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how the matter might be resolved. If Agriculture may determine for good an employee feels that the final deter- cause shown. mination will cause him or her undue (c) Reports shall be separately mainhardship, or objects to the decision on tained by the officials designate as other grounds, he or she may request custodians for such reports and shall a review and modification by forward- not be made a part of the official pering to the Chief, Security and Employ- sonnel folders. ee Relations Staff, a written statement (d) Regardless of the means setting forth all the facts and circum- manner of transmission, when these stances in support of his or her re- reports leave the physical custody of quest and any alternative solution employees or a designated reviewer, which he or she thinks appropriate. they shall be enclosed in a double
(i) If the final determination re- sealed envelope. The inner envelope quires positive action on the part of shall be marked: “For Official Use the employee, he or she shall take Only," "Contains AD-392 (or ADsuch action as soon as possible and 392A)," as appropriate, and “To Be advise the determining official when Opened by Addressee Only.” he or she has done so. Failure to take a required action within a reasonable Subpart D-Administrative Enforcetime may result in disciplinary action.
ment of Restriction on Post-Em(j) Where special circumstances
ployment Activities exist, the Director of Personnel may grant, in writing, an exception to the AUTHORITY: 18 U.S.C. 207(j). requirements of paragraph (c)(1) of
SOURCE: 46 FR 47210, Sept. 25, 1981, this section to allow delegation of unless otherwise noted. review and determination authority to others than national office officials. 8 0.735-51 Purpose. [43 FR 43431, Sept. 26, 1978, as amended at The purpose of this subpart is to set 46 FR 22559, Apr. 20, 1981; 46 FR 47210, forth regulations governing adminisSept. 25, 1981)
trative enforcement of the prohibi
tions on post-employment activities $ 0.735-43 Protection of employees' state- contained in 18 U.S.C. 207.
ments. (a) The statements of employment
8 0.735-52 Notice of violation. and financial interests, and supple
Whenever there is reasonable cause ments thereto, required by or pursu- to believe that a former employee has ant to the regulations in this part violated the provisions of 18 U.S.C. shall be held in confidence and afford- 207, an investigation and referral of ed adequate physical security. No in- the matter to the Department of Jusformation as to the contents thereof tice for possible prosecution shall be shall be disclosed except to the head made in accordance with applicable of the employing agency and such regulations and Department proceother persons as may be designated dures. A copy of such referral shall be custodians or reviewers of such reports provided to the Office of Government unless specific authorization has been Ethics. Thereafter any action to be obtained from the Department Coun- taken by the Department shall be coselor. An official, custodian, reviewer, ordinated with the Department of Jusor other employee having possession tice unless the Department of Justice of a statement of employment and fi- declines to prosecute. nancial interests shall not allow access to, or allow information to be disclosed
8 0.735-53 Initiation of administrative from, the statement except to carry
action. out the purpose of this Subpart C.
Whenever the Director of Personnel (b) Information from a statement of has reasonable cause to believe that a employment and financial interests former employee of the Department shall not be disclosed outside of the has committed acts which violate 18 Department except as the Civil Serv- U.S.C. 207 (a), (b), or (c) he or she ice Commission or the Secretary of shall initiate administrative action
due regard in setting a hearing date to:
(a) Allowing the respondent adequate time to prepare a defense properly; and
(b) Providing the respondent an expeditious resolution of allegations that may be damaging to his or her reputation.
pursuant to this subpart by notifying such employee (hereinafter respondent), in writing that:
(a) Action is being instituted against him or her pursuant to this subpart as a result of allegations of a violation or violations of 18 U.S.C. 207. The respondent shall be informed of the allegations and the basis for them in sufficient detail to prepare an adequate defense;
(b) He or she may request a hearing in writing within 15 working days by addressing the request to the Director of Personnel of the Department;
(c) In the absence of such a request, the Director of Personnel shall decide the matter on its merits based upon the evidence gathered to date; and
(d) The respondent may elect to supply a written rebuttal to the allegations in lieu of requesting a hearing. Such material shall be incorporated in the record and reviewed by the Director of Personnel prior to reaching a determination on the matter.
$ 0.735-57 Representation.
Respondent shall be entitled to appear personally,
to appear through or be accompanied by a representative, at the hearing.
$ 0.735-58 Rights of parties at hearing.
Petitioner and respondent shall be entitled to introduce, examine and cross examine witnesses, submit evidence, and present oral arguments.
$ 0.735-59 Oaths and rules of evidence.
All testimony shall be taken under oath. The hearing officer shall conduct the hearing so as to bring out pertinent facts, including the production of pertinent documents. Rules of evidence shall not be applied strictly, but the hearing officer shall exclude irrelevant or unduly repetitious evidence.
$ 0.735-54 Hearing officer.
If the respondent, after receiving notice of action under this subpart, requests a hearing, the Secretary shall appoint a hearing officer for the matter. The hearing officer shall be an individual who has not been involved in any of the events specified in the allegations and who did not participate in the investigation of the al. legations, or the decision to institute the proceeding, or the referral of the matter, if any, to the Department of Justice. The hearing officer shall be an individual with suitable experience and training to conduct the hearing, reach a determination and render an initial decision in
8 0.735-60 Transcript.
The hearing officer shall cause a transcript to be made of the hearing and a copy of it shall be made available to petitioner and to respondent. $ 0.735-61 Briefs and discovery.
There shall be no discovery prior to the hearing, nor shall any briefs be submitted, absent specific request of the hearing officer.
$ 0.735-55 Department representative.
The Director of Personnel shall appoint a Department representative (hereinafter petitioner) to present evidence and otherwise participate in the hearing.
$ 0.735-62 Open hearing.
All hearings shall be open to the public unless closed for good cause by the hearing officer. Such a finding shall be made a part of the record by the hearing officer.
$ 0.735-56 Time, date and place of hear
ing. The hearing shall be held at a time and place specified by the hearing officer. The hearing officer shall give
$ 0.735-63 Ex-parte communications.
Neither petitioner or respondent, nor any representative thereof, shall make any ex-parte communications to the hearing officer concerning merits of the allegations against respondent
Subpart C-Judicial Proceedings
Sec. 1.41 Service of process.
1.51 Claims based on negligence, wrongful
act, or omission. 1.52 Claims collection standards.
Subpart E-Cooperative Production of
Television Films 1.71 Purpose. 1.72 Policy. 1.73 Responsibility. 1.74 Basis for special working relation
ships. 1.75 General stipulations. 1.76 Department cooperation. 1.77 Assignment of priorities. 1.78 Development of special working rela
tionships. 1.79 Credits.
Sec. 1.131 Scope and applicability of this sub
part. 1.132 Definitions. 1.133 Institution of proceedings. 1.134 Docket number. 1.135 Contents of complaint. 1.136 Answer. 1.137 Amendment of complaint or answer. 1.138 Consent decision. 1.139 Procedure upon failure to file an
answer or admission of facts. 1.140 Prehearing conferences and proce
dure. 1.141 Procedure for Hearing. 1.142 Post-hearing procedure. 1.143 Motions and requests. 1.144 Judges. 1.145 Appeal to Judicial Officer. 1.146 Petitions for reopening hearing; for
rehearing or reargument of proceeding; or for reconsideration of decision of the
Judicial Officer. 1.147 Filing; service; extensions of time;
and computation of time. 1.148 Depositions. 1.149 Subpoenas. 1.150 Fees of witnesses. 1.151 Ex parte communications.
Subpart F—Vending Stands To Be Operated by
Licensed Blind Persons 1.91 Purpose. 1.92 Department policy. 1.93 Procedure. 1.94 Special provisions.
Subpart G-Privacy Act Regulations
Subpart 1-Rules of Practice Governing Cease
and Desist Proceedings Under Section 2 of the Capper-Volstead Act
1.110 Purpose and scope. 1.111 Definitions. 1.112 Procedures for requests pertaining to
individual records in a record system. 1.113 Times, places, and requirements for
identification of individuals making re
quests. 1.114 Disclosure of requested information
to individuals. 1.115 Special procedures: medical records. 1.116 Request for correction or amend
ment to record. 1.117 Agency review of request for correc
tion or amendment of record. 1.118 Appeal of initial adverse agency de
termination on correction or amend
ment. 1.119 Disclosure of record to person other
than the individual to whom it pertains. 1.120 Fees. 1.121 Penalties. 1.122 General exemptions. (Reserved) 1.123 Specific exemptions. APPENDIX A-INTERNAL DIRECTIVES
1.160 Scope and applicability of rules in
this part. 1.161 Definitions. 1.162 Institution of proceedings. 1.163 The complaint. 1.164 Answer. 1.165 Amendments. 1.166 Consent order. 1.167
ering conference. 1.168 Procedure for hearing. 1.169 Post-hearing procedure and decision. 1.170 Appeal to the Judicial Officer. 1.171 Intervention. 1.172 Motions and requests. 1.173 Judges. 1.174 Filing; service; extensions of time;
and computation of time. 1.175 Procedure following entry of cease
and desist order. AUTHORITY: 5 U.S.C. 301, unless otherwise noted.
Subpart A-Official Records
Subpart H-Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes
AUTHORITY: 5 U.S.C. 301, 552, unless otherwise noted.
SOURCE: 40 FR 7341, Feb. 19, 1975, unless otherwise noted.
1.130 Meaning of words.
8 1.1 Purpose and scope.
This subpart provides regulations of the Department of Agriculture implementing the Freedom of Information Act, 5 U.S.C. 552, pursuant to which official records may be obtained by any person. It also provides regulations pertaining to the disclosure of records pursuant to compulsory process. Unless prohibited by other laws, Executive Orders, or regulations, agencies of the Department may make available records which they are authorized to withhold under 5 U.S.C. 552 whenever they determine that such disclosure is in the public interest.
8 1.2 Public access to certain materials.
(a) In accordance with 5 U.S.C. 552(a)(2) each agency within the Department shall make the following materials available for public inspection and copying (unless they are promptly published and copies offered for sale):
(1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretation which have been adopted by the agency and are not published in the FEDERAL REGISTER; and
(3) Administrative staff manuals and instructions to staff that affect a member of the public.
(b) Each agency of the Department shall also maintain and make available current indexes providing identifying information regarding any matter issued, adopted or promulgated after July 4, 1967, and required by paragraph (a) of this section to be made available or published. Each agency shall publish and make available for distribution, copies of such indexes and supplements thereto at least quarterly, unless it determines by Notice published in the FEDERAL REGISTER that publication would be unnecessary and impracticable. After issuance of such Notice, the agency shall provide copies of any index upon request at a cost not to exceed the direct cost of duplication.
8 1.3 Requests for records.
(a) Any person who wishes to inspect, or obtain copies of any record of an agency of the Department shall submit a request in writing and addressed to the official designated in regulations promulgated by the agency. All such requests for records shall be deemed to have been made pursuant to the Freedom of Information Act, regardless of whether that Act is specifically mentioned. To facilitate processing of a request, the phrase "FOIA REQUEST” should be placed in capital letters on the front of the envelope.
(b) A request must reasonably describe the records to enable agency personnel to locate them with reasonable effort. Where possible, specific information regarding dates, titles, etc. which may help identify the records should be supplied by the requester. If the request relates to a matter in pending litigation, the court and its location should be identified.
(c) If an agency determines that a request does not reasonably describe the records, it shall inform the requester of this fact and extend an opportunity to confer promptly with knowledgeable agency personnel to attempt to identify the records he is seeking.
(d) Nothing in this subpart shall be interpreted to preclude an agency from honoring an oral request for information, but, if the requester is dissatisfied with the response, the agency official involved shall advise him to submit a written request in accordance with paragraph (a) of this section. The “date of receipt” of such a request for purposes of $ 1.5(a) of this subpart shall be the date of receipt of the written request.
(e) If a request for records made under this subpart is denied, the person making the request shall have the right to appeal the denial. This appeal must be in writing and addressed to the official designated in regulations promulgated by the agency which denied the request. To facilitate processing of an appeal, the phrase "FOIA APPEAL” should be placed in capital letters on the front of the envelope.