(iii) Actions to enforce Title IX of the the Department pursuant to § 15.8 of
Education Amendments of 1972, 20 this title after the program agency has
U.S.C. 1681, et seq., prohibiting dis- advised the applicant or recipient of
crimination on the basis of sex in his or her failure to comply and has de-
USDA education programs and activi- termined that compliance cannot be
ties funded by the Department. secured by voluntary means.
(iv) Actions to enforce the Age Dis- (9) Issue orders to give a notice of
crimination Act of 1975, 42 U.S.C. 6102, hearing or the opportunity to request a
prohibiting discrimination on the basis hearing pursuant to part 15 of this
of age in USDA programs and activities title; arrange for the designation of an
funded by the Department. Administrative Law Judge to preside
(v) Actions to enforce section 504 of over any such hearing; and determine
the Rehabilitation Act of 1973, as whether the Administrative Law Judge
amended, 29 U.S.C. 794, prohibiting dis- so designated will make an initial deci-
crimination against individuals with sion or certify the record to the Sec-
disabilities in USDA programs and ac- retary of Agriculture with his or her
tivities funded or conducted by the De- recommended findings and proposed ac-
partment. tion.
(vi) Actions to enforce related Execu- (10) Authorize the taking of action
tive Orders, Congressional mandates, pursuant to § 15.8(a) of this title relat-
and other laws, rules, and regulations, ing to compliance by ‘‘other means au-
as appropriate. thorized by law.’’
(2) Evaluate Departmental agency (11) Make determinations required by
programs, activities, and impact state- § 15.8(d) of this title that compliance
ments for civil rights concerns. cannot be secured by voluntary means,
(3) Analyze and evaluate program and then take action, as appropriate.
participation data and equal employ- (12) Make determinations that pro-
ment opportunity data. gram complaint investigations per-
(4) Provide leadership and coordinate formed under § 15.6 of this title estab-
Departmentwide programs of public no- lish a proper basis for findings of dis-
tification regarding the availability of crimination, and that actions taken to
USDA programs on a nondiscrim- correct such findings are adequate.

inatory basis. (13) Investigate (or make determina-
(5) Coordinate with the Department tions that program complaint inves-
of Justice on matters relating to title tigations establish a proper basis for
279
final determinations), make final de- directly supervised by the Assistant

terminations on both the merits and Secretary for Civil Rights) has partici-
required corrective action, and, where pated in the events that gave rise to
applicable, make recommendations to the matter.
the Secretary that relief be granted (vi) Order such corrective measures
under 7 U.S.C. 6998(d) notwithstanding in EEO complaints as may be consid-
the finality of National Appeals Divi- ered necessary, including the rec-
sion decisions, as to complaints filed ommendation for such disciplinary ac-
under parts 15a, 15b, and 15d of this tion as is warranted when an employee
title. has been found to have engaged in a
(14) Conduct civil rights investiga- discriminatory practice.
tions and compliance reviews Depart-
(vii) Provide liaison on EEO matters
mentwide.
concerning complaints and appeals
(15) Develop regulations, plans, and
with the Department agencies and De-
procedures necessary to carry out the
partment employees.
Department’s civil rights programs, in-
cluding the development, implementa- (viii) Conduct EEO evaluations and
tion, and coordination of Action Plans. develop policy regarding EEO pro-
(16) Related to Equal Employment Op- grams.
portunity (EEO). Is designated as the (ix) Provide liaison on EEO programs
Department’s Director of Equal Em- and activities with the Equal Employ-
ployment Opportunity with authority: ment Opportunity Commission and the
(i) To perform the functions and re- Office of Personnel Management.
sponsibilities of that position under 29 (17) Administer the discrimination
CFR part 1614, including the authority: appeals and complaints program for
(A) To make changes in programs the Department, including all formal
and procedures designed to eliminate individual or group appeals, where the
discriminatory practices and improve system provides for an avenue of re-
the Department’s EEO program. dress to the Department level, Equal
(B) To provide EEO services for man- Employment Opportunity Commission,
agers and employees. or other outside authority.
(C) To make final agency decisions (18) Make final determinations, or
on EEO complaints by Department em- enter into settlement agreements, on
ployees or applicants for employment discrimination complaints in federally
and order such corrective measures in conducted programs subject to the
such complaints as may be considered Equal Credit Opportunity Act. This
necessary, including, in consultation delegation includes the authority to
with the Director, Office of Human Re- make compensatory damage awards
sources Management, the recommenda- whether pursuant to a final determina-
tion for such disciplinary action as is tion or in a settlement agreement
warranted when an employee has been under the authority of the Equal Credit
found to have engaged in a discrimina- Opportunity Act and the authority to
tory practice. obligate agency funds, including Com-
(ii) Administer the Department’s modity Credit Corporation and Federal
EEO program. Crop Insurance Corporation funds to
(iii) Oversee and manage the EEO
satisfy such an award.
counseling function for the Depart-
(19) Make final determinations in
ment.
(iv) Process formal EEO complaints proceedings under part 15f of this title
by employees or applicants for employ- where review of an administrative law
ment. judge decision is undertaken.
(v) Investigate Department EEO com- (20) Provide civil rights and equal
plaints and make final decisions on employment opportunity support serv-
EEO complaints, except in those cases ices, with authority to take actions re-
where the Assistant Secretary for Ad- quired by law or regulation to perform
such services for:
ministration (or a person in the imme-

diate office of the Assistant Secretary (i) The Secretary of Agriculture.
for Administration) or the Assistant (ii) The general officers of the De-
Secretary for Civil Rights (or a person partment.
280
(iii) The offices and agencies report- (6) Approve the acquisition or pro-
ing to the Assistant Secretary for Ad- curement of information technology
ministration. resources by, or on behalf of, any De-
(iv) Any other offices or agencies of partment agency or office.
the Department as may be agreed. (7) Collaborate with Department pro-
(21) Redelegate, as appropriate, any curement personnel with respect to in-
authority delegated under this section formation technology acquisition
to general officers of the Department strategy and policy.
and heads of Departmental agencies. (8) Function as the Major Informa-
(b) [Reserved] tion Technology Systems Executive in
USDA to integrate and unify the man-
§ 2.89 Chief Information Officer. agement process for the Department’s
major information technology system
(a) Delegations. The Chief Information acquisitions and to monitor implemen-
Officer, under the supervision of the tation of the policies and practices set
Assistant Secretary for Administration forth in Office of Management and
pursuant to § 2.24(a)(2), and with due Budget (OMB) Circular No. A–109,
deference for delegations to other De- Major Systems Acquisitions, for infor-
partmental Management officials, is mation technology. This includes the
responsible for executing the duties authority to:
enumerated in Public Law 104–106 for (i) Ensure that OMB Circular No. A–
agency Chief Information Officers, and 109 is effectively implemented for in-
additional specified duties, as follows: formation technology systems in the
(1) Report directly to the Secretary Department and that the management
of Agriculture regarding information objectives of the Circular are realized.
technology matters. (ii) Review the program management
(2) Oversee all information tech- of each major information technology
nology and information resource man- system acquisition.
agement activities relating to the pro- (iii) Approve the appointment of the
grams and operations of the Depart- program manager for each major infor-
ment and component agencies. This mation technology systems acquisi-
oversight includes approving information.
tion technology investments, moni- (iv) Designate any Departmental in-
toring and evaluating the performance formation technology acquisition as a
of those investments and information major system acquisition under OMB
resource management activities, ap- Circular No. A–109.
proval of all architectures and compo- (9) On an annual basis:
nents thereto and determining whether (i) Assess Departmentwide personnel
to continue, modify, or terminate an requirements regarding knowledge and
information technology program or skill in information resources manage-
project. ment, and the adequacy of such re-
(3) Provide advice and other assist- quirements, to achieve the perform-
ance to the Secretary and other senior ance goals established for information
management personnel to ensure that resources management.
information technology acquired and (ii) Develop strategies and specific
managed for the Department con- plans for hiring, training, and profes-
sistent with chapter 35 of title 44, sional development at the executive
United States Code (Coordination of and management level to meet per-
Federal Information Policy). sonnel information technology per-
(4) Develop, implement, and maintain sonnel requirements.
a sound and integrated Department- (iii) Report to the Assistant Sec-
wide information technology architec- retary for Administration on progress
ture. made in improving information re-
(5) Promote the effective and effi- sources management capability.
cient design and operation of all major (10) Function as the senior official to
information resources management carry out the responsibilities of the De-

processes for the Department, includ- partment under chapter 35 of title 44,
ing improvements to work processes of United States Code (Coordination of
the Department. Federal Information Policy), including:
281
(i) Ensure that the information poli- actions required by law or regulation
cies, principles, standards, guidelines, to perform such services for:
rules and regulations prescribed by (A) The Secretary of Agriculture.
OMB are appropriately implemented (B) The general officers of the De-
within the Department. partment.
(ii) Review proposed Department re- (C) The offices and agencies reporting
porting and record keeping require- to the Assistant Secretary for Admin-
ments, including those contained in istration.
rules and regulations, to ensure that (D) Any other offices or agencies of
they impose the minimum burden upon the Department as may be agreed.
the public and have practical utility (iv) Manage a comprehensive set of
for the Department. end user office automation services and
(iii) Develop and implement proce- oversee the delivery of goods and serv-
dures for assessing the burden to the ices associated with end user office au-
public and costs to the Department of tomation services, with authority to
information requirements contained in take actions required by law or regula-
proposed legislation affecting Depart- tion to perform such services for any
ment programs. offices or agencies of the Department
(iv) Assist OMB in the performance of as may be agreed (except for the Office
its functions assigned under the E-Gov- of the Secretary, the general officers of
ernment Act of 2002 (Pub. L. 107–347), the Department, and the agencies and
including review of Department and offices reporting to the Assistant Sec-
Agency activities for compliance. retary for Administration, as specified
(v) Assist OMB in the performance of in § 2.98(a)(1)).
its functions assigned under the Paper- (v) Manage the Agricultural Security
work Reduction Act of 1995 (44 U.S.C. Operations Center to enable the De-
3501–3520), including review of Depart- partment to effectively monitor, de-
ment and Agency activities for compli- tect, analyze, protect, report, and re-
ance. spond against known cyber
(11) The Chief Information Officer is vulnerabilities, attacks, and exploi-
also responsible for the following: tations.
(i) Provide Departmentwide guidance (vi) Manage the Department’s Cer-
and direction in planning, developing, tification and Accreditation process to
documenting, and managing applica- ensure the Department and agencies
tions software projects in accordance have successfully conducted periodic
with Federal and Department informa- risk assessments of its systems; grant
tion processing standards, procedures, the authority to operate for systems
and guidelines. that have successfully completed the
(ii) Provide Departmentwide guid- Certification and Accreditation proc-
ance and direction in all aspects of in- ess; and rescind or suspend the author-
formation technology, including: Fea- ity to operate for systems subject to
sibility studies; economic analyses; repeated and/or significant security
systems design; acquisition of equip- issues.
ment, software, services, and (vii) Ensure that OMB Circular No.
timesharing arrangements; systems in- A–16, Coordination of Geographic Infor-
stallation; systems performance and mation and Related Spatial Data Ac-
capacity evaluation; information tech- tivities, is effectively implemented in
nology investment governance; cyber- the Department and that the manage-
security; and privacy. Monitor these ment objectives of the Circular are re-
activities for agencies’ major systems alized; and providing Departmentwide
development efforts to assure effective guidance and direction in governing,
and economic use of resources and developing, implementing, and main-
compatibility among systems of var- taining a sound and integrated
ious agencies when required. geospatial architecture.
(iii) Manage the Enterprise Data Cen- (viii) Review and evaluate informa-
ters, with the exception of the National tion technology activities related to
Finance Center; and oversee the deliv- delegated functions to assure that they
ery of Enterprise Data Center goods conform to all applicable Federal and
and services, with authority to take Department information technology
282
management policies, plans, standards, (iii) Approving the selection of agen-

procedures, and guidelines. cy Chief Information Officers and agen-
(ix) Design, develop, implement, and cy major information technology sys-
revise systems, processes, work meth- tem project managers in accordance
ods, and techniques to improve the with OMB policies.
management and operational effective- (iv) Providing recommendations to
ness of information resources. Agency Heads for the removal or re-
(x) Administer the Departmental placement of information technology
records, forms, reports and Directives project managers, when, in the opinion
Management Programs. of the Chief Information Officer, appli-
(xi) Manage all aspects of the USDA cable laws and policies are being vio-
Telecommunications Program includ- lated, or, when the cost, schedule, or
ing planning, development, acquisition, performance of an information tech-
and use of equipment and systems for nology project would indicate manage-
voice, data, and communications, ex- ment deficiencies.
cluding the actual procurement of data (v) Withdrawing agencies’ authority
transmission equipment, software, to obligate funds on Information Tech-
maintenance, and related supplies. nology programs or projects if the
(xii) Manage Departmental tele- agency violates the Chief Information
communications contracts. Officer policies, standards, or Depart-
ment Information Systems Technology
(xiii) Provide technical advice
Architecture.
throughout the Department.
(vi) Requiring agencies to validate
(xiv) Implement a program for apply-
and verify major information tech-
ing information resources management
nology systems through the use of an
technology to improve productivity in
existing contract for such purpose des-
the Department.
ignated by the Chief Information Offi-
(xv) Plan, develop, install, and oper- cer.
ate computer-based systems for mes- (vii) Requiring approval by the Chief
sage exchange, scheduling, computer Information Officer of any proposed ac-
conferencing, televideo technologies, quisition of information technology
and other applications of office auto- (whether through the award or modi-
mation technology which can be com- fication of a procurement contract, a
monly used by multiple Department cooperative or other agreement with a
agencies and offices. non-Federal party, or an interagency
(xvi) Represent the Department in agreement) to ensure technical con-
contacts with the Government Ac- formance to the Department technical
countability Office, the General Serv- architecture.
ices Administration, OMB, the Na- (viii) Providing guidance to USDA re-
tional Institute of Standards and Tech- garding implementation of Section 508
nology, and other organizations or of the Rehabilitation Act, as well as
agencies on matters related to dele- on-going consultative assistance re-
gated responsibilities. garding information technology acces-
(12) Implement policies established sibility, and reviewing progress made
pursuant to paragraphs (a)(1) through toward achieving information tech-
(a)(11) of this section by: nology accessibility for USDA employ-
(i) Disposing of information tech- ees and individuals with disabilities.
nology that is acquired by a Depart- (13) Related to the Privacy Act. Ap-
ment agency in violation of procedures point a Department Privacy Act Offi-
or standards for the Department Infor- cer; oversee general officers and agency
mation Systems Technology Architec- heads in the development and imple-
ture. mentation of policies issued pursuant
(ii) Establishing information tech- to the provisions of the Privacy Act, 5
nology and information resources man- U.S.C. 552a; and provide consultation
agement performance standards for and guidance regarding those policies.
agency Chief Information Officers, in- (14) Related to the Freedom of Informa-
formation resources managers, and tion Act. Serve as the Chief Freedom of
project managers to be used in the per- Information Act Officer for the Depart-
formance appraisal process. ment; oversee general officers and
283
agency heads in efficient and appro- and which is responsive to the financial
priate compliance with the provisions information needs of Department man-
of the Freedom of Information Act (5 agement and for the development and
U.S.C. 552); monitor implementation of reporting of cost information, the inte-
5 U.S.C. 552 throughout the agency and gration of accounting and budgeting
keep the Secretary, the General Coun- information, and the systematic meas-
sel, and the Attorney General informed urement of performance.
regarding agency performance in its (4) Make recommendations to the As-
implementation; recommend to the sistant Secretary for Administration
Secretary necessary adjustments to regarding the selection of the Deputy
agency practices, policies, personnel, Chief Financial Officer of the Depart-
and funding to improve implementa- ment, and selection of principal finan-
tion of 5 U.S.C. 552; review and report cial officers of component agencies of
to the Attorney General, through the the Department.
Secretary, as the Attorney General (5) Direct, manage, and provide pol-
may direct; and, facilitate public un- icy guidance and oversight of Depart-
derstanding of the purposes of the stat- ment financial management personnel,
utory exemptions contained in 5 U.S.C. activities, and operations, including:
552. (i) Prepare and annually revise a De-
(b) [Reserved] partmental plan to:
(A) Implement the 5-year financial
§ 2.90 Chief Financial Officer. management plan prepared by the Di-
(a) The Chief Financial Officer, under rector of OMB under 31 U.S.C.
the supervision of the Assistant Sec- 3512(a)(3); and
retary for Administration pursuant to (B) Comply with the requirements es-
§§ 2.24(a)(3) and 2.24(a)(13), with due def- tablished for agency financial state-
erence for delegations to other Depart- ments under 31 U.S.C. 3515 and with the
mental Management officials, and sub- requirements for audits of Department
ject to the reservations in § 2.24(b), is financial statements established in 31
responsible for executing the duties U.S.C. 3521(e) and (f).
enumerated for agency Chief Financial (ii) Develop Departmental financial
Officers in the Chief Financial Officers management budgets, including the
Act of 1990, Public Law 101–576, 31 oversight and recommendation of ap-
U.S.C. 902, and additional specified du- proval of component agency financial
ties, including: management budgets.
(1) Report directly to the Secretary (iii) Recruit, select, and train per-
of Agriculture regarding financial sonnel to carry out Departmental fi-
management matters. nancial management functions.
(2) Oversee all financial management (iv) Approve and manage Depart-
activities relating to the programs and mental, and approve component agen-
operations of the Department and com- cy, financial management systems de-
ponent agencies. sign or enhancement projects.
(3) Develop and maintain an inte- (v) Implement and approve Depart-
grated accounting and financial system mental, and approve component agen-
for the Department and component cy, asset management systems, includ-
agencies, including financial reporting ing systems for cash management,
and internal controls, which— credit management, debt collection,
(i) Complies with applicable account- and property and inventory manage-
ing principles, standards, and requirement and control.
ments, and internal control standards; (6) Prepare and transmit, by not later
(ii) Complies with such policies and than 60 days after the submission of
requirements as may be prescribed by the audit report required by 31 U.S.C.
the Director of the Office of Manage- 3521(f), an annual report to the Sec-
ment and Budget (OMB); retary, the Assistant Secretary for Ad-
(iii) Complies with any other require- ministration, and the Director of OMB,
ments applicable to such systems; and which shall include:

(iv) Provides for complete, reliable, (i) A description and analysis of the
consistent, and timely information status of financial management of the
which is prepared on a uniform basis Department.
284
(ii) The annual financial statements out the duties and prerogatives of the
prepared under 31 U.S.C. 3521. Chief Financial Officer.
(iii) The audit report transmitted to (12) Designate the Department’s
the Secretary under 31 U.S.C. 3521. Comptroller of the Department Work-
(iv) A summary of the reports on ining Capital Fund.
ternal accounting and administrative (13) Establish Departmental policies,
control systems submitted to the standards, techniques, and procedures
President and the Congress under the applicable to all USDA agencies for the
amendments made by the Federal Man- following areas:
agers’ Financial Integrity Act of 1982 (i) Development, maintenance, re-
(31 U.S.C. 1113, 3512). view and approval of all departmental,
(v) Other information the Secretary and review and approval of component
considers appropriate to inform fully agency, internal control, fiscal, finan-
the President and the Congress con- cial management and accounting sys-
cerning the financial management of tems including the financial aspects of
the Department. payment management and property
(7) Monitor the financial execution of systems.
the budget of the Department in rela- (ii) Selection, standardization, and
tion to projected and actual expendi- simplification of program delivery
tures, and prepare and submit to the processes utilizing grants, cooperative
Secretary timely performance reports. agreements and other forms of Federal
(8) Review, on a biennial basis, the assistance.
fees, royalties, rent, and other charges (iii) Review and approval of Federal
imposed by the Department for serv- assistance, internal control, fiscal, ac-
ices and things of value it produces, counting and financial management
and make recommendations on revis- regulations and instructions proposed
ing those charges to reflect costs in- or issued by USDA agencies for con-
curred by the Department in providing formity with Departmental require-
those services and things of value. ments.
(9) Access all records, reports, audits, (iv) Section 5301 of the Anti-Drug
reviews, documents, papers, rec- Abuse Act of 1988 (21 U.S.C. 862) as it
ommendations, or other material that relates to grants, loans, and licenses.
are the property of the Department or (14) Establish policies related to the
that are available to the Department, Department Working Capital Fund.
and that relate to programs and oper- (15) Approve regulations, procedures
ations with respect to which the Chief and rates for goods and services fi-
Financial Officer has responsibilities, nanced through the Department Work-
except that this grant allows no access ing Capital Fund which will impact the
greater than that permitted under any financial administration of the Fund.
other law to records, reports, audits, (16) Exercise responsibility and au-
reviews, documents, papers, rec- thority for operating USDA’s financial
ommendations, or other material of and subsidiary management systems
the Office of Inspector General. and related administrative systems in-
(10) Request such information or as- cluding: Departmentwide payroll and
sistance as may be necessary for car- personnel information systems, statis-
rying out the duties and responsibil- tics, administrative payments, billings
ities granted by the Chief Financial Of- and collections, and related reporting
ficers Act of 1990 (Pub. L. 101–576), from systems that are either requested by
any Federal, State, or local govern- the agencies or required by the Depart-
mental entity. ment.
(11) To the extent and in such (17) Manage the National Finance
amounts as may be provided in advance Center (NFC).
by appropriations acts, enter into con- (18) Provide management support
tracts and other arrangements with services for the NFC, and by agreement
public agencies and with private per- with agency heads concerned, provide
sons for the preparation of financial such services for other USDA tenants
statements, studies, analyses, and housed in the same facility. As used
other services, and making such pay- herein, such management support serv-
ments as may be necessary to carry ices shall include:
285
(i) Personnel services, as listed in and effectiveness of the USDA includ-

§ 2.91(a)(10), and organizational support ing:
services, with authority to take ac- (i) Increased use of operations re-
tions required by law or regulation to search and management science in the
perform such services; and areas of productivity and management.
(ii) Procurement, property manage- (ii) All activities financed through
ment, space management, communica- the Department Working Capital Fund.
tions, messenger, paperwork manage- (21) Develop Departmental policies,
ment, and related administrative serv- standards, techniques, and procedures
ices, with authority to take actions re- for the conduct of reviews and analysis
quired by law or regulation to perform of the utilization of the resources of
such services. State and local governments, other
(19) Exercise responsibility and au- Federal agencies and of the private sec-
thority for all matters related to the tor in domestic program operations.
Department’s accounting and financial (22) Represent the Department in
operations including such activities as: contacts with OMB, General Services
(i) Financial administration, includ- Administration, GAO, Department of
ing accounting and related activities. the Treasury, Office of Personnel Man-
(ii) Reviewing financial aspects of agement, Department of Health and
agency operations and proposals. Human Services, Department of Labor,
Environmental Protection Agency, De-
(iii) Furnishing consulting services
partment of Commerce, Congress of the
to agencies to assist them in devel-
United States, State and local govern-
oping and maintaining accounting and
ments, universities, and other public
financial management systems and in-
and private sector individuals, organi-
ternal controls, and for other purposes
zations or agencies on matters related
consistent with delegations in para-
to assigned responsibilities.
graph (a)(13) of this section.
(23) Establish policies related to trav-
(iv) Reviewing and monitoring agen-
el by USDA employees.
cy implementation of Federal assist-
(24) Exercise responsibility for co-
ance policies.
ordinating and overseeing the imple-
(v) Reviewing and approving agen- mentation of the Government Perform-
cies’ accounting systems documenta- ance and Results Act of 1993, Public
tion including related development Law 103–62, at the Department.
plans, activities, and controls. (25) Provide budget, accounting, fis-
(vi) Monitoring agencies’ progress in cal and related financial management
developing and revising accounting and services, with authority to take action
financial management systems and in- required by law or regulation to pro-
ternal controls. vide such services for Working Capital
(vii) Evaluating agencies’ financial Funds and general appropriated and
systems to determine the effectiveness trust funds for:
of procedures employed, compliance (i) The Secretary of Agriculture.
with regulations, and the appropriate- (ii) The general officers of the De-
ness of policies and practices. partment, except the Inspector Gen-
(viii) Promulgation of Department eral.
schedule of fees and charges for repro- (iii) The offices and agencies report-
ductions, furnishing of copies and making to the Assistant Secretary for Ad-
ing searches for official records pursu- ministration,
ant to the Freedom of Information Act, (iv) Any other offices and agencies of
5 U.S.C. 552. the Department as may be agreed.
(ix) Monitoring USDA implementa- (26) Develop, promulgate, and coordi-
tion of section 5301 of the Anti-Drug nate Department-wide policy con-
Abuse Act of 1988 (21 U.S.C. 862) as it cerning nonprocurement debarment
relates to grants, loans, and licenses. and suspension.
(20) Establish Department and ap- (27) Prepare and submit to Congress
prove component agency programs, reports on conferences sponsored or

policies, standards, systems, tech- held by the Department or attended by
niques and procedures to improve the employees of the Department (7 U.S.C.
management and operational efficiency 2255b).
286
(28) Related to budget formulation and relating to human resources manage-

program analysis. (i) Designate the De- ment.
partment’s Budget Officer and exercise (2) Provide human resources manage-
general responsibility and authority ment procedural guidance and oper-
for all matters related to the Depart- ational instructions.
ment’s budgeting affairs including: (3) Set standards for human resources
(A) Resource administration, includ- data systems.
ing all phases of the acquisition, and (4) Inspect and evaluate human re-
distribution of funds and staff years. sources management operations and
(B) Legislative and regulatory re- issue instructions or take direct action
porting and related activities. to insure conformity with appropriate
(ii) Provide staff assistance for the laws, Executive Orders, Office of Per-
Secretary, general officers, and other sonnel Management (OPM) rules and
Department and agency officials. regulations, and other appropriate
(iii) Formulate and promulgate De- rules and regulations.
partmental budgetary, legislative and (5) Exercise final authority in all
regulatory policies and procedures. human resources matters, including in-
(iv) Represent the Department in dividual cases, that involve the juris-
contacts with OMB, the GAO, the De- diction of more than one General Offi-
partment of the Treasury, Congres- cer, or agency head, or otherwise as
sional Committees on Appropriations, deemed appropriate.
and other organizations and agencies (6) Receive, review, and recommend
on matters related to his or her respon- action on all requests for the Sec-
sibility. retary’s or Assistant Secretary for Ad-
(v) Coordinate and/or conduct policy ministration’s approval in human re-
and program analyses on agency oper- sources matters.
ations and proposals to assist the Sec- (7) Authorize and make final deci-
retary, general officers and other De- sions on adverse actions except in
partment and agency officials in for- those cases where the Assistant Sec-
mulating and implementing USDA retary for Administration or the Direc-
policies and programs. tor, Office of Human Resources Man-
(vi) Review and analyze legislation, agement, has participated.
regulations, and policy options to de-
(8) Represent the Department in
termine their impact on USDA pro-
human resources matters in all con-
grams and policy objectives and on the
tacts outside the Department.
Department’s budget.
(9) Exercise specific authorities in
(vii) Monitor ongoing studies with
the following operational matters:
significant program or policy implica-
tions. (i) Waive repayment of training ex-
(29) Administer the debarment au- penses where an employee fails to ful-
thorities in section 14211 of the Food, fill service agreement.
Conservation, and Energy Act of 2008 (7 (ii) Establish or change standards
U.S.C. 2209j) in coordination with the and plans for awards to private citi-
Director, Office of Procurement and zens.
Property Management. (iii) Execute, change, extend, or
renew:
§ 2.91 Director, Office of Human Re- (A) Labor-Management Agreements.
sources Management. (B) Certifications of supervisory/
(a) Delegations. Pursuant to managerial and non-labor union em-
§ 2.24(a)(4), with due deference for dele- ployee and professional organizations
gations to other Departmental Man- and associations.
agement officials, and subject to the (iv) Represent the Department in all
reservations in § 2.24(b), the following contacts with the national offices of
delegations of authority are made by labor organizations in fulfilling the De-
the Assistant Secretary for Adminis- partment’s national consultation obli-
gations under 5 U.S.C. 7113.
tration to the Director, Office of

Human Resources Management: (v) Change a position (with no mate-
(1) Formulate and issue Department rial change in duties) from one pay sys-
policy, standards, rules and regulations tem to another.
287
(vi) Grant restoration rights, and re- (vi) Hours of duty.

lease employees with administrative (vii) Performance management.
reemployment rights. (viii) Promotions.
(vii) Authorize any mass dismissals (ix) Employee development.
of employees in the Washington, DC (x) Incentive programs.
metropolitan area. (xi) Leave.
(viii) Approve ‘‘normal line of pro- (xii) Retirement.
motion’’ cases in the excepted service (xiii) Human resources program man-
where not in accordance with time-in agement accountability and evalua-
grade criteria. tion.
(ix) Make the final decision on all (xiv) Social security.
classification appeals filed with the De- (xv) Life insurance.
partment of Agriculture. (xvi) Health benefits.
(x) Authorize all employment actions (xvii) Unemployment compensation.
(except nondisciplinary separations (xviii) Labor management relations.
and LWOP) and classification actions (xix) Intramanagement consultation.
for senior level and equivalent posi- (xx) [Reserved]
tions including Senior Executive Serv- (xxi) Discipline.
ice positions and special authority pro- (xxii) Appeals.
fessional and scientific positions re- (xxiii) Drug Testing Program.
sponsible for carrying out research and (xxiv) Worklife Program.
development functions. (xxv) Transit Subsidy Program.
(xi) Authorize all employment ac- (xxvi) Alternative Dispute Resolu-
tions (except LWOP) for the following tion.
positions: (11) Maintain, review, and update De-
(A) Schedule C. partmental delegations of authority.
(B) Non-career Senior Executive (12) Recommend authorization of or-
Service or equivalent. ganizational changes.
(C) Administrative Law Judge. (13) Formulate and promulgate De-
(xii) Authorize and make final deci- partmental policies regarding reorga-
sions on adverse actions for positions nizations.
in GS–1–15 or equivalent. (14) [Reserved]
(xiii) Authorize and make final deci- (15) Provide for diversity and inclu-
sions on adverse actions for positions sion, as follows:
in the career Senior Executive Service (i) Establish, direct, and provide pol-
or equivalent. icy and oversight for a Department-
(xiv) Approve the details of Depart- wide Special Emphasis Program (SEP)
ment employees to the White House. including: Women, African Americans,
(xv) Authorize adverse actions based Hispanics, Asian/Pacific Islanders, Na-
in whole or in part on an allegation of tive Americans, Disabled, and Gay/Les-
violation of 5 U.S.C. chapter 73, sub- bian/Bisexual/Transgender.
chapter III, for employees in the ex- (ii) Provide oversight and support for
cepted service. Departmental SEP recognition pro-
(xvi) Authorize long-term training in grams.
programs which require Department- (iii) Direct and oversee the Depart-
wide competition. ment-wide SEPM Council.
(xvii) Initiate and take adverse ac- (iv) Administer Federal Equal Oppor-
tion in cases involving a violation of tunity Recruitment Program.
the merit system. (16) Oversee and manage the Depart-
(xviii) Any other human resources ment’s administrative grievance pro-
operational matter. gram.
(10) As used in this section, the term (17) Make final decisions in those
human resources includes: cases where an agency head has ap-
(i) Position management. pealed the recommended decision of a
(ii) Position classification. grievance examiner.
(iii) Employment. (18) Administer the administrative

(iv) Pay administration. appeals process related to the inclusion
(v) Automated human resources data of positions in the testing designated
and systems. position listing in the Department’s
288
Drug-Free Workplace Program and des- (1) Authorize organizational changes

ignate the final appeal officer for that occurring in a Department agency or
Program. staff office which affect the overall
(19) Formulate and issue Department structure of that service or office; i.e.,
policy, standards, rules, and regula- require a change to that service or of-
tions relating to the Senior Scientific fice’s overall organization chart.
Research Service (7 U.S.C. 7657). (2) Approve coverage and waiver of
(20) Related to conflict management.(i) individual law enforcement and fire-
Designate the senior official to serve as fighter positions under the special re-
the Department Dispute Resolution tirement provisions of the Civil Service
Specialist under the Administrative Retirement System and the Federal
Dispute Resolution Act of 1996, 5 U.S.C. Employees Retirement System.
571, et seq., and provide leadership, di-
rection and coordination for the De- § 2.92 Director, Office of Small and
partment’s conflict prevention and res- Disadvantaged Business Utilization.
olution activities. (a) Delegations. Pursuant to
(ii) Issue Departmental regulations, § 2.24(a)(5), and with due deference for
policies, and procedures relating to the delegations to other Departmental
use of Alternative Dispute Resolution Management officials, the following
(ADR) to resolve employment com- delegations of authority are made by
plaints and grievances, workplace dis- the Assistant Secretary for Adminis-
putes, Departmental program disputes, tration to the Director, Office of Small
and contract and procurement dis- and Disadvantaged Business Utiliza-
putes. tion:
(iii) Provide ADR services for: (1) The Director, Office of Small and
(A) The Secretary of Agriculture. Disadvantaged Business Utilization,
(B) The general officers of the De- under the supervision of the Assistant
partment. Secretary for Administration, has spe-
(C) The offices and agencies reporting cific responsibilities under the Small
to the Assistant Secretary for Admin- Business Act, 15 U.S.C. 644(k). These
istration. duties include being responsible for the
(D) Any other office or agency of the following:
Department as may be agreed. (i) Administer the Department’s
(iv) Develop and issue standards for small and disadvantaged business ac-
mediators and other ADR neutrals uti- tivities related to procurement con-
lized by the Department. tracts, minority bank deposits, and
(v) Coordinate ADR activities grants and loan activities affecting
throughout the Department. small and minority businesses includ-
(vi) Monitor agency ADR programs ing women-owned business, and the
and report at least annually to the Sec- small business, small minority busi-
retary on the Department’s ADR ac- ness, and small women-owned business
tivities. subcontracting programs.
(21) Redelegate, as appropriate, any (ii) Provide Departmentwide liaison
authority delegated under paragraphs and coordination of activities related
(a)(1) through (a)(20) of this section to to small, small disadvantaged, and
general officers of the Department and women-owned businesses with the
heads of Departmental agencies, pro- Small Business Administration and
vided that the Director, Office of others in public and private sector.
Human Resources Management retains (iii) Develop policies and procedures
the authority to make final decisions required by the applicable provision of
in any human resources matter so re- the Small Business Act, as amended, to
delegated. include the establishment of goals.
(22) Related to Ethics. Provide admin- (iv) Implement and administer pro-
istrative supervision for the Office of grams described under sections 8 and 15
Ethics. of the Small Business Act, as amended
(b) Reservations. The following au- (15 U.S.C. 637 and 644).
thorities are reserved to the Assistant (v) In compliance with the Veterans
Secretary for Administration: Benefits Act of 2003 (Pub. L. 108–183)
289
amending the Small Business Act, im- Pollution Control Standards,’’ 3 CFR,
plement and administer procurement 1978 Comp., p. 243).
programs for small business concerns (viii) Implementation of the Uniform
owned and controlled by service-dis- Relocation Assistance and Real Prop-
abled veterans. erty Acquisition Policies Act of 1970 (42
(2) The Director, Office of Small and U.S.C. 4601, et seq.).
Disadvantaged Business Utilization, (ix) Development and implementa-
also has the following responsibilities: tion of sustainable operations actions
(i) In compliance with the Javits- including establishing and achieving
Wagner-O’Day Act (41 U.S.C. 46 et seq.), greenhouse gas emission reduction
implement and administer the Depart- goals, reducing energy intensity, in-
ment’s AbilityOne program for pur- creasing renewable energy use, increas-
chases from qualified nonprofit agen- ing water efficiency, reducing petro-
cies for the blind or for the severely leum use and increasing alternative
disabled. fuel use, increasing recycling and
(ii) [Reserved] waste diversion, preventing pollution,
(b) [Reserved] reducing use of toxic chemicals, pro-
curing sustainable products and serv-
§ 2.93 Director, Office of Procurement ices, achieving sustainable principles
and Property Management. for new and existing buildings, pro-
(a) Delegations. Pursuant to moting electronic stewardship, and
§§ 2.24(a)(6) and 2.24(a)(13), and with due continuing environmental manage-
deference for delegations to other De- ment system use. Maintain liaison
partmental Management officials, the with the Office of the Federal Environ-
following delegations of authority are mental Executive, the Council on Envi-
made by the Assistant Secretary for ronmental Quality, the Office of Man-
Administration to the Director, Office agement and Budget (OMB), the De-
of Procurement and Property Manage- partment of Energy, and other Govern-
ment: ment agencies in these matters.
(x) Implementation of a program for
(1) Exercise full Departmentwide con-
the Federal procurement of biobased
tracting and procurement authority.
products and of a voluntary ‘‘USDA
(2) Promulgate policies, standards,
Certified Biobased product’’ labeling
techniques, and procedures, and rep-
program (7 U.S.C. 8102).
resent the Department, in the fol-
(xi) Entering into cooperative agree-
lowing:
ments to further research programs in
(i) Acquisition, including, but not the food and agricultural sciences, re-
limited to, the procurement of sup- lated to establishing and implementing
plies, services, equipment, and con- Federal biobased procurement and vol-
struction. untary biobased labeling programs (7
(ii) Socioeconomic programs relating U.S.C. 3318).
to contracting. (xii) Implementation of the policies
(iii) Selection, standardization, and and procedures set forth in OMB Cir-
simplification of program delivery cular No. A–76, Performance of Com-
processes utilizing contracts. mercial Activities.
(iv) Acquisition, leasing, utilization, (3) Exercise the following special au-
value analysis, construction, mainte- thorities:
nance, and disposition of real and per- (i) The Director, Office of Procure-
sonal property, including control of ment and Property Management, is
space assignments. designated as the Departmental Debar-
(v) Motor vehicle and aircraft fleet ring Officer and authorized to perform
and other vehicular transportation. the functions of 48 CFR part 9, subpart
(vi) Transportation of things (traffic 9.4 related to procurement activities,
management). except for commodity acquisitions on
(vii) Prevention, control, and abate- behalf of the Commodity Credit Cor-
ment of pollution with respect to Fed- poration (7 CFR part 1407), with au-
eral facilities and activities under the thority to redelegate suspension and
control of the Department (Executive debarment authority for contracts
Order 12088, ‘‘Federal Compliance With awarded under the School Lunch and
290
Surplus Removal Programs (42 U.S.C. the Chief Information Officer. This del-
1755 and 7 U.S.C. 612c). egation includes the authority to:
(ii) Conduct liaison with the Office of (i) Ensure that OMB Circular No. A–
Federal Register (1 CFR part 16) in- 109 is effectively implemented in the
cluding the making of required certifi- Department and that the management
cations pursuant to 1 CFR part 18. objectives of the Circular are realized.
(iii) Maintain custody and permit ap- (ii) Review the program management
propriate use of the official seal of the of each major system acquisition, ex-
Department. cluding information technology.
(iv) Establish policy for the use of (iii) Designate the program manager
the official flags of the Secretary and for each major system acquisition, ex-
the Department. cluding information technology.
(v) Coordinate collection and disposi- (iv) Designate any Departmental ac-
tion of personal property of historical quisition, excluding information tech-
significance. nology, as a major system acquisition
(vi) Make information returns to the under OMB Circular No. A–109.
Internal Revenue Service as prescribed (5) Pursuant to Executive Order
by 26 U.S.C. 6050M and by 26 CFR 12931, ‘‘Federal Procurement Reform,’’
1.6050M–1 and such other Treasury reg- 3 CFR, 1994 Comp., p. 925, and sections
ulations, guidelines or procedures as 16, 22, and 37 of the Office of Federal
may be issued by the Internal Revenue Procurement Policy Act, as amended,
Service in accordance with 26 U.S.C. 41 U.S.C. 414, 418b, and 433, serve as the
6050M. This includes making such Senior Procurement Executive for the
verifications or certifications as may Department with responsibility for the
be required by 26 CFR 1.6050M–1 and following:
making the election allowed by 26 CFR (i) Prescribing and publishing De-
1.6050M–1(d)(5)(1). partmental acquisition policies,
(vii) Promulgate regulations for the advisories, regulations, and procedures.
management of contracting and pro- (ii) Taking any necessary actions
curement for information technology consistent with policies, regulations,
and telecommunication equipment, and procedures, with respect to pur-
software, services, maintenance and re- chases, contracts, leases, agreements,
lated supplies. and other transactions.
(viii) Represent the Department in (iii) Designating contracting officers.
working with the Government Ac- (iv) Establishing clear lines and limi-
countability Office (GAO), the General tations of contracting authority
Services Administration, OMB, and through written delegations of author-
other organizations or agencies on ity.
matters related to assigned responsibil- (v) Approving any Departmental and
ities. component agency procurement sys-
(ix) Redelegate, as appropriate, the tems and processes.
authority in paragraphs (a)(10) and (vi) Managing and enhancing career
(a)(12) of this section to agency Prop- development of the Department’s ac-
erty Officials or other qualified agency quisition workforce.
officials with no power of further re- (vii) Participating in the develop-
delegation. ment of Governmentwide procurement
(4) Exercise authority under the De- policies, regulations and standards, and
partment’s Acquisition Executive (the determining specific areas where Gov-
Assistant Secretary for Administra- ernmentwide performance standards
tion) to integrate and unify the man- should be established and applied.
agement process for the Department’s (viii) Developing unique Depart-
major system acquisitions and to mon- mental standards as required.
itor implementation of the policies and (ix) Overseeing the development of
practices set forth in OMB Circular No. procurement goals, guidelines, and in-
novation.
A–109, Major Systems Acquisitions,

with the exception that major system (x) Measuring and evaluating pro-
acquisitions for information tech- curement office performance against
nology shall be under the cognizance of stated goals.
291
(xi) Advising the Assistant Secretary Act of 1980 (15 U.S.C. 3710(i)) (7 CFR
for Administration whether procure- part 2812).
ment goals are being achieved. (11) Promulgate policy and obtain
(xii) Prescribing standards for agency and furnish Federal excess personal
Procurement Executives. property in accordance with section 923
(xiii) Redelegating, suspending, or re- of Public Law 104–127 (7 U.S.C. 2206a),
voking, as appropriate, the authority to support research, educational, tech-
in paragraph (a)(5)(i) of this section to nical and scientific activities or for re-
agency Procurement Executives or lated programs, to:
other qualified agency officials with no (i) Any 1994 Institutions (as defined
power of further redelegation. in section 532 of the Equity in Edu-
(xiv) Redelegating, suspending, or re- cational Land-Grant Status Act of 1994
voking, as appropriate, the authorities (Pub. L. 103–382; 7 U.S.C. 301 note)).
in paragraphs (a)(5)(ii), (iii), (iv), (vi), (ii) Any Institutions eligible to re-
and (vii) of this section to agency Pro- ceive funds under the Act of August 30,
curement Executives or other qualified 1890 (7 U.S.C. 321, et seq.) including
agency officials with the power of fur- Tuskegee University.
ther redelegation. (iii) Any Hispanic-serving Institu-
(6) Represent the Department in es- tions (as defined in section 316(b) of the
tablishing standards for acquisition Higher Education Act of 1965 (20 U.S.C.
transactions within the electronic data 1059c(b)).
interchange environment. (12) Make available to organizations
(7) Designate the Departmental Task excess or surplus computers or other
Order Ombudsman pursuant to 41 technical equipment of the Department
U.S.C. 253j. for the purpose of distribution to cit-
(8) Serve as Departmental Remedy ies, towns, or local government entities
Coordination Official pursuant to 41 in rural areas (7 U.S.C. 2206b).
U.S.C. 255 to determine whether pay- (13) Issue regulations and directives
ment to any contractor should be re- to implement or supplement the Fed-
duced or suspended based on substan- eral Acquisition Regulations (48 CFR
tial evidence that the request of the chapter 1 and 4).
contractor for advance, partial, or (14) Issue regulations and directives
progress payment is based on fraud. to implement or supplement the Fed-
(9) Review and approve exemptions eral Property Management Regulations
for USDA contracts, subcontracts, (41 CFR chapter 101) and the Federal
grants, agreements, and loans from the Management Regulation (41 CFR chap-
requirements of the Clean Air Act, as ter 102).
amended (42 U.S.C. 7401, et seq.), the (15) [Reserved]
Federal Water Pollution Control Act,
(16) Pursuant to the Office of Federal
as amended (33 U.S.C. 1251, et seq.), and
Procurement Policy Act (Act), as
Executive Order 11738, ‘‘Providing for
amended (41 U.S.C. 401, et seq.), des-
Administration of the Clean Air Act
ignate the Department’s Advocate for
and the Federal Water Pollution Con-
Competition with the responsibility for
trol Act With Respect to Federal Con-
section 20 of the Act (41 U.S.C. 418), in-
tracts, Grants, or Loans,’’ 3 CFR, 1971–
1975 Comp., p. 799, when he or she deter- cluding:
mines that the paramount interest of (i) Reviewing the procurement activi-
the United States so requires as pro- ties of the Department.
vided in these acts and Executive Order (ii) Developing new initiatives to in-
and the regulations of the EPA (2 CFR crease full and open competition.
1532.1140). (iii) Developing goals and plans and
(10) Transfer excess research equip- recommending actions to increase
ment to eligible educational institu- competition.
tions or certain non-profit organiza- (iv) Challenging conditions unneces-
sarily restricting competition in the
tions for the conduct of technical and

scientific education and research ac- acquisition of supplies and services.
tivities under section 11(i) of the Ste- (v) Promoting the acquisition of
venson-Wydler Technology Innovation commercial items.
292
(vi) Designating an Advocate for Title V of the Department of the Inte-

Competition for each procuring activ- rior and Related Agencies Appropria-
ity within the Department. tions Act of 1998, Public Law 105–83.
(17) Related to compliance with environ- (vii) Ensure that the Hazardous Ma-
mental laws and sustainable operating re- terials Management Program Depart-
quirements. (i) Serve as Departmental ment-wide is accomplished with regard
Management Member and Executive to, and in compliance with, Executive
Secretary of the USDA Sustainable Op- Order 12898, ‘‘Federal Actions to Ad-
erations Council. dress Environmental Justice in Minor-
(ii) Represent USDA in consulting or ity Populations and Low-Income Popu-
working with the EPA, the Council on lations,’’ 3 CFR, 1994 Comp., p. 859.
Environmental Quality, the Domestic (viii) Take such action as may be
Policy Council, and others to develop necessary, with the affected agency
policies relating to hazardous mate- head and with the concurrence of the
rials management and Federal facili- General Counsel, including issuance of
ties compliance with applicable pollu- administrative orders and agreements
tion control laws. with any person to perform any re-
(iii) Monitor, review, evaluate, and sponse action under sections 106(a) and
oversee hazardous materials manage- 122 (except subsection (b)(1)) of the
ment program activities and compli- Comprehensive Environmental Re-
ance Department-wide. sponse, Compensation, and Liability
(iv) Monitor, review, evaluate, and Act of 1980, as amended (42 U.S.C.
oversee USDA agency expenditures for 9606(a), 9622), pursuant to sections
hazardous materials management pro- 4(c)(3) and 4(d)(3) of Executive Order
gram accomplishments. 12580, ‘‘Superfund Implementation,’’ 3
(v) Represent USDA on the National CFR, 1987 Comp., p. 193, as amended by
Response Team and exercise responsi- Executive Order 13016, ‘‘Amendment to
bility for USDA response efforts for Executive Order No. 12580,’’ 3 CFR, 1996
hazardous substance releases and oil Comp., p. 214.
spills pursuant to the Comprehensive (ix) Represent USDA on the EPA
Environmental Response, Compensa- Brownfields Federal Partnership and
tion, and Liability Act of 1980, as coordinate USDA support for
amended (42 U.S.C. 9601, et seq.); the Brownfields redevelopment and estab-
Clean Water Act, as amended (33 U.S.C. lish policy and guidance for the imple-
1251, et seq.); Oil Pollution Act, as mentation of the June 2003 amendment
amended (33 U.S.C. 2701, et seq.); Execu- to Executive Order 12580, ‘‘Superfund
tive Order 12580, ‘‘Superfund Implemen- Implementation,’’ 3 CFR, 1987 Comp., p.
tation,’’ 3 CFR, 1987 Comp., p. 193; Ex- 193 (Executive Order 13308, ‘‘Further
ecutive Order 12777, ‘‘Implementation Amendment to Executive Order 12580,
of section 311 of the Federal Water Pol- As Amended, Superfund Implementa-
lution Control Act of October 18, 1972, tion,’’ 3 CFR, 2003 Comp., p. 239).
as amended, and the Oil Pollution Act (18) Related to occupational safety and
of 1990,’’ 3 CFR, 1991 Comp., p. 351, and health. (i) Establish Departmentwide
the National Oil and Hazardous Sub- safety and health policy and provide
stances Contingency Plan, 40 CFR Part leadership in the development, coordi-
300. When a spill of national signifi- nation, and implementation of related
cance is declared under the Oil Pollu- standards, techniques, and procedures,
tion Act of 1990, responsibility for and represent the Department in com-
USDA response efforts will transfer to plying with laws, Executive Orders and
the Office of Homeland Security and other policy and procedural issuances
Emergency Coordination, as deter- and related to occupational safety and
mined by the Assistant Secretary for health and workers’ compensation pro-
Administration. grams within the Department.
(vi) Approve disbursements from the (ii) Represent the Department in all
New World Mine Response and Restora- rulemaking, advisory, or legislative ca-
tion Account, approve the New World pacities on any groups, committees, or
Mine Response and Restoration Plan, Governmentwide activities that affect
and make quarterly reports to Con- the USDA Occupational Safety and
gress under Sections 502(d) and (f) of Health Management Program.
293
(iii) Determine and provide Depart- ant to section 14008 of FCEA (7 U.S.C.
mentwide technical services and re- 2279 note).
gional staff support for the safety and (6) Administer the low-income mi-
health programs. grant and seasonal farmworker grants
(iv) Administer the computerized program under section 2281 of the Food,
management information systems for Agriculture, Conservation, and Trade
the collection, processing, and dissemi- Act of 1990 (42 U.S.C. 5177a).
nation of data related to the Depart- (7) Consult with appropriate entities
ment’s occupational safety and health regarding integration of farmworker
programs. interests into Department programs,
(v) Administer the Department’s Oc- including assisting farmworkers in be-
cupational Health and Preventive Med- coming agricultural producers or land-
icine Program, as well as design and owners, and research, program im-
operate employee assistance and work- provements, and agricultural education
ers’ compensation activities. opportunities for low-income and mi-
(vi) Provide education and training grant seasonal farmworkers.
on a Departmentwide basis for safety (8) Administer the grants program
and health-related issues and develop under section 14204 of FCEA (7 U.S.C.
resource and operational manuals. 2008q–1) to improve the supply, sta-
(19) In coordination with the Chief bility, safety, and training of the agri-
Financial Officer, implement the de- cultural labor force.
barment authorities in section 14211 of (9) Administer and coordinate a
the Food, Conservation, and Energy USDA outreach program in collabora-
Act of 2008 (7 U.S.C. 2209j), in connection with USDA agencies.
tion with procurement activities. (10) Administer section 2501A of the
(b) [Reserved] Food, Agriculture, Conservation, and
Trade Act of 1990 (7 U.S.C. 2279–1), in-
§ 2.94 Director, Office of Advocacy and cluding the authority to coordinate De-
Outreach. partment policy for the issuance of re-
ceipts under subsection (e) of that sec-
(a) Delegations. Pursuant to tion.
§ 2.24(a)(7), and with due deference for
(11) Provide strategic planning and
delegations to other Departmental
performance measurement, coordinate
Management officials, the following
outreach activities, monitor goals and
delegations of authority are made by
objectives, and evaluate programs, of
the Assistant Secretary for Adminis-
Department programs and activities
tration to the Director, Office of Advo-
involving small farms or ranches and
cacy and Outreach:
beginning or socially disadvantaged
(1) Ensure that small farms and farmers or ranchers.
ranches, beginning farmers or ranch- (12) Administer the USDA/1994 Land
ers, and socially disadvantaged farmers Grant Institutions (Tribal Colleges)
or ranchers have access to, and equi- Programs.
table participation in, programs and (13) Administer the USDA/1890 Liai-
services of the Department pursuant to son Officer Program.
section 226B(c) of the Department of (14) Administer the Hispanic Serving
Agriculture Reorganization Act of 1994 Institutions National Program.
(7 U.S.C. 6934(c)). (b) [Reserved]
(2) Oversee the Advisory Committee
for Beginning Farmers and Ranchers. § 2.95 Director, Office of Homeland Se-
(3) Oversee the operations of the Of- curity and Emergency Coordina-
fice of Small Farms Coordination. tion.
(4) Administer section 2501 of the (a) Delegations from the Secretary. Pur-
Food, Agriculture, Conservation, and suant to Executive Order 10450, ‘‘Secu-
Trade Act of 1990 (7 U.S.C. 2279), except rity Requirements for Government Em-
for authorities related to the Census of ployment’’ (18 FR 2489, Apr. 29, 1953);
Agriculture and economic studies in
Executive Order 12968, ‘‘Access to Clas-

subsection (h) of that section. sified Information,’’ 3 CFR, 1995 Comp.,
(5) Establish and oversee the Minor- p. 391; Executive Order 13526, ‘‘Classi-
ity Farmer Advisory Committee pursu- fied National Security Information’’ (75
294
FR 707, Jan. 5, 2010); and 5 CFR part 5121, et seq.; and by Executive Orders
732, and with due deference for delega- 12148, ‘‘Federal Emergency Manage-
tions to other Departmental Manage- ment,’’ 3 CFR, 1979 Comp., p. 412, 12919,
ment officials, the following delega- ‘‘National Defense Industrial Resources
tions of authority are made by the Sec- Preparedness,’’ 3 CFR, 1994 Comp., p.
retary to the Director, Office of Home- 901, and 12656, ‘‘Assignment of Emer-
land Security and Emergency Coordi- gency Preparedness Responsibilities,’’ 3
nation, pursuant to the Director’s re- CFR, 1988 Comp., p. 585; or any suc-
sponsibilities as the Departmental Na- cessor to these Executive Orders, to en-
tional Security Programs Officer, as sure that the Department has suffi-
designated by the Secretary: cient capabilities to respond to any oc-
(1) Manage the personnel security currence, including natural disaster,
functions of the Department, which in- military attack, technological emer-
cludes sole authority for making eligi- gency, or any other all hazards inci-
bility access determinations and spondent.
soring Sensitive Compartmented Infor- (ii) Manage the Department Emer-
mation clearances; obtaining and gency Operations Center at Head-
granting security clearances for USDA quarters and the Secretary’s alter-
employees and consultants and volun- native facilities; provide senior staff
teers on authorized agreements; and with international, national, and re-
suspending, denying, or revoking ac- gional situational awareness reports;
cess to national security information and provide and maintain current in-
(Executive Order 12968 ‘‘Access to Clas- formation systems technology and Na-
sified Information’’, as amended), not- tional Security Systems to support
withstanding the Secretary’s authority USDA executive crisis management ca-
to remove an employee for national se- pability.
curity reasons as outlined in 5 U.S.C. (iii) Provide facilities and equipment
7532.
to facilitate inter-agency coordination
(2) Manage, coordinate, develop, and
during emergencies.
promulgate policies and training re-
(iv) Activate the USDA incident
garding personnel security, and serve
as USDA’s personnel security liaison to management system in accordance
the Office of Personnel Management with the National Response Frame-
and Director of National Intelligence. work and the National Incident Man-
(3) Review and develop recommenda- agement System in the event of a
tions on classifying, declassifying, and major incident; and provide oversight
safeguarding national security infor- and coordination of the Department’s
mation for which the Secretary is re- Emergency Support Functions as out-
sponsible as Original Classification Au- lined in the National Response Frame-
thority. work.
(b) Delegations from the Assistant Sec- (v) Develop and promulgate policies
retary for Administration. Pursuant to for the Department regarding emer-
§ 2.24(a)(8), and with due deference for gency preparedness and national secu-
delegations to other Departmental rity, including matters relating to
Management officials, the following anti-terrorism and agriculture-related
delegations of authority are made by emergency preparedness planning, both
the Assistant Secretary for Adminis- national and international, and guid-
tration to the Director, Office of Home- ance to USDA State and County Emer-
land Security and Emergency Coordi- gency Boards.
nation: (vi) Establish and provide oversight
(1) Administer the Department Emer- of a Department-wide training program
gency Preparedness Program. This infor the National Incident Management
cludes: System to include Incident Command
(i) Coordinate the delegations and as- System, National Response Frame-
signments made to the Department work, Continuity programs, and Crit-
ical Infrastructure Protection pro-
under the Defense Production Act of

1950, 50 U.S.C. App. 2061, et seq.; the gram.
Robert T. Stafford Disaster Relief and (vii) Provide representation and liai-
Emergency Assistance Act, 42 U.S.C. son for the Department in contacts
295
with other Federal entities and organi- gency planning and public education
zations, including the National Secu- under Department authorities dele-
rity Council, Homeland Security Coun- gated or assigned under the National
cil, Office of Management and Budget, Response Framework, National Infra-
Department of Homeland Security, structure Protection Plan, Defense
Federal Emergency Management Agen- Production Act of 1950, 50 U.S.C. App.
cy, Office of The Director of National 2061, et seq., and Robert T. Stafford Dis-
Intelligence, and Department of De- aster Relief and Emergency Assistance
fense concerning matters of a national Act, 42 U.S.C. 5121, et seq.
security, natural disaster, other emer- (5) Oversee the Department’s ability
gencies, and agriculture/food-related to collect and disseminate information
international civil emergency planning and prepare for an agricultural disease
and related activities. emergency, agroterrorist act, or other
(viii) Act as the primary USDA rep- threat to agricultural biosecurity, and
resentative for anti-terrorism activi- coordinate such activities among agen-
ties. cies and offices within the Department
(ix) Develop and submit a coordi- (7 U.S.C. 8912).
nated budget request for homeland se- (6) Administer a funded competitive
curity requirements. grant program to support the develop-
(x) Provide guidance and direction ment and expansion of advanced train-
regarding radiological emergency pre- ing programs in agricultural biosecu-
paredness programs and the implemen- rity planning and response for food
tation of the National Response science professionals and veterinar-
Framework’s Nuclear/Radiological In- ians; administer a funded competitive
cident Annex to Departmental staff of- grant and low-interest loan assistance
fices, mission areas, and agencies. program to assist States in assessing
(xi) Provide program leadership and agricultural disease response capa-
coordination for USDA’s radiological
bility (7 U.S.C. 8913).
emergency preparedness requirements
(7) Promulgate Departmental poli-
with respect to Emergency Manage-
cies, standards, techniques, and proce-
ment and Assistance (44 CFR parts 350–
352). dures; and represent the Department in
(xii) Represent USDA on the Federal maintaining the security of physical
Radiological Preparedness Coordi- facilities and providing security guid-
nating Committee (FRPCC) and Re- ance to the Food and Agricultural Sec-
gional Assistance Committees (RACs) tor nationwide.
and assist them in carrying out their (i) Lead and coordinate the develop-
functions. ment and maintenance of a mission
(xiii) Support USDA in its manage- critical facility inventory with agency
ment of the Department’s emergency involvement to ensure proper security
response program with respect to radi- countermeasures are implemented in
ological emergency response activities. the Department’s most critical infra-
(xiv) Exercise responsibility for structure.
USDA response efforts when a spill of (ii) Provide guidance to USDA agen-
national significance is declared under cies in matters of physical security
the Oil Pollution Act of 1990, as deter- through use of physical security assess-
mined by the Assistant Secretary for ments and development of mitigation
Administration. strategies.
(2) Provide for the personal security (iii) Provide guidance to USDA agen-
to the Secretary and the Deputy Sec- cies and the Food and Agricultural
retary. Sector in matters of security through
(3) Serve as the primary point of con- use of assessments and development of
tact for Government Accountability mitigation strategies.
Office (GAO) and Office of the Inspec- (iv) Represent and act as liaison for
tor General (OIG) audits of USDA the Department in contacts with other
homeland security activities. Federal security entities and organiza-

(4) Coordinate interaction between tions, including the Interagency Secu-
Department agencies and private sec- rity Committee and the Department of
tor businesses and industries in emer- Homeland Security.
296
(v) Provide guidance and direction to (i) Direct and administer USDA’s
ensure physical security and agri- public trust program established pursu-
culture/food security are fully inte- ant to 5 CFR part 731 and Executive
grated in USDA’s security prepara- Order 13488, ‘‘Granting Reciprocity on
tions, which are reported to and coordi- Excepted Service and Federal Con-
nated with the White House. tractor Employee Fitness and Reinves-
(vi) Provide assistance to the USDA tigating Individuals in Positions of
agencies in preparation for and during Public Trust’’ (74 FR 4111, Jan. 22,
a disaster to identify critical assets 2009).
and possible alternate storage loca- (ii) Direct and administer USDA’s
tions. program under which information is
(vii) Conduct physical security inves- safeguarded pursuant to Executive
tigations and compliance reviews De- Order 13526, ‘‘Classified National Secu-
partment-wide. rity Information’’ (75 FR 707, Jan. 5,
(viii) Review and provide coordinated 2010), or subsequent orders.
technical physical security assess- (iii) Establish and maintain Informa-
ments for all new construction of lab- tion Security policies and procedures
oratories, data centers, germplasm re- for classifying, declassifying, safe-
positories, and other mission critical guarding, and disposing of classified
infrastructure during the design phase, national security information and ma-
and all leased facilities prior to con- terials.
tract award. (iv) Investigate or delegate authority
(ix) Oversee and manage physical se- to investigate any potential com-
curity aspects of the Common Identi- promises of classified national security
fication Card (LincPass) Program to information and take corrective action
ensure National Institute of Standards for violations or infractions under sec-
and Technology (NIST) and General tion 5.5 (b), of Executive Order 13526 or
Services Administration (GSA) compli- any subsequent order.
ancy within the National Capital Re- (v) Develop and maintain oversight of
gion and the physical access to USDA all facilities throughout USDA where
facilities. classified national security informa-
(x) Provide enterprise connectivity to tion is or will be safeguarded, dis-
agency physical access control systems cussed, or processed including sole au-
that provide cost leveraging and provi- thority to liaison with the Central In-
sioning/de-provisioning nationwide. telligence Agency concerning guidance,
(8) Provide oversight and coordina- approval, requirements, and oversight
tion of the development and adminis- of USDA secure facilities.
tration of the Department Continuity (vi) Act as the USDA focal point to
Program. This includes: identify, receive, disseminate and safe-
(i) Provide guidance and direction re- guard USDA related intelligence infor-
garding continuity of operations to the mation as required; convey informa-
Office of the Secretary, Departmental tion to USDA policy officials; and li-
staff offices, mission areas, and agen- aise with the intelligence community,
cies. as appropriate.
(ii) Represent and act as liaison for (10) Control within USDA the acqui-
the Department in contacts with other sition, use, and disposal of material
Federal entities and organizations con- and equipment that can be a source of
cerning matters of assigned continuity ionizing radiation.
program responsibilities. (i) Promulgate policies and proce-
(iii) Oversee Department continuity dures for ensuring the safety of USDA
of operations and emergency relocation employees, the public, and the environ-
facility planning, development, equipment resulting from USDA’s use of ion-
ping, and preparedness to ensure that izing radiation sources.
resources are in a constant state of (ii) Maintain and ensure compliance
readiness. with the Nuclear Regulatory Commis-
(9) Provide for the development and sion regulations (Title 10, Code of Fed-
administration of a Public Trust pro- eral Regulations) and license(s) issued
gram for the safeguarding of national to USDA for the acquisition, use, and
security information: disposal of radioactive materials.
297
§ 2.96 Director, Office of Operations. (iv) General supplies, shipping and re-
(a) Delegations. Pursuant to ceiving, warehouse and labor services.
§ 2.24(a)(9), and with due deference for (v) Operation of a USDA Consolidated
delegations to other Departmental Forms and Publications Distribution
Management officials, the following Center for storage and nationwide dis-
delegations of authority are made by tribution of USDA program forms and
the Assistant Secretary for Adminis- publications.
tration to the Director, Office of Oper- (vi) Excess personal property oper-
ations: ations with disposition responsibility
(1) Provide services relating to facili- for all USDA agencies in the Wash-
ties management and daily operational ington, DC metropolitan area.
support for agencies and offices occu- (vii) Operation of a GSA authorized
pying USDA’s headquarters complex, Federal excess property Sales Center
George Washington Carver Center, and, for USDA property and other govern-
in coordination with the General Serv- ment agencies in the Washington, DC
ices Administration (GSA), USDA metropolitan area via Memorandum of
leased facilities in the Washington, DC Understanding (MOU).
metropolitan area, as well as at emer- (3) Promulgate Departmental regula-
gency relocation sites and certain crit- tions, standards, techniques, and proce-
ical facilities specified by the Assistant dures and represent the Department in
Secretary for Administration in the managing and maintaining a com-
following areas: prehensive physical and technical secu-
(i) Acquiring, leasing, utilizing, con- rity program including access control,
structing, maintaining, and disposing management of special police officer
of real property, including control of and guard services, executive driving,
space assignments, and architecture parking, ID badging in accordance with
and engineering design oversight. HSPD–12, occupant emergency and
(ii) Sustainable Operations leader- warden services at the USDA Head-
ship and management in the areas of quarters Complex, George Washington
internal energy efficiency, conserva- Carver Center and, in coordination
tion and recycling in support of Execu- with GSA, USDA leased facilities in
tive Orders 13423, ‘‘Strengthening Fed- the Washington, DC metropolitan area,
eral Environmental, Energy, and as well as at emergency relocation
Transportation Management,’’ 3 CFR, sites and certain critical facilities
2007 Comp., p. 193, and 13514, ‘‘Federal specified by the Assistant Secretary for
Leadership in Environmental, Energy, Administration.
and Economic Performance’’ (74 FR (4) Provide management and over-
52117, Oct. 8, 2009). sight of the Secretary’s People’s Gar-
(iii) Occupational health, safety, and den initiative and the USDA Visitor’s
related functions; and environmental Center for education and outreach to
compliance pursuant to Executive USDA and the public.
Order 12088, ‘‘Federal Compliance with (5) Represent the Department in con-
Pollution Control Standards,’’ 3 CFR, tacts with other organizations or agen-
1978 Comp., p. 243, to ensure actions are cies on matters related to assigned re-
taken for the prevention, control, and sponsibilities.
abatement of environmental pollution. (b) [Reserved]
(2) Provide centralized Departmental
business services including: § 2.97 Director, Office of the Executive
(i) Printing, copy reproducing, offset Secretariat.
composing, mail management and de- (a) Delegations. Pursuant to
livery, and automated mailing lists. § 2.24(a)(10), and with due deference for
(ii) USDA Nationwide mail manage- delegations to other Departmental
ment policy. Management officials, the following
(iii) Operation of a disability re- delegations of authority are made by
source center for all USDA agencies in the Assistant Secretary for Adminis-
the Washington, DC metropolitan area tration to the Director, Office of the

and nationwide in the areas of acces- Executive Secretariat:
sible technologies and reasonable ac- (1) Exercise responsibility for all cor-
commodations. respondence control and related
298
records management functions for the (4) Provide administrative and finan-
Office of the Secretary. cial management support in the award
(2) Provide administrative, editorial, and administration of grants, coopera-
and project management support serv- tive agreements, and Memoranda of
ices to the Immediate Office of the Sec- Understanding in support of Depart-
retary. mental Management programs, with
(b) [Reserved] authority to take actions as required
by law or regulation for the offices and
§ 2.98 Director, Management Services. agencies reporting to the Assistant
(a) Delegations. Pursuant to Secretary for Administration.
§ 2.24(a)(11), and with due deference for (5) Provide human resources oper-
delegations to other Departmental ational services for the following (with
Management officials, the following the exception of Senior Executives,
delegations of authority are made by Senior Level positions, and Political
the Assistant Secretary for Adminis- Appointees):
tration to the Director, Management (i) The Secretary of Agriculture.
Services: (ii) The general officers of the De-
(1) Provide a full range of services, partment.
including: Procurement of supplies, (iii) The offices and agencies report-
services, and equipment; travel sup- ing to the Assistant Secretary for Ad-
port, conference management, general ministration.
administrative support including co- (iv) Any other offices and agencies of
ordination of office renovations and the Department as may be agreed.
moves (within USDA Whitten Build- (b) [Reserved]
ing); budget, accounting, fiscal and re-
lated financial management services; Subpart Q—Delegations of
information technology services re- Authority by the General Counsel
lated to end user office automation,
desktop computers, enterprise net- § 2.200 Deputy General Counsel.
working support, handheld devices and
Pursuant to § 2.31, the following dele-
voice telecommunications; with au-
gation of authority is made by the
thority to take actions required by law
General Counsel to the Deputy General
or regulation to perform said services
Counsel, to be exercised only during
for:
(A) The Secretary of Agriculture. the absence or unavailability of the
(B) The general officers of the De- General Counsel: Perform all duties
partment, except the Inspector Gen- and exercise all powers which are now
eral. or which may hereafter be delegated to
(C) The offices and agencies reporting the General Counsel.
to the Assistant Secretary for Admin- [75 FR 43393, July 23, 2010]
istration.
(D) Any other offices or agencies of Subpart R—Delegations of Author-
the Department as may be agreed. ity by the Assistant Secretary
(2) Prepare responses to requests
under the Freedom of Information Act
for Civil Rights
with authority to take actions as re- § 2.300 Deputy Assistant Secretary for
quired by law or regulation for the of- Civil Rights.
fices and agencies reporting to the As-
Pursuant to § 2.88, the following dele-
sistant Secretary for Administration.
gation of authority is made by the As-
(3) Administer the records manage-
sistant Secretary for Civil Rights to
ment program in support of Depart-
the Deputy Assistant Secretary for
mental Management, and prepare and
Civil Rights, to be exercised only dur-
coordinate responses to management
ing the absence or unavailability of the
audits by the Inspector General and
Assistant Secretary: Perform all duties
the Government Accountability Office,
and exercise all powers which are now
with authority to take actions as re-

or which may hereafter be delegated to
quired by law or regulation for the of-
the Assistant Secretary.
fices and agencies reporting to the As-
sistant Secretary for Administration. [75 FR 43393, July 23, 2010]
299
Subpart S—Delegations of Author- (3) Formulate and promulgate De-

ity by the Chief Information partmental budgetary, legislative and
regulatory policies and procedures.
Officer
(4) Represent the Department in con-
§ 2.400 Deputy Chief Information Offi- tacts with the Office of Management
cer. and Budget, the Government Account-
ability Office, the Department of the
Pursuant to § 2.89, the following dele- Treasury, Congressional Committees
gation of authority is made by the on Appropriations, and other organiza-
Chief Information Officer to the Dep- tions and agencies on matters related
uty Chief Information Officer, to be ex- to his or her responsibility.
ercised only during the absence or un- (5) Coordinate and/or conduct policy
availability of the Chief Information and program analyses on agency oper-
Officer: Perform all duties and exercise ations and proposals to assist the Sec-
all powers which are now or which may retary, general officers and other De-
hereafter be delegated to the Chief In- partment and agency officials in for-
formation Officer. mulating and implementing USDA
[75 FR 43393, July 23, 2010] policies and programs.
(6) Review and analyze legislation,
Subpart T—Delegations of Author- regulations, and policy options to de-
termine their impact on USDA pro-
ity by the Chief Financial Offi- grams and policy objectives and on the
cer Department’s budget.
(7) Monitor ongoing studies with sig-
SOURCE: 75 FR 43393, July 23, 2010, unless nificant program or policy implica-
otherwise noted. tions.
(b) [Reserved]
§ 2.500 Deputy Chief Financial Officer.
Pursuant to § 2.90, the following dele- PART 3—DEBT MANAGEMENT
gation of authority is made by the
Chief Financial Officer to the Deputy Subpart A—General
Chief Financial Officer, to be exercised
only during the absence or unavail- Sec.
ability of the Chief Financial Officer: 3.1 Purpose and scope.
Perform all the duties and exercise all 3.2 Authority.
the powers which are now or which 3.3 Definitions.
3.4 Delegations of authority.
may hereafter be delegated to the Chief
Financial Officer. Subpart B—Standards for the Administra-
tive Collection and Compromise of
§ 2.501 Director, Office of Budget and
Program Analysis. Claims
(a) The following delegations of au- 3.10 Aggressive agency collection activity.
thority are made by the Chief Finan- 3.11 Demand for payment.
cial Officer to the Director, Office of 3.12 Reporting of consumer debts.
Budget and Program Analysis: 3.13 Contracting with private collection
contractors and with entities that locate
(1) Serve as the Department’s Budget and recover unclaimed assets. [Reserved]
Officer and exercise general responsi- 3.14 Suspension or revocation of eligibility
bility and authority for all matters re- for loans and loan guarantees, licenses,
lated to the Department’s budgeting permits, or privileges.
affairs including: 3.15 Liquidation of collateral.
(i) Resource administration, includ- 3.16 Collection in installments.
ing all phases of the acquisition, and 3.17 Interest, penalties, and administrative
distribution of funds and staff years. costs.
3.18 Use and disclosure of mailing addresses.
(ii) Legislative and regulatory re-
3.19 Standards for the compromise of
porting and related activities.
claims.
(2) Provide staff assistance for the 3.20 Standards for suspending or termi-
Secretary, general officers, and other nating collection activities.
Department and agency officials. 3.21 Referrals of Debts to Justice.
300
Subpart C—Referral of Debts to Treasury 3.84 Procedures for salary offset: imposition
of interest, penalties, and administrative
3.30 General requirements. costs.
3.31 Mandatory referral for cross-servicing. 3.85 Non-waiver of rights.
3.32 Discretionary referral for cross-serv- 3.86 Refunds.
icing. 3.87 Agency regulations.
3.33 Required certification.
3.34 Fees. Subpart H—Cooperation with the Internal
Revenue Service
Subpart D—Administrative Offset
3.90 Reporting discharged debts to the In-
3.40 Scope. ternal Revenue Service.
3.41 Procedures for notification of intent to
collect by administrative offset. Subpart I—Adjusted Civil Monetary
3.42 Debtor rights to inspect or copy
records, submit repayment proposals, or
Penalties
request administrative review. 3.91 Adjusted civil monetary penalties.
3.43 Non-centralized administrative offset.
3.44 Centralized administrative offset. AUTHORITY: 5 U.S.C. 301; 31 U.S.C. 3701, 3711,
3.45 USDA payment authorizing agency off- 3716–18, 3720B; 31 CFR parts 285 and 901–904.
set of pro rata share of payments due en- SOURCE: 10 FR 807, Jan. 23, 1945, unless oth-
tity in which debtor participates. erwise noted. Redesignated at 13 FR 6903,
3.46 Offset against tax refunds. Nov. 24, 1948.
3.47 Offset against amounts payable from
Civil Service Retirement and Disability
Fund. Subpart A—General
Subpart E—Administrative Wage SOURCE: 73 FR 4, Jan. 2, 2008, unless other-
Garnishment wise noted.
3.50 Purpose.
3.51 Scope.
§ 3.1 Purpose and scope.
3.52 Definitions. (a) In general. (1) The regulations in
3.53 Procedures. this part prescribe standards and pro-
cedures for use by USDA agencies in
Subpart F—Administrative Reviews for Ad- the collection, compromise, suspen-
ministrative Offset, Administrative sion, or termination of debts owed to
Wage Garnishment, and Disclosure to the United States.
Credit Reporting Agencies (2) The regulations in this part apply
3.60 Applicability. to all debts of the United States sub-
3.61 Presiding employee. ject to collection by USDA agencies,
3.62 Procedures. except as otherwise specified in this
part or by statute.
Subpart G—Federal Salary Offset (3) The regulations in this part do
3.70 Scope. not preclude the Secretary from collec-
3.71 Definitions. tion, compromise, suspension, or ter-
3.72 Coordinating offset with another Fed- mination of debts as otherwise author-
eral agency. ized by law. In such cases the laws and
3.73 Determination of indebtedness. implementing regulations that are spe-
3.74 Notice requirements before offset. cifically applicable to claims collection
3.75 Request for a hearing.
activities of a particular agency gen-
3.76 Result if employee fails to meet dead-
lines. erally shall take precedence over this
3.77 Hearing. part.
3.78 Written decision following a hearing. (b) Agency specific regulations. (1) The
3.79 Review of USDA records related to the regulations of this part shall apply to
debt. the Commodity Credit Corporation to
3.80 Written agreement to repay debts as al- the extent specified in 7 CFR part 1403.
ternative to salary offset. (2) USDA agencies may issue regula-
3.81 Procedures for salary offset: when de-
tions to supplement this part in order
ductions may begin.
3.82 Procedures for salary offset: types of to meet the specific requirements of in-
collection. dividual programs.
3.83 Procedures for salary offset: methods of (c) Inapplicability. The regulations of
collection. this part shall not apply to:
301
(1) Collection of debts owed govern- Contracting officer has the same
ment travel card contractors by USDA meaning as in 41 U.S.C. 601.
employees; Credit reporting agencies (also known
(2) Collection of debts owed by indi- as credit bureaus) means major con-
vidual Food Stamp Program recipients sumer credit reporting agencies that
for whom debt collection procedures have signed agreements with agencies
are provided under 7 CFR 273.18. to receive and integrate credit infor-
mation (data) from voluntary sub-
§ 3.2 Authority. scribers (Federal agencies and private
The regulations in this part are sector entities) into their respective
issued under the Debt Collection Act of databases for the purpose of generating
1982, as amended by the Debt Collec- credit reports for sale to purchasers of
tion Improvement Act of 1996 (DCIA) credit data.
(31 U.S.C. 3701 et seq.) and the Federal Creditor agency means a Federal agen-
Claims Collection Standards issued cy or USDA agency to which a debtor
pursuant to the DCIA by Treasury and owes a debt, including a debt collection
Justice (31 CFR parts 901–904) that pre- center when acting on behalf of a cred-
scribe government-wide standards for itor agency in matters pertaining to
administrative collection, compromise, collection of the debt.
suspension, or termination of agency Day means calendar day unless oth-
collection action, disclosure of debt in- erwise specified.
formation to credit reporting agencies, Debt collection center means Treasury
referral of claims to private collection or other government agency or divi-
contractors for resolution, and referral sion, designated by the Secretary of
to Justice for litigation to collect the Treasury with authority to collect
debts owed the government. The regu- debt on behalf of creditor agencies in
lations under this part also are issued accordance with 31 U.S.C. 3711(g).
under Treasury regulations imple- Debtor means a person who owes a de-
menting DCIA (31 CFR part 285) and re- linquent, nontax debt to the United
lated statutes and regulations gov- States.
erning the offset of Federal salaries (5 Delinquent means a debt that has not
U.S.C. 5512 and 5514; 5 CFR part 550, been paid by the date specified in the
subpart K) and administrative offset of agency’s initial written demand for
tax refunds (31 U.S.C. 3720A). payment or applicable agreement or in-
strument (including a post-delinquency
§ 3.3 Definitions. payment agreement), unless other sat-
For the purpose of this part, except isfactory payment arrangements have
as where otherwise specifically pro- been made, or as otherwise defined by
vided, the term or terms: program specific statutes or regula-
Agency means a subagency, office, or tions.
corporation within USDA subject to Federal agency means any other De-
the authority or general supervision of partment or entity within the Execu-
the Secretary. tive branch of the government.
Centralized administrative offset means Government or Federal government
referral of a debt to the Treasury Off- means the government of the United
set Program (TOP) for offset of pay- States, unless otherwise specified.
ments made to a debtor by Federal Internal administrative offset means a
agencies other than USDA. non-centralized administrative offset
Claim and debt are synonymous and between a USDA creditor agency and a
interchangeable, and refer to an USDA payment authorizing agency.
amount of money, funds, or property Justice means the United States De-
that has been determined by an agency partment of Justice.
official to be due the United States NAD means the USDA National Ap-
from any person, organization, or enti- peals Division.
ty, except another Federal agency. Non-centralized administrative offset
Commercial debt means a debt arising means an agreement between a USDA

out of a business activity. creditor agency and a payment author-
Consumer debt means a debt arising izing agency to offset the payments
out of a personal activity. made by the payment authorizing
302
agency to satisfy a USDA debt. An in- § 3.10 Aggressive agency collection ac-
ternal administrative offset is a type of tivity.
non-centralized administrative offset. An agency shall aggressively collect
Offset means withholding funds pay- all debts arising out of activities of, or
able by the United States to, or held by referred or transferred for collection
the United States for, a person to sat- services to, that agency. Collection ac-
isfy a debt owed by the payee. tivities shall be undertaken promptly
OGC means the USDA Office of the with follow-up action taken as nec-
General Counsel. essary.
Payee means a person who is due a
payment from a payment authorizing § 3.11 Demand for payment.
agency, and includes a person who is (a) Demand Letters. Generally, debt
entitled to all or part of a payment. collection is initiated with a written
Payment authorizing agency means a demand for payment to the debtor un-
Federal agency or USDA agency that is less an applicable agreement or instru-
authorized to disburse payments to a ment (including a post-delinquency
recipient. payment agreement) provides other-
Person means an individual, corpora- wise (such as providing USDA an im-
tion, partnership, association, organi- mediate right to collect upon delin-
zation, State or local government, or quency). Written demand as described
any other type of public or private en- in paragraph (b) of this section shall be
tity other than a Federal agency. made promptly upon a debtor of the
Recoupment means a special method United States in terms that inform the
for adjusting debts arising under the debtor of the consequences of failing to
same transaction or occurrence, such cooperate with the agency to resolve
as obligations arising under the same the debt. The specific content, timing,
contract. and number of demand letters shall de-
Reviewing officer means a person des- pend upon the type and amount of the
ignated by a creditor agency as respon- debt and the debtor’s response, if any,
sible for conducting a hearing or pro- to the agency’s letters or telephone
viding documentary review on the ex- calls. Where statutes or agency regula-
istence of the debt and the propriety of tions are specific as to the require-
an administrative collection action. ments for demand letters, an agency
Secretary means the Secretary of Ag- shall follow its own procedures in for-
riculture, unless otherwise specified. mulating demand letters. Generally,
Treasury means the United States De- one demand letter should suffice. In de-
partment of the Treasury. termining the timing of the demand
USDA means the United States De- letter(s), an agency shall give due re-
partment of Agriculture. gard to the need to refer debts prompt-
ly to Justice for litigation, in accord-
§ 3.4 Delegations of authority. ance with 31 CFR 904.1 or otherwise.
The head of an agency is authorized When necessary to protect the govern-
to exercise any or all of the functions ment’s interest (for example, to pre-
provided by this part with respect to vent the running of a statute of limita-
programs for which the head of the tions), written demand may be pre-
agency has delegated responsibility, ceded by other appropriate actions
and may delegate and authorize the re- under this part, including immediate
delegation of any of the functions vest- referral for litigation.
ed in the head of the agency by this (b) Required notices. In demand let-
part, except as otherwise provided by ters, the USDA creditor agency shall
this part. inform the debtor:
(1) The nature and amount of the
debt; and the facts giving rise to the
Subpart B—Standards for the Ad- debt;
ministrative Collection and (2) How interest, penalties, and ad-
Compromise of Claims
ministrative costs are added to the

debt, the date by which payment must
SOURCE: 73 FR 4, Jan. 2, 2008,unless other- be made to avoid such charges, and
wise noted. that such assessments must be made
303
unless excused in accordance with set may request a hearing (see subpart
§ 3.17; G of this part);
(3) The date by which payment (12) How a debtor may request a
should be made to avoid the enforced waiver of the debt, if applicable;
collection actions described in para- (13) How the debtor’s spouse may
graph (b)(6) of this section; claim his or her share of a joint income
(4) The willingness of the creditor tax refund by filing Form 8379 with the
agency to discuss alternative payment Internal Revenue Service (see http://
arrangements and how the debtor may www.irs.gov);
enter into a written agreement to (14) How the debtor may exercise
repay the debt under terms acceptable other statutory or regulatory rights
to the agency (see § 3.16); and remedies available to the debtor;
(5) The name, address, telephone (15) That certain debtors may be in-
number and email address (optional) of eligible for government loans, guaran-
a contact person or office within the tees, and insurance (see § 3.14);
creditor agency; (16) If applicable, the creditor agen-
(6) The intention of the creditor cy’s intention to suspend or revoke li-
agency to enforce collection if the censes, permits, or privileges (see
debtor fails to pay or otherwise resolve § 3.14); and
the debt, by taking one or more of the (17) That the debtor must advise the
following actions: creditor agency of the filing of any
(i) Offset. Offset the debtor’s USDA bankruptcy proceedings of the debtor
payments and refer the debtor’s debt to or of another person liable for the debt
TOP for offset against other Federal being collected.
payments, including income tax re- (c) Exceptions to notice requirements. A
funds, in accordance with subpart D; USDA creditor agency may omit from
(ii) Private collection agency. [Re- a demand letter one or more of the pro-
served] visions contained in paragraphs (b)(6)
through (b)(17) if the USDA creditor
(iii) Credit reporting agency reporting.
agency, in consultation with OGC, de-
Report the debt to a credit reporting
termines that any provision is not le-
agency in accordance with § 3.12;
gally required given the collection
(iv) Administrative wage garnishment.
remedies to be applied to a particular
Refer the debt to Treasury in accord-
debt.
ance with subpart E for possible collec-
(d) Agencies shall exercise care to en-
tion by garnishing the debtor’s wages
sure that demand letters are mailed or
through administrative wage garnish-
hand-delivered on the same day that
ment;
they are dated. There is no prescribed
(v) Litigation. Refer the debt to Jus- format for demand letters. Agencies
tice in accordance with § 3.21 to initiate shall utilize demand letters and proce-
litigation to collect the debt; dures that will lead to the earliest
(vi) Referral to Treasury. Referral of practicable determination of whether
the debt to Treasury for collection in the debt can be resolved administra-
accordance with subpart C of this part; tively or must be referred for litiga-
(7) That USDA debts over 180 days de- tion.
linquent must be referred to Treasury (e) Agencies shall respond promptly
for the collection actions described in to communications from debtors, with-
paragraph (b)(6) of this section; in 30 days of receipt whenever feasible,
(8) How the debtor may inspect and and shall advise debtors who dispute
copy records related to the debt; debts to furnish available evidence to
(9) How the debtor may request a re- support their contentions.
view of the USDA creditor agency’s de- (f) Prior to the initiation of the de-
termination that the debtor owes a mand process or at any time during or
debt and present evidence that the debt after completion of the demand proc-
is not delinquent or legally enforceable ess, if an agency determines to pursue,
(see subpart F of this part);
or is required to pursue, internal ad-

(10) [Reserved] ministrative offset, the procedures ap-
(11) How a debtor who is a Federal plicable to offset must be followed (see
employee subject to Federal salary off- subpart D). The availability of funds or
304
money for debt satisfaction by internal seek legal advice from OGC to deter-
administrative offset, and the agency’s mine whether recoupment is available.
determination to pursue collection by
internal administrative offset, shall re- § 3.12 Reporting of consumer debts.
lease the agency from the necessity of (a) Notice. In demand letters to debt-
further compliance with paragraphs ors sent in accordance with § 3.11, agen-
(a), (b), and (c) of this section. cies shall inform debtors:
(g) Prior to referring a debt for liti- (1) The intent of the agency to report
gation under 31 CFR part 904, agencies the delinquent consumer debt to credit
shall advise each debtor determined to reporting agencies after 60 days;
be liable for the debt that, unless the (2) The specific information to be
debt can be collected administratively, transmitted (i.e., name, address, and
litigation may be initiated. This notifi- taxpayer identification number, infor-
cation shall comply with Executive mation about the debt);
Order 12988 (3 CFR, 1996 Comp., pp. 157– (3) The actions which may be taken
163) and may be given as part of a de- by the debtor to prevent the reporting
mand letter under paragraph (b) of this (i.e., repayment in full or a repayment
section or in a separate document. agreement); and
Litigation counsel for the government (4) The rights of the debtor to seek
shall be advised that this notice has review of the existence of the debt in
accordance with subpart F.
been given.
(b) Disclosure. Disclosure of delin-
(h) When an agency learns that a quent consumer debts must be con-
bankruptcy petition has been filed with sistent with the requirements of 31
respect to a debtor, before proceeding U.S.C. 3711(e), the Privacy Act of 1974 (5
with further collection action, the U.S.C. 552a), the Bankruptcy Code, and
agency shall immediately seek legal 31 CFR 901.4.
advice from OGC concerning the im- (c) Non-duplication of hearings. When
pact of the Bankruptcy Code on any an agency has given a debtor any of the
pending or contemplated collection ac- notices required by this part and an op-
tivities. Unless the agency is advised portunity for administrative review
that the automatic stay imposed at the under subpart F, the agency need not
time of filing pursuant to 11 U.S.C. 362 duplicate such notice and review oppor-
has been lifted or is no longer in effect, tunities before reporting the delin-
in most cases collection activity quent debt to credit bureaus.
against the debtor must stop imme- (d) Stay of disclosure. Agencies shall
diately. The agency should take the not disclose a delinquent debt to a
following steps: credit reporting agency if a debtor re-
(1) After seeking legal advice, a proof quests review under subpart F until a
of claim must be filed in most cases final determination is made by a re-
with the bankruptcy court or the viewing official that upholds the agen-
Trustee. Agencies shall refer to the cy intent to disclose.
provisions of 11 U.S.C. 106 relating to (e) Commercial debt. The requirement
the consequences on sovereign immu- of this section does not apply to com-
nity of filing a proof of claim. mercial debts, although agencies
(2) If the agency is a secured creditor, should report commercial debts to
it may seek relief from the automatic commercial credit bureaus.
stay regarding its security, subject to
the provisions and requirements of 11 § 3.13 Contracting with private collec-
tion contractors and with entities
U.S.C. 362. that locate and recover unclaimed
(3) Offset is stayed in most cases by assets. [Reserved]
the automatic stay. However, agencies
may seek legal advice from OGC to de- § 3.14 Suspension or revocation of eli-
termine whether their payments to the gibility for loans and loan guaran-
debtor and payments of other agencies tees, licenses, permits, or privileges.
available for offset may be frozen by (a) Agencies are not permitted to ex-
the agency until relief from the auto- tend financial assistance in the form of
matic stay can be obtained from the a loan, loan guarantee, or loan insur-
bankruptcy court. Agencies also may ance to any person delinquent on a
305
nontax debt owed to a Federal agency, agency or instrumentality is grounds

except as otherwise authorized by law for nonprocurement suspension or de-
or upon waiver of application of this barment if the debt is uncontested and
section by the USDA Chief Financial the debtor’s legal administrative rem-
Officer (CFO) or Deputy CFO. This pro- edies for review of the debt are ex-
hibition does not apply to disaster hausted. See 7 CFR 3017.305(c)(3) and
loans. Agencies may extend credit after 405(a)(2).
the delinquency has been resolved. The (e) The failure of any surety to honor
Secretary of the Treasury may exempt its obligations in accordance with 31
classes of debts from this prohibition U.S.C. 9305 shall be reported to Treas-
and has prescribed standards defining ury. Treasury will forward to all inter-
when a ‘‘delinquency’’ is ‘‘resolved’’ for ested agencies notification that a sure-
purposes of this prohibition. See 31 CFR ty’s certificate of authority to do busi-
285.13 (Barring Delinquent Debtors ness with the government has been re-
From Obtaining Federal Loans or Loan voked.
Insurance or Guarantees). (f) The suspension or revocation of li-
(b) Similarly, agencies also are not censes, permits, or privileges also may
permitted to extend financial assist- extend to USDA programs or activities
ance (either directly or indirectly) in that are administered by the States on
the form of grants, loans, or loan guar- behalf of the government, to the extent
antees to judgment debtors who have a that they affect the government’s abil-
judgment lien placed against their ity to collect money or funds owed by
property until the judgment is satis- debtors. Therefore, States that manage
fied, unless the agency grants a waiver USDA activities, pursuant to approval
in accordance with agency regulations. from the agencies, shall ensure that ap-
See 31 U.S.C. 3201(e). propriate steps are taken to safeguard
(c) In non-bankruptcy cases, agencies against issuing licenses, permits, or
seeking the collection of statutory pen-
privileges to debtors who fail to pay
alties, forfeitures, or other types of
their debts to the government.
claims must consider the suspension or
(e) In bankruptcy cases, before advis-
revocation of licenses, permits, or
other privileges for any inexcusable or ing the debtor of an agency’s intention
willful failure of a debtor to pay such a to suspend or revoke licenses, permits,
debt in accordance with the agency’s or privileges, agencies may seek legal
regulations or governing procedures. advice from OGC concerning the im-
The debtor shall be advised in the pact of the Bankruptcy Code, particu-
agency’s written demand for payment larly 11 U.S.C. 362 and 525, which may
of the agency’s ability to suspend or re- restrict such action.
voke licenses, permits, or privileges.
§ 3.15 Liquidation of collateral.
(d) Any agency making, guaran-
teeing, insuring, acquiring, or partici- (a) In accordance with applicable
pating in, loans must consider sus- statutes and regulations, agencies may
pending or disqualifying any lender, liquidate security or collateral through
contractor, or broker from doing fur- a sale or a nonjudicial foreclosure, and
ther business with the agency or en- apply the proceeds to the applicable
gaging in programs sponsored by the debt(s), if the debtor fails to pay the
agency if such lender, contractor, or debt(s) within a reasonable time after
broker fails to pay its debts to the gov- demand and if such action is in the
ernment within a reasonable time or if best interest of the United States. Col-
such lender, contractor, or broker has lection from other sources, including
been suspended, debarred, or disquali- liquidation of security or collateral, is
fied from participation in a program or not a prerequisite to requiring pay-
activity by another Federal agency. ment by a surety, insurer, or guarantor
Failure to pay a single substantial unless such action is expressly required
debt, or a number of outstanding debts by statute or contract.
(including disallowed costs and overrun (b) When an agency learns that a
payments, but not including sums owed bankruptcy petition has been filed with
to the government under the Internal respect to a debtor, the agency may
Revenue Code) owed to any Federal seek legal advice from OGC concerning
306
the impact of the Bankruptcy Code, in- These charges shall continue to accrue
cluding, but not limited to, 11 U.S.C. until the debt is paid in full or other-
362, to determine the applicability of wise resolved through compromise, ter-
the automatic stay and the procedures mination, or waiver of the charges.
for obtaining relief from such stay (b) Agencies shall charge interest on
prior to proceeding under paragraph (a) debts owed the United States as fol-
of this section. lows, except as otherwise required by
law:
§ 3.16 Collection in installments.
(1) Interest shall accrue from the
(a) Whenever feasible, agencies shall date of delinquency, or as otherwise
collect the total amount of a debt in provided by law.
one lump sum. If a debtor is financially (2) Unless otherwise established in a
unable to pay a debt in one lump sum, contract, repayment agreement, or by
agencies may accept payment in reg- statute, the rate of interest charged
ular installments. Agencies shall ob- shall be the rate established annually
tain financial statements from debtors by the Secretary of the Treasury in ac-
who represent that they are unable to cordance with 31 U.S.C. 3717. Pursuant
pay in one lump sum and independ- to 31 U.S.C. 3717, an agency may charge
ently verify such representations a higher rate of interest if it reason-
whenever possible (see 31 CFR 902.2(g) ably determines that a higher rate is
for methods of verification). Agencies necessary to protect the rights of the
that agree to accept payments in reg- United States. The agency must docu-
ular installments shall obtain a legally ment the reason(s) for its determina-
enforceable written agreement from tion that the higher rate is necessary.
the debtor that specifies all terms of
(3) The rate of interest, as initially
the arrangement and that contains a
charged, shall remain fixed for the du-
provision accelerating the debt in the
ration of the indebtedness. When a
event of default.
(b) The size and frequency of install- debtor defaults on a repayment agree-
ment payments shall bear a reasonable ment and seeks to enter into a new
relation to the size of the debt and the agreement, the agency may require
debtor’s ability to pay. If possible, the payment of interest at a new rate that
installment payments shall be suffi- reflects the current value of funds to
cient in size and frequency to liquidate the Treasury at the time the new
the debt in three years or less. agreement is executed. Interest shall
(c) Security for deferred payments not be compounded, that is, interest
shall be obtained in appropriate cases. shall not be charged on interest, pen-
Agencies may accept installment pay- alties, or administrative costs required
ments notwithstanding the refusal of by this section. If, however, a debtor
the debtor to execute a written agree- defaults on a previous repayment
ment or to give security, at the agen- agreement, charges that accrued but
cy’s option. were not collected under the defaulted
agreement shall be added to the prin-
§ 3.17 Interest, penalties, and adminis- cipal under the new repayment agree-
trative costs. ment.
(a) Except as provided in paragraphs (c) Agencies shall assess administra-
(g) and (i) of this section, agencies tive costs incurred for processing and
shall charge interest, penalties, and ad- handling delinquent debts. The calcula-
ministrative costs on debts owed to the tion of administrative costs shall be
United States pursuant to 31 U.S.C. based on actual costs incurred or upon
3717. If not included in the agency’s de- estimated costs as determined by the
mand notice, an agency shall mail or assessing agency.
hand-deliver a written notice to the (d) Unless otherwise established in a
debtor, at the debtor’s most recent ad- contract, repayment agreement, or by
dress available to the agency, explain- statute, agencies shall charge a pen-
ing the agency’s requirements con- alty, pursuant to 31 U.S.C. 3717(e)(2),

cerning these charges except where not to exceed six percent a year on the
these requirements are included in a amount due on a debt that is delin-
contractual or repayment agreement. quent for more than 90 days. This
307
charge shall accrue from the date of de- (i) Agencies are authorized to impose
linquency. interest and related charges on debts
(e) Agencies may increase an ‘‘ad- not subject to 31 U.S.C. 3717, in accord-
ministrative debt’’ by the cost of living ance with the common law. Agencies
adjustment in lieu of charging interest shall consult OGC before imposing in-
and penalties under this section. ‘‘Ad- terest and related charges under com-
ministrative debt’’ includes, but is not mon law for any debt.
limited to, a debt based on fines, pen-
alties, and overpayments, but does not § 3.18 Use and disclosure of mailing
include a debt based on the extension addresses.
of government credit, such as those (a) When attempting to locate a debt-
arising from loans and loan guarantees. or in order to collect or compromise a
The cost of living adjustment is the debt under this part or parts 902–904 of
percentage by which the Consumer title 31 or other authority, agencies
Price Index for the month of June of may send a request to Treasury to ob-
the calendar year preceding the adjust- tain a debtor’s mailing address from
ment exceeds the Consumer Price the records of the Internal Revenue
Index for the month of June of the cal- Service (IRS).
endar year in which the debt was deter- (b) Agencies are authorized to use
mined or last adjusted. Increases to ad- mailing addresses obtained under para-
ministrative debts shall be computed graph (a) of this section to enforce col-
annually. Agencies may use this alter- lection of a delinquent debt and may
native only when there is a legitimate disclose such mailing addresses to
reason to do so, such as when calcu- other agencies and to collection agen-
lating interest and penalties on a debt cies for collection purposes.
would be extremely difficult because of
the age of the debt. § 3.19 Standards for the compromise of
(f) When a debt is paid in partial or claims.
installment payments, amounts re- An agency shall follow the standards
ceived by the agency shall be applied set forth in 31 CFR part 902 for the
first to outstanding penalties, second compromise of debts pursuant to 31
to administrative charges, third to in- U.S.C. 3711 arising out of the activities
terest, and last to principal, except as of, or referred or transferred for collec-
otherwise required by law. tion services to, that agency, except
(g) Agencies shall waive the collec- where otherwise authorized or required
tion of interest and administrative by law.
charges imposed pursuant to this sec-
tion (i.e., this does not apply to inter- § 3.20 Standards for suspending or ter-
est or administrative penalties deter- minating collection activities.
mined by an applicable agreement or An agency shall follow the standards
instrument such as a loan contract) on set forth in 31 CFR part 903 for the sus-
the portion of the debt that is paid pension or termination of collection
within 30 days after the date on which activity pursuant to 31 U.S.C. 3711, ex-
interest began to accrue. Agencies may cept where otherwise authorized or re-
extend this 30-day period on a case-by- quired by law.
case basis. In addition, agencies may
waive interest, penalties, and adminis- § 3.21 Referrals of Debts to Justice.
trative costs charged under this sec- An agency shall promptly refer to
tion, in whole or in part, without re- Justice for litigation debts on which
gard to the amount of the debt, either aggressive collection activity has been
under the criteria set forth in the Fed- taken in accordance with this part, and
eral standards for the compromise of that cannot be compromised by the
debts (31 CFR part 902), or if the agency agency or on which collection activity
determines that collection of these cannot be suspended or terminated in
charges is against equity and good con-
accordance with 31 CFR parts 902 and

science or is not in the best interest of 903. Agencies shall follow the proce-
the United States. dures set forth in 31 CFR part 904 in
(h) [Reserved] making such referrals.
308
Subpart C—Referral of Debts to creditor agency to collect or com-

Treasury promise, or to suspend or terminate
collection, of the debt, including use of
debt collection centers and private col-
SOURCE: 73 FR 4, Jan. 2, 2008, unless other-
wise noted.
lection contractors to collect the debt
or terminate collection action.
§ 3.30 General requirements. (b) The requirement of paragraph (a)
of this section does not apply to any
(a) Agencies are required by law to
debt that:
transfer delinquent, nontax, legally en-
(1) Is in litigation or foreclosure (see
forceable debts to Treasury for collec-
tion through cross-servicing and 31 CFR 385.12 (d)(2) for definition);
through centralized administrative off- (2) Will be disposed of under an ap-
set. Additionally, USDA has chosen to proved asset sale program (see 31 CFR
transfer debts to Treasury for collec- 285.12(d)(3)(i) for definition);
tion through administrative wage gar- (3) Has been referred to a private col-
nishment. Agencies need not make du- lection contractor for a period of time
plicate referrals to Treasury for all acceptable to Treasury;
these purposes; a debt may be referred (4) Is at a debt collection center for a
simultaneously for purposes of collec- period of time acceptable to Treasury;
tion by cross-servicing, centralized ad- (5) Will be collected under internal
ministrative offset, and administrative offset procedures within three years
wage garnishment where applicable. after the debt first became delinquent;
However, in some instances a debt ex- (6) Is exempt from this requirement
empt from collection via cross-serv- based on a determination by the Sec-
icing may be subject to collection by retary of the Treasury that exemption
centralized administrative offset so si- for a certain class of debt is in the best
multaneous referrals are not always interest of the United States. Federal
the norm. This subpart sets forth rules agencies may request that the Sec-
applicable to the transfer of debts to retary of the Treasury exempt specific
Treasury for collection by cross-serv- classes of debts. Any such request by
icing. Rules for transfer to Treasury an agency must be sent to the Fiscal
for centralized administrative offset Assistant Secretary of the Treasury by
are set forth in subpart D, and for ad- the USDA CFO.
ministrative wage garnishment in sub- (c) A debt is considered 180 days de-
part E. linquent for purposes of this section if
(b) When debts are referred or transit is 180 days past due and is legally en-
ferred to Treasury, or Treasury-des- forceable. A debt is past due if it has
ignated debt collection centers under not been paid by the date specified in
the authority of 31 U.S.C. 3711(g), the agency’s initial written demand for
Treasury shall service, collect, or com- payment or applicable agreement or in-
promise the debts, or Treasury will strument (including a post-delinquency
suspend or terminate the collection ac- payment agreement) unless other satis-
tion, in accordance with the statutory factory payment arrangements have
requirements and authorities applica- been made. A debt is legally enforce-
ble to the collection of such debts. able if there has been a final agency de-
termination that the debt, in the
§ 3.31 Mandatory referral for cross- amount stated, is due and there are no
servicing. legal bars to collection action. Where,
(a) Agencies shall transfer to Treas- for example, a debt is the subject of a
ury any legally enforceable nontax pending administrative review process
debt in excess of $25, or combination of required by statute or regulation and
debts less than $25 that exceeds $25 (in collection action during the review
the case of a debtor whose taxpayer process is prohibited, the debt is not
identification number (TIN) is un- considered legally enforceable for pur-
known the applicable threshold is $100), poses of mandatory transfer to Treas-
that has or have been delinquent for a ury and is not to be transferred even if
period of 180 days in accordance with 31 the debt is more than 180 days past due.
CFR 285.12 so that Treasury may take When a final agency determination is
appropriate action on behalf of the made after an administrative appeal or
309
review process (including administra- (1) Debts arising under the Social Se-
tive review under subpart F), the cred- curity Act, except as provided in 42
itor agency must transfer such debt to U.S.C. 404;
Treasury, if more than 180 days delin- (2) Payments made under the Social
quent, within 30 days after the date of Security Act, except as provided for in
the final decision. 31 U.S.C. 3716(c) (see 31 CFR 285.4, Fed-
eral Benefit Offset);
§ 3.32 Discretionary referral for cross- (3) Debts arising under, or payments
servicing.
made under, the Internal Revenue Code
Agencies shall consider referring le- (except for offset of tax refunds) or the
gally enforceable nontax debts that are tariff laws of the United States;
less than 180 days delinquent to Treas- (4) Offsets against Federal salaries
ury or to Treasury-designated ‘‘debt (such offsets are covered by subpart F);
collection centers’’ in accordance with (5) Offsets under 31 U.S.C. 3728
31 CFR 285.12 to accomplish efficient, against a judgment obtained by a debt-
cost effective debt collection if no or against the United States;
USDA payments will be available to (6) Offsets or recoupments under
collect the debt through internal ad- common law, State law, or Federal
ministrative offset under § 3.43. statutes specifically prohibiting offsets
§ 3.33 Required certification. or recoupments of particular types of
debts;
Agencies referring delinquent debts (7) Offsets in the course of judicial
to Treasury for collection via cross- proceedings, including bankruptcy; or
servicing must certify, in writing, that: (8) Intracontractual offsets to satisfy
(a) The debts being transferred are contract debts taken by a contracting
valid and legally enforceable; officer under the Contract Disputes
(b) There are no legal bars to collec- Act, 41 U.S.C. 601–613.
tion; and
(c) Unless otherwise provided for by
(c) The agency has complied with all
contract or law, debts or payments
prerequisites to a particular collection
that are not subject to administrative
action under the laws, regulations or
offset under 31 U.S.C. 3716 may be col-
policies applicable to the agency, un-
lected by administrative offset under
less the agency and Treasury agree
the common law or other applicable
that Treasury will do so on behalf of
statutory authority.
the agency.
(d) Supplemental provisions related
§ 3.34 Fees. to offsets by the Commodity Credit
Corporation (CCC) may be found at 7
Federal agencies operating Treasury- CFR part 1403 and for the Farm Service
designated debt collection centers are Agency at 7 CFR part 792.
authorized to charge a fee for services
(e) Unless otherwise provided by law,
rendered regarding referred or trans-
administrative offset of payments
ferred debts. The fee may be paid out of
under the authority of 31 U.S.C. 3716 to
amounts collected and may be added to
collect a debt may not be conducted
the debt as an administrative cost.
more than 10 years after the govern-
ment’s right to collect the debt first
Subpart D—Administrative Offset accrued, unless facts material to the
government’s right to collect the debt
SOURCE: 73 FR 4, Jan. 2, 2008, unless other- were not known and could not reason-
wise noted. ably have been known by the official or
officials of the government who were
§ 3.40 Scope. charged with the responsibility to dis-
(a) This subpart sets forth the proce- cover and collect such debts. This limi-
dures to be used by agencies in col- tation does not apply to debts reduced
lecting debts by administrative offset. to a judgment.
The term ‘‘administrative offset’’ has (f) In bankruptcy cases, agencies may
the meaning provided in 31 U.S.C. seek legal advice from OGC concerning
3701(a)(1). the impact of the Bankruptcy Code,
(b) This section does not apply to: particularly 11 U.S.C. 106, 362, and 553,
310
on pending or contemplated collections to have been owed to the government;

by offset. or
(4) The agency previously has given a
§ 3.41 Procedures for notification of in- debtor any of the notice and review op-
tent to collect by administrative off- portunities required under this part,
set.
with respect to a particular debt (see,
(a) Prior to initiation of collection by e.g., § 3.11). With respect to loans paid
administrative offset, a creditor agen- on an installment basis, notice and op-
cy must: portunity to review under this part
(1) Send the debtor a written Notice may only be provided once for the life
of Intent to Collect by Administrative of the loan upon the occurrence of the
Offset, by mail or hand-delivery, of the first delinquent installment. Subse-
type and amount of the debt, the inten- quently, if an agency elects this op-
tion of the agency to use non-central- tion, credit reporting agencies may be
ized administrative offset (which in- furnished periodically with updates as
cludes a USDA internal administrative to the current or delinquent status of
offset) to collect the debt 30 days after the loan account and the borrower may
the date of the Notice, the name of the receive notice of referral to TOP for de-
Federal agency or USDA agency from linquent installments without further
which the creditor agency wishes to opportunity for review. Any interest
collect in the case of a non-centralized accrued or any installments coming
administrative offset, the intent to due after the offset is initiated also
refer the debt to Treasury for collec- would not require a new notice and op-
tion through centralized administra- portunity to review.
tive offset (including possible offset of (c) The Notice of Intent to Collect by
tax refunds) 60 days after the date of Administrative Offset shall be included
the Notice if the debt is not satisfied as part of a demand letter issued under
by offset within USDA or by agreement § 3.11 to advise the debtor of all debt
with another Federal agency, and an collection possibilities that the agency
explanation of the debtor’s rights will seek to employ.
under 31 U.S.C. 3716; and
(2) Give the debtor the opportunity: § 3.42 Debtor rights to inspect or copy
(i) To inspect and copy agency records, submit repayment pro-
records related to the debt; posals, or request administrative
(ii) For a review within the agency of review.
the determination of indebtedness in (a) A debtor who intends to inspect
accordance with subpart F; and or copy agency or USDA records with
(iii) To make a written agreement to respect to the debt must notify the
repay the debt. creditor agency in writing within 30
(b) The procedures set forth in para- days of the date of the Notice of Intent
graph (a) of this section are not re- to Collect by Administrative Offset. In
quired when: response, the agency must notify the
(1) The offset is in the nature of a debtor of the location, time, and any
recoupment; other conditions, consistent with part
(2) The debt arises under a contract 1, subpart A, of this title, for inspect-
subject to the Contracts Disputes Act; ing and copying, and that the debtor
(3) In the case of a non-centralized may be liable for reasonable copying
administrative offset, the agency first expenses. A decision by the agency
learns of the existence of the amount under this paragraph shall not be sub-
owed by the debtor when there is insuf- ject to review under subpart F or by
ficient time before payment would be NAD under 7 CFR part 11.
made to the debtor/payee to allow for (b) The debtor may, in response to
prior notice and an opportunity for re- the Notice of Intent to Collect by Ad-
view. When prior notice and an oppor- ministrative Offset, propose to the
tunity for review are omitted, the creditor agency a written agreement to
agency shall give the debtor such no- repay the debt as an alternative to ad-
tice and an opportunity for review as ministrative offset. Any debtor who
soon as practicable and shall promptly wishes to do this must submit a writ-
refund any money ultimately found not ten proposal for repayment of the debt,
311
which must be received by the creditor view conducted under subpart F up-
agency within 30 days of the date of the holds the creditor agency’s decision to
Notice of Intent to Collect by Adminis- offset, or any time after the creditor
trative Offset or 15 days after the date agency notifies the debtor that its re-
of a decision adverse to the debtor payment proposal submitted under
under subpart F. In response, the cred- § 3.42(c) is not acceptable if the 30-day
itor agency must notify the debtor in period for the debtor to seek review of
writing whether the proposed agree- the Notice has expired, unless the cred-
ment is acceptable. In exercising its itor agency makes a determination
discretion, the creditor agency must under § 3.41(b)(3) that immediate action
balance the government’s interest in to effectuate the offset is necessary.
collecting the debt against fairness to (c) Certification. A payment author-
the debtor. A decision by the agency izing agency may conduct a non-cen-
under this paragraph shall not be sub- tralized administrative offset only
ject to review under subpart F or by after certification by a creditor agency
NAD under 7 CFR part 11. that:
(c) A debtor must request an admin- (1) The debtor has been provided no-
istrative review of the debt under sub- tice and opportunity for review as set
part F within 30 days of the date of the forth in § 3.41; and
Notice of Intent to Collect by Adminis- (2) The payment authorizing agency
trative Offset for purposes of a pro-
has received written certification from
posed collection by non-centralized ad-
the creditor agency that the debtor
ministrative offset and within 60 days
owes the past due, legally enforceable
of the date of the Notice of Intent to
delinquent debt in the amount stated,
Collect by Administrative Offset for
and that the creditor agency has fully
purposes of a proposed collection by re-
complied with its regulations con-
ferral to Treasury for offset against
cerning administrative offset.
other Federal payments that would in-
clude tax refunds. (d) Responsibilities of payment author-
izing agencies. Payment authorizing
§ 3.43 Non-centralized administrative agencies shall comply with offset re-
offset. quests by creditor agencies to collect
(a) Scope. In cooperation with the debts owed to the United States, unless
Federal agency certifying or author- the offset would not be in the best in-
izing payments to the debtor, a cred- terests of the United States with re-
itor agency may make a request di- spect to the program of the payment
rectly to a payment authorizing agen- authorizing agency, or would otherwise
cy to offset a payment due a debtor to be contrary to law. Appropriate use
collect a delinquent debt from, for ex- should be made of the cooperative ef-
ample, a Federal employee’s lump sum forts of other agencies in effecting col-
payment upon leaving government lection by administrative offset.
service in order to pay an unpaid ad- (e) Application of recovered amounts to
vance. Also, non-centralized adminis- satisfaction of debts. When collecting
trative offsets include USDA internal multiple debts by non-centralized ad-
administrative offsets, for example, of ministrative offset, agencies shall
CCC payments to pay Farm Service apply the recovered amounts to those
Agency (FSA) delinquent debts. Unless debts in accordance with the best in-
prohibited by law, when centralized ad- terests of the United States, as deter-
ministrative offset is not available or mined by the facts and circumstances
appropriate, past due, legally enforce- of the particular case, particularly the
able nontax delinquent debts may be applicable statute of limitations.
collected through non-centralized ad-
ministrative offset. § 3.44 Centralized administrative off-
(b) Effectuation of offset. A non-cen- set.
tralized administrative offset may be (a) Mandatory referral. After the no-
effected 31 days after the date of the tice and review opportunity require-
Notice of Intent to Collect by Adminis- ments of § 3.41 are met, an agency shall
trative Offset, any time after the final refer debts which are over 180 days de-
determination in an administrative re- linquent to Treasury for collection
312
through centralized administrative off- (4) The notice shall include a descrip-
set 61 days after the date of the Notice tion of the type and amount of the pay-
of Intent to Collect by Administrative ment from which the offset was taken,
Offset provided in accordance with the amount of offset that was taken,
§ 3.41. If the debtor seeks review under the identity of the creditor agency re-
subpart F, referral of the debt must questing the offset, and a contact point
occur within 30 days of the final deci- within the creditor agency who will re-
sion upholding the agency decision to spond to questions regarding the offset.
offset the debt if the debt is more than
(5) The priorities for collecting mul-
180 days delinquent.
tiple payments owed by a payee/debtor
(b) Discretionary referral. After the no-
tice and review opportunity require- shall be those set forth in 31 CFR
ments of § 3.41 are met, and administra- 285.5(f)(3).
tive review under subpart F is not
§ 3.45 USDA payment authorizing
sought or is unsuccessful on the part of
agency offset of pro rata share of
the debtor, an agency may refer a debt payments due entity in which debt-
that is less than 180 days delinquent. or participates.
(c) Procedures for referral. Agencies
shall refer debts to Treasury for collec- (a) A USDA payment authorizing
tion in accordance with Treasury pro- agency, to satisfy either a non-central-
cedures set forth in 31 CFR part 285.5. ized or centralized administrative off-
(d) Payment authorizing agency respon- set under §§ 3.43 and 3.44, may offset:
sibilities. (1) The names and TINs of (1) A debtor’s pro rata share of USDA
debtors who owe debts referred to payments due any entity in which the
Treasury under this section shall be debtor participates, either directly or
compared to the names and TINs on indirectly, as determined by the cred-
payments to be made by Federal dis- itor agency or the payment authorizing
bursing officials. Federal disbursing of- agency; or
ficials include disbursing officials of
(2) USDA payments due any entity
Treasury, the Department of Defense,
that the debtor has established, or re-
the United States Postal Service, other
government corporations, and dis- organized, transferred ownership of, or
bursing officials of the United States changed in some other manner the op-
designated by Treasury. When the eration of, for the purpose of avoiding
name and TIN of a debtor match the payment on the claim or debt, as deter-
name and TIN of a payee and all other mined by the creditor agency or the
requirements for offset have been met, payment authorizing agency.
the payment authorizing agency must (b) Prior to exercising the authority
offset a payment to satisfy the debt. of this section to offset any portion of
(2) Any USDA official serving as a a payment due an entity, the creditor
Federal disbursing official for purposes agency must have provided notice to
of effecting centralized administrative that entity in accordance with § 3.41 of
offset under this section must notify a its intent to offset payments to the en-
debtor/payee in writing that an offset tity in satisfaction of the debt of an in-
has occurred to satisfy, in part or in dividual debtor participating in that
full, a past due, legally enforceable de- entity.
linquent debt. The notice must include
the information set forth in paragraph § 3.46 Offset against tax refunds.
(d)(4) of this section.
(3) As described in 31 CFR 285.5(g)(1) USDA will take action to effect ad-
and (2), any USDA official serving as a ministrative offset against tax refunds
Federal disbursing official for purposes due to debtors under 26 U.S.C. 6402 in
of centralized administrative offset accordance with the provisions of 31
under this section shall furnish a warn- U.S.C. 3720A through referral for cen-
ing notice to a payee/debtor prior to tralized administrative offset under
beginning offset of recurring payments. § 3.44.

Such warning notice shall include the
information set forth in paragraph
(d)(4) of this section.
313
§ 3.47 Offset against amounts payable tion with administrative wage garnish-
from Civil Service Retirement and ment.
Disability Fund. (e) This subpart does not apply to the
Upon providing the Office of Per- collection of delinquent nontax debt
sonnel Management (OPM) written cer- owed to the United States from the
tification that a debtor has been af- wages of Federal employees from their
forded the procedures provided in § 3.41, Federal employment. Federal pay is
creditor agencies may request OPM to subject to the salary offset procedures
offset a debtor’s anticipated or future of subpart G of this part.
benefit payments under the Civil Serv- (f) Nothing in this subpart requires
ice Retirement and Disability Fund agencies to duplicate notices or admin-
(Fund) in accordance with regulations istrative proceedings required by con-
codified at 5 CFR 831.1801 through tract or other laws or regulations, or
831.1808. Upon receipt of such a request, other provisions of this part.
OPM will identify and ‘‘flag’’ a debtor’s
account in anticipation of the time § 3.52 Definitions.
when the debtor requests, or becomes As used in this subpart the following
eligible to receive, payments from the definitions shall apply:
Fund. This will satisfy any require- Disposable pay means that part of the
ment that offset be initiated prior to debtor’s compensation (including, but
the expiration of the time limitations not limited to, salary, bonuses, com-
referenced in § 3.40(e). missions, and vacation pay) from an
employer remaining after the deduc-
Subpart E—Administrative Wage tion of health insurance premiums and
Garnishment any amounts required by law to be
withheld. For purposes of this section,
SOURCE: 73 FR 4, Jan. 2, 2008, unless other- ‘‘amounts required by law to be with-
wise noted. held’’ include amounts for deductions
such as social security taxes and with-
§ 3.50 Purpose. holding taxes, but do not include any
This subpart provides USDA proce- amount withheld pursuant to a court
dures for use of administrative wage order.
garnishment to garnish a debtor’s dis- Employer means a person or entity
posable pay to satisfy delinquent that employs the services of others and
nontax debt owed to USDA creditor that pays their wages or salaries. The
agencies. term employer includes, but is not lim-
ited to, State and local governments,
§ 3.51 Scope. but does not include an agency of the
(a) This subpart applies to any agen- Federal government.
cy that administers a program that Garnishment means the process of
gives rise to a delinquent nontax debt withholding amounts from an employ-
owed to the United States and to any ee’s disposable pay and the paying of
agency that pursues recovery of such those amounts to a creditor in satisfac-
debt. tion of a withholding order.
(b) This subpart shall apply notwith- Withholding order means any order for
standing any provision of State law. withholding or garnishment of pay
(c) Nothing in this subpart precludes issued by an agency, or judicial or ad-
the compromise of a debt or the sus- ministrative body. For purposes of this
pension or termination of collection section, the terms ‘‘wage garnishment
action in accordance with the provi- order’’ and ‘‘garnishment order’’ have
sions of this part or other applicable the same meaning as ‘‘withholding
law. order.’’
(d) The receipt of payments pursuant
to this subpart does not preclude an § 3.53 Procedures.
agency from pursuing other debt col- (a) USDA has determined to pursue
lection remedies under this part. An administrative wage garnishment of
agency may pursue such debt collec- USDA debtors by referral of nontax le-
tion remedies separately or in conjunc- gally enforceable debts to Treasury for
314
issuance of garnishment orders by Subpart F—Administrative Reviews

Treasury or its contractors. for Administrative Offset, Ad-
(b) Pursuant to § 3.11, agencies must ministrative Wage Garnish-
notify debtors of their intent to pursue ment, and Disclosure to Credit
garnishment of their disposable pay Reporting Agencies
through referral of the debt to Treas-
ury for issuance of an administrative
SOURCE: 73 FR 4, Jan. 2, 2008,unless other-
wage garnishment order and provide wise noted.
debtors with the opportunity for re-
view of the existence of the debt under § 3.60 Applicability.
subpart F within 60 days of the date of (a) This section establishes consoli-
the demand letter. dated administrative review procedures
(c) Upon expiration of the 60-day pe- for debts subject to administrative off-
riod for review, or upon completion of set, administrative wage garnishment,
a review under subpart F that upholds and disclosure to credit reporting agen-
the agency’s determination of the debt, cies, under subparts D and E. A hearing
USDA will transfer the debt for collec- or review under this section shall sat-
tion through administrative wage gar- isfy the required opportunity for ad-
nishment as well as other means ministrative review by the agency of
through cross-servicing or centralized the determination of a debt for both
administrative offset. administrative offset and administra-
(d) If Treasury elects to pursue col- tive wage garnishment that is required
lection through administrative wage before transfer to Treasury for collec-
garnishment, Treasury, or its con- tion or collection by the agency
tractor, will notify the debtor of its in- through non-centralized administrative
tent to initiate garnishment pro- offset.
(b) For debt collection proceedings
ceedings and provide the debtor with
initiated by FSA, CCC, the Rural Hous-
the opportunity to inspect and copy
ing Service, the Rural Business-Cooper-
agency records related to the debt, ative Service, the Risk Management
enter into a repayment agreement, or Agency, the Federal Crop Insurance
request a hearing as to the existence or Corporation, the Natural Resources
amount of the debt or the terms of the Conservation Service, Rural Develop-
proposed repayment schedule under the ment, and the Rural Utilities Service
proposed garnishment order, in accord- (but not for programs authorized by
ance with 31 CFR 285.11. the Rural Electrification Act of 1936 or
(e) If the debtor requests a hearing at the Rural Telephone Bank Act, 7 U.S.C.
any time, Treasury will forward the re- 901 et seq.), unless otherwise specified,
quest to the USDA creditor agency to any administrative review will be con-
which the debt is owed, and the cred- ducted by NAD in accordance with 7
itor agency will contact the Office of CFR part 11 and not the procedures of
the CFO (OCFO) for selection of a hear- this subpart.
ing official. The issuance of proposed
§ 3.61 Presiding employee.
garnishment orders by Treasury shall
not be subject to appeal to NAD under An agency reviewing officer may be
7 CFR part 11. Hearings will be con- an agency employee, or the agency
ducted in accordance with 31 CFR may provide for reviews to be done by
285.11(f). another agency through an interagency
(f) OCFO shall provide a copy of the agreement. No agency employee may
hearing official’s final decision to act as a reviewing officer for the con-
sideration of collection by administra-
Treasury for implementation with re-
tive offset in a matter for which the
spect to the subject garnishment order.
employee was a contracting officer or a
debt management officer.
§ 3.62 Procedures.
(a) A debtor who receives a Notice of
Intent to Collect by Administrative
315
Offset, Notice of Disclosure to Credit (d) After the debtor requests a hear-
Reporting Agencies, or Notice of Intent ing, the hearing official shall notify
to Collect by Administrative Wage the debtor of:
Garnishment, or more than one of the (1) The date and time of a telephonic
above simultaneously, may request ad- hearing;
ministrative review of the agency’s de- (2) The date, time, and location of an
termination that the debt exists and in-person oral hearing; or
the amount of the debt. Any debtor (3) The deadline for the submission of
who wishes to do this must submit a evidence for a documentary review.
written explanation of why the debtor (e) Unless otherwise arranged by mu-
disagrees and seeks review. The request tual agreement between the debtor and
must be received by the creditor agen- the agency, evidenced in writing, any
cy within 60 days of the date of the no- documentary review or hearing will be
tice in the case of a Notice of Intent to conducted not less than 10 days and no
Collect by Administrative Offset that more than 45 days after receipt of the
includes referral to Treasury for offset request for review.
against other Federal payments includ- (f) Unless otherwise arranged by mu-
ing tax refunds and 30 days in the case tual agreement between the debtor and
of all other notices. the agency, evidenced in writing, a doc-
(b) In response, the creditor agency umentary review or hearing will be
must notify the debtor in writing based on agency records plus other rel-
whether the review will be by docu- evant documentary evidence which
mentary review or by hearing. An oral may be submitted by the debtor within
hearing is not necessary with respect 10 days after the request for review is
to debt collection systems in which a received.
determination of indebtedness rarely (g)(1) Hearings. Hearings will be as in-
involves issues of credibility or verac- formal as possible, and will be con-
ity and the agency has determined that ducted by a reviewing officer in a fair
review of the written record is ordi- and expeditious manner. The reviewing
narily an adequate means to correct officer need not use the formal rules of
prior mistakes. The agency shall pro- evidence with regard to the admissi-
vide the debtor with a reasonable op- bility of evidence or the use of evidence
portunity for an oral hearing when the once admitted. However, clearly irrele-
debtor requests reconsideration of the vant material should not be admitted,
debt and the agency determines that whether or not any party objects. Any
the question of the indebtedness can- party to the hearing may offer exhib-
not be resolved by review of the docu- its, such as copies of financial records,
mentary evidence, for example, when telephone memoranda, or agreements,
the validity of the debt turns on an provided the opposing party is notified
issue of credibility or veracity. If the at least five days before the hearing.
debtor requests a hearing, and the (2) Burden of proof. (i) The agency
creditor agency decides to conduct a will have the burden of going forward
documentary review, the agency must to prove the existence or amount of the
notify the debtor of the reason why a debt.
hearing will not be granted. The agen- (ii) Thereafter, if the debtor disputes
cy must also advise the debtor of the the existence or amount of the debt,
procedures to be used in reviewing the the debtor must prove by a preponder-
documentary record, or of the date, lo- ance of the evidence that no debt exists
cation and procedures to be used if re- or that the amount of the debt is incor-
view is by a hearing. rect. In addition, the debtor may
(c) An oral hearing may, at the debt- present evidence that repayment would
or’s option, be conducted either in-per- cause a financial hardship to the debt-
son or by telephone conference. All or or that collection of the debt may
travel expenses incurred by the debtor not be pursued due to operation of law
in connection with an in-person hear- (3) Witnesses must testify under oath
ing will be borne by the debtor. All tel- or affirmation.

ephonic charges incurred during the (4) Debtors may represent themselves
hearing will be the responsibility of the or may be represented at their own ex-
agency. pense by an attorney or other person.
316
(5) The substance of all significant SOURCE: 73 FR 4, Jan. 2, 2008, unless other-
matters discussed at the hearing must wise noted.
be recorded. No official record or tran-
script of the hearing need be created, § 3.70 Scope.
but if a debtor requested that a tran- (a) The provisions of this subpart set
script be made, it will be at the debt- forth USDA procedures for the collec-
or’s expense. tion of a Federal employee’s pay by
(h) In the absence of good cause salary offset to satisfy certain valid
shown, a debtor who fails to appear at and past due debts owed the govern-
a hearing scheduled pursuant to para- ment.
graph (f)(4) of this section will be (b) These regulations apply to:
deemed as not having timely filed a re- (1) Current USDA employees and em-
quest for a hearing. ployees of other agencies who owe
(i)(1) Within no more than 30 days debts to USDA; and
after the hearing or receipt of docu- (2) Current USDA employees who owe
mentation for the documentary review, debts to other agencies.
the reviewing officer will issue a writ- (c) These regulations do not apply to
ten decision to the debtor and the debts owed by FSA county executive
agency, including the supporting ra- directors or county office employees.
tionale for the decision. The deadline Salaries of those employees are subject
for issuance of the decision may be ex- to administrative offset as provided in
tended by the reviewing officer for 7 CFR part 792 or part 1403.
good cause for no more than 30 days. (d) These regulations do not apply to
(2) The written decision shall include: debts or claims arising under the Inter-
(i) A summary of the facts presented; nal Revenue Code of 1954 (26 U.S.C. 1 et
(ii) The hearing official’s findings, seq.); the tariff laws of the United
analysis and conclusions; and States; or to any case where collection
(iii) Resolution of any significant of a debt by salary offset is explicitly
procedural matter which was in dispute provided for or prohibited by another
before or during the hearing or docu- statute (e.g. travel advances in 5 U.S.C.
mentary review. 5705 or employee training expense in 5
(3) The reviewing officer’s decision U.S.C. 4108).
constitutes final agency action for pur- (e) These regulations identify the
poses of judicial review under the Ad- types of salary offset available to
ministrative Procedure Act (5 U.S.C. USDA, as well as certain rights pro-
701 et seq.) as to the following issues: vided to the employee, which include a
written notice before deductions begin
(i) All issues of fact relating to the
and the opportunity to petition for a
basis of the debt (including the exist-
hearing and to receive a written deci-
ence of the debt and the propriety of
sion if a hearing is granted. The rights
administrative offset), in cases where
provided by this section do not extend
the debtor previously had not been af-
to:
forded due process; and
(1) Any adjustment to pay arising out
(ii) The existence of the debt and the
of an employee’s election of coverage
propriety of administrative offset, in
or a change in coverage under a Fed-
cases where the debtor previously had
eral benefits program requiring peri-
been afforded due process as to issues
odic deductions from pay, if the
of fact relating to the basis of the debt.
amount to be recovered was accumu-
(j) The reviewing officer will prompt- lated over four pay periods or less;
ly distribute copies of the decision to (2) A routine intra-agency adjust-
the USDA CFO, the agency CFO (if ment of pay that is made to correct an
any), the agency debt management of- overpayment of pay attributable to
ficer, the debtor, and the debtor’s rep- clerical or administrative errors or
resentative, if any. delays in processing pay documents, if
the overpayment occurred within the
Subpart G—Federal Salary Offset
four pay periods preceding the adjust-

ment and, at the time of such adjust-
AUTHORITY : 5 U.S.C. 5514; 5 CFR part 550, ment, or as soon thereafter as prac-
subpart K. tical, the individual is provided written
317
notice of the nature and the amount of (ii) False claims for services and
the adjustment and point of contact for travel;
contesting such adjustment; or (iii) Illegal, unauthorized obligations
(3) Any adjustment to collect a debt and expenditures of government appro-
amounting to $50 or less, if, at the time priations;
of such adjustment, or as soon there- (iv) Using or authorizing the use of
after as practical, the individual is pro- government-owned or leased equip-
vided written notice of the nature and ment, facilities, supplies, and services
the amount of the adjustment and a for other than official or approved pur-
point of contact for contesting such ad- poses;
justment.
(v) Lost, stolen, damaged, or de-
(f) These regulations do not preclude
stroyed government property;
an employee from:
(1) Requesting waiver of an erroneous (vi) Erroneous entries on accounting
overpayment under 5 U.S.C. 5584, 10 records or reports; and
U.S.C. 2774, or 32 U.S.C. 716; (vii) Deliberate failure to provide
(2) Requesting waiver of any other physical security and control proce-
type of debt, if waiver is available by dures for accountable officers, if such
statute; or failure is determined to be the proxi-
(3) Questioning the amount or valid- mate cause for a loss of government
ity of a debt, in the manner prescribed funds.
by this part. Disposable pay means that part of
(g) Nothing in these regulations pre- current basic pay, special pay, incen-
cludes the compromise, suspension or tive pay, retired pay, retainer pay, or
termination of collection actions in the case of an employee not entitled
where appropriate under USDA regula- to basic pay, other authorized pay re-
tions contained elsewhere. maining after the deduction of any
amount required by law to be withheld
§ 3.71 Definitions. (other than deductions to execute gar-
As used in this subpart the following nishment orders in accordance with 5
definitions shall apply: CFR parts 581 and 582). Among the le-
Agency means an executive depart- gally required deductions that must be
ment or agency; a military depart- applied first to determine disposable
ment; the United States Postal Serv- pay are levies pursuant to the Internal
ice; the Postal Rate Commission; the Revenue Code (title 26, United States
United States Senate; the United Code) and deductions described in sec-
States House of Representatives; any tion 581.105(b) through (f) of part 5 of
court, court administrative office, or this title.
instrumentality in the judicial or leg- Employee means a current employee
islative branches of the government; or of an agency, including a current mem-
a government corporation. ber of the Armed Forces or a Reserve of
Debt means: the Armed Forces, but does not include
(1) An amount owed to the United
a FSA county executive director or
States from sources which include, but
county office employee.
are not limited to, insured or guaran-
teed loans, fees, leases, rents, royalties, Hearing official means a USDA admin-
services, sales of real or personal prop- istrative law judge or some other indi-
erty, overpayments, penalties, dam- vidual not under the control of the Sec-
ages, interest, fines and forfeitures (ex- retary.
cept those arising under the Uniform Salary offset means a reduction of a
Code of Military Justice). debt by offset(s) from the disposable
(2) An amount owed to the United pay of an employee without his or her
States by an employee for pecuniary consent.
losses where the employee has been de- Waiver means the cancellation, re-
termined to be liable due to his or her mission, forgiveness, or non-recovery
of a debt owed by an employee to an
negligent, willful, unauthorized or ille-

gal acts, including but not limited to: agency as permitted or required by 5
(i) Theft, misuse, or loss of govern- U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C.
ment funds; 716, 5 U.S.C. 8346(b) or any other law.
318
§ 3.72 Coordinating offset with another (b) USDA’s intention to collect the
Federal agency. debt by means of deduction from the
(a) When USDA is owed the debt. When employee’s current disposable pay
USDA is owed a debt by an employee of until the debt and all accumulated in-
another agency, the other agency shall terest are paid in full;
not initiate the requested offset until (c) The approximate beginning date,
USDA provides the agency with a writ- frequency, and amount of the intended
ten certification that the debtor owes deduction (stated as a fixed dollar
USDA a debt (including the amount amount or as a percentage of pay, not
and basis of the debt and the due date to exceed 15 percent of disposable pay)
of the payment) and that USDA has and; and the intention to continue the
complied with these regulations. deductions until the debt is paid in full
(b) When another agency is owed the or otherwise resolved;
debt. USDA may use salary offset (d) An explanation of USDA require-
against one of its employees who is in- ments concerning interest, penalties
debted to another agency, if requested and administrative costs; unless such
to do so by that agency. Such a request payments are waived in accordance
must be accompanied by a certification with 31 U.S.C. 3717 and § 3.17;
by the requesting agency that the per- (e) The employee’s right to inspect
son owes the debt (including the and copy USDA records relating to the
amount and basis of the debt and the debt;
due date of the payment) and that the (f) The employee’s right to enter into
agency has complied with its regula- a written agreement with USDA for a
tions required by 5 U.S.C. 5514 and 5 repayment schedule differing from that
CFR part 550, subpart K. proposed by USDA, so long as the
(c) Mandatory centralized administra- terms of the repayment schedule pro-
tive offset. Debts may be referred to posed by the employee are agreeable to
Treasury under § 3.44 for collection USDA;
through salary offset in accordance
(g) The employee’s right to a hearing
with 31 CFR 285.7.
conducted by a hearing official on
§ 3.73 Determination of indebtedness. USDA’s determination of the debt, the
amount of the debt, or percentage of
(a) In determining that an employee disposable pay to be deducted each pay
is indebted to USDA and that 31 CFR period, so long as a petition is filed by
parts 900 through 904 have been satis- the employee as prescribed by USDA;
fied and that salary offset is appro-
(h) That the timely filing of a peti-
priate, USDA will review the debt to
tion for hearing will stay the collection
make sure that it is valid and past due.
proceedings;
(b) If USDA determines that any of
the requirements of paragraph (a) of (i) That a final decision on the hear-
this section have not been met, no de- ing will be issued at the earliest prac-
termination of indebtedness shall be tical date, but not later than 60 days
made and salary offset will not proceed after the filing of the petition request-
until USDA is assured that the require- ing the hearing, unless the employee
ments have been met. requests, and the hearing officer
grants, a delay in the proceedings;
§ 3.74 Notice requirements before off- (j) That any knowingly false or frivo-
set. lous statements, representations, or
Except as provided in paragraph (b) evidence may subject the employee to:
of this section, salary offset will not be (1) Disciplinary procedures appro-
made unless USDA first provides the priate under 5 U.S.C. chapter 75, 5 CFR
employee with a minimum of 30 days part 752, or any other applicable stat-
written notice. This Notice of Intent to utes or regulations;
Offset Salary will state: (2) Penalties under the False Claims
(a) That USDA has reviewed the Act, 31 U.S.C. 3729–3731, or any other
applicable statutory authority; or
records relating to the debt and has de-

termined that a debt is owed, the (3) Criminal penalties under 18 U.S.C.
amount of the debt, and the facts giv- 286, 287, 1001, and 1002 or any other ap-
ing rise to the debt; plicable statutory authority;
319
(k) Any other rights and remedies (a) Fails to file a petition for a hear-
available to the employee under stating as prescribed in § 3.75; or
utes or regulations governing the pro- (b) Is scheduled to appear and fails to
gram for which the collection is being appear at the hearing.
made;
(l) That amounts paid on or deducted § 3.77 Hearing.
for the debt which are later waived or (a) If an employee timely files a peti-
found not owed to the United States tion for a hearing under section 3.75,
will be promptly refunded to the em- USDA shall select the time, date, and
ployee, unless there are applicable con- location for the hearing.
tractual or statutory provisions to the (b)(1) Hearings shall be conducted by
contrary; the hearing official designated in ac-
(m) The method and time period for cordance with 5 CFR 550.1107; and
requesting a hearing; and (2) Rules of evidence shall not be ad-
(n) The name and address of an offi- hered to, but the hearing official shall
cial of USDA to whom communications consider all evidence that he or she de-
must be directed. termines to be relevant to the debt
that is the subject of the hearing and
§ 3.75 Request for a hearing. weigh it accordingly, given all of the
facts and circumstances surrounding
(a) Except as provided in paragraph
the debt.
(c) of this section, an employee must
(c) USDA will have the burden of
file a petition for a hearing that is re-
going forward to prove the existence of
ceived by USDA not later than 30 days
the debt.
from the date of the USDA notice de-
(d) The employee requesting the
scribed in § 3.74, if an employee wants a
hearing shall bear the ultimate burden
hearing concerning:
of proof.
(1) The existence or amount of the (e) The evidence presented by the em-
debt; or ployee must prove that no debt exists
(2) USDA’s proposed offset schedule or cast sufficient doubt such that rea-
(including percentage). sonable minds could differ as to the ex-
(b) The petition must be signed by istence of the debt.
the employee and must identify and ex-
plain with reasonable specificity and § 3.78 Written decision following a
brevity the facts, evidence and wit- hearing.
nesses which the employee believes Written decisions provided after a
support his or her position. If the em- hearing will include:
ployee objects to the percentage of dis- (a) A statement of the facts pre-
posable pay to be deducted from each sented at the hearing to support the
check, the petition must state the ob- nature and origin of the alleged debt
jection and the reasons for it. and those presented to refute the debt;
(c) If the employee files a petition for (b) The hearing officer’s analysis,
a hearing later than the 30 days as de- findings, and conclusions, considering
scribed in paragraph (a) of this section, all the evidence presented and the re-
the hearing officer may accept the respective burdens of the parties, in light
quest if the employee can show that of the hearing;
the delay was because of circumstances (c) The amount and validity of the al-
beyond his or her control or because of leged debt determined as a result of the
failure to receive notice of the filing hearing;
deadline (unless the employee has ac- (d) The payment schedule (including
tual notice of the filing deadline). percentage of disposable pay), if appli-
cable;
§ 3.76 Result if employee fails to meet (e) The determination that the
deadlines. amount of the debt at this hearing is
An employee will not be granted a the final agency action on this matter
hearing and will have his or her dispos- regarding the existence and amount of
able pay offset in accordance with the debt for purposes of executing sal-
USDA’s offset schedule if the em- ary offset under 5 U.S.C. 5514. However,
ployee: even if the hearing official determines
320
that a debt may not be collected by able to establish that offset would re-
salary offset, but the creditor agency sult in undue financial hardship or
finds that the debt is still valid, the would be against equity and good con-
creditor agency may still seek collec- science.
tion of the debt by other means author-
ized by this part; and § 3.81 Procedures for salary offset:
(f) Notice that the final determina- when deductions may begin.
tion by the hearing official regarding (a) Deductions to liquidate an em-
the existence and amount of a debt is ployee’s debt will be by the method and
subject to referral to Treasury under in the amount stated in USDA’s Notice
§ 3.33 in the same manner as any other of Intent to Offset Salary to collect
delinquent debt. from the employee’s current pay.
(b) If the employee filed a petition
§ 3.79 Review of USDA records related for a hearing with USDA before the ex-
to the debt. piration of the period provided for in
(a) Notification by employee. An em- § 3.75, then deductions will begin after
ployee who intends to inspect or copy the hearing officer has provided the
USDA records related to the debt must employee with a hearing, and a final
send a letter to USDA stating his or written decision has been rendered in
her intention. The letter must be re- favor of USDA.
ceived by USDA within 30 days of the (c) If an employee retires or resigns
date of the Notice of Intent to Offset before collection of the amount of the
Salary. indebtedness is completed, the remain-
(b) USDA response. In response to the ing indebtedness will be collected ac-
timely notice submitted by the debtor cording to the procedures for adminis-
as described in paragraph (a) of this trative offset (see subpart D of this
section, USDA will notify the employee part).
of the location and time when the em-
ployee may inspect and copy USDA § 3.82 Procedures for salary offset:
records related to the debt. types of collection.
A debt will be collected in a lump-
§ 3.80 Written agreement to repay sum or in installments. Collection will
debts as alternative to salary offset. be by lump-sum collection unless the
(a) Notification by employee. The em- employee is financially unable to pay
ployee may propose, in response to a in one lump-sum, or if the amount of
Notice of Intent to Offset Salary, a the debt exceeds 15 percent of dispos-
written agreement to repay the debt as able pay for an ordinary pay period. In
an alternative to salary offset. Any these cases, deduction will be by in-
employee who wishes to do this must stallments, as set forth in § 3.83.
submit a proposed written agreement
to repay the debt that is received by § 3.83 Procedures for salary offset:
USDA within 30 days of the date of the methods of collection.
Notice of Intent to Offset Salary or 15 (a) General. A debt will be collected
days after the date of a hearing deci- by deductions at officially-established
sion issued under § 3.78. pay intervals from an employee’s cur-
(b) USDA response. USDA will notify rent pay account, unless the employee
the employee whether the employee’s and USDA agree to alternative ar-
proposed written agreement for repay- rangements for repayment under § 3.80.
ment is acceptable. USDA may accept (b) Installment deductions. Installment
a repayment agreement instead of pro- deductions will be made over a period
ceeding by offset. In making this deter- not greater than the anticipated period
mination, USDA will balance the of employment. The size and frequency
USDA interest in collecting the debt of installment deductions will bear a
against hardship to the employee. If reasonable relation to the size of the
the debt is delinquent and the em- debt and the employee’s ability to pay.
ployee has not disputed its existence or However, the amount deducted for any
amount, USDA will accept a repay- period will not exceed 15 percent of the
ment agreement, instead of offset, for disposable pay from which the deduc-
good cause such as, if the employee is tion is made, unless the employee has
321
agreed in writing to the deduction of a § 3.90 Reporting discharged debts to

greater amount. If possible, the install- the Internal Revenue Service.
ment payment will be sufficient in size When USDA discharges a debt,
and frequency to liquidate the debt in whether for the full value or less, it
no more than three years. Installment will report the discharge to the Inter-
payments of less than $25 per pay penal Revenue Service (IRS) in accord-
riod or $50 a month will be accepted ance with current IRS instructions.
only in the most unusual cir-
cumstances. [73 FR 4, Jan. 2, 2008]
(c) Sources of deductions. USDA will
make deductions only from basic pay, Subpart I—Adjusted Civil
special pay, incentive pay, retired pay, Monetary Penalties
retainer pay, or in the case of an em-
ployee not entitled to basic pay, other AUTHORITY: 28 U.S.C. 2461 note.
authorized pay.
§ 3.91 Adjusted civil monetary pen-
§ 3.84 Procedures for salary offset: Im- alties.
position of interest, penalties, and (a) In general. (1) The Secretary will
administrative costs.
adjust the civil monetary penalties,
Interest, penalties and administra- listed in paragraph (b) of this section,
tive costs will be charged in accord- to take account of inflation at least
ance with § 3.17. once every 4 years as required by the
Federal Civil Penalties Inflation Ad-
§ 3.85 Non-waiver of rights. justment Act of 1990 (Pub. L. 101–410),
So long as there are no statutory or as amended.
contractual provisions to the contrary, (2) Any increase in the dollar amount
no employee payment (or all or portion of a civil monetary penalty listed in
of a debt) collected under these regula- paragraph (b) of this section shall
tions will be interpreted as a waiver of apply only to violations occurring after
any rights that the employee may have May 7, 2010.
under 5 U.S.C. 5514. (3) The descriptions of the civil mon-
etary penalties listed in paragraph (b)
§ 3.86 Refunds. of this section are for illustrative pur-
USDA will refund promptly to the poses only. This section does not
appropriate individual amounts offset amend, interpret, implement, or alter
under these regulations when: in any way the statutory provisions in
(a) A debt is waived or otherwise which the civil monetary penalties
found not owed to the United States listed in paragraph (b) are set. More-
(unless expressly prohibited by statute over, the descriptions of the civil mon-
or regulation); or etary penalties listed in paragraph (b)
(b) USDA is directed by an adminis- do not necessarily contain a complete
trative or judicial order to refund description of the circumstances (e.g.,
amounts deducted from the employee’s requirements regarding the ‘‘state of
current pay. mind’’ of the violator(s), requirements
regarding the type of law or issuance
§ 3.87 Agency regulations. violated, etc.) under which the pen-
USDA agencies may issue regulations alties are assessed. Persons should con-
or policies not inconsistent with OPM sult the statutory text in which the
regulations (5 CFR part 550, subpart K) civil monetary penalties are set and
and regulations in this subpart gov- any implementing regulations to make
erning the collection of a debt by sal- applicability determinations.
(4) As used in this section, the fol-
ary offset.
lowing terms have the following mean-
ings:
Subpart H—Cooperation With the (i) Secretary means the Secretary of
Internal Revenue Service
Agriculture; and
(ii) Department means the United
AUTHORITY: 26 U.S.C. 61; 31 U.S.C. 3720A; I States Department of Agriculture.
TFRM 4055.50. (b) Penalties.—
322
(1) Agricultural Marketing Service—(i) the Cotton Research and Promotion

Civil penalty for improper record keep- Act, codified at 7 U.S.C. 2112(b), has a
ing codified at 7 U.S.C. 136i–1(d), has: a maximum of $1,100.
maximum of $750 in the case of the (xi) Civil penalty for failure to obey a
first offense, and a minimum of $1,100 cease and desist order, or for deceptive
in the case of subsequent offenses, ex- marketing, under the Plant Variety
cept that the penalty shall be less than Protection Act, codified at 7 U.S.C.
$1,100 if the Secretary determines that 2568(b), has a minimum of $750 and a
the person made a good faith effort to maximum of $11,000.
comply.
(xii) Civil penalty for failure to pay,
(ii) Civil penalty for a violation of
collect, or remit any assessment or fee
the unfair conduct rule under the Per-
ishable Agricultural Commodities Act, for a violation of a program under the
in lieu of license revocation or suspen- Potato Research and Promotion Act,
sion, codified at 7 U.S.C. 499b(5), has a codified at 7 U.S.C. 2621(b)(1), has a
maximum of $2,200. minimum of $750 and a maximum of
(iii) Civil penalty for violation of the $7,500.
licensing requirements under the Per- (xiii) Civil penalty for failure to obey
ishable Agricultural Commodities Act, a cease and desist order under the Po-
codified at 7 U.S.C. 499c(a), has a max- tato Research and Promotion Act,
imum of $1,200 for each such offense codified at 7 U.S.C. 2621(b)(3), has a
and not more than $350 for each day it maximum of $750.
continues, or a maximum of $350 for (xiv) Civil penalty for failure to pay,
each offense if the Secretary deter- collect, or remit any assessment or fee
mines the violation was not willful. or for a violation of a program under
(iv) Civil penalty in lieu of license the Egg Research and Consumer Infor-
suspension under the Perishable Agri- mation Act, codified at 7 U.S.C.
cultural Commodities Act, codified at 7 2714(b)(1), has a minimum of $750 and a
U.S.C. 499h(e), has a maximum penalty maximum of $7,500.
of $2,000 for each violative transaction
(xv) Civil penalty for failure to obey
or each day the violation continues.
a cease and desist order under the Egg
(v) Civil penalty for a violation of the
Export Apple Act, codified at 7 U.S.C. Research and Consumer Information
586, has a minimum of $110 and a max- Act, codified at 7 U.S.C. 2714(b)(3), has
imum of $11,000. a maximum of $750.
(vi) Civil penalty for a violation of (xvi) Civil penalty for failure to
the Export Grape and Plum Act, codi- remit any assessment or fee or for a
fied at 7 U.S.C. 596, has a minimum of violation of a program under the Beef
$110 and a maximum of $11,000. Research and Information Act, codified
(vii) Civil penalty for a violation of at 7 U.S.C. 2908(a)(2), has a maximum of
an order issued by the Secretary under $7,500.
the Agricultural Adjustment Act, reen- (xvii) Civil penalty for failure to
acted with amendments by the Agricul- remit any assessment or for a violation
tural Marketing Agreement Act of 1937, of a program regarding wheat and
codified at 7 U.S.C. 608c(14)(B), has a wheat foods research, codified at 7
maximum of $1,100. U.S.C. 3410(b), has a maximum of $1,100.
(viii) Civil penalty for failure to file (xviii) Civil penalty for failure to
certain reports under the Agricultural pay, collect, or remit any assessment
Adjustment Act, reenacted by the Ag- or fee or for a violation of a program
ricultural Marketing Agreement Act of under the Floral Research and Con-
1937, codified at 7 U.S.C. 610(c), has a
sumer Information Act, codified at 7
maximum of $110.
U.S.C. 4314(b)(1), has a minimum of $750
(ix) Civil penalty for a violation of a
seed program under the Federal Seed and a maximum of $7,500.
Act, codified at 7 U.S.C. 1596(b), has a (xix) Civil penalty for failure to obey
a cease and desist order under the Flo-
minimum of $37.50 and a maximum of

$750. ral Research and Consumer Informa-
(x) Civil penalty for failure to collect tion Act, codified at 7 U.S.C. 4314(b)(3),
any assessment or fee for a violation of has a maximum of $750.
323
(xx) Civil penalty for violation of an minimum of $750 and a maximum of

order under the Dairy Promotion Pro- $7,500.
gram, codified at 7 U.S.C. 4510(b), has a (xxx) Civil penalty for failure to obey
maximum of $1,100. a cease and desist order under the
(xxi) Civil penalty for pay, collect, or Mushroom Promotion, Research, and
remit any assessment or fee or for a Consumer Information Act of 1990,
violation of the Honey Research, Pro- codified at 7 U.S.C. 6107(e), has a max-
motion, and Consumer Information imum of $750.
Act, codified at 7 U.S.C. 4610(b)(1), has (xxxi) Civil penalty for failure to pay,
a minimum of $750 and a maximum of collect, or remit any assessment or fee
$7,500. or for a violation of the Lime Research,
(xxii) Civil penalty for failure to obey Promotion, and Consumer Information
a cease and desist order under the Act of 1990, codified at 7 U.S.C.
Honey Research, Promotion, and Con- 6207(c)(1), has a minimum of $750 and a
sumer Information Act, codified at 7 maximum of $7,500.
U.S.C. 4610(b)(3), has a maximum of (xxxii) Civil penalty for failure to
$750. obey a cease and desist order under the
(xxiii) Civil penalty for a violation of Lime Research, Promotion, and Con-
a program under the Pork Promotion, sumer Information Act of 1990, codified
Research, and Consumer Information at 7 U.S.C. 6207(e), has a maximum of
Act of 1985, codified at 7 U.S.C. $750.
4815(b)(1)(A)(i), has a maximum of (xxxiii) Civil penalty for failure to
$1,100. pay, collect, or remit any assessment
(xxiv) Civil penalty for failure to or fee or for a violation of a program
obey a cease and desist order under the under the Soybean Promotion, Re-
Pork Promotion, Research, and Con- search, and Consumer Information Act,
sumer Information Act of 1985, codified codified a 7 U.S.C. 6307(c)(1)(A), has a
at 7 U.S.C. 4815(b)(3)(A), has a max- maximum of $1,100.
imum of $750. (xxxiv) Civil penalty for failure to
(xxv) Civil penalty for failure to pay, obey a cease and desist order under the
collect, or remit any assessment or fee Soybean Promotion, Research, and
or for a violation of a program under Consumer Information Act, codified at
the Watermelon Research and Pro- 7 U.S.C. 6307(e), has a maximum of
motion Act, codified at 7 U.S.C. $7,500.
4910(b)(1), has a minimum of $750 and a (xxxv) Civil penalty for failure to
maximum of $7,500. pay, collect, or remit any assessment
(xxvi) Civil penalty for failure to or fee or for a violation of a program
obey a cease and desist order under the under the Fluid Milk Promotion Act of
Watermelon Research and Promotion 1990, codified at 7 U.S.C. 6411(c)(1)(A),
Act, codified at 7 U.S.C. 4910(b)(3), has has a minimum of $750 and a maximum
a maximum of $750. of $7,500, or in the case of a violation
(xxvii) Civil penalty for failure to that is willful, codified at 7 U.S.C.
pay, collect, or remit any assessment 6411(c)(1)(B), has a minimum of $11,000
or fee or for a violation of a program and a maximum of $140,000.
under the Pecan Promotion and Re- (xxxvi) Civil penalty for failure to
search Act of 1990, codified a 7 U.S.C. obey a cease and desist order under the
6009(c)(1), has a minimum of $1,100 and Fluid Milk Promotion Act of 1990, codi-
a maximum of $11,000. fied at 7 U.S.C. 6411(e), has a maximum
(xxviii) Civil penalty for failure to of $7,500.
obey a cease and desist order under the (xxxvii) Civil penalty for knowingly
Pecan Promotion and Research Act of labeling or selling a product as organic
1990, codified a 7 U.S.C. 6009(e), has a except in accordance with the Organic
maximum of $1,100. Foods Production Act of 1990, codified
(xxix) Civil penalty for failure to pay, at 7 U.S.C. 6519(a), has a maximum of
collect, or remit any assessment or fee $11,000.
or for a violation of a program under (xxxviii) Civil penalty for failure to

the Mushroom Promotion, Research, pay, collect, or remit any assessment
and Consumer Information Act of 1990, or fee or for a violation of a program
codified at 7 U.S.C. 6107(c)(1), has a under the Fresh Cut Flowers and Fresh
324
Cut Greens Promotion and Information Act, codified at 7 U.S.C. 7468(e), has a
Act of 1993, codified at 7 U.S.C. maximum of $700 for each day the vio-
6808(c)(1)(A)(i), has a minimum of $750 lation occurs.
and a maximum of $7,500. (xlviii) Civil penalty for a violation
(xxxix) Civil penalty for failure to of an order or regulation under the
obey a cease and desist order under the Popcorn Promotion, Research, and
Fresh Cut Flowers and Fresh Cut Consumer Information Act, codified at
Greens Promotion and Information Act 7 U.S.C. 7487(a), has a maximum of
of 1993, codified at 7 U.S.C. 6808(e)(1), $1,200 for each violation.
has a maximum of $7,500. (xlix) Civil penalty for certain viola-
(xl) Civil penalty for a violation of a tions under the Egg Products Inspec-
program under the Sheep Promotion, tion Act, codified at 21 U.S.C.
Research, and Information Act of 1994, 1041(c)(1)(A), has a maximum of $7,500
codified at 7 U.S.C. 7107(c)(1)(A), has a for each violation.
maximum of $1,100. (l) Civil penalty for violation of an
(xli) Civil penalty for failure to obey order or regulation issued under the
a cease and desist order under the Hass Avocado Promotion, Research,
Sheep Promotion, Research, and Infor- and Information Act of 2000, codified at
mation Act of 1994, codified at 7 U.S.C. 7 U.S.C. 7807(c)(1)(A)(i), has a minimum
7107(e), has a maximum of $750. of $1,100 and a maximum of $11,000 for
(xlii) Civil penalty for a violation of each violation.
an order or regulation issued under the (li) Civil penalty for failure to obey a
Commodity Promotion, Research, and cease and desist order under the Hass
Information Act of 1996, codified at 7 Avocado Promotion, Research, and In-
U.S.C. 7419(c)(1), has a minimum of formation Act of 2000, codified at 7
$1,200 and a maximum of $12,000 for U.S.C. 7807(e)(1), has a maximum of
each violation. $11,000 for each offense.
(xliii) Civil penalty for failure to (lii) Civil penalty for violation of cer-
obey a cease and desist order under the tain provisions of the Livestock Man-
Commodity Promotion, Research, and datory Reporting Act of 1999, codified a
Information Act of 1996, codified at 7 7 U.S.C. 1636b(a)(1), has a maximum of
U.S.C. 7419(e), has a minimum of $1,200 $11,000 for each violation.
and a maximum of $12,000 for each day (liii) Civil penalty for failure to obey
the violation occurs. a cease and desist order under the Live-
(xliv) Civil penalty for a violation of stock Mandatory Reporting Act of 1999,
an order or regulation issued under the codified a 7 U.S.C. 1636b(g)(3), has a
Canola and Rapeseed Research, Pro- maximum of $11,000 for each violation.
motion, and Consumer Information (liv) Civil penalty for failure to obey
Act, codified at 7 U.S.C. 7448(c)(1)(A)(i), an order of the Secretary issued pursu-
has a maximum of $1,200 for each viola- ant to the Dairy Product Mandatory
tion. Reporting program, codified at 7 U.S.C.
(xlv) Civil penalty for failure to obey 1637b(c)(4)(D)(iii), has a maximum of
a cease and desist order under the $11,000 for each offense.
Canola and Rapeseed Research, Pro- (lv) Civil penalty for a willful viola-
motion, and Consumer Information tion of the Country of Origin Labeling
Act, codified at 7 U.S.C. 7448(e), has a program by a retailer or person en-
maximum of $7,000 for each day the gaged in the business of supplying a
violation occurs. covered commodity to a retailer, codi-
(xlvi) Civil penalty for violation of an fied at 7 U.S.C. 1638b(b)(2), has a max-
order or regulation issued under the imum of $1,000 for each violation.
National Kiwifruit Research, Pro- (lvi) Civil penalty for violations of
motion, and Consumer Information the Dairy Research Program, codified
Act, codified at 7 U.S.C. 7468(c)(1), has at 7 U.S.C. 4535 & 4510(b), has a max-
a minimum of $700 and a maximum of imum of $1,100 for each violation.
$7,000 for each violation. (2) Animal and Plant Health Inspection
(xlvii) Civil penalty for failure to Service—

obey a cease and desist order under the (i) Civil penalty for a violation of the
National Kiwifruit Research, Pro- imported seed provisions of the Federal
motion, and Consumer Information Seed Act, codified at 7 U.S.C. 1596(b),
325
has a minimum of $37.50 and a max- initial violation of the AHPA by an in-
imum of $750. dividual moving regulated articles not
(ii) Civil penalty for a violation of for monetary gain, $300,000 in the case
the Animal Welfare Act, codified at 7 of any other person for each violation,
U.S.C. 2149(b), has a maximum of $500,000 for all violations adjudicated in
$10,000, and knowing failure to obey a a single proceeding if the violations do
cease and desist order has a civil pen- not include a willful violation, and
alty of $1,650. $1,000,000 for all violations adjudicated
(iii) Civil penalty for any person that in a single proceeding if the violations
causes harm to, or interferes with, an include a willful violation; or twice the
animal used for the purposes of official gross gain or gross loss for any viola-
inspection by the Department, codified tion, forgery, counterfeiting, unauthor-
at 7 U.S.C. 2279e(a), has a maximum of ized use, defacing, or destruction of a
$11,000. certificate, permit, or other document
(iv) Civil penalty for a violation of provided under the AHPA that results
the Swine Health Protection Act, codi- in the person’s deriving pecuniary gain
fied at 7 U.S.C. 3805(a), has a maximum or causing pecuniary loss to another
of $11,000. person.
(v) Civil penalty for any person that (vii) Civil penalty for any person that
violates the Plant Protection Act violates certain regulations under the
(PPA), or that forges, counterfeits, or, Agricultural Bioterrorism Protection
without authority from the Secretary, Act of 2002 regarding transfers of listed
uses, alters, defaces, or destroys any agents and toxins or possession and use
certificate, permit, or other document of listed agents and toxins, codified at
provided for in the PPA, codified a 7 7 U.S.C. 8401(i)(1), has a maximum of
U.S.C. 7734(b)(1), has a maximum of the $300,000 in the case of an individual and
greater of: $60,000 in the case of any in- $600,000 in the case of any other person.
dividual (except that the civil penalty
(viii) Civil penalty for violation of
may not exceed $1,100 in the case of an
the Horse Protection Act, codified at 15
initial violation of the PPA by an indi-
U.S.C. 1825(b)(1), has a maximum of
vidual moving regulated articles not
$2,200.
for monetary gain), $300,000 in the case
of any other person for each violation, (ix) Civil penalty for failure to obey
$500,000 for all violations adjudicated in Horse Protection Act disqualification,
a single proceeding if the violations do codified at 15 U.S.C. 1825(c), has a max-
not include a willful violation, and imum of $4,300.
$1,000,000 for all violations adjudicated (x) Civil penalty for knowingly vio-
in a single proceeding if the violations lating, or, if in the business as an im-
include a willful violation; or twice the porter or exporter, violating, with re-
gross gain or gross loss for any viola- spect to terrestrial plants, any provi-
tion, forgery, counterfeiting, unauthor- sion of the Endangered Species Act of
ized use, defacing, or destruction of a 1973, any permit or certificate issued
certificate, permit, or other document thereunder, or any regulation issued
provided for in the PPA that results in pursuant to section 9(a)(1)(A) through
the person deriving pecuniary gain or (F), (a)(2)(A) through (D), (c), (d) (other
causing pecuniary loss to another. than regulations relating to record-
(vi) Civil penalty for any person [ex- keeping or filing reports), (f), or (g) of
cept as provided in 7 U.S.C. 8309(d)] the Endangered Species Act of 1973 (16
that violates the Animal Health Pro- U.S.C. 1538(a)(1)(A) through (F),
tection Act (AHPA), or that forges, (a)(2)(A) through (D), (c), (d), (f), and
counterfeits, or, without authority (g)), as set forth at 16 U.S.C. 1540(a),
from the Secretary, uses, alters, de- has a maximum of $37,500.
faces, or destroys any certificate, per- (xi) Civil penalty for knowingly vio-
mit, or other document provided under lating, or, if in the business as an im-
the AHPA, codified at 7 U.S.C. porter or exporter, violating, with re-
8313(b)(1), has a maximum of the great- spect to terrestrial plants, any other
er of: $60,000 in the case of any indi- regulation under the Endangered Spe-
vidual, except that the civil penalty cies Act of 1973, as set forth at 16 U.S.C.
may not exceed $1,100 in the case of an 1540(a), has a maximum of $18,200.
326
(xii) Civil penalty for violation, with (vi) Civil penalty for a vendor con-
respect to terrestrial plants, of the En- victed of selling firearms, ammunition,
dangered Species Act of 1973, or any explosives, or controlled substances in
regulation, permit, or certificate exchange for food instruments, codified
issued thereunder, as set forth at 16 at 42 U.S.C. 1786(o)(1)(B) and 42 U.S.C.
U.S.C. 1540(a), has a maximum of $750. 1786(o)(4)(B), has a maximum of $11,000
(xiii) Civil penalty for knowingly and for each violation, except that the
willfully violating 49 U.S.C. 80502 with maximum penalty for violations occur-
respect to the transportation of ani- ring during a single investigation is
mals by any rail carrier, express car- $49,000.
rier, or common carrier (except by air (4) Food Safety and Inspection Serv-
or water), a receiver, trustee, or lessee ice—(i) Civil penalty for certain viola-
of one of those carriers, or an owner or tions under the Egg Products Inspec-
master of a vessel, codified at 49 U.S.C. tion Act, codified at 21 U.S.C.
80502(d), has a minimum of $110 and a 1041(c)(1)(A), has a maximum of $7,500
maximum of $650. for each violation.
(3) Food and Nutrition Service— (ii) Civil penalty for failure to timely
(i) Civil penalty for violating a provi- file certain reports, codified at 21
sion of the Food and Nutrition Act of U.S.C. 467d, has a maximum of $110 per
2008 (Act), or a regulation under the day for each day the report is not filed.
Act, by a retail food store or wholesale (iii) Civil penalty for failure to time-
food concern, codified at 7 U.S.C. ly file certain reports, codified at 21
2021(a) and (c), has a maximum of U.S.C. 677, has a maximum of $110 per
$100,000 for each violation. day for each day the report is not filed.
(ii) Civil penalty for trafficking in (iv) Civil penalty for failure to time-
food coupons, codified at 7 U.S.C. ly file certain reports, codified at 21
2021(b)(3)(B), has a maximum of $32,000 U.S.C. 1051, has a maximum of $110 per
for each violation, except that the day for each day the report is not filed.
maximum penalty for violations occur- (5) Forest Service—
ring during a single investigation is (i) Civil penalty for willful disregard
$59,000. of the prohibition against the export of
(iii) Civil penalty for the sale of fire- unprocessed timber originating from
arms, ammunitions, explosives, or con- Federal lands, codified at 16 U.S.C.
trolled substances for coupons, codified 620d(c)(1)(A), has a maximum of $750,000
at 7 U.S.C. 2021(b)(3)(C), has a max- per violation or three times the gross
imum of $32,000 for each violation, ex- value of the unprocessed timber,
cept that the maximum penalty for whichever is greater.
violations occurring during a single in- (ii) Civil penalty for a violation in
vestigation is $59,000. disregard of the Forest Resources Con-
(iv) Civil penalty for any entity that servation and Shortage Relief Act or
submits a bid to supply infant formula the regulations that implement such
to carry out the Special Supplemental Act regardless of whether such viola-
Nutrition Program for Women, Infants tion caused the export of unprocessed
and Children and discloses the amount timber originating from Federal lands,
of the bid, rebate or discount practices codified at 16 U.S.C. 620d(c)(2)(A)(i), has
in advance of the bid opening or for a maximum of $107,500 per violation.
any entity that makes a statement (iii) Civil penalty for a person that
prior to the opening of bids for the pur- should have known that an action was
pose of influencing a bid, codified at 42 a violation of the Forest Resources
U.S.C. 1786(h)(8)(H)(i), has a maximum Conservation and Shortage Relief Act
of $145,200,000. or the regulations that implement such
(v) Civil penalty for a vendor con- Act regardless of whether such viola-
victed of trafficking in food instru- tion caused the export of unprocessed
ments, codified at 42 U.S.C. timber originating from Federal lands,
1786(o)(1)(A) and 42 U.S.C. 1786(o)(4)(B), codified at 16 U.S.C. 620d(c)(2)(A)(ii),
has a maximum of $11,000 for each vio- has a maximum of $70,000 per violation.
lation, except that the maximum pen- (iv) Civil penalty for a willful viola-
alty for violations occurring during a tion of the Forest Resources Conserva-
single investigation is $49,000. tion and Shortage Relief Act or the
327
regulations that implement such Act the Federal Crop Insurance Corpora-
regardless of whether such violation tion or to an approved insurance pro-
caused the export of unprocessed tim- vider with respect to any insurance
ber originating from Federal lands, plan or policy that is offered under the
codified at 16 U.S.C. 620d(c)(2)(A)(iii), authority of the Federal Crop Insur-
has a maximum of $725,000. ance Act, or who fails to comply with
(v) Civil penalty for a violation in- a requirement of the Federal Crop In-
volving protections of caves, codified surance Corporation, codified at 7
at 16 U.S.C. 4307(a)(2), has a maximum U.S.C. 1515(h)(3)(A), has a maximum of
of $11,000. the greater of: the amount of the pecu-
(6) Grain Inspection, Packers and niary gain obtained as a result of the
Stockyards Administration— false or inaccurate information or the
(i) Civil penalty for a packer or swine noncompliance; or $11,000.
contractor violation, codified at 7 (8) Rural Housing Service—(i) Civil
U.S.C. 193(b), has a maximum of $11,000. penalty for a violation of section 536 of
(ii) Civil penalty for a livestock mar- Title V of the Housing Act of 1949, codi-
ket agency or dealer failure to register, fied at 42 U.S.C. 1490p(e)(2), has a max-
codified at 7 U.S.C. 203, has a maximum imum of $120,000 in the case of an indi-
of $750 and not more than $37.50 for vidual, and a maximum of $1,200,000 in
each day the violation continues. the case of an applicant other than an
(iii) Civil penalty for operating with- individual.
out filing, or in violation of, a stock- (ii) Civil penalty for equity skim-
yard rate schedule, or of a regulation ming under section 543(a) of the Hous-
or order of the Secretary made there- ing Act of 1949, codified at 42 U.S.C.
under, codified at 7 U.S.C. 207(g), has a 1490s(a)(2), has a maximum of $32,500.
maximum of $750 and not more than (iii) Civil penalty under section 543b
$37.50 for each day the violation con- of the Housing Act of 1949 for a viola-
tinues. tion of regulations or agreements made
(iv) Civil penalty for a stockyard in accordance with Title V of the Hous-
owner, livestock market agency and ing Act of 1949, by submitting false in-
dealer violation, codified at 7 U.S.C. formation, submitting false certifi-
213(b), has a maximum of $11,000. cations, failing to timely submit infor-
(v) Civil penalty for a stockyard mation, failing to maintain real prop-
owner, livestock market agency and erty in good repair and condition, fail-
dealer compliance order, codified at 7 ing to provide acceptable management
U.S.C. 215(a), has a maximum of $750. for a project, or failing to comply with
(vi) Civil penalty for failure to file applicable civil rights statutes and reg-
required reports, codified at 15 U.S.C. ulations, codified at 42 U.S.C.
50, has a maximum of $110. 1490s(b)(3)(A), has a maximum of the
(vii) Civil penalty for live poultry greater of: twice the damages the De-
dealer violations, codified at 7 U.S.C. partment, guaranteed lender, or
228b–2(b), has a maximum of $32,000. project that is secured for a loan under
(viii) Civil penalty for a violation, Title V, suffered or would have suffered
codified at 7 U.S.C. 86(c), has a max- as a result of the violation; or $60,000
imum of $107,500. per violation.
(7) Federal Crop Insurance Corpora- (9) Farm Service Agency—(i) Civil pen-
tion—(i) Civil penalty for any person alty for failure to comply with certain
who willfully and intentionally pro- provisions of the U.S. Warehouse Act,
vides any false or inaccurate informa- codified at 7 U.S.C. 254, has a maximum
tion to the Federal Crop Insurance Cor- of $27,500 per violation if an agricul-
poration or to an approved insurance tural product is not involved in the
provider with respect to any insurance violation.
plan or policy that is offered under the (10) Commodity Credit Corporation—
authority of the Federal Crop Insur- (i) Civil penalty for willful failure or
ance Act, codified at 7 U.S.C. refusal to furnish information, or will-
1506(n)(1)(A), has a maximum of $11,000. ful furnishing of false information

(ii) Civil penalty for any person who under of section 156 of the Federal Ag-
willfully and intentionally provides ricultural Improvement and Reform
any false or inaccurate information to Act of 1996, codified at 7 U.S.C.
328
7272(g)(5), has a maximum of $10,000 for PART 5—DETERMINATION OF

each violation.(ii) Civil penalty for PARITY PRICES
willful failure or refusal to furnish in-
formation or willful furnishing of false Sec.
data by a processor, refiner, or im- 5.1 Parity index and index of prices received
porter of sugar, syrup and molasses by farmers.
under section 156 of the Federal Agri- 5.2 Marketing season average price data.
5.3 Selection of calendar year price data.
culture Improvement and Reform Act 5.4 Commodities for which parity prices
of 1996, codified at 7 U.S.C. 7272(g)(5), shall be calculated.
has a maximum of $10,000 for each vio- 5.5 Publication of season average, calendar
lation. year, and parity price data.
5.6 Revision of the parity price of a com-
(iii) Civil penalty for filing a false
modity.
acreage report that exceeds tolerance
under section 156 of the Federal Agri- AUTHORITY: 7 U.S.C. 1301, 1375.
culture Improvement and Reform Act EDITORIAL NOTE: Nomenclature changes to
of 1996, codified at 7 U.S.C. 7272(g)(5), part 5 appear at 62 FR 8361, Feb. 25, 1997.
has a maximum of $10,000 for each vio-
§ 5.1 Parity index and index of prices
lation. received by farmers.
(iv) Civil penalty for knowingly vio-
(a) The parity index and related indi-
lating any regulation of the Secretary
ces for the purpose of calculating par-
of the Commodity Credit Corporation
ity prices after May 1, 1976, according
pertaining to flexible marketing allot- to the formula contained in section
ments for sugar under section 359h(b) 301(a) of the Agricultural Adjustment
of the Agricultural Adjustment Act of Act of 1938, as amended by the Agricul-
1938, codified at 7 U.S.C. 1359hh(b), has tural Acts of 1948, 1949, 1954, and 1956
a maximum of $5,500 for each violation. (hereinafter referred to as section
(v) Civil penalty for knowing viola- 301(a)) shall be the index of prices paid
tion of regulations promulgated by the by farmers, interest, taxes, and farm
Secretary pertaining to cotton insect wage rates, as revised May 1976 and
eradication under section 104(d) of the published in the May 28, 1976, and sub-
Agricultural Act of 1949, codified at 7 sequent issues of the monthly report,
U.S.C. 1444a(d), has a maximum of ‘‘Agricultural Prices.’’ The publication
$5,500 for each offense. of these indices by the National Agri-
(11) Office of the Secretary—(i) Civil cultural Statistics Service in the
penalty for making, presenting, sub- monthly report, ‘‘Agricultural Prices’’,
shall be continued.
mitting or causing to be made, pre-
(b) The measure of the general level
sented or submitted, a false, fictitious,
of prices received by farmers as pro-
or fraudulent claim as defined under vided for in section 301(a)(1)(B)(ii) after
the Program Fraud Civil Remedies Act January 1, 1959, shall be the index of
of 1986, codified at 31 U.S.C. 3802(a)(1), prices received by farmers as revised
has a maximum of $5,500. January 1959 and published in the Jan-
(ii) Civil penalty for making, pre- uary 30, 1959, and subsequent issues of
senting, submitting or causing to be ‘‘Agricultural Prices’’. The simple av-
made, presented or submitted, a false, erage of the 120 monthly indices in-
fictitious, or fraudulent written state- cluded in the preceding 10 calendar
ment as defined under the Program years plus an adjustment to take ac-
Fraud Civil Remedies Act of 1986, codi- count of the effect on the index of any
fied at 31 U.S.C. 3802(a)(2), has a max- adjustment made on average prices of
imum of $5,500. individual commodities as hereinafter
specified shall be used in the calcula-
[70 FR 29575, May 24, 2005. Redesignated at 73 tion of the adjusted base prices. Parity
FR 4, Jan. 2, 2008, as amended at 75 FR 17556, prices heretofore published for periods
Apr. 7, 2010] prior to January 1, 1959 shall not be re-
vised.
PART 4 [RESERVED] (c) The term milkfat as used in these
regulations is synonymous with the
term butterfat, and when any statute
329
requires calculation of the parity price essing; olives for processing (except crushed
of butterfat, the parity price of milkfat for oil); olives, crushed for oil; olives for can-
shall be the parity price of butterfat. ning; papayas (Hawaii), for fresh consump-
tion; peaches for fresh consumption;
[24 FR 697, Jan. 31, 1959, as amended by clingstone peaches for processing (except
Amdt. 6, 24 FR 9778, Dec. 5, 1959; Amdt. 29, 41 dried); freestone peaches for processing (ex-
FR 22333, June 3, 1976] cept dried); dried peaches; pears for fresh
consumption; pears for processing (except
§ 5.2 Marketing season average price dried); dried pears; plums (California), for
data. fresh consumption; plus (California), for
It is hereby found that it is imprac- processing; dried prunes (California); prunes
and plums (excluding California), for proc-
tical to use averages of prices received essing (except dried); strawberries for fresh
by farmers on a calendar year basis for consumption; and strawberries for proc-
the following agricultural commodities essing.
for the purpose of calculating adjusted
base prices and, therefore, marketing SEED CROPS
season average prices will be used. An Alfalfa, bentgrass, crimson clover,
allowance for any supplemental pay- Chewings fescue, red fescue, tall fescue, Mar-
ment resulting from price support op- ion Kentucky bluegrass, Ladino clover, les-
erations shall be included in the deter- pedeza, orchard grass, red clover, timothy,
mination of the adjusted base prices. and hairy vetch.
For cigar binder tobacco, types 51–52, SUGAR CROPS
for each of the marketing seasons be-
ginning in the years 1949 through 1958, Sugar beets and sugarcane for sugar.
37.9 cents per pound shall be used in TREE NUTS
lieu of the average of prices received by
farmers for such tobacco during each Almonds; filberts; pecans, all; and walnuts.
such marketing season. VEGETABLES FOR FRESH MARKET
BASIC COMMODITIES Artichokes, asparagus, snap beans, broc-
Extra long staple cotton; peanuts; rice, and coli, cabbage, cantaloupe, carrots, cauli-
the following types of tobacco: Flue-cured, flower, celery, sweet corn, cucumbers, egg-
types 11–14; Virginia fire-cured, type 21; Ken- plant, escarole, garlic, honeydew melons, let-
tucky-Tennessee fire-cured, types 22–23; bur- tuce, onions, green peppers, spinach, toma-
ley, type 31; dark air-cured, types 35–36; sun- toes, and watermelons.
cured, type 37; Pennsylvania seedleaf, type
VEGETABLES FOR PROCESSING
41; cigar filler and binder, types 42–44 and 53–
55; Puerto Rican filler, type 46 (price refers Asparagus, lima beans, snap beans, beets,
to year of harvest); and cigar binder, types cabbage, sweet corn, cucumbers, green peas,
51–52. spinach, and tomatoes.
DESIGNATED NONBASIC COMMODITIES OTHER COMMODITIES
Tung nuts; honey, wholesale extracted. Beeswax; cottonseed; hops; peas; dry field;
peppermint oil; popcorn; potatoes; spearmint
WOOL AND MOHAIR
oil; and tobacco, types 61–62. All other com-
Wool and mohair. modities for which monthly price data are
not available.
OTHER NONBASIC COMMODITIES
[21 FR 761, Feb. 3, 1956]
CITRUS FRUIT
EDITORIAL NOTE: For FEDERAL REGISTER ci-
Grapefruit; lemons; limes; oranges; tan- tations affecting § 5.2 see the List of CFR
gerines; and Temples. Sections Affected, which appears in the
Finding Aids section of the printed volume
DECIDUOUS AND OTHER FRUIT
and at www.fdsys.gov.
Apples for processing; apricots for fresh
consumption; apricots for processing (except § 5.3 Selection of calendar year price
dried); dried apricots; avocados; black- data.
berries; boysenberries; gooseberries; logan-
In computing the adjusted base price
berries; black raspberries; red raspberries;
youngberries; tart cherries; sweet cherries; for those commodities for which cal-
cranberries; dates; grapes, raisins, dried; all endar year price data are used, ‘‘* * *
grapes excluding raisins, dried; nectarines the average of the prices received by
for fresh consumption, nectarines for proc- farmers for such commodity, at such
330
times as the Secretary may select dur- OTHER NONBASIC COMMODITIES

ing each year * * *,’’ as used in section CITRUS FRUIT
301(a)(1)(B)(i), shall be the simple aver-
age of the 12 monthly estimates of the Grapefruit; lemons; limes; oranges; tan-
prices received by farmers as published gerines; and Temples.
by the National Agricultural Statistics DECIDUOUS AND OTHER FRUIT
Service in ‘‘Agricultural Prices’’ for
Apples (primarily for fresh use); apples for
those commodities for which such processing; apricots for fresh consumption;
prices are available. An allowance for apricots for processing (except dried); dried
unredeemed loans and purchase agree- apricots; avocados; blackberries; boysen-
ment deliveries, any supplemental pay- berries; gooseberries; loganberries; black
ments resulting from price support op- raspberries; red raspberries; youngberries;
erations, and the value of marketing tart cherries; sweet cherries; cranberries;
dates; grapes, raisins, dried; all grapes, ex-
certificates, such as those received by
cluding raisins, dried; nectarines for fresh
producers of wheat pursuant to the Ag- consumption; nectarines for processing; ol-
ricultural Adjustment Act of 1938, as ives for processing (excluding crushed for
amended, and others of generally simi- oil); olives, crushed for oil; olives for can-
lar character and effect, shall be added ning; papayas (Hawaii), for fresh consump-
to the price specified above. Prices re- tion; peaches for fresh consumption;
ceived for milk wholesale, milkfat, beef clingstone peaches for processing (except
cattle, sheep, and lambs shall include dried); freestone peaches for processing (ex-
cept dried); dried peaches; pears for fresh
wartime subsidy payments as provided consumption; pears for processing (except
by section 301(a)(1)(B). For Maryland dried); dried pears; plums (California), for
Tobacco, type 32, the price data for fresh consumption; plums (California), for
each calendar year shall be the weight- processing; dried prunes (California); prunes
ed average price of type 32 tobacco sold and plums (excluding California), for proc-
during the period January 1–December essing (except dried); strawberries for fresh
31. consumption; and strawberries for proc-
essing.
[Amdt. 14, 29 FR 12451, Sept. 1, 1964]
SEED CROPS
§ 5.4 Commodities for which parity Alfalfa, bentgrass, crimson clover,
prices shall be calculated. Chewings fescue, red fescue, tall fescue, Mar-
Parity prices shall be calculated for ion Kentucky bluegrass, Ladino clover, les-
pedeza, orchard grass, red clover, timothy,
the following commodities:
and hairy vetch.
BASIC COMMODITIES
SUGAR CROPS
Wheat; corn; American upland cotton; Sugar beets, and sugarcane for sugar.
extra long staple cotton; rice; peanuts;1 and
the following types of tobacco: flue-cured, TREE NUTS
types 11–14; Virginia fire-cured, type 21; Ken-
tucky-Tennessee fire-cured, types 22–23; bur- Almonds; filberts; pecans, all; and walnuts.
ley, type 31; Maryland, type 32; dark air- VEGETABLES FOR FRESH MARKET
cured, types 35–36; sun-cured, type 37; Penn-
sylvania seedleaf, type 41; cigar filler and Artichokes, asparagus, snap beans, broc-
binder, types 42–44 and 53–55; Puerto Rican coli, cabbage, cantaloups, carrots, cauli-
filler, type 46; and cigar binder, types 51–52. flower, celery, sweet corn, cucumbers, egg-
plant, escarole, garlic, honeydew melons, let-
DESIGNATED NONBASIC COMMODITIES tuce, onions, green peppers, spinach, toma-
toes, and watermelons.
Milk sold to plants; milkfat in cream; tung
nuts; honey, wholesale extracted. VEGETABLES FOR PROCESSING
WOOL AND MOHAIR Asparagus, lima beans, snap beans, beets,

cabbage, sweet corn, cucumbers, green peas,
Wool and mohair. spinach and tomatoes.
1 For the purpose of calculating parity OTHER COMMODITIES
prices the commodity peanuts shall exclude Beef cattle; hogs; lambs; calves; sheep; tur-
peanuts produced for oil in 1950 and 1951 keys; eggs; beeswax; potatoes; hops; pepper-
under the provisions of subsections (g) and mint oil; popcorn; spearmint oil; tobacco,
(h) of section 359 of the Agricultural Adjust- Types 61 and 62; barley; beans, dry edible;
ment Act of 1938 as amended. cottonseed; peas, dry field; flaxseed; hay, all
331
baled; oats; rye; sorghum grain; soybeans; takes into consideration the average
sweetpotatoes; and crude pine gum. prices received by farmers for agricul-
[21 FR 763, Feb. 3, 1956, as amended by Amdt. tural commodities during the last ten
1, 22 FR 693, Feb. 2, 1957; Amdt. 3, 23 FR 1565, years and is designed gradually to ad-
Mar. 5, 1958; Amdt. 17, 31 FR 10767, Aug. 13, just relative parity prices of specific
1966; Amdt. 23, 34 FR 1132, Jan. 24, 1969; commodities for persistent or con-
Amdt. 25, 34 FR 15785, Oct. 14, 1969; Amdt. 26,
tinuing changes in demand and supply
35 FR 3158, Feb. 19, 1970; Amdt. 27, 36 FR
15516, Aug. 17, 1971; 38 FR 10795, May 2, 1973] conditions which are reflected in mar-
ket prices. Accordingly, only in rare
§ 5.5 Publication of season average, cases is it possible for the parity price
calendar year, and parity price of any agricultural commodity to be-
data. come seriously out of line with the par-
(a) New adjusted base prices for all of ity prices of other agricultural com-
the commodities on a calendar year modities. In any case, however, in
basis and for as many of the commod- which producers of any agricultural
ities on a marketing season average commodity believe that the parity
basis as are practicable shall be pub- price of such commodity, as computed
lished on or about January 31 of each pursuant to the provisions of section
year. In cases where preliminary mar- 301(a)(1), is seriously out of line with
keting season average price data are the parity prices of other agricultural
used in estimating the adjusted base commodities, a request for a public
prices published in January, any addi- hearing under section 301(a)(1)(F) may
tional price data which becomes avail- be submitted to the Secretary of Agri-
able shall be used in estimating a re- culture by a substantial number of in-
vised adjusted base price which shall be terested producers. The producers shall
published prior to the beginning of the also furnish to the Secretary, with
marketing season for the commodity. such request or separately, data sup-
(b) The official parity prices deter- porting their conclusion that the par-
mined under section 301(a)(1) and the ity price of such commodity is seri-
regulations in this part and the indexes ously out of line with the parity prices
and relevant price data shall be pub- of other commodities. Upon receipt of
lished in the monthly report ‘‘Agricul- such a request with supporting data, or
tural Prices’’ issued by the National at any time upon the Secretary’s own
Agricultural Statistics Service. Parity motion, this Department will make a
prices for all commodities for which preliminary study of the relationship
parity prices are computed shall be so between the parity price of such com-
published in the January and July modity and the parity prices of other
issues each year. The parity prices pub- commodities, and if the Secretary con-
lished in other issues may be restricted cludes that there appears to be reason-
to those which the National Agricul- able grounds for believing that the par-
tural Statistics Service, after consulta- ity price of such commodity is seri-
tion with the Agricultural Marketing ously out of line with the parity prices
Service, the Farm Service Agency, and of other agricultural commodities, a
any other interested government agen- hearing will be held pursuant to the
cy, considers necessary or desirable. provisions of section 301(a)(1)(F).
The parity prices determined in ac- (b) Notice of hearing. If the Secretary
cordance with this part shall be the of Agriculture determines that such a
parity prices used in other reports, de- hearing shall be held, he shall issue a
terminations, or documents of the De- notice of the hearing, which shall be
partment. filed with the Hearing Clerk of the
[21 FR 763, Feb. 3, 1956, as amended by Amdt. United States Department of Agri-
16, 30 FR 2521, Feb. 26, 1965] culture, who shall promptly (1) cause
such notice to be published in the FED-
§ 5.6 Revision of the parity price of a ERAL REGISTER, and (2) mail a copy
commodity. thereof to each of the producers who
(a) Initiation of hearings. The ‘‘mod- requested the hearing and to grower or-
ernized’’ parity formula specified in ganizations known to be interested in
section 301(a)(1) of the Agricultural Ad- the hearing. Legal notice of the hear-
justment Act of 1938, as amended, ing shall be deemed to be given upon
332
filing such notice with the FEDERAL parity price of such commodity. All
REGISTER for publication, and failure documentary exhibits shall be sub-
to give notice in the manner otherwise mitted in duplicate. The presiding offi-
provided in this paragraph shall not af- cer shall, insofar as possible, exclude
fect the legality of the notice. The no- irrelevant, immaterial, or unduly rep-
tice of hearing shall state the purpose etitious evidence but shall not apply
of the hearing and the time and place technical judicial rules of evidence.
of the hearing. The time of the hearing Every witness shall be subject to ques-
shall not be less than fifteen days after tioning by the presiding officer or by
the date of publication of the notice in any other representative of the Depart-
the FEDERAL REGISTER, unless the Sec- ment, but cross-examination by other
retary shall determine that an emer- persons shall not be allowed, except in
gency exists which requires a shorter the discretion of the presiding officer.
period of notice, in which case the pe- The proceedings at the hearing shall be
riod of notice shall be that which the transcribed verbatim.
Secretary determines to be reasonable (5) Written arguments. The presiding
in the circumstances. officer shall fix a time, not to exceed
(c) Conduct of hearing—(1) Presiding ten days from the close of the hearing,
officer. Each hearing held under section within which interested persons may
301(a)(1)(F) shall be presided over by a file written arguments with the Hear-
Hearing Examiner of the Office of Ad- ing Clerk.
ministrative Law Judges or such other (d) Preparation and issuance of deter-
employee of the Department as the mination—(1) Preparation of rec-
Secretary may designate for the pur- ommendation. As soon as practicable
pose. after the close of the hearing, the pre-
(2) Time and place of hearing. Each siding officer, or such employees of the
hearing shall be heard at the time and Department as may be assigned for the
place set forth in the notice of hearing purpose, shall review, consider, and
but may be continued by the presiding weigh all evidence of probative value,
officer from day to day or adjourned to views, and arguments which have been
a later date or to a different place submitted, and may consider other per-
without notice other than the an- tinent information and data which is
nouncement thereof at the hearing. available in the Department of Agri-
(3) Order of procedure. At the com- culture, and shall submit a rec-
mencement of the hearing, the pre- ommendation thereon to the Sec-
siding officer shall file as an exhibit a retary.
copy of the FEDERAL REGISTER con- (2) Determination by the Secretary. As
taining the notice of the hearing and soon as possible after receipt of the
shall then outline briefly the procedure recommendation, the Secretary shall
to be followed. Evidence shall then be determine whether the parity price of
received from interested persons in such commodity computed in accord-
such order as the presiding officer shall ance with section 301(a)(1) appears to
prescribe. be seriously out of line with the parity
(4) Submission of evidence. The hearing prices of other agricultural commod-
shall be conducted in such a way as to ities whether the facts require a revi-
obtain a clear and orderly record. All sion of the method of computing the
interested persons appearing at the parity price of such commodity, and
hearing shall be given reasonable op- the revision, if any, which is required
portunity to offer data, views, or argu- in the method of computing the parity
ments relevant to (i) whether the par- price of such commodity. Such deter-
ity price for the agricultural com- mination by the Secretary shall be
modity involved is or is not seriously final. The Secretary’s determination
out of line with the parity prices of shall be filed with the Hearing Clerk
other agricultural commodities, and who shall cause the determination to
(ii) the proper relationship between the be published promptly in the FEDERAL
parity price of such commodity and the REGISTER. The Hearing Clerk shall also
parity prices of other agricultural com- mail a copy of the determination to
modities and the revisions, if any, each producer and grower organization
which should be made in computing the which participated in or is known to be
333
interested in the hearing. Upon appli- Subpart—General Provisions

cation to the Hearing Clerk, any per-
son shall be entitled to a copy of the AUTHORITY: Sec. 8, 65 Stat. 75; 19 U.S.C.
determination. 1365.
[23 FR 9252, Nov. 29, 1958] SOURCE: 17 FR 8287, Sept. 16, 1952; 19 FR 57,
Jan. 6, 1954, unless otherwise noted.
PART 6—IMPORT QUOTAS AND § 6.2 Responsibility for actions under
FEES section 22 and section 8(a).
Subpart—General Provisions The primary responsibility within
the Department of Agriculture for ac-
Sec. tion on matters for which the Sec-
6.2 Responsibility for actions under section retary is responsible under section 22 of
22 and section 8(a). the Agricultural Adjustment Act of
6.3 Requests by interested persons for ac- 1933, as amended, and section 8(a) of
tion by Department of Agriculture. the Trade Agreements Extension Act of
6.4 Investigations.
1951 is assigned to the Administrator,
6.5 Hearings under section 22.
6.6 Submission of recommendations under
Foreign Agricultural Service (referred
section 22. to in this part as the ‘‘Adminis-
6.7 Submission of recommendations under trator’’), but the other offices, agen-
section 8(a) (emergency treatment). cies, and bureaus of the Department
6.8 Representation at Tariff Commission whose activities will be affected by any
hearings. action under section 22 or section 8(a)
6.9 Information. shall be consulted by the Adminis-
trator in discharging his responsibility
Subpart—Dairy Tariff-Rate Import Quota under this part.
Licensing
§ 6.3 Requests by interested persons
6.20 Introduction. for action by Department of Agri-
6.21 Definitions. culture.
6.22 Requirement for a license.
6.23 Eligibility to apply for a license. (a) Section 22. A request for action
6.24 Application for a license. under section 22 should be submitted in
6.25 Allocation of licenses. duplicate to the Administrator, For-
6.26 Surrender and reallocation. eign Agricultural Service, United
6.27 Limitations on use of license. States Department of Agriculture,
6.28 Transfer of license. Washington 25, D.C. Such request shall
6.29 Use of licenses. include a statement of the reasons why
6.30 Record maintenance and inspection. action would be warranted under sec-
6.31 Debarment and suspension.
tion 22 and shall be supported by appro-
6.32 Globalization of licenses.
6.33 License fee. priate information and data.
6.34 Adjustment of Appendices. (b) Section 8(a). A request for action
6.35 Correction of errors. under section 8(a) should be submitted
6.36 Miscellaneous. in duplicate to the Administrator, For-
6.37 Supersedure of Import Regulation 1, eign Agricultural Service, United
Revision 7. States Department of Agriculture,
APPENDIXES 1–3 TO SUBPART—DAIRY TARIFF- Washington 25, D.C. Such request shall
RATE IMPORT QUOTA LICENSING include a statement of the reasons why
the commodity is perishable, and why,
Subpart—Price-Undercutting of Domestic due to such perishability, a condition
Cheese by Quota Cheeses exists requiring emergency treatment,
6.40 General. and shall be supported by appropriate
6.41 Definitions. information and data. A request under
6.42 Complaints of price-undercutting. section 8(a) submitted in connection
6.43 Determinations. with a proposed section 7 (Trade Agree-
6.44 Delegation of authority. ments Extension Act of 1951) investiga-
CROSS REFERENCE: For United States Inter- tion shall not be acted upon until a
national Trade Commission regulations on section 7 application has been properly
investigations of effects of imports on agri- filed by the person making the request
cultural programs, see 19 CFR part 204. with the Tariff Commission, and a copy
334
of such application and supporting in- § 6.5 Hearings under section 22.
formation and data are furnished the
The Administrator is authorized to
Administrator.
provide for such public hearings as he
§ 6.4 Investigations. deems necessary to discharge the re-
sponsibility for action under section 22
(a) Section 22. The Administrator vested in him by §§ 6.2 and 6.4(a). In
shall cause an investigation to be made view of the need, however, for prompt
whenever, based upon a request sub- action on requests for action under sec-
mitted pursuant to § 6.3 or upon other
tion 22, public hearings shall be held in
information available to him, he deter-
connection with investigations con-
mines that there is reasonable ground
ducted under § 6.4(a) only when the Ad-
to believe that the imposition of im-
port quotas or fees under section 22 ministrator determines that a public
may be warranted, or that the termi- hearing is necessary to obtain supple-
nation or modification of import mentary information not otherwise
quotas or fees in effect under section 22 available. Any public hearing which is
may be warranted. held shall be conducted by representa-
(b) Section 8(a). The Administrator tives designated for the purpose by the
shall cause an immediate investigation Administrator; shall be preceded by
to be made whenever (1) a request is re- such public notice as, in the opinion of
ceived for emergency treatment in con- the Administrator, will afford inter-
nection with an application properly ested persons reasonable opportunity
filed with the Tariff Commission under to attend and present information; and
section 7; (2) a request is received for minutes of the proceedings at such
emergency treatment under section 22 hearing shall be obtained. Hearings
if the Administrator determines that shall be informal and technical rules of
there is reasonable ground to believe evidence shall not apply. Such hearings
that the imposition of import quotas or are for the purpose of obtaining infor-
fees under section 22 may be war- mation for the assistance of the Sec-
ranted; or (3) the Administrator, upon retary. However, in discharging his re-
the basis of other information avail- sponsibilities under section 22, the Sec-
able to him, has reasonable ground for retary is not restricted to the informa-
believing that emergency treatment tion adduced at the hearings.
under section 8(a) is necessary. The Ad-
ministrator shall expedite to the full- § 6.6 Submission of recommendations
est practicable extent his attention to under section 22.
requests for emergency treatment (a) The Administrator shall make a
under section 8(a), and such requests report to the Secretary upon the com-
shall receive priority over requests for pletion of each investigation made by
other action under section 22. The in- him pursuant to § 6.4(a). The report
vestigation shall cover (1) whether the
shall summarize the information dis-
commodity is a perishable agricultural
closed by the investigation; shall con-
commodity; (2) whether, due to the per-
tain the recommendations of the Ad-
ishability of the commodity, a condi-
ministrator; and, in case action under
tion exists requiring emergency treat-
ment as indicated by such factors as (i) section 22 is recommended, shall be ac-
the marketing season for the com- companied by a suggested letter from
modity, (ii) past and prospective do- the Secretary to the President recom-
mestic production, stocks, require- mending that the Tariff Commission be
ments, and prices, (iii) past and pro- directed to conduct an investigation.
spective imports; and (3) such other Such report shall be submitted to the
matters as the Administrator deter- other offices, agencies, and bureaus of
mines are relevant to a determination the Department of Agriculture whose
as to whether emergency treatment for activities would be affected, for con-
currence or comment.
the commodity is necessary. No public

hearing shall be held in connection (b) The Secretary will recommend
with investigations under this para- that the President direct the Tariff
graph.
335
Commission to conduct an investiga- whether such emergency treatment

tion under section 22 only if he has rea- should take the form of action by the
son to believe, upon the basis of the in- President prior to receiving the rec-
formation available to him, that im- ommendations of the Tariff Commis-
port quotas or fees should be imposed. sion, or whether a decision by the
President may appropriately be with-
§ 6.7 Submission of recommendations held until the recommendations of the
under section 8(a) (emergency Tariff Commission are received. If
treatment). emergency treatment is not rec-
(a) Section 22. The Administrator’s re- ommended, the report to the Secretary
port submitted pursuant to § 6.6 shall shall be accompanied by suggested let-
indicate whether or not emergency ters from the Secretary to the peti-
treatment is necessary. If emergency tioner and to the Tariff Commission
treatment is recommended, the report stating the action taken. Each such re-
shall discuss the condition which report shall be submitted to the other of-
quires emergency treatment and be ac- fices, agencies, and bureaus of the De-
companied by suggested letters from partment of Agriculture whose activi-
the Secretary to the President, to the ties would be affected, for concurrence
Tariff Commission, and to the peti- or comment.
tioner (if any) advising them of the
Secretary’s determination. The sug- § 6.8 Representation at Tariff Commis-
gested letter from the Secretary to the sion hearings.
President shall include a recommenda- The Department of Agriculture shall
tion as to whether such emergency be represented at all hearings con-
treatment should take the form of ac- ducted by the Tariff Commission under
tion by the President prior to receiving section 22 by persons designated by the
the recommendations of the Tariff Administrator, assisted by a represent-
Commission, or whether a decision by ative of the Office of the General Coun-
the President may appropriately be sel. Such representatives shall present
withheld until the recommendations of the recommendations of the Depart-
the Tariff Commission are received. If ment of Agriculture, shall submit such
emergency treatment requested is not information and data in support there-
recommended, the report to the Sec- of as are available, and shall exercise
retary shall be accompanied by sug- the right of examining other witnesses
gested letters from the Secretary to which is granted to the Secretary.
the petitioner and the Tariff Commis-
sion stating the action taken. [17 FR 8287, Sept. 16, 1952; 20 FR 1830, Mar. 25,
(b) Section 7. The Administrator shall 1955]
make a report to the Secretary upon
§ 6.9 Information.
the completion of each investigation
made by him pursuant to § 6.4(b). The Persons desiring information from
report shall summarize the informa- the Department of Agriculture regard-
tion disclosed by the investigation, ining section 22 or section 8(a), or any ac-
cluding the points listed in § 6.4(b) tion with respect thereto, should ad-
which were considered in reaching the dress such inquiries to the Adminis-
recommendation, and shall contain the trator, Foreign Agricultural Service,
recommendations of the Administrator United States Department of Agri-
as to whether or not emergency treat- culture, Washington 25, DC.
ment is required. If emergency treat-
ment is recommended, the report shall Subpart—Dairy Tariff-Rate Import
discuss the condition which requires Quota Licensing
emergency treatment and shall be ac-
companied by suggested letters from
the Secretary to the President, to the AUTHORITY: Additional U.S. Notes 6, 7, 8,
12, 14, 16–23 and 25 to Chapter 4 and General
Tariff Commission, and to the peti-
Note 15 of the Harmonized Tariff Schedule of
tioner advising them of the Secretary’s the United States (19 U.S.C. 1202), Pub. L. 97–
determination. The suggested letter 258, 96 Stat. 1051, as amended (31 U.S.C. 9701),
from the Secretary to the President and secs. 103 and 404, Pub. L. 103–465, 108
shall include a recommendation as to Stat. 4819 (19 U.S.C. 3513 and 3601).
336
SOURCE: 61 FR 53007, Oct. 9, 1996, unless U.S. Notes 6, 7, 8, 12, 14, 16–23 and 25 to
otherwise noted. Chapter 4 of the Harmonized Tariff
Schedule.
§ 6.20 Introduction. Customs. The United States Customs
(a) Presidential Proclamation 6763 of Service.
December 23, 1994, modified the Har- Country. Country of origin as deter-
monized Tariff Schedule of the United mined in accordance with Customs
States affecting the import regime for rules and regulations, except that ‘‘EC
certain articles of dairy products. The 12’’, ‘‘EC 15’’, and ‘‘Other countries’’
Proclamation terminated quantitative shall each be treated as a country.
restrictions that had been imposed pur- Cheese or cheese products. Articles in
suant to section 22 of the Agricultural headings 0406, 1901.90.34, and 1901.90.36
Adjustment Act of 1933, as amended (7 of the Harmonized Tariff Schedule.
U.S.C. 624); proclaimed tariff-rate Commercial entry. Any entry except
quotas for such articles pursuant to those made by or for the account of the
Pub. L. 103–465; and specified which of United States Government or for a for-
such articles may be entered only by or eign government, for the personal use
for the account of a person to whom a of the importer or for sampling, taking
license has been issued by the Sec- orders, research, or the testing of
retary of Agriculture. equipment.
(b) Effective January 1, 1995, the Dairy products. Articles in headings
prior regime of absolute quotas for cer- 0401 through 0406, margarine cheese
tain dairy products was replaced by a listed under headings 1901.90.34 and
system of tariff-rate quotas. The arti- 1901.90.36, ice cream listed under head-
cles subject to licensing under the new ing 2105, and casein listed under head-
tariff-rate quotas are listed in Appen- ing 3501 of the Harmonized Tariff
dices 1, 2, and 3 of this subpart. Li- Schedule.
censes will be issued pursuant to the Department. The United States De-
provisions of this subpart for the 1997 partment of Agriculture.
and subsequent quota years. These li- EC 12. Belgium, Denmark, the Fed-
censes will permit the holder to import eral Republic of Germany, France,
specified quantities of the subject arti- Greece, Ireland, Italy, Luxembourg,
cles into the United States at the ap- the Netherlands, Portugal, Spain, and
plicable in-quota rate of duty. If an im- the United Kingdom.
porter has no license for an article sub- EC 15. Austria, Belgium, Denmark,
ject to a tariff-rate quota, such im- the Federal Republic of Germany, Fin-
porter will, with certain exceptions, be land, France, Greece, Ireland, Italy,
required to pay the applicable over- Luxembourg, the Netherlands, Por-
quota rate of duty. tugal, Spain, Sweden and the United
(c) The Secretary of Agriculture has Kingdom.
determined that this subpart will, to Enter or Entry. To make or making
the fullest extent practicable, result in entry for consumption, or withdrawal
fair and equitable allocation of the from warehouse for consumption in ac-
right to import articles subject to such cordance with Customs regulations and
tariff-rate quotas. The subpart will procedures.
also maximize utilization of the tariff- Harmonized Tariff Schedule or HTS.
rate quotas for such articles, taking The Harmonized Tariff Schedule of the
due account of any special factors United States.
which may have affected or maybe af- Licensee. A person to whom a license
fecting the trade in the articles con- has been issued under this subpart.
cerned. Licensing Authority. Any officer or
employee of the U.S. Department of
§ 6.21 Definitions. Agriculture designated to act in this
As used in this subpart and the Ap- position by the Director of the Division
pendices thereto, the following terms charged with managing the Dairy Tar-
mean: iff-Rate Import Quota Licensing Sys-

Article. One of the products listed in tem, currently the Import Policies and
Appendices 1, 2, or 3 which are the Programs Division of the Foreign Agri-
same as those described in Additional cultural Service.
337
Other countries. Countries not listed shall provide to the Licensing Author-
by name as having separate tariff-rate ity, prior to the release of such arti-
quota allocations for an article in the cles, the appropriate Customs docu-
Additional U.S. Notes to Chapter 4 of mentation identifying the article,
the Harmonized Tariff Schedule. quantity to be imported, its location,
Person. An individual, firm, corpora- intended use, an entry number and the
tion, partnership, association, trust, importer of record. The Licensing Au-
estate or other legal entity. thority may also require as a condition
Postmark. The postage cancellation of import that the article be destroyed
mark or date applied by the United or re-exported after such use; or
States Postal Service. This does not in- (4) Such person pays the applicable
clude the date on metered postage af- over-quota rate of duty.
fixed by the applicant, or on mail de-
livered by private entities. § 6.23 Eligibility to apply for a license.
Process or Processing. Any additional (a) In general. To apply for any li-
preparation of a dairy product, such as cense, a person shall have:
melting, grating, shredding, cutting (1) A business office, and be doing
and wrapping, or blending with any ad- business, in the United States, and
ditional ingredient. (2) An agent in the United States for
Quota year. The 12-month period be- service of process.
ginning on January 1 of a given year. (b) Eligibility for the 1997 and subse-
Tariff-rate quota amount or TRQ quent quota years—(1) Historical licenses
amount. The amount of an article sub- (Appendix 1). Any person issued a his-
ject to the applicable in-quota rate of torical or nonhistorical license for the
duty established under a tariff-rate 1996 quota year for an article may
quota. apply for a historical license (Appendix
United States. The customs territory 1) for the same article from the same
of the United States, which is limited country for the 1997 and subsequent
to the 50 states, the District of Colum- quota years, if such person was, during
bia, and Puerto Rico. the 12-month period ending August 31
[61 FR 53007, Oct. 9, 1996, as amended at 65 FR prior to the quota year, either:
1298, Jan. 10, 2000] (i) Where the article is cheese or
cheese product,
§ 6.22 Requirement for a license. (A) The owner of and importer of
(a) General rule. A person who seeks record for at least three separate com-
to enter, or cause to be entered, an ar- mercial entries of cheese or cheese
ticle shall obtain a license, in accord- products totaling not less than 57,000
ance with this subpart, except as pro- kilograms net weight, each of the three
vided in paragraph (b). entries not less than 2,000 kilograms
(b) Exceptions. Licenses are not re- net weight,
quired if: (B) The owner of and importer of
(1) The article is imported by or for record for at least eight separate com-
the account of any agency of the U.S. mercial entries of cheese or cheese
Government; products, from at least eight separate
(2) The article is imported for the shipments, totaling not less than 19,000
personal use of the importer, provided kilograms net weight, each of the eight
that the net weight does not exceed entries not less than 450 kilograms net
five kilograms in any one shipment; weight, with a minimum of two entries
(3) The article imported will not in each of at least three quarters dur-
enter the commerce of the United ing that period; or
States and is imported as a sample for (C) The owner or operator of a plant
taking orders, for exhibition, for dis- listed in Section II or listed in Section
play or sampling at a trade fair, for re- I as a processor of cheese of the most
search, for testing of equipment; or for current issue of ‘‘Dairy Plants Sur-
use by embassies of foreign govern- veyed and Approved for USDA Grading
ments. Written approval of the Licens- Service’’ and had processed or pack-
ing Authority shall be obtained prior aged at least 450,000 kilograms of
to entry, and the importer of record (or cheese or cheese products in its own
a broker or agent acting on its behalf) plant in the United States; or
338
(ii) Where the article is not cheese or for a nonhistorical license for articles
cheese product, other than cheese or cheese products
(A) The owner of and importer of (Appendix 2) for the 1997 quota year
record for at least three separate com- and each quota year thereafter if such
mercial entries of dairy products total- person meets the requirements of para-
ing not less than 57,000 kilograms net graph (b)(1)(ii).
weight, each of the three entries not (5) Designated license (Appendix 3). A
less than 2,000 kilograms net weight; person may annually apply for a des-
(B) The owner of and importer of ignated license (Appendix 3) for the
record for at least eight separate com- 1997 quota year and for each quota year
mercial entries of dairy products, from thereafter, provided that such person
at least eight separate shipments, to- meets the requirements of paragraph
taling not less than 19,000 kilograms (b)(1)(i), of this section and provided
net weight, each of the eight entries further that the government of the
not less than 450 kilograms net weight, country has designated such person for
with a minimum of two entries in each such license. The designating country
of at least three quarters during that shall submit its selection of designated
period; importers in writing directly to the Li-
(C) The owner or operator of a plant censing Authority not later than Octo-
listed in the most current issue of ber 31 prior to the beginning of the
‘‘Dairy Plants Surveyed and Approved quota year.
for USDA Grading Service’’ and had (c) Exceptions. (1) A licensee that fails
manufactured, processed or packaged in a quota year to enter at least 85 per-
at least 450,000 kilograms of dairy prod- cent of the amount of an article per-
ucts in its own plant in the United mitted under a license, shall not be eli-
States; or gible to receive a license for the same
(D) The exporter of dairy products in article from the same country for the
the quantities and number of ship- next quota year. For the purpose of
ments required under (A) or (B) above. this paragraph, the amount of an arti-
(2) Certain butter. A person issued a cle permitted under the license will ex-
nonhistorical license for butter for the clude any amounts surrendered pursu-
1997 or 1998 quota year may annually ant to § 6.26(a), but will include any ad-
apply for a historical license (Appendix ditional allocations received pursuant
1) for the same quantity of butter for to § 6.26(b).
the subsequent quota year and each (2) Paragraph (c)(1) of this section
year thereafter, provided that such per- will not apply where the licensee dem-
son has used at least 90 percent of the onstrates to the satisfaction of the Li-
original license issued for the previous censing Authority that the failure re-
quota year and meets the requirements sulted from breach by a carrier of its
of paragraph (b)(1)(ii). However, if a contract of carriage, breach by a sup-
person is issued a historical license plier of its contract to supply the arti-
pursuant to this paragraph, that person cle, act of God or force majeure.
may not be issued a nonhistorical li- (3) Paragraph (c)(1) of this section
cense for butter for any quota year in may not apply in the case of historical
which that historical license is issued or nonhistorical licenses, where the li-
to that person, unless applicants who censee demonstrates to the satisfaction
do not hold such a license have all been of the Licensing Authority that the
issued such a nonhistorical license. country specified on the license main-
(3) Nonhistorical licenses for cheese or tains or permits an export monopoly to
cheese products (Appendix 2). A person control the dairy articles concerned
may annually apply for a nonhistorical and the licensee petitions the Licens-
license for cheese or cheese products ing Authority to waive this require-
(Appendix 2) for the 1997 quota year ment. The licensee shall submit evi-
and each quota year thereafter if such dence that the country maintains an
person meets the requirements of para- export monopoly as defined in this
graph (b)(1)(i) of this section. paragraph. For the purposes of this

(4) Nonhistorical licenses for articles paragraph ‘‘export monopoly’’ means a
other than cheese or cheese products (Ap- privilege vested in one or more persons
pendix 2). A person may annually apply consisting of the exclusive right to
339
carry on the exportation of any article (i) The applicant is an employee of,
of dairy products from a country to the or is controlled by an employee of,
United States. such other applicant;
(4) The Licensing Authority will not (ii) The applicant manages or is man-
issue a nonhistorical license (Appendix aged by such other applicant, or eco-
2) for an article from a country during nomically benefits, directly or indi-
a quota year to an applicant who is af- rectly, from the use of the license
filiated with another applicant to issued to such other applicant.
whom the Licensing Authority is (6) The Licensing Authority will not
issuing a non-historical license for the issue a nonhistorical license for an ar-
same article from the same country for ticle from a country, for which the ap-
that quota year. Further, the Licens- plicant receives a designated license.
ing Authority will not issue a non-
§ 6.24 Application for a license.
historical license for butter to an ap-
plicant who is affiliated with another (a) Application for license shall be
applicant to whom the Licensing Au- made on either paper or electronic
thority is issuing a historical butter li- forms, provided or designated by the
cense of 57,000 kilograms or greater. Licensing Authority, and shall be sub-
For the purpose of this paragraph, an mitted in accordance with § 6.36(b). All
applicant will be deemed affiliated parts of the application shall be com-
with another applicant if: pleted. The application, if mailed, shall
(i) The applicant is the spouse, broth- be postmarked no earlier than Sep-
er, sister, parent, child or grandchild of tember 1 and no later than midnight
such other applicant; October 15 of the year preceding that
(ii) The applicant is the spouse, for which license application is made.
The application, if submitted electroni-
brother, sister, parent, child or grand-
cally, shall be transmitted no earlier
child of an individual who owns or con-
than September 1 and no later than
trols such other applicant;
midnight October 15 of the year pre-
(iii) The applicant is owned or con- ceding that for which license applica-
trolled by the spouse, brother, sister, tion is made. The Licensing Authority
parent, child or grandchild of an indi- will not accept incomplete applications
vidual who owns or controls such other or unpostmarked mailed applications.
applicant. (b)(1) Where the applicant seeks to
(iv) Both applicants are 5 percent or establish eligibility on the basis of im-
more owned or directly or indirectly ports, applications shall include identi-
controlled, by the same person; fication of entries (if submitted elec-
(v) The applicant, or a person who tronically) or Customs Form 7501 (if
owns or controls the applicant, benefits submitted by mail), sufficient to estab-
from a trust that controls such other lish the applicant as the importer of
applicant. record of entries required under § 6.23,
(5) The Licensing Authority will not during the 12-month period ending Au-
issue a nonhistorical license (Appendix gust 31 prior to the quota year for
2) for an article from a country during which license is being sought.
a quota year to an applicant who is as- (2) Where the applicant seeks to es-
sociated with another applicant to tablish eligibility on the basis of ex-
whom the Licensing Authority is ports, applications shall include:
issuing a nonhistorical license for the (i) Census Form 7525 or a copy of the
same article from the same country for electronic submission of such form, and
that quota year. Further, the Licens- (ii) The commercial invoice or bill of
ing Authority will not issue a non- sale for the quantities and number of
historical license for butter to an ap- export shipments required under § 6.23,
plicant who is associated with another during the 12-month period ending Au-
applicant to whom the Licensing Au- gust 31 prior to the quota year for
thority is issuing a historical butter li- which license is being sought.
cense for 57,000 kilograms or greater. (c) However, if the applicant is apply-
For the purpose of this paragraph, an ing on the basis of more than eight
applicant will be deemed associated shipments, the application, if mailed,
with another applicant if: shall include:
340
(1) The required documentary evi- try for the 2011 quota year and for each
dence for eight shipments; subsequent quota year except that:
(2) A signed certification that the re- (i) Beginning with the 2016 quota
maining required documents are on file year, a person who has surrendered
at the applicant’s premises; and more than 50 percent of such historical
(3)(i) If the application is made on license in at least three of the prior 5
the basis of imports, a listing of the quota years will thereafter be issued a
entry numbers, dates of entry and vol-
license in an amount equal to the aver-
umes on those remaining documents;
age annual quantity entered during
or
(ii) If the application is made on the those 5 quota years.
basis of exports, a listing of the dates (ii) [Reserved]
of export and volumes on those docu- (c) Nonhistorical licenses (Appendix 2).
ments. The Licensing Authority will allocate
(d) An applicant requesting more nonhistorical licenses on the basis of a
than one nonhistorical license must rank-order lottery system, which will
rank order these requests by the appli- operate as follows:
cable Additional U.S. Note number. (1) The minimum license size shall
Cheese and cheese products must be be:
ranked separately from dairy articles (i) Where the article is cheese or
which are not cheese or cheese prod- cheese product:
ucts. (A) The total amount available for
[61 FR 53007, Oct. 9, 1996, as amended at 69 FR nonhistorical license where such
59763, Oct. 6, 2004] amount is less than 9,500 kilograms;
§ 6.25 Allocation of licenses. (B) 9,500 kilograms where the total
amount available for nonhistorical li-
(a) Historical licenses for the 1997 quota cense is between 9,500 kilograms and
year (Appendix 1). (1) A person issued a 500,000 kilograms, inclusive;
historical license for the 1996 quota
(C) 19,000 kilograms where the total
year will be issued a historical license
for the 1997 quota year in an amount
equal to the Basic Annual Allocation cense is between 500,001 kilograms and
level used by the Licensing Authority 1,000,000 kilograms, inclusive;
for the 1996 quota year provided that (D) 38,000 kilograms where the total
such person meets the requirements of amount available for nonhistorical li-
§ 6.23(b)(1) and § 6.23(c). cense is greater than 1,000,000 kilo-
(2) A person issued a nonhistorical li- grams; or
cense for the 1996 quota year will be (E) An amount less than the min-
issued a historical license for the 1997 imum license size established in para-
quota year for the same quantity as graphs (c)(1)(i) (A) through (D) of this
the license for the 1996 quota year, pro- section, if requested by the licensee;
vided that such person meets the re- (ii) Where the article is not cheese or
quirements of § 6.23. cheese product:
(3) If a person was issued more than (A) The total amount available for
one historical license, or one or more nonhistorical license where such
historical licenses and a nonhistorical amount is less than 19,000 kilograms;
license, for the same article from the
(B) 19,000 kilograms where the total
same country for the 1996 quota year,
such person will be issued a single his-
torical license for the 1997 quota year, cense is between 19,000 kilograms and
the amount of which shall be deter- 550,000 kilograms, inclusive;
mined in accordance with paragraphs, (C) 38,000 kilograms where the total
(a) (1) and (2) of this section. amount available for nonhistorical li-
(b) Historical licenses for the 2011 and cense is between 550,001 kilograms and
subsequent quota years (Appendix 1). (1) 1,000,000 kilograms, inclusive; and
(D) 57,000 kilograms where the total
A person issued a historical license for

the 2010 quota year will be issued a his- amount available for nonhistorical li-
torical license in the same amount for cense is greater than 1,000,000 kilo-
the same article from the same coun- grams;
341
(E) An amount less than the min- (3) If a government of a country

imum license sizes established in para- which negotiated in the Uruguay
graphs (c)(1)(i) (A) through (D) of this Round for the right to designate im-
section, if requested by the licensee. porters has not done so, but determines
(2) Taking into account the order of to designate importers for the next
preference expressed by each applicant, quota year, it shall indicate its inten-
as required by § 6.24(c), the Licensing tion to do so directly and in writing to
Authority will allocate licenses for an the Licensing Authority not later than
article from a country by a series of July 1 prior to the beginning of such
random draws. A license of minimum next quota year. Furthermore, if a gov-
size will be issued to each applicant in ernment that has designated importers
the order established by such draws for a quota year determines that it will
until the total amount of such article not continue to designate importers for
in Appendix 2 has been allocated. An the next quota year, it shall so indicate
applicant that receives a license for an directly and in writing to the Licens-
article will be removed from the pool ing Authority, not later than July 1
for subsequent draws until every appli- prior to such next quota year.
cant has been allocated at least one li-
cense, provided that the licenses for
FR 53356, Sept. 16, 2008; 75 FR 76254, Dec. 8,
which they applied are not already 2010]
fully allocated. Any amount remaining
after the random draws which is less § 6.26 Surrender and reallocation.
than the applicable minimum license
size may, at the discretion of the Li- (a) If a licensee determines that it
censing Authority, be prorated equally will not enter the entire amount of an
among the licenses awarded for that article permitted under its license,
article. such licensee shall surrender its license
(d) Designated licenses (Appendix 3). (1) right to enter the amount that it does
With respect to an article listed in Ap- not intend to enter. Surrender shall be
pendix 3, the government of the appli- made to the Licensing Authority in
cable country may, not later than Oc- writing by mail or electronic submis-
tober 31 prior to the beginning of a sion, postmarked or electronically sub-
quota year, submit directly and in mitted, in accordance with § 6.36(b), no
writing to the Licensing Authority: later than October 1. Any surrender
(i) The names and addresses of the shall be final and shall be only for that
importers that it is designating to re- quota year, except as provided in
ceive licenses; and § 6.25(b). The amount of the license not
(ii) The amount, in percentage terms, surrendered shall be subject to the li-
of such article for which each such im- cense use requirements of § 6.23(c)(1).
porter is being designated. Where quan- (b) For each quota year, the Licens-
tities for designation result from both ing Authority will, to the extent prac-
Tokyo Round concessions and Uruguay ticable, reallocate any amounts surren-
Round concessions, the designations dered.
should be made in terms of each. (c) Any person who has been issued a
(2) To the extent practicable, the Li- license for a quota year may apply to
censing Authority will issue designated receive additional license, or addition
licenses to those importers, and in to an existing license for a portion of
those amounts, indicated by the gov- the amount being reallocated. The ap-
ernment of the applicable country, pro- plication shall be submitted to the Li-
vided that the importer designated censing Authority by mail or elec-
meets the eligibility requirements set tronic submission, in accordance with
forth in § 6.23. Consistent with the § 6.36(b), no earlier than September 1
international obligations of the United and not later than September 15, and
States, the Licensing Authority may shall specify:
(1) The name and control number of
disregard a designation if the Licensing

Authority determines that the person the applicant;
designated is not eligible for any of the (2) The article and country being re-
reasons set forth in § 6.23(c) (1) or (2). quested, the applicable Additional U.S.
342
Note number and, if more than one ar- as contained in 7 CFR subtitle A, re-
ticle is requested, a rank-order by Ad- vised as of January 1, 1996).
ditional U.S. Note number; and [61 FR 53007, Oct. 9, 1996, as amended at 69 FR
(3) If applicable, the number of the li- 59764, Oct. 6, 2004]
cense issued to the applicant for that
quota year permitting entry of the § 6.27 Limitations on use of license.
same article from the same country. (a) A licensee shall not obtain or use
(d) The Licensing Authority will re- a license for speculation, brokering, or
allocate surrendered amounts among offering for sale, or permit any other
applicants as follows: person to use the license for profit.
(1) The minimum license size, or ad- (b) A licensee who is eligible as a
dition to an existing license, will be manufacturer or processor, pursuant to
the total amount of the article from a § 6.23, shall process at least 75 percent
country surrendered, or 10,000 kilo- of its licensed imports in such person’s
grams, whichever is less; own facilities and maintain the records
(2) Minimum size licenses, or addi- necessary to so substantiate.
tions to an existing license, will be al-
located among applicants requesting § 6.28 Transfer of license.
articles on the basis of the rank-order (a) If a licensee sells or conveys its
lottery system described in § 6.25(c); business involving articles covered by
(3) If there is any amount of an arti- this subpart to another person, includ-
cle from a country left after minimum ing the complete transfer of the at-
size licenses have been issued, the Li- tendant assets, the Licensing Author-
censing Authority may allocate the re- ity will transfer to such other person
mainder in any manner it determines the historical, nonhistorical or des-
equitable among applicants who have ignated license issued for that quota
requested that article; and year. Such sale or conveyance must be
(4) No amount will be reallocated to unconditional, except that it may be in
a licensee who has surrendered a por- escrow with the sole condition for re-
tion of its license for the same article turn of escrow being that the Licensing
from the same country during that Authority determines that such sale
quota year unless all other licensees does not meet the requirements of this
applying for a reallocated quantity paragraph.
have been allocated a license; (b) The parties seeking transfer of li-
(e) However, if the government of an cense shall give written notice to the
exporting country chooses to designate Licensing Authority of the intended
eligible importers for surrendered sale or conveyance described in para-
amounts under Appendix 3, the Licens- graph (a) of this section by mail as re-
ing Authority shall issue the licenses quired in § 6.36(b). The notice must be
in accordance with § 6.25(d)(2), provided received by the Licensing Authority at
that the government of the exporting least 20 working days prior to the in-
country notifies the Licensing Author- tended consummation of the sale or
ity of its designations no later than conveyance. Such written notice shall
September 1. Such notification shall include copies of the documents of sale
contain the names and addresses of the or conveyance. The Licensing Author-
importers that it is designating and ity will review the documents for com-
the amount in percentage terms of pliance with the requirements of para-
such article for which each importer is graph (a) of this section and advise the
being designated. In such case the re- parties in writing of its findings by the
quirements of paragraph (c) of this sec- end of the 20-day period. The parties
tion shall not apply. shall have the burden of demonstrating
(f) Except for paragraph (a), the pro- to the satisfaction of the Licensing Au-
visions of § 6.26 for surrendered and re- thority that the contemplated sale or
allocated tariff-rate quota shares do conveyance complies with the require-
not apply for the 1996 quota year. Re- ments of paragraph (a) of this section.
issued tariff-rate quota shares for li- Within 15 days of the consummation of
censes surrendered during 1996 will be the sale or conveyance, the parties
made pursuant to the provisions in ef- shall mail copies of the final docu-
fect for the 1996 quota year (§ 6.26(f)(2) ments to the Licensing Authority, in
343
accordance with § 6.36(b). The Licensing (1) A true and correct copy of a
Authority will not transfer the licenses through bill of lading endorsed by the
unless the documents are submitted in original consignee of the goods;
accordance with this paragraph. (2) A certified copy of the commer-
(c) The eligibility for a license of a cial invoice or bill of sale from the for-
person to whom a business is sold or eign supplier to the original consignee
conveyed will be determined for the of the goods; and
next quota year in accordance with (3) A commercial invoice or bill of
§ 6.23. For the purposes of § 6.23(b)(1) the sale from the original consignee to the
person to whom a business is sold or licensee.
conveyed shall be deemed to be the per- (e) If the article entered was pur-
son to whom the historical licenses chased by the licensee in warehouse,
were issued during the quota year in the licensee shall present, at the time
which the sale or conveyance occurred. of entry:
Further, for the purposes of § 6.23 (b) (1) Customs Form 7501 endorsed by
and (c), the entries made under such li- the original consignee of the goods;
censes by the original licensee during
(2) A certified copy of the commer-
the year in which the sale of convey-
cial invoice or bill of sale from the for-
ance is made, shall be considered as
having been made by the person to eign supplier to the original consignee
whom the business was sold or con- of the goods; and
veyed. (3) A commercial invoice or bill of
sale from the original consignee to the
[61 FR 53007, Oct. 9, 1996, as amended at 69 FR licensee.
59764, Oct. 6, 2004]
(f) The Licensing Authority may
§ 6.29 Use of licenses. waive the requirements of paragraphs
(c), (d) or (e), if it determines that be-
(a) An article entered under a license cause of strikes, lockouts or other un-
shall be an article produced in the usual circumstances, compliance with
country specified on the license. those requirements would unduly
(b) An article entered or withdrawn interfere with the entry of such arti-
from warehouse for consumption under cles.
a license must be entered in the name (g) Nothing in this subpart shall pre-
of the licensee as the importer of vent the use of immediate delivery in
record by the licensee or its agent, and
accordance with the provisions of Cus-
must be owned by the licensee at the
toms regulations relating to tariff-rate
time of such entry.
quotas.
(c) If the article entered or with-
drawn from warehouse for consumption § 6.30 Record maintenance and inspec-
was purchased by the licensee through tion.
a direct sale from a foreign supplier,
the licensee shall present, at the time A licensee shall retain all records re-
of entry: lating to its purchases, sales and trans-
(1) A true and correct copy of a actions governed by this subpart, in-
through bill of lading from the coun- cluding all records necessary to estab-
try; and lish the licensee’s eligibility, for five
(2) A commercial invoice or bill of years subsequent to the end of the
sale from the seller, showing the quan- quota year in which such purchases,
tity and value of the product, the date sales or transactions occurred. During
of purchase and the country; or that period, the licensee shall, upon
(3) Where the article was entered into reasonable notice and during ordinary
warehouse by the foreign supplier, Cus- hours of business, grant officials of the
toms Form 7501 endorsed by the foreign U.S. Department of Agriculture full
supplier and the commercial invoice. and complete access to the licensee’s
premises to inspect, audit or copy such
(d) If the article entered was pur-

chased by the licensee via sale-in-tran- records.
sit, the licensee shall present, at the
time of entry:
344
§ 6.31 Debarment and suspension. lizing the electronic software des-

7 CFR part 3017—Governmentwide ignated for the purpose by the Licens-
Debarment and Suspension (Non- ing Authority.
procurement) and Government Re- (c) If the license fee is not paid by the
quirements for Drug-Free Workplace final payment date, a hold will be
(Grants), Subparts A through E, ap- placed on the use of the license and no
plies to this subpart. articles will be permitted entry under
that license. The Licensing Authority
§ 6.32 Globalization of licenses. shall send a warning letter by certified
If the Licensing Authority deter- mail, return receipt requested, advising
mines that entries of an article from a the licensee that if payment is not
country are likely to fall short of that mailed in accordance with § 6.36(b) or
country’s allocated amount as indi- received within 21 days from the date
cated in Appendices 1, 2, and 3, the Li- of the letter, that the license will be
censing Authority may permit, with revoked. Where the license at issue is a
the approval of the Office of the United historical license, this will result, pur-
States Trade Representative, the appli- suant to § 6.23(b), in the person’s loss of
cable licensees to enter the remaining historical eligibility for such license.
balance or a portion thereof from any (d) Licensees may elect not to accept
country during that quota year. Re- certain licenses issued to them; how-
quests for consideration of such adjust- ever, the Licensing Authority must be
ments must be submitted to the Li- so notified by mail or electronic e-
censing Authority no later than Sep- mail, postmarked or electronically
tember 1. The Licensing Authority will submitted in accordance with § 6.36(b)
obtain prior consent for such an adjust- no later than May 1 of the year for
ment of licenses from the government which the license is issued.
of the exporting country for quantities
in accordance with the Uruguay Round [61 FR 53007, Oct. 9, 1996, as amended at 69 FR
commitment of the United States. 59764, Oct. 6, 2004]
§ 6.33 License fee. § 6.34 Adjustment of Appendices.

(a) A fee will be assessed each quota (a) Whenever a historical license (Ap-
year for each license to defray the De- pendix 1) is not issued to an applicant
partment’s costs of administering the pursuant to the provisions of § 6.23, is
licensing system. To the extent prac- permanently surrendered or is revoked
ticable, the fee will be announced by by the Licensing Authority, the
the Licensing Authority in a notice amount of such license will be trans-
published in the FEDERAL REGISTER no ferred to Appendix 2.
later than August 31 of the year pre- (b) The cumulative annual transfers
ceding the quota year for which the fee to Appendix 2 made in accordance with
is assessed. paragraph (a) will be published in the
(b) The license fee for each license FEDERAL REGISTER. If a transfer results
issued is due and payable in full by in the addition of a new article, or an
mail or electronic submission, post- article from a country not previously
marked or electronically submitted in
listed in Appendix 2, the Licensing Au-
accordance with § 6.36(b), no later than
thority shall afford all eligible appli-
May 1 of the year for which the license
cants for that quota year the oppor-
is issued. The fee for any license issued
tunity to apply for a license for such
after May 1 of any quota year is due
and payable in full by mail or elec- article.
tronic submission, postmarked or elec- § 6.35 Correction of errors.
tronically submitted in accordance
with § 6.36(b), no later than 30 days (a) If a person demonstrates, to the
from the date of issuance of the li- satisfaction of the Licensing Author-
cense. Fee payments, if made by mail, ity, that errors were made by officers
shall be made by certified check or or employees of the United States Gov-

money order payable to the Treasurer ernment, the Licensing Authority will
of the United States. Fee payments, if review and rectify the errors to the ex-
made electronically, shall be made uti- tent permitted under this subpart.
345
(b) To be considered, a person must ceipt, with proper postage affixed and
provide sufficient documentation re- properly addressed to the Dairy Import
garding the error to the Licensing Au- Licensing Group, STOP 1021, U.S. De-
thority by letter, postmarked not later partment of Agriculture, 1400 Independ-
than August 31 of the calendar year fol- ence Avenue SW., Washington DC
lowing the calendar year in which the 20250–1021, or by electronic submission
error was alleged to have been com- utilizing the electronic software des-
mitted. ignated for this purpose by the Licens-
(c) If the error resulted in the loss of ing Authority.
a historical license by a license holder, [61 FR 53007, Oct. 9, 1996. Redesignated at 65
the Licensing Authority will transfer FR 1298, Jan. 10, 2000; 69 FR 59764, Oct. 6,
the amount of such license from Ap- 2004]
pendix 2 to Appendix 1 in order to pro-
vide for the issuance of such license in § 6.37 Supersedure of Import Regula-
the calendar year following the cal- tion 1, Revision 7.
endar year for which the license was This subpart will supersede the provi-
revoked. The cumulative annual trans- sions of Import Regulation 1, Revision
fers to Appendix 1 in accordance with 7 heretofore in effect (§§ 6.20 through
this paragraph will be published in the 6.33 and appendices 1 through 3 as con-
FEDERAL REGISTER. tained in 7 CFR subtitle A revised as of
[65 FR 1298, Jan. 10, 2000] January 1, 1996). With respect to any
violation of the provisions of that regu-
§ 6.36 Miscellaneous. lation by a licensee prior to the effec-
(a) If any deadline date in this sub- tive date hereof, the provisions of that
part falls on a Saturday, Sunday or a regulation will be deemed to continue
Federal holiday, then the deadline in full force; however, the debarment
shall be the next business day. and suspension of § 6.31 of this subpart
(b) All submissions required under shall apply with respect to any viola-
this subpart shall be made either by tion of that regulation.
registered or certified mail, return re- [61 FR 53007, Oct. 9, 1996. Redesignated at 65
ceipt requested, with a postmarked re- FR 1298, Jan. 10, 2000]
APPENDICES 1–3 TO SUBPART—DAIRY TARIFF-RATE IMPORT QUOTA LICENSING
ARTICLES SUBJECT TO: APPENDIX 1, HISTORICAL LICENSES; APPENDIX 2, NONHISTORICAL LICENSES;

AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2011
[Quantities in kilograms]
Article by additional U.S. Sum of Appendix 3 Harmonized

note number and coun- Appendix 1 Appendix 2 Appendix tariff
try of origin 1&2 Tokyo R. Uruguay R. schedule
NON-CHEESE ARTICLES
BUTTER (G-NOTE 6) ... 5,096,498 1,880,502 6,977,000 ........................ ........................ 6,977,000

EU–25 .................... 75,459 20,702 96,161 ........................ ........................
New Zealand .......... 110,045 40,548 150,593 ........................ ........................
Other Countries ...... 43,017 30,918 73,935 ........................ ........................
Any Country ........... 4,867,977 1,788,334 6,656,311 ........................ ........................
DRIED SKIM MILK (K-
NOTE 7) .................... ........................ 5,261,000 5,261,000 ........................ ........................ 5,261,000
Australia ................. ........................ 600,076 600,076 ........................ ........................
Canada ................... ........................ 219,565 219,565 ........................ ........................
Any Country ........... ........................ 4,441,359 4,441,359 ........................ ........................
DRIED WHOLE MILK
(H-NOTE 8) ............... 3,175 3,318,125 3,321,300 ........................ ........................ 3,321,300
New Zealand .......... 3,175 ........................ 3,175 ........................ ........................
Any Country ........... ........................ 3,318,125 3,318,125 ........................ ........................
DRIED BUTTERMILK/
WHEY (M-NOTE 12) ........................ 224,981 224,981 ........................ ........................ 224,981
Canada ................... ........................ 161,161 161,161 ........................ ........................
New Zealand .......... ........................ 63,820 63,820 ........................ ........................
346
Office of the Secretary, USDA Pt. 6, Subpt., Apps. 1–3

AND APPENDIX 3, DESIGNATED IMPORTER LICENSES FOR QUOTA YEAR 2011—Continued

BUTTER SUB-
STITUTES CON-
TAINING OVER 45
PERCENT OF BUT-
TERFAT AND/OR
BUTTER OIL (SU-
NOTE 14) .................. ........................ 6,080,500 6,080,500 ........................ ........................ 6,080,500
Any Country ........... ........................ 6,080,500 6,080,500 ........................ ........................
TOTAL: NON-
CHEESE
ARTICLES ... 5,099,673 16,765,108 21,864,781 ........................ ........................ 21,864,781
CHEESE ARTICLES
CHEESE AND SUB-

STITUTES FOR
CHEESE (EXCEPT:
SOFT RIPENED
COW’S MILK
CHEESE; CHEESE
NOT CONTAINING
COW’S MILK;
CHEESE (EXCEPT
COTTAGE CHEESE)
CONTAINING 0.5
PERCENT OR LESS
BY WEIGHT OF BUT-
TERFAT; AND, ARTI-
CLES WITHIN THE
SCOPE OF OTHER
IMPORT QUOTAS
PROVIDED FOR IN
THIS SUBCHAPTER)
(OT-NOTE 16) ........... 21,557,089 9,912,642 31,469,731 9,661,128 7,496,000 48,626,859
Argentina ................ 7,690 ........................ 7,690 92,310 ........................ 100,000
Australia ................. 535,628 5,542 541,170 758,830 1,750,000 3,050,000
Canada ................... 1,013,777 127,223 1,141,000 ........................ ........................ 1,141,000
Costa Rica ............. ........................ ........................ ........................ ........................ 1,550,000 1,550,000
EU–25 .................... 15,775,975 7,491,681 23,267,656 1,132,568 3,446,000 27,846,224
Of which Por-
tugal is ......... 65,838 63,471 129,309 223,691 ........................ 353,000
Israel ...................... 79,696 ........................ 79,696 593,304 ........................ 673,000
Iceland .................... 294,000 ........................ 294,000 29,000 ........................ 323,000
New Zealand .......... 2,964,645 1,850,827 4,815,472 6,506,528 ........................ 11,322,000
Norway ................... 124,982 25,018 150,000 ........................ ........................ 150,000
Switzerland ............. 593,952 77,460 671,412 548,588 500,000 1,720,000
Uruguay .................. ........................ ........................ ........................ ........................ 250,000 250,000
Other Countries ...... 100,906 100,729 201,635 ........................ ........................ 201,635
Any Country .................. ........................ 300,000 300,000 ........................ ........................ 300,000
BLUE-MOLD CHEESE
(EXCEPT STILTON
PRODUCED IN THE
UNITED KINGDOM)
AND CHEESE AND
SUBSTITUTES FOR
CHEESE CON-
TAINING, OR PROC-
ESSED FROM,
BLUE-MOLD
CHEESE (B-NOTE
17) .............................. 2,285,946 195,055 2,481,001 ........................ 430,000 2,911,001
Argentina ................ 2,000 ........................ 2,000 ........................ ........................ 2,000

EU–25 .................... 2,283,946 195,054 2,479,000 ........................ 350,000 2,829,000
Chile ....................... ........................ ........................ ........................ ........................ 80,000 80,000
Other Countries ...... ........................ 1 1 ........................ ........................ 1
347
Pt. 6, Subpt., Apps. 1–3 7 CFR Subtitle A (1–1–12 Edition)


CHEDDAR CHEESE,
AND CHEESE AND
SUBSTITUTES FOR
CHEESE CON-
TAINING, OR PROC-
ESSED FROM,
CHEDDAR CHEESE
(C-NOTE 18) ............. 2,799,576 1,484,280 4,283,856 519,033 7,620,000 12,422,889
Australia ................. 902,462 82,037 984,499 215,501 1,250,000 2,450,000
Chile ....................... ........................ ........................ ........................ ........................ 220,000 220,000
EU–25 .................... 52,404 210,596 263,000 ........................ 1,050,000 1,313,000
New Zealand .......... 1,742,165 1,054,303 2,796,468 303,532 5,100,000 8,200,000
Other Countries ...... 102,545 37,344 139,889 ........................ ........................ 139,889
Any Country ........... ........................ 100,000 100,000 ........................ ........................ 100,000
AMERICAN-TYPE
CHEESE, INCLUD-
ING COLBY,
WASHED CURD AND
GRANULAR CHEESE
(BUT NOT INCLUD-
ING CHEDDAR) AND
CHEESE AND SUB-
STITUTES FOR
CHEESE CON-
TAINING OR PROC-
ESSED FROM SUCH
AMERICAN-TYPE
CHEESE (A-NOTE
19) .............................. 2,711,009 454,544 3,165,553 357,003 ........................ 3,522,556
Australia ................. 771,136 109,862 880,998 119,002 ........................ 1,000,000
EU–25 .................... 149,683 204,317 354,000 ........................ ........................ 354,000
New Zealand .......... 1,639,549 122,450 1,761,999 238,001 ........................ 2,000,000
Other Countries ...... 150,641 17,915 168,556 ........................ ........................ 168,556
EDAM AND GOUDA
CHEESE, AND
CHEESE AND SUB-
STITUTES FOR
CHEESE CON-
TAINING, OR PROC-
ESSED FROM,
EDAM AND GOUDA
CHEESE (E-NOTE
20) .............................. 5,128,658 477,744 5,606,402 ........................ 1,210,000 6,816,402
Argentina ................ 110,495 14,505 125,000 ........................ 110,000 235,000
EU–25 .................... 4,899,083 389,917 5,289,000 ........................ 1,100,000 6,389,000
Norway ................... 114,318 52,682 167,000 ........................ ........................ 167,000
Other Countries ...... 4,762 20,640 25,402 ........................ ........................ 25,402
348
Office of the Secretary, USDA Pt. 6, Subpt., Apps. 1–3


ITALIAN-TYPE
CHEESES, MADE
FROM COW’S MILK,
(ROMANO MADE
FROM COW’S MILK,
REGGIANO, PAR-
MESAN,
PROVOLONE,
PROVOLETTI,
SBRINZ, AND GOYA-
NOT IN ORIGINAL
LOAVES) AND
CHEESE AND SUB-
STITUTES FOR
CHEESE CON-
TAINING, OR PROC-
ESSED FROM, SUCH
ITALIAN-TYPE
CHEESES, WHETH-
ER OR NOT IN
ORIGINAL LOAVES
(D-NOTE 21) ............. 6,404,899 1,115,648 7,520,547 795,517 5,165,000 13,481,064
Argentina ................ 3,913,007 212,476 4,125,483 367,517 1,890,000 6,383,000
EU–25 .................... 2,491,892 890,108 3,382,000 ........................ 2,025,000 5,407,000
Romania ................. ........................ ........................ ........................ ........................ 500,000 500,000
Uruguay .................. ........................ ........................ ........................ 428,000 750,000 1,178,000
Other Countries ...... ........................ 13,064 13,064 ........................ ........................ 13,064
SWISS OR
EMMENTHALER
CHEESE OTHER
THAN WITH EYE
FORMATION, GRU-
YERE-PROCESS
CHEESE AND
CHEESE AND SUB-
STITUTES FOR
CHEESE CON-
TAINING, OR PROC-
ESSED FROM, SUCH
CHEESES (GR-NOTE
22) .............................. 5,325,713 1,325,601 6,651,314 823,519 380,000 7,854,833
EU–25 .................... 4,056,523 1,095,471 5,151,994 393,006 380,000 5,925,000
Switzerland ............. 1,235,692 183,795 1,419,487 430,513 ........................ 1,850,000
Other Countries ...... 33,498 46,335 79,833 ........................ ........................ 79,833
CHEESE AND SUB-
STITUTES FOR
CHEESE, CON-
TAINING 0.5 PER-
CENT OR LESS BY
WEIGHT OF BUT-
TERFAT (EXCEPT
ARTICLES WITHIN
THE SCOPE OF
OTHER TARIFF-
RATE QUOTAS PRO-
VIDED FOR IN THIS
SUBCHAPTER), AND
MARGARINE
CHEESE (LF-NOTE
23) .............................. 1,842,566 2,582,342 4,424,918 1,050,000 ........................ 5,474,908
EU–25 .................... 1,842,566 2,582,341 4,424,907 ........................ ........................ 4,424,907
Israel ...................... ........................ ........................ ........................ 50,000 ........................ 50,000

New Zealand .......... ........................ ........................ ........................ 1,000,000 ........................ 1,000,000
Other Countries ...... ........................ 1 1 ........................ ........................ 1
349


SWISS OR
EMMENTHALER
CHEESE WITH EYE
FORMATION (SW-
NOTE 25) .................. 15,607,214 6,690,117 22,297,331 9,557,945 2,620,000 34,475,276
Argentina ................ ........................ 9,115 9,115 70,885 ........................ 80,000
Australia ................. 209,698 ........................ 209,698 290,302 ........................ 500,000
Canada ................... ........................ ........................ ........................ 70,000 ........................ 70,000
EU–25 .................... 11,186,762 5,290,066 16,476,828 4,003,172 2,420,000 22,900,000
Iceland .................... 149,999 ........................ 149,999 150,001 ........................ 300,000
Israel ...................... 27,000 ........................ 27,000 ........................ ........................ 27,000
Norway ................... 3,187,264 468,046 3,655,310 3,227,690 ........................ 6,883,000
Switzerland ............. 786,906 897,199 1,684,105 1,745,895 200,000 3,630,000
Other Countries ...... 59,585 25,691 85,276 ........................ ........................ 85,276
TOTAL:
CHEESE
ARTICLES ... 63,662,670 24,237,973 87,900,653 22,764,145 24,921,000 135,585,788
TOTAL:
CHEESE
ARTI-
CLES &
NON-
CHEESE
ARTI-
CLES .... 68,762,343 41,003,081 ........................ 22,764,145 24,921,000 157,450,569
[76 FR 63539, Oct. 13, 2011] § 6.41 Definitions.

(a) Complainant means the person
Subpart—Price-Undercutting of who has filed with the Investigating
Domestic Cheese by Quota Authority, in accordance with the pro-
Cheeses cedures set forth in this subpart, a
written complaint alleging that price-
AUTHORITY: Sec. 702, Pub. L. 96–39, 93 Stat. undercutting is occurring.
144, 19 U.S.C. 1202 note. (b) Country of origin means the coun-
SOURCE: 45 FR 9883, Feb. 13, 1980, unless try, as defined in 19 CFR 134.1(b), in
otherwise noted. which the quota article subject to this
regulation was produced or manufac-
§ 6.40 General. tured.
This subpart sets forth the proce- (c) Foreign government means the gov-
dures applicable to the determination ernment of the country of origin or, for
by the Secretary of Agriculture as to purposes of determining whether a sub-
whether the price at which any article sidy has been provided for the member
of quota cheese is being offered for sale states of the European Economic Com-
in the United States on a duty-paid munity, the subsidy granting bodies of
wholesale basis is less than the domes- the European Economic Community.
tic wholesale market price of similar (d) Investigating Authority means the
articles produced in the United States Director, Dairy, Livestock and Poultry
(i.e., price-undercutting) in accordance Division, Commodity Programs, For-
with section 702 of the Trade Agree- eign Agricultural Service.
ments Act of 1979 (Pub. L. 96–39, 93 (e) Quota cheese means the articles
Stat. 144, 19 U.S.C. 1202 note) (herein- provided for in the following items of
after referred to as the Act). the Tariff Schedules of the United
States:
350
117.00 (except Stilton produced in the (5) The similar domestic article, the
United Kingdom); price of which the complainant be-
117.05 (except Stilton produced in the lieves is being undercut.
United Kingdom); (6) The month and year that the com-
117.15;
plainant first concluded that the price-
117.20;
undercutting was taking place.
117.25;
(7) To extent known to the complain-
117.42;
ant, all pertinent facts with regard to
117.44;
117.55;
the alleged subsidy, and, if known, the
117.60 (except Gammelost and Nokkelost); statutory or other authority under
117.75 (except goat’s milk cheeses and soft- which it is paid, the manner in which it
ripened cow’s milk cheeses); is paid, and the value of such subsidy
117.81; when received and used by producers or
117.86; sellers of such quota cheese.
117.88 (except goat’s milk cheeses and soft- (8) All other information which the
ripened cow’s milk cheeses); complainant believes substantiates the
allegation of price-undercutting, in-
(f) Secretary means the Secretary of
cluding the complainant’s estimate of
Agriculture.
the domestic wholesale market price of
(g) Subsidy has the same meaning as the similar article produced in the
such term has in section 771(5) of the United States and the duty-paid whole-
Tariff Act of 1930 as added by section sale price of the quota cheese involved.
101 of the Trade Agreements Act of 1979 If available, samples of the domestic
(19 USC 1677(5)). and imported cheese products should be
(h) The United States means the Cus- submitted.
toms Territory of the United States,
which is limited to the United States, § 6.43 Determinations.
District of Columbia and Puerto Rico.
(a) Making determinations. Not later
§ 6.42 Complaints of price-undercut- than 30 days after receiving an accept-
ting. able complaint, as described in § 6.42(b),
alleging price-undercutting, the Sec-
(a) Submission of complaint. Any per- retary shall make a determination as
son who has reason to believe that the to the validity of the allegation. In
price at which any article of quota making such determination, the fol-
cheese is offered for sale or sold in the lowing shall apply:
United States on a duty-paid wholesale (1) The ‘‘domestic wholesale market’’
price basis is less than the domestic shall be one or more of the three major
wholesale market price of similar arti- U.S. market areas, viz., New York City,
cles produced in the United States and Chicago, and San Francisco, and/or any
that a foreign government is providing other market area within the Customs
a subsidy with respect to such article Territory of the United States, which
of quota cheese may file with the In- the Investigating Authority deter-
vestigating Authority a written com- mines most representative of the area
plaint making such allegation. specified by the complainant as the one
(b) Contents of complaint. Such com- in which price-undercutting is alleged
plaint shall contain, or be accompanied to be occurring (hereinafter referred to
by, information to substantiate com- as ‘‘designated area’’).
plainant’s allegations, in substantially (2) The ‘‘duty-paid wholesale price’’
the following form: determined by the Investigating Au-
(1) The name and address of the com- thority shall be the average of prices at
plainant. which wholesalers have sold or offered
(2) The location of the domestic for sale in the designated area the arti-
wholesale market in which price-un- cle of quota cheese alleged to be in-
dercutting is alleged to be occurring. volved in price-undercutting, as ob-
(3) The article of quota cheese in- tained in a survey directed by the In-
volved in the alleged price-undercut-
vestigating Authority during the inves-

ting. tigation: Provided, That whenever the
(4) The country of origin of such arti- designated area is not or does not in-
cle of quota cheese. clude one of the major market areas
351
specified in paragraph (a)(1) of this sec- istics of the two articles shall be con-
tion, the Investigating Authority may sidered.
adjust the average of prices determined If the common end use of the two arti-
for such designated area on the basis of cles is processing, the representative
the average of prices determined for samples of the two articles shall be ex-
the major market area which is deter- amined in terms of processing quality,
mined to be the most representative of taking special note of processing
the designated area, taking into con- yields. If the common end use of the
sideration any special factors which two articles is retail sale, representa-
may be affecting prices in the des- tive samples of the two articles shall
ignated area. be examined in terms of similarities of
(3) The ‘‘domestic wholesale market taste, texture, general appearance,
price’’ determined by the Investigating quality, age, and packaging. Imported
Authority for a similar article pro- imitation quota cheese shall only be
duced in the United States to that arti- compared with imitation domestic
cle of quota cheese which is alleged to cheese. If it is determined that the do-
be involved in price-undercutting shall mestic cheese the price of which is
be the average of prices at which claimed to be undercut is not similar
to the quota cheese allegedly undercut-
wholesalers have sold the similar arti-
ting it, there shall be no finding of
cle produced in the United States in
price-undercutting.
the designated area, as obtained in a
(b) Reporting determinations. Deter-
survey directed by the Investigating minations by the Secretary as to the
Authority during the investigation: validity of allegations of price-under-
Provided, That whenever the designated cutting made under this subpart shall
area is not or does not include one of be published in the FEDERAL REGISTER
the major market areas specified in not later than 5 days after the date the
paragraph (a)(1) of this section, the In- determination is made.
vestigating Authority may adjust the
average of prices determined for such § 6.44 Delegation of authority.
designated area on the basis of the av- The powers vested in the Adminis-
erage of prices determined for the trator, FAS, insofar as such powers re-
major market area which is deter- late to the functions of the Inves-
mined to be the most representative of tigating Authority by this regulation
the designated area, taking into con- are hereby delegated to the Inves-
sideration any special factors which tigating Authority. This final rule has
may be affecting prices in the des- been reviewed under the USDA criteria
ignated area. established to implement Executive
(4) ‘‘Similar article produced in the Order 12044, ‘‘Improving Government
United States’’ shall be an article of Regulations.’’ a determination has
cheese, cheese product, or imitation been made that this action should not
cheese produced in the United States be classified ‘‘significant’’ under those
and marketed in the domestic whole- criteria. A Final Impact Statement has
sale market, which is determined by been prepared and is available from
the Investigating Authority, based Carol M. Harvey in room 6622, South
upon available information to be most Agriculture Building, 14th and Inde-
like the imported article of quota pendence Ave., SW., Washington, DC
cheese alleged to be involved in price- 20250.
undercutting, in terms of its physical
properties and end use. In making this PART 7—SELECTION AND FUNC-
determination, first consideration TIONS OF AGRICULTURAL STA-
shall be given to the normal end uses of BILIZATION AND CONSERVATION
the article produced in the United STATE, COUNTY AND COMMU-
States in comparison with the end use
of the article of quota cheese alleged to
NITY COMMITTEES
be involved in price-undercutting. If Sec.

the end use of both articles is deter- 7.1 Administration.
mined to be the same (e.g., processing 7.2 General.
or retail sale), the physical character- 7.3 Definitions.
352
7.4 Selection of committee members. cultural Stabilization and Conserva-
7.5 Eligible voters. tion (‘‘ASC’’) committee and the func-
7.6 Determination of elective areas. tions of State ASC committees (‘‘com-
7.7 Calling of elections.
7.8 Conduct of community committee elec-
munity’’, ‘‘county’’, and ‘‘State com-
tions. mittees’’, respectively). State, county,
7.9 Election of community committee mem- and community committees shall be
bers, delegates to local administrative under the general supervision of the
area and county conventions, and county Administrator, Agricultural Stabiliza-
committee members. tion and Conservation Service
7.10 Conduct of county convention. (‘‘ASCS’’).
7.11 County committee members. (b) State, county, and community
7.12 Tie votes.
committees, and representatives and
7.13 Vacancies.
7.14 Appeals. employees thereof, do not have author-
7.15 Eligibility requirements of county ity to modify or waive any of the provi-
committee members, community com- sions of this part.
mittee members, and delegates. (c) The State committees shall take
7.16 Eligibility requirements of all other any action required by these regula-
personnel. tions which has not been taken by the
7.17 Dual office. county committee. The State com-
7.18 Terms of office of county and commu-
mittee shall also:
nity members.
7.19 Terms of office of delegates to the con-
(1) Correct, or require a county com-
ventions. mittee to correct, any action taken by
7.20 State committee duties. such county committee which is not in
7.21 County committee duties. accordance with this part, or
7.22 Community committee duties. (2) Require a county committee to
7.23 Chairperson of the county committee withhold taking any action which is
duties. not in accordance with this part.
7.24 Chairperson of the community com-
(d) No provision or delegation herein
mittee duties.
7.25 County executive director duties. to a State or county committee shall
7.26 Private business activity and conflicts preclude the Administrator, ASCS, or a
of interest. designee of the Administrator, from de-
7.27 Political activity. termining any question arising under
7.28 Removal from office or employment for this part, or from reversing or modi-
cause. fying any determination made by a
7.29 Delegation of authority to Deputy Ad- State or county committee.
ministrator.
7.30 Right of review. § 7.2 General.
7.31 Hearing in connection with appeals and
requests for reconsideration to Deputy State, county, and community com-
Administrator. mittees shall, as directed by the Sec-
7.32 Findings, analysis, and recommenda- retary of a designee of the Secretary,
tions of hearing officer. carry out the programs and functions
7.33 Determination of the Deputy Adminis- of the Secretary.
trator.
7.34 Custody and use of books, records, and § 7.3 Definitions.
documents.
7.35 Administrative operations. The terms defined in part 719 of this
7.36 Implementation. title governing the reconstitution of
7.37 Applicability. farms shall also be applicable to this
7.38 Retention of authority. part.
AUTHORITY: Secs. 4 and 8 of the Soil Con-
servation and Domestic Allotment Act, as § 7.4 Selection of committee members.
amended; 49 Stat. 164 and 1149, as amended State committee members shall be
(16 U.S.C. 590d and 590h). selected by the Secretary and shall
SOURCE: 52 FR 48512, Dec. 23, 1987, unless serve at the pleasure of the Secretary.
otherwise noted. County and community committee
members shall be elected in accordance
§ 7.1 Administration. with § 7.9 of this part.
(a) The regulations of this part are

applicable to the election and func- § 7.5 Eligible voters.
tions of community and county Agri- (a) Voters eligible to participate in:
353
(1) The direct election of county com- committee consisting of three mem-
mittee members and bers.
(2) Community committee elections (3) The boundaries of the commu-
shall be persons who meet the require- nities and local administrative areas
ments of paragraphs (b) and (c) of this shall be determined by the State com-
section. mittee after considering recommenda-
(b) Any person, regardless of race, tions by the county committee.
color, religion, sex, age, or national or- (b) Exceptions to general rule. (1) A
igin, who has an interest in a farm as local administrative area may have
owner, operator, tenant, or share- more than one community committee
cropper and who is of legal voting age if the county had more than three com-
in the State in which the farm is lo- munity committees on December 23,
cated, and any person not of such legal 1985.
voting age who is in charge of the su- (2) In counties with less than 150 pro-
pervision and conduct of the farming ducers, the county committee may re-
operations on an entire farm, shall be duce the number of communities to
eligible to vote for direct election of one.
county committee members or commu- (3) The Deputy Administrator may
nity committee members if such per- include more than one county or parts
son is eligible to participate with re- of different counties in a community if
spect to the farm in any program ad- it is determined that there is an insuf-
ministered by the county committee. ficient number of producers in an area
(c) In any State having a community to establish a slate of candidates for a
property law, the spouse of a person community committee and hold an
who is eligible to vote in accordance election.
with paragraph (b) of this section shall
(4) In counties which had less than
also be eligible to vote.
three communities on December 23,
(d) If an eligible voter is an entity
1985, the county committee may estab-
other than an individual, the eligible
lish one community for the county.
voter’s vote may be cast by a duly au-
thorized representative of such entity, (5) In any county where there is only
as determined by the Deputy Adminis- one community, the community com-
trator, State and County Operations, mittee shall be the county committee.
ASCS (‘‘Deputy Administrator’’). (c) The county committee shall give
(e) Each county office shall have a public notice of the community bound-
list of eligible voters for each commu- aries in advance of the election.
nity within the county available for
§ 7.7 Calling of elections.
public inspection in advance of the
community committee election. (a) Each election of community com-
(f) Each eligible voter shall be enti- mittee members shall be held on a
tled to only one ballot in any election date, or within a specified period of
held in any one local administrative time, determined by the Deputy Ad-
area. If the eligible voter has an inter- ministrator. Such date or period of
est in land located in more than one time shall fall within a period begin-
community in the county, such voter ning on or after July 1 and ending not
shall not be entitled to vote in more later than December 30 each year. Each
than one community in the county. such election shall be held in accord-
There shall be no voting by proxy. ance with instructions issued by the
Deputy Administrator which shall be
§ 7.6 Determination of elective areas. available for examination in each
(a) Local administrative areas and com- county office.
munities. (1) Except as provided in para- (b) If the number of eligible voters
graph (b) of this section, there shall be voting in any election of community
three local administrative areas in committee members is so small that
each county. With respect to Alaska, the State committee determines that
the term ‘‘county’’ shall be the area so the result of the election does not rep-
designated by the State committee. resent the views of a substantial num-
(2) Each local administrative area ber of eligible voters, the State com-
shall have at least one community mittee shall declare the election void
354
and call a new election. If it is deter- An acting member of the community

mined by the State committee that the committee shall have the same duties
election for any position on a commu- and the same authority as a regular
nity committee has not been held sub- member of such committee. The elec-
stantially in accordance with official tion shall be conducted by mail ballot
instructions, the State committee in all counties, except that the Deputy
shall declare such election void and Administrator may authorize use of
call a new election. the meeting or polling place method in
a specific county where such is deemed
§ 7.8 Conduct of community committee justified. Where elections are by mail
elections. or by polling place, the county com-
(a) The county committee serving at mittee shall give advance public notice
the time shall be responsible for the that nominations may be made by peti-
conduct of community committee election. Election shall be by secret ballot
tions in accordance with instructions and by plurality vote with each eligible
issued by the Deputy Administrator. voter having the option of writing in
(b) Elections shall not be associated the names of candidates. Except as pro-
with, or held in conjunction with, any vided in paragraph (d) of this section
other election or referendum conducted and § 7.10(c) of this part, the three reg-
for any other purpose. ular members of the community com-
(c) The county committee shall give mittee shall be the delegates to the
advance public notice of how, when, local administrative area and county
and where eligible voters may vote; conventions and the first and second
when and where the votes will be alternates to community committee
counted; and the right to witness the shall also be, in that order, alternate
vote counting. delegates to the local administrative
(d) All nominees shall be notified in area and county conventions. A person
writing of the outcome of the election may not serve as delegate if such per-
by the county executive director. son has been a member of the county
§ 7.9 Election of community committee committee for that county during the
members, delegates to local admin- 90 days preceding the community com-
istrative area and county conven- mittee election. Failure to elect the
tions, and county committee mem- prescribed number of alternates at the
bers. regular election shall not invalidate
(a) Where there are three local ad- such election or require a special elec-
ministrative areas as provided in § 7.6 tion to elect additional alternates.
of this part there shall be an election (c) In any county where there is only
of community committee members and one local administrative area, the com-
alternates for a term of three years, or munity committee shall be the county
until such person’s successor is elected committee.
and qualified, in one of the local ad- (d) Where there is only one commu-
ministrative areas so that the term of nity in the county, one committee per-
office of the community committee son shall be elected to hold office for a
members and alternates within one of term of 3 years, or until such person’s
the local administrative areas will ex- successor is elected and qualified, so
pire each year. that the term of office of one com-
(b) Except as provided in paragraph mittee member will expire in each
(d) of this section, the eligible voters in year. There shall also be elected annu-
a community shall elect every three ally a first alternate and second alter-
years a community committee com- nate to serve as acting members in the
posed of three members and shall elect order elected in case of the temporary
first and second alternates to serve as absence of a member or to become a
acting members of the community member in the order elected in the case
committee in the order elected in case of resignation, disqualification, re-
of the temporary absence of a member, moval, or death of a member of the
or to become a member of the commu- committee. In the event an alternate

nity committee in the order elected in fills a permanent vacancy on the com-
case of the resignation, disqualifica- mittee, such person shall assume the
tion, removal, or death of a member. office until the next election or until
355
the replaced committee member’s suc- portion of the delegates from a local
cessor is elected and qualified. An act- administrative area are precluded from
ing member shall have the same duties attending the county convention as the
and authority as a regular member. result of the limitation imposed by the
(e) In any county where there are preceding sentence, the delegates from
three local administrative areas, the such local administrative area shall
delegates elected pursuant to § 7.9 (a) elect those delegates who shall attend
and (b) of this part shall meet in a the county convention.
local administrative area convention (d) County conventions shall not be
held before the close of the same cal- associated with or held in conjunction
endar year in which they were elected with any other election or referendum
to elect a county committee member conducted for any other purpose.
and a first and second alternate. A first (e) The county committee shall give
and second alternate shall serve as act- advance public notice of the county
ing members of the committee in the convention which shall be open to the
order elected in case of the temporary public.
absence of a member, or to become a (f) The county executive director
member in the order elected in case of shall notify in writing all newly elect-
the resignation, disqualification, re- ed county committee members, alter-
moval, or death of a member of the nates, and county committee members
county committee. In the event an al- with unexpired terms of the election
ternate fills a permanent vacancy on results.
the county committee, such person
shall assume the unexpired term of the § 7.11 County committee members.
county committee member who was re- (a) County committee members
placed. An acting member of the coun- elected in accordance with § 7.9 of this
ty committee shall have the same du- part shall hold office for a term of
ties and authority as a member. The three years or until a successor is
Deputy Administrator may fix the elected and qualified.
exact convention date. Each delegate (b) The county committee shall se-
shall be entitled to only one vote on lect a secretary who shall be the coun-
any ballot, and there shall be no voting ty executive director, other employee
by proxy. A majority of the delegates of the county committee, or the county
so elected and qualified to vote at the agricultural extension agent for the
time of the convention shall constitute county. If the county agricultural ex-
a quorum. Such convention shall be tension agent is not selected as sec-
held to the extent practicable in the retary to the county committee, that
manner set forth in § 7.10 of this part person shall be an ex officio member of
and in accordance with instructions the county committee but shall not
issued by the Deputy Administrator. have the power to vote.
[52 FR 48512, Dec. 23, 1987, as amended at 53 [52 FR 48512, Dec. 23, 1987, as amended at 53
FR 23749, June 24, 1988] FR 23750, June 24, 1988]
§ 7.10 Conduct of county convention. § 7.12 Tie votes.

(a) The county committee serving at (a) Tie votes in community com-
the time shall be responsible for desig- mittee elections held by mail or poll-
nating the place at which the county ing place method shall be settled by
convention will be held and for the con- lot. Tie votes in such elections held by
duct of the convention in accordance the meeting method which cannot be
with instructions issued by the Deputy settled by further balloting on the
Administrator. same day shall be settled by lot. In
(b) The delegates to the county con- counties with one local administrative
vention shall determine which county area, a tie vote in determining the
committee members shall be the coun- chairperson and vice chairperson of the
ty committee chairperson and county county committee which cannot be set-
committee vice-chairperson. tled by further balloting on the same

(c) Each local administrative area day shall be settled by lot.
shall have the same number of dele- (b) In the county or local administra-
gates at the county convention. If a tive area convention, tie votes which
356
cannot be settled by further balloting (1) The eligibility or ineligibility of a

on the same day shall be settled by lot. person to vote,
(2) The eligibility of a person to hold
§ 7.13 Vacancies. office, and
(a) In case of a vacancy in the office (3) The validity of the community
of chairperson of county or community committee elections. Such appeal must
committee, the respective vice chair- be made within 15 days of the election
person shall become chairperson; in date, except that appeals on a deter-
case of a vacancy in the office of vice mination of eligibility of a person nom-
chairperson, the respective third mem- inated by petition must be made within
ber shall become vice chairperson; in 7 days of the date of notification of in-
case of a vacancy in the office of the eligibility.
third member, the respective first al- (b) Any eligible voter in the county
ternate shall become the third mem- may appeal to the State committee in
ber; and in case of a vacancy in the of- writing, in person, or both:
fice of the first alternate, the respec- (1) A county committee decision on
tive second alternate shall become the an election appeal. An appeal of a
first alternate. When unanimously rec- county committee decision must be
ommended by the three members of the made within 15 days of the notification
county committee, as constituted of the decision, and
under this paragraph and paragraph (c) (2) The validity of a county conven-
of this section, and approved by the tion. An appeal on the validity of a
State committee, the offices of chair- county convention must be made with-
person and vice chairperson of the in 15 days of the county convention.
county committee may be filled from
such membership without regard to the § 7.15 Eligibility requirements of coun-
order of succession prescribed in this ty committee members, community
paragraph or the action of the dele- committee members, and delegates.
gates to the county convention. (a) To be eligible to hold office as a
(b) In case of a vacancy in the panel county committee member, commu-
of delegates to the local administrative nity committee member, a delegate, or
area or county convention, the respec- an alternate to any such office, a per-
tive community committee alternates son must meet the conditions set forth
shall act as delegates. in this section.
(c) In the event that a vacancy, other (b) Such person must:
than one caused by temporary absence, (1) Be eligible to vote in the local ad-
occurs in the membership of the coun- ministrative area in which the election
ty committee and no alternate is avail- is held if proposed for county com-
able to fill the vacancy, the State committee member or alternate, or in the
mittee shall call a meeting of the dele- community in which the election is
gates of the appropriate community held if proposed for community com-
committees to elect persons to fill such mittee member or alternate;
vacancies as exist in the membership (2)(i) Except as provided in paragraph
of the county committee and in the (b)(2)(ii) of this section, be residing in
panel of alternates, except as provided the local administrative area in which
in § 7.28 of this part. the election is held if proposed for
(d) In the event that a vacancy, other county committee member or alter-
than one caused by temporary absence, nate, or be residing in the community
occurs in the membership of the com- in which the election is held if pro-
munity committee and no alternate is posed for community committee mem-
available to fill the vacany, a special ber or alternate.
election shall be held to fill such va- (ii) In cases where a State line, a
cancies as exist in the membership and county line, a local administrative
in the panel of alternates. area boundary, or a community bound-
ary runs through a farm, eligible per-
§ 7.14 Appeals.
sons residing on such farm may hold

(a) Any eligible voter in the county office in the county or community in
may appeal to the county committee in which the farm has been determined to
writing or in person, or both: be located for program participation
357
purposes. In cases where a candidate policy; or violated official instructions,

has no farming interests in the local unless any such disqualification is
administrative area or community in waived by the State committee or the
which the person resides or only a Deputy Administrator;
token amount, as determined by the (7) During the term of office, not be a
State committee, an eligible person full-time employee of the U.S. Depart-
may hold office when such person re- ment of Agriculture;
sides in the county and has farming in- (8) If the office is that of county com-
terests in the local administrative area mittee member, not be a sales agent or
or community in which the person is a employee of the Federal Crop Insur-
candidate. ance Corporation during the term of of-
(3) Not be ineligible under § 7.27 of fice;
this part.
(9) If the office is that of delegate to
(4) Not have been dishonorably dis-
the local administrative area or county
charged from any branch of the armed
convention, not have been a county
services; removed for cause from any
committee member for that county
public office; convicted of any fraud,
during the 90 days preceding the com-
larceny, embezzlement, or felony, un-
less any such disqualification is waived munity election;
by the State committee or the Deputy (10) If the office is that of county
Administrator; committee member, not be serving as a
(5) Not have been removed as a coun- county committee member with one or
ty committee member, community more years following the current elec-
committee member, delegate, alternate tion remaining in the term of office;
to any such office, or as an employee and
for: Failure to perform the duties of (11) If the office is that of county
the office; committing, attempting, or committee member, not have served
conspiring to commit fraud; incom- three consecutive terms as county
petence; impeding the effectiveness of committee member just prior to the
any program administered in the coun- current election, except that:
ty; refusal to carry out or failure to (i) Any partial term served by an al-
comply with the Department’s policy ternate who filled a permanent va-
relating to equal opportunity and civil cancy on the county committee, shall
rights, including the equal employment not count toward this three term limi-
policy, or interfering with others in tation; and
carrying out such policy; or for viola- (ii) In the case of a person elected to
tion of official instructions, unless any be a national officer or State president
such disqualification is waived by the of the National Association of Farmer
State committee or the Deputy Admin- Elected Committeemen, the limitation
istrator; shall be four consecutive terms.
(6) Not have been disqualified for fu-
ture service because of a determination [52 FR 48512, Dec. 23, 1987, as amended at 59
FR 15827, Apr. 5. 1994]
by a State committee that during pre-
vious service as a county committee
§ 7.16 Eligibility requirements of all
member, community committee mem- other personnel.
ber, delegate, alternate of any such of-
fice, or as an employee of the county (a) The county executive director and
committee such person has: Failed to other employees of the county com-
perform the duties of such office or em- mittee must not have been: Dishonor-
ployment; committed, attempted, or ably discharged from any branch of the
conspired to commit fraud; impeded armed services; removed for cause from
the effectiveness of any program ad- any public office; or convicted of any
ministered in the county; in the course fraud, larceny, embezzlement, or fel-
of their official duties, refused to carry ony, unless any such disqualification is
out or failed to comply with the De- waived by the State committee or the
Deputy Administrator.
partment’s policy relating to equal op-

portunity and civil rights, including (b) The county executive director or
the equal employment policy, or inter- any other employee of the county com-
fered with others in carrying out such mittee must not have been removed as
358
a county committee member, commu- (3) A delegate to a county conven-

nity committee member, delegate, al- tion;
ternate to any such office, county exec- (4) The secretary to the county com-
utive director, or other employee of the mittee;
county committee for: Failure to per- (5) A member of the State com-
form the duties of the office; commit- mittee; or
ting, attempting, or conspiring to com- (6) County executive director or any
mit fraud; incompetence; impeding the other county office employee.
effectiveness of any program adminis- (b) Community committee membership.
tered in the county; refusal to carry A member of the community com-
out or failure to comply with the De- mittee may not be at the same time:
partment’s policy relating to equal op- (1) A member of a county committee;
portunity and civil rights, including (2) The secretary to the county com-
equal employment policy, or inter- mittee;
fering with others in carrying out such (3) A member of the State com-
policy; or for violation of official in- mittee; or
structions, unless such disqualification (4) County executive director or reg-
is waived by the State committee or ular county office employee.
the Deputy Administrator. (c) Delegate to conventions. A delegate
(c) The county executive director or to the local administrative area or
any other employee of the county com- county convention may not be a mem-
mittee must not have been disqualified ber of the State committee.
for future employment because of a de- § 7.18 Terms of office of county and
termination by a State committee that community members.
during previous service as a county
The term of office of county and com-
committee member, community com-
munity committee members and alter-
mittee member, delegate, alternate to
nates to such office shall begin on a
any such office, or as an employee of
date fixed by the Deputy Adminis-
the county committee has: Failed to
trator, which shall be after their elec-
perform the duties of such office or em-
tion and not later than the first day in
ployment; committed, attempted, or
the next January. Before any such
conspired to commit fraud; impeded
county committee members or alter-
the effectiveness of any program ad-
nate county committee members may
ministered in the county; refused to take office, such person shall sign an
carry out or failed to comply with the oath of office pledge that they will
Department’s policy relating to equal faithfully, fairly, and honestly perform
opportunity and civil rights, including to the best of their ability all of the
the equal employment policy, or inter- duties devolving on them as committee
fered with others in carrying out such members. A term of office shall con-
policy; or violated official instructions, tinue until a successor is elected and
unless such disqualification is waived qualified as provided in §§ 7.8 and 7.9 of
by the State committee or the Deputy this part.
Administrator.
(d) The tenure of employment of any § 7.19 Terms of office of delegates to
count executive director or other em- the conventions.
ployee of the county committee shall The terms of office of delegates and
be terminated as soon as any such per- alternates to the local administrative
son becomes ineligible for employment area and county conventions shall
under the provisions of this section. begin immediately upon their election
and shall continue until their respec-
§ 7.17 Dual office.
tive successors have elected and quali-
(a) County committee membership. A fied.
member of the county committee may
not be at the same time: § 7.20 State committee duties.
(1) A member of a community com-
The State committee, subject to the

mittee; general direction and supervision of
(2) A delegate to a local administra- the Deputy Administrator, shall be
tive area convention; generally responsible for carrying out
359
in the State the agricultural conserva- action in accordance with such instruc-
tion program, the production adjust- tions;
ment and price support programs, the (5) Recommend to the State com-
acreage allotment and marketing mittee needed changes in boundaries of
quota programs, the wool and mohair community and local administrative
incentive payment program, and any areas;
other program or function assigned by (6) Make available to farmers and the
the Secretary or a designee of the Sec- public, information concerning the ob-
retary. jectives and operations of the programs
§ 7.21 County committee duties. administered through the county com-
mittee;
(a) The county committee, subject to
(7) Make available to agencies of the
the general direction and supervision
of the State committee, and acting Federal Government and others infor-
through community committee mem- mation with respect to the county
bers and other personnel, shall be gen- committee activities in accordance
erally responsible for carrying out in with official instructions issued;
the county the agricultural conserva- (8) Give public notice of the designa-
tion program, the production adjust- tion and boundaries of each community
ment and price support programs, the within the county not less than 50 days
acreage allotment and marketing prior to the election of community
quota programs, the wool and mohair committee members and delegates;
incentive payment program, and any (9) Direct the giving of notices in ac-
other program or function assigned by cordance with applicable regulations
the Secretary or a designee of the Sec- and official instructions;
retary. (10) Recommend to the State com-
(b) The county committee shall: mittee desirable changes in or addi-
(1) Enter into leasing agreements for tions to existing programs;
such office space as needed in accord-
(11) Conduct such hearings and inves-
ance with official instructions.
tigations as the State committee may
(2) Employ the county executive di-
request; and
rector, subject to standards and quali-
fications furnished by the State com- (12) Perform such other duties as
mittee, to serve at the pleasure of the may be prescribed by the State com-
county committee, except that incum- mittee.
bent directors shall not be removed
other than in accordance with the pro- § 7.22 Community committee duties.
visions of § 7.28 of this part until all (a) The community committee shall
members of the county committee be subject to the general direction and
have been in office for at least 90 days. supervision of the county committee.
There shall be no employment dis- (b) The community committee shall:
crimination due to race, religion, (1) Serve as an advisor and consult-
color, sex, age, or national origin. The ant to the county committee;
county executive director may not be (2) Periodically meet with the county
removed for advocating or carrying out committee and State committee to be
the Department’s policy on equal op- informed on farm program issues;
portunity and civil rights, including
(3) Communicate with producers on
the equal employment policy. In the
issues or concerns regarding farm pro-
event it is claimed that dismissal is for
such reasons, the dismissal shall not grams;
become effective until the State com- (4) Report to the county committee,
mittee and the Deputy Administrator the State committee, and other inter-
have determined that dismissal was ested persons on changes to, or modi-
not because of such reasons; fication of, farm programs rec-
(3) Direct the activities of the local ommended by producers;
(5) Perform such other functions as
committees elected in the county;

(4) Pursuant to official instructions, are required by law or as the Secretary
review, approve, and certify forms, re- or a designee of the Secretary may
ports, and documents requiring such specify.
360
§ 7.23 Chairperson of the county com- the communitiy committees elected in

mittee duties. the county.
The chairperson of the county com- § 7.26 Private business activity and
mittee or the person acting as the conflicts of interest.
chairperson shall preside at meetings
(a) No county committee member,
of the county committee, certify such
community committee member, dele-
documents as may require the chair-
gate, alternate to any such office, or
person’s certification, and perform
county office employee shall at any
such other duties as may be prescribed
time use such office or employment to
by the State committee.
promote any private business interest.
§ 7.24 Chairperson of the community (b) County committee members, com-
committee duties. munity committee members, delegates,
or alternates, and any person employed
The chairperson of the community in the county office shall be subject to
committee or the person acting as the the official instructions issued with re-
chairperson shall preside at meetings spect to conflicts of interest and proper
of the community committee, and per- conduct.
form such other duties as may be as-
signed by the county committee. § 7.27 Political activity.
§ 7.25 County executive director du- (a) No person may be a member of
ties. the county governing body or hold a
Federal, State, or county office filled
(a) The county executive director by an election held pursuant to law or
shall execute the policies established be employed by any such office and
by the county committee and be re- also hold office as a county committee
sponsible for the day-to-day operations member, community committee mem-
of the county office. ber, delegate, alternate to such office,
(b) The county executive director or be employed in any capacity, except,
shall: that members of school boards, soil
(1) In accordance with standards and conservation district boards, weed con-
qualifications furnished by the State trol district boards, or of similar
committee, employ the personnel of boards are not ineligible to hold office
the county office to serve at the pleas- or employment under this paragraph
ure of the county executive director. solely because of membership on such
There shall be no employment dis- boards.
crimination due to race, religion, (b) No person may be a candidate for
color, sex, age, or national origin. An membership on the county governing
employee may not be removed under body or for any Federal, State, or
this paragraph for advocating or car- county office filled by an election held
rying out the Department’s policy on pursuant to law and hold office as a
equal opportunity and civil rights, in- county committee member, commu-
cluding the equal employment policy. nity committee member, delegate, al-
In the event it is claimed that the dis- ternate to any such office, or be em-
missal is for such reason, the dismissal ployed in any capacity, except, that
shall not become effective until the candidates for school boards, soil con-
State committee and the Deputy Ad- servation district boards, irrigation
ministrator have determined that dis- district boards, drainage district
missal was not because of such reason; boards, weed control district boards, or
(2) Receive, dispose of, and account for similar boards are not ineligible to
for all funds, negotiable instruments, hold office or employment under this
or property coming into the custody of subsection solely because of candidacy
the county committee; for such boards.
(3) Serve as counselor to the local ad- (c) No person may be an officer, em-
ministrative area and county conven- ployee, or delegate to a convention of
tion chairperson on election proce-
any political party or political organi-

dures; and zation and hold office as a county com-
(4) Supervise, under the direction of mittee member, community committee
the county committee, the activities of member, delegate, alternate to any
361
such office, or be employed in any ca- (2) A candidate for political office in
pacity. any primary, general, or special elec-
(d) The tenure of office of any county tion, but excluding such activities on
committee member, community com- behalf of individual candidates in
mittee member, delegate, alternate to township and municipal elections; or
any such office, or the employment of (3) Any other political purpose.
any employee, shall be automatically [52 FR 48512, Dec. 23, 1987; 53 FR 1441, Jan. 19,
terminated as soon as any such person 1988]
becomes ineligible for office of employ-
ment under the provisions of paragraph § 7.28 Removal from office or employ-
(a), (b), or (c) of this section. ment for cause.
(e) No county committee member, (a) Any county committee member,
community committee member, dele- community committee member, dele-
gate, or alternate to any such office, or gate to the local administrative area
any employee shall at any time engage convention or the county convention,
in the following political activities: an alternate to any such office, county
(1) Solicit or receive any contribu- executive director, or any other county
tions (including the sale of tickets) for employee who: Fails to perform the du-
political party organizations or for a ties of office; commits or attempts, or
candidate for political office or for any conspires to commit fraud; is incom-
other political purpose in any room or petent; impedes the effectiveness of
building used for the transaction of any program administered in the coun-
any Federal official business, or at any ty; violates the provisions of § 7.27 (e)
or (f) of this part; refuses to carry out
place from any other county com-
or fails to comply with the equal op-
mittee member, community committee
portunity and civil rights, including
member, delegate, or alternate to any
the equal employment policy, or who
such office or employee.
interferes with others in carrying out
(2) Use official authority or influence such policy; or violates official instruc-
to discharge, remove, demote, or pro- tions, shall be suspended from office or
mote any employee, or threaten or employment. Any person who is under
promise to so do, for withholding or formal investigation for any of the
giving contributions (including the above-cited reasons may be suspended.
buying or the refusal to buy tickets) The suspension action may be taken by
for political purposes, or for supporting the county executive director with re-
or opposing any candidate or any polit- spect to any other employee, or by the
ical organization in any primary, gen- county committee or State committee
eral, or special election for political of- with respect to the county executive
fice. director or any other county employee
(3) Use or direct or permit the use of and by the State committee with re-
any official space, equipment, mate- spect to any county committee mem-
rials, supplies, or personal services ei- ber, community committee member,
ther to support or oppose any political delegate to the local administrative
office holder, candidate or party, or for area convention or the county conven-
any other political purpose. tion, or any alternate to any such of-
(f) A county committee member or fice. Any person suspended shall be
alternate to such office, an employee given a written statement of the rea-
on any day when entitled to receive sons for such action and be allowed 15
pay for services in performance of du- days from the date of mailing of the
ties, or an employee who serves during notice of suspension in which to advise
a continuous period of 90 days or more the county committee, or the State
and has a regular tour of duty estab- committee if it made the suspension,
lished in advance at any time, shall not in writing, in person, or both, why such
solicit, collect, receive, disburse, or person should be restored to duty.
otherwise handle contributions of (b) The county committee or the
money, pledges, gifts, or anything of
county executive director, or the State

value (including the sale of tickets) committee if it made the suspension,
made for: following such further investigation as
(1) Political party organizations; is deemed necessary shall restore to
362
duty or remove the suspended person. necessary, after which the State com-
The county committee or county exec- mittee shall give the affected person a
utive director may not restore a sus- written statement of the determina-
pended person to duty without prior tion for the proposed disqualification
written approval of the State com- action. Such person shall have 15 days
mittee, and, if such approval is denied, from the date of receipt of such deter-
shall promptly remove such person. mination to advise in writing, in per-
Upon refusal or failure of the county son or both, why the action should not
committee or the county executive di- be taken. If any further investigation
rector to remove promptly the sus- develops substantial additional reasons
pended person, the State committee for disqualification, the person in-
shall remove such person. In the event volved shall be given a written state-
further investigation develops reasons ment of such reasons and 15 days from
for the action taken, in addition to the date of mailing in which to re-
those disclosed in the suspension no- spond. The State committee may re-
tice, the suspended person shall be move the disqualification for future
given written notification of such addi- service or employment only with prior
tional reasons and allowed 15 days from approval of the Deputy Administrator.
the date of mailing of the notice of ad- (d) Any county committee member,
ditional reasons for the suspension in community committee member, dele-
which to advise why such person gate to the local administrative area
should be restored to duty. In the event convention or the county convention,
a person under suspension submits a or any alternate to any such office,
resignation, acceptance thereof shall county executive director, or any other
not prevent a determination by the county employee, who, prior to taking
county committee or State committee such persons’s present office: Com-
that such person would have been re- mitted, or attempted or conspired to
moved had the person remained in the commit fraud; or impeded the effec-
position. Such determination shall con- tiveness of any program administered
stitute removal within the meaning of in the county, may be suspended. Any
§§ 7.27 (e) and 7.28(c) of this part. The such person who is under formal inves-
person so removed shall be given writ- tigation for any reason set forth in this
ten notification of any such determina- section may be suspended. The pro-
tion and the reasons therefor. ceedings under this paragraph shall be
(c) Any incumbent or former county applied the same as provided in para-
committee member, community com- graph (a) of this section.
mittee member, delegate to the local (e) If in the event of suspensions or
administrative area convention or the vacancies there are less than two mem-
county convention, an alternate to any bers, including alternates, available to
such office, county executive director, serve on the county committee, the
or any other county employee who dur- State committee shall designate a per-
ing a term of employment: Fails or son to administer the programs in the
failed to perform the duties of employ- county pending the exoneration or re-
ment; committed, attempted, or con- moval of those persons under investiga-
spired to commit fraud; was incom- tion and, if removed, pending the elec-
petent; impeded the effectiveness of tion of new county committee mem-
any program administered in the coun- bers and alternates. Such person may
ty; violated the provisions of § 7.27 (e) be the remaining member or alternate
or (f) of this part; refused to carry out member of the committee if available.
or failed to comply with the Depart- Any person named by the State com-
ment’s policy relating to equal oppor- mittee to serve in such capacity shall
tunity and civil rights, including the have full authority to perform all du-
equal employment policy; or violated ties regularly performed by a duly
official instructions, may be disquali- elected county committee.
fied for future service or employment
§ 7.29 Delegation of authority to Dep-
by the State committee. Before any

such disqualification determination is uty Administrator.
made, the State committee shall un- Notwithstanding the authority vest-
dertake such investigation as it deems ed by this part in a State committee, a
363
county committee, and the county ex- subject to further administrative re-
ecutive director, the Deputy Adminis- view.
trator shall have authority to suspend
and/or remove or disqualify for future § 7.31 Hearing in connection with ap-
service or employment, any county peals and requests for reconsider-
ation to Deputy Administrator.
committee member, community com-
mittee member, delegate to the local Any person (the ‘‘appellant’’) filing
administrative area convention or the an appeal with the Deputy Adminis-
county convention, an alternate to any trator, or a request for reconsideration
such office, county executive director, of a determination made by the Deputy
or other county employee, for any and Administrator under § 7.29 of this part,
all of the reasons and causes author- is entitled, at such person’s election, to
izing such suspension, removal, and a hearing in connection therewith. If
disqualification by the State com- the appellant does not request a hear-
mittee, the county committee, or the ing, the appeal or reconsideration shall
county executive director. Any person be handled in accordance with § 7.30 of
suspended, removed or disqualified pur- this part. If the appellant desires a
suant to this section shall be given a hearing, such person shall so advise the
written statement of the reason for Deputy Administrator. The hearing
such action and shall be advised of the shall be conducted by the Deputy Ad-
right of review as provided in § 7.30 of ministrator, or a designee of the Dep-
this part. uty Administrator, who shall serve as a
hearing officer. The hearing shall be
§ 7.30 Right of review. held at the time and place designated
by the hearing officer. The appellant
Any person dissatisfied with a deter- may appear personally or through or
mination of the county committee or accompanied by a representative. The
county executive director may appeal hearing officer shall conduct the hear-
in writing or in person or both, such ing so as to bring out pertinent facts,
determination to the State committee. including the production of pertinent
Any person dissatisfied with a deter- documents. Rules of evidence shall not
mination of the State committee may be applied strictly, but the hearing of-
appeal such determination in writing ficer shall exclude irrelevant or unduly
to the Deputy Administrator. Any per- repetitious evidence. Information hav-
son dissatisfied with the determination ing a bearing on the issues shall be re-
of the Deputy Administrator made ceived in evidence. Both the appellant
under § 7.29 of this part may request a and the agency representatives are en-
reconsideration of such determination titled to produce witnesses and the ap-
by the Deputy Administrator. Any pellant and agency representative shall
such appeal or request for reconsider- be given an opportunity to cross-exam-
ation shall be made within 15 days ine witnesses. The hearing officer shall
from the date of the mailing of the de- inform the witnesses that they are sub-
termination with respect to which the ject to a fine of not more than $10,000
appeal or request is filed. Except as or imprisonment for not more than 5
provided in § 7.31 of this part, such ap- years, or both, for making any false
peals and requests for reconsideration statements (18 U.S.C. 1001). The hear-
shall be determined on an informal ing officer shall cause a transcript to
basis. The person filing the appeal or be made of the hearing and it shall be
request for reconsideration may made available to the appellant at ac-
present reasons, in writing or in per- tual costs.
son, or both, why the determination
should be reversed or modified. Within § 7.32 Findings, analysis, and rec-
60 days after the reasons have been pre- ommendations of hearing officer.
sented, such person shall be notified of If the hearing has been conducted by
the determination on appeal or recon- a designee of the Deputy Adminis-
sideration. The notification shall clear- trator, the hearing officer shall, within
ly set forth the basis for the deter- 60 days from date of receipt of the tran-
mination. The determination of the script transmit to the Deputy Adminis-
Deputy Administrator is final and not trator:
364
(a) The record of the hearing; person’s interests under the programs
(b) The findings and analysis of the administered by the county committee
hearing officer; and may be affected, subject to instruc-
(c) A recommended determination. tions issued by the Deputy Adminis-
trator; and
§ 7.33 Determination of the Deputy Ad-
ministrator. (4) To any other person only in ac-
cordance with instructions issued by
Within 30 days after receipt of the the Deputy Administrator.
findings, analysis, and recommenda-
tions of the hearing officer that are § 7.35 Administrative operations.
made under § 7.32 of this part, or within
60 days from the date of receipt of the The administrative operations of
transcript prepared under such section county committees including but not
if the Deputy Administrator conducted limited to the following, shall be con-
the hearing, the Deputy Administrator ducted, except as otherwise provided in
shall make a final determination. The these regulations, in accordance with
notification shall clearly set forth the official instructions issued: annual,
basis for the determination. The deter- sick, and other types of employee
mination of the Deputy Administrator leave; location and use of the county
is final and not subject to further ad- committee office; the calling, and con-
ministrative review. duct of elections; and the maintenance
of records of county and local com-
§ 7.34 Custody and use of books, mittee meetings.
records, and documents.
(a) All books, records, and documents § 7.36 Implementation.
of or used by the county committee in Unless specifically provided in this
the administration of programs as-
part, the Deputy Administrator, State
signed to it, or in the conduct of elec-
and County Operations, or the Deputy
tions, shall be the property of the Com-
modity Credit Corporation or the Administrator, Management, ASCS, is
United States Department of Agri- authorized to issue the instructions
culture, as applicable, and shall be and procedures referred to herein
maintained in good order in the county which implement the provisions of this
office. part.
(b) For polling and mail type elec-
tions, ballots shall remain in sealed § 7.37 Applicability.
boxes until the prescribed date for This part shall apply to each State of
counting. Following the counting of the United States.
ballots in all types of elections, the
ballots shall be placed in sealed con- § 7.38 Retention of authority.
tainers and retained for 30 days unless Nothing in this part shall preclude
otherwise determined by the State the Secretary, the Administrator, or
committee. the Deputy Administrator from admin-
(c) The books, records, and docu-
istering any or all programs or exer-
ments referred to in paragraph (a) shall
cising other functions delegated to the
be available for use and examination:
(1) At all times by authorized rep- community committee, county com-
resentatives of the Secretary; the Ad- mittee, State committee, or any em-
ministrator, or a designee of the Ad- ployee of such committees. In exer-
ministrator. cising this authority, the Secretary,
(2) By state, county, and community the Administrator, or the Deputy Ad-
committee members, and authorized ministrator may designate for such pe-
employees of the State and county of- riod of time as deemed necessary a per-
fice in the performance of duties as- son or persons of their choice to be in
signed to them under this part, subject charge will full authority to carry on
to instructions issued by the Deputy the programs or other functions with-

Administrator; out regard to the normal duties of such
(3) At any reasonable time to any committees or employees.
program participant insofar as such
365
PART 8—4-H CLUB NAME AND County Cooperative Extension Service

EMBLEM as used in this part refers to a county
Extension office or equivalent Exten-
Sec. sion office operating under a State Co-
8.1 Policy. operative Extension Service.
8.2 Delegation of authority. National Institute of Food and Agri-
8.3 Definitions. culture as used in this part means the
8.4 Basic premises. Federal agency within the United
8.5 Revocation of present authorizations. States Department of Agriculture that
8.6 Authorization for use. administers Federal agricultural coop-
8.7 Continued use. erative extension programs.
8.8 Use by public informational services.
8.9 Use in 4-H fund raising.
State Cooperative Extension Service as
used in this part means an organiza-
AUTHORITY: 5 U.S.C. 301; 18 U.S.C. 707. tion established at the land-grant col-
SOURCE: 50 FR 31582, Aug. 2, 1985, unless lege or university under the Smith-
otherwise noted. Lever Act of May 8, 1914, as amended (7
U.S.C. 341–349); section 209(b) of the Act
§ 8.1 Policy. of October 26, 1974, as amended (D.C.
The Cooperative Extension Service, Code, through section 31–1719(b)); or
of which the 4-H Club program is a section 1444 of the National Agricul-
part, invites and appreciates the co- tural Research, Extension, and Teach-
operation of all organizations, agen- ing Policy Act of 1977, as amended (7
cies, and individuals whose interest, U.S.C. 3221).
products, or services will contribute to [50 FR 31582, Aug. 2, 1985, as amended at 52
the educational effort of the Coopera- FR 8432, Mar. 17, 1987; 52 FR 47660, Dec. 15,
tive Extension Service as conducted 1987; 60 FR 52293, Oct. 6, 1995; 76 FR 4803, Jan.
through the 4-H Club program. 27, 2011]
§ 8.2 Delegation of authority. § 8.4 Basic premises.

The Director of the National Insti- (a) The 4-H Club Name and Emblem
tute of Food and Agriculture, United are held in trust by the Secretary of
States Department of Agriculture, may Agriculture of the United States De-
authorize the use of the 4-H Club Name partment of Agriculture for the edu-
and Emblem in accordance with the cational and character-building pur-
regulations in this part. poses of the 4-H program and can be
[50 FR 31582, Aug. 2, 1985, as amended at 60 used only as authorized by the statute
FR 52293, Oct. 6, 1995; 76 FR 4803, Jan. 27, and according to the authorization of
2011] the Secretary or designated representa-
tive.
§ 8.3 Definitions. (b) The 4-H Club Name and Emblem
4-H Club Name and Emblem as used in may be used by authorized representa-
this part means the emblem consisting tives of the United States Department
of a green four-leaf clover with stem of Agriculture, the Cooperative Exten-
and the letter ‘‘H’’ in white or gold on sion Services, the land-grant institu-
each leaflet, or any insignia in tions, and the National 4-H Council, ac-
colorable imitation thereof, or the cording to these regulations, for serv-
words, ‘‘4-H Club,’’ ‘‘4-H Clubs’’ or any ing the educational needs and interests
combination of these or other words or of 4-H youth.
characters in colorable imitation (c) Any use of the 4-H Club Name and
thereof. Emblem is forbidden if it exploits the
Cooperative Extension Service, as used 4-H programs, its volunteer leaders or
in this part includes the entire Cooper- 4-H youth participants or the United
ative Extension System consisting of States Department of Agriculture, the
the National Institute of Food and Ag- Cooperative Extension Services, or the
land-grant institutions, or their em-
riculture, United States Department of

Agriculture; the State Cooperative Ex- ployees.
tension Services; and the County Coop- (d) The 4-H Club Name and Emblem
erative Extension Services. shall not be used to imply endorsement
366
of commercial firms, products, or serv- poses. Likewise, specific authorization

ices. is not required to use the 4-H Club
Name or Emblem in those exhibits, dis-
§ 8.5 Revocation of present authoriza- plays, etc., which are designed pri-
tions. marily to pay tribute to or salute the
Effective September 16, 1985, author- 4-H program and are in keeping with
ization permits for the use of the 4-H the policies enunciated herein.
Club Name and Emblem presently in (f) Authorization must be obtained
effect will be revoked. However, such for use of the 4-H Club Name or Em-
authorizations may be renewed upon blem by other than representatives of
written request. the Cooperative Extension Services,
the land-grant institutions, and the
§ 8.6 Authorization for use. National 4-H Council in connection
(a) The Director of the National In- with contests and awards, books, book-
stitute of Food and Agriculture may lets, charts, posters, and all other
grant authorization for use of the 4-H forms of publications; all calendars re-
Club Name and Emblem: gardless of origin or use; theatrical and
(1) For educational or informational nontheatrical motion pictures; slides,
uses which the Cooperative Extension slide films, and other visual and audio-
Service deems to be in the best inter- visual materials; supplies (whether to
ests of the 4-H program and which can be sold or provided without charge);
be properly controlled by the Coopera- and titles of persons.
tive Extension Service. (g) Any authorization or permission
(2) For services to youth which the for use of the 4-H Club Name and Em-
Cooperative Extension Service deter- blem may be revoked at any time after
mines it is not in a position itself to written notice.
perform. [50 FR 31582, Aug. 2, 1985, as amended at 60
(b) Authorizations, when issued, will FR 52293, Oct. 6, 1995; 76 FR 4803, Jan. 27,
be valid for specified purposes and peri- 2011]
ods of time only. Application forms for
requesting authorization to use the 4-H § 8.7 Continued use.
Club Name and Emblem may be ob- (a) The Cooperative Extension Serv-
tained from the Director of the Na- ices, land-grant institutions, local 4-H
tional Institute of Food and Agri- Clubs and groups and other officially
culture, United States Department of affiliated 4-H organziations recognized
Agriculture, Washington, D.C. 20250. by the Secretary of Agriculture and
(c) Granting an authorization to an the Cooperative Extension Service are
individual, organization, or institution authorized to use the 4-H Club Name or
for a specific use does not preclude Emblem:
granting a similar authorization to an- (1) For their own educational or in-
other individual, organization, or insti- formational purposes according to
tution for the same or a similar pur- these regulations;
pose. (2) On materials which are origi-
(d) All uses of the 4-H Club Name or nated, requested, purchased, distrib-
Emblem shall be consistent with the uted, or sold by them for use in their
educational purposes, character-build- respective geographical areas of re-
ing objectives, and dignity of the 4-H sponsibilities;
program and the 4-H Club Name or Em- (3) Except as specifically authorized
blem shall be given a position of promi- by the above-named organizations for
nence. It is not permissible to super- use within the respective geographic
impose any letter, design, or object on boundaries specified (club or group,
the 4-H Club Emblem, or to materially county, area, State) and as provided for
alter its intended shape. in paragraph (a)(4) of this section, man-
(e) Specific authorization is not re- ufacturers, wholesalers, jobbers, retail-
quired to use the 4-H Club Name or ers, purchasers or others cannot manu-
Emblem in media such as newspapers, facture, sell, or distribute materials

periodicals, and radio and television bearing the 4-H Club Name or Emblem.
programs when such use is primarily (4) Any proposal for distribution on
for educational or informational pur- an interstate, regional, or nationwide
367
basis of materials, supplies, and simi- ated with, products, and services for
lar items bearing the 4-H Club Name or such purposes must have the approval
Emblem which originates with an orga- of appropriate Cooperative Extension
nization or individual not affiliated office, as follows:
with the Cooperative Extension Service (1) Approval of the County Coopera-
shall be brought to the attention of the tive Extension Service, or the appro-
Director of the National Institute of priate land-grant institution, if the
Food and Agriculture, United States fund-raising program is confined to the
Department of Agriculture, for ap- area served by the County Cooperative
proval. Extension Service.
(b) [Reserved] (2) Approval of the State Cooperative
[50 FR 31582, Aug. 2, 1985, as amended at 60 Extension Service, or the appropriate
FR 52293, Oct. 6, 1995; 76 FR 4803, Jan. 27, land-grant institution, if the fund-rais-
2011] ing program is multi-county or State-
wide.
§ 8.8 Use by public informational serv- (3) Approval of the Director of the
ices. National Institute of Food and Agri-
(a) In any advertisement, display, ex- culture, United States Department of
hibit, visual and audio-visual material, Agriculture, or a designee, if the fund-
news release, publication in any form, raising program is multi-State or Na-
radio and television program devoted tionwide.
in whole or in part to 4-H, the 4-H mes- (b) When used to promote 4-H edu-
sage or salute must be distinctly set cational programs, the 4-H Club name
apart from any commercial product and emblem, subject to obtaining au-
message or reference. thorization as provided in these regula-
(b) Advertisements, news releases, tions, may be used on or associated
publications in any form, visuals and with products and services sold in con-
audio-visuals, or displays in any form nection with 4-H fund-raising programs
must not include actual or implied so long as no endorsement or the ap-
testimonials or endorsements of busi- pearance of an endorsement of a com-
ness firms, commercial products or mercial firm, product or service is ei-
services, either by 4-H Clubs, other 4-H ther intended or effected. Tributes to 4-
organizations and affiliated groups, 4-H H contained on or associated with
youth participants, volunteer 4-H lead- commerical products or services, when
ers, the Cooperative Extension Serv- such products or services are used for
ices, the land-grant institutions, the fund-raising activities, are subject
USDA, or by any employees associated to the requirements of this paragraph.
with any of the foregoing. Statements All moneys received from 4-H fund-
that a product is used or preferred to raising programs, except those nec-
the exclusion of similar products are essary to pay reasonable expenses,
not permitted. must be expended to further the 4-H
(c) The granting of an authorization educational programs.
to a non-Extension affiliated agency,
[52 FR 8432, Mar. 17, 1987, as amended at 60
organization or individual, for produc-
FR 52293, Oct. 6, 1995; 76 FR 4803, Jan. 27,
tion of films, visual and audio-visual 2011]
materials, books, publications in any
form, etc., is contingent upon approval
of the initial proposal and subject to PARTS 9–10 [RESERVED]
review of the script of the visual or
audio-visual or draft of the publication PART 11—NATIONAL APPEALS
when the draft is in the final working DIVISION
form.
Subpart A—National Appeals Divison Rules
§ 8.9 Use in 4-H fund raising. of Procedures
(a) Fund-raising programs using the Sec.
4-H Name or Emblem may be carried 11.1 Definitions.

out for specific educational purposes. 11.2 General statement.
Such fund-raising programs and use of 11.3 Applicability.
the 4-H name and emblem on, or associ- 11.4 Other laws and regulations.
368
11.5 Informal review of adverse decisions. (1) The Commodity Credit Corpora-
11.6 Director review of agency determination (CCC);
tion of appealability and right of partici- (2) The Farm Service Agency (FSA);
pants to Division hearing.
(3) The Federal Crop Insurance Cor-
11.7 Ex parte communications.
11.8 Division hearings. poration (FCIC);
11.9 Director review of determinations of (4) The Natural Resources Conserva-
Hearings Officers. tion Service (NRCS);
11.10 Basis for determinations. (5) The Risk Management Agency
11.11 Reconsideration of Director deter- (RMA);
minations. (6) The Rural Business-Cooperative
11.12 Effective date and implementation of Service (RBS);
final determinations of the Division. (7) Rural Development (RD);
11.13 Judicial review.
11.14 Filing of appeals and computation of
(8) The Rural Housing Service (RHS);
time. (9) The Rural Utilities Service (RUS)
11.15 Participation of third parties and in- (but not for programs authorized by
terested parties in Division proceedings. the Rural Electrification Act of 1936 or
the Rural Telephone Bank Act, 7 U.S.C.
Subpart B—Organization And Functions 901 et seq.);
(10) A State, county, or area com-
11.20 General statement.
11.21 Organization. mittee established under section 8(b)(5)
11.22 Functions. of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h (b)(5));
Subpart C—Availability of Information to and
the Public (11) Any predecessor or successor
agency to the above-named agencies,
11.30 General statement. and any other agency or office of the
11.31 Public inspection and copying.
11.32 Initial request for records.
Department which the Secretary may
11.33 Appeals. designate.
APPENDIX A TO SUBPART C—LIST OF AD-
Agency record means all the materials
DRESSES
maintained by an agency related to an
adverse decision which are submitted
AUTHORITY: 5 U.S.C. 301; Title II, Subtitle to the Division by an agency for con-
H, Pub. L. 103–354, 108 Stat. 3228 (7 U.S.C. 6991
sideration in connection with an appeal
et seq.); Reorganization Plan No. 2 of 1953 (5
U.S.C. App.). under this part, including all materials
prepared or reviewed by the agency
SOURCE: 64 FR 33373, June 23, 1999, unless during its consideration and decision-
otherwise noted.
making process, but shall not include
records or information not related to
Subpart A—National Appeals the adverse decision at issue. All mate-
Divison Rules of Procedures rials contained in the agency record
submitted to the Division shall be
§ 11.1 Definitions. deemed admitted as evidence for pur-
For purposes of this part: poses of a hearing or a record review
Adverse decision means an administra- under § 11.8.
tive decision made by an officer, em- Agency representative means any per-
ployee, or committee of an agency that son, whether or not an attorney, who is
is adverse to a participant. The term authorized to represent the agency in
includes a denial of equitable relief by an administrative appeal under this
an agency or the failure of an agency part.
to issue a decision or otherwise act on Appeal means a written request by a
the request or right of the participant participant asking for review by the
within timeframes specified by agency National Appeals Division of an ad-
program statutes or regulations or verse decision under this part.
within a reasonable time if timeframes Appellant means any participant who
are not specified in such statutes or appeals an adverse decision in accord-
regulations. The term does not include ance with this part. Unless separately
a decision over which the Board of Con- set forth in this part, the term ‘‘appel-
tract Appeals has jurisdiction. lant’’ includes an authorized represent-
Agency means: ative.
369
Authorized representative means any Participant means any individual or

person, whether or not an attorney, entity who has applied for, or whose
who is authorized in writing by a par- right to participate in or receive, a
ticipant, consistent with § 11.6(c), to payment, loan, loan guarantee, or
act for the participant in an adminis- other benefit in accordance with any
trative appeal under this part. The au- program of an agency to which the reg-
thorized representative may act on be- ulations in this part apply is affected
half of the participant except when the by a decision of such agency. The term
provisions of this part require action does not include persons whose claim(s)
by the participant or appellant person- arise under:
ally. (1) Programs subject to various pro-
Case record means all the materials ceedings provided for in 7 CFR part 1;
maintained by the Secretary related to (2) Programs governed by Federal
an adverse decision: The case record in- contracting laws and regulations (ap-
cludes both the agency record and the pealable under other rules and to other
hearing record.
forums, including to the Department’s
Days means calendar days unless oth-
Board of Contract Appeals under 7 CFR
erwise specified.
part 24);
Department means the United States
Department of Agriculture (USDA). (3) The Freedom of Information Act
Director means the Director of the Di- (appealable under 7 CFR part 1, subpart
vision or a designee of the Director. A);
Division means the National Appeals (4) Suspension and debarment dis-
Division established by this part. putes, including, but not limited to,
Equitable relief means relief which is those falling within the scope of 7 CFR
authorized under section 326 of the parts 1407 and 3017;
Food and Agriculture Act of 1962 (7 (5) Export programs administered by
U.S.C. 1339a) and other laws adminis- the Commodity Credit Corporation;
tered by the agency. (6) Disputes between reinsured com-
Ex parte communication means an oral panies and the Federal Crop Insurance
or written communication to any offi- Corporation;
cer or employee of the Division with (7) Tenant grievances or appeals pros-
respect to which reasonable prior no- ecutable under the provisions of 7 CFR
tice to all parties is not given, but it part 1944, subpart L, under the multi-
shall not include requests for status re- family housing program carried out by
ports, or inquiries on Division proce- RHS;
dure, in reference to any matter or pro- (8) Personnel, equal employment op-
ceeding connected with the appeal in- portunity, and other similar disputes
volved. with any agency or office of the De-
Hearing, except with respect to § 11.5, partment which arise out of the em-
means a proceeding before the Division ployment relationship;
to afford a participant the opportunity
(9) The Federal Tort Claims Act, 28
to present testimony or documentary
U.S.C. 2671 et seq., or the Military Per-
evidence or both in order to have a pre-
sonnel and Civilian Employees Claims
vious determination reversed and to
Act of 1964, 31 U.S.C. 3721;
show why an adverse determination
was in error. (10) Discrimination complaints pros-
Hearing Officer means an individual ecutable under the nondiscrimination
employed by the Division who conducts regulations at 7 CFR parts 15, 15a, 15b,
the hearing and determines appeals of 15e, and 15f; or
adverse decisions by any agency. (11) Section 361, et seq., of the Agri-
Hearing record means all documents, cultural Adjustment Act of 1938, as
evidence, and other materials gen- amended (7 U.S.C. 1361, et seq.) involv-
erated in relation to a hearing under ing Tobacco Marketing Quota Review
$11.8. Committees.
Implement means the taking of action Record review means an appeal con-
by an agency of the Department in sidered by the Hearing Officer in which
order fully and promptly to effectuate the Hearing Officer’s determination is
a final determination of the Division. based on the agency record and other
370
information submitted by the appel- (b) Limitation. The procedures con-

lant and the agency, including infor- tained in this part may not be used to
mation submitted by affidavit or dec- seek review of statutes or USDA regu-
laration. lations issued under Federal Law.
Secretary means the Secretary of Ag-
riculture. § 11.4 Other laws and regulations.
(a) The provisions of the Administra-
§ 11.2 General statement. tive Procedure Act generally applica-
(a) This part sets forth procedures for ble to agency adjudications (5 U.S.C.
proceedings before the National Ap- 554–557), and the Equal Access to Jus-
peals Division within the Department. tice Act (5 U.S.C. 504) and its imple-
The Division is an organization within menting regulations at 7 CFR part 1,
the Department, subject to the general subpart J, shall apply to proceedings
supervision of and policy direction by under this part except for proceedings
the Secretary, which is independent under § 11.5 and § 11.6(a).
from all other agencies and offices of (b) The Federal Rules of Evidence, 28
the Department, including Department U.S.C. App., shall not apply to pro-
officials at the state and local level. ceedings under this part.
The Director of the Division reports di-
[64 FR 33373, June 23, 1999, as amended at 74
rectly to the Secretary of Agriculture. FR 57401, Nov. 6, 2009]
The authority of the Hearing Officers
and the Director of the Division, and § 11.5 Informal review of adverse deci-
the administrative appeal procedures sions.
which must be followed by program
participants who desire to appeal an (a) Required informal review of FSA ad-
adverse decision and by the agency verse decisions. Except with respect to
which issued the adverse decision, are farm credit programs, a participant
included in this part. must seek an informal review of an ad-
verse decision issued at the field serv-
(b) Pursuant to section 212(e) of the
ice office level by an officer or em-
Federal Crop Insurance Reform and De-
ployee of FSA, or by any employee of a
partment of Agriculture Reorganiza-
county or area committee established
tion Act of 1994, Pub. L. 103–354 (the
under section 8(b)(5) of the Soil Con-
Act), 7 U.S.C. 6912(e), program partici-
servation and Domestic Allotment Act,
pants shall seek review of an adverse
16 U.S.C. 590h(b)(5), before NAD will ac-
decision before a Hearing Officer of the
cept an appeal of a FSA adverse deci-
Division, and may seek further review
sion. Such informal review shall be
by the Director, under the provisions of
done by the county or area committee
this part prior to seeking judicial re-
with responsibility for the adverse de-
view.
cision at issue. The procedures for re-
§ 11.3 Applicability. questing such an informal review be-
fore FSA are found in 7 CFR part 780.
(a) Subject matter. The regulations After receiving a decision upon review
contained in this part are applicable to by a county or area committee, a par-
adverse decisions made by an agency, ticipant may seek further informal re-
including, for example, those with review by the State FSA committee or
spect to: may appeal directly to NAD under
(1) Denial of participation in, or re- § 11.6(b).
ceipt of benefits under, any program of (b) Optional informal review. With re-
an agency; spect to adverse decisions issued at the
(2) Compliance with program require- State office level of FSA and adverse
ments; decisions of all other agencies, a par-
(3) The making or amount of pay- ticipant may request an agency infor-
ments or other program benefits to a mal review of an adverse decision of
participant in any program of an agen- that agency prior to appealing to NAD.
cy; and
Procedures for requesting such an in-

(4) A determination that a parcel of formal review are found at 7 CFR part
land is a wetland or highly erodible 780 (FSA), 7 CFR part 614 (NRCS), 7
land. CFR part 1900, subpart B (RUS), 7 CFR
371
part 1900, subpart B (RBS), and 7 CFR (3) The Director may delegate his or
part 1900, subpart B (RHS). her authority to conduct a review
(c) Mediation. A participant also shall under this paragraph to any subordi-
have the right to utilize any available nate official of the Division other than
alternative dispute resolution (ADR) or a Hearing Officer. In any case in which
mediation program, including any me- such review is conducted by such a sub-
diation program available under title V ordinate official, the subordinate offi-
of the Agricultural Credit Act of 1987, 7 cial’s determination shall be consid-
U.S.C. 5101 et seq., in order to attempt ered to be the determination of the Di-
to seek resolution of an adverse deci- rector and shall be final and not ap-
sion of an agency prior to a NAD hear- pealable.
ing. If a participant: (b) Appeals of adverse decisions. (1) To
(1) Requests mediation or ADR prior obtain a hearing under § 11.8, a partici-
to filing an appeal with NAD, the par- pant personally must request such
ticipant stops the running of the 30-day hearing not later than 30 days after the
period during which a participant may date on which the participant first re-
appeal to NAD under § 11.6(b)(1), and ceived notice of the adverse decision or
will have the balance of days remain- after the date on which the participant
ing in that period to appeal to NAD receives notice of the Director’s deter-
once mediation or ADR has concluded. mination that a decision is appealable.
(2) Requests mediation or ADR after In the case of the failure of an agency
having filed an appeal to NAD under to act on the request or right of a re-
§ 11.6(b), but before the hearing, the cipient, a participant personally must
participant will be deemed to have request such hearing not later than 30
waived his right to have a hearing days after the participant knew or rea-
within 45 days under § 11.8(c)(1) but sonably should have known that the
shall have a right to have a hearing agency had not acted within the time-
within 45 days after conclusion of me- frames specified by agency program
diation or ADR. regulations, or, where such regulations
§ 11.6 Director review of agency deter- specify no timeframes, not later than
mination of appealability and right 30 days after the participant reason-
of participants to Division hearing. ably should have known of the agency’s
failure to act.
(a) Director review of agency determina-
(2) A request for a hearing shall be in
tion of appealability. (1) Not later than
30 days after the date on which a par- writing and personally signed by the
ticipant receives a determination from participant, and shall include a copy of
an agency that an agency decision is the adverse decision to be reviewed, if
not appealable, the participant must available, along with a brief statement
submit a written request personally of the participant’s reasons for believ-
signed by the participant to the Direc- ing that the decision, or the agency’s
tor to review the determination in failure to act, was wrong. The partici-
order to obtain such review by the Di- pant also shall send a copy of the re-
rector. quest for a hearing to the agency, and
(2) The Director shall determined may send a copy of the adverse deci-
whether the decision is adverse to the sion to be reviewed to the agency, but
individual participant and thus appeal- failure to do either will not constitute
able or is a matter of general applica- grounds for dismissal of the appeal. In-
bility and thus not subject to appeal, stead of a hearing, the participant may
and will issue a final determination no- request a record review.
tice that upholds or reverses the deter- (c) If a participant is represented by
mination of the agency. This final de- an authorized representative, the au-
termination is not appealable. If the thorized representative must file a dec-
Director reverses the determination of laration with NAD, executed in accord-
ance with 28 U.S.C. 1746, stating that
the agency, the Director will notify the

participant and the agency of that de- the participant has duly authorized the
cision and inform the participant of his declarant in writing to represent the
or her right to proceed with an appeal. participant for purposes of a specified
372
adverse decision or decisions, and at- § 11.8 Division hearings.

tach a copy of the written authoriza-
(a) General rules. (1) The Director, the
tion to the declaration. Hearing Officer, and the appellant shall
§ 11.7 Ex parte communications. have access to the agency record of any
adverse decision appealed to the Divi-
(a)(1) At no time between the filing of sion for a hearing. Upon request by the
an appeal and the issuance of a final appellant, the agency shall provide the
determination under this part shall appellant a copy of the agency record.
any officer or employee of the Division (2) The Director and Hearing Officer
engage in ex parte communications re- shall have the authority to administer
garding the merits of the appeal with oaths and affirmations, and to require,
any person having any interest in the by subpoena, the attendance of wit-
appeal pending before the Division, in- nesses and the production of evidence.
cluding any person in an advocacy or A Hearing Officer shall obtain the con-
investigative capacity. This prohibi- currence of the Director prior to
tion does not apply to: issuing a subpoena.
(i) Discussions of procedural matters (i) A subpoena requiring the produc-
related to an appeal; or tion of evidence may be requested and
(ii) Discussions of the merits of the issued at any time while the case is
appeal where all parties to the appeal pending before the Division.
have been given notice and an oppor- (ii) An appellant or an agency, acting
through any appropriate official, may
tunity to participate.
request the issuance of a subpoena re-
(2) In the case of a communication
quiring the attendance of a witness by
described in paragraph (a)(1)(ii) of this submitting such a request in writing at
section, a memorandum of any such least 14 days before the scheduled date
discussion shall be included in the of a hearing. The Director or Hearing
hearing record. Officer shall issue a subpoena at least 7
(b) No interested person shall make days prior to the scheduled date of a
or knowingly cause to be made to any hearing.
officer or employee of the Division an (iii) A subpoena shall be issued only
ex parte communication relevant to the if the Director or a Hearing Officer de-
merits of the appeal. termined that:
(c) If any officer or employee of the (A) For a subpoena of documents, the
Division receives an ex parte commu- appellant or the agency has established
nication in violation of this section, that production of documentary evi-
the one who receives the communica- dence is necessary and is reasonably
tion shall place in the hearing record: calculated to lead to information
(1) All such written communications; which would affect the final determina-
(2) Memoranda stating the substance tion or is necessary to fully present the
of all such oral communications; and case before the Division; or
(3) All written responses to such com- (B) For a subpoena of a witness, the
munications, and memoranda stating appellant or the agency has established
that either a representative of the De-
the substance of any oral responses
partment or a private individual pos-
thereto.
sesses information that is pertinent
(d) Upon receipt of a communication and necessary for disclosure of all rel-
knowingly made or knowingly caused evant facts which could impact the
to be made by a party in violation of final determination, that the informa-
this section the Hearing Officer or Di- tion cannot be obtained except through
rector may, to the extent consistent testimony of the person, and that the
with the interests of justice and the testimony cannot be obtained absent
policy of the underlying program, re- issuance of a subpoena.
quire the party to show cause why such (iv) The party requesting issuance of
party’s claim or interest in the appeal
a subpoena shall arrange for service.

should not be dismissed, denied, dis- Service of a subpoena upon a person
regarded, or otherwise adversely af- named therein may be made by reg-
fected on account of such violation. istered or certified mail, or in person.
373
Personal service shall be made by per- (2) The Director shall assign the ap-
sonal delivery of a copy of the sub- peal to a Hearing Officer and shall no-
poena to the person named therein by tify the appellant and agency of such
any person who is not a party and who assignment. The notice also shall ad-
is not less than 18 years of age. Proof of vise the appellant and the agency of
service shall be made by filing with the the documents required to be sub-
Hearing Officer or Director who issued mitted under paragraph (c)(2) of this
the subpoena a statement of the date section, and notify the appellant of the
and manner of service and of the names option of having a hearing by tele-
of the persons served, certified by the phone.
person who made the service in person (3) The Hearing Officer will receive
or by return receipts for certified or evidence into the hearing record with-
registered mail. out regard to whether the evidence was
(v) A party who requests that a sub- known to the agency officer, employee,
poena be issued shall be responsible for or committee making the adverse deci-
the payment of any reasonable travel sion at the time the adverse decision
and subsistence costs incurred by the was made.
witness in connection with his or her (c) Procedures applicable only to hear-
appearance and any fees of a person ings. (1) Upon a timely request for a
who serves the subpoena in person. The hearing under § 11.6(b), an appellant has
Department shall pay the costs associ- the right to have a hearing by the Divi-
ated with the appearance of a Depart- sion on any adverse decision within 45
ment employee whose role as a witness days after the date of receipt of the re-
arises out of his or her performance of quest for the hearing by the Division.
official duties, regardless of which (2) The Hearing Officer shall set a
party requested the subpoena. The fail- reasonable deadline for submission of
ure to make payment of such charges the following documents:
on demand may be deemed by the Hear- (i) By the appellant;
ing Officer or Director as sufficient (A) A short statement of why the de-
ground for striking the testimony of cision is wrong;
the witness and the evidence the wit-
(B) A copy of any document not in
ness has produced.
the agency record that the appellant
(vi) If a person refuses to obey a sub-
anticipates introducing at the hearing;
poena, the Director, acting through the
and
Office of the General Counsel of the De-
(C) A list of anticipated witnesses
partment and the Department of Jus-
and brief descriptions of the evidence
tice, may apply to the United States
such witnesses will offer.
District Court in the jurisdiction where
that person resides to have the sub- (ii) By the agency:
poena enforced as provided in the Fed- (A) A copy of the adverse decision
eral Rules of Civil Procedure (28 U.S.C. challenged by the appellant;
App.). (B) A written explanation of the
(3) Testimony required by subpoena agency’s position, including the regu-
pursuant to paragraph (a)(2) of this sec- latory or statutory basis therefor;
tion may, at the discretion of the Di- (C) A copy of any document not in
rector or a Hearing Officer, be pre- the agency record that the agency an-
sented at the hearing either in person ticipates introducing at the hearing;
or telephonically. and
(b) Hearing procedures applicable to (D) A list of anticipated witnesses
both record review and hearings. (1) Upon and brief descriptions of the evidence
the filing of an appeal under this part such witnesses will offer.
of an adverse decision by any agency, (3) Not less than 14 days prior to the
the agency promptly shall provide the hearing, the Division must provide the
Division with a copy of the agency appellant, the authorized representa-
record. If requested by the applicant tive, and the agency a notice of hearing
prior to the hearing, a copy of such specifying the date, time, and place of
agency record shall be provided to the the hearing. The hearing will be held in
appellant by the agency within 10 days the State of residence of the appellant,
of receipt of the request by the agency. as determined by the Hearing Officer,
374
or at a location that is otherwise con- provide a certified copy of the tran-

venient to the appellant, the agency, script to the Hearing Officer free of
and the Division. The notice also shall charge, and shall allow any other party
notify all parties of the right to obtain desiring to purchase a copy of the tran-
an official record of the hearing. script to order it from the tran-
(4) Pre-hearing conference. Whenever scription service.
appropriate, the Hearing Officer shall (6) Absence of parties. (i) If at the time
hold a pre-hearing conference in order scheduled for the hearing either the ap-
to attempt to resolve the dispute or to pellant or the agency representative is
narrow the issues involved. Such pre- absent, and no appearance is made on
hearing conference shall be held by behalf of such absent party, or no ar-
telephone unless the Hearing Officer rangements have been made for re-
and all parties agree to hold such con- scheduling the hearing, the Hearing Of-
ference in person. ficer has the option to cancel the hear-
(5) Conduct of the hearing. (i) A hearing unless the absent party has good
ing before a Hearing Officer will be in cause for the failure to appear. If the
person unless the appellant agrees to a Hearing Officer elects to cancel the
hearing by telephone. hearing, the Hearing Officer may:
(ii) The hearing will be conducted by (A) Treat the appeal as a record re-
the Hearing Officer in the manner de- view and issue a determination based
termined by the Division most likely on the agency record as submitted by
to obtain the facts relevant to the mat- the agency and the hearing record de-
ter or matters at issue. The Hearing veloped prior to the hearing date;
Officer will allow the presentation of (B) Accept evidence into the hearing
evidence at the hearing by any party record submitted by any party present
without regard to whether the evidence at the hearing (subject to paragraph
was known to the officer, employee, or (c)(6)(ii) of this section), and then issue
committee of the agency making the a determination; or
adverse decision at the time the ad- (C) Dismiss the appeal.
verse decision was made. The Hearing (ii) When a hearing is cancelled due
Officer may confine the presentation of to the absence of a party, the Hearing
facts and evidence to pertinent matters Officer will add to the hearing record
and exclude irrelevant, immaterial, or any additional evidence submitted by
unduly repetitious evidence, informa- any party present, provide a copy of
tion, or questions. Any party shall such evidence to the absent party or
have the opportunity to present oral parties, and allow the absent party or
and documentary evidence, oral testi- parties 10 days to provide a response to
mony of witnesses, and arguments in such additional evidence for inclusion
support of the party’s position; con- in the hearing record
trovert evidence relied on by any other (iii) Where an absent party has dem-
party; and question all witnesses. When onstrated good cause for the failure to
appropriate, agency witnesses re- appear, the Hearing Officer shall re-
quested by the appellant will be made schedule the hearing unless all parties
available at the hearing. Any evidence agree to proceed without a hearing.
may be received by the Hearing Officer (7) Post-hearing procedure. The Hear-
without regard to whether that evi- ing Officer will leave the hearing
dence could be admitted in judicial record open after the hearing for 10
proceedings. days, or for such other period of time
(iii) An official record shall be made as the Hearing Officer shall establish,
of the proceedings of every hearing. to allow the submission of information
This record will be made by an official by the appellant or the agency, to the
tape recording by the Division. In addi- extent necessary to respond to new
tion, either party may request that a facts, information, arguments, or evi-
verbatim transcript be made of the dence presented or raised at the hear-
hearing proceedings and that such ing. Any such new information will be
transcript shall be made the official added by the Hearing Office to the
record of the hearing. The party rehearing record and sent to the other
questing a verbatim transcript shall party or parties by the submitter of
pay for the transcription service, shall the information. The Hearing Officer,
375
in his or her discretion, may permit lieves the determination is wrong, in-
the other party or parties to respond to cluding citations of statutes or regula-
this post-hearing submission. tions that the agency believes the de-
(d) Interlocutory review. Interlocutory termination violates. Any such request
review by the Director of rulings of a may be made by the head of an agency
Hearing Officer are not permitted only, or by a person acting in such ca-
under the procedures of this part. pacity, but not by any subordinate offi-
(e) Burden of proof. The appellant has cer of such agency.
the burden of proving that the adverse (3) A copy of a request for Director
decision of the agency was erroneous review submitted under this paragraph
by a preponderance of the evidence. shall be provided simultaneously by
(f) Timing of issuance of determination. the submitter to each party to the ap-
The Hearing Officer will issue a notice peal.
of the determination on the appeal to (b) Notification of parties. The Direc-
the named appellant, the authorized tor promptly shall notify all parties of
representative, and the agency not receipt of a request for review.
later than 30 days after a hearing or (c) Responses to request for Director re-
the closing date of the hearing record view. Other parties to an appeal may
in cases in which the Hearing Officer submit written responses to a request
receives additional evidence from the for Director review within 5 business
agency or appellant after a hearing. In
days from the date of receipt of a copy
the case of a record review, the Hearing
of the request for review.
Officer will issue a notice of determina-
(d) Determination of Director. (1) The
tion within 45 days of receipt of the ap-
pellant’s request for a record review. Director will conduct a review of the
Upon the Hearing Officer’s request, the determination of the Hearing Officer
Director may establish an earlier or using the agency record, the hearing
later deadline. A notice of determina- record, the request for review, any re-
tion shall be accompanied by a copy of sponses submitted under paragraph (c)
the procedures for filing a request for of this section, and such other argu-
Director review under § 11.9. If the de- ments or information as may be ac-
termination is not appealed to the Di- cepted by the Director, in order to de-
rector for review under § 11.9, the no- termine whether the decision of the
tice provided by the Hearing Officer Hearing Officer is supported by sub-
shall be considered to be a notice of a stantial evidence. Based on such re-
final determination under this part. view, the Director will issue a final de-
termination notice that upholds, re-
§ 11.9 Director review of determina- verses, or modifies the determination
tions of Hearing Officers. of the Hearing Officer. The Director’s
(a) Requests for Director review. (1) Not determination upon review of a Hear-
later than 30 days after the date on ing Officer’s decision shall be consid-
which an appellant receives the deter- ered to be the final determination
mination of a Hearing Officer under under this part and shall not be appeal-
§ 11.8, the appellant must submit a able. However, if the Director deter-
written request, signed personally by mines that the hearing record is inad-
the named appellant, to the Director to equate or that new evidence has been
review the determination in order to be submitted, the Director may remand
entitled to such review by the Director. all or a portion of the determination to
Such request shall include specific rea- the Hearing Officer for further pro-
sons why the appellant believes the de- ceedings to complete the hearing
termination is wrong. record or, at the option of the Director,
(2) Not later than 15 business days to hold a new hearing.
after the date on which an agency re- (2) The Director will complete the re-
ceives the determination of a Hearing view and either issue a final determina-
Officer under § 11.8, the head of the tion or remand the determination not
later than—
agency may make a written request

that the Director review the deter- (i) 10 business days after receipt of
mination. Such request shall include the request for review, in the case of a
specific reasons why the agency be- request by the head of an agency; or
376
(ii) 30 business days after receipt of terial error of fact made in the deter-
the request for review, in the case of a mination, or a detailed explanation of
request by an appellant. how the determination is contrary to
(3) In any case or any category of statute or regulation, which would jus-
cases, the Director may delegate his or tify reversal or modification of the de-
her authority to conduct a review termination.
under this section to any Deputy or As- (b) The Director shall issue a notice
sistant Directors of the Division. In to all parties as to whether a request
any case in which such review is con- for reconsideration meets the criteria
ducted by a Deputy or Assistant Direc- in paragraph (a) of this section. If the
tor under authority delegated by the request for reconsideration meets such
Director, the Deputy or Assistant Di- criteria, the Director shall include a
rector’s determination shall be consid- copy of the request for reconsideration
ered to be the determination of the Di- in the notice to the non-requesting par-
rector under this part and shall be final ties to the appeal. The non-requesting
and not appealable. parties shall have 5 days from receipt
(e) Equitable relief. In reaching a deci- of such notice from the Director to file
sion on an appeal, the Director shall a response to the request for reconsid-
have the authority to grant equitable eration with the Director.
relief under this part in the same man- (c) The Director shall issue a decision
ner and to the same extent as such au- on the request for reconsideration
thority is provided an agency under ap- within 5 days of receipt of responses
plicable laws and regulations. from the non-requesting parties. If the
Director’s decision upon reconsider-
§ 11.10 Basis for determinations. ation reverses or modifies the final de-
(a) In making a determination, the termination of the Director rendered
Hearing Officers and the Director are under § 11.9(d), the Director’s decision
not bound by previous findings of facts on reconsideration will become the
on which the agency’s adverse decision final determination of the Director
was based. under § 11.9(d) for purposes of this part.
(b) In making a determination on the
appeal, Hearing Officers and the Direc- § 11.12 Effective date and implementa-
tor shall ensure that the decision is tion of final determinations of the
Division.
consistent with the laws and regula-
tions of the agency, and with the gen- (a) On the return of a case to an
erally applicable interpretations of agency pursuant to the final deter-
such laws and regulations. mination of the Division, the head of
(c) All determinations of the Hearing the agency shall implement the final
Officers and the Director must be based determination not later than 30 days
on information from the case record, after the effective date of the notice of
laws applicable to the matter at issue, the final determination.
and applicable regulations published in (b) A final determination will be ef-
the FEDERAL REGISTER and in effect on fective as of the date of filing of an ap-
the date of the adverse decision or the plication, the date of the transaction
date on which the acts that gave rise or event in question, or the date of the
to the adverse decision occurred, original adverse decision, whichever is
whichever date is appropriate under applicable under the applicable agency
the applicable agency program laws program statutes or regulations.
and regulations.
§ 11.13 Judicial review.
§ 11.11 Reconsideration of Director de- (a) A final determination of the Divi-
terminations. sion shall be reviewable and enforce-
(a) Reconsideration of a determina- able by any United States District
tion of the Director may be requested Court of competent jurisdiction in ac-
by the appellant or the agency within cordance with chapter 7 of title 5,
10 days of receipt of the determination. United States Code.

The Director will not consider any re- (b) An appellant may not seek judi-
quest for reconsideration that does not cial review of any agency adverse deci-
contain a detailed statement of a ma- sion appealable under this part without
377
receiving a final determination from tion. Such third parties may be identi-
the Division pursuant to the proce- fied by the Division itself, by an agen-
dures of this part. cy, or by the original appellant. The
Division shall issue one notice to the
§ 11.14 Filing of appeals and computa- third party of its right to participate,
tion of time. and if such party declines to partici-
(a) An appeal, a request for Director pate, the Division determination will
Review, or any other document will be be binding as to that third party as if
considered ‘‘filed’’ when delivered in it had participated. For purposes of
writing to the Division, when post- this part, a third party includes any
marked, or when a complete facsimile party for which a determination of the
copy is received by the Division. Division could lead to an agency action
(b) Whenever the final date for any on implementation that would be ad-
requirement of this part falls on a Sat- verse to the party thus giving such
urday, Sunday, Federal holiday, or party a right to a Division appeal.
other day on which the Division is not (b) Interested parties. With respect to
open for the transaction of business a participant who is a borrower under a
during normal working hours, the time guaranteed loan or an insured under a
for filing will be extended to the close crop insurance program, the respective
of business on the next working day. guaranteed lender or reinsurance com-
(c) The time for filing an appeal, a re- pany having an interest in a partici-
quest for Director review, or any other pant’s appeal under this part may par-
document expires at 5:00 p.m. local ticipate in the appeal as an interested
time at the office of the Division to party, but such participation does not
which the filing is submitted on the confer the status of an appellant upon
last day on which such filing may be the guaranteed lender or reinsurance
made. company such that it may request Di-
rector review of a final determination
§ 11.15 Participation of third parties of the Division.
and interested parties in Division
proceedings.
Subpart B—Organization And
In two situations, parties other than Functions
the appellant or the agency may be in-
terested in participating in Division
proceedings. In the first situation, a AUTHORITY: 5 U.S.C. 301 and 552; 7 CFR part
2.
Division proceeding may in fact result
in the adjudication of the rights of a SOURCE: 63 FR 44773, Aug. 21, 1998, unless
third party, e.g., an appeal of a tenant otherwise noted.
involving a payment shared with a
§ 11.20 General statement.
landlord, an appeal by one recipient of
a portion of a payment shared by mul- This subpart provides guidance for
tiple parties, an appeal by one heir of the general public as to the organiza-
an estate. In the second situation, a tion and functions of NAD.
party may desire to receive notice of
and perhaps participate in an appeal § 11.21 Organization.
because of the derivative impact the NAD was established on October 13,
appeal determination will have on that 1994. Delegation of authority to the Di-
party, e.g., guaranteed lenders and re- rector, NAD, appears at § 2.34 of this
insurance companies. The provisions in title. The organization is comprised of
this section set forth rules for the par- three regional offices: Eastern Re-
ticipation of such third and interested gional Office, Indianapolis, Indiana;
parties. Southern Regional Office, Memphis,
(a) Third parties. When an appeal is Tennessee; and Western Regional Of-
filed, the Division shall notify any po- fice, Lakewood, Colorado; and the
tential third party whose rights may headquarters staff located in Alexan-
be adjudicated of its right to partici- dria, Virginia. NAD is headed by a Di-

pate as an appellant in the appeal. This rector. NAD is assigned responsibility
includes the right to seek Director re- for certain administrative appeals as
view of the Hearing Officer determina- set forth in subpart A of this part.
378
§ 11.22 Functions. ability of the records of NAD to the

public.
(a) Director. Provides executive direc-
tion for NAD. The Director is respon- § 11.31 Public inspection and copying.
sible for developing and implementing
Section 1.5 of this title requires that
nationwide plans, policies, and proce-
certain materials be made available by
dures for the timely and orderly hear-
each USDA agency for public inspec-
ing and disposition of appeals filed by
tion and copying in accordance with 5
individuals or entities in accordance
U.S.C. 522(a)(2). Members of the public
with subpart A of this part. The Direc-
wishing to gain access to these NAD
tor will respond to all FOIA requests
records should write to the appropriate
concerning appeal decisions and case
address shown in appendix A of this
records maintained by NAD.
subpart.
(b) Deputy Director for Hearings and
Administration. Responsible for all ad- § 11.32 Initial requests for records.
ministrative functions of NAD, includ- (a) Requests for NAD records should
ing budget, correspondence, personnel, be in writing and addressed to the NAD
travel, equipment, and regulation re- official having custody of the records
view and development. desired as indicated in § 11.22(d). Ad-
(c) Deputy Director for Planning, dresses are found in Appendix A of this
Training, and Quality Control. Respon- subpart. In his or her petition, the re-
sible for NAD strategic planning, in- quester may ask for a fee waiver if
cluding the organization’s compliance there is likely to be a charge for the re-
with the Government Performance and quested information. The criteria for
Results Act, Pub. L. 103–62, employee waiver of fees are found in section 6 of
training, and the establishment and appendix A, subpart A of part 1 of this
maintenance of a quality assurance title. All requests for records shall be
program. deemed to have been made pursuant to
(d) Assistant Directors for Regions. Re- FOIA, regardless of whether FOIA is
sponsible for oversight of the adjudica- specifically mentioned. To facilitate
tion process for cases filed in the NAD processing of a request, the phrase
regional offices. Assistant Directors ‘‘FOIA REQUEST’’ should be placed in
ensure statutory and administrative capital letters on the front of the enve-
time frames are met, and oversee the lope.
administrative functions, training, and (b) A request must reasonably de-
supervision of the support staff located scribe records to enable NAD personnel
in the regional offices and the large to locate them with reasonable effort.
dispersed staff of professional hearing Where possible, a requester should sup-
officers located throughout the reply specific information, such as dates,
gions. The three regional offices serve titles, appellant name or appeal num-
as the custodian for all NAD deter- ber, that may help identify the records.
minations and case records. If the request relates to a matter in
pending litigation, the court and its lo-
Subpart C—Availability of cation should be identified.
Information to the Public (c) If NAD determines that a request
does not reasonably describe the
records, it shall inform the requester of
AUTHORITY: 5 U.S.C. 301 and 552; 7 CFR 1.1–
1.16.
this fact and extend the requester an
opportunity to clarify the request or to
SOURCE: 63 FR 44774, Aug. 21, 1998, unless confer promptly with knowledgeable
otherwise noted. NAD personnel to attempt to identify
the records he or she is seeking. The
§ 11.30 General statement. ‘‘date of receipt’’ in such instances, for
This subpart implements the regula- purposes of § 1.12(a) of this title, shall
tions of the Secretary of Agriculture at be the date of receipt of the amended
7 CFR 1.1 through 1.16 concerning FOIA or clarified request.

(5 U.S.C. 552). The Secretary’s regula- (d) Nothing in this subpart shall be
tions, as implemented by the regula- interpreted to preclude NAD from hon-
tions in this part, govern the avail- oring an oral request for information,
379
but if the requester is dissatisfied with Director, National Appeals Division, U.S. De-
the response, the NAD official involved partment of Agriculture, 3101 Park Center
shall advise the requester to submit a Drive, Suite 1113, Alexandria, Virginia
22302, Hours: 8 a.m.–5 p.m.
written request in accordance with
Regional Assistant Director, Eastern Region,
paragraph (a) of this section. The ‘‘date National Appeals Division, U.S. Depart-
of receipt’’ of such a request for pur- ment of Agriculture, 3500 DePauw Boule-
poses of § 1.12(a) of this title shall be vard, Suite 2052, Indianapolis, Indiana
the date of receipt of the written re- 46268, Hours: 8 a.m.–5 p.m.
quest. For recordkeeping purposes, the Regional Assistant Director, Southern Re-
NAD official responding to an oral region, National Appeals Division, U.S. De-
quest for information may ask the re- partment of Agriculture, 7777 Walnut
Grove Road, LLB–1, Memphis, Tennessee
quester to also submit his or her re-
38120, Hours: 8 a.m.–5 p.m.
quest in writing. Regional Assistant Director, Western Re-
(e) If a request for records or a fee gion, National Appeals Division, U.S. De-
waiver under this subpart is denied, the partment of Agriculture, 755 Parfet Street,
person making the request shall have Suite 494, Lakewood, Colorado 80215–5506,
the right to appeal the denial. Request- Hours: 8 a.m.–5 p.m.
ers also may appeal NAD decisions re-
garding a requester’s status for pur- PART 12—HIGHLY ERODIBLE LAND
poses of fee levels under section 5 of AND WETLAND CONSERVATION
Appendix A, subpart A of part 1 of this
title. All appeals must be in writing Subpart A—General Provisions
and addressed to the official designated
in § 11.33. To facilitate processing of an Sec.
appeal, the phrase ‘‘FOIA APPEAL’’ 12.1 General.
12.2 Definitions.
should be placed in capital letters on 12.3 Applicability.
the front of the envelope. 12.4 Determination of ineligibility.
(f) NAD shall develop and maintain a 12.5 Exemption.
record of all written and oral FOIA re- 12.6 Administration.
quests and FOIA appeals received by 12.7 Certification of compliance.
NAD, which shall include, in addition 12.8 Affiliated persons.
to any other information, the name of 12.9 Landlords and tenants.
12.10 Scheme or device.
the requester, brief summary of the in-
12.11 Action based upon advice or action of
formation requested, an indication of USDA.
whether the request or appeal was de- 12.12 Appeals.
nied or partially denied, the FOIA ex-
emption(s) cited as the basis for any Subpart B—Highly Erodible Land
denials, and the amount of fees associ- Conservation
ated with the request or appeal.
12.20 NRCS responsibilities regarding high-
§ 11.33 Appeals. ly erodible land.
12.21 Identification of highly erodible lands
Any person whose initial FOIA re- criteria.
quest is denied in whole or in part may 12.22 Highly erodible field determination
appeal that denial to the Director, Na- criteria.
tional Appeals Division, U.S. Depart- 12.23 Conservation plans and conservation
ment of Agriculture, 3101 Park Center systems.
Drive, Suite 1113, Alexandria, Virginia Subpart C—Wetland Conservation
22302. The Director will make the final
determination on the appeal. 12.30 NRCS responsibilities regarding wet-
lands.
APPENDIX A TO SUBPART C OF PART 11— 12.31 On-site wetland identification criteria.
LIST OF ADDRESSES 12.32 Converted wetland identification cri-
teria.
This list provides the titles and mailing 12.33 Use of wetland and converted wetland.
addresses of officials who have custody of 12.34 Paperwork Reduction Act assigned
NAD records. This list also identifies the number.
normal working hours, Monday through Fri-

AUTHORITY: 16 U.S.C. 3801, 3812, and 3822(h).
day, excluding holidays, during which public
inspection and copying of certain kinds of SOURCE: 61 FR 47025, Sept. 6, 1996, unless
records is permitted. otherwise noted.
380
Subpart A—General Provisions person with respect to location, land

use, tillage systems, and conservation
§ 12.1 General. treatment measures and schedules; and
(a) Scope. This part sets forth the (3) Is approved by the local soil con-
terms and conditions under which a servation district in consultation with
person who produces an agricultural the local committees established under
commodity on highly erodible land or section 8(b)(5) of the Soil Conservation
designates such land for conservation and Domestic Allotment Act (16 U.S.C.
use, plants an agricultural commodity 590h(b)(5)) and the Natural Resources
on a converted wetland, or converts a Conservation Service (NRCS) for pur-
wetland shall be determined to be in- poses of compliance with this part.
eligible for certain benefits provided by Conservation system means a combina-
the United States Department of Agri- tion of one or more conservation meas-
culture (USDA) and agencies and in-
ures or management practices that
strumentalities of USDA.
(b) Purpose. The purpose of the provi- are—
sions of this part are to remove certain (1) Based on local resource condi-
incentives for persons to produce agri- tions, available conservation tech-
cultural commodities on highly erod- nology, and the standards and guide-
ible land or converted wetland and to lines contained in the NRCS field office
thereby— technical guides (available from NRCS
(1) Reduce soil loss due to wind and State offices); and
water erosion; (2) Designed for purposes of this part
(2) Protect the Nation’s long-term ca- to achieve, in a cost-effective and tech-
pability to produce food and fiber; nically practicable manner, a substan-
(3) Reduce sedimentation and im- tial reduction in soil erosion or a sub-
prove water quality; and stantial improvement in soil condi-
(4) Assist in preserving the values, tions on a field or group of fields con-
acreage, and functions of the Nation’s taining highly erodible cropland when
wetlands.
compared to the level of erosion or soil
[61 FR 47025, Sept. 6, 1996, as amended at 76 conditions that existed before the ap-
FR 82077, Dec. 30, 2011] plication of the conservation measures
§ 12.2 Definitions. and management practices.
Conservation use or set aside means
(a) General. The following definitions cropland that is designated as con-
shall be applicable for the purposes of servation-use acreage, set aside, or
this part:
other similar designation for the pur-
Agricultural commodity means any
crop planted and produced by annual pose of fulfilling provisions under any
tilling of the soil, including tilling by acreage-limitation or land-diversion
one-trip planters, or sugarcane. program administered by the Secretary
CCC means the Commodity Credit of Agriculture requiring that the pro-
Corporation, a wholly-owned govern- ducer devote a specified acreage to con-
ment corporation within USDA orga- servation or other non-crop production
nized under the provisions of 15 U.S.C. uses.
714 et seq. Creation of a wetland means the devel-
Conservation District (CD) means a opment of the hydrologic, geochemical,
subdivision of a State or local govern- and biological components necessary
ment organized pursuant to the appli- to support and maintain a wetland
cable law to develop and implement where a wetland did not previously
soil and water conservation activities exist. Any wetland established on a
or programs. non-hydric soil will be considered a
Conservation plan means the docu- created wetland.
ment that—
Department means the United States
(1) Applies to highly erodible crop-
Department of Agriculture (USDA).
land;
(2) Describes the conservation system Enhancement of a wetland means the
applicable to the highly erodible crop- alteration of an existing wetland to in-
land and describes the decisions of the crease its specific functions and values.
381
Enhancement actions include new ca- for coordinating the information and
pabilities, management options, struc- educational programs of USDA.
tures, or other actions to influence one NRCS means the Natural Resources
or several functions and values. Conservation Service, an agency within
Erodibility index means a numerical USDA which is generally responsible
value that expresses the potential for providing technical assistance in
erodibility of a soil in relation to its matters of natural resources conserva-
soil loss tolerance value without con- tion and for administering certain con-
sideration of applied conservation servation programs of USDA.
practices or management. Operator means the person who is in
FSA means the Farm Service Agency, general control of the farming oper-
an agency of USDA which is generally ations on the farm during the crop
responsible for administering com- year.
modity production adjustment and cer- Owner means a person who is deter-
tain conservation programs of USDA. mined to have legal ownership of farm-
Field means a part of a farm that is land and shall include a person who is
separated from the balance of the farm purchasing farmland under contract.
by permanent boundaries such as Person means an individual, partner-
fences, roads, permanent waterways, or ship, association, corporation, coopera-
other similar features. At the option of tive, estate, trust, joint venture, joint
the owner or operator of the farm, operation, or other business enterprise
croplines may also be used to delineate or other legal entity and, whenever ap-
a field if farming practices make it plicable, a State, a political subdivi-
probable that the croplines are not sub- sion of a State, or any agency thereof,
ject to change. Any highly erodible and such person’s affiliates as provided
land on which an agricultural com- in § 12.8 of this part.
modity is produced after December 23, Restoration of a wetland means the re-
1985, and is not exempt under § 12.5(a), establishment of wetland conditions,
shall be considered part of the field in including hydrologic condition or na-
which the land was included on Decem- tive hydrophytic vegetation, to an area
ber 23, 1985, unless, to carry out this where a wetland had previously ex-
title, the owner and FSA agree to mod- isted.
ify the boundaries of the field. Secretary means the Secretary of
Highly erodible land means land that USDA.
has an erodibility index of 8 or more. Sharecropper means a person who per-
Hydric soils means soils that, in an forms work in connection with the pro-
undrained condition, are saturated, duction of a crop under the supervision
flooded, or ponded long enough during of the operator and who receives a
a growing season to develop an anaer- share of such crop for such labor.
obic condition that supports the Soil map unit means an area of the
growth and regeneration of landscape shown on a soil map which
hydrophytic vegetation. consists of one or more soils.
Hydrophytic vegetation means plants State means each of the 50 states, the
growing in water or in a substrate that District of Columbia, the Common-
is at least periodically deficient in oxy- wealth of Puerto Rico, Guam, the Vir-
gen during a growing season as a result gin Islands of the United States, Amer-
of excessive water content. ican Samoa, the Commonwealth of the
Landlord means a person who rents or Northern Mariana Islands, or the Trust
leases farmland to another person. Territory of the Pacific Islands.
Local FSA office means the county of- Tenant means a person usually called
fice of the Farm Service Agency serv- a ‘‘cash tenant’’, ‘‘fixed-rent tenant’’,
ing the county or a combination of or ‘‘standing rent tenant’’ who rents
counties in the area in which a person’s land from another for a fixed amount
land is located for administrative pur- of cash or a fixed amount of a com-
poses.
modity to be paid as rent; or a person

NIFA means the National Institute of (other than a sharecropper) usually
Food and Agriculture, an agency of called a ‘‘share tenant’’ who rents land
USDA which is generally responsible from another person and pays as rent a
382
share of the crops or proceeds there- modity without further application of

from. A tenant shall not be considered the manipulations described herein if:
the farm operator unless the tenant is (i) Such production would not have
determined to be the operator pursuant been possible but for such action, and
to this part and 7 CFR part 718. (ii) Before such action such land was
Wetland, except when such term is a wetland, farmed wetland, or farmed-
part of the term ‘‘converted wetland’’, wetland pasture and was neither highly
means land that— erodible land nor highly erodible crop-
(1) Has predominance of hydric soils; land;
(2) Is inundated or saturated by sur- (4) Farmed wetland is a wetland that
face or groundwater at a frequency and prior to December 23, 1985, was manipu-
duration sufficient to support a preva- lated and used to produce an agricul-
lence of hydrophytic vegetation typi- tural commodity, and on December 23,
cally adapted for life in saturated soil 1985, did not support woody vegetation
conditions; and and met the following hydrologic cri-
teria:
(3) Under normal circumstances does
(i) Is inundated for 15 consecutive
support a prevalence of such vegeta-
days or more during the growing sea-
tion, except that this term does not in-
son or 10 percent of the growing season,
clude lands in Alaska identified as hav-
whichever is less, in most years (50 per-
ing a high potential for agricultural de-
cent chance or more), or
velopment and a predominance of per-
(ii) If a pothole, playa, or pocosion, is
mafrost soils.
ponded for 7 or more consecutive days
Wetland determination means a deci- during the growing season in most
sion regarding whether or not an area years (50 percent chance of more) or is
is a wetland, including identification of saturated for 14 or more consecutive
wetland type and size. A wetland deter- days during the growing season in most
mination may include identification of years (50 percent chance or more);
an area as one of the following types of (5) Farmed-wetland pasture is wetland
wetland— that was manipulated and managed for
(1) Artificial wetland is an area that pasture or hayland prior to December
was formerly non-wetland, but now 23, 1985, and on December 23, 1985, met
meets wetland criteria due to human the following hydrologic criteria:
activities, such as: (i) Inundated or ponded for 7 or more
(i) An artificial lake or pond created consecutive days during the growing
by excavating or diking land that is season in most years (50) percent
not a wetland to collect and retain chance or more), or
water that is used primarily for live- (ii) Saturated for 14 or more consecu-
stock, fish production, irrigation, wild- tive days during the growing season in
life, fire control, flood control, cran- most years (50 percent chance or more);
berry growing, or rice production, or as (6) Not-inventoried land, is an area for
a settling pond; or which no evaluation of soils, vegeta-
(ii) A wetland that is temporarily or tion, or hydrology has been conducted
incidentally created as a result of adja- to determine if wetland criteria are
cent development activity; met;
(2) Commenced-conversion wetland is a (7) Non-wetland is;
wetland, farmed wetland, farmed-wet- (i) Land that under natural condi-
land pasture, or a converted wetland on tions does not meet wetland criteria,
which conversion began, but was not or
completed, prior to December 23, 1985. (ii) Is converted wetland the conver-
(3) Converted wetland is a wetland sion of which occurred prior to Decem-
that has been drained, dredged, filled, ber 23, 1985, and on that date, the land
leveled, or otherwise manipulated (in- did not meet wetland criteria but an
cluding the removal of woody vegeta- agricultural commodity was not pro-
tion or any activity that results in im- duced and the area was not managed
pairing or reducing the flow and cir- for pasture or hay;

culation of water) for the purpose of or (8) Prior-converted cropland is a con-
to have the effect of making possible verted wetland where the conversion
the production of an agricultural com- occurred prior to December 23, 1985, an
383
agricultural commodity had been pro- specify retroactive application on De-

duced at least once before December 23, cember 23, 1985, and November 28, 1990,
1985, and as of December 23, 1985, the for certain actions and determinations
converted wetland did not support regarding wetlands and converted wet-
woody vegetation and met the fol- lands. Actions taken and determina-
lowing hydrologic criteria: tions made prior to July 3, 1996, are
(i) Inundation was less than 15 con- subject to regulations set forth in this
secutive days during the growing sea- part as of July 2, 1996, except as other-
son or 10 percent of the growing season, wise provided in this part. Further, to
whichever is less, in most years (50 per- the extent that a person may be eligi-
cent chance or more); and ble for an exemption for an action
(ii) If a pothole, playa or pocosin, taken before July 3, 1996, the action is
ponding was less than 7 consecutive subject to the provisions of this part.
days during the growing season in most
years (50 percent chance or more) and FR 82076, Dec. 30, 2011]
saturation was less than 14 consecutive
days during the growing season most § 12.4 Determination of ineligibility.
years (50 percent chance or more); or (a) Actions. Except as provided in
(9) Wetland, as defined above in this
§ 12.5, a person shall be ineligible for all
section.
or a portion of USDA program benefits
Wetland delineation means outlining
listed in this section if:
the boundaries of a wetland determina-
(1) The person produces an agricul-
tion on aerial photography, digital im-
tural commodity on a field in which
agery, other graphic representation of
highly erodible land is predominant, or
the area, or on the land.
designates such a field for conservation
(b) Terms for FSA operations. In the
use;
regulations in this part, and in all in-
(2) The person produces an agricul-
structions, forms, and documents in
tural commodity on wetland that was
connection therewith, all other words converted after December 23, 1985; or
and phrases specifically relating to (3) After November 28, 1990, the per-
FSA operations shall, unless required son converts a wetland by draining,
by the subject matter or the specific dredging, filling, leveling, removing
provisions of this part, have the mean- woody vegetation, or other means for
ings assigned to them in the regula- the purpose, or to have the effect, of
tions at part 718 of this title that gov- making the production of an agricul-
ern reconstitutions of farms, allot- tural commodity possible.
ments, and bases and any subsequent (b) Highly erodible land. A person de-
amendment thereto. termined to be ineligible under para-
[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, graph (a)(1) of this section may be in-
1996; 76 FR 4803, Jan. 27, 2011] eligible for all program benefits listed
in (d) and (e) of this section.
§ 12.3 Applicability. (c) Wetland conservation. A person de-
(a) Geographic scope. The provisions termined to be ineligible under para-
of this part shall apply to all land, in- graph (a)(2) of this section shall be in-
cluding Indian tribal land, in the fifty eligible for all or a portion of the
States, the District of Columbia, the USDA program benefits listed in para-
Commonwealth of Puerto Rico, Guam, graph (d) of this section for which the
the Virgin Islands of the United States, person otherwise would have been eligi-
American Samoa, the Commonwealth ble during the crop year of the com-
of the Northern Mariana Islands, and modity that was planted on the con-
the Federated States of Micronesia, the verted wetland. A person determined to
Republic of Palau, and the Republic of be ineligible under paragraph (a)(3) of
the Marshall Islands. this section for the conversion of a
(b) Effective date. The provisions of wetland shall be ineligible for all or a
this part apply to all actions taken portion of the USDA program benefits
after July 3, 1996, and to determina- listed in paragraph (d) of this section
tions made after or pending on July 3, for which the person otherwise would
1996, except to the extent that have been eligible during the crop year
§ 12.5(a)(5) and 12.5 (b)(4) through (b)(8) which is equal to the calendar year
384
during which the violation occurred a conservation plan or conservation

and each subsequent crop year until system as required by this part);
the converted wetland is restored or (3) A payment made pursuant to a
the loss of wetland values, acreage, and contract entered into under the Envi-
functions have been mitigated prior to ronmental Quality Incentives Program
the beginning of such calendar year in under chapter 4 of subtitle D of the
accordance with § 12.5(b)(4)(i) (A) and Food Security Act of 1985, as amended;
(C) through (F) of this part. Ineligi- or a payment under any other provi-
bility under paragraph (a)(2) or (a)(3) of sion of Subtitle D of that Act;
this section may be reduced, in lieu of (4) A payment made under section 401
the loss of all benefits specified under or 402 of the Agricultural Credit Act of
paragraph (d) of this section for such 1978 (16 U.S.C. 2201 or 2202);
crop year, based on the seriousness of (5) A payment, loan, or other assist-
the violation, as determined by the ance under section 3 or 8 of the Water-
FSA Deputy Administrator for Farm shed Protection and Flood Prevention
Programs or designee upon rec- Act (16 U.S.C. 1003 or 1006a).
ommendation by the FSA County Com-
(e) Programs subject to highly erodible
mittee. Factors such as the informa-
land only. In addition to programs list-
tion that was available to the affected
ed in paragraph (d) of this section, a
person prior to the violation, previous
person determined to be ineligible
land use patterns, the existence of pre-
under paragraph (a)(1) of this section
vious wetland violations under this
shall be ineligible as determined by
part or under other Federal, State, or
FSA for the following USDA program
local wetland provisions, the wetland
benefits for which the person otherwise
values, acreage, and functions affected,
would have been eligible during the
the recovery time for full mitigation of
crop year for which the determination
the wetland values, acreage, and func-
applies:
tions, and the impact that a reduction
(1) A farm storage facility loan made
in payments would have on the per-
under section 4(h) of the Commodity
son’s ability to repay a USDA farm
Credit Corporation Charter Act (15
loan shall be considered to making this
U.S.C. 714b(h));
determination.
(d) Programs subject to either highly (2) A disaster payment made under
erodible land or wetland conservation. the Federal Agricultural Improvement
USDA program benefits covered by a and Reform Act, Pub. L. 104–127, or any
determination of ineligibility under other act; and
this rule are: (3) A payment made under section 4
(1) Contract payments under a pro- or 5 of the Commodity Credit Corpora-
duction flexibility contract, marketing tion Charter Act (15 U.S.C. 714b or 714c)
assistance loans, and any type of price for the storage of an agricultural com-
support or payment made available modity acquired by the Commodity
under the Agricultural Market Transi- Credit Corporation.
tion Act, the Commodity Credit Cor- (f) Prior loans. The provisions of para-
poration Charter Act (15 U.S.C. 714 et graphs (a), (b), and (c) of this section do
seq.), or any other Act; not apply to any loan described in
(2) A farm credit program loan made paragraphs (d) or (e) of this section
or guaranteed under the Consolidated that was made prior to December 23,
Farm and Rural Development Act (7 1985.
U.S.C. 1921 et seq.) or any other provi- (g) Determination of ineligibility. For
sion of law administered by FSA if the the purpose of paragraph (a) of this sec-
Secretary determines that the proceeds tion, a person shall be determined to
of such loan will be used for a purpose have produced an agricultural com-
that contributes to the conversion of modity on a field in which highly erod-
wetlands that would make production ible land is predominant or to have des-
of an agricultural commodity possible ignated such a field for conservation
use, to have produced an agricultural
or for a purpose that contributes to ex-

cessive erosion of highly erodible land commodity on converted wetland, or to
(i.e., production of an agricultural com- have converted a wetland if:
modity on highly erodible land without (1) NRCS has determined that—
385
(i) Highly erodible land is predomi- crop years under a program adminis-
nant in such field, or tered by the Secretary for any such
(ii) All or a portion of the field is crops to reduce production of an agri-
converted wetland; and cultural commodity.
(2) FSA has determined that the per- (2) Compliance with a conservation plan
son is or was the owner or operator of or conservation system. As further speci-
the land, or entitled to share in the fied in this part, no person shall be in-
crops available from the land, or in the eligible for the program benefits de-
proceeds thereof; and scribed in § 12.4 as the result of produc-
(3) With regard to the provisions of tion of an agricultural commodity on
paragraph (a)(1) and (a)(2) of this sec- highly erodible land or the designation
tion, FSA has determined that the land of such land for conservation use if
is or was planted to an agricultural such production or designation is in
commodity or was designated as con- compliance with a conservation plan or
servation use during the year for which conservation system approved under
the person is requesting benefits. paragraph (a)(2)(i) or (a)(2)(ii) of this
(h) Intent to participate in USDA pro- section. A person shall not be ineligible
grams. Persons who wish to participate for program benefits under § 12.4 as the
in any of the USDA programs described result of the production of an agricul-
in paragraph (d) or (e) of this section tural commodity on highly erodible
are responsible for contacting the ap- land or as the result of designation of
propriate agency of USDA well in ad- such land as conservation use if the
vance of the intended participated date production or designation is:
so that Form AD–1026 can be com- (i) In an area within a CD, under a
pleted. This contact will help assure conservation system that has been ap-
that the appropriate determinations proved by the CD after the CD deter-
regarding highly erodible land or wet- mines that the conservation system is
land, and conservation plans or con- in conformity with technical standards
servation systems are scheduled in a set forth in the NRCS field office tech-
timely manner. A late contact may not nical guide for such district; or
allow sufficient time for USDA to serv- (ii) In an area not within a CD, under
ice the request and could result in a a conservation system that has been
substantial delay in receiving a USDA approved by NRCS to be adequate for
determination of eligibility or ineligi- the production of such agricultural
bility. commodity on highly erodible land or
[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, for the designation of such land as con-
1996; 76 FR 82077, Dec. 30, 2011] servation use.
(3) Reliance upon NRCS determination
§ 12.5 Exemption. for highly erodible land. A person may
(a) Exemptions regarding highly erod- be relieved from ineligibility for pro-
ible land—(1) Highly erodible cropland in gram benefits as the result of the pro-
production or in USDA programs during duction of an agricultural commodity
1981 through 1985 crop years. During the which was produced on highly erodible
period beginning on December 23, 1985, land or for the designation of such land
and ending on the later of January 1, as conservation use in reliance on a de-
1990, or the date that is two years after termination by NRCS that such land
the date the cropland on which an agri- was not highly erodible land, except
cultural commodity is produced was that this paragraph shall not apply to
surveyed by NRCS to determine if such any agricultural commodity that was
land is highly erodible, no person shall planted on highly erodible land, or for
be determined to be ineligible for bene- the designation of highly erodible land
fits as provided in § 12.4 as the result of as conservation use after NRCS deter-
the production of an agricultural com- mines that such land is highly erodible
modity on any highly erodible land: land, and the person is notified of such
(i) That was planted to an agricul- determinations.
tural commodity in any year 1981 (4) Areas of 2 acres or less. No person
through 1985; or shall be determined to be ineligible
(ii) That was set aside, diverted, or under § 12.4 for noncommercial produc-
otherwise not cultivated in any such tion of agricultural commodities on
386
highly erodible land on an area of 2 does not take the required corrective
acres or less if it is determined by FSA actions, the person may be determined
that such production is not intended to to be ineligible for the crop year during
circumvent the conservation require- which the compliance deficiencies oc-
ments otherwise applicable under this curred, as well as any subsequent crop
part. year.
(5) Good faith. (i) No person will be- (iv) A person who meets the require-
come ineligible under § 12.4 as a result ments of paragraphs (a)(5)(i) and
of the failure of such person to apply a (a)(5)(ii) of this section will, in lieu of
conservation system on highly erodible the loss of all benefits specified under
land if all of the following apply: § 12.4(d) and (e) for such crop year, be
(A) FSA determines such person has subject to a reduction in benefits by an
acted in good faith and without the in- amount commensurate with the seri-
tent to violate the provisions of this ousness of the violation, as determined
part; by FSA. The dollar amount of the re-
(B) NRCS determines that the person duction will be determined by FSA and
complies with paragraph (a)(5)(ii) of may be based on the number of acres
this section; and and the degree of erosion hazard for the
(C) The good faith determination of area in violation, as determined by
the FSA county or State committee NRCS, or upon such other factors as
has been reviewed and approved by the FSA determines appropriate.
applicable State Executive Director, (v) Any person whose benefits are re-
with the technical concurrence of the duced in a crop year under paragraph
State Conservationist; or district di- (a)(5) of this section may be eligible for
rector, with the technical concurrence all of the benefits specified under
of the area conservationist. § 12.4(d) and (e) for any subsequent crop
(ii) A person who otherwise meets the year if, prior to the beginning of the
requirements of paragraphs (a)(5)(i)(A) subsequent crop year, NRCS deter-
and (a)(5)(i)(C) of this section will be mines that such person is actively ap-
allowed a reasonable period of time, as plying a conservation plan according to
determined by NRCS, but not to exceed the schedule specified in the plan on all
one year, during which to implement highly erodible land planted to an agri-
the measures and practices necessary cultural commodity or designated as
to be considered actively applying the conservation use.
person’s conservation plan, as deter- (6) Allowable variances. (i) Notwith-
mined by USDA. If a person does not standing any other provisions of this
take the required corrective actions, part, no person shall be determined to
the person may be determined to be in- be ineligible for benefits as a result of
eligible for the crop year during which the failure of such person to apply a
such actions were to be taken, as well conservation system if NRCS deter-
as any subsequent crop year. mines that—
(iii) Notwithstanding the good-faith (A) The failure is technical and
requirements of paragraph (a)(5)(i) of minor in nature and that such viola-
this section, if NRCS observes a pos- tion has little effect on the erosion
sible compliance deficiency while pro- control purposes of the conservation
viding on-site technical assistance, plan applicable to the land on which
NRCS will provide to the responsible the violation has occurred; or
person, not later than 45 days after ob- (B) The failure is due to cir-
serving the possible violation, informa- cumstances beyond the control of the
tion regarding actions needed to com- person; or
ply with the plan and this subtitle. (C) NRCS grants a temporary vari-
NRCS will provide this information in ance from the practices specified in the
lieu of reporting the observation as a plan for the purpose of handling a spe-
violation, if the responsible person at- cific problem, including weather, pest,
tempts to correct the deficiencies as and disease problems, which NRCS de-
soon as practicable, as determined by termines cannot reasonably be ad-

NRCS, after receiving the information, dressed except through such variance.
but not later than one year after re- (ii) If the person’s request for a tem-
ceiving the information. If a person porary variance involves the use of
387
practices or measures to address prior-converted cropland as of the date

weather, pest, or disease problems, of a wetland determination by NRCS;
NRCS shall make a decision on wheth- (ii) The land has been determined by
er to grant the variance during the 30- NRCS to be a prior-converted cropland
day period beginning on the date of re- and such determination has been cer-
ceipt of the request. If NRCS fails to tified, and NRCS determines that the
render a decision during the period, the wetland characteristics returned after
temporary variance shall be considered the date of the wetland certification as
granted unless the person seeking the a result of—
variance had reason to know that the (A) The lack of maintenance of drain-
variance would not be granted. In de- age, dikes, levees, or similar struc-
termining whether to grant a variance tures,
for natural disasters such as weather, (B) The lack of management of the
pest, or disease problems, NRCS will lands containing the wetland, or
consider such factors as: (C) Circumstances beyond the control
(A) The percent of a stand damaged of the person;
or destroyed by the event; (iii) The land was determined by
(B) The percent of expected crop pro- NRCS to be a farmed wetland or a
duction compared to normal produc- farmed-wetland pasture and—
tion for that crop; (A) Such land meets wetland criteria
(C) The documented invasion of non- through a voluntary restoration, en-
native insects, weeds, or diseases for hancement, or creation action after
which no recognized treatment exists; that determination,
(D) Whether an event is severe or un- (B) The technical determinations re-
usual based on historical weather garding the baseline site conditions
records; and and the restoration, enhancement, or
(E) Other specific circumstances creation action have been adequately
caused by a natural event that pre- documented by NRCS,
vented the implementation of con- (C) The proposed conversion action is
servation practices or systems, instal- documented by the NRCS prior to im-
lation of structures, or planting of plementation, and
cover crops. (D) The extent of the proposed con-
(7) Technical and minor violations. version is limited so that the condi-
Notwithstanding any other provisions tions will be at least equivalent to the
of this part, a reduction in benefits in wetland values, acreage, and functions
an amount commensurate with the se- that existed at the time of implemen-
riousness of the violation, as deter- tation of the voluntary wetland res-
mined by FSA, and consistent with toration, enhancement, or creation ac-
paragraph (a)(5)(iv) of this section, will tion;
be applied if NRCS determines that a (iv) NRCS has determined that the
violation involving highly erodible conversion if for a purpose that does
land that would otherwise lead to a not make the production of an agricul-
loss of benefits is both of the following: tural commodity possible, such as con-
(i) Technical and minor in nature; versions for fish production, trees,
and vineyards, shrubs, cranberries, agricul-
(ii) Has a minimal effect on the ero- tural waste management structures,
sion control purposes of the conserva- livestock ponds, fire control, or build-
tion plan applicable to the land on ing and road construction and no agri-
which the violation occurred. cultural commodity is produced on
(b) Exemptions for wetlands and con- such land;
verted wetlands—(1) General exemptions. (v) NRCS has determined that the ac-
A person shall not be determined to be tions of the person with respect to the
ineligible for program benefits under conversion of the wetland or the com-
§ 12.4 as the result of the production of bined effect of the production of an ag-
an agricultural commodity on con- ricultural commodity on a wetland
verted wetland or the conversion of converted by the person or by someone

wetland if: else, individually and in connection
(i) The land is a prior-converted crop- with all other similar actions author-
land and meets the definition of a ized by NRCS in the area, would have
388
only a minimal effect on the wetland cordingly, where a person’s wetland is

functions and values of wetlands in the converted due to the actions of the dis-
area; trict or entity, the person shall be con-
(vi)(A) After December 23, 1985, the sidered to have caused or permitted the
Army Corps of Engineers issued an in- drainage. Notwithstanding the provi-
dividual permit pursuant to section 404 sions of the preceding sentences and as
of the Clean Water Act, 33 U.S.C. 1344, determined by FSA to be consistent
authorizing such action and the permit with the purposes of this part, the ac-
required mitigation that adequately tivities of a drainage district or other
replaced the values, acreage, and func- similar entity will not be attributed to
tions of the wetlands converted, as de- a person to the extent that the activi-
termined by NRCS, or ties of the district or entity were be-
(B) After December 23, 1985, the ac- yond the control of the person and the
tion is encompassed under section 404 wetland converted is not used by the
of the Clean Water Act, 33 U.S.C. 1344, person for the production of an agricul-
by an Army Corps of Engineers nation- tural commodity or a forage crop for
wide or regional general permit and the harvest by mechanical means or miti-
wetland values, acreage, and functions gation for the converted wetland oc-
were adequately mitigated, as deter- curs in accordance with this part.
mined by NRCS; or (2) Commenced conversion wetlands. (i)
(vii) The land is determined by NRCS The purpose of a determination of a
to be— commenced conversion made under
(A) An artificial wetland, this paragraph is to implement the leg-
(B) A wet area created by a water de- islative intent that those persons who
livery system, irrigation, irrigation had actually started conversion of a
system, or application of water for irri- wetland or obligated funds for conver-
gation, sion prior to December 23, 1985, would
(C) A nontidal drainage or irrigation be allowed to complete the conversion
ditch excavated in non-wetland, or so as to avoid unnecessary economic
(D) A wetland converted by actions of hardship.
persons other than the person applying (ii) All persons who believed they had
for USDA program benefits or any of a wetland or converted wetland for
the person’s predecessors in interest which conversion began but was not
after December 23, 1985, if such conver- completed prior to December 23, 1985,
sion was not the result of a scheme or must have requested by September 19,
device to avoid compliance with this 1988, FSA to make a determination of
part. Further drainage improvement on commencement in order to be consid-
such land is not permitted without loss ered exempt under this section.
of eligibility for USDA program bene- (iii) Any conversion activity consid-
fits, unless NRCS determines under ered by FSA to be commenced under
paragraph (b)(1)(v) of this section that this section lost its exempt status if
further drainage activities applied to such activity as not completed on or
such land would have minimal effect before January 1, 1995. For purposes of
on the wetland functions and values in this part, land on which such conver-
the area. In applying this paragraph, a sion activities were completed by Jan-
converted wetland shall be presumed to uary 1, 1995, shall be evaluated by the
have been converted by the person ap- same standards and qualify for the
plying for USDA program benefits un- same exemptions as prior-converted
less the person can show that the con- croplands. For purposes of this part,
version was caused by a third party land on which such conversion activi-
with whom the person was not associ- ties were not completed by January 1,
ated through a scheme or device as de- 1995, shall be evaluated by the same
scribed under § 12.10 of this part. In this standards and qualify for the same ex-
regard, activities of a water resource emptions as wetlands or farmed wet-
district, drainage district, or similar lands, as applicable.
entity will be attributed to all persons (iv) Only those wetlands for which
within the jurisdiction of the district the construction had begun, or to
or other entity who are assessed for the which the contract or purchased sup-
activities of the district or entity. Ac- plies and materials related, qualified
389
for a determination of commencement. shed may include regional mitigation

However, in those circumstances where banks;
the conversion of wetland did not meet (E) Is on lands for which the owner
the specific requirements of this para- has granted an easement to USDA, re-
graph, the person could have requested corded the easement on public land
a commencement of conversion deter- records, and has agreed to the mainte-
mination from the FSA Deputy Admin- nance of the restored, created, or en-
istrator for Farm Programs, upon a hanced wetland for as long as the con-
showing that undue economic hardship verted wetland for which the mitiga-
would have resulted because of sub- tion occurred remains in agricultural
stantial financial obligations incurred use or is not returned to its original
prior to December 23, 1985, for the pri- wetland classification with equivalent
mary and direct purpose of converting values, acreage, and functions; and
the wetland. (F) Provides the equivalent values,
(3) Wetlands farmed under natural con- acreage, and functions that will be lost
ditions. A person shall not be deter- as a result of the wetland conversion.
mined to be ineligible for program ben- (ii) A mitigation plan is a record of
efits under § 12.4 of this part as a result decisions that document the actions
of the production of an agricultural necessary to compensate for the loss of
commodity on a wetland on which the wetland values, acreage, and functions
owner or operator of a farm or ranch that result from converting a wetland.
uses normal cropping or ranching prac- The mitigation plan may be a compo-
tices to produce agricultural commod- nent of a larger natural resources con-
ities in a manner that is consistent for servation plan.
the area, where such production is pos- (iii) The State Conservationist, in
sible as a result of natural conditions, consultation with the State Technical
such as drought, and is without action Committee, may name certain types or
by the producer that alters the hydrol- classes of wetland not eligible for ex-
ogy or removes woody vegetation. emption under paragraph (b)(4)(i) of
this section where the State Conserva-
(4) Mitigation. (i) No person shall be
tionist determines that mitigation will
determined to be ineligible under § 12.4
not achieve equivalent replacement of
for any action associated with the con-
wetland values, acreage, and functions
version of a wetland if the wetland val-
within a reasonable time frame or for
ues, acreage, and functions are ade-
other reasons identified by the State
quately mitigated, as determined by
Conservationist. Any type or class of
NRCS, through the restoration of a
wetland that a State Conservationist
converted wetland, the enhancement of
identifies as not eligible for exemption
an existing wetland, or the creation of under paragraph (b)(4)(i) of this section
a new wetland, if the mitigation— will be published in the FEDERAL REG-
(A) Is in accordance with a mitiga- ISTER for inclusion in this part.
tion plan approved by NRCS; (5) Good faith violations. (i) A person
(B) Is in advance of, or concurrent who is determined under § 12.4 of this
with, the wetland conversion or the part to be ineligible for benefits as the
production of an agricultural com- result of the production of an agricul-
modity, as applicable; tural commodity on a wetland con-
(C) Is not at the expense of the fed- verted after December 23, 1985, or as
eral government in either supporting the result of the conversion of a wet-
the direct or indirect costs of the res- land after November 28, 1990, may re-
toration activity or costs associated gain eligibility for benefits if all of the
with acquiring or securing mitigation following apply:
sites, except if conducted under a miti- (A) FSA determines that such person
gation banking pilot program estab- acted in good faith and without the in-
lished by USDA; tent to violate the wetland provisions
(D) Occurs on lands in the same gen- of this part; and
eral area of the local watershed as the (B) NRCS determines that the person
converted wetlands, provided that for is implementing all practices in a miti-
purposes of this paragraph, lands in the gation plan within an agreed-to period,
same general area of the local water- not to exceed one year; and
390
(C) The good faith determination of wetland for which the substantial fi-
the FSA county or State committee nancial investment was expended in
has been reviewed and approved by the conversion activities. The relief avail-
applicable State Executive Director, able under this paragraph shall not
with the technical concurrence of the apply to situations in which the person
State Conservationist; or district di- knew or reasonably should have known
rector, with the technical concurrence that the determination was in error be-
of the area conservationist. cause the characteristics of the site
(ii) In determining whether a person were such that the person should have
acted in good faith under paragraph been aware that a wetland existed on
(b)(5)(i)(A) of this section, the FSA the subject land, or for other reasons.
shall consider such factors as wheth- (7) Responsibility to provide evidence. It
er— is the responsibility of the person seek-
(A) The characteristics of the site ing an exemption related to converted
were such that the person should have wetlands under this section to provide
been aware that a wetland existed on evidence, such as receipts, crop-history
the subject land, data, drawings, plans or similar infor-
(B) NRCS had informed the person mation, for purposes of determining
about the existence of a wetland on the whether the conversion or other action
subject land, is exempt in accordance with this sec-
(C) The person did not convert the tion.
wetland, but planted an agricultural
[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11,
commodity on converted wetland when
1996; 76 FR 82077, Dec. 30, 2011]
the person should have known that a
wetland previously existed on the sub- § 12.6 Administration.
ject land,
(D) The person has a record of vio- (a) General. A determination of ineli-
lating the wetland provisions of this gibility for benefits in accordance with
part or other Federal, State, or local the provisions of this part shall be
wetland provisions, or made by the agency of USDA to which
(E) There exists other information the person has applied for benefits. All
that demonstrates that the person determinations required to be made
acted with the intent to violate the under the provisions of this part shall
wetland provisions of this part. be made by the agency responsible for
(iii) After the requirements of para- making such determinations, as pro-
graph (b)(5)(i) of this section are met, vided in this section.
USDA may waive applying the ineligi- (b) Administration by FSA. (1) The pro-
bility provisions of § 12.4. visions of this part which are applica-
(6) Reliance upon NRCS wetland deter- ble to FSA will be administered under
mination. (i) A person shall not be ineli- the general supervision of the Adminis-
gible for program benefits as a result of trator, FSA, and shall be carried out in
taking an action in reliance on a pre- the field in part by State FSA commit-
vious certified wetland determination tees and county FSA committees
by NRCS. (COC).
(ii) A person who may be ineligible (2) The FSA Deputy Administrator
for program benefits as the result of for Farm Programs may determine any
the production of an agricultural com- question arising under the provisions
modity on converted wetland or for the of this part which are applicable to
conversion of a wetland may seek relief FSA and may reverse or modify any de-
under § 12.11 of this part if such action termination of eligibility with respect
was taken in reliance on an incorrect to programs administered by FSA
technical determination by NRCS as to made by a State FSA committee or
the status of such land. If the error COC or any other FSA office or FSA of-
caused the person to make a substan- ficial (except the Administrator) in
tial financial investment, as deter- connection with the provisions of this
part.
mined by the NRCS, for the conversion

of a wetland, the person may be re- (3) FSA shall make the following de-
lieved of ineligibility for actions re- terminations which are required to be
lated to that portion of the converted made in accordance with this part:
391
(i) Whether a person produced an ag- (5) FSA may consult with U.S. Fish
ricultural commodity on a particular and Wildlife Service on third-party de-
field as determined under § 12.5(a)(1); terminations.
(ii) The establishment of field bound- (c) Administration by NRCS. (1) The
aries; provisions of this part that are applica-
(iii) Whether land was planted to an ble to NRCS shall be administered
agricultural commodity in any of the under the general supervision of the
years, 1981 through 1985, for the pur- Deputy Chief for Natural Resources
poses of § 12.5(a)(1); Conservation Programs, and shall be
(iv) Whether land was set aside, di- carried out in the field by the regional
conservationist, state conservationist,
verted, or otherwise not cultivated
area conservationist, and district con-
under a program administered by the
servationist or other NRCS representa-
Secretary for any crop to reduce pro-
tive.
duction of an agricultural commodity
(2) An NRCS representative shall
under §§ 12.4(g) and 12.5(a)(1);
make the following determinations
(v) Whether for the purposes of § 12.9, which are required to be made in ac-
the production of an agricultural com- cordance with this part:
modity on highly erodible land or con- (i) Whether land is highly erodible or
verted wetland by a landlord’s tenant has a wetland type or a converted wet-
or sharecropper is required under the land identified in accordance with the
terms and conditions of the agreement provisions of this part;
between the landlord and such tenant (ii) Whether highly erodible land is
or sharecropper; predominant on a particular field
(vi) Whether the conversion of a par- under § 12.22;
ticular wetland was commenced before (iii) Whether the conservation plan
December 23, 1985, for the purposes of that a person is applying is based on
§ 12.5(b)(3); the local NRCS field office technical
(vii) Whether the conversion of a wet- guide and is approved by—
land was caused by a third party under (A) The CD and NRCS, or
§ 12.5(b)(1)(vii)(D); (B) By NRCS;
(viii) Whether certain violations were (iv) Whether the conservation system
made in good faith under §§ 12.5(a)(5) or that a person is using has been ap-
12.5(b)(5); proved by the CD under § 12.5(a)(2) or,
(ix) The determination of the amount in an area not within a CD, a conserva-
of reduction in benefits based on the tion system approved by NRCS to be
seriousness of the violation, based on adequate for the production of an agri-
technical information provided by cultural commodity on highly erodible
NRCS; land;
(v) Whether the actions of a person(s)
(x) The determination of whether the
with respect to the conversion of a wet-
application of the producer’s conserva-
land or production of an agricultural
tion system would impose an undue
commodity on converted wetland
economic hardship on the producer;
would have only a minimal effect on
and the functions and values of wetlands in
(xi) Whether the proceeds of a farm the area;
loan made, insured, or guaranteed by (vi) Whether an approved conserva-
FSA will be used for a purpose that tion plan is being applied on highly
will contribute to excessive erosion of erodible fields in accordance with the
highly erodible land or to the conver- schedule specified therein or whether a
sion of wetland. failure to apply the plan is technical
(4) A representative number of farms and minor in nature, due to cir-
selected in accordance with instruc- cumstances beyond the control of the
tions issued by the Deputy Adminis- person, or whether a temporary vari-
trator shall be inspected by an author- ance form the requirements of the plan
ized representative of FSA to deter-
should be granted;
mine compliance with any requirement (vii) Whether an approved conserva-
specified in this part as a prerequisite tion system is being used on a highly
for obtaining program benefits. erodible field;
392
(viii) Whether the conversion of a with the determination made under

wetland is for the purpose or has the paragraph (c)(5) of this section, or if
effect of making the production of an adequate information is not otherwise
agricultural commodity possible; available to an NRCS representative on
(ix) Whether a farmed wetland or which to make an off-site determina-
farmed-wetland pasture is abandoned; tion.
(x) Whether the planting of an agri- (7) An on-site determination, where
cultural commodity on a wetland is applicable, will be made by the NRCS
possible under natural conditions; representative as soon as possible fol-
(xi) Whether maintenance of existing lowing a request for such a determina-
drainage of a wetland described in tion, but only when site conditions are
§ 12.33 exceeds the scope and effect of favorable for the evaluation of soils,
the original drainage; hydrology, or vegetation.
(xii) Whether a plan for the mitiga- (8) With regard to wetland deter-
tion of a converted wetland will be ap- minations, if an area is continuously
proved and whether the mitigation of a inundated or saturated for long periods
converted wetland is accomplished ac- of time during the growing season to
cording to the approved mitigation such an extent that access by foot to
plan; make a determination of predominance
(xiii) Whether all technical informa- of hydric soils or prevalence of
tion relating to the determination of a hydrophytic vegetation is not feasible,
violation and severity of a violation the area will be determined to be a
has been provided to FSA for making wetland.
payment-reduction determinations; (9) Persons who are adversely af-
and fected by a determination made under
(xiv) Whether or not a commenced- this section and believe that the re-
conversion activity was completed by quirements of this part were improp-
January 1, 1995. erly applied may appeal, under § 12.12 of
(3) NRCS may provide such other this part, any determination by NRCS.
technical assistance for implementa- (d) Administration by NIFA. The NIFA
tion of the provisions of this part as is shall coordinate the related informa-
determined to be necessary. tion and education program for USDA
(4) A person may obtain a highly concerning implementation of this
erodible land or a wetland scope-and- rule.
effect determination by making a writ- (e) Assistance of other Federal agencies.
ten request on Form AD–1026. The de- If NRCS determines, through agree-
termination will be made in writing, ment or otherwise, that the purposes of
and a copy will be provided to the per- this part would be furthered by the as-
son. sistance of other Federal agencies with
(5) A determination of whether or not wetland responsibilities, NRCS may ac-
an area meets the highly erodible land cept such assistance and adopt any or
criteria or whether wetland criteria, all such actions by these agencies as an
identified in accordance with the cur- action by an NRCS representative
rent Federal wetland delineation meth- under this part.
odology in use at the time of the deter-
mination and that are consistent with [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11,
current mapping conventions, may be 1996; 76 FR 4804, Jan. 27, 2011]
made by the NRCS representative
§ 12.7 Certification of compliance.
based upon existing records or other in-
formation and without the need for an (a) Self-certification. In order for a
on-site determination. This determina- person to be determined to be eligible
tion will be made by the NRCS rep- for any of the benefits specified in
resentative as soon as possible fol- § 12.4:
lowing a request for such a determina- (1) It must be determined by USDA
tion. whether any field in which the person
(6) An on-site determination as to applying for the benefits has an inter-

whether an area meets the applicable est and intends to produce an agricul-
criteria shall be made by an NRCS rep- tural commodity contains highly erod-
resentative if the person has disagreed ible land;
393
(2) The person applying for or receiv- filiated persons’’ as defined in this sec-
ing the benefits must certify in writing tion.
on Form AD–1026 that such person will (b) Affiliated persons of an individual.
not produce an agricultural commodity If the person requesting benefits is an
on highly erodible land, or designate individual, the affiliated persons are:
such land for conservation use; or plant (1) The spouse and minor child of
an agricultural commodity on a con- such person or guardian of such child;
verted wetland; or convert a wetland to except that spouses who establish to
make possible the production of an ag- the satisfaction of the COC that oper-
ricultural commodity during the crop ations of the husband and wife are
year in which the person is seeking maintained separately and independ-
such benefits, unless such actions are ently shall not be considered affiliates;
exempt, under § 12.5, from the provi- (2) Any partnership, joint venture, or
sions of § 12.4 of this part; other enterprise in which the person or
(3) A person may certify application any person listed in paragraphs (b)(1)
of practices required by the person’s has an ownership interest or financial
conservation plan. NRCS shall permit a interest; unless such interest is held in-
person who makes such a certification directly through another business en-
with respect to a conservation plan to
terprise; or
revise the conservation plan in any
(3) Any trust in which the individual,
manner, if the same level of conserva-
business enterprise, or any person list-
tion treatment provided for by the con-
servation system under the person’s ed in paragraph (b)(1) is a beneficiary
conservation plan is maintained. NRCS or has a financial interest, unless such
may not revise the person’s conserva- interest is held indirectly through an-
tion plan without the concurrence of other business enterprise.
the person; (c) Affiliated persons of an entity. If
(4) The person applying for a FSA di- the person who has requested benefits
rect or guaranteed farm credit program from USDA is a corporation, partner-
loan must certify that such person ship, or other joint venture, the affili-
shall not use the proceeds of the loan ated persons are any participant or
for a purpose that will contribute to stockholder therein of the corporation,
excessive erosion on highly erodible partnership, or other joint venture, ex-
land or to conversion of wetlands for cept for persons who have an indirect
the purpose, or to have the effect, of interest through another business en-
making the production of an agricul- terprise in such corporation, partner-
tural commodity possible; and ship, or other joint venture or persons
(5) The person applying for the bene- with a 20 percent or less share in a cor-
fits must authorize and provide rep- poration.
resentatives of USDA access to all land (d) Limitation. Any reduction in pay-
in which such person has an interest ments which results only from the ap-
for the purpose of verifying any such plication of the affiliation provisions of
certification. this section to a partnership, joint ven-
(b) Availability to other agencies. Each ture, trust, or other enterprise shall be
agency of USDA shall make all certifi- limited to the extent of interest held in
cations of compliance received by such such partnership, joint venture, trust,
agency and the results of investiga- or other enterprise by the person or
tions concerning such certifications of business enterprise that committed the
compliance available to other agencies. violation. However, for violations for
(c) Compliance. A certification made which the business enterprise is consid-
in accordance with this section does ered directly responsible under the pro-
not relieve any person from compliance visions of this part, the business enter-
with provisions of this part. prise shall be subject to a full loss of
benefits, including those instances in
§ 12.8 Affiliated persons. which the business enterprise has an
(a) Ineligibility of affiliated persons. In- interest in the land where the violation
eligibility of an individual or entity occurred or where the business enter-
under this part for benefits shall also prise had an interest in the crops pro-
be an ineligibility for benefits for ‘‘af- duced on the land.
394
(e) Avoidance of this part. Limitations § 12.10 Scheme or device.

on affiliation shall not apply as needed
All or any part of the benefits listed
to correct for any action that would in § 12.4 otherwise due a person from
otherwise tend to defeat the purposes USDA may be withheld or required to
of this part. be refunded if the person adopts or par-
ticipates in adopting any scheme or de-
§ 12.9 Landlords and tenants.
vice designed to evade, or which has
(a) Landlord eligibility. (1) Except as the effect of evading, the provisions of
provided in paragraph (a)(2) of this sec- this part. Such acts shall include, but
tion, the ineligibility of a tenant or are not limited to, concealing from
sharecropper for benefits (as deter- USDA any information having a bear-
mined under § 12.4) shall not cause a ing on the application of the provisions
landlord to be ineligible for USDA proof this part or submitting false infor-
gram benefits accruing with respect to mation to USDA or creating entities
land other than those in which the ten- for the purpose of concealing the inter-
ant or sharecropper has an interest. est of a person in a farming operation
(2) The provisions of paragraph (a)(1) or to otherwise avoid compliance with
of this section shall not be applicable the provisions of this part. Such acts
shall also include acquiescence in, ap-
to a landlord if the production of an ag-
proval of, or assistance to acts which
ricultural commodity on highly erod-
have the effect of, or the purpose of,
ible land or converted wetland by the circumventing these regulations.
landlord’s tenant or sharecropper is re-
quired under the terms and conditions § 12.11 Action based upon advice or ac-
of the agreement between the landlord tion of USDA.
and such tenant or sharecropper and The provisions of part 718 of this
such agreement was entered into after Title, as amended, relating to perform-
December 23, 1985, or if the landlord ance based upon the action or advice of
has acquiesced in such activities by the a County Committee (COC) or State
tenant or sharecropper. FSA Committee shall be applicable to
(b) Tenant or renter eligibility. (1) The the provisions of this part. In addition,
ineligibility of a tenant or renter may if it is determined by the appropriate
be limited to the program benefits list- USDA agency that the action of a per-
ed in § 12.4(c) accruing with respect to son which would form the basis of any
only the farm on which the violation ineligibility under this part was taken
occurred if: by such person in good-faith reliance
(i) The tenant or renter shows that a on erroneous advice, information, or
good-faith effort was made to comply action of any other authorized rep-
by developing an approved conserva- resentative of USDA, the appropriate
tion plan for the highly erodible land agency may make such benefits avail-
in a timely manner and prior to any able to the extent that similar relief
violation of the provisions of this part; would be allowed under 7 CFR part 718.
and
§ 12.12 Appeals.
(ii) The owner of such farm refuses to
apply such a plan and prevents the ten- Any person who has been or who
ant or renter from implementing cer- would be denied program benefits in
tain practices that are a part of the ap- accordance with § 12.4 as the result of
proved conservation plan; and any determination made in accordance
with the provisions of this part may
(iii) FSA determines that the lack of
obtain a review of such determination
compliance is not a part of a scheme or
in accordance with the administrative
device as described in § 12.10. appeals procedures of the agency which
(2) If relief is granted under para- rendered such determination. Agency
graph (b)(1) of this section, the tenant appeal procedures are contained in the
or renter must actively apply those
Code of Federal Regulations as follows:

conservation treatment measures that FSA, part 780 of this title; NRCS, part
are determined to be within the control 614 of this title; Rural Utilities Service,
of the tenant or renter. part 1900, subpart B of this title.
395
Subpart B—Highly Erodible Land 537, ‘‘Predicting Rainfall Erosion

Conservation Losses.’’ The WEQ is explained in the
paper by Woodruff, N.P., and F. H.
§ 12.20 NRCS responsibilities regard- Siddaway, 1965, ‘‘A Wind Erosion Equa-
ing highly erodible land. tion,’’ Soil Science Society of America
In implementing the provisions of Proceedings, Vol. 29. No. 5, pages 602–
this part, NRCS shall, to the extent 608. Values for all the factors used in
practicable: these equations are contained in the
(a) Develop and maintain criteria for NRCS field office technical guide and
identifying highly erodible lands; the references which are a part of the
(b) Prepare and make available to the guide. The Universal Soil Loss Equa-
public lists of highly erodible soil map tion, the Revised Universal Soil Loss
units; Equation, and the Wind Erosion Equa-
(c) Make soil surveys for purposes of tion and the rules under which NRCS
identifying highly erodible land; and uses the equations are published at
(d) Provide technical guidance to §§ 610.11 through 610.15 of this title.
conservation districts which approve (b) Highly erodible. A soil map unit
conservation plans and systems, in shall be determined to be highly erod-
consultation with local county FSA ible if either the RKLS/T or the CI/T
committees, for the purposes of this value for the map unit equals or ex-
part. ceeds 8.
(c) Potentially highly erodible. When-
§ 12.21 Identification of highly erod- ever a soil map unit description con-
ible lands criteria. tains a range of a slope length and
(a) Basis for identification as highly steepness characteristics that produce
erodible. Soil map units and an a range of LS values which result in
erodibility index will be used as the RKLS/T quotients both above and
basis for identifying highly erodible below 8, the soil map unit will be en-
land. The erodibility index for a soil is tered on the list of highly erodible soil
determined by dividing the potential map units as ‘‘potentially highly erod-
average annual rate of erosion for each ible.’’ The final determination of
soil by its predetermined soil loss tol- erodibility for an individual field con-
erance (T) value. The T value rep- taining these soil map unit delinea-
resents the maximum annual rate of tions will be made by an on-site inves-
soil erosion that could occur without tigation.
causing a decline in long-term produc-
[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11,
tivity. The equation for measuring ero-
1996]
sion is described below.
(1) The potential average annual rate § 12.22 Highly erodible field deter-
of sheet and rill erosion is estimated by mination criteria.
multiplying the following factors of
the Universal Soil Loss Equation (a) Predominance. Highly erodible
(USLE): land shall be considered to be predomi-
(i) Rainfall and runoff (R); nant on a field if either:
(ii) The degree to which the soil re- (1) 33.33 percent or more of the total
sists water erosion (K); and field acreage is identified as soil map
(iii) The function (LS), which in- units which are highly erodible; or
cludes the effects of slope length (L) (2) 50 or more acres in such field are
and steepness (S). identified as soil map units which are
(2) The potential average annual rate highly erodible.
of wind erosion is estimated by multi- (b) Modification of field boundaries. A
plying the following factors of the person may request the modification of
Wind Erosion Equation (WEQ): Cli- field boundaries for the purpose of ex-
matic characterization of windspeed cluding highly erodible land from a
and surface soil moisture (C) and the field. Such a request must be sub-
degree to which soil resists wind ero- mitted to, and is subject to the ap-
sion (I). proval of, FSA. FSA shall use the tech-
(3) The USLE is explained in the U.S. nical determination of NRCS in ap-
Department of Agriculture Handbook proving this request.
396
(c) Impact of changing field boundaries. urement of erosion reduction achieved

When field boundaries are changed to by applying a conservation plan or sys-
include areas of land that were in- tem shall be based on a comparison of
cluded in a field that was previously the estimated annual level of erosion
determined to be predominately highly that is expected to occur on that por-
erodible according to paragraph (a) of tion of the field for which a conserva-
this section, such areas shall continue tion plan or system was developed and
to be subject to the requirements for is being applied, to the estimated an-
predominately highly erodible fields, nual level of erosion that existed on
except as provided in paragraph (b) of that same portion of the field before
this section. the application of a conservation plan
(d) Small area of noncropland. Small or system. On a field that is converted
areas of noncropland within or adja- from native vegetation after July 3,
cent to the boundaries of existing high- 1996, and where any crop production
ly erodible crop fields such as aban- will result in increased erosion, in no
doned farmsteads, areas around filled case will the required conservation
or capped wells, rock piles, trees, or plan or system permit a substantial in-
brush which are converted to cropland crease in erosion.
are considered to meet the requirement (c) Field trials. NRCS may allow a
of § 12.5(a)(2) if they are included in an person to include in the person’s con-
approved conservation plan for the en- servation plan or a conservation sys-
tire highly erodible field. tem under the plan, on a field-trial
[61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11, basis, practices that are not currently
1996] approved but that NRCS considers have
a reasonable likelihood of success.
§ 12.23 Conservation plans and con- These trials must have prior approval
servation systems. by NRCS, and must be documented in
(a) Use of field office technical guide. A the person’s conservation plan speci-
conservation plan or conservation sys- fying the limited time period during
tem developed for the purposes of which the field trial is in effect. If, at
§ 12.5(a) must be based on, and to the the end of the conservation field trial
extent practicable conform with, the period, NRCS finds that the practice
NRCS field office technical guide in use does not meet conservation compliance
at the time the plan is developed or re- requirements, the person will not be in-
vised. For highly erodible croplands eligible for USDA program benefits
which were used to produce agricul- during the period of the field trial.
tural commodities prior to December (d) Highly erodible land previously
23, 1985, the applicable conservation under a Conservation Reserve Program
systems in the field office technical contract. Any person who owns or oper-
guide are designed to achieve substan- ates highly erodible land that was
tial reductions in soil erosion. Con- under a Conservation Reserve Program
servation systems shall be technically contract as authorized by section 1231
and economically feasible; based on of the Food Security Act of 1985, as
local resource conditions and available amended, shall have 2 years after the
conservation technology; cost-effec- expiration of termination of the con-
tive; and shall not cause undue eco- tract to fully apply a conservation sys-
nomic hardship on the person applying tem if the conservation plan for such
the conservation system. Any con- land requires the installation of struc-
servation plans or systems that were tural measures for the production of an
approved prior to July 3, 1996, are agricultural commodity. NRCS offi-
deemed to be in compliance with this cials may extend this period one addi-
paragraph. tional year for circumstances beyond
(b) Substantial reduction in soil erosion. the control of the person. The person
For the purpose of determining wheth- shall not be required to meet a higher
er there is a substantial reduction in conservation standard than the stand-
soil erosion on a field containing high- ard applied to other highly erodible
ly erodible cropland which was used to cropland located within the area served
produce an agricultural commodity by the field office technical guide for
prior to December 23, 1985, the meas- the area in which the field is located.
397
(e) Information regarding conservation were improperly applied may appeal

options. NRCS, in providing assistance the decision to FSA under § 12.12.
to a person for the preparation or revi- (j) Undue economic hardship. After a
sion of a conservation plan under this technical determination has been
part, will provide such person with in- made, the FSA county committee
formation concerning cost-effective shall, if a person asserts that the appli-
and applicable erosion control alter- cation of the person’s conservation sys-
natives, crop flexibility, or other con- tem would impose an undue economic
servation assistance options that may hardship on the person, make a rec-
be available. ommendation to the State FSA Com-
(f) Timely request for assistance. Per- mittee as to whether or not the appli-
sons who require NRCS assistance for cation of the conservation system
the development of a conservation plan would impose an undue economic hard-
or the installation of a conservation ship. The State FSA Committee may
system are encouraged to request this provide the person with a variance on
assistance well in advance of deadline the basis of the hardship. Under this
dates for compliance; otherwise the variance, and any conditions that may
person may not be able to comply with be required in the variance, the person
these provisions and maintain eligi- will be considered to be in compliance
bility for USDA program benefits. with the applicable provisions of this
(g) Action by conservation districts. part. The State FSA Committee will
Conservation districts approve or dis- consider relevant factors, such as the
approve conservation plans or con- cost of installation of required con-
servation systems after NRCS deter- servation practices and benefits earned
mines that the plans or systems con- through programs subject to compli-
form to the NRCS field office technical ance with this part, and the person’s
guide. If a conservation district fails, general economic situation.
without due cause, to act on a request
for conservation plan or conservation Subpart C—Wetland Conservation
system approval within 45 days, or if
no conservation district exists, NRCS § 12.30 NRCS responsibilities regard-
will approve or disapprove, as appro- ing wetlands.
priate, the conservation plan or system (a) Technical and coordination respon-
in question. sibilities. In carrying out the provisions
(h) Application of a conservation plan of this part, NRCS shall:
or system. A person is considered to be (1) Oversee the development and ap-
applying a conservation plan for pur- plication of criteria to identify hydric
poses of § 12.5(a) if the conservation soils in consultation with the National
system or plan being applied achieves Technical Committee for Hydric Soils
or exceeds the substantial reduction in and make available to the public an ap-
soil erosion as described in paragraph proved county list of hydric soil map
(b) which the conservation system or units, which is based upon the National
plan was designed to achieve. It is the List of Hydric Soils;
responsibility of the person to: (2) Coordinate with the U.S. Fish and
(1) Certify that the conservation plan Wildlife Service and others in updating
or system is being applied; and the National List of Plant Species that
(2) Arrange for a revision of the con- Occur in Wetlands;
servation plan with NRCS, if changes (3) Make or approve wetland deter-
are made in land use, crop rotation or minations, delineations and certifi-
management, conservation practices, cations, functional assessments, miti-
or in the original schedule of practice gation plans, categorical minimal ef-
installation that would affect the fects, and other technical determina-
achievement of substantial reduction tions relative to the implementation of
in soil erosion in a given crop year. the wetland conservation provisions of
this part;
(i) Appeal to FSA. Persons who are ad-

versely affected by the determinations (4) Develop and utilize off-site and
made under this subpart and believe on-site wetland identification proce-
that the requirements of this subpart dures;
398
(5) Assure quality of service and de- as final by the NRCS official 30 days
terminations through procedures devel- after providing the person notice of
oped by NRCS in consultation with certification or, if an appeal is filed
other Federal agencies that have wet- with USDA, after the administrative
land responsibilities; appeal procedures are exhausted.
(6) Investigate complaints and make (3) In the case of an appeal, NRCS
technical determinations regarding po- will review and certify the accuracy of
tential violations; the determination of all lands subject
(7) Develop a process at the state to the appeal to ensure that the subject
level, in coordination with the U.S. lands have been accurately delineated.
Fish and Wildlife Service, to ensure Prior to a decision being rendered on
that these provisions are carried out in the appeal, NRCS will conduct an on-
a technically defensible and timely site investigation of the subject land.
manner, seek assistance as appro-
(4) Before any benefits are withheld,
priate, and annually review the
an on-site investigation of a potential
progress being made on implementa-
wetland violation will be made by
tion; and
(b) Technical assistance from others In NRCS. The affected person will be pro-
carrying out the provisions of this vided an opportunity to appeal the on-
part, NRCS may request technical as- site determination to USDA if the on-
sistance from the U.S. Fish and Wild- site determination differs from the
life Service, State or local agencies, original determination. Such action by
conservation districts, or qualified pri- NRCS shall be considered a review of
vate entities when NRCS determines the prior determination and certifi-
that additional staff resources or tech- cation of the delineation. If the prior
nical expertise are needed to address determination was a certified wetland
adequately the requirements of this determination, an appeal of the NRCS
part or to enhance the quality of im- on-site determination shall be limited
plementation of this part. to the determination that the wetland
(c) Certification of wetland determina- was converted in violation of this part.
tions and wetland delineations. (1) Cer- (5) A copy of the information from
tification of a wetland determination the final certified wetland determina-
means that the wetland determination tion and the wetland delineation shall
is of sufficient quality to make a deter- be recorded on official USDA aerial
mination of ineligibility for program photography, digital imagery, or other
benefits under § 12.4 of this part. NRCS graphic representation of the area.
may certify a wetland determination (6) As long as the affected person is
without making a field investigation. in compliance with the wetland con-
NRCS will notify the person affected servation provision of this part, and as
by the certification and provide an op- long as the area is devoted to the use
portunity to appeal the certification and management of the land for pro-
prior to the certification becoming duction of food, fiber, or horticultural
final. All wetland determinations made crops, a certification made under this
after July 3, 1996, will be done on a section will remain valid and in effect
tract basis and will be considered cer- until such time as the person affected
tified wetland determinations. A not- by the certification requests review of
inventoried designation within a cer- the certification by NRCS. A person
tified wetland is subject to change may request review of a certification
when the soil, hydrology, and vegeta- only if a natural event alters the to-
tion evaluation is completed and iden- pography or hydrology of the subject
tified as to type of wetland or as a non- land to the extent that the final cer-
wetland. This change from a not-inven-
tification is no longer a reliable indica-
toried designation to an approved wet-
tion of site conditions, or if NRCS con-
land designation will be done at the re-
curs with an affected person that an
quest of the landowner or during a for-
error exists in the current wetland de-
mal investigation of a potential viola-

termination
tion.
(2) The wetland determination and [61 FR 47025, Sept. 6, 1996; 61 FR 53491, Oct. 11,
wetland delineation shall be certified 1996; 76 FR 22785, Apr. 25, 2011]
399
§ 12.31 On-site wetland identification (ii) An official list of hydric soil map
criteria. units shall be maintained at the local
(a) Hydric soils. (1) NRCS shall iden- NRCS office and shall include—
tify hydric soils through the use of (A) All soils from the National List
published soil maps which reflect soil of Hydric Soils that can be found in
surveys completed by NRCS or through that field office area, and
the use of on-site reviews. If a pub- (B) Any soil map units or areas which
lished soil map is unavailable for a the state conservationist determines to
given area, NRCS may use unpublished meet such hydric soil criteria.
soil maps which were made according (iii) Any deletions of a hydric soil
to the specifications of the National unit from the hydric soil map unit list
Cooperative Soil Survey or may con- must be made according to the estab-
duct an on-site evaluation of the land. lished procedure contained in the pub-
(2) NRCS shall determine whether an lication ‘‘Hydric Soils of the United
area of a field or other parcel of land States 1985’’ for adding or deleting soils
has a predominance of hydric soils that from the National List of Hydric Soils.
are inundated or saturated as follows: (b) Hydrophytic vegetation.
(i) If a soil map unit has hydric soil Hydrophytic vegetation consists of
as all or part of its name, that soil map plants growing in water or in a sub-
unit or portion of the map unit related strate that is at least periodically defi-
to the hydric soil shall be determined
cient in oxygen during a growing sea-
to have a predominance of hydric soils;
son as a result of excessive water con-
(ii) If a soil map unit is named for a
tent.
miscellaneous area that meets the cri-
teria for hydric soils (i.e., riverwash, (1) A plant shall be considered to be
playas, beaches, or water) the soil map a plant species that occurs in wetland
unit shall be determined to have a pre- if such plant is listed in the National
dominance of hydric soils; or List of Plant Species that Occur in
(iii) If a soil map unit contains inclu- Wetlands. The publication may be ob-
sions of hydric soils, that portion of tained upon request from the U.S. Fish
the soil map unit identified as hydric and Wildlife Service at National Wet-
soil shall be determined to have a pre- land Inventory, Monroe Bldg. Suite 101,
dominance of hydric soils. 9720 Executive Center Drive, St. Pe-
(3) List of hydric soils. (i) Hydric soils tersburg, Florida 33702.
are those soils which meet criteria set (2) For the purposes of the definition
forth in the publication ‘‘Hydric Soils of ‘‘wetland’’ in § 12.2 of this part, land
of the United States 1985’’ which was shall be determined to have a preva-
developed by the National Technical lence of hydrophytic vegetation if:
Committee for Hydric Soils and which (i) NRCS determines through the cri-
is incorporated by reference. This pub- teria specified in paragraph (b)(3) of
lication may be obtained upon request this section that under normal cir-
by writing NRCS at U.S. Department cumstances such land supports a preva-
of Agriculture, P.O. Box 2890, Wash- lence of hydrophytic vegetation. The
ington, DC 20013, and is available for term ‘‘normal circumstances’’ refers to
inspection at the National Archives the soil and hydrologic conditions that
and Records Administration (NARA). are normally present, without regard
For information on the availability of to whether the vegetation has been re-
this material at NARA, call 202–741– moved; or
6030, or go to: http://www.archives.gov/ (ii) In the event the vegetation on
federallregister/ such land has been altered or removed,
codeloflfederallregulations/ NRCS will determine if a prevalence of
ibrllocations.html. Incorporation of hydrophytic vegetation typically exists
this publication by reference was ap- in the local area on the same hydric
proved by the Director of the Federal soil map unit under non-altered hydro-
Register on June 24, 1986. The mate- logic conditions.
rials are incorporated as they exist on (3) The determination of prevalence

the date of the approval and a notice of of hydrophytic vegetation will be made
any change in these materials will be in accordance with the current Federal
published in the FEDERAL REGISTER. wetland delineation methodology in
400
use by NRCS at the time of the deter- enhancement or creation of a wetland

mination. in accordance with a mitigation plan
(c) Mitigation wetlands. Notwith- approved by NRCS, the exemption pro-
standing the provisions of this section, vided by the determination will be ef-
wetlands which are created in order to fective after NRCS determines that all
mitigate the loss of other wetlands as a practices in a mitigation plan are
result of irrigation, recreation, munic- being implemented.
ipal water, flood control, or other simi- (e) Categorical Minimal Effect Exemp-
lar projects shall not be considered to tions. (1) The state conservationist, in
be artificial wetland for the purposes of
consultation with the state technical
§ 12.5(b)(1)(vii)(A) of this part.
committee established under 16 U.S.C.
(d) Minimal effect determination. For
3861, shall identify any categories of
the purposes of § 12.5(b)(1)(v) of this
part, NRCS shall determine whether conversion activities and conditions
the effect of any action of a person as- which are routinely determined by
sociated with the conversion of a wet- NRCS to have minimal effect on wet-
land, the conversion of wetland and the land functions and values, as described
production of an agricultural com- in paragraph (d) of this section, and
modity on converted wetland, or the recommend to the Chief, NRCS, or a
combined effect of the production of an designee, inclusion on a list of categor-
agricultural commodity on a wetland ical minimal effect exemptions.
converted by someone else has a mini- (2) The Chief, or designee, shall
mal effect on the functions and values evaluate the conversion practices rec-
of wetlands in the area. Such deter- ommended by the state conservation-
mination shall be based upon a func- ists in the region to ensure consistency
tional assessment of functions and val- across State and regional lines, and to
ues of the wetland under consideration determine whether any categories of
and other related wetlands in the area, conversion activities identified pursu-
and will be made through an on-site ant to paragraph (e)(1) of this section,
evaluation. A request for such deter- if such activities were exempt from the
mination will be made prior to the be- ineligibility provisions of § 12.4, would
ginning of activities that would con- only have a minimal effect on wetland
vert the wetland. If a person has con- functions and values in a wetland sys-
verted a wetland and then seeks a de- tem within the region.
termination that the effect of such (3) Any categories of conversion ac-
conversion on wetland was minimal, tivities which meet the criteria of
the burden will be upon the person to paragraph (e)(2) of this section will be
demonstrate to the satisfaction of published in the FEDERAL REGISTER for
NRCS that the effect was minimal. inclusion in this part and shall be ex-
The production of an agricultural com- empt under § 12.5(b)(1)(v) of this part.
modity on any portion of a converted (4) The NRCS local field office shall
wetland in conformance with a mini- maintain a list of any activities and
mal-effect determination by NRCS is conditions which are determined by the
exempt under § 12.5(b)(1)(v) of this part. Chief, or designee, exempt pursuant to
However, any additional action of a this section and will provide the list to
person that will change the functions a person upon request.
and values of a wetland for which a
minimal-effect determination has been [61 FR 47025, Sept. 6, 1996, as amended at 69
made shall be reported to NRCS for a FR 18803, Apr. 9, 2004; 76 FR 82077, Dec. 30,
determination of whether the effect 2011]
continues to be minimal. The loss of a
§ 12.32 Converted wetland identifica-
minimal effect determination will
tion criteria.
cause a person who produces an agri-
cultural commodity on the converted (a) Converted wetland shall be identi-
wetland after such change in status to fied by determining whether the wet-
land was altered so as to meet the defi-
be ineligible, under § 12.4, for certain

program benefits. In situations where nition of converted wetland. In making
the wetland values, acreage, and func- this determination, the following fac-
tions are replaced by the restoration, tors are to be considered:
401
(1) Where hydric soils have been used values would be minimal under
for production of an agricultural com- § 12.5(b)(1)(v). If, after December 23,
modity and the effect of the drainage 1985, changes due to human activity oc-
or other altering activity is not clearly curred in the watershed and resulted in
discernible, NRCS will compare the an increase in the water regime on a
site with other sites containing the person’s land, the person may be al-
same hydric soils in a natural condi- lowed to adjust the existing drainage
tion to determine if the hydric soils system to accommodate the increased
can or cannot be used to produce an ag- water regime on the condition that the
ricultural commodity under natural person affected by this additional
conditions. If the soil on the compari- water provides NRCS with appropriate
son site could not produce an agricul- documentation of the increased water
tural commodity under natural condi- regime, the causes thereof, and the
tions, the subject wetland will be con- planned changes in the existing drain-
sidered to be converted wetland. age system. In order to maintain pro-
(2) Where woody hydrophytic vegeta- gram eligibility, a person must provide
tion has been removed from hydric sufficient documentation and receive
soils for the purpose of or permitting approval from NRCS prior to making
the production of an agricultural com- any changes that will have the effect of
modity, the area will be considered to increasing the capacity of the existing
be converted wetland. drainage systems.
(b) A wetland shall not be considered (b) Unless otherwise provided in this
to be converted if: part, the production of an agricultural
(1) Production of an agricultural commodity on land determined by
commodity on such land is possible as NRCS to be prior-converted cropland is
a result of a natural condition, such as exempted by law from these regula-
drought, and it is determined that the tions for the area which was converted.
actions of the person producing such Maintenance or improvement of drain-
agricultural commodity does not per- age systems on prior-converted crop-
manently alter or destroy natural wetlands are not subject to this rule so
land characteristics. Destruction of long as the prior-converted croplands
herbaceous hydrophytic vegetation are used for the production of food, for-
(i.e., plants other than woody shrubs or age, or fiber and as long as such ac-
trees) as a result of the production of tions do not alter the hydrology of
an agricultural commodity shall not be nearby wetlands or do not make pos-
considered as altering or destroying sible the production of an agricultural
natural wetland characteristic if such commodity on these other wetlands.
vegetation could return following ces- Other wetlands under this section
sation of the natural condition which means any natural wetland, farmed
made production of the agricultural wetland, farmed-wetland pasture, or
commodity possible; or any converted wetland that is not ex-
(2) Such land is correctly identified empt under § 12.5 of this part.
as farmed wetland or farmed-wetland (c) Abandonment is the cessation for
pasture. five consecutive years of management
or maintenance operations related to
§ 12.33 Use of wetland and converted the use of a farmed wetland or a
wetland. farmed-wetland pasture. Unless the cri-
(a) The provisions of § 12.32(b)(2) are teria for receiving an exemption under
intended to protect remaining values, § 12.5(b)(1)(iii) are met, such land is
acreage, and functions of the wetlands considered to be abandoned when the
described therein. Persons may con- land meets the wetland criteria of
tinue to farm such wetlands under nat- § 12.31. In order for documentation of
ural conditions or as they did prior to site conditions to be considered ade-
December 23, 1985. However, no action quate under § 12.5(b)(1)(iii), the affected
can be taken to increase effects on the person must provide to NRCS available
water regime beyond that which ex- information concerning the extent of
isted on such lands on or before Decem- hydrological manipulation, the extent
ber 23, 1985, unless NRCS determines of woody vegetation, and the history of
the effect on losing remaining wetland use. In accordance with § 12.5(b)(1)(iii),
402
participation in a USDA approved wet- § 14.1 Purpose.

land restoration, set-aside, diverted
(a) Part 14 sets forth criteria to be
acres, or similar programs shall not be
used by the Secretary of Agriculture in
deemed to constitute abandonment.
determining the primary purpose of
(d) The maintenance of the drainage certain payments received by persons
capacity or any alteration or manipu- under applicable programs. Deter-
lation, including the maintenance of a mining the primary purpose for which
natural waterway operated and main- applicable payments are made is one
tained as a drainage outlet, that af- step toward the exclusion of all or part
fects the circulation and flow of water of the payments from gross income for
made to a farmed wetland or farmed-
Federal income tax purposes.
wetland pasture would not cause a per-
(b) The criteria set forth in part 14
son to be determined to be ineligible
apply only to the determinations to be
under this part, provided that the
made by the Secretary of Agriculture.
maintenance does not exceed the scope
and effect of the original alteration or § 14.2 Applicability.
manipulation, as determined by NRCS,
and provided that the area is not aban- (a) Part 14 applies only to payments
doned. Any resultant conversion of received under the programs listed in
wetlands is to be at the minimum ex- paragraphs (a)(1) through (10) of this
tent practicable, as determined by section. Payments received under pro-
NRCS. grams not listed in paragraphs (a)(1)
through (10) of this section, are not
[61 FR 47025, Sept. 6, 1996, as amended at 76 considered eligible for exclusion from
FR 82077, Dec. 30, 2011]
gross income under this part.
§ 12.34 Paperwork Reduction Act as- (1) The rural clean water program au-
signed number. thorized by section 208(j) of the Federal
Water Pollution Control Act (33 U.S.C.
The information collection require- 1288(j)).
ments contained in this regulation (7
(2) The rural abandoned mine pro-
CFR part 12) have been approved by the
gram authorized by section 406 of the
Office of Management and Budget
Surface Mining Control and Reclama-
under provisions of 44 U.S.C. chapter 35
tion Act of 1977 (30 U.S.C. 1236).
and have been assigned OMB Number
0560–0004. (3) The water bank program author-
ized by the Water Bank Act (16 U.S.C.
1301 et seq.).
PART 13 [RESERVED] (4) The emergency conservation
measures program authorized by title
PART 14—DETERMINING THE PRI- IV of the Agricultural Credit Act of
MARY PURPOSE OF CERTAIN 1978 (16 U.S.C. 2201 et seq.).
PAYMENTS FOR FEDERAL TAX (5) The agricultural conservation pro-
PURPOSES gram authorized by the Soil Conserva-
tion and Domestic Allotment Act (16
Sec. U.S.C. 590a).
14.1 Purpose. (6) The Great Plains conservation
14.2 Applicability. program authorized by section 16 of the
14.3 Objective. Soil Conservation and Domestic Allot-
14.4 Policy. ment Act (16 U.S.C. 590p(b)).
14.5 Procedure. (7) The resource conservation and de-
14.6 Criteria for determining the primary velopment program authorized by the
purpose of payments with respect to po- Bankhead-Jones Farm Tenant Act and
tential exclusion from gross income.
by the Soil Conservation and Domestic
14.7 Non-Federal programs and payments.
Allotment Act (7 U.S.C. 1010; 16 U.S.C.
AUTHORITY: Sec. 543, Pub. L. 95–600; as 590a et seq.).
amended by sec. 105, Pub. L. 96–222; 26 U.S.C.
(8) The forestry incentives program

126, 1255 and 5 U.S.C. 301. authorized by section 4 of the Coopera-
SOURCE: 45 FR 58507, Sept. 4, 1980, unless tive Forestry Assistance Act of 1978 (16
otherwise noted. U.S.C. 2103).
403
(9) Any small watershed program ad- forests, or providing wildlife habitat;
ministered by the Secretary of Agri- and
culture that is determined by the Sec- (2) Is determined by the Secretary of
retary of the Treasury or his delegate the Treasury as not increasing sub-
to be substantially similar to the type stantially the annual income derived
of programs described in paragraphs from the property associated with the
(a)(1) through (8) of this section. payment.
(10) Any program of a State, a posses- (b) Primary purpose means the prin-
sion of the United States, a political cipal, fundamental, predominant, or
subdivision of a State or a possession independent objective for which a pay-
of the United States, the District of ment is made. The following shall be
Columbia, or a combination of any of considered in determining the primary
the foregoing under which payments purpose of a payment:
are made primarily for the purpose of (1) Single-purpose payments shall be
conserving soil and water resources, considered as having that purpose as
protecting or restoring the environ- their primary purpose.
ment, improving forests, or providing a (2) Multiple-purpose payments. If a
habitat for wildlife. payment is made for several purposes,
(b) The criteria set forth in § 14.5 for it may be considered as having soil and
determining the primary purpose of water conservation, environmental
payments with respect to their eligi- protection or restoration, forestry im-
bility for exclusion from gross income provement, or providing wildlife habi-
shall also be used to determine the ap- tat as its primary purpose to the ex-
plicability of this part to payments re- tent of the portion of the payment that
ceived under non-Federal programs as is made for one or more of such pur-
provided in § 14.2(a)(10). poses.
(3) Where a purpose of a payment, or
§ 14.3 Objective. portion thereof, is in doubt, the fol-
The objective of the determinations lowing sources should be considered—
made under part 14 is to provide max- (i) Authorizing legislation, legisla-
imum conservation, environmental, tive history, administrative regulation,
forestry improvement, and wildlife administrative history, interpretive
benefits to the general public from the case law, and the administrative poli-
operation of applicable programs. cies and procedures under which the
applicable program operates and the
§ 14.4 Policy. payment is made; and
(ii) Agreements or other documenta-
Federal tax, conservation, natural re-
tion accompanying the transfer of the
source, and environmental policies
payment;
should complement rather than con-
(iii) Use made of the payment by the
flict with one another. Therefore, the
recipient.
Federal income tax liability on appli-
cable payments should be reduced or § 14.6 Criteria for determining the pri-
eliminated to the extent that the pay- mary purpose of payments with re-
ments yield conservation, environ- spect to potential exclusion from
mental, forestry improvement, or wild- gross income.
life benefits to the general public be- (a) Soil conservation. (1) Payments
yond the benefits that accrue to those shall be considered to be made pri-
who receive the payments. marily for the purpose of soil conserva-
tion if they are intended to finance ac-
§ 14.5 Procedure.
tivities, measures, or practices to re-
(a) The portion of an applicable pay- duce soil deterioration.
ment that may be excluded from gross (2) Soil deterioration refers to im-
income under part 14 shall be that por- pairments of the physical or chemical
tion or all, as appropriate, that— properties of soil that are largely irre-
(1) Is determined to be made pri- versible and that can be expected to re-
marily for the purpose of conserving sult in a long-term or permanent re-
soil and water resources, protecting or duction in the productive capacity of
restoring the environment, improving the resource regardless of the level of
404
technology available or applied. Ero- restoring the environment as they do

sion by water and wind and the associ- for protecting the environment.
ated changes that result in permanent (e) Improving forests. (1) Payments
or long-term reductions in the produc- shall be considered to be made pri-
tive capacity of the soil are forms of marily for the purpose of improving
soil deterioration. forests if they are intended to finance
(b) Water conservation. (1) Water con- actions, measures, or practices under-
servation includes actions that, for a taken for the direct or indirect con-
given level of water supply, reduce the servation or enhancement of the quan-
demand for or use of water by— tity or quality of timber resources.
(i) Improving efficiency in use; (2) Improving forests includes the
(ii) Reducing loss and waste; generation and regeneration of timber
stands as well as the silvicultural im-
(iii) Increasing the recycling or reuse
provement of such timber stands but
of water, thereby making existing sup-
excludes harvest cuttings not under-
plies available for other current or fu-
taken primarily for silvicultural im-
ture uses; or
provement.
(iv) Improving land management (f) Providing habitat for wildlife. (1)
practices for the purpose of reducing Payments shall be considered to be
water use, loss, waste, increasing the made primarily for the purpose of pro-
efficiency of water use, or increasing viding habitat for wildlife if they are
the recycling or reuse of water. intended to finance actions, measures,
(2) Payments shall be considered to or practices leading directly to the es-
be made primarily for the purpose of tablishment of those physical and bio-
water conservation if they are intended logical conditions or resources that can
to finance actions, measures, or prac- be expected to support primarily non-
tices that can be expected to result in cultivated and nondomesticated ani-
water conservation as defined in para- mal and plant life. The animal and
graph b(1) of this section. plant life must be of value to the public
(c) Protecting the environment. (1) Pay- in their natural state apart from any
ments shall be considered to be made value that may be realized from them
primarily for the purpose of protecting as private economic gain.
the environment if they are intended (2) Wildlife includes but is not lim-
to finance actions, measures, or prac- ited to species of terrestrial or aquatic
tices undertaken to prevent man- animals and plants.
caused or man-induced reductions or (3) Habitat includes, but is not lim-
degradations in the quantity or quality ited to, the food supply, water supply,
of the natural external or extrinsic and nesting and escape cover necessary
conditions directly or indirectly affect- to support populations of wildlife spe-
ing people. cies. Included in the definition of wild-
(2) External or extrinsic conditions life habitat are domestic crops raised
refer to the complex of natural condi- for the primary purpose of providing
tions or circumstances, including but food supply or cover for specific wild-
not limited to those affecting public life species.
health and safety, in which people re-
side or otherwise carry out their lives. § 14.7 Non-Federal programs and pay-
(d) Restoring the environment. (1) Pay- ments.
ments shall be considered to be made (a) Definition of non-Federal programs.
primarily for the purpose of restoring Non-Federal program means any pro-
the environment if they are intended gram of a State, a possession of the
to finance actions, measures, or prac- United States, a political subdivision
tices undertaken to reestablish, return, of any State or possession of the
or enhance the quantity or quality of United States, the District of Colum-
the natural external or extrinsic condi- bia, or a combination of any of the
tions directly or indirectly affecting foregoing.
people that existed before the man-
(b) Applicability. Payments received

caused or man-induced degradation. through non-Federal programs under
(2) External or extrinsic conditions which payments are made primarily for
have the same meaning with respect to the purpose of conserving soil and
405
water resources, protecting or restor- 15.6 Complaints.

ing the environment, improving for- 15.7 Intimidatory or retaliatory acts pro-
ests, or providing a habitat for wildlife hibited.
15.8 Procedure for effecting compliance.
may be considered for exclusion from 15.9 Hearings.
gross income under part 14. 15.10 Decisions and notices.
(c) Determining the primary purpose of 15.11 Judicial review.
non-Federal payments. The determina- 15.12 Effect on other regulations; forms and
tion of the primary purpose for which instructions.
non-Federal payments are made with APPENDIX TO SUBPART A—LIST OF FEDERAL
respect to their potential for exclusion FINANCIAL ASSISTANCE FROM USDA
from gross income shall be made by
using the criteria set forth in part 14 Subpart B [Reserved]
for determining the primary purpose of Subpart C—Rules of Practice and Proce-
Federal payments. dure for Hearings, Decisions and Ad-
(d) Procedure for determining the pri- ministrative Review Under the Civil
mary purpose of payments made under Rights Act of 1964
non-Federal programs. (1) To initiate the
process of determining the applica- GENERAL INFORMATION
bility of this part to payments received 15.60 Scope of rules.
through non-Federal programs and the 15.61 Records to be public.
primary purpose of the payments for 15.62 Definitions.
potential exclusion from gross income, 15.63 Computation of time.
the non-Federal official responsible for 15.64 Parties.
15.65 Appearance.
the program through which the pay-
15.66 Complainants not parties.
ments are made should provide six cop- 15.67 Intervener.
ies of the following materials relating 15.68 Ex parte communications.
to the program to the Secretary of Ag-
riculture— FORM, EXECUTION, FILING AND SERVICE OF
(i) Authorizing legislation; DOCUMENTS
(ii) Rules or regulations; 15.71 Form of documents to be filed.
(iii) Current policies and procedures 15.72 Filing.
under which payments are made and 15.73 Service.
used; 15.74 Date of service.
(iv) A description of all practices or INITIAL NOTICE AND RESPONSE
measures for which payments are made
15.81 How proceedings are commenced.
and used; and 15.82 Notice of hearing and response there-
(v) Any other information that may to.
be helpful in determining the purpose 15.83 Notice of opportunity to request a
for which payments, or portions there- hearing and response thereto.
of, are made and used. 15.84 Answer.
(2) Any changes in the supporting 15.85 Amendment of notice or answer.
documentation listed in paragraphs 15.86 Consolidated or joint hearings.
(d)(1)(i) through (d)(1)(iv) of this sec- HEARING OFFICER
tion, should be reported to the Sec-
15.91 Who presides.
retary within 30 days of the date they
15.92 Designation of hearing officer.
become final. 15.93 Time and place of hearing.
15.94 Disability of hearing officer.
PART 15—NONDISCRIMINATION 15.95 Responsibilities and duties of hearing
officer.
Subpart A—Nondiscrimination in Federally- MOTIONS
Assisted Programs of the Department
of Agriculture—Effectuation of Title VI 15.101 Form and content.
15.102 Responses to motions.
of the Civil Rights Act of 1964 15.103 Disposition of motions.
Sec.
HEARING PROCEDURES
15.1 Purpose and application of part.
15.2 Definitions. 15.110 Prehearing conferences.

15.3 Discrimination prohibited. 15.111 Purpose of hearing.
15.4 Assurances required. 15.112 Statement of position and brief.
15.5 Compliance. 15.113 Testimony.
406
15.115 Affidavits. a law administered by the Department
15.116 Depositions. including, but not limited to, the Fed-
15.117 Evidence. eral financial assistance listed in the
15.118 Cross-examination.
15.119 Objections.
appendix to this part. They apply to
15.120 Exceptions to rulings of hearing offi- money paid, property transferred, or
cer unnecessary. other Federal financial assistance ex-
15.121 Official notice. tended to an applicant or recipient for
15.122 Offer of proof. its program or activity after the effec-
15.123 Appeals from ruling of hearing offi- tive date of these regulations pursuant
cer. to an application approved or statutory
15.124 Admissions as to facts and docu-
or other provision made therefor prior
ments.
to such effective date. The regulations
THE RECORD in this part do not apply to (1) any Fed-
15.131 Official transcript. eral financial assistance by way of in-
15.132 Record for decision. surance or guaranty contract, (2)
money paid, property transferred, or
POSTHEARING PROCEDURES other assistance extended prior to the
15.135 Posthearing briefs. effective date of the regulations in this
15.136 Decisions and notices. part, (3) any assistance to an applicant
15.137 Exceptions to initial or proposed de- or recipient who is an ultimate bene-
cision. ficiary, or (4) except as provided in
15.138 Review of initial decision. § 15.3(c), any employment practice of
15.139 Oral argument.
15.140 Service of decisions.
any employer, employment agency or
15.141 Contents of decision. labor organization. The fact that a spe-
15.142 Content of orders. cific kind of Federal financial assist-
15.143 Decision where financial assistance ance is not listed in the appendix, shall
affected. not mean, if title VI of the Act is oth-
AUTHORITY: 5 U.S.C. 301; 29 U.S.C. 794. erwise applicable, that such Federal fi-
nancial assistance is not covered.
Other Federal financial assistance
Subpart A—Nondiscrimination in under statutes now in force or herein-
Federally-Assisted Programs after enacted may be added to this list
of the Department of Agri- by notice approved and issued by the
culture—Effectuation of Title VI Secretary and published in the FED-
of the Civil Rights Act of ERAL REGISTER.
1964 [29 FR 16274, Dec. 4, 1964, as amended at 38
FR 17925, July 5, 1973; 68 FR 51341, Aug. 26,
SOURCE: 29 FR 16274, Dec. 4, 1964; 29 FR 2003]
16966, Dec. 11, 1964, unless otherwise noted.
§ 15.2 Definitions.
§ 15.1 Purpose and application of part. (a) Department means the Department
(a) The purpose of the regulations in of Agriculture, and includes each of its
this part is to effectuate the provisions operating agencies and other organiza-
of title VI of the Civil Rights Act of tional units.
1964 (hereinafter referred to as the (b) Agency means any service, bureau,
‘‘Act’’) to the end that no person in the agency, office, administration, instru-
United States shall, on the ground of mentality of or corporation within the
race, color, or national origin, be ex- U.S. Department of Agriculture ex-
cluded from participation in, be denied tending Federal financial assistance to
the benefits of, or be otherwise sub- any program or activity, or any officer
jected to discrimination under any pro- or employee of the Department to
gram or activity of an applicant or re- whom the Secretary delegates author-
cipient receiving Federal financial as- ity to carry out any of the functions or
sistance from the Department of Agri- responsibilities of an agency under this
culture or any Agency thereof. part.
(b) The regulations in this part apply (c) Secretary means the Secretary of
to any program or activity of an appli- Agriculture or any officer or employee
cant or recipient for which Federal fi- of the Department to whom the Sec-
nancial assistance is authorized under retary has heretofore delegated, or to
407
whom the Secretary may hereafter del- States, and the term State means any
egate, the authority to act in his stead one of the foregoing.
under the regulations in this part. (j) Applicant means one who submits
(d) Hearing Officer means a hearing an application, request, or plan re-
examiner appointed pursuant to 5 quired to be approved by an Agency, or
U.S.C. 3105, and designated to hold by a primary recipient, as a condition
hearings under the regulations in this to eligibility for Federal financial as-
part or any person authorized to hold a sistance, and application means such an
hearing and make a final decision application, request, or plan.
under the regulations in this part. (k) Program or activity and program
(e) Recipient means any State, polit- mean all of the operations of any enti-
ical subdivision of any State, or instru- ty described in paragraphs (k)(1)
mentality of any State or political sub- through (4) of this section, any part of
division, any public or private agency, which is extended Federal financial as-
institution, or organization, or other sistance:
entity or any individual in any State,
(1)(i) A department, agency, special
to whom Federal financial assistance is
purpose district, or other instrumen-
extended, directly or through another
recipient, including any successor, as- tality of a State or of a local govern-
signee, or transferee thereof, but such ment; or
term does not include any ultimate (ii) The entity of such State or local
beneficiary. government that distributes such as-
(f) Primary recipient includes any resistance and each such department or
cipient which is authorized or required agency (and each other State or local
to extend Federal financial assistance government entity) to which the as-
to another recipient. sistance is extended, in the case of as-
(g) Federal financial assistance or fi- sistance to a State or local govern-
nancial assistance includes (1) grants ment;
and loans of Federal funds, (2) the (2)(i) A college, university, or other
grant or donation of Federal property postsecondary institution, or a public
and interests in property, (3) the detail system of higher education; or
of Federal personnel, (4) the sale and (ii) A local educational agency (as de-
lease of, and the permission to use (on fined in 20 U.S.C. 7801), system of voca-
other than a casual or transient basis), tional education, or other school sys-
Federal property or any interest in tem;
such property or the furnishing of serv- (3)(i) An entire corporation, partner-
ices without consideration or at a ship, or other private organization, or
nominal consideration, or at a consid- an entire sole proprietorship—
eration which is reduced for the pur- (A) If assistance is extended to such
pose of assisting the recipient, or in corporation, partnership, private orga-
recognition of the public interest to be nization, or sole proprietorship as a
served by such sale, lease or furnishing whole; or
of services to the recipient, and (5) any
(B) Which is principally engaged in
Federal agreement, arrangement, or
the business of providing education,
other contract which has as one of its
health care, housing, social services, or
purposes the provision of assistance.
(h) Grant, loan or contract includes parks and recreation; or
any grant, loan agreement or commit- (ii) The entire plant or other com-
ment to loan, contract or agreement to parable, geographically separate facil-
provide financial assistance or any ity to which Federal financial assist-
other arrangement between the De- ance is extended, in the case of any
partment or any Agency and a recipi- other corporation, partnership, private
ent of financial assistance. organization, or sole proprietorship; or
(i) United States means the States of (4) Any other entity which is estab-
the United States, the District of Co- lished by two or more of the entities
described in paragraph (k)(1), (2), or (3)
lumbia, Puerto Rico, the Virgin Is-

lands, American Samoa, Guam, Wake of this section.
Island, the Canal Zone, and the terri- (l) Facility includes all or any portion
tories and possessions of the United of structures, equipment, or other real
408
or personal property or interests there- other benefit provided under the pro-
in, and the provision of facilities in- gram;
cludes the construction, expansion, (vi) Deny an individual an oppor-
renovation, remodeling, alteration or tunity to participate in the program
acquisition of facilities. through the provisions of services or
otherwise or afford him an opportunity
[29 FR 16274, Dec. 4, 1964, as amended at 36
FR 3411, Feb. 24, 1971; 38 FR 17925, July 5,
to do so which is different from that af-
1973; 68 FR 51340, 51341, Aug. 26, 2003] forded others under the program (in-
cluding the opportunity to participate
§ 15.3 Discrimination prohibited. in the program as an employee but
only to the extent set forth in para-
(a) General. No person in the United graph (c) of this section).
States shall, on the ground of race, (vii) Deny a person the opportunity
color, or national origin, be excluded to participate as a member of a plan-
from participation in, be denied the ning or advisory body which is an inte-
benefits of, or be otherwise subjected gral part of the program.
to discrimination under any program (2) A recipient, in determining the
or activity of the applicant or recipient types of services, financial aid, or other
to which these regulations apply. benefits, or facilities which will be pro-
These regulations apply, but are not vided under any such program, or the
restricted, to unequal treatment in pri- class of individuals to whom, or the sit-
ority, quality, quantity, methods or uations in which, such services, finan-
charges for service, use, occupancy or cial aid, other benefits, or facilities
benefit, participation in the service or will be provided under any such pro-
benefit available, or in the use, occu- gram or the class of individuals to be
pancy or benefit of any structure, facil- afforded an opportunity to participate
ity, or improvement. in any such program, may not, directly
(b) Specific discriminatory actions pro- or through contractual or other ar-
hibited. (1) A recipient under any pro- rangements, utilize criteria or methods
gram to which the regulations in this of administration which have the effect
part apply may not, directly or of subjecting individuals to discrimina-
through contractual or other arrange- tion because of their race, color, or na-
ments on the ground of race, color, or tional origin, or have the effect of de-
national origin: feating or substantially impairing ac-
(i) Deny an individual any service, fi- complishment of the objectives of the
nancial aid, or other benefit provided program as respects individuals of a
under the program; particular race, color, or national ori-
(ii) Provide any service, financial aid, gin.
or other benefit, to an individual which (3) In determining the site or loca-
is different, or is provided in a different tion of facilities, an applicant or re-
manner, from that provided to others cipient may not make selections with
under the program; the purpose or effect of excluding indi-
(iii) Subject an individual to segrega- viduals from, denying them the bene-
tion or separate treatment in any mat- fits of, or subjecting them to discrimi-
ter related to his receipt of any service, nation under any of its programs or ac-
financial aid, or other benefit under tivities to which the regulations in this
the program; part apply, on the grounds of race,
(iv) Restrict an individual in any way color, or national origin; or with the
in the enjoyment of any advantage or purpose or effect of defeating or sub-
privilege, enjoyed by others receiving stantially impairing the accomplish-
any service, financial aid, or other ben- ment of the objectives of the Act and
efit under the program; the regulations in this part.
(v) Treat an individual differently (4) As used in this section, the serv-
from others in determining whether he ices, financial aid, or other benefit pro-
satisfies any admission, enrollment, vided under a program or activity of an
quota, eligibility, membership or other applicant or recipient receiving Fed-

requirement or condition which indi- eral financial assistance shall be
viduals must meet in order to be pro- deemed to include any and all services,
vided any service, financial aid, or financial aid, or other benefit provided
409
in or through a facility provided or im- these regulations apply, the foregoing

proved in whole or part with the aid of provisions of this § 15.3(c) shall apply to
Federal financial assistance. the employment practices of the recipi-
(5) The enumeration of specific forms ent or other persons subject to these
of prohibited discrimination in these regulations, to the extent necessary to
regulations does not limit the applica- assure equality of opportunity to, and
bility of the provisions of paragraph (a) nondiscriminatory treatment of, bene-
of this section. ficiaries. The requirements applicable
(6)(i) In administering a program re- to construction employment under any
garding which the recipient has pre- program or activity of the applicant or
viously discriminated against persons recipient shall be those specified in or
on the ground of race, color, or na- pursuant to part III of Executive Order
tional origin, the recipient must take 11246 or any Executive order which su-
affirmative action to overcome the ef- persedes it.
fects of prior discrimination. (d) Examples. In order that all parties
(ii) Even in the absence of such prior may have a clear understanding of the
discrimination, a recipient in admin- applicability of the regulations in this
istering a program may take affirma- part to their activities, there are listed
tive action to overcome the effects of in this section types of Federal finan-
conditions which resulted in limiting cial assistance together with illustra-
participation by persons of a particular tions, by way of example only, of types
race, color or national origin. of activity covered by the regulations
(c) Employment practices. Where a pri- in this part. These illustrations and ex-
mary objective of the Federal financial amples, however, are not intended to
assistance to a program to which the be all inclusive. The fact that a par-
regulations in this part apply is to pro- ticular type of Federal financial assist-
vide employment, a recipient may not, ance is not listed does not, of course,
directly or through contractual or indicate that a program is not covered
other arrangements, subject an indi- by the regulations in this part. More-
vidual to discrimination on the ground over, the examples set forth with re-
of race, color, or national origin in its spect to any particular listed type of
employment practices under the pro- Federal financial assistance are not
gram including recruitment or recruit- limited to that program alone and the
ment advertising, employment, layoff prohibited actions described may also
or termination, upgrading, demotion, be prohibited in other programs or ac-
or transfer, rates of pay or other forms tivities whether or not listed below.
of compensation, and use of facilities. (1) Cooperative Agricultural Extension
This paragraph applies to programs Program. (i) Discrimination in making
where a primary objective of the Fed- available or in the manner of making
eral financial assistance is (1) to reduce available instructions, demonstrations,
unemployment, (2) to assist individuals information, and publications offered
in meeting expenses incident to the by or through the Cooperative Exten-
commencement or continuation of sion Service;
their education or training, or (3) to (ii) Discrimination in the use in any
provide work experience which contrib- program or activity funded by the Co-
utes to education or training. Where a operative Extension Service of any fa-
primary objective of the Federal finan- cility, including offices, training facili-
cial assistance is not to provide em- ties, lecture halls, or other structures
ployment, but discrimination on the or improvements; or
grounds of race, color, or national ori- (iii) Discrimination in training ac-
gin in the employment practices of the tivities, admission to or participation
recipient or other persons subject to in fairs, competitions, field days, and
the regulations in this part, tends, on encampments, conducted or sponsored
the grounds of race, color, or national by, or in which the Cooperative Exten-
origin, to exclude individuals from par- sion Service participates.
ticipation in, to deny them the benefits (2) Rural Electrification and Rural
of, or to subject them to discrimina- Telephone Programs. (i) Refusal or fail-
tion under any program or activity of ure by a borrower to accept applica-
the applicant or recipient to which tions for membership or applications to
410
purchase shares of stock, or discrimi- different size portions by recipient

nation by a borrower in the terms and agencies serving prepared meals con-
conditions of membership or stock taining donated foods.
ownership, where such membership or (4) National School Lunch Program. (i)
stock ownership is a condition pre- Discrimination by a State agency in
requisite to the furnishing of electric the selection of schools to participate
or telephone service by the borrower, in the Program or in the assignment to
or to the receipt of any benefits or ad- schools of rates of reimbursement.
vantages related to such service; (ii) Exclusion of any child from par-
(ii) Refusal or failure by a borrower ticipation in the Program.
to extend, or discrimination by a bor- (iii) Discrimination by school offi-
rower in the extension of, electric or cials in the selection of children to re-
telephone service to unserved persons; ceive free or reduced-price lunches.
(iii) Denial by a borrower to any per- (iv) Segregation of participating chil-
son of the benefits of improvement, ex- dren in different lunch periods or dif-
pansion or upgrading, or discrimina- ferent seating, and discrimination by
tion by a borrower among consumers serving different food or different size
or subscribers in improving, expanding portions.
or upgrading, of electric or telephone (v) Failure to offer free and reduced-
service; price lunches, on an equitable basis in
(iv) Discrimination by a borrower in schools of a school district in which
respect of rates, or terms or conditions children are assigned to schools on the
of, service among consumers or sub- basis of race, color, or national origin.
scribers; (5) Food Stamp Program. (i) Discrimi-
(v) Exclusion by a borrower of any nation by a State agency in certifying
member or stockholder, if the borrower households as eligible for the Program.
is a cooperative or mutual type of cor- (ii) Segregation or other discrimina-
poration, from participation in any tion in the manner in which or the
meeting of members or stockholders of times at which eligible households are
the borrower, discrimination among its issued food coupons.
members or stockholders in respect of (6) Special Milk Program for Children.
the exercise of any of their rights as (i) Discrimination by a State agency in
members or stockholders, or in the the selection of schools and child-care
manner of the exercise of such rights; institutions to participate in the Pro-
or gram.
(vi) Exclusion by a borrower of any (ii) Discrimination by a State agency
consumer or subscriber from, denial by in the selection of needy schools to re-
a borrower to any consumer or sub- ceive reimbursement for milk served
scriber of the use of, or discrimination free.
by a borrower against any consumer or (iii) Discrimination by a State agen-
subscriber in his use of, any of the bor- cy in the assignment of reimbursement
rower’s facilities. rates to schools and child-care institu-
(3) Direct Distribution Program. (i) Ex- tions or in the adjustment of such
clusion of an otherwise eligible recipi- rates, or in fixing allowable distribu-
ent agency (school, summer camp for tion costs.
children, institution, welfare agency or (iv) Exclusion of any child from par-
disaster organization) or person from ticipation in the Program and segrega-
participation in the Direct Distribu- tion of participating children in dif-
tion Program. ferent serving periods or different
(ii) Discrimination in the allocation places of service.
of food to eligible persons. (v) Discrimination by school officials
(iii) Discrimination in the manner in or child-care institutions in the selec-
which or the place or times at which tion of children to receive free milk.
foods donated under the Program are (7) Price Support Programs carried out
distributed by recipient agencies to eli- through producer associations or coopera-
gible persons. tives or through persons who are required

(iv) Segregation of persons served in to provide specified benefits to producers.
different meal periods or by different (i) Denial of the benefits of price sup-
seating or serving or different food or port for a producers commodity.
411
(ii) Denial of membership or stock borrower in acting or failing to act

ownership to any producer by any asso- upon such applications, where such
ciation or cooperative. membership or stock ownership is a
(iii) Discrimination among producers prerequisite to the participation in
in the manner of making or paying any services furnished by, or the use of fa-
price support advances, loans, or pay- cilities of, the borrower which are fi-
ments. nanced wholly or partially with the aid
(iv) Discrimination in the fees or of the loan or to the receipt of any ben-
charges collected from or in the net efits or advantages related to such
gains distributed to producers. services or the use of such facilities.
(v) Discrimination in the use of fa- (d) Denial or impairment by a bor-
cilities and services generally made rower of any person’s rights as a mem-
available to members or patrons under ber or stockholder of the borrower, or
the Price Support Program. borrower’s discrimination against or
(8) Forest Service Programs. (i) Refusal segregation of persons in the exercise
or failure by a recipient of a permit or of their rights as members or stock-
lease to provide to any person the ben- holders of the borrower.
efits from the use of land administered (ii) Direct senior citizens rental housing
by the Forest Service, the resources loans to private nonprofit corporations
therefrom, or improvements thereon. and consumer cooperatives. (a) A bor-
(ii) Refusal or failure by any recipi- rower’s exclusion of any person from,
ent to provide to any person the bene- discrimination in the terms and condi-
fits from Federal payments based on a tions of eligibility for, or discrimina-
share of the receipts from lands admin- tion against or segregation of any per-
istered by the Forest Service. son in, the use and occupancy of the
(iii) Refusal or failure by any recipi- housing and related facilities financed
ent to provide to any person the bene- wholly or partially with the aid of the
fits from Federal assistance in coopera- loan.
tive programs for the protection, devel- (b) Discrimination by a borrower in
opment, management, and use of forest the terms and conditions of member-
resources. ship or stock ownership, or refusal or
(iv) Refusal or failure by any coop- failure of a borrower to accept applica-
erator or other recipient to provide to tions for membership or for purchase of
any person the benefits from Federal shares of stock, or discrimination by a
assistance through grants or advances borrower in acting or failing to act
of funds for research. upon such applicattions, where such
(9) Farmers Home Administration Pro- membership or stock ownership is a
grams—(i) Direct soil and water loans to condition of eligibility for use and oc-
association. (a) A borrower’s denial of, cupancy of the housing and related fa-
or discrimination in furnishing, serv- cilities financed wholly or partially
ices under a program or activity fi- with the aid of the loan or to the re-
nanced wholly or partially with the aid ceipt of any benefits or advantages re-
of the loan, as in the case of a water lated to such housing or facilities.
supply system. (c) Denial or impairment by a bor-
(b) A borrower’s denial of, or dis- rower of any person’s rights as a mem-
crimination or segregation in permit- ber or stockholder of the borrower, or a
ting, the use of facilities which are borrower’s discrimination against or
part of a project financed wholly or segregation of persons in the exercise
partially with the aid of the loan, as in of their rights as members or stock-
the case of a golf course, swimming holders of the borrower.
pool, tennis courts, parking areas, (10) Cooperative State Research Pro-
lounges, dining rooms, and rest rooms grams. (i) Discrimination in making
of a recreation association. available information whether pub-
(c) Discrimination by a borrower in lished or provided through public or
the terms and conditions of member- private statement, correspondence,
ship or stock ownership, or refusal or demonstration or field day.

failure of a borrower to accept applica- (ii) Discrimination in participation
tions for membership or for purchase of in any Cooperative Research Program
shares of stock, or discrimination by a or project.
412
(iii) Discrimination in the use of any (2) In the case of real property, struc-
facility, including offices, laboratories, tures, or improvements thereon, or in-
or other structures, or research plots terests therein, which was acquired
or fields. through Federal financial assistance,
(iv) Discrimination in employment of or in the case where Federal financial
graduate students to conduct research assistance is provided in the form of a
when such students receive substantial transfer of real property or interest
research training benefits as a result of therein from the Federal Government,
such employment. the instrument effecting or recording
[29 FR 16274, Dec. 4, 1964, as amended at 35 the transfer shall contain a covenant
FR 18383, Dec. 3, 1970; 38 FR 17925, July 5, running with the land assuring non-
1973; 68 FR 51341, Aug. 26, 2003] discrimination for the period during
which the real property is used for a
§ 15.4 Assurances required. purpose for which the Federal financial
(a) General. (1) Every application for assistance is extended or for another
Federal financial assistance to which purpose involving the provision of
these regulations apply, except an ap- similar services or benefits, or for as
plication to which paragraph (b) of this long as the recipient retains ownership
section applies, and every application or possession of the property, which-
for Federal financial assistance to pro- ever is longer. Where no transfer of
vide a facility, shall as a condition to property is involved, but property is
its approval and the extension of any improved through Federal financial as-
Federal financial assistance pursuant sistance, the recipient shall agree to
to the application, contain or be ac- include such a covenant in any subse-
companied by an assurance that the quent transfer of such property. Where
applicant’s program or activity will be the property is obtained from the Fed-
conducted or the facility operated in eral Government, such covenant may
compliance with all requirements im- also include a condition coupled with a
posed by or pursuant to the Act and right to be reserved by the Agency to
the regulations in this part. In the case revert title to the property in the
where the Federal financial assistance event of a breach of the covenant
is to provide or is in the form of per- where, in the discretion of the Agency
sonal property, or real property or in- concerned, such a condition and right
terest therein, or structures thereon,
of reverter is appropriate to the pur-
the assurance shall obligate the recipi-
poses of the Federal financial assist-
ent, or, in the case of a subsequent
ance under which the real property is
transfer, the transferee, for the period
during which the property is used for obtained and to the nature of the grant
the purpose for which the Federal fi- and the grantee. In such event, if a
nancial assistance is extended or for transferee of real property proposes to
another purpose involving the provi- mortgage or otherwise encumber the
sion of similar services and benefits or real property as security for financing
for as long as the recipient retains construction of new, or improvement of
ownership or possession of the prop- existing, facilities on such property for
erty, whichever is longer. In all other the purposes for which the property
cases, the assurance shall obligate the was transferred, the Agency may agree,
recipient for the period during which upon request of the transferee and if
Federal financial assistance is ex- necessary to accomplish such financ-
tended pursuant to the application. ing, and upon such conditions as it
The Agency shall specify the form of deems appropriate to forbear the exer-
the foregoing assurances and the ex- cise of such right to revert title for so
tent to which like assurances will be long as the lien of such mortgage or
required of subgrantees, contractors, other encumbrance remains effective.
and subcontractors, successors in in- (3) Transfers of surplus property are
terest and other participants. Any such subject to regulations issued by the
assurance shall include provisions Administrator of General Services (41
which give the United States a right to
CFR 101–6.2).
seek its judicial enforcement.
413
(b) Every application by a State or a segregation of such school or school

State Agency, including a State Exten- system, and provides an assurance that
sion Service, but not including an ap- it will comply with such order, includ-
plication for aid to an institution of ing any future modification of such
higher education, continuing Federal order, or (2) submits a plan for the de-
financial assistance to which the regu- segregation of such school or school
lations in this part apply shall as a system which the responsible official of
condition to its approval and the the Department of Health, Education,
exension of any Federal financial as- and Welfare determines is adequate to
sistance pursuant to the application (1) accomplish the purposes of the Act and
contain or be accompanied by a state- this part, and provides reasonable as-
ment that the program is (or, in the surance that it will carry out such
case of a new program, will be) con- plan; in any case of continuing Federal
ducted in compliance with all require- financial assistance the said respon-
ments imposed by or pursuant to this sible official of the Department of
part, and (2) provide or be accompanied Health, Education, and Welfare may re-
by provision for such methods of ad- serve the right to redetermine, after
ministration for the program as are such period as may be specified by him,
found by the Agency to give reasonable the adequacy of the plan to accomplish
assurance that the applicant and all re- the purposes of the Act and this part
cipients of Federal financial assistance within the earliest practical time. In
under such program will comply with any case in which a final order of a
all requirements imposed by or pursu- court of the United States for the de-
ant to the regulations in this part: Pro- segregation of such school or school
vided, That where no application is re- system is entered after submission of
quired prior to payment, the State or such a plan, such plan shall be revised
State Agency, including a State Exten- to conform to such final order, includ-
sion Service, shall, as a condition to ing any future modification of such
the extension of any Federal financial order.
assistance, submit an assurance com-
plying with the requirements of para- [29 FR 16274, Dec. 4, 1964, as amended at 32
graphs (b)(1) and (2) of this section. FR 3967, Mar. 11, 1967; 35 FR 18383, Dec. 3,
(c) Assurances from institutions. The 1970; 38 FR 17926, July 5, 1973; 68 FR 53141,
Aug. 26, 2003]
assurance required with respect to an
institution of higher education, or any § 15.5 Compliance.
other institution, insofar as the assur-
ance relates to the institution’s prac- (a) Cooperation and assistance. Each
tices with respect to admission or Agency shall to the fullest extent prac-
other treatment of individuals or to ticable seek the cooperation of recipi-
the opportunity to participate in the ents in obtaining compliance with the
provision of services or other benefits regulations and this part and shall pro-
to such individuals, shall be applicable vide assistance and guidance to recipi-
to the entire institution. ents to help them comply voluntarily
(d) Recipients other than applicants. with the regulations in this part. As a
Each recipient not required to submit normal part of the administration of
an application for Federal financial as- Federal financial assistance covered by
sistance, shall furnish, as a condition the regulations in this part, designated
to the extension of any such assist- personnel will in their reviews and
ance, an assurance or statement as is other activities or as specifically di-
required of applicants under para- rected by the Agency, review the ac-
graphs (a), (b)(1) and (2) of this section. tivities of recipients to determine
(e) Elementary and secondary schools. whether they are complying with the
The requirements of paragraphs (a), regulations in this part. Reports by
(b), or (d) of this section with respect such personnel shall include state-
to any elementary or secondary school ments regarding compliance and in-
or school system shall be deemed to be stances, if any, of noncompliance. In

satisfied if such school or school sys- the event of noncompliance, the Agen-
tem (1) is subject to a final order of a cy shall seek to secure voluntary com-
court of the United States for the de- pliance by all appropriate means.
414
(b) Compliance reports. Each recipient assured them by the Act and the regu-
shall keep such records and submit to lations in this part.
the Agency timely, complete and accu- [29 FR 16274, Dec. 4, 1964, as amended at 29
rate compliance reports at such times, FR 16966, Dec. 11, 1964; 38 FR 17926, July 5,
and in such form and containing such 1973; 68 FR 51341, Aug. 26, 2003]
information, as the Agency may deter-
mine to be necessary to ascertain § 15.6 Complaints.
whether the recipient has complied or Any person who believes himself/her-
is complying with the regulations in self or any specific class of individuals
this part. In the case in which a pri- to be subjected to discrimination pro-
mary recipient extends Federal finan- hibited by the regulations in this part
cial assistance to any other recipient, may by himself/herself or by an author-
such other recipient shall also submit ized representative file with the Sec-
such compliance reports to the primary retary or any Agency a written com-
plaint. A complaint must be filed not
recipient as may be necessary to enable
later than 180 days from the date of the
the primary recipient to carry out its
alleged discrimination, unless the time
obligations under the regulations in for filing is extended by the Agency or
this part. In general, recipients should by the Secretary. Such complaint shall
have available for the Agency racial be promptly referred to the Assistant
and ethnic data showing the extent to Secretary for Civil Rights. The com-
which members of minority groups are plaint shall be investigated in the man-
beneficiaries of federally assisted pro- ner determined by the Assistant Sec-
grams. retary for Civil Rights and such further
(c) Access to sources of information. action taken by the Agency or the Sec-
Each recipient shall permit access by retary as may be warranted.
authorized employees of this Depart- [50 FR 25687, June 21, 1985, as amended at 68
ment during normal business hours to FR 27449, May 20, 2003]
such of its books, records, accounts,
and other sources of information, and § 15.7 Intimidatory or retaliatory acts
its facilities as may be pertinent to as- prohibited.
certain compliance with the regula- No recipient or other person shall in-
tions in this part. Where any informa- timidate, threaten, coerce, or discrimi-
tion required of a recipient is in the ex- nate against any individual for the pur-
clusive possession of any other agency, pose of interfering with any right or
institution or person and this agency, privilege secured by section 601 of the
institution or person shall fail or Act or the regulations in this part, or
refuse to furnish this information, the because he has made a complaint, tes-
tified, assisted, or participated in any
recipient shall so certify in its report
manner in an investigation, pro-
and shall set forth what efforts it has ceeding, or hearing under the regula-
made to obtain the information. tions in this part. The identity of com-
(d) Information to beneficiaries and plainants shall be kept confidential ex-
participants. Each recipient shall make cept to the extent necessary to carry
available to participants, beneficiaries, out the purposes of the regulations in
and other interested persons such in- this part, including the conduct of any
formation regarding the provisions of hearing or judicial proceeding arising
the regulations in this part and their thereunder.
applicability to the program for Fed-
eral statutes, authorities, or other § 15.8 Procedure for effecting compli-
ance.
means by which Federal financial as-
sistance is extended and which the re- (a) General. If there appears to be a
cipient receives Federal financial as- failure or threatened failure to comply
sistance, and make such information with the regulations in this part, and if
available to them in such manner, as the noncompliance or threatened non-
compliance cannot be corrected by in-

the Department or its Agencies finds
formal means, compliance with the
necessary to apprise such persons of
regulations in this part may be effected
the protections against discrimination
by the suspension or termination of or
415
refusal to grant or to continue Federal nate or to refuse to grant or to con-

financial assistance, upon a finding, in tinue Federal financial assistance shall
accordance with the procedure herein- be limited to the particular political
after prescribed, or by any other means entity, or part thereof, or other appli-
authorized by law. Such other means cant or recipient as to whom such a
may include, but are not limited to, (1) finding has been made and shall be lim-
a reference to the Department of Jus- ited in its effect to the particular pro-
tice with a recommendation that ap- gram, or part thereof, in which such
propriate proceedings be brought to en- noncompliance has been so found.
force any rights of the United States (d) Other means authorized by law. No
under any law of the United States (in- action to effect compliance by any
cluding other titles of the Act), or any other means authorized by law shall be
assurance or other contractual undertaken until (1) the Secretary has deter-
taking, and (2) any applicable pro- mined that compliance cannot be se-
ceeding under State or local law. cured by voluntary means, (2) the re-
(b) Noncompliance with § 15.4. If an ap- cipient or other person has been noti-
plicant fails or refuses to furnish an as- fied of its failure to comply and of the
surance required under § 15.4 or other- action to be taken to effect compli-
wise fails or refuses to comply with the ance, and (3) the expiration of at least
requirements imposed by or pursuant ten days from the mailing of such no-
to that section, Federal financial as- tice to the recipient or other person.
sistance may be refused in accordance During this period of at least ten days,
with the procedures of paragraph (c) of additional efforts shall be made to per-
this section. The Department shall not suade the recipient or other person to
be required to provide assistance in comply with the regulations in this
such a case during the pendency of the part and to take such corrective action
administrative proceedings under such as may be appropriate.
paragraph, except that the Department
shall continue assistance during the § 15.9 Hearings.
pendency of such proceedings where (a) Opportunity for hearing. Whenever
such assistance is due and payable pur- an opportunity for a hearing is re-
suant to an application therefor ap- quired under the regulations in this
proved prior to the effective date of the part, reasonable notice shall be given
regulations in this part. by registered or certified mail, return
(c) Termination of or refusal to grant or receipt requested, to the affected appli-
to continue Federal financial assistance. cant or recipient. This notice shall ad-
No order suspending, terminating, or vise the applicant or recipient of the
refusing to grant or to continue Fed- action proposed to be taken, the spe-
eral financial assistance shall become cific provision under which the pro-
effective until (1) the Agency has ad- posed action against it is to be taken,
vised the applicant or recipient of his and the matters of fact or law asserted
failure to comply and has determined as the basis for this action, and either
that compliance cannot be secured by (1) fix a date not less than 20 days after
voluntary means, (2) there has been an the date of such notice within which
express finding on the record, after op- the applicant or recipient may request
portunity for hearing, of a failure by of the Secretary or the Agency that
the applicant or recipient to comply the matter be scheduled for hearing or
with the requirement imposed by or (2) advise the applicant or recipient
pursuant to the regulations in this that the matter in question has been
part, (3) the action has been approved set down for hearing at a stated place
by the Secretary pursuant to § 15.10(e), and time. The time and place so fixed
and (4) the expiration of 30 days after shall be reasonable and shall be subject
the Secretary has filed with the com- to change for cause. The complainant,
mittee of the House and the committee if any, shall be advised of the time and
of the Senate, having legislative juris- place of the hearing. An applicant or
diction over the program involved, a recipient may waive a hearing and sub-
full written report of the cir- mit written information and argument
cumstances and the grounds for such for the record. The failure of an appli-
action. Any action to suspend or termi- cant or recipient to request a hearing
416
under this subsection or to appear at a script shall be made of the oral evi-
hearing for which a date has been set dence except to the extent the sub-
shall be deemed to be a waiver of the stance thereof is stipulated for the
right to a hearing under section 602 of record. All decisions shall be based
the Act and the regulations in this part upon the hearing record and written
and consent to the making of a deci- findings shall be made.
sion on the basis of such information (e) Consolidated or joint hearings. In
as is available. cases in which the same or related
(b) Time and place of hearing. Hear- facts are asserted to constitute non-
ings shall be held at the offices of the compliance with these regulations with
Department in Washington, DC, at a
respect to two or more to which the
time fixed by the hearing officer or by
regulations in this part apply, or non-
the Secretary unless it is determined
that the convenience of the applicant compliance with the regulations in this
or recipient or of the Department re- part and the regulations of one or more
quires that another place be selected. other Federal Departments or Agencies
Hearings shall be held before a hearing issued under title VI of the Act, the
officer. Secretary may, by agreement with
(c) Right to counsel. In all proceedings such other Departments or Agencies,
under this section, the applicant or re- where applicable provide for the con-
cipient and the Department shall have duct of consolidated or joint hearings,
the right to be represented by counsel. and for the application to such hear-
(d) Procedures, evidence, and record. (1) ings of rules of procedure not incon-
The hearing, decision, and any admin- sistent with the regulations in this
istrative review thereof shall be con- part. Final decisions in such cases, in-
ducted in conformity with 5 U.S.C. 554– sofar as the regulations in this part are
557, and in accordance with such rules concerned, shall be made in accordance
of procedure promulgated by the Sec- with § 15.10.
retary as not inconsistent with this
section, relating to the conduct of the [29 FR 16274, Dec. 4, 1964, as amended at 35
hearing, giving of notices subsequent FR 18384, Dec. 3, 1970; 38 FR 17926, July 5,
1973; 68 FR 51341, Aug. 26, 2003]
to those provided for in paragraph (a)
of this section, taking of testimony,
§ 15.10 Decisions and notices.
exhibits, arguments and briefs, re-
quests for findings, and other related (a) Decision by hearing officer or Sec-
matters. Both the Department, and the retary. (1) The hearing officer shall ei-
applicant or recipient shall be entitled ther make an initial decision, if so au-
to introduce all relevant evidence on thorized, or certify the entire record
the issues as stated in the notice for including his recommended findings,
hearing or as determined by the hear- and proposed decision to the Secretary
ing officer conducting the hearing at for a final decision, and a copy of such
the outset of or during the hearing. initial decision or certification shall be
(2) Technical rules of evidence shall mailed to the applicant or recipient.
not apply to hearings conducted pursu- The applicant or recipient may within
ant to these regulations in this part, 30 days of the mailing of such notice of
but rules or principles designed to as- initial decision file with the Secretary
sure production of the most credible his exceptions to the initial decision,
evidence available and to subject testi-
with his reasons therefor.
mony to test by cross-examination
(2) In the absence of exceptions, the
shall be applied where reasonably nec-
essary by the hearing officer. The hear- Secretary may on his own motion
ing officer may exclude irrelevant, im- within 45 days after the initial decision
material, or unduly repetitious evi- serve on the applicant or recipient a
dence. All documents and other evi- notice that he will review the decision.
dence offered or taken for the record Upon the filing of such exceptions or of
such notice of review the Secretary
shall be open to examination by the

parties and opportunity shall be given shall review the initial decision and
to refute facts and arguments advanced issue his own decision thereon includ-
on either side of the issues. A tran- ing the reasons therefor. In the absence
417
of either exceptions or a notice of re- tions in this part, unless and until it
view the initial decision shall con- corrects its noncompliance and satis-
stitute the final decision of the Sec- fies the Agency that it will fully com-
retary. ply with the regulations in this part.
(b) Decisions on record or review. (g) Post termination proceedings. (1) An
Whenever a record is certified to the applicant or recipient adversely af-
Secretary for decision or he reviews fected by an order issued under para-
the decision of a hearing officer pursu- graph (f) of this section shall be re-
ant to paragraph (a), the applicant or stored to full eligibilty to receive Fed-
recipient shall be given reasonable op- eral financial assistance if it satisfies
portunity to file with him briefs or the terms and conditions of that order
other written statements of its conten- for such eligibility or if it brings itself
tions, and a copy of the final decision into compliance with the Act and the
of the Secretary shall be given in writ- regulations in this part and provides
ing to the applicant or recipient, and reasonable assurance that it will fully
to the complainant, if any. comply therewith. An elementary or
(c) Decisions on record where a hearing secondary school or school system
is waived. Whenever a hearing is waived which is unable to file an assurance of
pursuant to § 15.9(a), a decision shall be compliance with § 15.4 (a), (b), or (d)
made by the Secretary on the record shall be restored to full eligibility to
and a copy of such decision shall be receive Federal financial assistance if
given in writing to the applicant or re- it complies with the requirements of a
cipient, and to the complainant, if any. § 15.4(e) and is otherwise in compliance
(d) Rulings required. Each decision of with the Act and the regulations in
a hearing officer shall set forth his rul- this part.
ing on each finding, conclusion, or ex- (2) Any applicant or recipient ad-
ception presented, and shall identify versely affected by an order entered
the requirement or requirements im- pursuant to paragraph (f) of this sec-
posed by or pursuant to the regulations tion may at any time request the Sec-
in this part with which it is found that retary to restore fully its eligibility to
the applicant or recipient has failed to receive Federal financial assistance.
comply. Any such request shall be supported by
(e) Decision by Secretary. The Sec- information showing that the applicant
retary shall make any final decision or recipient has met the requirements
which provides for the suspension or of paragraph (g)(1) of this section. If
termination of, or the refusal to grant the Secretary determines that those
or continue Federal financial assist- requirements have been satisfied, he
ance, or the imposition of any other shall restore such eligibility.
sanction available under the regula- (3) If the Secretary denies any such
tions in this part or the Act. request, the applicant or recipient may
(f) Content of orders. The final deci- submit a request for a hearing in writ-
sion may provide for suspension or ter- ing, specifying why it believes the de-
mination of, or refusal to grant or con- nial to have been in error. It shall
tinue Federal financial assistance, in thereupon be given an expeditious
whole or in part, to which this regula- hearing, with a decision on the record,
tion applies, and may contain such in accordance with rules of procedure
terms, conditions, and other provisions set forth in subpart C of this part. The
as are consistent with and will effec- applicant or recipient will be restored
tuate the purposes of the Act and the to such eligibility if it proves at such a
regulations in this part, including pro- hearing, that it has satisfied the re-
visions designed to assure that no Fed- quirements of paragraph (g)(1) of this
eral financial assistance to which this section. While proceedings under this
regulation applies will thereafter be paragraph are pending, the sanctions
extended to the applicant or recipient imposed by the order issued under
determined by such decision to be in paragraph (f) of this section shall re-
main in effect.
default in its performance of an assur-

ance given by it pursuant to the regu- [29 FR 16274, Dec. 4, 1964, as amended at 35
lations in this part, or to have other- FR 18384, Dec. 3, 1970; 38 FR 17926, July 5,
wise failed to comply with the regula- 1973; 68 FR 51341, Aug. 26, 2003]
418
Office of the Secretary, USDA Pt. 15, Subpt. A, App.
§ 15.11 Judicial review. which the regulations in this part are

Action taken pursuant to section 602 inapplicable, or prohibit discrimina-
of the Act is subject to judicial review tion on any other ground.
as provided in section 603 of the Act. (b) Forms and instructions. Each Agen-
cy shall issue and promptly make
§ 15.12 Effect on other regulations; available forms and such implementing
forms and instructions. instructions and procedures consistent
(a) Effect on other regulations. All reg- with the regulations in this part as
ulations, orders, or like directions may be necessary. Each Agency in
heretofore issued by any officer of the making available Federal financial as-
Department which impose require- sistance to any program or activity
ments designed to prohibit any dis- may utilize contractual commitments
crimination against individuals on the in obtaining compliance with the regu-
ground of race, color, or national ori- lations in this part, including obtain-
gin under any program to which the ing compliance by recipients other
regulations in this part apply, and than the contracting recipient.
which authorize the suspension or ter- (c) Supervision and coordination. The
mination of or refusal to grant or to Secretary may from time to time as-
continue Federal financial assistance sign to officials of other Departments
to any applicant for or recipient of or Agencies of the Government with
such assistance for failure to comply the consent of such Department or
with such requirements, are hereby su- Agency, responsibilities in connection
perseded to the extent that such dis- with the effectuation of the purposes of
crimination is prohibited by the regu- title VI of the Act and the regulations
lations in this part, except that noth- in this part (other than responsibility
ing in the regulations in this part shall for final decision as provided in § 15.10)
be deemed to relieve any person of any including the achievement of effective
obligation assumed or imposed under coordination and maximum uniformity
any such superseded regulation, order, within the Department and within the
instruction, or like direction prior to Executive Branch of the Government
the effective date of the regulations in in the application of title VI and these
this part. Nothing in these regulations, regulations to similar programs and in
however, shall be deemed to supersede similar situations. Any action taken,
any of the following including future determination made, or requirement
amendments thereof: imposed by an official of another De-
(1) Executive Order 11246 and regula- partment or Agency acting under this
tions issued thereunder; or paragraph shall have the same effect as
(2) Executive Order 11063 and regula- though such action had been taken by
tions issued thereunder or any other the Secretary or any Agency of this
regulations or instructions insofar as Department.
they prohibit discrimination on the [29 FR 16274, Dec. 4, 1964, as amended at 38
ground of race, color, or national ori- FR 17927, July 5, 1973; 68 FR 51341, Aug. 26,
gin in any program or situation to 2003]
APPENDIX TO SUBPART A OF PART 15—LIST OF FEDERAL FINANCIAL ASSISTANCE

FROM USDA
The types of Federal assistance administered by the U.S. Department of Agriculture in-
clude but are not limited to the following:
Type of Federal Financial Assistance Authority
Administered by the Agricultural Cooperative Service
1. Cooperative Development ..................................................... Cooperative Marketing Act of 1926, 7 U.S.C. 451 et seq. Agri-
cultural Marketing Act of 1946, as amended, 7 U.S.C. 1621

et seq.
419
Pt. 15, Subpt. A, App. 7 CFR Subtitle A (1–1–12 Edition)
Administered by the Agricultural Marketing Service
2. Federal-State marketing improvement program ................... Agricultural Marketing Act of 1946, Section 204b, 7 U.S.C.
1623(b).
Administered by the Agricultural Research Service
3. Soil and Water Conservation ................................................ 7 CFR 3015.205(b); Department of Agriculture Organic Act of
1862 (7 U.S.C. 2201); the Agricultural Marketing Act of 1946,
as amended, (7 U.S.C. 427, 1621) and the Food Security Act
of 1985 (7 U.S.C. 1281 et seq.).
4. Animal Productivity ................................................................ 7 CFR 3015.205(b); Department of Agriculture Organic Act of
1862; (7 U.S.C. 2201); the Agricultural Marketing Act of 1946,
of 1985 (7 U.S.C. 1281 et seq.).
5. Plant Productivity ................................................................... 7 CFR 3015.205(b); Department of Agriculture Organic Act of
1862, (7 U.S.C. 2201); the Agricultural Marketing Act of 1946,
of 1985 (7 U.S.C. 1281 et seq.).
6. Commodity Conversion and Delivery .................................... 7 CFR 3015.205(b); Department of Agriculture Organic Act of
of 1985 (7 U.S.C. 1281 et seq.).
7. Human Nutrition .................................................................... 7 CFR 3015.205(b); Department of Agriculture Organic Act of
of 1985 (7 U.S.C. 1281 et seq.).
8. Integration of Agricultural Systems ....................................... 7 CFR 3015.205(b); Department of Agriculture Organic Act of
of 1985 (7 U.S.C. 1281 et seq.).
Administered by the Agricultural Stabilization and Conservation Service
9. Price support programs operating through producer asso- Agricultural Adjustment Act of 1938, 7 U.S.C. 1301–1393; Pub.
ciations, cooperatives and other recipients in which the re- L. 73–430; Commodity Credit Corporation Charter Act, 15
cipient is required to furnish specified benefits to producers U.S.C. 714 et seq.; Agricultural Act of 1949, as amended; 7
(e.g. tobacco, peanuts, cotton, rice, honey, dry edible U.S.C. 1421 et seq.; Pub. L. 81–439, as amended; Agri-
beans, tung oil, naval stores and soybeans price support culture and Food Act of 1961; Pub. L. 97–98; Dairy and To-
programs). bacco Adjustment Act of 1983; Pub. L. 98–180; Agricultural
Programs Adjustment Act of 1984; Pub. L. 98–258; Food Se-
curity Act of 1985; Pub. L. 99–198.
Administered by Cooperative State Research Service
10. 1890 Research Facilities ..................................................... Sec. 1433 of the National Agricultural Research, Extension and
Teaching Policy Act of 1977, Pub. L. 95–113, as amended; 7
U.S.C. 3195.
11. Payments to 1890 Land-Grant Colleges and Tuskegee In- Sec. 1445 of the National Agricultural Research, Extension and
stitute. Teaching Policy Act of 1977; Pub. L. 85–113, as amended; 7
U.S.C. 3222.
12. Cooperative Forestry Research (McIntire-Stennis Act) ...... Cooperative Forestry Research Act of October 10, 1962; Pub.
L. 87–788; 16 U.S.C. 582a–582q–7.
13. Payments to Agricultural Experiment Stations under Hatch Hatch Act of 1887, as amended; 7 U.S.C. 361a–361i.
Act.
14. Grants for Agricultural Research Competitive Research Sec. 2(b) of Pub. L. 89–106; 7 U.S.C. 450i(b), as amended.
Grants.
15. Grants for Agricultural Research, Special Research Sec. 2(c) of Pub. L. 89–106; 7 U.S.C. 450i(c), as amended.
Grants.
16. Animal Health and Disease Research ................................ National Agricultural Research, Extension and Teaching Policy
Act of 1977, Sec. 1433, Pub. L. 95–113, as amended; 7
U.S.C. 3195.
Administered by Extension Service
17. Home Economics ................................................................ Smith-Lever Act, as amended; 7 U.S.C. 341–349; District of
Columbia Post-secondary Education Reorganization Act, D.C.
Code, Sec. 31–1518; Title V, Rural Development Act of 1972,

as amended; 7 U.S.C. 2661 et seq. Sec. 14, Title 14, Na-
tional Agricultural Research, Extension and Teaching Policy
Act of 1977; Pub. L. 95–113, as amended.
420
18. 4-H Youth Development ...................................................... Smith-Lever Act, as amended; 7 U.S.C. 341–349; District of
Columbia Public Postsecondary Education Reorganization
Act, D.C. Code, Sec. 31–1518; Title VI, Rural Development
Act of 1972, as amended; 7 U.S.C. 2661 et seq.; Sections
1425 and 1444, National Agricultural Research, Extension
and Teaching Policy Act of 1977; Pub. L. 95–113, as amend-
ed; 7 U.S.C. 3221, 3175; Pub. L. 96–374, Sec. 1361(c); 7
U.S.C. 301 note; Pub. L. 97–98, Agriculture and Food Act of
1981, sec. 1401.
19. Agricultural and Natural Resources .................................... Smith-Lever Act, as amended; 7 U.S.C. 341–349; District of
Columbia Public Postsecondary Education Reorganization
Act, D.C. Code, Sec. 31–1518; Title V, Rural Development
Act of 1972, as amended; 7 U.S.C. 2661 et seq.; Sec. 14,
National Agricultural Research, Extension and Teaching Pol-
icy Act of 1977; Pub. L. 95–113, as amended; 7 U.S.C. 3101
et seq.
20. Community Resource Development ................................... Smith-Lever Act, as amended; 7 U.S.C. 341–349; District of
Columbia Public Postsecondary Reorganization Act, D.C.
Code 31–1518; Title V, Rural Development Act of 1972, as
amended; 7 U.S.C. 2661 et seq.; National Agricultural Re-
search, Extension and Teaching Policy Act of 1977; Pub. L.
95–113, as amended; 7 U.S.C. 3101 et seq.; Renewable Re-
sources Extension Act of 1978; 16 U.S.C. 1671–1676.
Administered by Federal Crop Insurance Corporation
21. Crop Insurance .................................................................... Federal Crop Insurance Act, as amended; 7 U.S.C. 1501–1520;
Title V of the Agricultural Adjustment Act of 1938; 52 Stat. 31
and Federal Crop Insurance Act of 1980; Pub. L. 96–385
(Sept. 26, 1980); 94 Stat. 1312–1319.
Administered by Farmers Home Administration
22. Farm Ownership Loans to install or improve recreational Section 302 of the Consolidated Farm and Rural Development
facilities or other nonfarm enterprises. Act, as amended; 7 U.S.C. 1923.
23. Farm Operating Loans to install or improve recreational Sec. 312 of the Consolidated Farm and Rural Development Act,
facilities or other nonfarm enterprises. as amended; 7 U.S.C. 1942.
24. Community Facility Loans ................................................... Sec. 306 of the Consolidated Farm and Rural Development Act,
as amended; 7 U.S.C. 1926.
25. Rural Rental Housing and related facilities for elderly per- Sec. 515, Title V, Housing Act of 1949, as amended; 42 U.S.C.
sons and families of low income. 1485.
26. Rural Cooperative Housing ................................................. Sec. 515, Title V, Housing Act of 1949, as amended; 42 U.S.C.
1485.
27. Rural Housing Site Loans ................................................... Sec. 524, Title V, Housing Act of 1949, as amended; 42 U.S.C.
1490d.
28. Farm and Labor Housing Loans ......................................... Sec. 514, Title V, Housing Act of 1949, as amended; 42 U.S.C.
1484.
29. Farm Labor Housing Grants ............................................... Sec. 516, Title V, Housing Act of 1949, as amended; 42 U.S.C.
1486.
30. Mutual self-help housing grants. (Technical assistance Sec. 523, Title V, Housing Act of 1949, as amended; 42 U.S.C.
grants). 1490c.
31. Technical and supervisory assistance grants ..................... Sec. 525, Title V, Housing Act of 1949, as amended; 42 U.S.C.
1490e.
32. Individual Recreation Loans ................................................ Sec. 304 of the Consolidated Farm and Rural Development Act,
33. Recreation Association Loans ............................................. Sec. 306 of the Consolidated Farm and Rural Development Act,
34. Private enterprise grants ..................................................... Sec. 310(B)(c) of the Consolidated Farm and Rural Develop-
ment Act, as amended; 7 U.S.C. 1932(c).
35. Indian Tribal Land Acquisition Loans .................................. Pub. L. 91–229, approved April 11, 1970; 25 U.S.C. 488.
36. Grazing Association Loans ................................................. Sec. 306 of the Consolidated Farm and Rural Development Act,
37. Irrigation and Drainage Associations .................................. Sec. 306 of the Consolidated Farm and Rural Development Act,
38. Area development assistance planning grant program ...... Sec. 306(a)(11) of the Consolidated Farm and Rural Develop-
ment Act, as amended; 7 U.S.C. 1926(a)(11).
39. Resource conservation and development loans ................. Sec. 32(e) of Title III, the Bankhead-Jones Farm Tenant Act; 7
U.S.C. 1011(e).
40. Rural Industrial Loan Program ............................................ Sec. 310B of the Consolidated Farm and Rural Development
Act, as amended; 7 U.S.C. 1932.
41. Rural renewal and resource conservation development, Sec. 31–35, Title III, Bankhead-Jones Farm Tenant Act; 7
land conservation and land utilization. U.S.C. 1010–1013a.
421
Pt. 15, Subpt. A, App. 7 CFR Subtitle A (1–1–12 Edition)
42. Soil and water conservation, recreational facilities, uses; Sec. 304 of the Consolidated Farm and Rural Development Act,
pollution abatement facilities loans. as amended; 7 U.S.C. 1924.
43. Watershed protection and flood prevention program ......... Sec. 1–12 of the Watershed Protection and Flood Prevention
Act, as amended; 16 U.S.C. 1001–1008.
44. Water and Waste Facility Loans and Grants ...................... Sec. 306 of the Consolidated Farm and Rural Development Act,
Administered by Food and Nutrition Service
45. Food Stamp Program .......................................................... The Food Stamp Act of 1977, as amended; 7 U.S.C. 2011–
2029.
46. Nutrition Assistance Program for Puerto Rico. This is the The Food Stamp Act of 1977, as amended; Sec. 19, 7 U.S.C.
Block Grant signoff of the Food Stamp Program for Puerto 2028.
Rico.
47. Food Distribution (Food Donation Program). (Direct Dis- Sec. 32, Pub. L. 74–320, 49 Stat. 744 (7 U.S.C. 612c); Pub. L.
tribution Program). 75–165. 50 Stat. 323 (15 U.S.C. 713c); secs. 6, 9, 60 Stat.
231, 233, Pub. L. 79–396 (42 U.S.C. 1755, 1758); sec. 416,
Pub. L. 81–439, 63 Stat. 1058 (7 U.S.C. 1431); sec. 402,
Pub. L. 91–665, 68 Stat. 843 (22 U.S.C. 1922); sec. 210,
Pub. L. 84–540, 70 Stat. 202 (7 U.S.C. 1859); sec. 9, Pub. L.
85–931, 72 Stat. 1792 (7 U.S.C. 1431b); Pub. L. 86–756, 74
Stat. 899 (7 U.S.C. 1431 note); sec. 709, Pub. L. 89–321, 79
Stat. 1212 (7 U.S.C. 1446a–1); sec. 3, Pub. L. 90–302, 82
Stat. 117 (42 U.S.C. 1761); secs. 409, 410, Pub. L. 93–288,
88 Stat. 157 (42 U.S.C. 5179, 5189); sec. 2, Pub. L. 93–326,
88 Stat. 286 (42 U.S.C. 1762a); sec. 16, Pub. L. 94–105, 89
Stat. 522 (42 U.S.C. 1766); sec. 1304(a), Pub. L. 95–113, 91
Stat. 980 (7 U.S.C. 612 note); sec. 311, Pub. L. 95–478, 92
Stat. 1533 (42 U.S.C. 3030a); sec. 10, Pub. L. 95–627, 92
Stat. 3623 (42 U.S.C. 1760); Pub. L. 98–8, 97 Stat. 35 (7
U.S.C. 612c note); (5 U.S.C. 301).
48. Food Distribution Program Commodities on Indian Res- The Food Stamp Act of 1977, as amended, Section 4(b), 7
ervations. U.S.C. 2013(b).
49. National School Lunch Program ......................................... National School Lunch Act, as amended; 42 U.S.C. 1751–1760.
50. Special Milk Program for Children (School Milk Program) Child Nutrition Act of 1966, Sec. 3, as amended, 42 U.S.C.
1772.
51. School Breakfast Program .................................................. Child Nutrition Act of 1966, Sec. 4, as amended; 42 U.S.C.
1773.
52. Summer Food Service Program for Children ..................... National School Lunch Act, Sec. 13, as amended; 42 U.S.C.
1761.
53. Child Care Food Program ................................................... National School Lunch Act, Sec. 17, as amended; 42 U.S.C.
1766.
54. Nutrition Education and Training Program .......................... Child Nutrition Act of 1966, Sec. 19, 42 U.S.C. 1788.
55. Special Supplemental Food Program for Women, Infants Child Nutrition Act of 1966, Sec. 17, 42 U.S.C. 1786.
and Children.
56. Commodity Supplemental Food Program. .......................... Agriculture and Consumer Protection Act of 1973, as amended;
7 U.S.C. 612c note.
57. Temporary Emergency Food Assistance Program ............. Temporary Emergency Food Assistance Act of 1983, as
amended; 7 U.S.C. 612c note.
58. State Administrative Expenses for Child Nutrition .............. Child Nutrition Act of 1966, Sec. 7, as amended; 42 U.S.C.
1776.
59. Nutrition Assistance Program for the Commonwealth of Trust Territory of the Pacific Island, 48 U.S.C. 1681 note.
the North Mariana Islands. (This is the Block Grant spin-off
of the Food Stamp Program for CNMI).
Administered by Forest Service
60. Permits for use of National Forests and National Grass- Act of June 4, 1897, as amended, 16 U.S.C. 551; Sec. 501 of
lands by other than individuals at a nominal or no charge. the Federal Land Policy Management Act of 1976, 43 U.S.C.
1761; Term Permit Act of March 4, 1915, as amended, 16
U.S.C. 4971, Secs. 3 and 4 of the American Antiquities Act of
June 8, 1906, 16 U.S.C. 432; Sec. 32 of the Bankhead-Jones
Farm Tenant Act, as amended, 7 U.S.C. 1011.
61. Youth Conservation Corps .................................................. Act of August 13, 1970, as amended, 16 U.S.C. 1701–1706.
Note: This is a Federally financed and conducted program on
National Forest land providing summer employment to teen-
age youth doing conservation work while learning about their

natural environment and heritage. Recruitment of recipient
youth is without regard to economic, social or racial classi-
fication. Policy requires that random selection from the quali-
fied applicant pool be made in a public forum.
422
62. Job Corps ............................................................................ 29 U.S.C. 1691–1701. Note: This is a Federally financed and
conducted program providing education and skills training to
young men and women. The U.S. Department of Labor is en-
tirely responsible for recruiting of recipient youth.
63. Permits for disposal of common varieties of mineral mate- Secs. 1–4 of the Act of July 31, 1947, as amended, 30 U.S.C.
rial from lands under the Forest Service jurisdiction for use 601–603, 611.
by other individuals at a nominal or no charge.
64. Use of Federal land for airports .......................................... Airport and Airway Improvement Act of 1982, as amended, 49
U.S.C. 2202, 2215. National Forest lands are exempt, Sec.
2215(c).
65. Conveyance of land to States or political subdivisions for Act of October 13, 1964, 78 Stat. 1089. Forest Road and Trail
widening highways, streets and alleys. Act, codified at 16 U.S.C. 532–538.
66. Payment of 25 percent of National Forest receipts to Act of May 23, 1908, as amended, 16 U.S.C. 500.
States for schools and roads.
67. Payment to Minnesota from National Forest receipts of a Sec. 5 of the Act of June 22, 1948, as amended, 16 U.S.C. 577
sum based on a formula. g–l.
68. Payment of 25 percent of net revenues from Title III, Sec. 33 of the Bankhead-Jones Farm Tenant Act, as amended,
Bankhead-Jones Farm Tenant Act lands to Counties for 7 U.S.C. 1012.
school and road purposes.
69. Cooperative action to protect, develop, manage and utilize Cooperative Forestry Assistance Act of 1976, 16 U.S.C. 2101–
forest resources on State and private lands. 2111.
70. Advance of funds for cooperative research ........................ Sec. 20 of the Granger-Thye Act of April 24, 1950, 16 U.S.C.
581–1.
71. Grants for support of scientific research ............................. Forest and Rangeland Renewable Resources Planning Act of
1974, as amended, 16 U.S.C. 1600 et seq.
72. Research Cooperation ........................................................ Forest and Rangeland Renewable Resources Research Plan-
ning Act of 1974, as amended, 16 U.S.C.
73. Grants to Maine, Vermont and New Hampshire for the Older American Act of 1965, as amended, 42 U.S.C. 3056.
purpose of assisting economically disadvantaged citizens
over 55 years of age.
74. Senior Community Service Employment, develop, manage Older American Act of 1965, as amended, 42 U.S.C. 3056.
and utilize forest resources on State and private lands.
75. Cooperative Law Enforcement ............................................ 16 U.S.C. 551a and 553.
76. Forest Utilization and Marketing ......................................... Cooperative Forestry Assistance Act of 1978, Pub. L. 95–313,
16 U.S.C. 1606, 2101–2111.
77. Fire prevention and suppression ......................................... Cooperative Forestry Assistance Act of 1978, Pub. L. 95–313,
Sec. 7, 16 U.S.C. 2106.
78. Assistance to States for tree planting ................................. Cooperative Forestry Assistance Act of 1978, Pub. L. 95–313,
Secs. 3, 6, 16 U.S.C. 2102, 2105.
79. Technical assistance forest management ........................... Cooperative Forestry Assistance Act of 1978, Pub. L. 95–313,
Sec. 8, 16 U.S.C. 2107.
80. Extramural Research (Cooperative Agreements and Range Renewable Resources Act of 1978; Rangeland and Lat-
Grants). est Renewable Resources Research Act; 16 U.S.C. 1641–
1647.
Administered by Food Safety and Inspection Service
81. Federal-State Cooperative Agreements and Talmadge- Federal Meat Inspection Act; 21 U.S.C. 601 et seq. Talmadge-
Aiken Agreements. Aiken Act; 7 U.S.C. 450. Poultry Products Inspection Act; 21
U.S.C. 451 et seq.
Administered by Office of International Cooperation and Development
82. Technical Assistance ........................................................... 7 U.S.C. 3291; 22 U.S.C. 2357; 22 U.S.C. 2392.
83. International Training ........................................................... 7 U.S.C. 3291; 22 U.S.C. 2357; 22 U.S.C. 2392.
84. Scientific and Technical Exchanges ................................... 7 U.S.C. 3291.
85. International Research ........................................................ 7 U.S.C. 3291.
Administered by Soil Conservation Service
86. Conservation Technical Assistance to Landusers .............. Sec. 1–6 and 17 of the Soil Conservation and Domestic Allot-
ment Act, 16 U.S.C. 590a–590f, 590g.
87. Plant Materials Conservation .............................................. Soil Conservation Act of 1935, Pub. L. 74–46; 49 Stat. 163, 16
U.S.C. 590(a–f).
88. Technical and financial assistance in Watershed Protec- Watershed Protection and Flood Protection Act, as amended,
tion and flood prevention. 16 U.S.C. 1001–1005, 1007–1008; Flood Control Act, as
amended and supplemented; 33 U.S.C. 701; 16 U.S.C.
1606(a) and Sec. 403–405 of the Agriculture Credit Act of
1978; 16 U.S.C. 2203–2205. Flood Prevention: Pub. L. 78–

534; 58 Stat. 905; 33 U.S.C. 701(b)(1); Pub. L. 81–516.
89. Technical and financial assistance in Watershed Protec- Emergency Operation (216); 68 Stat. 184; 33 U.S.C. 701(b)(1).
tion and flood prevention. Watershed Operation: Pub. L. 83–566; 68 Stat. 666:16
U.S.C. 1001 et seq.
423
90. Soil Survey .......................................................................... Sec. 1–6 and 17 of the Soil Conservation and Domestic Allot-
ment Act, as amended, 16 U.S.C. 590a–590f, 590g.
91. Rural Abandoned Mine Program ........................................ Surface Mining Control and Reclamation Act of 1977, Sec. 406;
Pub. L. 95–87, 30 U.S.C. 1236, 91 Stat. 460.
92. Resource Conservation and Development ......................... Soil Conservation Act of 1935; Pub. L. 74–46; Bankhead-Jones
Farm Tenant Act; Pub. L. 75–210, as amended, Pub. L. 89–
796; Pub. L. 87–703; Pub. L. 91–343; Pub. L. 92–419; Pub.
L. 97–98; 95 Stat. 1213; 16 U.S.C. 590a–590f, 590g.
93. Great Plains Conservation .................................................. Soil Conservation and Domestic Allotment Act, Pub. L. 74–46,
as amended by the Great Plains Act of August 7, 1956; Pub.
L. 84–1021, Pub. L. 86–793 approved September 14, 1980.
Pub. L. 91–118 approved November 1, 1969; Pub. L. 96–263
approved June 6, 1980; 16 U.S.C. 590a–590f, 590g.
[53 FR 48506, Dec. 1, 1988, as amended at 68 FR 51341, Aug. 26, 2003]
Subpart B [Reserved] § 15.63 Computation of time.

A period of time begins with the day
Subpart C—Rules of Practice and following the act or event and includes
Procedure for Hearings, Deci- the last day of the period, unless it is
sions and Administrative Re- a Saturday, Sunday, or legal holiday
view Under the Civil Rights observed in the District of Columbia, in
Act of 1964 which case it shall be the following
workday. When the period of time pre-
scribed or allowed is less than 7 days,
AUTHORITY: Sec. 602, 78 Stat. 252; 42 U.S.C.
intermediate Saturdays, Sundays, and
2000d–1; sec. 15.9(d) of subpart A to 7 CFR,
part 15, and laws referred to in the appendix
legal holidays shall be excluded from
to subpart A, part 15, title 7 CFR. the computation.
SOURCE: 30 FR 14355, Nov. 17, 1965, unless § 15.64 Parties.
otherwise noted.
The term party shall include an appli-
GENERAL INFORMATION cant or recipient with respect to whom
the agency has issued a notice of hear-
§ 15.60 Scope of rules. ing or opportunity to request a hearing
The rules of practice and procedure in accordance with subpart A of this
in this subpart supplement §§ 15.9 and part and § 15.81. The agency shall be
15.10 of subpart A of this part and gov- deemed a party to all proceedings.
ern the practice for hearings, decisions,
and administrative review conducted § 15.65 Appearance.
by the Department of Agriculture, pur- Any party may appear in person or
suant to title VI of the Civil Rights by counsel or authorized representative
Act of 1964, section 602 (78 Stat. 252) and participate fully in any proceeding.
and this part, title 7, CFR, except these
rules shall not apply to any stage of a § 15.66 Complainants not parties.
proceeding which has occurred prior to A person submitting a complaint pur-
the effective date hereof. suant to § 15.6 is not a party to the pro-
ceedings governed by this subpart, but
§ 15.61 Records to be public. may petition, after proceedings have
All documents and papers filed in any been commenced, to become an inter-
proceeding under this part may be in- vener.
spected and copied in the Office of the
Department Hearing Clerk. § 15.67 Intervener.
Any interested person or organiza-
§ 15.62 Definitions. tion may file a petition to intervene
All terms used in this subpart shall, which will include a statement of posi-
unless the context otherwise requires, tion and a statement of what peti-
have the same meaning as defined in tioner expects to contribute to the
subpart A of this part. hearing, and a copy of the petition will
424
be served on all parties. Such petition and other unsponsored written mate-
should be filed prior to the prehearing rial regarding matters in issue in a pro-
conference, or if none is held, before ceeding will be placed in the cor-
the commencement of the hearing, un- respondence section of the docket of
less the petitioner shows good cause for the proceeding. Such are not deemed
filing the petition later. The hearing part of the evidence or record.
officer may grant the petition if he be-
lieves that such participation will not FORM, EXECUTION, FILING AND SERVICE
unduly delay a hearing and will con- OF DOCUMENTS
tribute materially to the proceeding.
An intervener is not a party and may § 15.71 Form of documents to be filed.
not introduce evidence at a hearing, or All copies of documents filed in a
propound questions to a witness, unless proceeding shall be dated, signed in
the hearing officer determines that the ink, shall show the address and posi-
proposed additional evidence is rel- tion or title of the signatory, and shall
evant and will clarify the facts. The in- show the docket number and title of
tervener may submit and serve on all the proceeding on the front page.
parties a brief in support or opposition
to any brief of a party. All service and § 15.72 Filing.
notice required by and upon a party
All documents relating to a pro-
shall apply to an intervener.
ceeding under this subpart shall be
§ 15.68 Ex parte communications. filed in an original and two copies of
such document with the Office of the
(a) General. After proceedings have Hearing Clerk at Room 112, Adminis-
been commenced, any communication tration Building, Department of Agri-
or discussion ex parte, as regards the culture, Washington, D.C., 20250, during
merits of the proceeding or a factually regular business hours. Regular busi-
related proceeding, between an em- ness hours are every Monday through
ployee of the Department involved in Friday (legal holidays in the District of
the decisional process and a person not Columbia excepted) from 9 a.m. to 5:30
employed by the Department, and any p.m., eastern standard or daylight sav-
such communication or discussion being time, whichever is effective in the
tween any employee of the Depart- District of Columbia at the time.
ment, who is or has been engaged in
any way in the investigation or pros- § 15.73 Service.
ecution of the proceeding or a factually
related proceeding, and an employee of Service shall be made by the Hearing
the Department who is involved or may Clerk by personal delivery of one copy
be involved in the decisional process of to each person to be served or by mail-
a proceeding, except at a conference, ing by first-class mail, or air mail if
hearing or review proceeding under more than 300 miles, properly ad-
these rules is improper and prohibited. dressed with postage prepaid. When a
(b) Request for information. A request party or intervener has appeared by at-
for information about the status of a torney or representative, service upon
proceeding without discussing issues or such attorney or representative will be
expressing points of view and inquiries deemed proper service. The initial no-
with respect to procedural matters or tice of hearing, opportunity to request
an emergency request for an extension a hearing, or notice setting a date for
of time are not deemed ex parte com- a hearing shall be by certified mail, re-
munications. When practical all par- turn receipt requested.
ties should be notified of any request
for an extension of time. Communica- § 15.74 Date of service.
tion between an applicant or recipient The date of service shall be the day
and the agency or the Secretary with when the matter is deposited in the
respect to securing voluntary compli- U.S. mail or is delivered in person, ex-
ance with any requirement of subpart cept that the date of service of the ini-
A of this part is not prohibited. tial notice a hearing or notice of oppor-
(c) Unsponsored written material. Let- tunity to request a hearing or notice
ters expressing views or urging action setting a date for a hearing shall be the
425
date of its delivery, or of its attempted set for the hearing at a date not less
delivery if delivery is refused. than 20 days from the date applicant or
recipient is notified of the date set for
INITIAL NOTICE AND RESPONSE the hearing. Failure of the applicant or
recipient to request a hearing or to ap-
§ 15.81 How proceedings are com-
menced. pear at the date set shall be deemed a
waiver of the right to a hearing, under
Proceedings are commenced by mail- section 602 of the Act and the regula-
ing a notice to an applicant or recipi- tions in this part and consent to the
ent of alleged noncompliance with the making of a decision on such informa-
Act and the Secretary’s regulations
tion as is available which may be pre-
thereunder. The notice will be signed
sented for the record.
by the interested agency head or by the
Secretary and shall be filed with the § 15.84 Answer.
hearing clerk for proper service by the
hearing clerk according to the rules of In any case covered by § 15.82 or § 15.83
this subpart. The notice shall include the applicant or recipient shall file an
either a notice of hearing or notice of answer. Said answer shall admit or
opportunity to request a hearing as de- deny each allegation of the notice, un-
termined by the Secretary and shall less the applicant or recipient is with-
comply with the requirements of out knowledge, in which case the an-
§ 15.9(a). swer shall so state, and the statement
will be considered a denial. Failure to
§ 15.82 Notice of hearing and response file an answer shall be deemed an ad-
thereto. mission of all allegations of fact in the
A notice of hearing shall fix a date notice. Allegations of fact in the notice
not less than 30 days from the date of not denied or controverted by answer
service of the notice of a hearing on shall be deemed admitted. Matters in-
matters alleged in the notice. If the ap- tended to be offered as affirmative de-
plicant or recipient does not desire a fenses must be stated as a separate
hearing, he should so state in writing, part of the answer. The answer under
in which case the applicant or recipient § 15.82 shall be filed within 20 days from
shall have the right to submit written the date of service of the notice of
information and argument for the hearing. The answer under § 15.83 shall
record, and the additional right to fur- be filed within 20 days of service of the
ther participate in the proceeding. notice of opportunity to request a
Failure to appear at the time set for a hearing.
hearing, without good cause, shall be
deemed a waiver of the right to a hear- § 15.85 Amendment of notice or an-
ing under section 602 of the Act and the swer.
regulations in this part and consent to
The notice of hearing or notice of op-
the making of a decision on such infor-
portunity to request a hearing may be
mation as is available which may be
presented for the record. amended once as a matter of course be-
fore an answer thereto is served, and
§ 15.83 Notice of opportunity to re- each applicant or recipient may amend
quest a hearing and response there- his answer once as a matter of course
to. not later than 10 days before the date
A notice of opportunity to request a fixed for hearing but in no event later
hearing shall set a date not less than 20 than 20 days from the date of service of
days from service of said notice within his original answer. Otherwise a notice
which the applicant or recipient may or answer may be amended only by
file a request for a hearing, or may leave of the hearing officer. An appli-
wiave a hearing and submit written in- cant or recipient shall file his answer
formation and argument for the record, to an amended notice within the time
in which case, the applicant or recipi- remaining for filing the answer to the
ent shall have the right to further par- original notice or within 10 days after
ticipate in the proceeding. When the service of the amended notice, which-
applicant or recipient elects to file a ever period may be the longer, unless
request for a hearing, a time shall be the hearing officer otherwise orders.
426
§ 15.86 Consolidated or joint hearings. ings and proposed decision to the Sec-
retary for final decision.
Two or more proceedings against the
same respondent, or against different § 15.93 Time and place of hearing.
respondents in which the same or re-
lated facts are asserted to constitute When a notice of hearing is sent to
noncompliance, may be consolidated an applicant or recipient, the time and
for hearing or decision or both by the place of hearing shall be fixed by the
agency head, if he has the principal re- Secretary, and when the applicant or
sponsibility within the Department for recipient requests a hearing, the time
the administration of all the laws ex- and place shall be set by the hearing
tending the Federal financial assist- officer and in either case in conformity
ance involved. If laws administered by with § 15.9(b). The complainant, if any,
more than one agency head are in- shall be advised of the time and place
volved, such officials may by agree- of the hearing.
ment order consolidation for hearing.
The Secretary may order proceedings § 15.94 Disability of hearing officer.
in the Department consolidated for In the case of death, illness, disquali-
hearing with proceedings in other Fed- fication, or unavailability of the des-
eral Departments or agencies, by ignated hearing officer, another hear-
agreement with such other Depart- ing officer may be designated by the
ments or agencies. All parties to any Secretary to take his place. If such
proceeding consolidated subsequently death, illness, disqualification or un-
to service of the notice of hearing or availability occurs during the course of
notice of opportunity to request a a hearing, the hearing will be either
hearing shall be promptly served with continued under a substitute hearing
notice of such consolidation. officer, or terminated and tried de novo
in the discretion of the Secretary. In
HEARING OFFICER the absence of the designated hearing
officer any hearing examiner may rule
§ 15.91 Who presides. on motions and other interlocutory pa-
A hearing officer shall preside over pers.
all proceedings held under this part.
The hearing officer shall be a hearing § 15.95 Responsibilities and duties of
hearing officer.
examiner qualified under section 11 of
the Administrative Procedure Act (5 The hearing officer shall have the
U.S.C. 1001 et seq.), and designated to duty to conduct a fair hearing, to take
hold hearings under the regulations in all necessary action to avoid delay, and
this subpart or any person authorized to maintain order. He shall have all
to hold a hearing and make a final de- powers necessary to these ends, includ-
cision. The hearing officer will serve ing (but not limited to) the power to:
until he has made an initial decision, (a) Arrange and issue notice of the
certified the record to the Secretary, date, time and place of hearings, or,
or made a final decision if so author- upon due notice to the parties, to
ized. change the date, time and place of
hearings previously set.
§ 15.92 Designation of hearing officer. (b) Hold conferences to settle, sim-
Unless otherwise provided by an plify, or fix the issues in a proceeding,
order of the Secretary at the time the or to consider other matters that may
notice of alleged noncompliance pro- aid in the expeditious disposition of the
vided in § 15.81 is filed with the Office of proceeding.
the Hearing Clerk, the hearing shall be (c) Require parties and interveners to
held before a hearing examiner, who state their position with respect to the
shall be appointed by the Chief Hearing various issues in the proceeding.
Examiner, Office of Hearing Examiners (d) Administer oaths and affirma-
tions.
within five days after the filing of such

notice. Unless otherwise provided, the (e) Rule on motions, and other proce-
hearing examiner shall certify the en- dural items on matters pending before
tire record with his recommended find- him.
427
(f) Regulate the course of the hearing ferences, hearings, and decisions need
and conduct of parties therein. not be delayed pending disposition of
(g) Examine witnesses and direct wit- motions. Oral motions may be ruled on
nesses to testify. immediately. Motions submitted to the
(h) Receive, rule on, exclude or limit hearing officer not disposed of in sepa-
evidence. rate rulings or in his decision will be
(i) Fix the time for filing motions, deemed denied. Oral argument shall
petitions, briefs, or other items in mat- not be held on written motions unless
ters pending before him. expressly ordered. Interlocutory ap-
(j) In accordance with his authority peals from rulings on motions shall be
issue an initial decision, or rec- governed by § 15.123.
ommended findings and proposed deci-
sion, or final decision. HEARING PROCEDURES
(k) Take any other action a hearing
officer is authorized to take under § 15.110 Prehearing conferences.
these rules or subpart A of this part. (a) In any case in which it appears
that such procedure will expedite the
MOTIONS proceeding, the hearing officer may,
prior to the commencement of the
§ 15.101 Form and content. hearing, request the parties to meet
(a) General. Motions shall state the with him or to correspond with him re-
relief sought and the authority relied garding any of the following:
upon. If made before or after the hear- (1) Simplification and clarification of
ing, the motion shall be in writing and the issues;
filed with the hearing clerk with a (2) Necessity or desirability of
copy to all parties. If made at the hear- amendments to the pleadings;
ing, they should be stated orally but (3) Stipulations, admissions of fact
the hearing officer may require that and of the contents and authenticity of
any motion be reduced to writing and documents;
filed and served on all parties in the (4) Matters of which official notice
same manner as a formal motion. will be taken;
(b) Extension of time or postponement. (5) Limitation of the number of ex-
A request for an extention of time perts or other witnesses;
should be filed and served on all parties (6) Disposal of all motions; and
and should set forth the reasons for the (7) Such other matters as may expe-
request and may be granted upon a dite and aid in the disposition of the
showing of good cause. Answers to such proceeding.
requests are permitted, if made (b) The hearing officer shall enter in
promptly. the record a written summary of the
results of the conference or correspond-
§ 15.102 Responses to motions. ence with the parties.
Within 8 days or such reasonable
time as may be fixed by the hearing of- § 15.111 Purpose of hearing.
ficer, or Secretary, if the motion is (a) The hearing is directed to receiv-
properly addressed to him, any party ing factual evidence and expert opinion
may file a response to the motion, un- testimony related to the issues in the
less the motion is made at a hearing in proceeding. Argument will not be re-
which case an immediate response may ceived in evidence; rather it should be
be required. The hearing officer may presented in statements, memoranda
dispose of motions at a prehearing con- or briefs, as determined by the hearing
ference. officer. Brief opening statements,
which shall be limited to a statement
§ 15.103 Disposition of motions. of the party’s position and what he in-
The hearing officer may not sustain tends to prove, may also be made at
or grant a motion prior to expiration of hearings.
the time for filing responses thereto, (b) Hearings for the reception of evi-
but may overrule or deny such motion dence will be held only in cases where
without waiting on a response: Pro- issues of fact must be resolved in order
vided, however, That prehearing con- to determine whether the respondent
428
has failed to comply with one or more § 15.115 Affidavits.

applicable requirements of subpart A of
An affidavit, intended to be used as
this part. In any case where it appears
evidence without cross-examination of
from the answer of the applicant or re-
cipient to the notice of hearing or no- the affiant, will be filed and served on
tice of opportunity to request a hear- the parties at least 15 days prior to the
ing, from his failure timely to answer, hearing; and not less than seven days
or from his admissions or stipulations prior to hearing a party may file and
in the record that there are no matters serve written objections to any affi-
of material fact in dispute, the hearing davit on the ground that he believes it
officer may enter an order so finding, necessary to test the truth of asser-
and fixing the time for the submission tions therein by cross-examination. In
of evidence by the Government for the such event, the affidavit objected to
record. Thereafter, the proceedings will not be received in evidence unless
shall go to conclusion in accordance the affiant is made available for cross-
with subpart A of this part and the examination at the hearing or other-
rules of this subpart. An appeal from wise as prescribed by the hearing offi-
such order may be allowed in accord- cer. In absence of an objection being
ance with the rules for interlocutory filed within the time specified, such af-
appeal in § 15.123. fidavit will be received in evidence.
§ 15.112 Statement of position and § 15.116 Depositions.

brief. Upon such terms as may be just, the
The hearing officer may require all hearing officer, in his discretion, may
parties and any intervener to file a authorize the testimony of any witness
written statement of position or brief to be taken by deposition.
prior to the beginning of a hearing.
§ 15.117 Evidence.
§ 15.113 Testimony.
Irrelevant, immaterial, unreliable,
(a) Testimony shall be given orally and unduly repetitious evidence will be
under oath or affirmation by witnesses excluded, and technical rules of evi-
at the hearing, but the hearing officer, dence shall not apply but rules or prin-
in his discretion, may require or per- ciples designed to assure the most cred-
mit that the testimony of any witness ible evidence available and to subject
be prepared in writing and served on all testimony to test by cross-examination
parties in advance of the hearing. Such shall apply.
testimony may be adopted by the wit-
ness at the hearing and filed as part of § 15.118 Cross-examination.
the record thereof. Unless authorized
Cross-examination will be limited to
by the hearing officer, witnesses will
the scope of direct examination and
not be permitted to read prepared tes-
matters at issue in the hearing.
timony into the record. Except as pro-
vided in §§ 15.115 and 15.116, witnesses § 15.119 Objections.
shall be available at the hearing for
cross-examination. Objections to evidence shall be time-
(b) Proposed exhibits shall be ex- ly and briefly state the ground relied
changed either at a prehearing con- upon. The ruling of the hearing officer
ference, or otherwise prior to the hear- will be part of the record. Argument in
ing. Proposed exhibits not so ex- support of the objection will not be
changed may be denied admission as part of the record.
evidence unless good cause is shown
why they were not exchanged. The au- § 15.120 Exceptions to rulings of hear-
thenticity of all proposed exhibits ex- ing officer unnecessary.
changed prior to hearing will be Exceptions to rulings of the hearing
deemed admitted unless written objec- officer are unnecessary. It is sufficient
tion thereto is filed prior to the hear- that a party, at the time the ruling of
ing or unless good cause is shown at the hearing officer is sought, makes
the hearing for failure to file such writ- known the action which he desires the
ten objection. hearing officer to take, or his objection
429
to an action taken, and his grounds order, any party may serve upon an op-
therefor. posing party a written request for the
admission of the genuineness and au-
§ 15.121 Official notice. thenticity of any relevant documents
A public document, or part thereof, described in and exhibited with the re-
such as an official report decision, quest, or for the admission of the truth
opinion, or published scientific or eco- of any relevant matters of fact stated
nomic statistical data issued by any in the request. Each of the matters of
branch of the Federal or a State Gov- which an admission is requested shall
ernment which has been shown to be be deemed admitted, unless within a
reasonably available to the public, may period designated in the request (not
be offered for official notice and ac- less than 10 days after service thereof,
cepted in the record without further or within such further time as the
proof of authenticity. Where official hearing officer may allow upon motion
notice is to be taken, any party, on and notice) the party to whom the re-
timely request, shall have an oppor- quest is directed serves upon the re-
tunity to show the contrary. questing party a sworn statement ei-
ther denying specifically the matters
§ 15.122 Offer of proof. of which an admission is requested or
An offer of proof made in connection setting forth in detail the reasons why
with an objection taken to any ruling he cannot truthfully either admit or
of the hearing officer rejecting or ex- deny such matters. Copies of requests
cluding proposed oral testimony shall for admission and answers thereto
consist of a statement for the record of shall be served on all parties. Any ad-
the substance of the evidence which mission made by a party to such re-
counsel contends would be adduced by quest is only for the purposes of the
such testimony; and, if the excluded pending proceeding, or any proceeding
evidence consists of evidence in docu- or action instituted for the enforce-
mentary or written form or of ref- ment of any order entered therein, and
erence to documents or records, a copy shall not constitute an admission by
of such evidence shall be marked for him for any other purpose or be used
identification and shall accompany the against him in any other proceeding or
record as an offer of proof. action.
[31 FR 8586, June 21, 1966]
§ 15.123 Appeals from ruling of hear-
ing officer. THE RECORD
A ruling of the hearing officer may
not be appealed to the Secretary prior § 15.131 Official transcript.
to consideration of the entire pro- The hearing clerk will designate the
ceeding by the hearing officer except official reporter for all hearings. The
with the consent of the hearing officer official transcript of testimony taken,
and where he certifies on the record or together with any affidavits, exhibits,
in writing that the allowance of an in- depositions, briefs, or memoranda of
terlocutory appeal is clearly necessary law shall be filed with the hearing
to prevent exceptional delay, expense, clerk. Transcripts of testimony in
or prejudice to any part or substantial hearings will be supplied by the official
detriment to the public interest. If an reporter to the parties and to the pub-
appeal is allowed, any party may file a lic at rates not to exceed the maximum
brief with the Secretary within such rates fixed by the contract between the
period as the hearing officer directs. Department and the reporter. Upon no-
Oral argument will be heard in the dis- tice to all parties, the hearing officer
cretion of the Secretary. may authorize corrections to the tran-
script which involve matters of sub-
§ 15.124 Admissions as to facts and stance.
documents.
§ 15.132 Record for decision.
Not later than 15 days prior to the

scheduled date of the hearing except The transcript of testimony, exhib-
for good cause shown, or prior to such its, affidavits, depositions, briefs,
earlier date as the hearing officer may memoranda of law, and all pleadings,
430
motions, papers, and requests filed in initial decision serve upon the parties a
the proceeding, except the correspond- notice that he will review the decision
ence section of the docket, including and will give the parties reasonable op-
rulings, and any recommended findings portunity to file briefs or other written
and proposed decision, or initial deci- statements of contentions. At the expi-
sion shall constitute the exclusive ration of said time for filing briefs, the
record for final decision. Secretary will review the initial deci-
sion and issue a final decision thereon.
POSTHEARING PROCEDURES In the absence of either exceptions to
an initial decision or a notice or re-
§ 15.135 Posthearing briefs. view, the initial decision shall con-
The hearing officer shall fix a reason- stitute the final decision of the Sec-
able time for filing posthearing briefs, retary.
which may contain proposed findings of
fact and conclusions of law, and, if per- § 15.139 Oral argument.
mitted, reply briefs. Briefs should in- If any party desires to argue orally
clude a summary of the evidence relied before the Secretary on the review of
upon together with references to ex- recommended findings and proposed de-
hibit numbers and pages of the tran- cision, or an initial decision, he shall
script, with citations of the authorities so state at the time he files his excep-
relied upon. Briefs shall be filed in the tions or brief. The Secretary may grant
Office of the Hearing Clerk with a copy such request in his discretion. If grant-
to all parties. ed, he will serve notice of oral argu-
ment on all parties and will set forth
§ 15.136 Decisions and notices. the order of presentation and the
When the time for submission of amount of time allotted, and the time
posthearing briefs has expired the hear- and place of argument.
ing officer shall either make an initial
decision or final decision, if so author- § 15.140 Service of decisions.
ized, or certify the entire record in- All final decisions shall be promptly
cluding his recommended findings and served on all parties and the complain-
proposed decision to the Secretary for ant.
a final decision and a copy of such ini-
tial, or final decision or certification § 15.141 Contents of decision.
shall be mailed to the applicant or re- Each decision of a hearing officer
cipient and other parties by the hear- shall set forth his ruling on each find-
ing clerk. ing, conclusion, or exception presented,
and shall identify the requirement or
§ 15.137 Exceptions to initial or pro- requirements imposed by or pursuant
posed decision. to the regulations in this part with
Within 30 days of the mailing of such which it is found that the applicant or
notice of initial or recommended find- recipient has failed to comply.
ings and proposed decision, the appli-
cant or recipient and other parties may § 15.142 Content of orders.
file with the hearing clerk for consider- The final decision may provide for
ation by the Secretary exceptions to suspension or termination of, or refusal
the initial or recommended findings to grant or continue Federal financial
and proposed decision, with reasons assistance, in whole or in part, under
therefor. Each party will be given rea- the program involved, and may contain
sonable opportunity to file briefs or such terms, conditions, and other pro-
other written statements of conten- visions as are consistent with and will
tions in which the party may request effectuate the purposes of the Act and
that the decision be modified, reversed, the regulations in this part, including
affirmed or adopted. provisions designed to assure that no
Federal financial assistance will there-
§ 15.138 Review of initial decision.
after be extended under such program

In the absence of exceptions to an to the applicant or recipient deter-
initial decision, the Secretary may on mined by such decision to be in default
his own motion within 45 days after an in its performance of an assurance
431
given by it pursuant to the regulations 15a.23 Recruitment.

in this part, or to have otherwise failed
Subpart D—Discrimination on the Basis of
to comply with the regulations in this
Sex in Education Programs and Activi-
part, unless and until it corrects its
ties Prohibited
noncompliance and satisfies the Agen-
cy that it will fully comply with the 15a.31 Education programs and activities.
regulations in this part. 15a.32 Housing.
15a.33 Comparable facilities.
§ 15.143 Decision where financial as- 15a.34 Access to course offerings.
15a.35 Access to schools operated by
sistance affected.
L.E.A.s.
The Secretary shall make any final 15a.36 Counseling and use of appraisal and
decision which provides for the suspen- counseling materials.
15a.37 Financial assistance.
sion or termination of, or the refusal to
15a.38 Employment assistance to students.
grant or continue Federal financial as- 15a.39 Health and insurance benefits and
sistance, or the imposition of any other services.
sanction available under the regula- 15a.40 Marital or parental status.
tions in this part or the Act. 15a.41 Athletics.
15a.42 Textbooks and curricular material.
PART 15a—EDUCATION PRO- Subpart E—Discrimination on the Basis of

GRAMS OR ACTIVITIES RECEIV- Sex in Employment in Education Pro-
ING OR BENEFITTING FROM FED- grams and Activities Prohibited
ERAL FINANCIAL ASSISTANCE 15a.51 Employment.
15a.52 Employment criteria.
Subpart A—Introduction 15a.53 Recruitment.
15a.54 Compensation.
Sec. 15a.55 Job classification and structure.
15a.1 Purpose and effective date. 15a.56 Fringe benefits.
15a.2 Definitions. 15a.57 Marital or parental status.
15a.3 Remedial and affirmative action and 15a.58 Effect of State or local law or other
self-evaluation. requirements.
15a.59 Advertising.
15a.4 Assurance required.
15a.60 Pre-employment inquiries.
15a.5 Effect of other requirements. 15a.61 Sex as a bona-fide occupational qual-
15a.6 Effect of employment opportunities. ification.
15a.7 Designation of responsible employee
and adoption of grievance procedures. Subpart F—Procedures (Interim)
15a.8 Dissemination of policy.
15a.71 Interim procedures.
Subpart B—Coverage APPENDIX TO SUBPART F
AUTHORITY: Title IX of the Education
15a.11 Application.
Amendments of 1972, Pub. L. 92–318, as
15a.12 Educational institutions controlled amended by sec. 3 of Pub. L. 93–568, 88 Stat.
by religious organizations. 1855 and sec. 412 of Pub. L. 94–482, 90 Stat.
15a.13 Military and merchant marine edu- 2234 (except secs. 904 and 906 thereof); 20
cational institution. U.S.C. 1681, 1682, 1683, 1685, 1686.
15a.14 Membership practices of certain or-
ganizations. SOURCE: 44 FR 21610, April 11, 1979, unless
otherwise noted.
15a.15 Exempt activities.
15a.16 Admission.
15a.17 Education institutions eligible to Subpart A—Introduction
submit transition plans.
15a.18 Transition plans. § 15a.1 Purpose and effective date.
The purpose of this part is to effec-
Subpart C—Discrimination on the Basis of tuate title IX of the Education Amend-
Sex in Admission and Recruitment Pro- ments of 1972, as amended by Public
hibited Law 93–568, 88 Stat. 1855 and Public
Law 94–482, 90 Stat. 2234 (except sec-

15a.21 Admission.
tions 904 and 906 of those Amendments)
15a.22 Preference in admission.
which is designed to eliminate (with
certain exceptions) discrimination on
432
Office of the Secretary, USDA § 15a.2
the basis of sex in any education pro- ent, or in recognition of public interest
gram or activity receiving Federal fi- to served thereby, or permission to use
nancial assistance, whether or not such Federal property or any interest there-
program or activity is offered or spon- in without consideration.
sored by an educational institution as (5) Any other contract, agreement, or
defined in this part. arrangement which has as one of its
purposes the provision of assistance to
§ 15a.2 Definitions. any education program or activity, ex-
As used in this part, the term: cept a contract of insurance or guar-
(a) Title IX means title IX of the Edu- anty.
cation Amendments of 1972, Public Law (e) Recipient means the State or polit-
92–318, as amended by section 3 of Pub- ical subdivision thereof, of any instru-
lic Law 93–568, 88 Stat. 1855 and section mentality of a State or political sub-
412 of Public Law 94–482, 90 Stat. 2234 division thereof, any public or private
(except sections 904 and 906 thereof); 20 agency, institution, or organization, or
U.S.C. 1681, 1682, 1683, 1685, 1686. other entity, or any person, to whom
(b) Department means the Department Federal financial assistance is ex-
of Agriculture, and includes each of its tended directly or through another re-
operating agencies and other organiza- cipient and which operates an edu-
tional units. cation program or activity which re-
(c) Secretary means the Secretary of ceives or benefits from such assistance,
Agriculture or any officer or employees including any subunit, successor, as-
of the Department to whom the Sec- signee, or transferee thereof.
retary has heretofore delegated, or to (f) Applicant means one who submits
whom the Secretary may hereafter del- an application, request, or plan re-
egate, the authority to act for the Sec- quired to be approved by a Department
retary under the regulations in this official, or by a recipient, as a condi-
part. tion to becoming a recipient.
(d) Federal financial assistance means (g) Educational institution means a
any of the following, when authorized local educational agency (L.E.A.) as
or extended under a law administered defined by section 801(f) of the Elemen-
by the Department: tary and Secondary Education Act of
(1) A grant or loan of Federal finan- 1965 (20 U.S.C. 881), a preschool, a pri-
cial assistance, including vate elementary or secondary school,
(i) The acquisition, construction, ren- or an applicant or recipient of the type
ovation, restoration, or repair of a defined by paragraph (h), (i), (j), or (k)
building or facility or any portion of this section.
thereof; and (h) Institution of graduate higher edu-
(ii) Scholarships, loans, grants, wages cation means an institution which:
or other funds extended to any entity (1) Offers academic study beyond the
for payment to or on behalf of students bachelor of arts or bachelor of science
admitted to that entity, or extended degree, whether or not leading to a cer-
directly to such students for payment tificate of any higher degree in the lib-
to that entity. eral arts and sciences; or
(2) A grant of Federal real or per- (2) Awards any degree in a profes-
sonal property or any interest therein, sional field beyond the first profes-
including surplus property, and the sional degree (regardless of whether
proceeds of the sale or transfer of such the first professional degree in such
property, if the Federal share of the field is awarded by an institution of
fair market value of the property is undergraduate higher education or pro-
not, upon such sale or transfer, prop- fessional education); or
erly accounted for to the Federal Gov- (3) Awards no degree and offers no
ernment. further academic study, but operates
(3) Provision of the services of Fed- ordinarily for the purpose of facili-
eral personnel. tating research by persons who have
(4) Sale or lease of Federal property received the highest graduate degree in
of any interest therein at nominal con- any field of study.
sideration, or at consideration reduced (i) Institution of undergraduate higher
for the purpose of assisting the recipi- education means:
433
§ 15a.3 7 CFR Subtitle A (1–1–12 Edition)
(1) An institution offering at least which admits students of both sexes

two but less than four years of college without discrimination.
level study beyond the high school (p) Educational recipient means an
level, leading to a diploma or an asso- educational institution as defined in
ciate degree, or wholly or principally § 15a.2(g) and every other recipient
creditable toward a baccalaureate de- which has education as a significant
gree; or purpose.
(2) An institution offering academic (q) Education program or activity
study leading to a baccalaureate de- means:
gree; or
(1) Every program or activity oper-
(3) An agency or body which certifies
ated by an educational recipient; and
credentials or offers degrees, but which
may or may not offer academic study. (2) Every program or activity oper-
(j) Institution of professional education ated by other recipients where a sig-
means an institution (except any insti- nificant purpose of the finanical assist-
tution of undergraduate higher edu- ance is education,
cation) which offers a program of aca- (r) United States means the States of
demic study that leads to a first profes- the United States, the District of Co-
sional degree in a field for which there lumbia, Puerto Rico, the Virgin Is-
is a national specialized accrediting lands, American Samoa, Guam, Wake
agency recognized by the United States Island, the Canal Zone, and the terri-
Commissioner of Education. tories and possessions of the United
(k) Institution of vocational education States, and the term State means any
means a school or institution (except one of the foregoing.
an institution of professional or grad-
uate or undergraduate higher edu- § 15a.3 Remedial and affirmative ac-
cation) which has as its primary pur- tion and self-evaluation.
pose preparation of students to pursue (a) Remedial action. If the Secretary
a technical, skilled, or semiskilled oc- finds that a recipient has discriminated
cupation or trade, or to pursue study in against persons on the basis of sex in
a technical field, whether or not the an education program or activity, such
school or institution offers certificates, recipient shall take such remedial ac-
diplomas, or degrees and whether or tion as the Secretary deems necessary
not it offers fulltime study. to overcome the effects of such dis-
(l) Administratively separate unit crimination.
means a school, department or college (b) Affirmative action. In the absence
of an educational institution (other of a finding of discrimination on the
than a local educational agency) ad- basis of sex in an education program or
mission to which is independent of ad- activity, a recipient may take affirma-
mission to any other component of
tive action to overcome the effects of
such institution.
conditions which resulted in limited
(m) Admission means selection for
participation therein by persons of a
part-time, full-time, special, associate,
particular sex. Nothing herein shall be
transfer, exchange, or any other enroll-
interpreted to alter any affirmative ac-
ment, membership, participation, or
matriculation in or at an education tion obligations which a recipient may
program or activity operated by a re- have under Executive Order 11246.
cipient. (c) Self-evaluation. Each recipient
(n) Student means a person who has shall, within one year of the effective
gained admission. date of this part:
(o) Transition plan means a plan sub- (1) Evaluate in terms of the require-
ject to the approval of the United ments of this part, its current policies
States Commissioner of Education pur- and practices and the effects thereof
suant to section 901(a) of the Education concerning admission of students,
Amendments of 1972, under which an treatment of students, and employ-
ment of both academic and non-aca-
educational institution operates in

making the transition from being an demic personnel working in connection
educational institution which admits with the recipient’s education program
only students of one sex to being one or activity;
434
(2) Modify any of these policies and (c) Duration of obligation. (1) In the
practices which do not or may not case of Federal financial assistance ex-
meet the requirements of this part; and tended to provide real property or
(3) Take appropriate remedial steps structures thereon, such assurance
to eliminate the effects of any dis- shall obligate the recipient or, in the
crimination which resulted or may case of a subsequent transfer, the
have resulted from adherence to these transferee, for the period during which
policies and practices. the real property or structures are used
(d) Availability of self-evaluation and to provide an education program or ac-
related materials. Recipients shall main- tivity.
tain on file for at least three years fol- (2) In the case of Federal financial as-
lowing the effective date of this part or sistance extended to provide personal
completion of the evaluation required property, such assurances shall obli-
under paragraph (c) of this section, gate the recipient for the period during
whichever is longer, and shall provide which it retains ownership or posses-
to the Secretary upon request, a de- sion of the property.
scription of any modifications made (3) In all other cases such assurance
pursuant to paragraph (c)(1) of this sec- shall obligate the recipient for the pe-
tion and of any remedial steps taken riod during which Federal financial as-
pursuant to paragraph (c)(3) of this sec- sistance is extended.
tion. (d) Form. The Secretary will specify
the form of the assurances required by
§ 15a.4 Assurance required. paragraph (a) of this section and the
extent to which such assurances will be
(a) General. Every application for required of the applicant’s or recipi-
Federal financial assistance for any ent’s subgrantees, contractors, sub-
education program or activity shall as contractors, transferees, or successors
condition of its approval contain or be in interest.
accompanied by an assurance from the
applicant or recipient, satisfactory to § 15a.5 Effect of other requirements.
the Secretary, that each education pro- (a) Effect of other Federal provisions.
gram or activity operated by the appli- The obligations imposed by this part
cant or recipient and to which this part are independent of, and do not alter,
applies will be operated in compliance obligations not to discriminate on the
with this part. An assurance of compli- basis of sex imposed by Executive
ance with this part shall not be satis- Order 11246, as amended; title VII of
factory to the Secretary if the appli- the Civil Rights Act of 1964 (42 U.S.C.
cant or recipient to whom such assur- 2000e et seq.); the Equal Pay Act (29
ance applies fails to commit itself to U.S.C. 206 and 206(d); and any other act
take whatever remedial action is nec- of Congress or Federal regulation.
essary in accordance with § 15a.3(a) to (b) Effect of State or local law or other
eliminate existing discrimination on requirements. The obligation to comply
the basis of sex or to eliminate the ef- with this part is not obviated or allevi-
fects of past discrimination whether ated by any State or local law or other
occurring prior or subsequent to the requirement which would render any
submission to the Secretary of such as- applicant or student ineligible, or limit
surance. the eligibility of any applicant or stu-
(b) Transfers of property. If a recipient dent, on the basis of sex to practice
sells or otherwise transfers property fi- any occupation or profession.
nanced in whole or in part with Federal (c) Effect of rules or regulations of pri-
financial assistance to a transferee vate organizations. The obligation to
which operates any education program comply with this part is not obviated
or activity, and the Federal share of or alleviated by any rule or regulation
the fair market value of the property is of any organization, club, athletic or
not upon such sale or transfer properly other league, or association which
accounted for to the Federal Govern- would render any applicant or student
ment both the transferor and the trans- ineligible to participate or limit the
feree shall be deemed to be recipients, eligibility or participation of any ap-
subject to the provisions of subpart B. plicant or student, on the basis of sex,
435
in any education program or activity dents and parents of elementary and

operated by a recipient and which re- secondary school students, employees,
ceives or benefits from Federal finan- sources of referral of applicants for ad-
cial assistance. mission and employment and all
(d) Effect of compliance with HEW reg- unions or professional organizations
ulations. If a recipient is covered by the holding collective bargaining or profes-
title IX regulations issued by HEW, 45 sional agreements with the recipient,
CFR part 86, and has already complied that it does not discriminate on the
with the HEW requirements cor- basis of sex in the educational pro-
responding to §§ 15a.3(c), 15a.4(a), 15a.7 grams or activities which it operates,
(a) and (b), and 15a.8 (a) and (b), then and that it is required by title IX and
the requirements of those sections need this part not to discriminate in such a
not be duplicated in order to comply manner. Such notification shall con-
with this part. However, if the require- tain such information, and be made in
ments have not been applied to all pro- such manner, as the Secretary finds
grams funded by this Department, then necessary to apprise such persons of
the requirements will have to be met the protections against discrimination
as to those programs. assured them by title IX and this part,
but shall state at least that the re-
§ 15a.6 Effect of employment opportu- quirement not to discriminate in edu-
nities. cation programs and activities extends
The obligation to comply with this to employment therein and to admis-
part is not obviated or alleviated be- sion thereto unless subpart C does not
cause employment opportunities in any apply to the recipient, and that inquir-
occupation or profession are or may be ies concerning the application of title
more limited for members of one sex IX and this part to such recipient may
than for members of the other sex. be referred to the employee designated
pursuant to § 15a.7 or to the Secretary.
§ 15a.7 Designation of responsible em- (2) Each recipient shall make the ini-
ployee and adoption of grievance tial notification required by paragraph
procedures. (a)(1) of this section within 90 days of
(a) Designation of responsible employee. the effective date of this part or of the
Each recipient shall designate at least date this part first applies to such re-
one employee to coordinate its efforts cipient, whichever comes later, which
to comply with and carry out its re- notification shall include publication
sponsibilities under this part, including in:
any investigation of any complaint (i) Local newspapers,
communicated to such recipient alleg- (ii) newspapers and magazines oper-
ing its noncompliance with this part or ated by such recipient or by student,
alleging any actions which would be alumnae, or alumni groups for or in
prohibited by this part. The recipient connection with such recipient; and
shall notify all its students and em- (iii) memoranda or other written
ployees of the name, office address and communications distributed to every
telephone number of the employee or student and employees of such recipi-
employees appointed pursuant to this ent.
paragraph. (b) Publications. (1) Each recipient
(b) Complaint procedure of recipient. A shall prominently include a statement
recipient shall adopt and publish griev- of the policy described in paragraph (a)
ance procedures providing for prompt, of this section in each announcement,
and equitable resolution of student and bulletin, catalog, or application form
employee complaints alleging any ac- which it makes available to any person
tion which would be prohibited by this of a type described in paragraph (a) of
part. this section, or which is otherwise used
in connection with the recruitment of
§ 15a.8 Dissemination of policy. students or employees.
(a) Notification of policy. (1) Each re- (2) A recipient shall not use or dis-
cipient shall implement specific and tribute a publication of the type de-
continuing steps to notify applicants scribed in this paragraph which sug-
for admission and employment, stu- gests, by text or illustration, that such
436
recipient treats applicants, students, from taxation under section 501(a) of

employees differently on the basis of the Internal Revenue Code of 1954, the
sex except as such treatment is per- active membership of which consists
mitted by this part. primarily of students in attendance at
(c) Distribution. Each recipient shall institutions of higher education.
distribute without discrimination on (b) YMCA, YWCA, Girl Scouts, Boy
the basis of sex each publication de- Scouts and Camp Fire Girls. This part
scribed in paragraph (b) of this section, does not apply to the membership prac-
and shall apprise each of its admission tices of the Young Men’s Christian As-
and employment recruitment rep-
sociation, the Young Women’s Chris-
resentatives of the policy of non-
tian Association, the Girl Scouts, the
discrimination described in paragraph
Boy Scouts and Camp Fire Girls.
(a) of this section, and require such
representatives to adhere to such pol- (c) Voluntary youth service organiza-
icy. tions. This part does not apply to the
membership practices of voluntary
youth service organizations which are
Subpart B—Coverage exempt from taxation under section
§ 15a.11 Application. 501(a) of the Internal Revenue Code of
1954 and the membership of which has
Except as provided in this subpart,
been traditionally limited to members
this part 15a applies to every recipient
and to each education program or ac- of one sex and principally to persons of
tivity operated by such recipient which less than nineteen years of age.
receives or benefits from Federal finan-
§ 15a.15 Exempt activities.
cial assistance.
(a) These regulations shall not apply
§ 15a.12 Educational institutions con- to:
trolled by religious organizations. (1) Any program or activity of the
(a) Application. This part does not American Legion undertaken in con-
apply to an educational institution nection with the organization or oper-
which is controlled by a religious orga- ation of any Girls State Conference,
nization to the extent application of Girls Nation Conference, Boys State
this part would not be consistent with Conference, Boys Nation Conference, or
the religious tenets of such organiza- (2) The selection of students to at-
tion. tend any such conference.
(b) Exemption. An educational institu- (b) These regulations shall not pre-
tion which wishes to claim the exemp- clude father-son or mother-daughter
tion set forth in paragraph (a) of this activities at an educational institu-
section shall do so by submitting in tion, but if such activities are provided
writing to the Secretary a statement
for students of one sex, opportunities
by the highest ranking official of the
for reasonably comparable activities
institution identifying the provisions
shall be provided for students of the
of this part which conflict with a spe-
other sex.
cific tenet of the religious organiza-
tion. (c) These regulations shall not apply
with respect to any scholarship or
§ 15a.13 Military and merchant marine other financial assistance awarded by
educational institution. an institution of higher education to
This part does not apply to an edu- any individual because such individual
cational institution whose primary has received such award in any pageant
purpose is the training of individuals in which the attainment of such award
for a military service of the United is based upon a combination of factors
States or for the merchant marines. related to the personal appearance,
poise, and talent of such individual and
§ 15a.14 Membership practices of cer- in which participation is limited to in-
tain organizations. dividuals of one sex only, so long as
(a) Social fraternities and sororities. such pageant is in compliance with

This part does not apply to the mem- other nondiscrimination provisions of
bership sororities which are exempt Federal law.
437
§ 15a.16 Admission. § 15a.18 Transition plans.

(a) Admission to educational institu- (a) Submission of plans. An institution
tions prior to June 24, 1973, are not cov- to which § 15a.17 applies and which is
ered by this part. composed of more than one administra-
(b) Administratively separate units. For tively separate unit may submit either
the purpose only of this section, a single transition plan applicable to
§§ 15a.17 and 15a.18, and subpart C, each all such units, or a separate transition
administratively separate unit shall be plan applicable to each such unit.
deemed to be an educational institu- (b) Content of plans. In order to be ap-
tion. proved by the United States Commis-
(c) Application of subpart C. Except as sioner of Education, a transition plan
provided in paragraphs (c) and (d) of shall:
this section, subpart C applies to each (1) State the name, address, and Fed-
recipient. A recipient to which subpart eral Interagency Committee on Edu-
C applies shall not discriminate on the cation (FICE) Code of the educational
basis of sex in admission or recruit- institution submitting such plan, the
ment in violation of that subpart. administratively separate units to
(d) Educational institutions. Except as
which the plan is applicable, and the
provided in paragraph (e) of this sec-
name, address, and telephone number
tion as to recipients which are edu-
of the person to whom questions con-
cational institutions, subpart C applies
cerning the plan may be addressed. The
only to institutions of vocational edu-
person who submits the plan shall be
cation, professional education, grad-
the chief administrator or president of
uate higher education, and public insti-
the institution, or another individual
tutions of undergraduate higher edu-
legally authorized to bind the institu-
cation.
(e) Public institutions of undergraduate tion to all actions set forth in the plan.
higher education. Subpart C does not (2) State whether the educational in-
apply to any public institution of un- stitution or administratively separate
dergraduate higher education which unit admits students of both sexes, as
traditionally and continually from its regular students and, if so, when it
establishment has had a policy of ad- began to do so.
mitting only students of one sex. (3) Identify and describe with respect
to the educational institution or ad-
§ 15a.17 Education institutions eligible ministratively separate unit any obsta-
to submit transition plans. cles to admitting students without dis-
(a) Applications. This section applies crimination on the basis of sex.
to each educational institution to (4) Describe in detail the steps nec-
which subpart C applies which: essary to eliminate as soon as prac-
(1) Admitted only students of one sex ticable each obstacle so identified and
as regular students as of June 23, 1972; indicate the schedule for taking these
or steps and the individual directly re-
(2) Admitted only students of one sex sponsible for their implementation.
as regular students as of June 23, 1965, (5) Include estimates of the number
but thereafter admitted as regular stu- of students, by sex, expected to apply
dents, students of the sex not admitted for, be admitted to, and enter each
prior to June 23, 1965. class during the period covered by the
(b) Provision for transition plans. An plan.
educational institution to which this (c) Nondiscrimination. No policy or
section applies shall not discriminate practice of a recipient to which § 15a.17
on the basis of sex in admission or re- applies shall result in treatment of ap-
cruitment in violation of subpart C un- plicants to or students of such recipi-
less it is carrying out a transition plan ent in violation of subpart C unless
approved by the United States Com- such treatment is necessitated by an
missioner of Education as described in obstacle identified in paragraph (b)(3)
§ 15a.18, which plan provides for the of this section and a schedule for elimi-
elimination of such discrimination by nating that obstacle has been provided
the earliest practicable date but in no as required by paragraph (b)(4) of this
event later than June 23, 1979. section.
438
(d) Effects of past exclusion. To over- (1) Shall not apply any rule con-
come the effects of past exclusion of cerning the actual or potential paren-
students on the basis of sex, each edu- tal, family, or marital status of a stu-
cational institution to which § 15a.17 dent or applicant which treats persons
applies shall include in its transition differently on the basis of sex;
plan, and shall implement, specific (2) Shall not discriminate against or
steps designed to encourage individuals exclude any person on the basis of
of the previously excluded sex to apply pregnancy, childbirth, termination of
for admission to such institution. Such pregnancy, or recovery therefrom, or
steps shall include instituting recruit- establish or follow any rule or practice
ment programs which emphasize the which so discriminates or excludes;
institution’s commitment to enrolling (3) Shall treat disabilities related to
students of the sex previously ex- pregnancy, childbirth, termination of
cluded. pregnancy, or recovery therefrom in
the same manner and under the same
Subpart C—Discrimination on the policies as any other temporary dis-
Basis of Sex in Admission and ability or physical condition; and
Recruitment Prohibited (4) Shall not make pre-admission in-
quiry as to the marital status of an ap-
§ 15a.21 Admission. plicant for admission, including wheth-
(a) General. No person shall, on the er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’
basis of sex, be denied admission, or be A recipient may make pre-admission
subjected to discrimination in admis- inquiry as to the sex of an applicant for
sion, by any recipient to which this admission, but only if such inquiry is
subpart applies, except as provided in made equally of such applicants of both
§§ 15a.17 and 15a.18. sexes and if the results of such inquiry
(b) Specific prohibitions. (1) In deter- are not used in connection with dis-
mining whether a person satisfies any crimination prohibited by this part.
policy or criterion for admission, or in
making any offer of admission, a re- § 15a.22 Preference in admission.
cipient to which this subpart applies A recipient to which the subpart ap-
shall not: plies shall not give preference to appli-
(i) Give preference to one person over
cants for admission, on the basis of at-
another on the basis of sex, by ranking
tendance at any educational institu-
applicants separately on such basis, or
tion or other school or entity which ad-
otherwise,
mits as students only or predominantly
(ii) Apply numerical limitations upon
members of one sex, if the giving of
the number or proportion of persons of
such preference has the effect of dis-
either sex who may be admitted; or
criminating on the basis of sex in vio-
(iii) Otherwise treat one individual
differently from another on the basis of lation of this subpart.
sex. § 15a.23 Recruitment.
(2) A recipient shall not administer
or operate any test or other criterion (a) Nondiscriminatory recruitment. A
for admission which has a dispropor- recipient to which this subpart applies
tionately adverse effect on persons on shall not discriminate on the basis of
the basis of sex unless the use of such sex in the recruitment and admission
test or criterion is shown to predict of students. A recipient may be re-
validly success in the education pro- quired to undertake additional recruit-
gram or activity in question and alter- ment efforts for one sex as remedial ac-
native tests or criteria which do not tion pursuant to § 15a.3(a), and may
have such a disproportionately adverse choose to undertake such efforts as af-
effect are shown to be unavailable. firmative action pursuant to § 15a.3(b).
(c) Prohibitions relating to marital (b) Recruitment at certain institutions.
or parental status. In determining A recipient to which this subpart ap-
whether a person satisfies any policy plies shall not recruit primarily or ex-
or criterion for admission, or in mak- clusively at education institutions,
ing any offer of admission, a recipient schools or entities which admit as stu-
to which this subpart applies: dents only or predominantly members
439
of one sex, if such actions have the ef- any aid, benefit or service to students
fect of discriminating on the basis of or employees;
sex in violation of this subpart. (8) Otherwise limit any person in the
enjoyment of any right, privilege, ad-
Subpart D—Discrimination on the vantage, or opportunity.
Basis of Sex in Education Pro- (c) Assistance administered by a recipi-
ent educational institution to study at a
grams and Activities Prohib- foreign institution. A recipient edu-
ited cational institution may administer or
assist, in the administration of schol-
§ 15a.31 Education programs and ac-
tivities. arships, fellowships, or other awards
established by foreign or domestic
(a) General. Except as provided else- wills, trusts, or similar legal instru-
where in the part, no person shall, on ments, or by acts of foreign govern-
the basis of sex, be excluded from par- ments and restricted to members of
ticipation in, be denied the benefits of, one sex, which are designed to provide
or be subjected to discrimination under opportunities to study abroad, and
any academic, extracurricular, re- which are awarded to students who are
search, occupational training, or other already matriculating at or who are
education program or activity operated graduates of the recipient institution,
by a recipient which receives or bene- provided a recipient educational insti-
fits from Federal financial assistance. tution which administers or assists in
This subpart does not apply to actions the administration of such scholar-
of a recipient in connection with ad- ships, fellowships, or other awards
mission of its students to an education which are restricted to members of one
program or activity of (1) a recipient to sex provides, or otherwise makes avail-
which subpart C does not apply, or (2) able reasonable opportunities for simi-
an entity, not a recipient, to which lar studies for members of the other
subpart C would not apply if the entity sex. Such opportunities may be derived
were a recipient. from either domestic or foreign
(b) Specific prohibitions. Except as pro- sources.
vided in this subpart, in providing any (d) Programs not operated by recipient.
aid, benefit, or service to a student, a (1) This paragraph applies to any re-
recipient shall not, on the basis of sex: cipient which requires participation by
(1) Treat one person differently from any applicant, student, or employee in
another in determining whether such any education program or activity not
person satisfies any requirement or operated wholly by such recipient, or
condition for the provision of such aid, which facilitates, permits, or considers
benefit, or service; such participation as part of or equiva-
(2) Provide different aid, benefits, or lent to an education program or activ-
services or provide aid, benefits, or ity operated by such recipient, includ-
services in a different manner; ing participation in education con-
(3) Deny any person any such aid, sortia and cooperative employment and
benefit, or service; student-teaching assignments.
(4) Subject any person to separate or (2) Such recipient: (i) Shall develop
different rules or behavior, sanctions, and implement a procedure designed to
or other treatment; assure itself that the operator or spon-
(5) Discriminate against any person sor of such other education program or
in the application of any rules of ap- activity takes no action affecting any
pearance; applicant, student or employee of such
(6) Apply any rule concerning the recipient which this part would pro-
domicile or residence of a student, or hibit such recipient from taking; and
applicant, including eligibility for in- (ii) shall not facilitate, require, permit,
State fees and tuitions; or consider such participation if such
(7) Aid or perpetuate discrimination action occurs.
against any person by providing sig-

nificant assistance to any agency, or- § 15a.32 Housing.
ganization, or person which discrimi- (a) General. A recipient shall not, on
nates on the basis of sex in providing the basis of sex, apply different rules or
440
regulations, impose different fees or re- economics, music and adult education
quirements, or offer different services courses.
or benefits related to housing, except (a) With respect to classes and activi-
as provided in this section (including ties in physical education at the ele-
housing provided only to married stu- mentary school level, the recipient
dents). shall comply fully with this section as
(b) Housing provided by recipient. (1) A expeditiously as possible but in no
recipient may provide separate housing event later than one year from the ef-
on the basis of sex. fective date of this regulation. With re-
(2) Housing provided by a recipient to spect to physical education classes and
students of one sex, when compared to activities at the secondary and post-
that provided to students of the other secondary levels, the recipient shall
sex, shall be as a whole: comply fully with this section as expe-
(i) Proportionate in quantity to the ditiously as possible but in no event
number of students of that sex apply- later than three years from the effec-
ing for such housing; and tive date of this regulation.
(ii) Comparable in quality and cost to (b) This section does not prohibit
the student. grouping of students in physical edu-
(c) Other housing. (1) A recipient shall cation classes and activities by ability
not on the basis of sex, administer dif- as assessed by objective standards of
ferent policies or practices concerning individual performance developed and
occupancy by its students of housing applied without regard to sex.
other than provided by such recipient. (c) This section does not prohibit sep-
aration of students by sex within phys-
(2) A recipient which through solici-
ical education classes or activities dur-
tation, listing, approval of housing, or
ing participation in wrestling, boxing,
otherwise, assists any agency, organi-
rugby, ice hockey, football, basketball
zation, or person in making housing
and other sports, the purpose or major
available to any of its students, shall
activity of which involves bodily con-
take such reasonable action as may be
tact.
necessary to assure itself that such
(d) Where use of a single standard of
housing as provided to students of one
measuring skill or progress in a phys-
sex, when compared to that provided to
ical education class has an adverse ef-
students of the other sex, is as a whole:
fect on members of one sex, the recipi-
(i) Proportionate in quantity and (ii)
ent shall use appropriate standards
comparable in quality and cost to the
which do not have such effect.
student. A recipient may render such
(e) Portions of classes in elementary
assistance to any agency, organization,
and secondary schools which deal ex-
or person which provides all or part of
clusively with human sexuality may be
such housing to students only of one
conducted in separate sessions for boys
sex.
and girls.
§ 15a.33 Comparable facilities. (f) Recipients may make require-
ments based on vocal range or quality
A recipient may provide separate toi- which may result in a chorus or cho-
let, locker room, and shower facilities ruses of one or predominantly one sex.
on the basis of sex, but such facilities
provided for students of one sex shall § 15a.35 Access to schools operated by
be comparable to such facilities pro- L.E.A.s.
vided for students of the other sex. A recipient which is a local edu-
cational agency shall not, on the basis
§ 15a.34 Access to course offerings. of sex, exclude any person from admis-
A recipient shall not provide any sion to:
course or otherwise carry out any of its (a) Any institution of vocational edu-
education program or activity sepa- cation operated by such recipient; or
rately on the basis of sex, or require or (b) Any other school or educational
refuse participation therein by any of unit operated by such recipient, unless

its students on such basis, including such recipient otherwise makes avail-
health, physical education, industrial, able to such person, pursuant to the
business, vocational, technical, home same policies and criteria of admission,
441
courses, services, and facilities com- (2) Through solicitation, listing, ap-
parable to each course, service, and fa- proval, provision of facilities or other
cility offered in or through such services, assist any foundation, trust,
schools. agency, organization, or person which
provides assistance to any of such re-
§ 15a.36 Counseling and use of ap- cipient’s students in a manner which
praisal and counseling materials. discriminates on the basis of sex; or
(a) Counseling. A recipient shall not (3) Apply any rule or assist in appli-
discriminate against any person on the cation of any rule concerning eligi-
basis of sex in the counseling or guid- bility for such assistance which treats
ance of students or applicants for ad- persons of one sex differently from per-
mission. sons of the other sex with regard to
(b) Use of appraisal and counseling ma- marital or parental status.
terials. A recipient which uses testing (b) Financial aid established by certain
or other materials for appraising or legal instruments. (1) A recipient may
counseling students shall not use dif- administer or assist in the administra-
ferent materials for students on the tion of scholarships, fellowships, or
basis of their sex or use materials other forms of financial assistance es-
which permit or require different treat- tablished pursuant to domestic or for-
ment of students on such basis unless eign wills, trusts, bequests or similar
such different materials cover the legal instruments or by acts of a for-
same occupations and interest areas eign government which require that
and the use of such different materials awards be made to members of a par-
is shown to be essential to eliminate ticular sex specified therein: Provided,
sex bias. Recipients shall develop and That the overall effect of the award of
use internal procedures for ensuring such sex-restricted scholarships, fel-
that such materials do not discrimi- lowships and other forms of financial
nate on the basis of sex. Where the use assistance does not discriminate on the
of a counseling test or other instru- basis of sex.
ment results in a substantially dis- (2) To ensure nondiscriminatory
proportionate number of members of awards of assistance as required in
one sex in any particular course of paragraph (b)(1) of this section, recipi-
study or classification, the recipient ents shall develop and use procedures
shall take such action as is necessary under which:
to assure itself that such disproportion (i) Students are selected for award of
is not the result of discrimination in financial assistance on the basis of
the instrument or its application. nondiscriminatory criteria and not on
(c) Disproportion in classes. Where a the basis of availability of funds re-
recipient finds that a particular class stricted to members of a particular sex;
contains a substantially dispropor- (ii) An appropriate sex-restricted
tionate number of individuals of one scholarship, fellowship, or other form
sex, the recipient shall take such ac- of financial assistance is allocated to
tion as is necessary to assure itself each student selected under paragraph
that such disproportion is not the re- (b)(2)(i) of this section; and
sult of discrimination on the basis of (iii) No student is denied the award
sex in counseling or appraisal mate- for which he or she was selected under
rials or by counselors. paragraph (b)(2)(i) of this section be-
cause of the absence of a scholarship,
§ 15a.37 Financial assistance. fellowship, or other form of financial
(a) General. Except as provided in assistance designed for a member of
paragraphs (b) and (c) of this section, that student’s sex.
in providing financial assistance to any (c) Athletic scholarships. (1) To the ex-
of its students, a recipient shall not: tent that a recipient awards athletic
(1) On the basis of sex, provide dif- scholarships or grants-in-aids, it must
ferent amounts or types of such assist- provide reasonable opportunities for
ance, limit eligibility for such assist- such awards for members of each sex in
ance which is of any particular type or proportion to the number of students
source, apply different criteria or oth- of each sex participating in inter-
erwise discriminate; scholastic or intercollegiate athletics.
442
(2) Separate athletic scholarships or pregnancy, termination of pregnancy

grants-in-aid for members of each sex or recovery therefrom, unless the stu-
may be provided as part of separate dent requests voluntarily to partici-
athletic teams for members of each sex pate in a separate portion of the pro-
to the extent consistent with this para- gram or activity of the recipient.
graph and § 15a.41. (2) A recipient may require such a
student to obtain the certification of a
§ 15a.38 Employment assistance to stu- physician that the student is phys-
dents. ically and emotionally able to continue
(a) Assistance by recipient in making participation in the normal education
available outside employment. A recipi- program or activity so long as such a
ent which assists any agency, organiza- certification is required of all students
tion or person in making employment for other physical or emotional condi-
available to any of its students: tions requiring the attention of a phy-
(1) Shall assure itself that such em- sician.
ployment is made available without (3) A recipient which operates a por-
discrimination on the basis of sex; and tion of its education program or activ-
(2) Shall not render such services to ity separately for pregnant students,
any agency, organization, or person admittance to which is completely vol-
which discriminates on the basis of sex untary on the part of the student as
in its employment practices. provided in paragraph (b)(1) of this sec-
(b) Employment of students by recipi- tion shall ensure that the instructional
ents. A recipient which employs any of program in the separate program is
its students shall not do so in a manner comparable to that offered to non-preg-
which violates subpart E. nant students.
(4) A recipient shall treat pregnancy,
§ 15a.39 Health and insurance benefits childbirth, false pregnancy, termi-
and services. nation of pregnancy and recovery
In providing a medical, hospital, ac- therefrom in the same manner and
cident, or life insurance benefit, serv- under the same policies as any other
ice, policy, or plan to any of its stu- temporary disability with respect to
dents, a recipient shall not discrimi- any medical or hospital benefit, serv-
nate on the basis of sex, or provide ice, plan or policy which such recipient
such benefit, service, policy, or plan in administers, operates, offers, or par-
a manner which would violate subpart ticipates in with respect to students
E if it were provided to employees of admitted to the recipient’s educational
the recipient. This section shall not program or activity.
prohibit a recipient from providing any (5) In the case of a recipient which
benefit or service which may be used does not maintain a leave policy for its
by a different proportion of students of students, or in the case of a student
one sex than of the other, including who does not otherwise qualify for
family planning services. However, any leave under such a policy, a recipient
recipient which provides full coverage shall treat pregnancy, childbirth, false
health service shall provide gyneco- pregnancy, termination of pregnancy
logical care. and recovery therefrom as a justifica-
tion for a leave of absence for so long
§ 15a.40 Marital or parental status. a period of time as is deemed medically
(a) Status generally. A recipient shall necessary by the student’s physician,
not apply any rule concerning a stu- at the conclusion of which the student
dent’s actual or potential parental, shall be reinstated to the status which
family, or marital status which treats she held when the leave began.
students differently on the basis of sex.
(b) Pregnancy and related conditions. § 15a.41 Athletics.
(1) A recipient shall not discriminate (a) General. No person shall, on the
against any student, or exclude any basis of sex, be excluded from partici-
student from its education program or pation in, be denied the benefits of, be
activity, including any class or extra- treated differently from another person
curricular activity on the basis of such or otherwise be discriminated against
student’s pregnancy, childbirth, false in any interscholastic, intercollegiate,
443
club or intramural athletics, offered by rate teams will not constitute non-
the recipient, and no recipient shall compliance with this section, but the
provide any such athletics separately Secretary may consider the failure to
on such basis. provide necessary funds for teams for
(b) Separate teams. Notwithstanding one sex in assessing equality of oppor-
the requirements of paragraph (a) of tunity for members of each sex.
this section, a recipient may operate or (d) Adjustment period. A recipient
sponsor separate teams for members of which operates or sponsors inter-
each sex where selection for such scholastic, intercollegiate, club or in-
teams is based upon competitive skill tramural athletics at the elementary
or the activity involved is a contact school level shall comply fully with the
sport. However, where a recipient oper- section as expeditiously as possible but
ates or sponsors a team in a particular in no event later than one year from
sport for members of one sex but oper- the effective date of this regulation. A
ates or sponsors no such team for mem- recipient which operates or sponsors
bers of the other sex, and athletic op- interscholastic, intercollegiate, club or
portunities for members of that sex intramural athletics at the secondary
have previously been limited, members or post-secondary school level shall
of the excluded sex must be allowed to comply fully with this section as expe-
try-out for the team offered unless the ditiously as possible but in no event
sport involved is a contact sport. For later than three years from the effec-
the purposes of this part, contact tive date of this regulation.
sports include boxing, wrestling, rugby,
ice hockey, football, basketball, and § 15a.42 Textbooks and curricular ma-
other sports the purpose or major ac- terial.
tivity of which involves bodily contact. Nothing in this regulation shall be
(c) Equal opportunity. A recipient interpreted as requiring or prohibiting
which operates or sponsors inter- or abridging in any way the use of par-
scholastic, intercollegiate, club or in- ticular textbooks or curricular mate-
tramural athletics shall provide equal rials.
athletic opportunity for members of
both sexes. In determining whether Subpart E—Discrimination on the
equal opportunities are available the
Secretary will consider, among other Basis of Sex in Employment in
factors: Education Programs and Ac-
(1) Whether the selection of sports tivities Prohibited
and levels of competition effectively
accommodate the interests and abili- § 15a.51 Employment.
ties of members of both sexes; (a) General. (1) No person shall, on
(2) The provision of equipment and the basis of sex, be excluded from par-
supplies; ticipation in, be denied the benefits of,
(3) Scheduling of games and practice or be subjected to discrimination in
time; employment, or recruitment, consider-
(4) Travel and per diem allowance; ation, or selection therefor, whether
(5) Opportunity to receive coaching full-time or part-time, under any edu-
and academic tutoring; cation program or activity operated by
(6) Assignment and compensation of a recipient which receives or benefits
coaches and tutors; from Federal financial assistance.
(7) Provision of locker rooms, prac- (2) A recipient shall make all em-
tice and competitive facilities; ployment decisions in any education
(8) Provision of medical and training program or activity operated by such
facilities and services; recipient in a nondiscriminatory man-
(9) Provision of housing and dining ner and shall not limit, segregate, or
facilities and services; classify applicants or employees in any
(10) Publicity. way which could adversely affect any
Unequal aggregate expenditures for applicant’s or employee’s employment

members of each sex or unequal ex- opportunities or status because of sex.
penditures for male and female teams (3) A recipient shall not enter into
if a recipient operates or sponsors sepa- any contractual or other relationship
444
which directly or indirectly has the ef- § 15a.52 Employment criteria.

fect of subjecting employees or stu-
A recipient shall not administer or
dents to discrimination prohibited by
operate any test or other criterion for
this subpart, including relationships
with employment and referral agen- any employment opportunity which
cies, with labor unions, and with orga- has a disproportionately adverse effect
nizations providing or administering on persons on the basis of sex unless:
fringe benefits to employees of the re- (a) Use of such test or other criterion
cipient. is shown to predict validly successful
(4) A recipient shall not grant pref- performance in the position in ques-
erences to applicants for employment tion; and
on the basis of attendance at any edu- (b) Alternative tests or criteria for
cational institution or entity which ad- such purpose, which do not have such
mits as students only or predominantly disproportionately adverse effect, are
members of one sex, if the giving of shown to be unavailable.
such preferences has the effect of dis-
criminating on the basis of sex in vio- § 15a.53 Recruitment.
lation of this part. (a) Nondiscriminatory recruitment and
(b) Application. The provisions of this hiring. A recipient shall not discrimi-
subpart apply to: nate on the basis of sex in the recruit-
(1) Recruitment, advertising, and the ment and hiring of employees. Where a
process of application for employment; recipient has been found to be pres-
(2) Hiring, upgrading, promotion, ently discriminating on the basis of sex
consideration for and award of tenure, in the recruitment or hiring of employ-
demotion, transfer, layoff, termi- ees, or has been found to have in the
nation, application of nepotism poli- past so discriminated, the recipient
cies, right of return from layoff, and shall recruit members of the sex so dis-
rehiring; criminated against so as to overcome
(3) Rates of pay or any other form of the effects of such past or present dis-
compensation, and changes in com- crimination.
pensation; (b) Recruitment patterns. A recipient
(4) Job assignments, classifications shall not recruit primarily or exclu-
and structure, including position de- sively at entities which furnish as ap-
scriptions, lines of progression, and se- plicants only or predominantly mem-
niority lists; bers of one sex if such actions have the
(5) The terms of any collective bar- effect of discriminating on the basis of
gaining agreement; sex in violation of this subpart.
(6) Granting and return from leaves § 15a.54 Compensation.
of absence, leave for pregnancy, child-
birth, false pregnancy, termination of A recipient shall not make or enforce
pregnancy, leave for persons of either any policy or practice which, on the
sex to care for children or dependents, basis of sex:
or any other leave; (a) Makes distinctions in rates of pay
(7) Fringe benefits available by vir- or other compensation;
tue of employment, whether or not ad- (b) Results in the payment of wages
ministered by the recipient; to employees of one sex at a rate less
(8) Selection and financial support than that paid to employees of the op-
for training, including apprenticeship, posite sex for equal work on jobs the
professional meetings, conferences, and performance of which requires equal
other related activities, selection for skill, effort, and responsibility, and
tuition assistance, selection for which are performed under similar
sabbaticals and leaves of absence to working conditions.
pursue training;
(9) Employer-sponsored activities, in- § 15a.55 Job classification and struc-
cluding social or recreational pro- ture.
grams; and A recipient shall not:

(10) Any other term, condition, or (a) Classify a job as being for males
privilege of employment. or for females;
445
(b) Maintain or establish separate (b) Pregnancy. A recipient shall not

lines of progression, seniority lists, ca- discriminate against or exclude from
reer ladders, or tenure systems based employment any employee or applicant
on sex; or for employment on the basis of preg-
(c) Maintain or establish separate nancy, childbirth, false pregnancy, ter-
lines of progression, seniority systems, mination of pregnancy, or recovery
career ladders, or tenure systems for therefrom.
similar jobs, position descriptions, or (c) Pregnancy as a temporary disability.
job requirements which classify per- A recipient shall treat pregnancy,
sons on the basis of sex, unless sex is a childbirth, false pregnancy, termi-
bona-fide occupational qualification nation of pregnancy, and recovery
for the positions in question as set therefrom and any temporary dis-
forth in § 15a.61. ability resulting therefrom as any
other temporary disability for all job-
§ 15a.56 Fringe benefits. related purposes, including commence-
(a) ‘‘Fringe benefits’’ defined. For pur- ment, duration and extensions of leave,
poses of this part, fringe benefits means: payment of disability income, accrual
Any medical, hospital, accident, life in- of seniority and any other benefit or
surance or retirement benefit, service, service, and reinstatement, and under
policy or plan, any profit-sharing or any fringe benefit offered to employees
bonus plan, leave and any other benefit by virtue of employment.
or service of employment not subject (d) Pregnancy leave. In the case of a
to the provision of § 15a.54. recipient which does not maintain a
(b) Prohibitions. A recipient shall not: leave policy for its employees, or in the
(1) Discriminate on the basis of sex case of an employee with insufficient
with regard to making fringe benefits leave or accrued employment time to
available to employees or make fringe qualify for leave under such a policy, a
benefits available to spouses, families, recipient shall treat pregnancy, child-
or dependents of employees differently birth, false pregnancy, termination of
upon the basis of the employee’s sex; pregnancy and recovery therefrom as a
(2) Administer, operate, offer, or par- justification for a leave of absence
ticipate in a fringe benefit plan which without pay for a reasonable period of
does not provide either for equal peri- time, at the conclusion of which the
odic benefits for members of each sex employee shall be reinstated to the sta-
or for equal contributions to the plan tus which she held when the leave
by such recipient for members of each began or to a comparable position,
sex; or without decrease in rate of compensa-
(3) Administer, operate, offer, or par- tion or loss of promotional opportuni-
ticipate in a pension or retirement plan ties, or any other right or privilege of
which establishes different optional or employment.
compulsory retirement ages based on
sex or which otherwise discriminates in § 15a.58 Effect of State or local law or
benefits on the basis of sex. other requirements.
(a) Prohibitory requirements. The obli-
§ 15a.57 Marital or parental status. gation to comply with this subpart is
(a) General. A recipient shall not not obviated or alleviated by the exist-
apply any policy or take any employ- ence of any State or local law or other
ment action: requirement which imposes prohibi-
(1) Concerning the potential marital, tions or limits upon employment of
parental, or family status of an em- members of one sex which are not im-
ployee or applicant for employment posed upon members of the other sex.
which treats persons differently on the (b) Benefits. A recipient which pro-
basis of sex; or vides any compensation service, or ben-
(2) Which is based upon whether an efit to members of one sex pursuant to
employee or applicant for employment a State or local law or other require-

is the head of household or principal ment shall provide the same compensa-
wage earner in such employee’s or ap- tion, service, or benefit to members of
plicant’s family unit. the other sex.
446
Office of the Secretary, USDA Pt. 15a, Subpt. F, App.
§ 15a.59 Advertising. title VI of the Civil Rights Act of 1964

are hereby adopted and incorporated
A recipient shall not in any adver-
herein by reference. These procedures
tising related to employment indicate
may be found at 7 CFR 15.5–15.11 and 7
preference, limitation, specification, or
CFR 15.60 et seq.
discrimination based on sex unless sex
is a bona-fide occupational qualifica- APPENDIX TO SUBPART F OF PART 15a
tion for the particular job in question.
Programs covered by Title IX include, but
§ 15a.60 Pre-employment inquiries. are not limited to, the following:
1. Community Facilities Program. 7 U.S.C.
(a) Marital status. A recipient shall 1926(a)(1).
not make pre-employment inquiry as 2. Permits for use of National Forests. 16
to the marital status of an applicant U.S.C. 497; 16 U.S.C. 432; 7 U.S.C. 1011(c), (d).
for employment, including whether 3. Permits for use of Government-owned im-
such applicant is ‘‘Miss or Mrs.’’ provements and land used therewith by other
(b) Sex. A recipient may make pre- than individuals at a nominal charge. 16
employment inquiry as to the sex of an U.S.C. 580d.
applicant for employment, but only if 4. Revenue sharing payment to States: (a)
Payment of 25 percent of National Forest re-
such inquiry is made equally of such ceipts to States for schools and roads. 16
applicants of both sexes and if the re- U.S.C. 500. (b) Payment to New Mexico and
sults of such inquiry are not used in Arizona of proportion of National Forest re-
connection with discrimination prohib- ceipts for common-school fund. Sections 6
ited by this part. and 24, Act of June 20, 1910. 36 Stat. 557, 562,
573. (c) Payment of 25 percent of net revenues
§ 15a.61 Sex as a bona-fide occupa- from Title III, Bankhead-Jones Farm Tenant
tional qualification. Act, lands to counties for school and road
purposes. 7 U.S.C. 1012.
A recipient may take action other- 5. Technical assistance in forest manage-
wise prohibited by this subpart pro- ment. 16 U.S.C. 568c, 568d.
vided it is shown that sex is a bona fide 6. General forestry assistance. Annual Ap-
occupational qualification for that ac- propriation Acts commencing with the De-
tion, such that consideration of sex partment Appropriation Act of 1905; Organic
with regard to such action is essential Act of 1862, 7 U.S.C. 2201.
to successful operation of the employ- 7. Financial assistance to private timber or-
ganizations to carry out timber development
ment function concerned. A recipient
programs. 40 U.S.C. 204.
shall not take action pursuant to this 8. Advance of funds for cooperative research.
section which is based upon alleged 16 U.S.C. 581i-l.
comparative employment characteris- 9. Research cooperation. 16 U.S.C. 581 et seq.
tics or stereotyped characterizations of 10. Grants for research. 7 U.S.C. 450i.
one or the other sex, or upon pref- 11. Food Distribution Program. 7 U.S.C. 612c,
erence based on sex of the recipient, 1431; 42 U.S.C. 1755, 1758, 1761; 42 U.S.C. 1777.
employees, students, or other persons, 12. National School Lunch Program. 42
U.S.C. 1751 et seq.
but nothing contained in this section
13. Special Milk Program. 42 U.S.C. 1772.
shall prevent a recipient from consid- 14. School Breakfast Program. 42 U.S.C. 1773.
ering an employee’s sex in relation to 15. Special Food Service Program for Chil-
employment in a locker room or toilet dren. 42 U.S.C. 1761.
facility used only by members of one 16. Special Supplemental Food Program for
sex. Women, Infants, and Children. 42 U.S.C. 1786.
17. Cash grants to States for nutrition edu-
cation. 42 U.S.C. 1787, 1788.
Subpart F—Procedures (Interim) 18. Advisory services studies for farmers co-
operatives. 7 U.S.C. 451–457.
§ 15a.71 Interim procedures. 19. Cooperative Agricultural Extension Serv-
For the purposes of implementing ice. 7 U.S.C. 341–349; D.C. Code 31–1609.
this part during the period between its 20. Resource Conservation and Development
effective date and the final issuance by Program. 16 U.S.C. 590a.
21. Educational Aspects of Agricultural Mar-
the Department of a consolidated pro-
keting Act, 7 U.S.C. 1623–1624.
cedural regulation applicable to title 22. Hatch Act research programs. 7 U.S.C.
IX and other civil rights authorities 361a-i.
administered by the Department, the 23. Experiment Station Research Facilities. 7
procedural provisions applicable to U.S.C. 390a-k.
447
Pt. 15b 7 CFR Subtitle A (1–1–12 Edition)
24. McIntire-Stennis Cooperative Forestry 15b.21 Location and notification.
Research Program. 16 U.S.C. 582a-582a-7. 15b.22 Free appropriate public education.
25. Rural Development and Small Farm Re- 15b.23 Educational setting.
search and Education Program, 7 U.S.C. 2661 15b.24 Evaluation and placement.
et seq. 15b.25 Procedural safeguards.
26. Youth Conservation Corps. 16 U.S.C. 1701 15b.26 Nonacademic services.
et seq. 15b.27 Extension education.
27. Young Adult Conservation Corps. 29 15b.28 Private education.
U.S.C. 993 et seq.
28. Agricultural Research and Education Subpart E—Postsecondary Education
Grants Program. 7 U.S.C. 3151 et seq.
29. National Food and Human Nutrition Re- 15b.29 Applicability.
search and Extension Program. 7 U.S.C. 3171 15b.30 Admissions and recruitment.
et seq. 15b.31 Treatment of students.
30. Animal Health and Disease Research Pro- 15b.32 Academic adjustments.
gram. 7 U.S.C. 3191 et seq. 15b.33 Housing.
15b.34 Financial and employment assistance
31. The 1890 Land-Grant College Funding
to students.
Program. 7 U.S.C. 3221 et seq.
15b.35 Nonacademic services.
32. Solar Energy Research and Development
Program. 7 U.S.C. 3241, 3261–62, 3271.
Subpart F—Other Aid, Benefits, or Services
PART 15b—NONDISCRIMINATION 15b.36 Applicability.
15b.37 Auxiliary aids.
ON THE BASIS OF HANDICAP IN 15b.38 Health care facilities.
PROGRAMS OR ACTIVITIES RE- 15b.39 Education of institutionalized per-
CEIVING FEDERAL FINANCIAL sons.
ASSISTANCE 15b.40 Food services.
15b.41 Multi-family rental housing.
Subpart A—General Provisions Subpart G—Procedures
Sec. 15b.42 Procedures.
15b.1 Purpose.
15b.2 Applicability. APPENDIX A TO PART 15B—LIST OF FEDERAL
15b.3 Definitions. FINANCIAL ASSISTANCE FROM USDA
15b.4 Discrimination prohibited. AUTHORITY: 29 U.S.C. 794.
15b.5 Assurances required.
15b.6 Designation of responsible employee SOURCE: 47 FR 25470, June 11, 1982, unless
and adoption of grievance procedures. otherwise noted.
15b.7 Notice of nondiscrimination and ac-
cessible services. Subpart A—General Provisions
15b.8 Remedial action, voluntary action,
and self-evaluation. § 15b.1 Purpose.
15b.9 Effect of State or local law or other
requirements, and effect of employment The purpose of this part is to imple-
opportunities. ment section 504 of the Rehabilitation
15b.10 Effect of compliance with regulations Act of 1973, as amended, to the end that
of other Federal agencies. no otherwise qualified handicapped in-
dividual in the United States shall
Subpart B—Employment Practices solely by reason of his or her handicap
15b.11 Applicability. be excluded from the participation in,
15b.12 Discrimination prohibited. be denied the benefits of, or be sub-
15b.13 Reasonable accommodation. jected to discrimination under any pro-
15b.14 Employment criteria. gram or activity receiving Federal fi-
15b.15 Preemployment inquiries. nancial assistance.
Subpart C—Accessibility § 15b.2 Applicability.
15b.16 Applicability. This part applies to all programs or
15b.17 Discrimination prohibited. activities that receive Federal finan-
15b.18 Existing facilities. cial assistance extended by the Depart-
15b.19 New construction. ment of Agriculture after the effective
date of this part whether or not the as-

Subpart D—Preschool, Elementary,
sistance was approved after the effec-
Secondary, Adult, and Extension Education
tive date. Subparts A, B, and C are of
15b.20 Applicability general applicability. Subparts D, E,
448
and F are more specifically tailored. (other than a procurement contract or

Subpart G is procedural. a contract of insurance or guaranty),
cooperative agreement, formula alloca-
FR 52139, Dec. 19, 1990; 68 FR 51342, Aug. 26, tion, loan, or any other arrangement
2003] by which the Department provides or
otherwise makes available assistance
§ 15b.3 Definitions. in the form of:
As used in this part, the term or (1) Funds;
phrase: (2) Services of Federal personnel;
(a) The Act means the Rehabilitation (3) Real and personal Federal prop-
Act of 1973, Public Law 93–112, 87 Stat. erty or any interest in Federal prop-
390 (1973), as amended by the Rehabili- erty, including:
tation Act Amendments of 1974, Public (i) A sale, transfer, lease or use (on
Law 93–651, 89 Stat. 2 (1974) and Public other than a casual or transient basis)
Law 93–516, 88 Stat. 1617 (1974) and the of Federal property for less than fair
Rehabilitation, Comprehensive Serv- market value, for reduced consider-
ices and Developmental Disabilities ation or in recognition of the public
Amendments of 1978, Public Law 95–602, nature of the recipient’s program or ac-
92 Stat. 2955 (1978). The Act appears at tivity; and
29 U.S.C. 701–794. (ii) Proceeds from a subsequent sale,
(b) Section 504 means section 504 of transfer or lease of Federal property if
the Act, 29 U.S.C. 794. the Federal share of its fair market
(c) Education of the Handicapped Act value is not returned to the Federal
means the Education of the Handi- Government.
capped Act, Public Law 92–230, Title (4) Any other thing of value.
VI, 84 Stat. 175 (1970), as amended by (h) Facility means all or any portion
the Education of the Handicapped of buildings, structures, equipment,
Amendments of 1974, Public Law 93–380, roads, walks, parking lots, or other
Title VI, 88 Stat. 576 (1974), the Edu- real or personal property or interest in
cation for All Handicapped Children such property.
Act of 1975, Public Law 94–142, 89 Stat. (i) Handicapped person means any per-
773 (1975), and the Education of the son who has a physical or mental im-
Handicapped Amendments of 1977, Pub- pairment which substantially limits
lic Law 95–49, 91 Stat. 230 (1977). The one or more major life activities, has a
Education of the Handicapped Act ap- record of such an impairment, or is re-
pears at 20 U.S.C. 1401–1461. garded as having such an impairment.
(d) Department means the Department (j) Physical or mental impairment
of Agriculture and includes each of its means (1) any physiological disorder or
operating agencies and other organiza- condition, cosmetic disfigurement, or
tional units. anatomical loss affecting one or more
(e) Secretary means the Secretary of of the following body systems: Neuro-
Agriculture or any officer or employee logical; musculoskeletal; special sense
of the Department to whom the Sec- organs; respiratory, including speech
retary has delegated or may delegate organs; cardiovascular; reproductive;
the authority to act under the regula- digestive; genitourinary; hemic and
tions of this part. lymphatic; skin; and endocrine; or (2)
(f) Recipient means any State or its any mental or psychological disorder,
political subdivision, any instrumen- such as mental retardation, organic
tality of a State or its political sub- brain syndrome, emotional or mental
division, any public or private agency, illness, and specific learning disabil-
institution, organization, or other enti- ities. The term physical or mental im-
ty, or any person to which Federal fi- pairment includes, but is not limited to,
nancial assistance is extended directly such diseases and conditions as ortho-
or through another recipient, including pedic, visual, speech, and hearing im-
any successor, assignee, or transferee pairments; cerebral palsy; epilepsy;
of a recipient, but excluding the ulti- muscular dystrophy; multiple sclerosis,

mate beneficiary of the assistance. cancer; heart disease; diabetes; mental
(g) Federal financial assistance or as- retardation; emotional illness; and
sistance means any grant, contract drug addiction and alcoholism.
449
(k) Major life activities means func- cipient’s education program or activ-
tions such as caring for one’s self, per- ity;
forming manual tasks, walking, seeing, (4) With respect to other services, a
hearing, speaking, breathing, learning handicapped person who meets the es-
and working. sential eligibility requirements for the
(l) Has a record of such an impairment receipt of such services.
means has a history of, or has been (o) Handicap means any condition or
misclassified as having, a mental or characteristic that renders a person a
physical impairment that substantially handicapped person as defined in para-
limits one or more major life activi-
graph (i) of this section.
ties.
(m) Is regarded as having an impair- (p) For purposes of § 15b.18(d), Historic
ment means (1) has a physical or men- Preservation Programs are those that re-
tal impairment that does not substan- ceive Federal financial assistance that
tially limit major life activities but has preservation of historic properties
that is treated by a recipient as consti- as a primary purpose.
tuting such a limitation; (2) has a (q) For purposes of § 15b.18(e), Historic
physical or mental impairment that properties means those buildings or fa-
substantially limits major life activi- cilities that are eligible for listing in
ties only as a result of the attitudes of the National Register of Historic
others towards such impairments, or Places, or such properties designated
(3) has none of the impairments defined as historic under a statute of the ap-
in paragraph (j) of this section but is propriate State or local government
treated by a recipient as having such body.
an impairment. (r) For purposes of § 15b.18(d), Sub-
(n) Qualified handicapped person (used stantial impairment means a significant
synonymously with otherwise qualified loss of the integrity of finished mate-
handicapped individual) means: rials, design quality or special char-
(1) With respect to employment, a acter which loss results from a perma-
handicapped person who, with reason-
nent alteration.
able accommodation, can perform the
essential functions of the job in ques- (s) Program or activity means all of
tion, but the term does not include any the operations of any entity described
individual who is an alcoholic or drug in paragraphs (s)(1) through (4) of this
abuser whose current use of alcohol or section, any part of which is extended
drugs prevents such individual from Federal financial assistance:
performing the duties of the job in (1)(i) A department, agency, special
question or whose employment, by rea- purpose district, or other instrumen-
son of such current alcohol or drug tality of a State or of a local govern-
abuse, would constitute a direct threat ment; or
to property or the safety of others; (ii) The entity of such State or local
(2) With respect to public preschool, government that distributes such as-
elementary, secondary, or adult edu- sistance and each such department or
cational services, a handicapped per- agency (and each other State or local
son, (i) of an age during which non- government entity) to which the as-
handicapped persons are provided such sistance is extended, in the case of as-
services, (ii) of an age during which it sistance to a State or local govern-
is mandatory under State law to pro- ment;
vide such services to handicapped per- (2)(i) A college, university, or other
sons, or (iii) to whom a State is re-
postsecondary institution, or a public
quired to provide a free appropriate
system of higher education; or
public education under section 612 of
the Education of the Handicapped Act; (ii) A local educational agency (as de-
and fined in 20 U.S.C. 7801), system of voca-
(3) With respect to postsecondary and tional education, or other school sys-
tem;
vocational education services, a handi-

capped person who meets all academic (3)(i) An entire corporation, partner-
and technical standards requisite to ship, or other private organization, or
admission or participation in the re- an entire sole proprietorship—
450
(A) If assistance is extended to such that are as effective as those provided

corporation, partnership, private orga- to others;
nization, or sole proprietorship as a (v) Aid or perpetuate discrimination
whole; or against a qualified handicapped person
(B) Which is principally engaged in by providing significant assistance to
the business of providing education, an agency, organization, or person that
health care, housing, social services, or discriminates on the basis of handicap
parks and recreation; or in providing any aid, benefit or service
(ii) The entire plant or other com- to beneficiaries of the recipient’s pro-
parable, geographically separate facil-
gram or activity;
ity to which Federal financial assist-
ance is extended, in the case of any (vi) Deny a qualified handicapped
other corporation, partnership, private person the opportunity to participate
organization, or sole proprietorship; or as a member of planning or advisory
(4) Any other entity which is estab- boards; or
lished by two or more of the entities (vii) Otherwise limit a qualified
described in paragraph (s)(1), (2), or (3) handicapped person in the enjoyment
of this section. of any rights, privilege, advantage, or
opportunity enjoyed by others receiv-
FR 52139, Dec. 19, 1990; 68 FR 51342, Aug. 26,
ing an aid, benefit or service.
2003] (2) For purposes of this part, aids,
benefits and services, to be equally ef-
§ 15b.4 Discrimination prohibited. fective, are not required to produce the
(a) General. No qualified handicapped identical result or level of achievement
person shall, on the basis of handicap, for handicapped and nonhandicapped
be excluded from participation in, be persons, but must afford handicapped
denied the benefits of, or otherwise be persons equal opportunity to obtain
subjected to discrimination under any the same result, to gain the same ben-
program or activity receiving assist- efit, or to reach the same level of
ance from this Department. achievement, in the most integrated
(b) Discriminatory actions prohibited. setting appropriate to the person’s
(1) A recipient, in providing any aid, needs.
benefit or service, may not, directly or (3) Despite the existence of separate
through contractual, licensing, or or different aid, benefits, or services
other arrangements, on the basis of provided in accordance with this part,
handicap: a recipient may not deny a qualified
(i) Deny a qualified handicapped per- handicapped person the opportunity to
son the opportunity to participate in participate in such programs or activi-
or benefit from the aid, benefit or serv- ties that are not separate or different.
ices;
(4) A recipient may not, directly or
(ii) Afford a qualified handicapped
through contractual or other arrange-
person an opportunity to participate in
ments, utilize criteria or methods of
or benefit from the aid, benefit or serv-
administration (i) that have the effect
ices that is not equal to that afforded
others; of subjecting qualified handicapped
(iii) Provide a qualified handicapped persons to discrimination on the basis
person with an aid, benefit or service of handicap, (ii) that have the purpose
that is not as effective in affording or effect of defeating or substantially
equal opportunity to obtain the same impairing accomplishment of the ob-
result, to gain the same benefit or to jectives of the recipient’s program or
reach the same level of achievement in activity with respect to handicapped
the most integrated setting appro- persons, or (iii) that perpetuate the dis-
priate as that provided to others; crimination of another recipient if
(iv) Provide a different or separate both recipients are subject to common
aid, benefit or service to handicapped administrative control or are agencies
of the same State.
persons or to any class of handicapped

persons unless such action is necessary (5) In determining the site or loca-
to provide qualified handicapped per- tion of a facility, an applicant for as-
sons with an aid, benefit or service sistance or a recipient may not make
451
selections (i) that have the effect of ex- erty or structures are used for the pur-
cluding handicapped persons, from depose for which Federal financial assist-
nying them the benefits of, or other- ance is extended or for another purpose
wise subjecting them to discrimination involving the provision of similar serv-
under any program or activity that re- ices or benefits.
ceives Federal financial assistance or (2) In the case of Federal financial as-
(ii) that have the purpose or effect of sistance extended to provide personal
defeating or substantially impairing property, the assurance will obligate
the accomplishment of the objectives the recipient for the period during
of the program or activity with respect
which it retains ownership or posses-
to handicapped persons.
sion of the property.
(6) As used in this section, an aid,
benefit or service provided under a pro- (3) In all other cases, the assurance
gram or activity receiving Federal fi- will obligate the recipient for the pe-
nancial assistance includes any aid, riod during which Federal financial as-
benefit or service provided in or sistance is extended.
through a facility that has been con- (c) Covenants. (1) Where Federal fi-
structed, expanded, altered, leased or nancial assistance is provided in the
rented, or otherwise acquired, in whole form of real property or interest in the
or in part, with Federal financial as- property from the Department, the in-
sistance. strument effecting or recording this
(c) Aid, benefits, or services limited by transfer shall contain a covenant run-
Federal law. The exclusion of nonhandi- ning with the land to assure non-
capped persons from aid, benefits, or discrimination for the period during
services limited by Federal statute or which the real property is used for the
executive order to handicapped persons purpose for which the Federal financial
or the exclusion of a specific class of assistance is extended or for another
handicapped persons from aid, benefits, purpose involving the provision of
or services limited by Federal statute similar services or benefits.
or executive order to a different class
(2) Where no transfer of property is
of handicapped persons is not prohib-
involved but property is purchased or
ited by this part.
(d) Communications. Recipients shall improved with Federal financial assist-
take appropriate steps to ensure that ance, the recipient shall agree to in-
communications with their applicants, clude the covenant described in para-
employees, and beneficiaries are avail- graph (c)(1) of this section in the in-
able to persons with impaired vision strument effecting or recording any
and hearing. subsequent transfer of the property.
(3) Where Federal financial assist-
ance is provided in the form of real
FR 51342, Aug. 26, 2003]
property or interest in the property
§ 15b.5 Assurances required. from the Department, the covenant
(a) Assurances. An applicant for Fed- shall also include a condition coupled
eral financial assistance to which this with a right to be reserved by the De-
part applies shall submit an assurance, partment to revert title to the prop-
on a form specified by the Secretary, erty in the event of a breach of the cov-
that the program or activity will be op- enant. If a transferee of real property
erated in compliance with this part. An proposes to mortgage or otherwise en-
applicant may incorporate these assur- cumber the real property as security
ances by reference in subsequent appli- for financing construction of new, or
cations to the Department. improvement of existing, facilities on
(b) Duration of obligation. (1) In the the property for the purposes for which
case of Federal financial assistance ex- the property was transferred, the Sec-
tended in the form of real property or retary may, upon request of the trans-
to provide real property or structures feree and if necessary to accomplish
such financing and upon such condi-
on the property, the assurance will ob-

ligate the recipient, or, in the case of a tions as the Secretary deems appro-
subsequent transfer, the transferee, for priate, agree to forebear the exercise of
the period during which the real prop- such right to revert title for so long as
452
the lien of such mortgage or other en- make the initial notification required
cumbrance remains effective. by this paragraph within 90 days of the
[47 FR 25470, June 11, 1982, as amended at 68 effective date of this part. Methods of
FR 51342, Aug. 26, 2003] initial and continuing notification may
include but are not limited to the post-
§ 15b.6 Designation of responsible em- ing of notices, placement of notices in
ployee and adoption of grievance the recipient’s publications, radio an-
procedures.
nouncements, and the use of other vis-
(a) Designation of responsible employee. ual and aural media.
A recipient that employs fifteen or (b) If a recipient publishes or uses re-
more persons shall designate at least cruitment materials or publications
one person to coordinate its efforts to
containing general information that it
comply with this part.
makes available to participants, bene-
(b) Adoption of grievance procedures. A
recipient that employs fifteen or more ficiaries, applicants or employees, it
persons shall adopt grievance proce- shall include in those materials or pub-
dures that incorporate appropriate due lications a statement of the policy de-
process standards and that provide for scribed in paragraph (a) of this section.
the prompt and equitable resolution of A recipient may meet the requirement
complaints alleging any action prohib- of this paragraph either by including
ited by this part. Such procedures need appropriate inserts in existing mate-
not be established with respect to com- rials and publications or by revising
plaints from applicants for employ- and reprinting the materials and publi-
ment or from applicants for admission cations.
to postsecondary educational institu-
tions. FR 51342, Aug. 26, 2003]
(c) The Secretary may require any
recipient with fewer than fifteen em- § 15b.8 Remedial action, voluntary ac-
ployees to designate a responsible em- tion, and self-evaluation.
ployee and adopt grievance procedures
when the Secretary finds a violation of (a) Remedial action. (1) If the Sec-
this part or finds that complying with retary finds that a recipient has dis-
these administrative requirements will criminated against persons on the basis
not significantly impair the ability of of handicap in violation of section 504
the recipient to provide benefits or or this part, the recipient shall take
services. such remedial action as the Secretary
deems necessary to overcome the ef-
§ 15b.7 Notice of nondiscrimination fects of the discrimination.
and accessible services. (2) Where a recipient is found to have
(a) A recipient shall take appropriate discriminated against persons on the
initial and continuing steps to notify basis of handicap in violation of sec-
participants, beneficiaries, applicants, tion 504 or this part and where another
and employees, including those with recipient exercises control over the re-
impaired vision or hearing, and unions cipient that has discriminated, the
or professional organizations holding Secretary, where appropriate, may re-
collective bargaining or professional quire either or both recipients to take
agreements with the recipient that it
remedial action.
does not discriminate on the basis of
(3) The Secretary may, where nec-
handicap in violation of section 504 and
this part. The notification shall state, essary to overcome the effects of dis-
where appropriate, that the recipient crimination in violation of section 504
does not discriminate in admission or or this part, require a recipient to take
access to, or treatment or employment remedial action (i) with respect to
in, its programs or activities. The re- handicapped persons who are no longer
cipient shall also identify the respon- participants in the recipient’s program
or activity but who were participants
sible employee designated pursuant to

§ 15b.6(a), and identify the existence in the program when such discrimina-
and location of accessible services, action occurred or (ii) with respect to
tivities, and facilities. A recipient shall handicapped persons who would have
453
been participants in the program or ac- law or other requirement that, on the
tivity had the discrimination not oc- basis of handicap, imposes prohibitions
curred, or (iii) with respect to handi- or limits upon the eligibility of quali-
capped persons presently in the pro- fied handicapped persons to receive
gram or activity, but not receiving full services or to practice any occupation
benefits or equal and integrated treat- or profession.
ment within the program. (b) The obligation to comply with
(b) Voluntary action. A recipient may this part is not obviated or alleviated
take steps, in addition to any action because employment opportunities in
that is required by this part, to over- any occupation or profession are or
come the effects of conditions that re- may be more limited for handicapped
sulted in limited participation in the persons than for nonhandicapped per-
recipient’s program or activity by sons.
qualified handicapped persons.
(c) Self-evaluation. (1) A recipient § 15b.10 Effect of compliance with reg-
shall, within one year of the effective ulations of other Federal agencies.
date of this part: A recipient that has designated a re-
(i) Evaluate, with the assistance of sponsible official and established a
interested persons, including handi- grievance procedure, provided notice,
capped persons or organizations rep- completed a self-evaluation, or pre-
resenting handicapped persons, its cur- pared a transition plan in the course of
rent policies and practices and the ef- complying with regulations issued by
fects thereof that do not or may not other Federal agencies under section
meet the requirements of this part. 504 will be in compliance with § 15b.6,
(ii) Modify, after consultation with § 15b.7, § 15b.8(c), or § 15b.18(f), respec-
interested persons, including handi- tively, if all requirements of those sec-
capped persons or organizations rep- tions have been met in regard to pro-
resenting handicapped persons, any grams or activities assisted by this De-
policies and practices that do not meet partment.
the requirements of this part; and
(iii) Take, after consultation with in- [47 FR 25470, June 11, 1982, as amended at 68
terested persons, including handi- FR 51342, Aug. 26, 2003]
capped persons or organizations rep-
resenting handicapped persons, appro- Subpart B—Employment Practices
priate remedial steps to eliminate the
effects of any discrimination that re- § 15b.11 Applicability.
sulted from adherence to these policies This subpart applies to all programs
and practices. or activities that receive Federal fi-
(2) A recipient shall, for at least
nancial assistance provided by the De-
three years following completion of the
partment of Agriculture after the ef-
evaluation required under paragraph
fective date of this part.
(c)(1) of this section, maintain on file,
make available for public inspection, [47 FR 25470, June 11, 1982, as amended at 55
and provide to the Secretary upon re- FR 52139, Dec. 19, 1990; 68 FR 51342, Aug. 26,
quest: (i) A list of the interested per- 2003]
sons consulted, (ii) a description of
areas examined and any problems iden- § 15b.12 Discrimination prohibited.
tified, and (iii) a description of any (a) General. (1) No qualified handi-
modifications made and of any reme- capped person shall, on the basis of
dial steps taken. handicapped, be subjected to discrimi-
[47 FR 25470, June 11, 1982, as amended at 68 nation in employment under any pro-
FR 51342, Aug. 26, 2003] gram or activity receiving assistance
from this Department.
§ 15b.9 Effect of State or local law or (2) A recipient shall make all deci-
other requirements, and effect of sions concerning employment in a
employment opportunities.
manner which ensures that discrimina-

(a) The obligation to comply with tion on the basis of handicap does not
this part is not obviated or alleviated occur and may not limit, segregate, or
by the existence of any State or local classify applicants or employees in any
454
way that adversely affects their oppor- § 15b.13 Reasonable accommodation.

tunities or status because of handicap. (a) A recipient shall make reasonable
(3) A recipient may not participate in accommodation to the known physical
a contractural or other relationship or mental limitations of an otherwise
that has the effect of subjecting quali- qualified handicapped applicant or em-
fied handicapped applicants or employ- ployee unless the recipient can dem-
ees to discrimination prohibited by onstrate that the accommodation
this subpart. This includes relation- would impose an undue hardship on the
ships with employment and referral operation of its program or activity.
agencies, with labor unions with orga- (b) Reasonable accommodation may
nizations providing or administering include (1) Making facilities used by
fringe benefits to employees of the re- employees readily accessible to and
cipient, and with organizations pro- useable by handicapped persons, and (2)
viding training and apprenticeships. Job restructuring, part-time or modi-
(4) All provisions of this subpart per- fied work schedules, acquisition or
taining to employment, apply equally modification of equipment or devices,
to volunteer service. the provisions of readers or inter-
(b) Specific activities. The provisions preters, and other similar actions.
of this subpart apply to: (c) In determining pursuant to para-
(1) Recruitment, advertising, and the graph (a) of this section whether an ac-
commodation would impose an undue
processing of applications for employ-
hardship on the operation of a recipi-
ment;
ent’s programs or activities, factors to
(2) Hiring, upgrading, promotion, be considered include:
award of tenure, demotion, transfer, (1) The overall size of the recipient’s
layoff, termination, right to return program or activity with respect to
from layoff, and rehiring; number of employees, number and type
(3) Rates of pay or any other form of of facilities, and size of budget;
compensation and changes in com- (2) The type of the recipient’s oper-
pensation; ation, including the composition and
(4) Job assignments, job classifica- structure of recipient’s workforce;
tions, organizational structures, posi- (3) The nature and cost of the accom-
tion descriptions, lines of progression, modation needed.
and seniority lists; (d) A recipient may not deny any em-
(5) Leaves of absence, sick leave, or ployment opportunity to a qualified
any other leave; handicapped employee or applicant if
(6) Fringe benefits available by vir- the basis for the denial is the need to
tue of employment, whether or not ad- make reasonable accommodation to
ministered by the recipient; the physical or mental limitations of
(7) Selection and financial support the employee or applicant.
for training, including apprenticeship, [47 FR 25470, June 11, 1982, as amended at 68
professional meetings, conferences, and FR 51343, Aug. 26, 2003]
other related activities, and selection
for leaves of absence to pursue train- § 15b.14 Employment criteria.
ing; (a) A recipient may not make use of
(8) Employer sponsored activities, in- any employment test or other selection
cluding those that are social or rec- criterion that screens out or tends to
reational; and screen out handicapped persons or any
(9) Any other term, condition, or class of handicapped persons unless: (1)
privilege of employment. The recipient shows that the test score
(c) A recipient’s obligation to comply or other selection criterion, as used by
the recipient, is job-related for the po-
with this subpart is not affected by any
sition in question, and (2) the Sec-
inconsistent term of any collective
retary cannot show that alternative
bargaining agreement to which it is a
job-related tests or criteria are avail-

party.
able that do not screen out or tend to
[47 FR 25470, June 11, 1982, as amended at 68 screen out as many handicapped per-
FR 51343, Aug. 26, 2003] sons.
455
(b) A recipient shall select and ad- (c) Nothing in this section shall pro-
minister tests concerning employment hibit a recipient for conditioning an
so as best to ensure that, when admin- offer of employment on the results of a
istered to an applicant or employee medical examination conducted prior
who has a handicap that impairs sen- to the employee’s entrance on duty:
sory, manual, or speaking skills, the Provided, That (1) all entering employ-
test results accurately reflect the ap- ees are subjected to such an examina-
plicant’s or employee’s job skills, apti- tion regardless of handicap; and (2) the
tude, or whatever other factor the test results of such an examination are used
purports to measure, rather than re- only in accordance with the require-
flecting the applicant’s or employee’s ments of this part.
impaired sensory, manual, or speaking (d) Information obtained in accord-
skills (except where those skills are ance with this section as to the med-
the factors that the test purports to ical condition or history of the appli-
measure). cant shall be collected and maintained
on separate forms that shall be ac-
§ 15b.15 Preemployment inquiries. corded the same confidentiality as
medical records except that:
(a) Except as provided in paragraphs
(b) and (c) of this section, a recipient (1) Supervisors and managers may be
informed regarding restrictions on the
may not conduct a preemployment
work or duties of handicapped persons
medical examination or may not make
and regarding necessary accommoda-
preemployment inquiry of an applicant
tions;
as to whether the applicant is a handi-
(2) First aid and safety personnel
capped person or as to the nature or se-
may be informed, where appropriate, if
verity of a handicap. A recipient may,
the condition might require emergency
however, make preemployment inquiry
treatment; and
into an applicant’s ability to perform
(3) Governement officials inves-
job-related functions.
tigating compliance with the Act shall
(b) When a recipient is taking reme- be provided relevant information upon
dial action to correct the effects of request.
past discrimination pursuant to
§ 15b.8(a), when a recipient is taking
voluntary action to overcome the ef- Subpart C—Accessibility
fects of conditions that resulted in lim- § 15b.16 Applicability.
ited participation in its federally as-
sisted program or activity pursuant to This subpart applies to all programs
§ 15b.8(b), or when a recipient is taking or activities that receive Federal fi-
affirmative action pursuant to section nancial assistance provided by the De-
503 of the Act, the recipient may invite partment of Agriculture after the ef-
applicants for employment to indicate fective date of this part.
whether and to what extent they are [47 FR 25470, June 11, 1982, as amended at 55
handicapped: Provided, That (1) the re- FR 52139, Dec. 19, 1990; 68 FR 51343, Aug. 26,
cipient states clearly on any written 2003]
questionnaire used for this purpose or
makes clear orally if no written ques- § 15b.17 Discrimination prohibited.
tionnaire is used that the information No qualified handicapped person
requested is intended for use solely in shall, because a recipient’s facilities
connection with its remedial action ob- are inaccessible to or unusuable by
ligations or its voluntary affirmative handicapped persons, be denied the
action efforts; and (2) the recipient benefits of, be excluded from participa-
states clearly that the information is tion in, or otherwise be subjected to
being requested on a voluntary basis, discrimination under any program or
that it will be kept confidential as pro- activity receiving assistance from this
vided in paragraph (d) of this section, Department.
that refusal to provide it will not sub-

ject the applicant or employee to any § 15b.18 Existing facilities.
adverse treatment, and that it will be (a) Accessibility. A recipient shall op-
used only in accordance with this part. erate each assisted program or activity
456
so that when each part is viewed in its bility requirements. (1) A recipient shall
entirety it is readily accessible to and operate each assisted program or activ-
usable by qualified handicapped per- ity involving Historic Preservation
sons. This paragraph does not nec- Programs so that when each part is
essarily require a recipient to make viewed in its entirety it is readily ac-
each of its existing facilities or every cessible to and usable by handicapped
part of an existing facility accessible persons. This paragraph does not nec-
to and usable by qualified handicapped essarily require a recipient to make
persons. each of its existing historic properties
(b) Method. A recipient may comply or every part of an historic property
with the requirements of paragraph (a) accessible to and usable by handi-
of this section through such means as capped persons. Methods of achieving
redesign of equipment, reassignment of accessibility include:
classes or other services to accessible (i) Making physical alterations which
buildings, assignment of aides to bene- enable handicapped persons to have ac-
ficiaries, home visits, delivery of serv- cess to otherwise inaccessible areas or
ices at alternate accessible sites, alter- features of historic properties;
ation of exiting facilities and construc- (ii) Using audio-visual materials and
tion of new facilities in conformance devices to depict otherwise inaccessible
with the requirements of § 15b.19, or areas or features of historic properties;
any other method that results in mak- (iii) Assigning persons to guide
ing its program or activity accessible handicapped persons into or through
to qualified handicapped persons. A re- otherwise inaccessible portions of his-
cipient is not required to make struc- toric properties;
tural changes in existing facilities (iv) Adopting other innovative meth-
where other methods are effective in ods to achieve accessibility. Because
achieving compliance with paragraph the primary benefit of an Historic
(a) of this section. In choosing among Preservation Program is the experi-
available methods for meeting the re- ence of the historic property itself, in
quirement of paragraph (a) of this sec- taking steps to achieve accessibility,
tion, a recipient shall give priority to recipients shall give priority to those
those methods that serve qualified means which make the historic prop-
handicapped persons in the most inter- erty, or portions thereof physicially ac-
grated setting appropriate. cessible to handicapped individuals.
(c) Small providers. If a recipient with (2) Where accessibility cannot be
fewer than fifteen employees finds, achieved without causing a substantial
after consultation with a handicapped impairment of significant historic fea-
person seeking its services, that there tures, the Secretary may grant a waiv-
is no method of complying with para- er of the accessibility requirement. In
graph (a) of this section other than by determining whether accessibility can
making a significant alteration in its be achieved without causing a substan-
existing facilities, the recipient may, tial impairment, the Secretary shall
as an alternative, refer the handi- consider the following factors:
capped person to other providers of (i) Scale of property, reflecting its
those services that are accessible at no ability to absorb alterations;
additional cost to handicapped persons. (ii) Use of the property, whether pri-
(d) Application for modification of re- marily for public or private purpose;
quirements. Recipients that determine (iii) Importance of the historic fea-
after a self-evaluation conducted ac- tures of the property to the conduct of
cording to the requirements of the program or activity; and,
§ 15b.8(c), that accessibility can only be (iv) Cost of alterations in comparison
accomplished through substantial to the increase in accessibility.
modifications which would result in a The Secretary shall periodically review
fundamental alteration in the nature any waiver granted under this section
of the program or activity, may apply and may withdraw it if technological
to the Secretary for a modification of advances or other changes so warrant.

the requirements of this section. (3) Where the property is federally
(e) Historic Preservation Programs; Ap- owned or where Federal funds may be
plication for waiver of program accessi- used for alterations, the comments of
457
the Advisory Council on Historic Pres- menced after the effective date of this
ervation shall be obtained when re- part.
quired by section 106 of the National (b) Alteration. Each facility or part of
Historic Preservation Act of 1966, as a facility which is altered by, on behalf
amended (16 U.S.C. 470), and 36 CFR of, or for the use of a recipient after
part 800, prior to effectuation of struc- the effective date of this part in a man-
tural alterations. ner that affects or could affect the
(f) Time period. A recipient shall com- usability of the facility or part of the
ply with the requirements of paragraph
facility shall to the maximum extent
(a) of this section within sixty days of
the effective date of this part except feasible, be altered in such manner
that where structural changes in facili- that the altered portion of the facility
ties are necessary, such changes shall is readily accessible to and usable by
be made within three years of the ef- handicapped persons.
fective date of this part and as expedi- (c) Conformance with Uniform Federal
tiously as possible. Accessibility Standards. (1) Effective as
(g) Transition plan. In the event that of January 18, 1991, design, construc-
structural changes to facilities are nection, or alteration of buildings in con-
essary to meet the requirement of formance with sections 3-8 of the Uni-
paragraph (a) of this section, a recipi- form Federal Accessibility Standards
ent shall develop, within one year of (USAF) (appendix A to 41 CFR subpart
the effective date of this part, a transi- 101–19.6) shall be deemed to comply
tion plan setting forth the steps nec- with the requirements of this section
essary to complete such changes. The with respect to those buildings. Depar-
plan shall be developed with the assist- tures from particular technical and
ance of interested persons, including scoping requirements of UFAS by the
handicapped persons or organizations
use of other methods are permitted
representing handicapped persons. A
where substantially equivalent or
copy of the transition plan shall be
made available for public inspection. greater access to and usability of the
The plan shall, at a minimum: building is provided.
(1) Identify physical obstacles in the (2) For purposes of this section, sec-
recipient’s facilities that limit the action 4.1.6(1)(g) of UFAS shall be inter-
cessibility of its program or activity to preted to exempt from the require-
handicapped persons; ments of UFAS only mechanical rooms
(2) Describe in detail the methods and other spaces that, because of their
that will be used to make the facilities intended use, will not require accessi-
accessible; bility to the public or beneficiaries or
(3) Specify the schedule for taking result in the employment or residence
the steps necessary to achieve full ac- therein of persons with physical handi-
cessibility under paragraph (a) of this caps.
section and if the time period of the (3) This section does not require re-
transition plan is longer than one year, cipients to make building alterations
identify steps that will be taken during that have little likelihood of being ac-
each year of the transition period; and complished without removing or alter-
(4) Identify the person responsible for
ing a load-bearing structural member.
implementation of the plan.
(d) Compliance with the Architectural
[47 FR 25470, June 11, 1982, as amended at 68 Barriers Act of 1968. Nothing in this sec-
FR 51342, 51343, Aug. 26, 2003] tion of § 15b.18 relieves recipients,
§ 15b.19 New construction. whose facilities are covered by the Ar-
chitectural Barriers Act of 1968, as
(a) Design and construction. Each fa- amended (42 U.S.C. 4151–4157) from
cility or part of a facility constructed their responsibility of complying with
by, on behalf of, or for the use of a re-
the requirements of that Act and any
cipient shall be designed and con-
implementing regulations.
structed in such manner that the facil-

ity or part of the facility is readily ac- [47 FR 25470, June 11, 1982, as amended at 55
cessible to and usable by handicapped FR 52138, 52139, Dec. 19, 1990]
persons, if the construction is com-
458
Subpart D—Preschool, Elementary, (2) Implementation of an Individual-

Secondary, Adult, and Exten- ized Education Program developed in
accordance with the Education of the
sion Education Handicapped Act is one means of meet-
§ 15b.20 Applicability. ing the standard established in para-
graph (b)(1)(i) of this section.
Except as otherwise noted, this sub-
(3) A recipient may place a handi-
part applies to public and private
capped person or refer such person for
schools, elementary, secondary, adult,
aid, benefits, or services other than
and extension education programs or
those that it operates or provides as its
activities that receive Federal finan-
means of carrying out the require-
cial assistance provided by the Depart-
ments of this subpart. If so, the recipi-
ment of Agriculture after the effective
ent remains responsible for ensuring
date of this part and to recipients that
that the requirements of this subpart
operate, or that receive Federal finan-
are met with respect to any handi-
cial assistance for the operation of,
capped person so placed or referred.
such programs or activities.
(c) Free education—(1) General. For
[47 FR 25470, June 11, 1982, as amended at 55 the purpose of this section, the provi-
FR 52139, Dec. 19, 1990; 68 FR 51343, Aug. 26, sion of a free education is the provision
2003] of educational and related services
without cost to handicapped persons or
§ 15b.21 Location and notification.
their parents or guardians, except for
A recipient that operates a public el- those fees that are imposed on non-
ementary or secondary education pro- handicapped persons or their parents or
gram or activity shall annually: guardians. It may consist either of the
(a) Undertake to identify and locate provision of free services or, if a recipi-
every qualified handicapped person re- ent places a handicapped person in or
siding in the recipient’s jurisdiction refers such person for aid, benefits, or
who is not receiving a public edu- services not operated or provided by
cation; and the recipient as its means of carrying
(b) Take appropriate steps to notify out the requirements of this subpart,
handicapped persons and their parents payment for the costs of the aid, bene-
or guardians of the recipient’s duty fits, or services. Funds available from
under this subpart. any public or private agency may be
[47 FR 25470, June 11, 1982, as amended at 68 used to meet the requirements of this
FR 51343, Aug. 26, 2003] subpart. Nothing in this section shall
be construed to relieve an insurer or
§ 15b.22 Free appropriate public edu- similar third party from an otherwise
cation. valid obligation to provide or pay for
(a) General. A recipient that operates services provided to a handicapped per-
a public elementary or secondary edu- son.
cation program or activity shall pro- (2) Transportation. If a recipient
vide a free appropriate public edu- places a handicapped person or refers
cation to each qualified handicapped such person for aid, benefits, or serv-
person who is in the recipient’s juris- ices not operated or provided by the re-
diction, regardless of the nature or se- cipient as its means of carrying out the
verity of the person’s handicap. requirements of this subpart, the re-
(b) Appropriate education. (1) For the cipient shall ensure that adequate
purpose of this subpart, the provision transportation to and from aid, bene-
of an appropriate education is the pro- fits, or services is provided at no great-
vision of regular or special education er cost than would be incurred by the
and related aids and services that (i) person or his or her parents or guard-
are designed to meet individual edu- ian if the person were placed in the
cational needs of handicapped persons program operated by the recipient.
as adequately as the needs of nonhandi- (3) Residential placement. If a public or
capped persons are met and (ii) are private residential placement is nec-
based upon adherence to procedures essary to provide a free appropriate
that satisfy the requirements of public education to a handicapped per-
§§ 15b.23, 15b.24, and ;15b.25. son because of their handicap, the
459
placement, including nonmedical care (b) Nonacademic setting. In providing

and room and board, shall be provided or arranging for the provision of non-
at no cost to the person or his or her academic and extracurricular services
parents or guardian. and activities, including meals, recess
(4) Placement of handicapped persons periods, and the services and activities
by parents. If a recipient has made set forth in § 15b.26(a)(2), a recipient
available in conformance with the re- shall ensure that handicapped persons
quirements of this section and § 15b.23, participate with nonhandicapped per-
a free appropriate public education to a sons in such activities and services to
handicapped person and the person’s the maximum extent appropriate to
parents or guardian choose to place the the needs of the handicapped person in
person in a private school, the recipi- question.
ent is not required to pay for the per- (c) Comparable facilities. If a recipient,
son’s education in the private school. in compliance with paragraph (a) of
Disagreements between a parent or this section, operates a facility that is
guardian and a recipient regarding identifiable as being for handicapped
whether the recipient has made a free persons, the recipient shall ensure that
appropriate education available or oth- the facility and the services and activi-
erwise regarding the question of finan- ties provided therein are comparable to
cial responsibility are subject to the the other facilities, services, and ac-
due process procedures of § 15b.25. tivities of the recipient.
(d) Compliance. A recipient may not
exclude any qualified handicapped per- § 15b.24 Evaluation and placement.
son from a public elementary or sec- (a) Placement evaluation. A recipient
ondary education after the effective that operates a public elementary or
date of this regulation. A recipient secondary education program or activ-
that is not, on the effective date of this ity shall conduct an evaluation in ac-
regulation, in full compliance with the cordance with the requirements of
other requirements of the preceding paragraph (b) of this section of any per-
paragraphs of this section shall meet son who, because of handicap, needs or
such requirements at the earliest prac- is believed to need special education or
ticable time but in no event later than related services before taking any ac-
September 1, 1982. tion with respect to the initial place-
[47 FR 25470, June 11, 1982, as amended at 68 ment of the person in regular or special
FR 51343, Aug. 26, 2003] education and any subsequent signifi-
cant change in placement.
§ 15b.23 Educational setting. (b) Evaluation procedures. A recipient
(a) Academic setting. A recipient to to which this section applies shall es-
which this subpart applies shall edu- tablish standards and procedures for
cate, or shall provide for the education the evaluation and placement of per-
of each qualified handicapped person in sons who, because of handicap, need or
its jurisdiction with persons who are are believed to need special education
not handicapped to the maximum ex- or related services which ensure that:
tent appropriate to the needs of the (1) Tests and other evaluation mate-
handicapped person. A recipient shall rials have been validated for the spe-
place a handicapped person in the reg- cific purpose for which they are used
ular educational environment operated and are administered by trained per-
by the recipient unless it is dem- sonnel in conformance with the in-
onstrated by the recipient that the structions provided by their producer;
education of the person in the regular (2) Tests and other evaluation mate-
environment with the use of supple- rials include those tailored to assess
mentary aids and services cannot be specific areas of educational need and
achieved satisfactorily. Whenever a re- not merely those which are designed to
cipient places a person in a setting provide a single general intelligence
other than the regular educational en- quotient; and
vironment pursuant to this paragraph, (3) Tests are selected and adminis-
it shall take into account the prox- tered so as best to ensure that, when a
imity of the alternate setting to the test is administered to a student with
person’s home. impaired sensory, manual, or speaking
460
skills, the test results accurately re- one means of meeting this require-
flect the student’s aptitude or achievement.
ment level or whatever other factor the [47 FR 25470, June 11, 1982, as amended at 68
test purports to measure, rather than FR 51343, Aug. 26, 2003]
reflecting the student’s impaired sen-
sory, manual or speaking skills (except § 15b.26 Nonacademic services.
where those skills are the factors that (a) General. (1) Recipients to which
the test purports to measure). this subpart applies shall provide non-
(c) Placement procedures. In inter- academic and extracurricular services
preting evaluation data and in making and activities in such a manner as is
placement decisions, a recipient shall necessary to afford handicapped stu-
(1) draw upon information from a vari- dents an equal opportunity for partici-
ety of sources, including aptitude and pation in such services and activities.
achievement tests, teacher rec- (2) Nonacademic and extracurricular
ommendations, physical conditions, so- services and activities may include
cial or cultural background, and adapt- counseling services, physical education
ive behavior, (2) establish procedures to and athletics, food services, transpor-
ensure that information obtained from tation, health services, recreational ac-
all such sources is documented and tivities, special interest groups or
carefully considered, (3) ensure that clubs sponsored by the recipient, refer-
the placement decision is made by a rals to agencies which provide assist-
group of persons, including persons ance to handicapped persons, and as-
knowledgeable about the child, the sistance in obtaining outside employ-
meaning of the evaluation data, and ment.
the placement options, and (4) ensure (b) Counseling services. A recipient to
that the placement decision is made in which this subpart applies that pro-
conformity with § 15b.23. vides personal, academic, or vocational
(d) Reevaluation. A recipient to which counseling, guidance, or placement
this section applies shall establish pro- services to its students shall provide
cedures, in accordance with paragraph these services without discrimination
(b) of this section, for periodic reevalu- on the basis of handicap. The recipient
ation of students who have been pro- shall ensure that qualified handicapped
vided special education and related students are not counseled toward
services. A reevaluation procedure con- more restrictive career objectives than
sistent with the Education for the are nonhandicapped students with
Handicapped Act is one means of meet- similar interests and abilities.
ing this requirement. (c) Physical education and athletics. (1)
[47 FR 25470, June 11, 1982, as amended at 68 In providing physical education courses
FR 51343, Aug. 26, 2003] and athletics and similar aid, benefits,
and services to any of its students, a
§ 15b.25 Procedural safeguards. recipient to which this subpart applies
A recipient that provides a public el- may not discriminate on the basis of
ementary or secondary education shall handicap. A recipient that offers phys-
establish and implement, with respect ical education courses or that operates
to action regarding the identification, or sponsors interscholastic, club, or in-
evaluation, or educational placement tramural athletics shall provide to
of persons who, because of handicap, qualified handicapped students an
need or are believed to need special in- equal opportunity for participation.
struction or related services, a system (2) A recipient may offer handicapped
of procedural safeguards that includes students physical education and ath-
notice, an opportunity for the parents letic activities that are separate or dif-
or guardian of the person to examine ferent from those offered to nonhandi-
relevant records, an impartial hearing capped students only if separation or
with opportunity for participation by differentiation is consistent with re-
the person’s parents or guardian and quirements of § 15b.23, and only if no
representation by counsel, and a review qualified handicapped student is denied

procedure. Compliance with the proce- the opportunity to compete for teams
dural safeguards of section 615 of the or to participate in courses that are
Education of the Handicapped Act is not separate or different.
461
(d) Food services. In providing food as homes and farm buildings, recipients
services to any of its students, a recipi- shall use accessible facilities whenever
ent to which this subpart applies may qualified handicapped persons requir-
not discriminate on the basis of handi- ing such accessibility are partici-
cap. (1) Recipients shall serve special pating, have expressed an interest in
meals, at no extra charge, to students participating, or are likely to partici-
whose handicap restricts their diet. Re- pate. If accessible facilities cannot be
cipients may require students to pro- selected because they are unavailable
vide medical certification that special or infeasible due to the nature of the
meals are needed because of their activity, recipients shall use other
handicap. methods to deliver aid, benefits, or
(2) Where existing food service facili- services to qualified handicapped per-
ties are not completely accessible and sons. These methods may include the
usable, recipients may provide aides or redesign of activities or some sessions
use other equally effective methods to of activities, the provision of aides,
serve food to handicapped persons. Re- home visits, or other equally effective
cipients shall provide all food services alternatives.
in the most intergrated setting appro- (4) Recipients shall make camping
priate to the needs of handicapped per- activities accessible to qualified handi-
sons as required by § 15b.23(b). capped persons. Recipients are not re-
[47 FR 25470, June 11, 1982, as amended at 68 quired to make every existing camp,
FR 51343, Aug. 26, 2003] all existing camp facilities, or all camp
sessions accessible, but recipients who
§ 15b.27 Extension education. operate more than one camp or session
(a) General. A recipient to which this may not limit qualified handicapped
subpart applies that provides extension persons to one camp or session.
education may not, on the basis of (c) Materials. Recipients shall make
handicap, exclude qualified handi- materials accessible to qualified handi-
capped persons. A recipient shall take capped persons with sensory or mental
into account the needs of such persons impairments. Commonly-used mate-
in determining the benefits or services rials shall be readily available in alter-
to be provided. nate forms such as Braille or tape.
(b) Delivery sites. (1) Where existing Upon request, recipients shall make
extension office facilities are inacces- other materials available through ap-
sible, recipients may make aid, bene- propriate means such as Braille, tape,
fits, or services normally provided at readers, large print formats, simplified
those sites available to qualified handi- versions, written scripts, or inter-
capped persons through other methods preters. Recipients need not provide in-
which are equally effective. These dividually prescribed devices, readers
methods may include meetings in ac- for personal use or study, or other de-
cessible locations, home visits, written vices or services of a personal nature.
or telephonic communications, and
other equally effective alternatives. [47 FR 25470, June 11, 1982, as amended at 68
FR 51342, 51343, Aug. 26, 2003]
(2) For aid, benefits, or services deliv-
ered at other publicly-owned facilities,
§ 15b.28 Private education.
recipients shall select accessible facili-
ties wherever possible. If accessible fa- (a) A recipient that provides private
cilities cannot be selected because they elementary or secondary education
are unavailable or infeasible due to the may not, on the basis of handicap, ex-
nature of the activity, recipients shall clude a qualified handicapped person if
use other methods to deliver aid, bene- the person can, with minor adjust-
fits, or services to qualified handi- ments, be provided an appropriate edu-
capped persons. These methods may in- cation, as defined by § 15b.22(b)(1)(i).
clude the redesign of activities or some Each recipient to which this section
sessions of activities, the provision of applies is also subject to the provisions
of §§; 15b.23 and 15b.26.
aides, home visits, or other equally ef-

fective alternatives. (b) A recipient to which this section
(3) For aid, benefits, or services deliv- applies may not charge more for the
ered at privately-owned facilities, such provision of an appropriate education
462
to handicapped persons than to non- ports to measure, rather than reflect-

handicapped persons except to the ex- ing the applicant’s impaired sensory,
tent that any additional charge is jus- manual, or speaking skills (except
tified by a substantial increase in cost where those skills are the factors that
to the recipient. the test purports to measure); (ii) ad-
[47 FR 25470, June 11, 1982, as amended at 68 missions tests that are designed for
FR 51343, Aug. 26, 2003] persons with impaired sensory, man-
ual, or speaking skills are offered as
Subpart E—Postsecondary often and in as timely a manner as are
Education other admissions tests; and (iii) admis-
sions tests are administered in facili-
§ 15b.29 Applicability. ties that, on the whole, are accessible
Subpart E applies to public and pri- to handicapped persons; and
vate postsecondary education programs (4) Except as provided in paragraph
or activities, including postsecondary (c) of this section, may not make
vocational education programs and ac- preadmission inquiry as to whether an
tivities, that receive Federal financial applicant for admission is a handi-
assistance provided by the Department capped person but, after admission,
of Agriculture after the effective date may take inquiries on a confidential
of this part. basis as to handicaps that may require
accommodation.
FR 52139, Dec. 19, 1990; 68 FR 51343, Aug. 26, (c) Preadmission inquiry exception.
2003] When a recipient is taking remedial ac-
tion to correct the effects of past dis-
§ 15b.30 Admissions and recruitment. crimination pursuant to § 15b.8(a) or
(a) General. Qualified handicapped when a recipient is taking voluntary
persons may not, on the basis of handi- action to overcome the effects of condi-
cap, be denied admission or be sub- tions that resulted in limited partici-
jected to discrimination in admission pation in its federally assisted program
or recruitment by a recipient to which or activity pursuant to § 15b.8(b), the
this subpart applies. recipient may invite applicants for ad-
(b) Admissions. In administering its missions to indicate whether and to
admission policies, a recipient to which what extent they are handicapped: Pro-
this subpart applies: vided, That (1) the recipient states
(1) May not apply limitations upon clearly on any written questionnaire
the number or proportion of handi- used for this purpose or makes clear
capped persons who may be admitted; orally if no written questionnaire is
(2) May not make use of any test or used that the information requested is
criterion for admission that has a dis- intended for use solely in connection
proportionate, adverse effect on handi- with its remedial action obligations or
capped persons or any class of handi-
its voluntary action efforts; and (2) the
capped persons unless (i) the test or
recipient states clearly that the infor-
criterion, as used by the recipient, has
mation is being requested on a vol-
been validated as a predictor of success
untary basis, that it will be kept con-
in the education program or activity in
question and (ii) alternate tests or cri- fidential, that refusal to provide it will
teria that have a less disproportionate, not subject the applicant to any ad-
adverse effect are not shown by the verse treatment, and that it will be
Secretary to be available. used only in accordance with this part.
(3) Shall assure itself that (i) admis- (d) Validity studies. For the purpose of
sions tests are selected and adminis- paragraph (b)(2) of this section, a re-
tered so as best to ensure that, when a cipient may base prediction equations
test is administered to an applicant on first year grades, but shall conduct
who has a handicap that impairs sen- periodic validity studies against the
criterion of overall success in the edu-
sory, manual, or speaking skills, the

test results accurately reflect the ap- cation program or activity in question
plicant’s aptitude or achievement level in order to monitor the general valid-
or whatever other factor the test pur- ity of the test scores.
463
§ 15b.31 Treatment of students. courses required for the completion of

degree requirements, and adaptation of
(a) General. No qualified handicapped
the manner in which specific courses
student shall, on the basis of handicap,
are conducted.
be excluded from participation in, be
(b) Other rules. A recipient to which
denied the benefits of, or otherwise be
this subpart applies may not impose
subjected to discrimination under any
upon handicapped students other rules,
academic, research, occupational train- such as the prohibition of tape record-
ing, housing, health, insurance, coun- ers in classrooms or of dog guides in
seling, financial aid, physical edu- campus buildings, that have the effect
cation, athletics, recreation, transpor- of limiting the participation of handi-
tation, other extracurricular, other capped students in the recipient’s edu-
postsecondary education aid, benefits, cation program or activity.
or services to which this subpart ap- (c) Course examinations. In its course
plies. examinations or other procedures for
(b) A recipient to which this subpart evaluating students’ academic achieve-
applies that considers participation by ment, a recipient to which this subpart
students in education programs or ac- applies shall provide such methods for
tivities not operated wholly by the re- evaluating the achievement of students
cipient as part of, or equivalent to, an who have a handicap that impairs sen-
education program or activity operated sory, manual, or speaking skills as will
by the recipient shall assure itself that best ensure that the results of the eval-
the other education program or activ- uation represent the students’ achieve-
ity, as a whole, provides an equal op- ments in the course, rather than re-
portunity for the participation of flecting the students’ impaired sen-
qualified handicapped persons. sory, manual, or speaking skills (ex-
(c) A recipient to which this subpart cept where such skills are the factors
applies may not, on the basis of handi- that the test purports to measure).
cap, exclude any qualified handicapped (d) Auxiliary aids. (1) A recipient to
student from any course, course of which this subpart applies shall take
study, or other part of its education such steps as are necessary to ensure
program or activity. that no handicapped student is denied
(d) A recipient to which this subpart the benefits of, excluded from partici-
applies shall operate its programs or pation in, or otherwise subjected to
activities in the most integrated set- discrimination because of the absence
ting appropriate. of educational auxiliary aids for stu-
[47 FR 25470, June 11, 1982, as amended at 68 dents with impaired sensory, manual,
FR 51343, Aug. 26, 2003] or speaking skills.
(2) Auxiliary aids may include taped
§ 15b.32 Academic adjustments. texts, interpreters or other effective
(a) Academic requirements. A recipient methods of making orally delivered
to which this subpart applies shall materials available to students with
make such modifications to its aca- hearing impairments, readers in librar-
demic requirements as are necessary to ies for students with visual impair-
ensure that such requirements do not ments, classroom equipment adapted
discriminate or have the effect of dis- for use by students with manual im-
criminating on the basis of handicap, pairments, and other similar services
against a qualified handicapped appli- and actions. Recipients need not pro-
cant or student. Academic require- vide attendants, individually pre-
ments that the recipient can dem- scribed devices, readers for personal
onstrate are essential to the instruc- use or study, or other devices or serv-
tion being pursued by such student or ices of a personal nature.
to any directly related licensing re- [47 FR 25470, June 11, 1982, as amended at 68
quirement will not be regarded as dis- FR 51343, Aug. 26, 2003]
criminatory within the meaning of this
§ 15b.33 Housing.
section. Modifications may include

changes in the length of time per- (a) Housing provided by the recipient. A
mitted for the completion of degree re- recipient that provides housing to its
quirements, substitution of specific nonhandicapped students shall provide
464
comparable, convenient, and accessible (c) Employment of students by recipi-

housing to handicapped students at the ents. A recipient that employs any of
same cost as to others. At the end of its students may not do so in a manner
the transition period provided for in that violates subpart B.
subpart C, such housing shall be avail-
able in sufficient quantity and variety § 15b.35 Nonacademic services.
so that the scope of handicapped stu- (a) Physical education and athletics. (1)
dents’ choice of living accommodations In providing physical education courses
is, as a whole, comparable to that of and athletics and similar aid, benefits,
nonhandicapped students. or services to any of its students, a re-
(b) Other housing. A recipient that as- cipient to which this subpart applies
sists any agency, organization, or per-
may not discriminate on the basis of
son in making housing available to any
handicap. A recipient that offers phys-
of its students shall take such action
ical education courses or that operates
as may be necessary to assure itself
or sponsors intercollegiate, club, or in-
that such housing is, as a whole, made
tramural athletics shall provide to
available in a manner that does not re-
sult in discrimination on the basis of qualified handicapped students an
handicap. equal opportunity for participation in
these activities.
§ 15b.34 Financial and employment as- (2) A recipient may offer to handi-
sistance to students. capped students physical education and
(a) Provision of financial assistance. (1) athletic activities that are separate or
In providing financial assistance to different only if separation or differen-
qualified handicapped persons, a recipi- tiation is consistent with the require-
ent to which this subpart applies may ments of § 15b.31(d) and only of no
not, (i) on the basis of handicap, pro- qualified handicapped student is denied
vide less assistance than is provided to the opportunity to compete for teams
nonhandicapped persons, limit eligi- or to participate in courses that are
bility for assistance, or otherwise dis- not separate or different.
criminate or (ii) assist any entity or (b) Counseling and placement services.
person that provides assistance to any A recipient to which this subpart ap-
of the recipient’s students in a manner plies that provides personal, academic,
that discriminates against qualified or vocational counseling, guidance, or
handicapped persons on the basis of placement services to its students shall
handicap. provide these services without dis-
(2) A recipient may administer or as- crimination on the basis of handicap.
sist in the administration of scholar- The recipient shall ensure that quali-
ships, fellowships, or other forms of fi- fied handicapped students are not
nancial assistance established under counseled toward more restrictive ca-
wills, trusts, bequests, or similar legal reer objectives than are nonhandcapped
instruments that require awards to be students with similar interests and
made on the basis of factors that abilities. This requirement does not
discrimate or have the effect of dis- preclude a recipient from providing
criminating on the basis of handicap factual information about licensing
only if the overall effect of the award and certification requirements that
of scholarships, fellowships, and other may present obstacles to handicapped
forms of financial assistance is not dis- persons in their pursuit of particular
criminatory on the basis of handicap. careers.
(b) Assistance in making available out-
(c) Social organizations. A recipient
side employment. A recipient that as-
that provides significant assistance to
sists any agency, organization, or per-
fraternities, sororities, or similar orga-
son in providing employment opportu-
nizations shall assure itself that the
nities to any of its students shall as-
membership practices of such organiza-
sure itself that such employment op-
tions do not permit discrimination oth-
portunities, as a whole, are made avail-

able in a manner that would not vio- erwise prohibited by this subpart.
late subpart B if they were provided by [47 FR 25470, June 11, 1982, as amended at 68
the recipient. FR 51343, Aug. 26, 2003]
465
Subpart F—Other Aid, Benefits, or drug or alcohol abuser or alcoholic who

Services is suffering from a medical condition,
because of the person’s drug or alcohol
§ 15b.36 Applicability. abuse or alcoholism.
Subpart F applies to aid, benefits, or § 15b.39 Education of institutionalized
services, other than those covered by persons.
subparts D and E, that receive Federal
financial assistance provided by the A recipient to which this subpart ap-
Department of Agriculture after the ef- plies that operates or supervises a pro-
fective date of this part. gram or activity that provides aid, ben-
efits, or services for persons who are
[47 FR 25470, June 11, 1982, as amended at 55 institutionalized because of handicap
FR 52139, Dec. 19, 1990; 68 FR 51343, Aug. 26,
2003]
shall ensure that each qualified handi-
capped person, as defined in
§ 15b.37 Auxiliary aids. § 15b.3(n)(2), in its program or activity
is provided an appropriate education,
(a) A recipient to which this subpart
as defined in § 15b.22(b). Nothing in this
applies that employs fifteen or more
section shall be interpreted as altering
persons shall provide appropriate auxil-
in any way the obligations of recipi-
iary aids to persons with impaired sen-
ents under subpart D.
sory, manual, or speaking skills, where
necessary to afford such persons an [47 FR 25470, June 11, 1982, as amended at 68
equal opportuntiy to benefit from the FR 51343, Aug. 26, 2003]
service in question.
(b) The Secretary may require recipi- § 15b.40 Food services.
ents with fewer than fifteen employees (a) Recipients which provide food
to provide auxiliary aids where the pro- services shall serve special meals, at no
vision of aids would not significantly extra charge, to persons whose handi-
impair the ability of the recipient to cap restricts their diet. Recipients may
provide its benefits or services. require handicapped persons to provide
(c) For the purpose of this section, medical certification that special
auxiliary aids may include Brailled and meals are needed because of their
taped material, interpreters, and other handicap.
aids for persons with impaired hearing (b) Where existing food service facili-
or vision. ties are not completely accessible and
usable, recipients may provide aides or
§ 15b.38 Health care facilities.
use other equally effective methods to
(a) Communications. A recipient that serve food to handicapped persons. Re-
provides notice concerning benefits or cipients shall provide all food services
services or written material con- in the most integrated setting appro-
cerning waivers of rights or consent to priate to the needs of handicapped per-
treatment shall take such steps as are sons.
necessary to ensure that qualified
handicapped persons, including those [47 FR 25470, June 11, 1982, as amended at 68
with impaired sensory or speaking FR 51343, Aug. 26, 2003]
skills, are not denied effective notice
§ 15b.41 Multi-family rental housing.
because of their handicap.
(b) Emergency treatment for the hearing (a) General. No qualified handicapped
impaired. A recipient hospital that pro- person shall, on the basis of handicap,
vides health services or benefits shall be excluded from participation in, be
establish a procedure for effective com- denied the benefits of, or otherwise be
munication with persons with impaired subjected to discrimination in multi-
hearing for the purpose of providing family rental housing.
emergency health care. (b) New construction. (1) Recipients re-
(c) Drug and alcohol addicts. A recipi- ceiving assistance from the Depart-
ent to which this subpart applies that ment for multi-family rental housing
operates a general hospital or out- projects constructed after the effective
patient facility may not discriminate date of this part shall construct at
in admission or treatment against a least five percent of the units in the
466
Office of the Secretary, USDA Pt. 15b, App. A
project or one unit, whichever is great- § 15b.18 if a qualified handicapped per-

er, to be accessible to or adaptable for son applies for admission. Necessary
physically handicapped persons. The physical alterations made pursuant to
requirement that five percent of the such requirements shall be completed
units in the project or at least one within a reasonable amount of time
unit, whichever is greater, be acces- after the unit becomes available for oc-
sible or adaptable may be modified if a cupancy by the qualified handicapped
recipient shows, through a market sur- person. Subject to the availability of
vey approved by the Department, that funds and fulfillment by the recipient
a different percentage of accessible or of all program eligibility requirements,
adaptable units is appropriate for a the Department may assist recipients
particular project and its service area. to comply with accessibility require-
(i) The variety of units accessible to ments through methods such as (1) con-
or adaptable for physically handi-
sideration of subsequent loan applica-
capped persons shall be comparable to
tions for purposes of making existing
the variety of units available in the
facilities accessible or for the construc-
project as a whole.
(ii) No extra charge may be made for tion of additional units which are
use of accessible or adaptable units. accessbile and (2) consideration of ap-
(iii) A recipient that operates multi- proval to commit project reserve ac-
family rental housing projects on more count funds for minor modifications in
than one site may not locate all acces- order to make existing facilities acces-
sible or adaptable units at one site un- sible.
less only one accessible or adaptable [47 FR 25470, June 11, 1982, as amended at 68
unit is required. FR 51343, Aug. 26, 2003]
(2) Standards for accessibility are
contained in subpart C and in appro-
priate regulations. Subpart G—Procedures
(c) Existing facilities. Recipients re-
§ 15b.42 Procedures.
ceiving assistance from the Depart-
ment for multi-family rental housing The procedural provisions applicable
projects constructed prior to the effec- to title VI of the Civil Rights Act of
tive date of this part shall assure that 1964 apply to this part. These proce-
their facilities comply with the acces- dures are found in 7 CFR 15.5–15.11 and
sibility requirements established in 15.60–15.143.
APPENDIX A TO PART 15b—LIST OF FEDERAL FINANCIAL ASSISTANCE FROM USDA

The types of Federal financial assistance administered by the U.S. Department of Agri-
culture include but are not limited to the following:
Administered by the Agricultural Cooperative Service
1. Technical assistance for agricultural co- Cooperative Marketing Act of 1926, 7 U.S.C., Secs. 451–457.
operatives.
Administered by the Agricultural Marketing Service
2. Federal-State marketing improvement pro- Sec. 204(b) of the Agricultural Marketing Act of 1946, 7 U.S.C. 1623(b).
gram.
3. Market news service ...................................... Sec. 203(g) of the Agricultural Marketing Act of 1946, 7 U.S.C. 1622(g); the
Cotton Statistics and Estimates Act, as amended, 7 U.S.C. 471–476; the To-
bacco Statistics Act, as amended, 7 U.S.C. 501–508; the Tobacco Inspec-
tion Act, 7 U.S.C. 511–511(q); the Naval Stores Act, 7 U.S.C. 91–99; the
Turpentine and Rosin Statistics Act, 7 U.S.C. 2248; the United States Cotton
Futures Act, 7 U.S.C. 15b; and the Peanut Statistics Act as amended, 7
U.S.C. 951–957.
467
Pt. 15b, App. A 7 CFR Subtitle A (1–1–12 Edition)
Administered by the Agricultural Research Service
4. Agriculture research grants ........................... Secs. 1 and 10 of the Act of June 29, 1935, as amended, 7 U.S.C. 427 and
427i; and 202–208 of the Agricultural Marketing Act of 1946, as amended, 7
U.S.C. 1621–1627.
Administered by the Agricultural Stabilization Conservation Service
5. Price support programs operating through Agricultural Act of 1949, as amended; 7 U.S.C. 1421–1447.
producer associations, cooperatives, and
other recipients in which the recipient is re-
quired to furnish specified benefits to pro-
ducers (e.g., tobacco, peanuts, sugar, cotton,
rice, honey and soybeans price support pro-
grams).
6. Disaster feed donation programs .................. Section 407 of the Agricultural Act of 1949, as amended, 7 U.S.C. 1427.
Administered by the Cooperative State Research Service
7. Payments under the Hatch Act ..................... Hatch Act of 1887, as amended, 7 U.S.C. 361a–361i.
8. McIntire-Stennis cooperative forestry re- Act of October 10, 1962, as amended, 16 U.S.C. 582a–582a–7.
search.
9. Payments to 1890 colleges and Tuskegee Sec. 1445 of the Food and Agriculture Act of 1977, as amended, 7 U.S.C.
Institute for research. 3222.
10. Native latex research ................................... Native Latex Commercialization and Economic Development Act of 1978, 7
U.S.C. 178 et seq.
11. Alcohol Fuels research ................................ Sec. 1419 of the Food and Agriculture Act of 1977, as amended, 7 U.S.C.
3154.
12. Animal Health Research .............................. Sec. 1433 of the Food and Agriculture Act of 1977, as amended, 7 U.S.C.
3195.
13. Competitive research grants ........................ Sec. 2(b) of the Act of August 4, 1965, as amended, 7 U.S.C. 450i(b).
14. Experiment station research facilities .......... Act of July 22, 1963, as amended, 7 U.S.C. 390–390j.
15. Special research grants ............................... Sec. 2(c) of the Act of August 4, 1965, as amended, 7 U.S.C. 450i(c).
16. Rural development research ....................... Title V of the Rural Development Act of 1972, as amended, 7 U.S.C. 2661 et.
seq.
Administered by Extension Service
17. Cooperative extension work ........................ Smith-Lever Act, as amended, 7 U.S.C. 341–349; District of Columbia Public
Postsecondary Education Reorganization Act, D.C. Code Secs. 31–1719;
Rural Development Act of 1972, as amended, 7 U.S.C. 2661 et. seq.; Sec.
1444 of the Food and Agriculture Act of 1977, 7 U.S.C. 3221.
Administered by Farmers Home Administration
18. Farm ownership loans to install or improve Sec. 303 of the Consolidated Farm and Rural Development Act, as amended,
recreational facilities or other nonfarm enter- 7 U.S.C. 1923.
prises.
19. Operating loans to install or improve rec- Sec. 312 of the Consolidated Farm and Rural Development Act, as amended,
reational facilities or other nonfarm enter- 7 U.S.C. 1942.
prises.
20. Soil and water conservation, (including pol- Sec. 304 of the Consolidated Farm and Rural Development Act, as amended,
lution abatement facilities), and recreational 7 U.S.C. 1924.
facilities.
21. Financial and other assistance to land- Sec. 203 of the Appalachian Regional Development Act of 1965, as amended,
owners, operators, or occupiers to carry out 40 U.S.C. App. 203.
land uses and conservation.
22. Rural renewal, resource, conservation de- Secs. 31–35 of the Bankhead-Jones Farm Tenant Act, as amended, 7 U.S.C.
velopment, land conservation and utilization. 1010–1035.
23. Watershed protection and flood prevention Watershed Protection and Flood Prevention Act, as amended, 16 U.S.C.
program. 1001–1008.
24. Resource conservation and development Sec. 32(e) of the Bankhead-Jones Farm Tenant Act, as amended, 7 U.S.C.
loans. 1011(e).
25. Farm labor housing loans ............................ Sec. 514 of the Housing Act of 1949, 42 U.S.C. 1484.
26. Farm labor housing grants .......................... Sec. 516 of the Housing Act of 1949, as amended, 42 U.S.C. 1486.
27. Rural rental housing for the elderly and Sec. 515 of the Housing Act of 1949, as amended, 42 U.S.C. 1485.
families of low and moderate income persons.
28. Rural cooperative housing ........................... Sec. 515 of the Housing Act of 1949, as amended, 42 U.S.C. 1485.
29. Rural housing site loans .............................. Sec. 524 of the Housing Act of 1949, as amended, 42 U.S.C. 1490d.
30. Technical and supervisory assistance Sec. 525 of the Housing Act of 1949, as amended, 42 U.S.C. 1490e.
grants.
31. Technical assistance grants ........................ Sec. 523 of the Housing Act of 1949, as amended, 42 U.S.C. 1490c.
468
Office of the Secretary, USDA Pt. 15b, App. A
32. Rural housing self-help site loans ............... Sec. 523 of the Housing Act of 1949, as amended, 42 U.S.C. 1490c.
33. Mutual self-help housing .............................. Sec. 523 of the Housing Act of 1949, as amended, 42 U.S.C. 1490c.
34. Water and waste facility loans and grants Sec. 306 of the Consolidated Farm and Rural Development Act, as amended,
and community facility loans and grants. 7 U.S.C. 1926.
35. Rural and industrial loan program ............... Sec. 310(a) of the Consolidated Farm and Rural Development Act, as amend-
ed, 7 U.S.C. 1932(a).
36. Private business enterprise grants .............. Sec. 310(c) of the Consolidated Farm and Rural Development Act, as amend-
ed, 7 U.S.C. 1932(c).
37. Area development assistance planning Sec. 306(a)(11) of the Consolidated Farm and Rural Development Act, as
grant program. amended, 7 U.S.C. 1926(a)(11).
38. Energy impacted area development assist- Sec. 601 of the Power Plant and Industrial Fuel Use Act of 1978, 42 U.S.C.
ance program. 8401.
Administered by the Federal Grain Inspection Service
39. Inspection administration and supervision .. U.S. Grain Standards Act, as amended, 7 U.S.C. 71–87; and, Sec. 203(h) of
the Agricultural Marketing Act of 1946, 7 U.S.C. 1621–1630.
Administered by the Food and Nutrition Service
40. Food stamp program ................................... Food Stamp Act of 1964, as amended, 7 U.S.C. 2011–2027.
41. Special supplemental food program for Sec. 17 of the Child Nutrition Act of 1966, as amended, 42 U.S.C. 1786.
women, infants, and children (WIC).
42. Commodity supplemental food program ..... Sec. 32 of the Act of August 24, 1935, as amended, 7 U.S.C. 612c; Sec. 416
of the Agricultural Act of 1949, as amended, 7 U.S.C. 1431.
43. Food distribution program ............................ Sec. 416 of the Agricultural Act of 1949, as amended, 7 U.S.C. 1431; Sec. 32
of the Act of August 24, 1935, as amended, 7 U.S.C. 612c; Secs. 6, 13 and
17 of the National School Lunch Act, as amended, 42 U.S.C. 1755, 1761,
1766; Sec. 8 of the Child Nutrition Act of 1966, 42 U.S.C. 1777; Sec. 709 of
the Food and Agriculture Act of 1965, as amended, 7 U.S.C. 1446a–1.
44. National school lunch program .................... National School Lunch Act, as amended, 42 U.S.C. 1751–1769a.
45. School breakfast program ........................... Sec. 4 of the Child Nutrition Act of 1966, as amended, 42 U.S.C. 1773.
46. Special milk program ................................... Sec. 3 of the Child Nutrition Act of 1966, as amended, 42 U.S.C. 1772.
47. Food service equipment assistance ............ Sec. 5 of the Child Nutrition Act of 1966, as amended, 42 U.S.C. 1774; Sec. 5
of the National School Lunch Act, as amended, 42 U.S.C. 1754.
48. Summer food service program .................... Sec. 13 of the National School Lunch Act, as amended, 42 U.S.C. 1761.
49. Child care food program .............................. Sec. 17 of the National School Lunch Act, as amended, 42 U.S.C. 1766.
50. Nutrition education and training program .... Secs. 18 and 19 of the Child Nutrition Act of 1966, 42 U.S.C. 1787, 1788.
Administered by the Food Safety and Inspection Service
51. Payments to States for the inspection of Egg Products Inspection Act, 21 U.S.C. 1031–1056.
egg handlers to insure that they are properly
disposing of restricted eggs.
52. Financial and technical assistance to States Federal Meat Inspection Act, as amended, 21 U.S.C. 601–695.
for meat inspection activities.
53. Financial and technical assistance to States Poultry Products Inspection Act, as amended, 21 U.S.C. 451–470.
for poultry inspection activities.
54. Financial and technical assistance to States Talmadge-Aiken Act, 7 U.S.C. 450.
for meat and poultry inspection activities.
Administered by the Forest Service
55. Permits for use of National Forests and Na- Act of June 4, 1897, as amended, 16 U.S.C. 551; Sec. 501 of the Federal
tional Grasslands by other than individuals at Land Policy Management Act of 1976, 43 U.S.C. 1761; Term Permit Act of
a nominal or no charge. March 4, 1915; as amended, 16 U.S.C. 497; Secs. 3 and 4 of the American
Antiquities Act of June 8, 1906, 16 U.S.C. 432; Sec. 32 of the Bankhead-
Jones Farm Tenant Act, as amended, 7 U.S.C. 1011.
56. Permit for land use of Government-owned Sec. 7 of the Granger-Thye Act of April 24, 1950, 16 U.S.C. 580d.
improvements by other than individuals at a
nominal charge.
57. Permits for disposal of common varieties of Secs. 1–4 of the Act of July 31, 1947, as amended, 30 U.S.C. 601–603, 611.
mineral materials from lands under the For-
est Service jurisdiction for use by other than
individuals at a nominal or no charge.
58. Easements for use of National Forests and Sec. 32 of the Bankhead-Jones Farm Tenant Act, as amended, 7 U.S.C. 1011;
Grasslands by other than individuals at a Sec. 501 of the Federal Land Policy and Management Act of 1976, 43
nominal or no charge. U.S.C. 1761.
59. Easements for road rights-of-way over Sec. 2 of the Act of October 13, 1964, 16 U.S.C. 533.
lands administered by the Forest Service.
60. Road rights-of-way ....................................... Federal Highway Act of 1958, 23 U.S.C. 107, 317.
61. Rights-of-ways for wagon roads or railroads Sec. 501 of the Act of March 3, 1899, 16 U.S.C. 525.
469
Pt. 15b, App. A 7 CFR Subtitle A (1–1–12 Edition)
62. Timber granted free or at nominal cost to Sec. 1 of the Act of June 4, 1897, as amended, 16 U.S.C. 551; Sec. 32 of the
any group. Bankhead-Jones Farm Tenant Act, as amended, 7 U.S.C. 1011.
63. Transfer for fire-lookout towers, improve- Sec. 5 of the Act of June 20, 1958, 16 U.S.C. 565b.
ments and land to States political subdivi-
sions.
64. Payment of 25 percent of National Forest Act of May 23, 1908, as amended, 16 U.S.C. 500.
receipts to States for schools and roads.
65. Payment to Minnesota from National Forest Sec. 5 of the Act of June 22, 1948, as amended, 16 U.S.C. 577g, 577g–1.
receipts of a sum based on a formula.
66. Payment of 25 percent of net revenues Sec. 33 of the Bankhead-Jones Farm Tenant Act, as amended, 7 U.S.C. 1012.
from Title III, Bankhead-Jones Farm Tenant
Act lands to counties for schools and road
purposes.
67. Cooperative action to protect, develop, Cooperative Forestry Assistance Act of 1978, 16 U.S.C. 2101–2111.
manage, and utilize forest resources on
State and private lands.
68. Advance of funds for cooperative research Sec. 20 of the Granger-Thye Act of April 24, 1950, 16 U.S.C. 581i–1.
69. Grants for support of scientific research ..... Act of September 6, 1958, 42 U.S.C. 1891–1893.
70. Research cooperation .................................. Forest and Rangeland Renewable Resources Research Planning Act of 1974,
as amended, 16 U.S.C. 1600–1614.
71. Youth conservation corps State grant pro- Act of August 13, 1970, as amended, 16 U.S.C. 1701–1706.
gram.
72. Young adult conservation corps State grant Secs. 801–809 of the Comprehensive Employment and Training Act, as
program. amended, 29 U.S.C. 991–999.
73. Grants to Maine, Vermont, and New Hamp- Older Americans Act of 1965, as amended, 42 U.S.C. 3001–3057g.
shire for the purpose of assisting economi-
cally disadvantaged citizens over 55 years of
age.
74. Senior community service employment pro- Sec. 902(b)(2) of Title IX of the Older Americans Amendments of 1975, 42
gram (SCSEP). U.S.C.
Administered by the Rural Electrification Administration
75. Rural electrification and rural telephone Rural Electrification Act of 1963, as amended, 7 U.S.C. 901–950b.
programs.
76. CATV, community facilities program ........... Secs. 306 and 310B of the Consolidated Farm and Rural Development Act of
1979, 7 U.S.C. 1926, 1932.
Administered by Science and Education Program Staff
77. Higher education .......................................... Sec. 22 of the Act of June 29, 1935, as amended, 7 U.S.C. 329; Sec. 1417 of
the Food and Agriculture Act of 1977, 7 U.S.C. 3152.
Administered by the Soil Conservation Service
78. Soil and water conservation ........................ Secs. 1–6 and 17 of the Soil Conservation and Domestic Allotment Act, as
amended, 16 U.S.C. 590a–590f, 590q.
79. Plant materials for conservation .................. Secs. 1–6 and 17 of the Soil Conservation and Domestic Allotment Act, as
amended, 16 U.S.C. 590a–590f, 590q.
80. Resource, conservation and development .. Secs. 31 and 32 of the Bankhead-Jones Farm Tenant Act, as amended, 7
U.S.C. 1010, 1111; Secs. 1–6 and 17 of the Soil Conservation and Domestic
Allotment Act, as amended, 16 U.S.C. 590a–590f, 590q.
81. Watershed protection and flood prevention Watershed Protection and Flood Prevention Act, as amended, 16 U.S.C.
1001–1008.
82. Great plains conservation ............................ Secs. 1–6 and 17 of the Soil Conservation and Domestic Allotment Act, as
amended, 16 U.S.C. 590a–590f, 590q.
83. Soil survey ................................................... Secs. 1–6 and 17 of the Soil Conservation and Domestic Allotment Act, as
amended, 16 U.S.C. 590a–590f, 590q.
84. River basin surveys and investigations ....... Sec. 6 of the Watershed Protection and Flood Prevention Act, 16 U.S.C. 1006.
85. Snow survey and water supply forecasting Secs. 1–6 and 17 of the Soil Conservation and Domestic Allotment Act, as
amended, 16 U.S.C. 590a–590f, 590q.
86. Land inventory and monitoring .................... Secs. 1–6 and 17 of the Soil Conservation and Domestic Allotment Act, as
amended, 16 U.S.C. 590a–590f, 590q; Sec. 302 of the Rural Development
Act of 1972, 7 U.S.C. 1010a.
87. Resource appraisal and program develop- Soil and Water Resources Conservation Act of 1977, 16 U.S.C. 2001–2009.
ment.
88. Rural clean water program .......................... Clean Water Act, 33 U.S.C. 1251–1376.
89. Rural abandoned mine program .................. Secs. 406–413 of the Surface Mining Control and Reclamation Act of 1977, 30
U.S.C. 1236–1243.
90. Emergency watershed protection ................ Sec. 7 of the Act of June 28, 1938, as amended, 33 U.S.C. 701b–1; Sec. 403,
Agriculture Credit Act of 1978, 16 U.S.C. 2203.
91. Eleven authorized watershed projects ........ Sec. 13 of the Act of December 22, 1944, 58 Stat. 905.
470
Office of the Secretary, USDA § 15d.4
Administered by the Office of Transportation
92. Transportation services ............................... Sec. 201 of the Agricultural Adjustment Act of 1938, 7 U.S.C. 1291; Sec.
203(j) of the Agricultural Marketing Act of 1946, as amended, 7 U.S.C.
1622(l); Sec. 104 of the Agricultural Trade Development and Assistance Act
of 1954, as amended, 7 U.S.C. 1704.
[47 FR 25470, June 11, 1982, as amended at 68 FR 51342, Aug. 26, 2003]
PART 15d—NONDISCRIMINATION manner in a proceeding under this

IN PROGRAMS OR ACTIVITIES part.
CONDUCTED BY THE UNITED § 15d.3 Compliance.
STATES DEPARTMENT OF AGRI- The Director of the Office of Civil
CULTURE Rights shall evaluate each agency’s ef-
forts to comply with this part and shall
Sec. make recommendations for improving
15d.1 Purpose. such efforts.
15d.2 Discrimination prohibited.
15d.3 Compliance. § 15d.4 Complaints.
15d.4 Complaints.
(a) Any person who believes that he
AUTHORITY: 5 U.S.C. 301. or she (or any specific class of individ-
SOURCE: 64 FR 66709, Nov. 30, 1999, unless
uals) has been, or is being, subjected to
otherwise noted. practices prohibited by this part may
file on his or her own, or through an
§ 15d.1 Purpose. authorized representative, a written
complaint alleging such discrimina-
The purpose of this part is to set tion. No particular form of complaint
forth the nondiscrimination policy of is required. The written complaint
the United States Department of Agri- must be filed within 180 calendar days
culture in programs or activities con- from the date the person knew or rea-
ducted by the Department, including sonably should have known of the al-
such programs and activities in which leged discrimination, unless the time is
the Department or any agency thereof extended for good cause by the Direc-
makes available any benefit directly to tor of the Office of Civil Rights or his
persons under such programs and ac- or her designee. Any person who com-
tivities. plains of discrimination under this part
in any fashion shall be advised of his or
§ 15d.2 Discrimination prohibited.
her right to file a complaint as herein
(a) No agency, officer, or employee of provided.
the United States Department of Agri- (b) All complaints under this part
culture shall, on the ground of race, should be filed with the Director of the
color, religion, sex, age, national ori- Office of Civil Rights, United States
gin, marital status, familial status, Department of Agriculture, Wash-
sexual orientation, or disability, or be- ington, D.C. 20250, who will investigate
cause all of part of an individual’s in- the complaints. The Director of the Of-
come is derived from any public assist- fice of Civil Rights will make final de-
ance program, exclude from participa- terminations as to the merits of com-
tion in, deny the benefits of, or subject plaints under this part and as to the
to discrimination any person in the corrective actions required to resolve
United States under any program or program complainants. The complaint
activity conducted by the United will be notified of the final determina-
States Department of Agriculture. tion on his or her complaint.
(b) No person shall be subjected to re- (c) Any complaint filed under this
prisal for opposing any practice prohib- part alleging discrimination on the
ited by this part or for filing a com- basis of disability will be processed
plaint or participating in any other under 7 CFR part 15e.
471
Pt. 15e 7 CFR Subtitle A (1–1–12 Edition)
PART 15e—ENFORCEMENT OF Rights Division, United States Depart-

NONDISCRIMINATION ON THE ment of Justice.
BASIS OF HANDICAP IN PRO- Auxiliary aids means services or de-
GRAMS OR ACTIVITIES CON- vices that enable persons with im-
paired sensory, manual, or speaking
DUCTED BY THE UNITED STATES skills to have an equal opportunity to
DEPARTMENT OF AGRICULTURE participate in, and enjoy the benefits
of, programs or activities conducted by
Sec.
15e.101 Purpose.
the agency. For example, auxiliary aids
15e.102 Application. useful for persons with impaired vision
15e.103 Definitions. include readers, Brailled materials,
15e.104–15e.109 [Reserved] audio recordings, and other similar
15e.110 Self-evaluation. services and devices. Auxiliary aids
15e.111 Notice. useful for persons with impaired hear-
15e.112–15e.129 [Reserved] ing include telephone handset ampli-
15e.130 General prohibitions against dis- fiers, telephones compatible with hear-
crimination.
15e.131–15e.139 [Reserved]
ing aids, telecommunication devices
15e.140 Employment. for deaf persons (TTD’s), interpreters,
15e.141–15e.148 [Reserved] notetakers, written materials, and
15e.149 Program accessibility: Discrimina- other similar services and devices.
tion prohibited. Complete complaint means a written
15e.150 Program accessibility: Existing fa- statement that contains the complain-
cilities. ant’s name and address and describes
15e.151 Program accessibility: New con-
struction and alterations.
the agency’s alleged discriminatory ac-
15e.152–15e.159 [Reserved] tion in sufficient detail to inform the
15e.160 Communications. agency of the nature and date of the al-
15e.161–15e.169 [Reserved] leged violation of section 504. It shall
15e.170 Compliance procedures be signed by the complainant or by
15e.171–15e.999 [Reserved] someone authorized to do so on his or
AUTHORITY: 29 U.S.C. 794. her behalf. Complaints filed on behalf
of classes or third parties shall describe
SOURCE: 58 FR 57697, 57699, Oct. 26, 1993, un-
less otherwise noted.
or identify (by name, if possible) the
alleged victims of discrimination.
§ 15e.101 Purpose. Facility means all or any portion of
The purpose of this part is to effec- buildings, structures, equipment,
tuate section 119 of the Rehabilitation, roads, walks, parking lots, rolling
Comprehensive Services, and Develop- stock or other conveyances, or other
mental Disabilities Amendments of real or personal property.
1978, which amended section 504 of the Historic preservation programs means
Rehabilitation Act of 1973 to prohibit programs conducted by the agency that
discrimination on the basis of handicap have preservation of historic properties
in programs or activities conducted by as a primary purpose.
Executive agencies or the United Historic properties means those prop-
States Postal Service. erties that are listed or eligible for
listing in the National Register of His-
§ 15e.102 Application. toric Places or properties designated as
This part (§§ 15e.101–15e.170) applies to historic under a statute of the appro-
all programs or activities conducted by priate State or local government body.
the agency, except for programs or ac- Individual with handicaps means any
tivities conducted outside the United person who has a physical or mental
States that do not involve individuals impairment that substantially limits
with handicaps in the United States. one or more major life activities, has a
record of such an impairment, or is re-
§ 15e.103 Definitions. garded as having such an impairment.
For purposes of this part, the term— As used in this definition, the phrase:
Assistant Attorney General means the (1) Physical or mental impairment in-
Assistant Attorney General, Civil cludes—
472
Office of the Secretary, USDA § 15e.110
(i) Any physiological disorder or con- receive education services from the
dition, cosmetic disfigurement, or ana- agency;
tomical loss affecting one or more of (2) With respect to any other agency
the following body systems: Neuro- program or activity under which a per-
logical; musculoskeletal; special sense son is required to perform services or
organs; respiratory, including speech to achieve a level of accomplishment,
organs; cardiovascular; reproductive; an individual with handicaps who
digestive; genitourinary; hemic and meets the essential eligibility require-
lymphatic; skin; and endocrine; or ments and who can achieve the purpose
(ii) Any mental or psychological dis- of the program or activity without
order, such as mental retardation, or- modifications in the program or activ-
ganic brain syndrome, emotional or ity that the agency can demonstrate
mental illness, and specific learning would result in a fundamental alter-
disabilities. The term ‘‘physical or ation in its nature;
mental impairment’’ includes, but is (3) With respect to any other pro-
not limited to, such diseases and condi- gram or activity, an individual with
tions as orthopedic, visual, speech, and handicaps who meets the essential eli-
hearing impairments, cerebral palsy, gibility requirements for participation
epilepsy, muscular dystrophy, multiple in, or receipt of benefits from, that pro-
sclerosis, cancer, heart disease, diabe- gram or activity; and
tes, mental retardation, emotional ill- (4) Qualified handicapped person as
ness, HIV disease (whether sympto- that term is defined for purposes of em-
matic or asymptomatic), and drug ad- ployment in 29 CFR 1614.203(a)(6),
diction and alcoholism. which is made applicable to this part
(2) Major life activities include func- by § 15e.140.
tions such as caring for one’s self, per- Section 504 means section 504 of the
forming manual tasks, walking, seeing, Rehabilitation Act of 1973 (Pub. L. 93–
hearing, speaking, breathing, learning, 112, 87 Stat. 394 (29 U.S.C. 794)), as
and working. amended. As used in this part, section
(3) Has a record of such an impairment 504 applies only to programs or activi-
means has a history of, or has been ties conducted by Executive agencies
misclassified as having, a mental or and not to federally assisted programs.
physical impairment that substantially Substantial impairment means a sig-
limits one or more major life activi- nificant loss of the integrity of finished
ties. materials, design quality, or special
(4) Is regarded as having an impairment character resulting from a permanent
means— alteration.
(i) Has a physical or mental impair-
ment that does not substantially limit §§ 15e.104–15e.109 [Reserved]
major life activities but is treated by
the agency as constituting such a limi- § 15e.110 Self-evaluation.
tation; (a) The agency shall, by November 28,
(ii) Has a physical or mental impair- 1994, evaluate its current policies and
ment that substantially limits major practices, and the effects thereof, that
life activities only as a result of the at- do not or may not meet the require-
titudes of others toward such impairments of this part and, to the extent
ment; or modification of any such policies and
(iii) Has none of the impairments de- practices is required, the agency shall
fined in paragraph (1) of this definition proceed to make the necessary modi-
but is treated by the agency as having fications.
such an impairment. (b) The agency shall provide an op-
Qualified individual with handicaps portunity to interested persons, includ-
means— ing individuals with handicaps or orga-
(1) With respect to preschool, elemen- nizations representing individuals with
tary, or secondary education services handicaps, to participate in the self-
provided by the agency, an individual evaluation process by submitting com-

with handicaps who is a member of a ments (both oral and written).
class of persons otherwise entitled by (c) The agency shall, for at least
statute, regulation, or agency policy to three years following completion of the
473
§ 15e.111 7 CFR Subtitle A (1–1–12 Edition)
self-evaluation, maintain on file and ers unless such action is necessary to

make available for public inspection: provide qualified individuals with
(1) A description of areas examined handicaps with aid, benefits, or serv-
and any problems identified; and ices that are as effective as those pro-
(2) A description of any modifications vided to others;
made. (v) Deny a qualified individual with
handicaps the opportunity to partici-
§ 15e.111 Notice. pate as a member of planning or advi-
The agency shall make available to sory boards;
employees, applicants, participants, (vi) Otherwise limit a qualified indi-
beneficiaries, and other interested per- vidual with handicaps in the enjoy-
sons such information regarding the ment of any right, privilege, advan-
provisions of this part and its applica- tage, or opportunity enjoyed by others
bility to the programs or activities receiving the aid, benefit, or service.
conducted by the agency, and make (2) The agency may not deny a quali-
such information available to them in fied individual with handicaps the op-
such manner as the head of the agency portunity to participate in programs or
finds necessary to apprise such persons activities that are no separate or dif-
of the protections against discrimina- ferent, despite the existence of permis-
tion assured them by section 504 and sibly separate or different programs or
this part. activities.
(3) The agency may not, directly or
§§ 15e.112–15e.129 [Reserved] through contractual or other arrange-
ments, utilize criteria or methods of
§ 15e.130 General prohibitions against administration the purpose or effect of
discrimination. which would—
(a) No qualified individual with (i) Subject qualified individuals with
handicaps shall, on the basis of handi- handicaps to discrimination on the
cap, be excluded from participation in, basis of handicap; or
be denied the benefits of, or otherwise (ii) Defeat or substantially impair ac-
be subjected to discrimination under complishment of the objectives of a
any program or activity conducted by program or activity with respect to in-
the agency. dividuals with handicaps.
(b)(1) The agency, in providing any (4) The agency may not, in deter-
aid, benefit, or service, may not, di- mining the site or location of a facil-
rectly or through contractual, licens- ity, make selections the purpose or ef-
ing, or other arrangements, on the fect of which would—
basis of handicap— (i) Exclude individuals with handi-
(i) Deny a qualified individual with caps from, deny them the benefits of,
handicaps the opportunity to partici- or otherwise subject them to discrimi-
pate in or benefit from the aid, benefit, nation under any program or activity
or service; conducted by the agency; or
(ii) Afford a qualified individual with (ii) Defeat or substantially impair
handicaps an opportunity to partici- the accomplishment of the objectives
pate in or benefit from the aid, benefit, of a program or activity with respect
or service that is not equal to that af- to individuals with handicaps.
forded others; (5) The agency, in the selection of
(iii) Provide a qualified individual procurement contractors, may not use
with handicaps with an aid, benefit, or criteria that subject qualified individ-
service that is not as effective in ac- uals with handicaps to discrimination
cording equal opportunity to obtain on the basis of handicap.
the same result, to gain the same ben- (6) The agency may not administer a
efit, or to reach the same level of licensing or certification program in a
achievement as that provided to oth- manner that subjects qualified individ-
ers; uals with handicaps to discrimination
(iv) Provide different or separate aid, on the basis of handicap, nor may the
benefits, or services to individuals with agency establish requirements for the
handicaps or to any class of individuals programs or activities of licensees or
with handicaps than is provided to oth- certified entities that subject qualified
474
individuals with handicaps to discrimi- (1) Necessarily require the agency to

nation on the basis of handicap. How- make each of its existing facilities ac-
ever, the programs or activities of enti- cessible to and usable by individuals
ties that are licensed or certified by with handicaps;
the agency are not, themselves, cov- (2) In the case of historic preserva-
ered by this part. tion programs, require the agency to
(c) The exclusion of nonhandicapped take any action that would result in a
persons from the benefits of a program substantial impairment of significant
limited by Federal statute or Execu- historic features of an historic prop-
tive order to individuals with handi- erty; or
caps or the exclusion of a specific class (3) Require the agency to take any
of individuals with handicaps from a action that it can demonstrate would
program limited by Federal statute or result in a fundamental alteration in
Executive order to a different class of the nature of a program or activity or
individuals with handicaps is not pro- in undue financial and administrative
hibited by this part. burdens. In those circumstances where
(d) The agency shall administer pro- agency personnel believe that the pro-
grams and activities in the most inte- posed action would fundamentally
grated setting appropriate to the needs alter the program or activity or would
of qualified individuals with handicaps. result in undue financial and adminis-
trative burdens, the agency has the
§§ 15e.131–15e.139 [Reserved]
burden of proving that compliance with
§ 15e.140 Employment. § 15e.150(a) would result in such alter-
ation or burdens. The decision that
No qualified individual with handi- compliance would result in such alter-
caps shall, on the basis of handicap, be ation or burdens must be made by the
subjected to discrimination in employ- agency head or his or her designee
ment under any program or activity after considering all agency resources
conducted by the agency. The defini-
available for use in the funding and op-
tions, requirements, and procedures of
eration of the conducted program or
section 501 of the Rehabilitation Act of
activity, and must be accompanied by
1973 (29 U.S.C. 791), as established by
a written statement of the reasons for
the Equal Employment Opportunity
reaching that conclusion. If an action
Commission in 29 CFR part 1614, shall
would result in such an alteration or
apply to employment in federally con-
such burdens, the agency shall take
ducted programs or activities.
any other action that result in such an
§§ 15e.141–15e.148 [Reserved] alteration or such burdens but would
nevertheless ensure that individuals
§ 15e.149 Program accessibility: Dis- with handicaps receive the benefits and
crimination prohibited. services of the program or activity.
Except as otherwise provided in (b) Methods—(1) General. The agency
§ 15e.150, no qualified individual with may comply with the requirements of
handicaps shall, because the agency’s this section through such means as re-
facilities are inaccessible to or unus- design of equipment, reassignment of
able by individuals with handicaps, be services to accessible buildings, assign-
denied the benefits of, be excluded from ment of aides to beneficiaries, home
participation in, or otherwise be sub- visits, delivery of services at alternate
jected to discrimination under any pro- accessible sites, alteration of existing
gram or activity conducted by the facilities and construction of new fa-
agency. cilities, use of accessible rolling stock,
or any other methods that result in
§ 15e.150 Program accessibility: Exist- making its programs or activities read-
ing facilities. ily accessible to and usable by individ-
(a) General. The agency shall operate uals with handicaps. The agency is not
each program or activity so that the required to make structural changes in
program or activity, when viewed in its existing facilities where other methods
entirety, is readily accessible to and are effective in achieving compliance
usable by individuals with handicaps. with this section. The agency, in mak-
This paragraph does not— ing alterations to existing buildings,
475
§ 15e.151 7 CFR Subtitle A (1–1–12 Edition)
shall meet accessibility requirements (1) Identify physical obstacles in the

to the extent compelled by the Archi- agency’s facilities that limit the acces-
tectural Barriers Act of 1968, as amend- sibility of its programs or activities to
ed (42 U.S.C. 4151–4157), and any regula- individuals with handicaps;
tions implementing it. In choosing (2) Describe in detail the methods
among available methods for meeting that will be used to make the facilities
the requirements of this section, the accessible;
agency shall give priority to those (3) Specify the schedule for taking
methods that offer programs and ac- the steps necessary to achieve compli-
tivities to qualified individuals with ance with this section and, if the time
handicaps in the most integrated set- period of the transition plan is longer
ting appropriate. than one year, identify steps that will
(2) Historic preservation programs. In be taken during each year of the tran-
meeting the requirements of § 15e.150(a) sition period; and
in historic preservation programs, the (4) Indicate the official responsible
agency shall give priority to methods for implementation of the plan.
that provide physical access to individ-
uals with handicaps. In cases where a § 15e.151 Program accessibility: New
physical alteration to an historic prop- construction and alterations.
erty is not required because of
Each building or part of a building
§ 15e.150(a)(2) or (a)(3), alternative
that is constructed or altered by, on
methods of achieving program accessi-
behalf of, or for the use of the agency
bility include—
shall be designed, constructed, or al-
(i) Using audio-visual materials and
tered so as to be readily accessible to
devices to depict those portions of an
and usable by individuals with handi-
historic property that cannot other-
caps. The definitions, requirements,
wise be made accessible;
and standards of the Architectural Bar-
(ii) Assigning persons to guide indi-
riers Act (42 U.S.C. 4151–4157), as estab-
viduals with handicaps into or through
lished in 41 CFR 101–19.600 to 101–19.607,
portions of historic properties that
apply to buildings covered by this sec-
cannot otherwise be made accessible;
tion.
or
(iii) Adopting other innovative meth- §§ 15e.152–15e.159 [Reserved]
ods.
(c) Time period for compliance. The § 15e.160 Communications.
agency shall comply with the obliga-
tions established under this section by (a) The agency shall take appropriate
January 24, 1994, except that where steps to ensure effective communica-
structural changes in facilities are un- tion with applicants, participants, per-
dertaken, such changes shall be made sonnel of other Federal entities, and
by November 26, 1996, but in any event members of the public.
as expeditiously as possible. (1) The agency shall furnish appro-
(d) Transition plan. In the event that priate auxiliary aids where necessary
structural changes to facilities will be to afford an individual with handicaps
undertaken to achieve program acces- an equal opportunity to participate in,
sibility, the agency shall develop, by and enjoy the benefits of, a program or
May 26, 1994, a transition plan setting activity conducted by the agency.
forth the steps necessary to complete (i) In determining what type of auxil-
such changes. The agency shall provide iary aid is necessary, the agency shall
an opportunity to interested persons, give primary consideration to the re-
including individuals with handicaps or quests of the individual with handi-
organizations representing individuals caps.
with handicaps, to participate in the (ii) The agency need not provide indi-
development of the transition plan by vidually prescribed devices, readers for
submitting comments (both oral and personal use or study, or other devices
of a personal nature.
written). A copy of the transition plan

shall be made available for public in- (2) Where the agency communicates
spection. The plan shall, at a min- with applicants and beneficiaries by
imum— telephone, telecommunication devices
476
for deaf persons (TDD’s) or equally ef- the basis of handicap in programs and
fective telecommunication systems activities conducted by the agency.
shall be used to communicate with per- (b) The agency shall process com-
sons with impaired hearing. plaints alleging violations of section
(b) The agency shall ensure that in- 504 with respect to employment accord-
terested persons, including persons ing to the procedures established by
with impaired vision or hearing, can the Equal Employment Opportunity
obtain information as to the existence Commission in 29 CFR part 1614 pursu-
and location of accessible services, ac- ant to section 501 of the Rehabilitation
tivities, and facilities. Act of 1973 (29 U.S.C. 791).
(c) The agency shall provide signage (c) The Director, Office of Advocacy
at a primary entrance to each of its in- and Enterprise, shall be responsible for
accessible facilities, directing users to coordinating implementation of this
a location at which they can obtain in- section and shall make the determina-
formation about accessible facilities. tions described in paragraph (g) of this
The international symbol for accessi- section. Complaints may be sent to Of-
bility shall be used at each primary en- fice of Advocacy and Enterprise, U.S.
trance of an accessible facility. Department of Agriculture, Wash-
(d) This section does not require the ington, DC 20250.
agency to take any action that it can (d) The agency shall accept and in-
demonstrate would result in a funda- vestigate all complete complaints for
mental alteration in the nature of a which it has jurisdiction. All complete
program or activity or in undue finan- complaints must be filed within 180
cial and administrative burdens. In days of the alleged act of discrimina-
those circumstances where agency per- tion. The agency may extend this time
sonnel believe that the proposed action period for good cause.
would fundamentally alter the program (e) If the agency receives a complaint
or activity or would result in undue fi- over which it does not have jurisdic-
nancial and administrative burdens, tion, it shall promptly notify the com-
the agency has the burden of proving plainant and shall make reasonable ef-
that compliance with § 15e.160 would re- forts to refer the complaint to the ap-
sult in such alteration or burdens. The propriate Government entity.
decision that compliance would result
(f) The agency shall notify the Archi-
in such alteration or burdens must be
tectural and Transportation Barriers
made by the agency head or his or her
Compliance Board upon receipt of any
designee after considering all agency
complaint alleging that a building or
resources available for use in the fund-
facility that is subject to the Architec-
ing and operation of the conducted pro-
gram or activity and must be accom- tural Barriers Act of 1968, as amended
panied by a written statement of the (42 U.S.C. 4151–4157), is not readily ac-
reasons for reaching that conclusion. If cessible to and usable by individuals
an action required to comply with this with handicaps.
section would result in such an alter- (g) Within 180 days of the receipt of a
ation or such burdens, the agency shall complete complaint for which it has ju-
take any other action that would not risdiction, the agency shall notify the
result in such an alteration or such complainant of the results of the inves-
burdens but would nevertheless ensure tigation in a letter containing—
that, to the maximum extent possible, (1) Findings of fact and conclusions
individuals with handicaps receive the of law;
benefits and services of the program or (2) A description of a remedy for each
activity. violation found; and
(3) A notice of the right to appeal.
§§ 15e.161–15e.169 [Reserved] (h) Appeals of the findings of fact and
conclusions of law or remedies must be
§ 15e.170 Compliance procedures. filed by the complainant within 90 days
(a) Except as provided in paragraph of receipt from the agency of the letter
(b) of this section, this section applies required by § 15e.170(g). The agency
to all allegations of discrimination on may extend this time for good cause.
477
§§ 15e.171–15e.999 7 CFR Subtitle A (1–1–12 Edition)
(i) Timely appeals shall be accepted 15f.7 May I be represented by an attorney?

and processed by the head of the agen-
cy. Subpart C—What Happens After I Send in
My Request? May I Seek To Resolve
(j) The head of the agency shall no-
My Complaint Informally With OCR?
tify the complainant of the results of
the appeal within 60 days of the receipt 15f.8 What does the Docketing Clerk do
of the request. If the head of the agen- with my request?
cy determines that additional informa- 15f.9 What will the Director do to settle my
Section 741 Complaint Request when it is
tion is needed from the complainant,
received?
he or she shall have 60 days from the 15f.10 What if I do not want the Director to
date of receipt of the additional infor- review my Section 741 Complaint Re-
mation to make his or her determina- quest and I want to proceed directly to a
tion on the appeal. hearing?
(k) The time limits cited in para-
Subpart D—If I Request a Hearing, What
graphs (g) and (j) of this section may be
Will Happen? How Will the Hearing Be
extended with the permission of the
Conducted?
Assistant Attorney General.
(l) The agency may delegate its au- 15f.11 Where must I file a hearing request
thority for conducting complaint in- and what happens to it?
vestigations to other Federal agencies, 15f.12 Am I entitled to a hearing in all cir-
cumstances?
except that the authority for making 15f.13 What is the function of the ALJ and
the final determination may not be who may communicate with him?
delegated to another agency. 15f.14 What happens after I file a request for
a hearing?
[58 FR 57697, 57699, Oct. 26, 1993, as amended 15f.15 What Happens after the Docketing
at 58 FR 57697, Oct. 26, 1993] Clerk notifies all parties?
15f.16 Although I request a hearing, may I
§§ 15e.171–15e.999 [Reserved] request the ALJ to issue a decision with-
out a hearing?
PART 15f—ADJUDICATIONS UNDER 15f.17 What happens before the hearing?
15f.18 May I depose potential witnesses?
SECTION 741 15f.19 Other than myself, OCR, and the
agency, may any other interested party
Subpart A—What Is the Purpose of These participate in the proceeding?
Regulations and to Whom and to What 15f.20 May I subpoena witnesses to the hear-
Programs Do They Apply? ing?
15f.21 What rules are applicable to the ac-
Sec. tual conduct of the hearing?
15f.1 What is the purpose of these regula- 15f.22 What happens after the hearing?
tions? 15f.23 What will constitute the record for
15f.2 Who may use these procedures for the final determination?
processing their discrimination com- 15f.24 When and in what form will a final
plaint with USDA? determination be made on my complaint
15f.3 If I want to use these procedures to by USDA?
have USDA consider my complaint, how 15f.25 Will USDA pay my attorneys fees if I
win?
long will it take for USDA to make a de-
cision?
Subpart E—What if I Do Not Agree With the
15f.4 What do certain words and phrases in
Final Determination by USDA?
these regulations mean?
15f.26 May I seek judicial review of the final
Subpart B—I Filed a Complaint With USDA determination?
Prior to July 1, 1997, How Do I Request
That USDA Consider My Complaint Subpart F—How Do I Count Days for Pur-
Using These Procedures? poses of Deadlines and What Happens
if I Miss a Deadline in These Rules?
15f.5 How do I request that USDA consider
my complaint under these procedures? 15f.27 When is something considered ‘‘filed’’
15f.6 What must I say or include in my Sec- as required by these rules and to whom
tion 741 Complaint Request? do I need to give copies of what I file?
15f.28 When I or someone else has to do
something within a certain number of
478
Office of the Secretary, USDA § 15f.4
days, how will USDA or the ALJ count § 15f.3 If I want to use these proce-
the days? dures to have USDA consider my
15f.29 May I request an extension of a dead- complaint, how long will it take for
line or may I get relief for missing a USDA to make a decision?
deadline in these rules?
To the maximum extent practicable,
AUTHORITY: 5 U.S.C. 301; section 101(a) of a final determination under these pro-
Pub. L. 105–277, 112 Stat. 2681; Reorganization cedures will be issued within 180 days
Plan No. 2 of 1953 (5 U.S.C. App.). after you have filed your request.
SOURCE: 63 FR 67394, Dec. 4, 1998, unless
otherwise noted. § 15f.4 What do certain words and
phrases in these regulations mean?
Subpart A—What Is the Purpose of Agency means the USDA agency, of-
These Regulations and to fice, or committee that the complain-
Whom and to What Programs ant alleges has discriminated against
the complainant in the administration
Do They Apply? of a covered program.
§ 15f.1 What is the purpose of these ALJ means an Administrative Law
regulations? Judge appointed pursuant to the Ad-
ministrative Procedure Act (5 U.S.C.
These regulations provide the rights 557(b)(3), 3105) who presides over a hear-
of complainants and the procedures for ing if requested by a complainant.
the processing of certain nonemploy- ASCR means the Assistant Secretary
ment related complaints alleging dis- for Civil Rights.
crimination by USDA that were filed
Complainant means a person who re-
with USDA prior to July 1, 1997, as au- quests that USDA consider his or her
thorized under section 741(b) of the Ag- complaint under the procedures of this
riculture, Rural Development, Food part.
and Drug Administration, and Related Complaint means a written document
Agencies Appropriations Act, 1999, en- filed with USDA by a person alleging
acted in Division A, section 101(a) of discrimination by USDA under a cov-
the Omnibus Consolidated and Emer- ered program.
gency Supplemental Appropriations Covered program means:
Act, 1999, Pub. L. 105–277. (1) A farm ownership, farm operating,
or emergency loan funded from the Ag-
§ 15f.2 Who may use these procedures
for processing their discrimination ricultural Credit Insurance Program
complaint with USDA? Account;
(2) A housing program established
A person may use these procedures if under title V of the Housing Act of
he or she filed a nonemployment re- 1949; or
lated discrimination complaint with (3) A commodity program or disaster
USDA prior to July 1, 1997, that alleged assistance program.
discrimination by USDA at any time Director means the Director of USDA,
during the period beginning January 1, OCR, or his or her subordinate des-
1981 and ending December 31, 1996 : ignee.
(a) In violation of the Equal Credit Docketing clerk means an employee of
Opportunity Act (15 U.S.C. 1691 et seq.) the USDA Office of Civil Rights, des-
in administering— ignated to serve in this capacity.
(1) A farm ownership, farm operating, Eligible complaint means a complaint
or emergency loan funded from the Ag- that was filed with the Department of
ricultural Credit Insurance Program Agriculture before July 1, 1997, and
Account; or that alleges discrimination occurring
(2) A housing program established at any time during the period begin-
under title V of the Housing Act of ning on January 1, 1981 and ending De-
1949; or cember 31, 1996—
(b) In the administration of a com- (1) In violation of the Equal Credit

modity program or a disaster assist- Opportunity Act (15 U.S.C. 1691 et seq.)
ance program. in administering—
479
§ 15f.5 7 CFR Subtitle A (1–1–12 Edition)
(i) A farm ownership, farm operating, Subpart B—I Filed a Complaint

or emergency loan funded from the Ag- With USDA Prior to July 1,
ricultural Credit Insurance Program 1997, How Do I Request That
Account; or
USDA Consider My Complaint
(ii) A housing program established
under title V of the Housing Act of
Using These Procedures?
1949; or § 15f.5 How do I request that USDA
(2) In the administration of a com- consider my complaint under these
modity program or a disaster assist- procedures?
ance program. In order for USDA to consider your
Ex parte communication means a pro- complaint under these procedures, a
hibited communication between a Section 741 Complaint Request must be
party to a proceeding and the ALJ out- docketed with the Docketing Clerk in
side of the presence of, or without no- the USDA OCR.
tice to, the other parties to the pro- (a) Do I have to file a ‘‘Section 741 Com-
ceeding, as explained more fully in plaint Request’’ if USDA is already work-
§ 15f.13. ing on my complaint? Do I have to file
Final determination means the final again? If USDA OCR already reviewed
USDA decision made on your com- or is working on your complaint, you
plaint under these rules. will receive a notice by March 1, 1999,
Hearing means a proceeding in which indicating that your complaint auto-
you may present your case before the matically has been docketed as a Sec-
ALJ. tion 741 Complaint Request for consid-
Interested party means a person, other eration under these procedures. The
than the complainant, OCR, and the notice will provide you with the docket
agency, who has an interest in a pro- number assigned your Request and will
ceeding under these rules and is admit- give you further instructions with re-
ted to the proceeding under § 15f.20. spect to what options you have or what
OCR means the USDA Office of Civil actions you must take.
Rights. (b) What if USDA is not working on my
Party or parties means the complain- complaint? If I think USDA has reviewed
ant, OCR, the agency, or a person ad- or is working on my complaint, but do not
mitted to the proceeding as an inter- receive a letter by March 1, 1999, what
ested party. should I do? If USDA is not already
Secretary means the Secretary of Ag- working on your complaint, or you do
riculture. not receive a letter from USDA by
Section 741 means section 741 of the March 1, 1999, or within 30 days there-
Agriculture, Rural Development, Food after, you should file a Section 741
and Drug Administration, and Related Complaint Request with the Docketing
Agencies Appropriations Act, 1999, en- Clerk at USDA OCR.
acted in Division A, section 101(a) of (c) How long do I have to file my Sec-
the Omnibus Consolidated and Emer- tion 741 Complaint Request? You have
gency Supplemental Appropriations until October 21, 2000 to file your Sec-
Act, 1999, Pub. L. 105–277. tion 741 Complaint Request. If you did
Section 741 Complaint Request (or Re- not receive a notice form USDA by Oc-
quest) means a request by a complain- tober 21, 2000, that your Section 741
ant to consider his complaint under Complaint Request had been docketed
these rules. automatically under paragraph (a) of
USDA means the United States De- this section, and you did not file a Sec-
partment of Agriculture. tion 741 Complaint Request prior to Oc-
tober 21, 2000, under paragraph (b) of
[63 FR 67394, Dec. 4, 1998, as amended at 68 this section, then any Section 741 Com-
FR 27449, May 20, 2003] plaint Request received by USDA after
October 21, 2000, will not be accepted.

[63 FR 67394, Dec. 4, 1998, as amended at 68
FR 7412, Feb. 14, 2003]
480
§ 15f.6 What must I say or include in Subpart C—What Happens After I

my Section 741 Complaint Request? Send in My Section 741 Com-
If you must file a Section 741 Com- plaint Request? May I Seek To
plaint Request, it should include a Resolve My Complaint Infor-
copy of your original complaint, a re- mally With OCR?
quest in writing that USDA consider
the complaint in accordance with these § 15f.8 What does the Docketing Clerk
procedures, a statement as to when do with my Section 741 Complaint
your complaint was filed with USDA, Request?
and any other evidence you consider All Section 741 Complaint Requests
necessary to prove that your complaint docketed by the OCR Docketing Clerk
is an eligible complaint suitable for will be referred to the Director for an
consideration under these procedures. informal review. The Director will de-
termine if the complaint is one that
§ 15f.7 May I be represented by an at- can be resolved informally, and, if so,
torney? the Director will seek to resolve the
(a) If your Section 741 Complaint Re- complaint informally with the com-
quest is automatically docketed as set plainant.
forth in § 15f.5(a), and you already are
§ 15f.9 What will the Director do to set-
represented by counsel of whom you tle my Section 741 Complaint Re-
have notified USDA, then this section quest when it is received?
does not apply.
The Director will review each Sec-
(b) If you are filing your Section 741
tion 741 Complaint Request. If the Di-
Complaint Request with USDA, and if
rector finds that your complaint is an
you are represented by an attorney,
eligible complaint, the Director will:
your Section 741 Complaint Request review all documents and evidence sub-
should also include an authorization mitted by you; review all agency or CR
signed by you indicating that the at- files, if any exist, regarding the cir-
torney is entitled to represent you on cumstances surrounding the alleged
your behalf. If USDA receives such an discrimination; review any damage
authorization, all documents in con- claims; and seek any further clarifica-
nection with consideration of your tion, if necessary, from either you or
complaint under these procedures will the agency. CR also may refer your eli-
be sent to your attorney and not to gible complaint for a formal investiga-
you. tion by the CR Program Investigation
(c) Once your Section 741 Complaint Division or by an outside contractor.
Request is docketed with USDA, and Based on his or her review, the Direc-
you afterwards retain an attorney, you tor will either undertake negotiations
should forward an authorization to with you to resolve the complaint; or
USDA signed by you indicating that inform you that CR will not settle the
the attorney is entitled to represent complaint and explain to you your op-
you on your behalf. If USDA receives tions, including your right to request
such an authorization, all documents formal proceedings before an ALJ
in connection with consideration of under subpart D of this part within 30
days of receipt of notice from the Di-
your complaint under these procedures
rector that CR will not settle the com-
will be sent to your attorney and not
plaint. If the complaint is successfully
to you.
resolved or settled, the Director will
issue a final determination disposing of
the matter. If you have received a no-
tice that the Director will not settle
the complaint prior to February 14,
2003, you have until 90 days after Feb-
ruary 14, 2003 to request formal pro-

ceedings under subpart D of this part.
Any request for formal proceedings re-
ceived by USDA after the deadlines set
481
forth in this section will not be accept- make a final determination under
ed. § 15f.16.
[68 FR 7412, Feb. 14, 2003] § 15f.13 What is the function of the
ALJ and who may communicate
§ 15f.10 What if I do not want the Di- with him?
rector to review my Section 741
Complaint Request and I want to (a) What are the powers of the ALJ?
proceed directly to a hearing? The ALJ is responsible for conducting
If you do not want the Director to re- a hearing at your request on your Sec-
view your Section 741 Complaint Re- tion 741 Complaint Request. He or she
quest, you may request a hearing fol- will have all powers prescribed in these
lowing the procedures below in subpart rules and will make a proposed deter-
D. You may request a hearing at any mination on your complaint. The pro-
time during informal review or nego- posed determination then will become
tiations with the Director, or at any the final determination after 35 days,
time during USDA consideration of unless the ASCR reviews the proposed
your Section 741 Complaint Request. determination.
(b) What is an ex parte communication?
An ex parte communication is a com-
Subpart D—If I Request a Hearing, munication by one party to a pro-
What Will Happen? How Will ceeding with the ALJ outside of the
the Hearing Be Conducted? presence of, or without notice to, the
other parties to a proceeding. Ex parte
§ 15f.11 Where must I file a hearing re- communications in the proceedings on
quest and what happens to it? your complaint are prohibited and will
If you desire a hearing, you must file be handled as follows:
a request for a hearing with the Dock- (1) The ALJ will not engage in ex
eting Clerk, citing the docket number parte communications regarding the
assigned to your Section 741 Complaint merits of a complaint with any party
Request. When the Docketing Clerk re- or with any person having any interest
ceives your request for a hearing, your in the proceedings on the complaint,
Section 741 Complaint Request will be including OCR and any person in an ad-
assigned to an ALJ. The Docketing vocacy or investigative capacity, at
Clerk will send a notice of your hearing any time between the assignment of a
request to OCR and the agency, noti- hearing to him or her and the issuance
fying them of the docket number and of a proposed determination. This pro-
the assigned ALJ. The Docketing Clerk hibition does not apply to:
also will send you a notice of receipt of (i) Discussions of procedural matters
the hearing request that will inform related to the complaint; or
you of the name of the assigned ALJ. (ii) Discussions of the merits of the
complaint where all parties to the pro-
§ 15f.12 Am I entitled to a hearing in ceeding on the complaint have been
all circumstances? given notice and an opportunity to par-
Under section 741, you have a right to ticipate.
a hearing as part of the process for (2) In the case of a communication
USDA to render a final determination described in paragraph (b)(1)(ii) of this
on your eligible complaint. However, if section, a memorandum of any such
at any time the ALJ determines that discussion shall be included in the
your complaint is not an eligible com- hearing record.
plaint, he or she may dismiss your (3) No party to the proceeding or
complaint with a final determination other interested person shall make or
and USDA review of your complaint knowingly cause to be made to the
will then have been completed. You ALJ an ex parte communication rel-
also are not entitled to a hearing if evant to the merits of the complaint.
there are no material issues of fact in (4) If the ALJ receives an ex parte
dispute between you and USDA. In communication in violation of this sec-

other words, if the only dispute re- tion, the ALJ will place in the written
maining is a question of law, you will record:
not receive a hearing and the ALJ will (i) All such written communications;
482
(ii) Memoranda stating the substance § 15f.16 Although I request a hearing,

of all such oral communications; and may I request the ALJ to issue a de-
(iii) All written responses to such cision without a hearing?
communications, and memoranda stat- (a) At any time after the parties have
ing the substance of any oral responses been notified of your hearing request,
to such communications. you may file a request with the ALJ to
(c) Upon receipt of a communication make a determination based on the
knowingly made or knowingly caused written record. With your request, you
to be made by a party in violation of should file any other arguments or evi-
this section the ALJ may, to the ex- dence that you wish the ALJ to con-
tent consistent with the interests of sider. The agency and OCR will have 35
justice and the policy underlying these
days after you file your request to file
proceedings, require the party or other
any additional information, argu-
interested person making the commu-
ments, or evidence for the consider-
nication to show cause why such par-
ation of the ALJ. The ALJ may rec-
ty’s claim or interest in the complaint
ommend dismissal of your complaint
should not be dismissed, denied, dis-
on the basis of a finding that it is not
regarded, or otherwise adversely af-
an eligible complaint; recommend de-
fected on account of such violation.
nial of your eligible complaint on the
[63 FR 67394, Dec. 4, 1998, as amended at 68 merits; or make a proposed finding of
FR 27449, May 20, 2003] discrimination on your eligible com-
plaint and recommend to award you
§ 15f.14 What happens after I file a re-
quest for a hearing? such relief as would be afforded under
the applicable statute or regulation
Within 20 days after you have filed under which the eligible complaint was
your request for a hearing, ALJ shall filed. The ALJ will make a proposed
file with the Docketing Clerk a notice determination on your complaint based
stating the time, place, and manner of on the original complaint, the Section
the hearing. The ALJ will have due re- 741 Complaint Request, the OCR report,
gard for the public interest and the and any other evidence or written doc-
convenience and necessity of the par- uments filed by the parties. The pro-
ties in determining the time, place, and posed determination will become the
manner of the hearing. The notice will final determination 35 days after it is
state whether the hearing will be con- filed unless you request review of the
ducted by telephone, audiovisual tele- proposed determination by the ASCR.
communication, or personal attend- The ASCR also may review the pro-
ance of any individual expected to par- posed determination on his or her own
ticipate in the hearing. The Docketing initiative. If the ASCR reviews the de-
Clerk will send copies of the notice to cision, he or she will allow the parties
the complainant and to all other par- a reasonable opportunity to file briefs
ties to the proceeding. in support of or opposition to the pro-
posed determination, and afterwards
§ 15f.15 What happens after the Dock-
eting Clerk notifies all parties? will issue a final determination within
35 days after you request review of the
The first step in this process involves proposed determination.
a response to your hearing request by (b) To the maximum extent prac-
OCR. OCR will turn over its entire file ticable, a final determination will be
on your complaint to the ALJ. OCR made within 180 days of your filing of
also will file a report with the ALJ the Section 741 Complaint Request.
stating its position with respect to
whether or not your complaint is an el- [63 FR 67394, Dec. 4, 1998, as amended at 68
igible complaint, with reasons for its FR 27449, May 20, 2003]
position, as well as stating its position
with respect to the merits of your com- § 15f.17 What happens before the hear-
plaint. OCR must turn over its file and ing?
make its report on its position on your (a) Do I need to file another answer or
complaint within 35 days. OCR must pre-hearing brief? You may file a pre-
provide a copy to you of anything it hearing brief in support of your com-
provides to the ALJ. plaint.
483
(b) Will there be a pre-hearing con- (c) No testimony taken by deposi-

ference? The ALJ may hold a pre-hear- tions will be considered as part of the
ing conference. If such a conference is evidence in the hearing until such tes-
to be held, the notice of the pre-hear- timony is offered and received in evi-
ing conference also will contain a no- dence at the hearing, and ordinarily it
tice to the parties of a time and date will not be received into evidence if the
for the pre-hearing conference. Pre- deponent is present and can testify at
hearing conferences normally will be the hearing. However, when the depo-
held by telephone. Issues that may be nent is present and can testify, the
addressed at the pre-hearing con- deposition may be used to contradict
ference may include: simplification of or impeach the testimony of the depo-
the issues; the possibility of obtaining nent given at the hearing. Where you
stipulations of fact and of the authen- have requested a final determination
ticity of documents; limitation of the by the ALJ based on the written record
number of witnesses; exchange of cop- without a hearing, the ALJ, in his or
ies of hearing exhibits; negotiation, her discretion, may receive depositions
compromise or settlement of issues; to supplement the record.
identification of documents of which (d) Each party will bear its own ex-
official notice will be requested; a penses associated with the taking of
schedule for completion of the actions any deposition.
decided upon at the conference; and
any other matters that may aid and ex- § 15f.19 Other than myself, OCR, and
pedite the conclusion of the pro- the agency, may any other inter-
ceeding. No transcript of the pre-hear- ested party participate in the pro-
ceeding?
ing conference will be made but the
ALJ will issue a written memorandum In most cases, there will be no par-
summarizing the results of the pre- ties to a proceeding under these rules,
hearing conference. other than the complainant, OCR, and,
(c) What else may the ALJ ask for be- and if it so desires, the agency. How-
fore the hearing? Prior to the hearing, ever, if there are circumstances in
the ALJ may require each of the par- which additional parties have an inter-
ties to furnish any or all of the fol- est in the proceeding, such as a bank
lowing: an outline of a party’s position which participated in a case involving
with respect to the complaint, the a guaranteed loan, such other inter-
facts upon which the party intends to ested parties may be permitted to par-
rely, the legal theories upon which the ticipate in the proceeding at the dis-
party intends to rely, copies of or a list cretion of the ALJ.
of the documents and exhibits which
the party anticipates on introducing at § 15f.20 May I subpoena witnesses to
the hearing, and a list of anticipated the hearings?
witnesses. No. USDA has no statutory authority
to subpoena witnesses to testify at the
§ 15f.18 May I depose potential wit- hearing.
nesses?
(a) A party may request an order § 15f.21 What rules are applicable to
from the ALJ to take the testimony of the actual conduct of the hearing?
any person by deposition upon oral ex- (a) Who may appear at the hearing?
amination or written interrogatories You may appear at the hearing in per-
before any officer authorized to admin- son or through your attorney. OCR or
ister oaths at the place of examination, the agency will appear through a des-
for use as evidence. The application for ignated representative, which may in-
the order must specify the reason and clude a USDA attorney. Any person
need for taking testimony by deposi- who appears as counsel must conform
tion. to the standards of ethical conduct re-
quired of practitioners before the
(b) The time, place, and manner of

taking depositions will be as mutually courts of the United States.
agreed by the parties, or failing agree- (b) What happens if I fail to show up?
ment, by order of the ALJ. If, after having received notice of the
484
hearing under § 15f.14, you fail to ap- other party (except interested parties)
pear at the hearing without good a copy of the exhibit one week before
cause, you will have waived your right the hearing. A true copy of an exhibit
to a hearing in the proceeding and the may be substituted for the original.
ALJ may proceed to issue a final deter- (5) Official records or documents. An of-
mination based on the written record ficial government record or document
as provided for under § 15f.16. or entry therein, if admissible for any
(c) Which party presents its case first at purpose, will be admissible in evidence
the hearing? You, as the complainant, without the production of the person
will proceed first at the proceeding, un- who made or prepared the same, and
less otherwise determined by the ALJ. will be prima facie evidence of the rel-
(d) What kind of evidence will be admit- evant facts stated therein. Such record
ted and how will it be handled?—(1) In or document must be evidenced by an
general. The hearing will be conducted official publication thereof or a copy
by the ALJ in the manner he or she de- certified by a person having legal au-
termines most likely to obtain the thority to make such certification.
facts relevant to the matter or matters (6) Official notice. Official notice will
at issue. The ALJ may confine the be taken of such matters as are judi-
presentation of facts and evidence to cially noted by the courts of the United
pertinent matters and exclude irrele- States and of any other matter of tech-
vant, immaterial, or unduly repetitious nical, scientific, or commercial fact of
evidence, information, or questions. established character if the parties are
Each party will have the opportunity given adequate notice of matters so no-
to present oral and documentary evi- ticed, and the parties will be given ade-
dence, oral testimony of witnesses, and quate opportunity to show that such
arguments in support of the party’s po- facts are erroneously noticed.
sition; controvert evidence relied on by
(7) Offer of proof. Whenever evidence
any other party; and question all wit-
is excluded by the ALJ, the party offer-
nesses. The testimony of witnesses at a
ing such evidence may make an offer of
hearing will be on oath or affirmation
proof, which must be included in the
and will be subject to cross-examina-
tion. Any evidence may be received by transcript. The offer of proof should
the ALJ without regard to whether consist of a brief statement describing
that evidence could be admitted in ju- the evidence excluded. If the evidence
dicial proceedings. Upon a finding of consists of a brief oral statement, it
good cause, the ALJ may order that must be included in the transcript in
any witness be examined separately its entirety. If the evidence consists of
and apart from all other witnesses ex- an exhibit, it must be marked for iden-
cept those who may be parties to the tification and inserted in the hearing
proceeding. record.
(2) Objections. (i) If a party objects to (8) Interlocutory review. Interlocutory
the admission of any evidence or to the review of rulings by the ALJ will not
limitation of the scope of any examina- be permitted.
tion or cross-examination or to any (9) Transcript or recording. (i) Hearings
other ruling of the ALJ, the party to be conducted by telephone will be
must state briefly the grounds of such recorded verbatim by electronic re-
objection. cording device. Hearings conducted by
(ii) Only objections made before the audio-visual telecommunication or by
ALJ may subsequently be relied upon the personal attendance of parties and
in the proceeding. witnesses must be transcribed, unless
(3) Depositions. The deposition of any the ALJ finds that recording the hear-
witness will be admitted in the manner ing verbatim would expedite the pro-
provided in and subject to the provi- ceeding and the ALJ orders the hearing
sions of § 15f.18(c) of these rules. to be recorded verbatim. The ALJ must
(4) Exhibits. Unless the ALJ finds that certify that to the best of his or her
the furnishing of copies is impracti- knowledge and belief any recording

cable, two copies of each exhibit must made pursuant to this paragraph with
be filed with the ALJ. A party submit- exhibits that were accepted into evi-
ting an exhibit must provide every dence is the record of the hearing.
485
(ii) If a hearing is recorded verbatim, forded under the applicable statute or

a party requests the transcript of a regulation under which the eligible
hearing or part of a hearing, and the complaint was filed. The proposed de-
ALJ determines that the disposition of termination will become the final de-
the proceeding would be expedited by a termination 35 days after it is made,
transcript of the hearing or part of a unless you request review of the pro-
hearing, the ALJ shall order the ver- posed determination by the ASCR. The
batim transcription of the recording as ASCR also may review the proposed de-
requested by the party. termination on his or her own initia-
(iii) The costs of transcription or ver- tive. If the ASCR reviews the proposed
batim recordings will be paid for by determination, he or she will allow the
USDA and charged to the agency whose parties a reasonable opportunity to file
action gave rise to the complaint at briefs in support or opposition to the
issue. Copies of recordings or tran- proposed determination, and after-
scripts of hearings will be made avail- wards file a final determination within
able to any party at the actual cost of 35 days after you request review of the
duplication. proposed determination.
(b) To the maximum extent prac-
§ 15f.22 What happens after the hear-
ing? ticable, a final determination will be
filed within 180 days after you filed
The ALJ will fix a reasonable time your Section 741 Complaint Request.
for filing posthearing briefs, proposed
findings of fact and conclusions of law, [63 FR 67394, Dec. 4, 1998, as amended at 68
and if permitted, reply briefs. Briefs FR 27449, May 20, 2003]
should include a summary of evidence
relied upon together with references to § 15f.25 Will USDA pay my attorneys
fees if I win?
exhibit numbers and citations to the
transcript and authorities relied upon. If you prevail on your eligible com-
Briefs must be filed with the Docketing plaint, either in whole or in part, after
Clerk with copies to all parties. a proceeding before an ALJ under the
procedures in this subpart, you may be
§ 15f.23 What will constitute the eligible for an award of attorneys fees
record for the final determination? as a prevailing party under the Equal
The original complaint, the Section Access to Justice Act (EAJA), 5 U.S.C.
741 Complaint Request, the OCR report, 504. To get an EAJA award, you must
the agency answer, the transcript of file an application for such fees with
testimony, exhibits, affidavits, deposi- the ALJ within 30 days after the final
tions, briefs, memoranda of law, and all determination is made. Instructions for
pleadings, motions, papers, and re- filing an EAJA application and obtain-
quests filed in the proceeding, including an EAJA award are contained in 7
ing rulings, and the proposed deter- CFR part 1, subpart J. The ALJ must
mination by an ALJ (if applicable) follow those rules, and not these Sec-
shall constitute the exclusive record tion 741 Complaint Request rules, in
for the final determination. making any EAJA award.
§ 15f.24 When and in what form will a
final determination be made on my Subpart E—What if I Do Not Agree
complaint by USDA? With the Final Determination
(a) The ALJ will make a proposed de- by USDA?
termination orally at the close of a
hearing, or in writing within 35 days. § 15f.26 May I seek judicial review of
the final determination?
The ALJ may recommend dismissal of
your complaint on the basis of a find- Section 741 provides that you have at
ing that it is not an eligible complaint; least 180 days after a final determina-
recommend denial of your eligible com- tion denying your eligible complaint
plaint on the merits; or make a pro- under these rules to seek judicial re-
posed finding of discrimination on your view in the United States Court of Fed-
eligible complaint and recommend to eral Claims or a United States District
award you such relief as would be af- Court of competent jurisdiction.
486
Subpart F—How Do I Count Days PART 16—EQUAL OPPORTUNITY

for Purposes of Deadlines and FOR RELIGIOUS ORGANIZATIONS
What Happens if I Miss a
Deadline in These Rules? Sec.
16.1 Purpose and applicability.
§ 15f.27 When is something considered 16.2 Rights of religious organizations.
‘‘filed’’ as required by these rules 16.3 Responsibilities of participating orga-
and to whom do I need to give cop- nizations.
ies of what I file? 16.4 Effect on State and local funds.
16.5 Compliance.
A document, or other item, that
must be ‘‘filed’’ under these rules is AUTHORITY: 5 U.S.C. 301; E.O. 13279, 67 FR
77141, 3 CFR, 2002 Comp., p. 258; E.O. 13280, 67
considered filed when postmarked or FR 77145, 3 CFR, 2002 Comp., p. 262.
when it is received and date-stamped
by the Docketing Clerk. SOURCE: 69 FR 41382, July 9, 2004, unless
otherwise noted.
§ 15f.28 When I or someone else has to
do something within a certain num- § 16.1 Purpose and applicability.
ber of days, how will USDA or the (a) The purpose of this part is to set
ALJ count the days? forth USDA policy regarding equal op-
Unless otherwise specifically noted, a portunity for religious organizations to
‘‘day’’ refers to a calendar day and a participate in USDA assistance pro-
document that must be filed by a cer- grams for which other private organi-
tain date must either be postmarked zations are eligible.
on that date or received by the Dock- (b) Except as otherwise specifically
eting Clerk on that date. For docu- provided in this part, the policy out-
lined in this part applies to all recipi-
ments that must be or are ‘‘filed’’
ents and subrecipients of USDA assist-
under these regulations, you count the
ance to which 7 CFR parts 3015, 3016, or
number of days after filing starting 3019 apply, and to recipients and sub-
with the day after the filing date as recipients of Commodity Credit Cor-
day one. For other time periods, you poration assistance that is adminis-
calculate the time period by counting tered by agencies of USDA.
the day after receipt by the party as
day one. If the last day of a time period § 16.2 Rights of religious organiza-
expires on a Saturday, a Sunday, or a tions.
Federal holiday, the last day of the (a) A religious organization is eligi-
time period will expire on the next ble, on the same basis as any other eli-
business day. gible private organization, to access
and participate in USDA assistance
§ 15f.29 May I request an extension of programs. Neither the Federal govern-
a deadline or may I get relief for ment nor a State or local government
missing a deadline in these rules? receiving USDA assistance shall, in the
You may request that the ALJ ex- selection of service providers, discrimi-
tend a deadline in these rules, or afford nate for or against a religious organi-
you relief for missing a deadline, which zation on the basis of the organiza-
he or she may do, consistent with the tion’s religious character or affiliation.
principles of sovereign immunity, the (b) A religious organization that par-
terms of any applicable statute, these ticipates in USDA assistance programs
rules, and the necessity of expeditious will retain its independence and may
completion of the public business. It is continue to carry out its mission, in-
the intent of USDA that the time dead- cluding the definition, practice, and ex-
lines expressed in these regulations be pression of its religious beliefs, pro-
construed equitably to ensure resolu- vided that it does not use USDA direct
tion of eligible complaints, to the ex- assistance to support any inherently
religious activities, such as worship,

tent permitted by law.
religious instruction, or proselytiza-
tion. Among other things, a religious
organization may:
487
(1) Use space in its facilities to pro- 1751 et seq., the Child Nutrition Act of
vide services and programs without re- 1966, 42 U.S.C. 1771 et seq., or USDA
moving religious art, icons, scriptures, international school feeding programs
or other religious symbols, from considering religion in their ad-
(2) Retain religious terms in its orga- missions practices or from imposing re-
nization’s name, ligious attendance or curricular re-
(3) Select its board members and oth- quirements at their schools.
erwise govern itself on a religious (d)(1) Direct USDA assistance may be
basis, and used for the acquisition, construction,
(4) Include religious references in its or rehabilitation of structures only to
organizations’ mission statements and the extent that those structures are
other governing documents. used for conducting USDA programs
(c) In addition, a religious organiza- and activities and only to the extent
tion’s exemption from the Federal pro- authorized by the applicable program
hibition on employment discrimination statutes and regulations. Direct USDA
on the basis of religion, set forth in assistance may not be used for the ac-
section 702(a) of the Civil Rights Act of quisition, construction, or rehabilita-
1964, 42 U.S.C. 2000e–1, is not forfeited tion of structures to the extent that
when an organization receives USDA those structures are used by the USDA
assistance. funding recipients for inherently reli-
gious activities. Where a structure is
§ 16.3 Responsibilities of participating used for both eligible and inherently
organizations. religious activities, direct USDA as-
(a) An organization that participates sistance may not exceed the cost of
in programs and activities supported those portions of the acquisition, con-
by direct USDA assistance programs struction, or rehabilitation that are at-
shall not discriminate against a pro- tributable to eligible activities in ac-
gram beneficiary or prospective pro- cordance with the cost accounting re-
gram beneficiary on the basis of reli- quirements applicable to USDA funds.
gion or religious belief. Sanctuaries, chapels, or other rooms
(b) Organizations that receive direct that an organization receiving direct
USDA assistance under any USDA pro- assistance from USDA uses as its prin-
gram may not engage in inherently re- cipal place of worship, however, are in-
ligious activities, such as worship, reli- eligible for USDA-funded improve-
gious instruction, or proselytization, ments. Disposition of real property
as part of the programs or services sup- after the term of the grant or any
ported with direct USDA assistance. If change in use of the property during
an organization conducts such activi- the term of the grant is subject to gov-
ties, the activities must be offered sep- ernment-wide regulations governing
arately, in time or location, from the real property disposition (see 7 CFR
programs or services supported with di- parts 3015, 3016 and 3019).
rect assistance from USDA, and par- (2) Any use of direct USDA assistance
ticipation must be voluntary for bene- funds for equipment, supplies, labor,
ficiaries of the programs or services indirect costs and the like shall be pro-
supported with such direct assistance. rated between the USDA program or
These restrictions on inherently reli- activity and any use for other purposes
gious activities do not apply where by the religious organization in accord-
USDA funds or benefits are provided to ance with applicable laws, regulations,
religious organizations as a result of a and guidance.
genuine and independent private choice (3) Nothing in this section shall be
of a beneficiary or through other indi- construed to prevent the residents of
rect funding mechanisms, provided the housing receiving direct USDA assist-
religious organizations otherwise sat- ance funds from engaging in religious
isfy the requirements of the program. exercise within such housing.
(c) Nothing in paragraphs (a) or (b)
§ 16.4 Effect on State and local funds.
shall be construed to prevent religious

organizations that receive USDA as- If a State or local government volun-
sistance under the Richard B. Russell tarily contributes its own funds to sup-
National School Lunch Act, 42 U.S.C. plement activities carried out under
488
programs governed by this part, the or with private entities. These agree-
State or local government has the op- ments cover financing of the sale and
tion to separate out the direct USDA exportation of agricultural commod-
assistance funds or commingle them. If ities, including certain ocean transpor-
the funds are commingled, the provi- tation costs.
sions of this part shall apply to all of (2) Agricultural Commodities Agree-
the commingled funds in the same ments may provide that a participant
manner, and to the same extent, as the will repay CCC for the financing ex-
provisions apply to the direct USDA tended by CCC either in dollars or in
assistance. local currencies.
(3) A private entity must maintain a
§ 16.5 Compliance. bona fide business office in the United
USDA agencies will monitor compli- States and have a person, principal, or
ance with this part in the course of agent on whom service of judicial proc-
regular oversight of USDA programs. ess may be had in the United States
unless the General Sales Manager de-
PART 17—SALES OF AGRICULTURAL termines that there are adequate as-
COMMODITIES MADE AVAILABLE surances of repayment to CCC for the
financing extended by CCC.
UNDER TITLE I OF THE AGRICUL-
(c) Purchase authorizations. This part
TURAL TRADE DEVELOPMENT covers, among other things, the
AND ASSISTANCE ACT OF 1954, issuance by the General Sales Manager
AS AMENDED of purchase authorizations which au-
thorize the participant to:
Sec. (1) Purchase agricultural commod-
17.1 General.
ities; and
17.2 Definition of terms.
17.3 Purchase authorizations. (2) Procure ocean transportation
17.4 Agents of the participant or importer. therefor.
17.5 Contracts between commodity sup- (d) Financing. For amounts to be fi-
pliers and importers. nanced by CCC, CCC will pay the sup-
17.6 Discounts, fees, commissions and pay- plier of commodity or of ocean trans-
ments. portation in accordance with
17.7 Notice of sale procedures.
§ 17.9(a)(3). The cost of ocean freight or
17.8 Ocean transportation.
17.9 CCC payment to suppliers. ocean freight differential will be fi-
17.10 Refunds and insurance. nanced by CCC only when specifically
17.11 Recordkeeping and access to records. provided for in the purchase authoriza-
tion.
AUTHORITY: 7 U.S.C. 1701–1704, 1731–1736b,
1736f, 5676; E.O. 12220, 45 FR 44245. (e) Where information is available. Gen-
eral information about operations
SOURCE: 62 FR 52932, Oct. 10, 1997, unless under this part is available from the
otherwise noted.
Director, Pub. L. 480 Operations Divi-
§ 17.1 General. sion, Foreign Agricultural Service,
USDA, Washington, DC 20250–1033. In-
(a) What this part covers. This part formation about financing operations
contains the regulations governing the under this part, including forms pre-
financing of the sale and exportation of scribed for use thereunder, is available
agricultural commodities by the Com- from the Controller, Commodity Credit
modity Credit Corporation (CCC), Corporation, USDA, 1400 Independence
through private trade channels to the Avenue, SW, Washington, DC 20250–
maximum extent practicable, under 0581.
the authority of title I of the Agricul-
tural Trade Development and Assist- [62 FR 52932, Oct. 10, 1997, as amended at 63
ance Act of 1954, as amended (herein- FR 59692, Nov. 5, 1998]
after called ‘‘the Act’’).
(b) Agricultural commodities agree- § 17.2 Definition of terms.
ments. (1) Under the Act, the Govern- Terms used in the regulations in this
ment of the United States enters into part are defined or identified as fol-
Agricultural Commodities Agreements lows, subject to amplification in subse-
with governments of foreign countries quent sections:
489
Affiliate and associated company. Any ing permits and inspections, super-
legal entity which owns or controls, or vision and consultation.
is owned or controlled by, another FAS. The Foreign Agricultural Serv-
legal entity. For a corporation, owner- ice, USDA.
ship of the voting stock is the control- FSA. The Farm Service Agency,
ling criterion. A legal entity is consid- USDA.
ered to own or control a second legal FSA Office. The office designated in
entity if— the purchase authorization to admin-
(1) The legal entity owns an interest ister this financing operation on behalf
of 50 percent or more in the second of CCC.
legal entity; or
Finance. To expend CCC funds,
(2) The legal entity and one or more
whether or not the participant is re-
other legal entities, in which it owns
quired to repay the funds to CCC. For
an interest of 50 percent or more, to-
example, this part refers to CCC ‘‘fi-
gether own an interest of 50 percent or
more in the second legal entity; or nancing’’ both the ocean freight dif-
(3) The legal entity owns an interest ferential, which the participant does
of 50 percent or more in another legal not repay, and the commodity cost,
entity which in turn owns an interest which the participant does repay.
of 50 percent or more in the second Form CCC–106. The form entitled
legal entity. ‘‘Advice of Vessel Approval.’’
CCC. The Commodity Credit Corpora- Form CCC–329. The signed original of
tion, USDA. the form entitled ‘‘Supplier’s Certifi-
Commodity. An agricultural com- cate.’’
modity produced in the United States, General Sales Manager and GSM. The
or product thereof produced in the General Sales Manager, FAS, or the
United States, as specified in the appli- General Sales Manager’s designee.
cable purchase authorization. Importer. The person that contracts
Controller. The Controller, Com- with the supplier for the importation
modity Credit Corporation, or the Con- of the commodity. The importer may
troller’s designee. be the participant or any person to
Copy. A photocopy or other type of which a participant has issued a sub-
copy of an original document showing authorization.
all data shown on the original, includ- Importing country. Any nation with
ing signature or the name of the person which an agreement has been signed
signing the original or, if the signature under the Act.
or name is not shown on the copy, a Invitation for bids and IFB. A publicly
statement that the original was signed. advertised request for offers.
Delivery. The transfer to or for the
Legal entity includes, but is not lim-
account of an importer of custody and
ited to, an individual (except that an
right of possession of the commodity at
individual and his or her spouse and
U.S. ports or Canadian transshipment
their minor children are considered as
points in accordance with the delivery
one legal entity), partnership, associa-
terms of the contract and purchase au-
tion, company, corporation and trust.
thorization. For purposes of financing,
delivery is deemed to occur as of the Letter of credit. An irrevocable com-
on-board date shown on the ocean bill mercial letter of credit issued, con-
of lading. firmed, or advised by a banking insti-
Destination country The foreign coun- tution in the United States and pay-
try to which the commodity is ex- able in U.S. dollars.
ported. Local currency. The currency of the
Director. The Director, Pub. L. 480 Op- importing or destination country.
erations Division, Foreign Agricultural Notice of arrival. A written notice in
Service. accordance with § 17.8(g) stating that
Expediting services. Services provided the vessel has arrived at the first port
of discharge.
to the vessel owner at the discharge

port in order to facilitate the discharge Ocean bill of lading—(1) In the case of
and sailing of the vessel; this may in- cargo carried on a vessel other than LASH
clude assisting with paperwork, obtain- barges: An ‘‘on-board’’ bill of lading, or
490
a bill of lading with an ‘‘on-board’’ en- Private entity. The nongovernmental

dorsement, which is dated and signed legal entity with which an agreement
or initialed on behalf of the carrier; or has been signed under the Act.
(2) In the case of cargo carried in a Purchase authorization. Form FAS–
LASH barge: (i) For the purpose of fi- 480, ‘‘Authorization to Purchase Agri-
nancing commodity price, an ‘‘on- cultural Commodities,’’ issued to a par-
board’’ bill of lading showing the date ticipant under this part.
the commodity was loaded on board Purchasing agent. Any person engaged
barges, which is dated and signed or by a participant to procure agricul-
initialed on behalf of the carrier, or a tural commodities.
bill of lading or a LASH barge bill of Secretary. The Secretary of Agri-
lading with an ‘‘on-board barge’’ en- culture of the United States, or the
dorsement which is dated and signed or Secretary’s designee.
initialed on behalf of the carrier. Selling agent. A representative for the
(ii) For the purpose of financing supplier of the commodity, who is not
ocean freight or ocean freight differen- employed by or otherwise connected
tial, a bill of lading which is dated and with the importer or the participant.
signed or initialed on behalf of the car- Shipping agent. Any person engaged
rier indicating that the barge con- by a participant to arrange ocean
taining the cargo was placed aboard transportation.
the vessel named in the Form CCC–106 Ships broker. Any person engaged by a
not later than eight running days after supplier of ocean transportation to ar-
the last LASH barge loading date (con- range employment of vessels.
tract layday) specified in the Form Supplier. Any person who sells a com-
CCC–106. This may be either an ‘‘on modity to an importer under the terms
board’’ bill of lading or a bill of lading of a purchase authorization, or who
or a LASH barge bill of lading with an sells ocean transportation to an im-
‘‘on-board ocean vessel’’ endorsement. porter or supplier of the commodity
(3) Documentary requirements for a under the terms of a purchase author-
copy of an ‘‘ocean bill of lading’’ refer ization.
to a non-negotiable copy thereof. USDA. The U.S. Department of Agri-
Ocean freight contract. A charter culture.
party or liner booking note. United States. The 50 States, the Dis-
Ocean transportation. Interchangeable trict of Columbia, and Puerto Rico.
with the term ‘‘ocean freight’’.
Ocean transportation brokerage. Serv- § 17.3 Purchase authorizations.
ices provided by shipping agents re- (a) Issuance. After an agreement is
lated to their engagement to arrange signed, the GSM will issue a purchase
ocean transportation and services pro- authorization to the participant for
vided by ships brokers related to their each commodity included in the agree-
engagement to arrange employment of ment.
vessels. (b) Contents. Each purchase author-
Ocean transportation-related services. ization includes the following informa-
Furnishing the following services: tion:
lightening, stevedoring, and bagging (1) The commodity to be purchased
(whether these services are performed and specifications, approximate quan-
at load or discharge), and inland trans- tity and maximum dollar amount au-
portation, i.e., transportation from the thorized;
discharge port to the designated inland (2) Contracting requirements;
point of entry in the destination coun- (3) The contracting period, during
try, if the discharge port is not located which suppliers and importers must
in the destination country. enter into contracts; and the delivery
Participant. The collective term used period, during which the commodity
to denote the importing country or the must be delivered;
private entity with which an agree- (4) The terms of delivery to the im-
ment has been negotiated under the porter;

Act. (5) Documentation required for CCC
Person. An individual or other legal financing in addition to or in lieu of
entity. the documentation specified in § 17.9;
491
(6) Provisions relating to payment to plicable purchase authorization. The

CCC, if applicable; participant, in subauthorizing, shall
(7) The address of the FSA office ad- specify to importers all the provisions
ministering the financing operation on of the applicable purchase authoriza-
behalf of CCC; tion which apply to the subauthoriza-
(8) The method of financing provided tion.
under the Agricultural Commodities (f) Cotton textiles. (1) Except as pro-
Agreement; vided in paragraph (f)(2) of this section,
(9) Any provisions relating to financ- financing of textiles under this part is
ing by CCC in addition to or in lieu of limited to cotton yarns and fabrics
those specified in this part; processed up to and including the dyed
(10) Authorization to procure ocean and printed state, and preshrinking.
transportation, and provisions relating Any processing of such yarns and fab-
to the financing of ocean freight or rics beyond this stage will be at the ex-
ocean freight differential, as applica- pense of the participant.
ble; (2) Purchase authorizations may per-
(11) Any other provisions considered mit cotton textiles processed beyond
necessary by the General Sales Man- the stage described in paragraph (f)(1)
ager. of this section to be purchased, but the
(c) Applicability of this part. In addi- maximum financing by CCC is limited
tion to the provisions of a particular to the equivalent value of the cotton
purchase authorization, each purchase yarns and fabrics described in para-
authorization, unless otherwise pro- graph (f)(1) of this section, contained in
vided, is subject to the provisions of the textiles, plus eligible ocean trans-
this part to the same extent as if the portation costs.
provisions were fully set forth in the
(3) Financing is available only for
purchase authorization.
textiles manufactured entirely of U.S.
(d) Modification or revocation. The
cotton in the United States.
General Sales Manager reserves the
right at any time for any reason or § 17.4 Agents of the participant or im-
cause whatsoever to supplement, mod- porter.
ify or revoke any purchase authoriza-
tion, including the termination of de- (a) General. (1) A participant or im-
liveries, if it is determined to be in the porter is not required to use a pur-
interest of the U.S. Government. CCC chasing agent or shipping agent, or em-
shall reimburse suppliers who would ploy the services of any other agent,
otherwise be entitled to be financed by broker, consultant, or other represent-
CCC for costs which were incurred as a ative (hereafter ‘‘agent’’) in connection
result of such action by the GSM in with arranging the purchase of agricul-
connection with firm sales or shipping tural commodities under title I of the
contracts, and which were not other- Act and arranging ocean transpor-
wise recovered by the supplier after a tation for such commodities. However,
reasonable effort to minimize such if an agent is used, the participant
costs: Provided, however, That such re- shall submit a written nomination of
imbursement shall not be made to a the agent to the Deputy Adminis-
supplier if the GSM determines that trator, Export Credits, FAS, along with
the GSM’s action was taken because a copy of the proposed agreement be-
the supplier failed to comply with the tween the participant or importer and
requirements of the regulations in this such agent. The written nomination
part or the applicable purchase author- shall also specify the period of time to
ization; Provided further, That reim- be covered by the nomination. A person
bursement to suppliers of ocean trans- may not act as agent for a participant
portation shall not exceed the ocean or importer unless the Deputy Admin-
freight differential when the purchase istrator, Export Credits, FAS, has pro-
authorization provides only for financ- vided a written statement that the
nomination is accepted in accordance
ing the differential.

(e) Subauthorizations. The participant with the provisions of this section.
may issue subauthorizations to import- (2) See § 17.6(c) regarding commis-
ers consistent with the terms of the ap- sions, fees, or other compensation of
492
any kind to agents of a participant or a shipping agent, shall furnish to the

importer. Deputy Administrator, Export Credits,
(3) A freight agent employed by the FAS, the following information or doc-
Agency for International Development umentation as may be applicable:
under titles II and III is not eligible to (1) The names of all incorporators;
act as an agent for the participant or (2) The names and titles of all offi-
importer during the period of such em- cers and directors;
ployment. A subcontractor of such (3) The names of all affiliates, includ-
freight agent is not eligible to act as ing the names and titles of all officers
an agent for the participant or im- and directors of each affiliate, and a
porter during the period of its sub- description of the type of business in
contract. which the affiliate is engaged;
(b) Affiliate defined. For purposes of (4) The names and proportionate
this section, the term affiliate has the
share interest of all stockholders;
meaning provided in § 17.2 and, in addi-
(5) If beneficial interest in stock is
tion, persons will also be considered to
held by other than the named share-
be affiliates if any of the following con-
ditions are met: holders, the names of the holders of the
(1) There are any common officers or beneficial interest and the propor-
directors. tionate share of each;
(2) There is any investment by eligi- (6) The amount of the subscribed cap-
ble commodity suppliers, selling ital;
agents, or persons engaged in fur- (7) For USDA acceptance of a nomi-
nishing ocean transportation or ocean nation covering services provided dur-
transportation-related services for ing each U.S. fiscal year (October 1–
commodities provided under any title September 30), a written statement
of the Act, section 416(b) of the Agri- signed by such person:
cultural Act of 1949, or the Food for (i) Certifying that, during the U.S.
Progress Act of 1985, whether or not fiscal year covered by USDA’s accept-
any part of the ocean transportation is ance of the nomination, the person has
financed by the U.S. Government, or by not engaged in, and will not engage in,
agents of such persons, or their officers supplying commodities under any title
or directors, in the agent of the partici- of the Act or the Food for Progress Act
pant or importer. of 1985 or furnishing ocean transpor-
(3) There is any investment by the tation or ocean transportation-related
agent of the participant or importer, or services for commodities provided
its officers or directors, in approved under any title of the Act, section
commodity suppliers; selling agents; or 416(b) of the Agricultural Act of 1949, or
persons engaged in furnishing ocean the Food for Progress Act of 1985,
transportation or ocean transpor- whether any part of the ocean trans-
tation-related services for commodities portation is financed by the U.S. Gov-
provided under any title of the Act, ernment; and that the person has not
section 416(b) of the Agricultural Act of served and will not serve as an agent of
1949, or the Food for Progress Act of firms engaged in providing such com-
1985, whether or not any part of the modities, ocean transportation and
ocean transportation is financed by the ocean transportation-related services;
U.S. Government, or in agents of such (ii) Certifying that, for ocean trans-
persons. These conditions include those portation brokerage services provided
cases in which investment has been during the U.S. fiscal year covered by
concealed by the utilization of any USDA’s acceptance of the nomination,
scheme or device to circumvent the the person has not shared and will not
purposes of this section but does not share freight commissions with the
include investment in any mutual participant, the importer, or any agent
fund. of the participant or the importer,
(c) Information to be furnished. A per- whether CCC finances any part of the

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Title 7

Revised as of January 1, 2012

Containing a codification of documents

Published by the Office of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PRINTING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001

SUBTITLE A—Office of the Secretary of Agriculture .................... 3

Table of CFR Titles and Chapters ....................................................... 547

Alphabetical List of Agencies Appearing in the CFR ......................... 567

List of CFR Sections Affected ............................................................. 577

To cite the regulations in

OMB CONTROL NUMBERS

Title 7—AGRICULTURE is composed of fifteen volumes. The parts in these vol-

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE .. 1

handicap in programs or activities conducted by

Subpart D—Claims 1.142 Post-hearing procedure.

1.197 Comments by other parties. 1.326 Computation of time.

1.501 Policy on employee indemnification. information needed for the case?

(‘‘FOIA’’), 5 U.S.C. 552, pursuant to erwise) of indexes and supplements to

the FEDERAL REGISTER; for requesting records or information

due diligence in processing requests in news breaking nature of the informa-

tion or commercial activities would

(d) Provide business information sub-

paper records. Deletions may be shall notify the requester of the

quests. as if it had been reached within the ap-

§ 1.18 Fee schedule. (5) The number of requests for

sion of the agency to withhold informa-

the regulations required by § 1.3 are as

APPENDIX A TO SUBPART A OF PART 1— (d) Records shall also be furnished without

38×38 Paper ............................................................ 50.00

capacity in any hearing or proceeding (3) Advance notices of proposed rule-

vided in paragraph (a)(2) of this sec-

Subpart D—Claims Subpart E—Cooperative

such assistance as reviewing stories tion of the Director of Information, the

agreement, assistance may be given by compliance with the requirements of

(a) If an individual submitting a re- signed, notarized statement indicating

with either paragraphs (a)(1) or (2) of

§ 1.118 Appeal of initial adverse agen- to whom the record is subsequently

(3) Of the procedures for filing such a

tigation Reports, USDA/ASCS–12. Law, as amended, USDA/OGC–8.

an individual to any person other than an tion maintained;

fusal to disclose his or her social security ac- subpart.

wise in this subpart: in the meaning of 7 U.S.C. 499a(b)(9).

same address by certified or registered transaction complained about, includ-

(x) Statement of other material otherwise requires, prior to the institu-

can show is inappropriate or unwar- the conference by personal attendance

by telephone or correspondence, the material issue of fact is joined by the

fact of established character: Provided,

transcript or recording, shall be fur- such shorter or longer period as may be

must be briefly stated. in a proceeding, proposed decision and

contained in a complaint, initial deci- or agent thereof, shall be deemed to be

written questions for a deposition provided in § 1.143, if, in the judgment

(b) Judge’s order for taking deposition.

script or recording shall be presumed,

Provided further, That the Judge or Ju-

record in the proceeding.

proceeding a docket number and effect § 1.166 Consent order.

the Judge determines that conducting

(i) Is necessary to prevent prejudice reconsideration must be accompanied

which the hearing is to be conducted,

(e) Failure to appear. If respondent, part of the transcript or recording.

objections, whereupon an automatic ing the evidence was both prejudicial