Rules of Practice Governing the Adjudication of Sourcing Area Applications and Formal Review of Sourcing Areas Pursuant to the Forest Resources Conservation and Shortage Relief Act of 1990
Federal RegisterFeb 24, 1994
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Parts 1 and 2
Forest Service
36 CFR Part 223
Rules of Practice Governing the Adjudication of Sourcing Area
Applications and Formal Review of Sourcing Areas Pursuant to the Forest
Resources Conservation and Shortage Relief Act of 1990
AGENCY: Office of the Secretary; Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends 7 CFR parts 1 and 2 and 36 CFR part 223 by
adding a new subpart M to 7 CFR part 1 establishing rules of practice
governing the adjudication of sourcing area applications pursuant to
the Forest Resources Conservation and Shortage Relief Act of 1990; by
deleting, in 7 CFR part 2, the reference to the Forest Resources
Conservation and Shortage Relief Act and adding, in its place, a
reference to the rules of practice established by this rule; and by
making technical amendments to 36 CFR part 223 to conform it to the
rules of practice established by this rule.
The Forest Resources Conservation and Shortage Relief Act of 1990
(Act) prohibits the export of unprocessed Federal timber west of the
100th meridian in the 48 contiguous states and the substitution of such
unprocessed Federal timber for unprocessed private timber from the west
that is exported. The Act allows a person with an approved sourcing
area to export unprocessed private timber originating from outside of
the sourcing area while purchasing Federal timber within the sourcing
area. The Act states that the Secretary shall approve or disapprove
sourcing areas on the record and after an opportunity for a hearing.
Therefore, formal adjudication is required under the Administrative
Procedure Act. The Act also requires that reviews of sourcing areas be
conducted at least every 5 years in accordance with the procedures of
the Act. Pursuant to section 556 of the Administrative Procedure Act,
adjudications of sourcing area applications and formal reviews of
sourcing areas will be subject to the rules of practice adopted by this
rulemaking. Informal reviews of sourcing areas will be conducted in
accordance with 36 CFR 223.191(e).
EFFECTIVE DATE: February 24, 1994.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Becker, Natural Resources Division, Office of the General
Counsel, United States Department of Agriculture, room 4622 South
Building, 14th and Independence Avenue, SW., Washington, DC 20250-1400.
Telephone: (202) 720-9076.
SUPPLEMENTARY INFORMATION: The Forest Resources Conservation and
Shortage Relief Act (Act), enacted August 20, 1990, prohibits both the
export of unprocessed Federal logs originating west of the 100th
meridian in the contiguous 48 states and the substitution of such
unprocessed Federal logs for unprocessed private logs originating west
of the 100th meridian in the contiguous 48 states that are exported.
The Act exempts persons with approved ``sourcing areas'' from the
prohibition against substitution in certain circumstances. A sourcing
area is the area from which an owner/manufacturer of logs obtains logs
for his or her mill. To be approved, a sourcing area must be
geographically and economically separate from any geographic area where
the person harvests private timber for export. A person with an
approved ``sourcing area'' may export unprocessed private logs whose
origin is outside of the sourcing area, while continuing to purchase
Federal logs within the sourcing area. Private logs originating from
within the sourcing area may not be exported.
Section 490(c) of the Act states that the Secretary is to approve
or disapprove the application, ``on the record and after an opportunity
for a hearing'' 4 months after submission of a sourcing area
application. Section 554 of Title 5, United States Code requires a
formal adjudicatory process when a statute requires a determination to
be made ``on the record and after opportunity for an agency hearing.''
This rule amends 7 CFR part 1 by adding rules of practice governing
sourcing area applications, pursuant to 5 U.S.C. 556. Specific rules
governing sourcing area adjudications are necessary because of the
short time in which the statute requires decisions to be made (4
months), and the unique procedural posture of sourcing area
applications; i.e., sourcing area applications are submitted by a party
other than the agency, expect in certain cases, pursuant to a review of
a sourcing area.
This rule also amends 7 CFR 2.35 by deleting the words ``in
sourcing area adjudications under the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.)'', and adding, in
their place, the words ``in adjudication proceedings subject to the
`Rules of Practice Governing the Adjudication of Sourcing Area
Applications and Formal Review of Sourcing Areas Pursuant to the Forest
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620
et seq.)' set forth in 7 CFR part 1, subpart M;''.
Due to the amendments to 7 CFR parts 1 and 2, adopted by this rule,
it is necessary in this rule, to make technical amendments to 36 CFR
part 223 to conform it to the rules of practice, established by this
rule, which govern the adjudication of sourcing area applications
pursuant to the Act. This rule amends the rules governing initial
sourcing applicants, published in an interim rule at 55 FR 48572 (Nov.
20, 1990). Specifically to conform the procedures in the interim rule
to this rule, for ongoing applications, 36 CFR 223.190 is amended as
follows:
1. Section 223.190(g) is revised to state that the application
review process will be conducted pursuant to the Rules of Practice
Governing the Adjudication of Sourcing Area Applications and Formal
Review of Sourcing Areas Pursuant to the Forest Resources Conservation
and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.), found at 7
CFR part 1, subpart M.
2. Section 223.190(h) (introductory text) and (h)(1)-(3) are
removed.
3. Section 223.190(h)(4) is redesignated as 36 CFR 223.190(h) and
is revised to state that a final decision will be issued within four
(4) months of receipt of the sourcing area application or initiation
date of the formal review of the sourcing area.
4. Section 223.190(h)(5) is redesignated as 36 CFR 223.190(i), and
36 CFR 223.190(h)(5)(i)-(iv) are redesignated as 36 CFR 223.190(i),
(1)-(4).
5. Newly redesignated 36 CFR 223.190(i)(1) is amended by deleting
the words ``approving official'' and adding, in their place, the words
``the Administrative Law Judge, or, on appeal, the Judicial Officer.''
This rule also makes technical amendments to 36 CFR 223.191(e) to
conform the sourcing area review procedures to the rules of practice
adopted in this rule (36 CFR 223.191 was published in a final
rulemaking at 56 FR 65834, December 19, 1991). Specifically, this rule
removes from 36 CFR 223.191(e) the words ``deciding official'' and
adds, in their place, the words ``the Administrative Law Judge, or, on
appeal, the Judicial Officer.'' This rule also amends the following
sentence in paragraph (e), ``The deciding official shall, on the record
and after opportunity for a hearing, approve or disapprove the sourcing
area being reviewed'' by adding to the end of the sentence the words
``pursuant to the Rules of Practice Governing the Adjudication of
Sourcing Area Applications and Formal Review of Sourcing Areas Pursuant
to the Forest Resources Conservation and Shortage Relief Act of 1990
(16 U.S.C. 620 et seq.), found at 7 CFR part 1, subpart M;''.
Environmental Impact
This rulemaking consists primarily of technical and administrative
changes related to the rules of practice governing the adjudication of
sourcing area applications pursuant to the Forest Resources
Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.).
No extraordinary circumstances have been identified that might cause
this proposed action to have a significant effect on the human
environment. Therefore, this rulemaking is categorically excluded from
documentation in an Environmental Impact Statement or an Environmental
Assessment (40 CFR 1508.4; Forest Service Handbook 1909.15,
Environmental Policy and Procedures, Sec. 31.1b(2), 57 FR 43208,
September 18, 1992).
Paperwork Reduction Act
This action contains no new or additional recordkeeping and
reporting requirements, and contains no collections of information as
defined in the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. and its
implementing regulations at 5 CFR part 1320. Therefore, the Paperwork
Reduction Act and its implementing regulations do not apply to this
rulemaking.
Regulatory Impact
This rule relates to internal agency management. Therefore,
pursuant to 5 U.S.C. 553, notice and opportunity for comment are not
required, and this rule may be made effective less than 30 days after
publication in the Federal Register. Further, since this rule relates
to internal agency management, it is exempt from the provisions of
Executive Order 12866. Finally, this action is not a rule as defined in
Public Law No. 96-354, the Regulatory Flexibility Act, and thus is
exempt from the provisions of that Act.
This rule has been reviewed in accordance with the principles and
criteria contained in Executive Order 12630 and it has been determined
that the rule does not pose the risk of a taking of constitutionally
protected private property.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under this rule: (1) All state and local laws and
regulations that are in conflict with this rule or which could impede
its full implementation will be preempted;
(2) No retroactive effect will be given to this rule; and
(3) No administrative proceedings are required before parties may
file suit in court challenging its provisions.
List of Subjects
7 CFR Part 1
Office of the Secretary of Agriculture, Administrative practice and
procedure.
7 CFR Part 2
Delegations of authority (government agencies).
36 CFR Part 223
Exports, Government contracts, National Forests, Reporting
requirements, Timber sales.
Therefore, for the reasons set forth in the preamble, parts 1 and 2
of title 7 and part 223 of Title 36 of the Code of Federal Regulations
are amended as set forth below.
Title 7
PART 1--ADMINISTRATIVE REGULATIONS
1. The authority citation of part 1 continues to read as follows:
Authority: 5 U.S.C. 301, unless otherwise noted.
2. Amend part 1 by adding a new subpart M to read as follows:
Subpart M--Rules of Practice Governing Adjudication of Sourcing Area
Applications and Formal Review of Sourcing Areas Pursuant to the Forest
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620,
et seq.)
Sec.
1.410 Meaning of words.
1.411 Definitions.
1.412 Institution of proceedings.
1.413 Submission of a sourcing area application.
1.414 Docket number.
1.415 Notification of proceedings.
1.416 Comment period.
1.417 Review period.
1.418 Procedure upon no request for hearing.
1.419 Amendment of a sourcing area application.
1.420 Consent recommendation.
1.421 Prehearing conferences and procedures.
1.422 Conduct of the hearing.
1.423 Post-hearing procedure.
1.424 Motions and requests.
1.425 Judges.
1.426 Appeal to Judicial Officer.
1.427 Filing; Identification of parties of record; service and
computation of time.
1.428 Depositions.
1.429 Ex parte communications.
Subpart M--Rules of Practice Governing Adjudication of Sourcing
Area Applications and Formal Review of Sourcing Areas Pursuant to
the Forest Resources Conservation and Shortage Relief Act of 1990
(16 U.S.C. 620, et seq.)
Authority: 5 U.S.C. 556 and 16 U.S.C. 620, et seq.
Sec. 1.410 Meaning of words.
As used in these procedures, words in the singular form shall be
deemed to import the plural, and vice versa, as the circumstance may
require.
Sec. 1.411 Definitions.
As used in these procedures, the terms as defined in the Forest
Resources Conservation and Shortage Relief Act of 1990, 16 U.S.C. 620,
et seq. (Act) and in the regulations issued thereunder, shall apply
with equal force and effect. In addition and except as may be provided
otherwise in these procedures:
(a) Applicant or Sourcing area applicant means a person who submits
a sourcing area application pursuant to these rules, or a person who
sourcing area is subject to formal review pursuant to 36 CFR
223.191(e).
(b) Decision'' means:
(1) The Judge's initial decision made in accordance with the
provisions of 5 U.S.C. 554, 556, 557, and 16 U.S.C. 620, et seq. and 36
CFR 223.190 and 223.191(e), which includes the Judge's findings and
conclusions and the reasons or basis therefore on all material issues
of fact, law or discretion, orders and rulings on proposed findings,
conclusions and orders submitted by the parties; and
(2) The decision and order by the Judicial officer upon appeal of
the Judge's decision.
(c) Determination is synonymous with decision.
(d) Hearing means that part of the proceeding which may be
requested by a party of record, and which involves the submission of
additional evidence before the Administrative Law Judge for the record
in the proceeding.
(e) Hearing Clerk means the Office of the Hearing Clerk, United
States Department of Agriculture, Washington, D.C. 20250.
(f) Judge means any Administrative Law Judge Appointed pursuant to
5 U.S.C. 3105 and assigned to the proceeding involved.
(g) Judicial Officer means an official of the United States
Department of Agriculture delegated authority by the Secretary of
Agriculture, pursuant to the Act of April 4, 1940 (7 U.S.C. 450c-459g)
and Reorganization Plan No. 2 of 1953 (5 U.S.C. 1988 ed., appendix, p.
1280), to perform the function involved (7 CFR 235(a)), or the
Secretary of Agriculture, if the authority so delegated is exercised by
the Secretary.
(h) Party of record or Party is a party to the proceeding to
determine approval or disapproval of a sourcing area application,
including the proceeding for formal review of a sourcing area. The
sourcing area applicant and persons who submit written comments on the
sourcing area application at issue during the 30 calendar day comment
period, including the Regional Forester, are the parties of record. For
purposes of a formal review of a sourcing area, the holder of the
sourcing area that is the subject of the review and persons who submit
written comments on the sourcing area application at issue during the
30 calendar day comment period after institution of the formal review,
including the Regional Forester, are the parties of record.
(i) Sourcing Area Application means the application by which a
person applies for a sourcing area or the application by which a
sourcing area holder applies for a formal review of a sourcing area.
Sec. 1.412 Institution of proceedings.
(a) Sourcing area applications. The proceeding for determining
sourcing areas shall be instituted by receipt of a sourcing area
application by the Office of Administrative Law Judges, pursuant to 36
CFR 223.190.
(b) Review of sourcing areas. Informal review of a sourcing area
precedes institution of a formal review as follows:
(1) Request by Sourcing area holder. A sourcing area holder who
wishes to begin a review of a sourcing area shall send a written
request for a review to the Regional Forester of the region in which
the manufacturing facility being sourced is located. The request shall
state the reason for the request.
(i) Informal review. The Regional Forester shall begin an informal
review, pursuant to 36 CFR 223.191(e), based on the written request. If
no agreement is reached in the informal review process, the Regional
Forester of the region in which the manufacturing facility being
sourced is located shall transmit to the Office of Administrative Law
Judges any submissions received during the informal review process,
within 5 working days of the meeting convened during the informal
review (36 CFR 223.191)e)). Agreement is reached when all persons
attending the meeting convened by the Regional Forester to resolve
differences as to the proper sourcing area, including the Regional
Forester, sign the document describing the sourcing area.
(ii) Formal review. Institution by a sourcing area holder of a
formal review of the sourcing area occurs if the informal review
process does not result in agreement among the parties, and the
sourcing area holder submits a sourcing area application to the Office
of the Administrative Law Judges, pursuant to 36 CFR 223.190, within 10
working days after the meeting convened by the Regional Forester as
part of the informal process.
(2) Initiation of Review By Agency. If the Forest Service wishes to
begin a review of a sourcing area, the Regional Forester of the region
in which the manufacturing facility being sourced is located shall
begin an informal review, pursuant to 36 CFR 223.191(e). If no
agreement is reached in the informal review process, the Regional
Forester of the region in which the manufacturing facility being
sourced is located shall transmit to the Office of Administrative Law
Judges any submissions received during the informal review process,
within 5 working days of the meeting convened during the informal
review (36 CFR 223.191(e)). Agreement is reached when all persons
attending the meeting convened by the Regional Forester to resolve
differences as to the proper sourcing area, including the Regional
Forester, sign the document describing the sourcing area. Institution
by the Forest Service of a formal review of a sourcing area occurs when
the Office of Administrative Law Judges receives the papers and
documents submitted during the informal review process.
Sec. 1.413 Submission of a sourcing area application.
A sourcing area applicant shall send the application to the Office
of Administrative Law Judges and shall, simultaneously, send a copy of
the sourcing area application to the Forest Service Regional Forester
of the region in which the manufacturing facility being sourced is
located. Where the sourcing area application will cover purchases from
more than one agency, application is to be made to the agency from
which the applicant expects to purchase the preponderance of its
Federal timber. The sourcing area applicant must also send a complete
copy of the application to each agency concerned. The lead agency shall
make the decision in consultation with, and upon co-signature of, the
other agency(ies) concerned. Sourcing area applications must be signed
by the persons making the request, or in the case of a corporation, by
its chief executive officer, and must be notarized. The application
shall be on company letterhead.
Sec. 1.414 Docket number.
Each proceeding, following its institution, shall be assigned a
docket number by the Hearing Clerk, and thereafter the proceeding shall
be referred to by such number. The Hearing Clerk shall notify the
sourcing area applicant and the Regional Forester to whom the applicant
submitted a copy of the application of the docket number and the name
of the Judge to whom the case has been assigned. In a formal review of
a sourcing area instituted by the Forest Service, the Hearing Clerk
shall inform the sourcing area holder whose sourcing area is subject to
the review and the Regional Forester who submitted the comments
instituting the formal review of the docket number and the name of the
Judge to whom the case has been assigned.
Sec. 1.415 Notification of proceedings.
The Regional Forester of the region in which the manufacturing
facility being sourced is located shall notify prospective parties of
the sourcing area application and/or the formal review of a sourcing
area after receipt of the docket number and the name of the Judge to
whom the proceeding has been assigned, pursuant to Sec. 1.414 of these
rules. Notification will consist of publication of a notice in
newspapers of general circulation in the area included in the sourcing
area application. The Regional Forester shall promptly notify the
Hearing Clerk of the date of the publication and the notice. Additional
notification will be made through agency mailing lists. Notification
shall include the docket number, the name of the Judge to whom the case
has been assigned and the mailing address of the Judge. In the case of
a sourcing area review, notification will also state the reason for the
review.
Sec. 1.416 Comment period.
Written comments on a sourcing area application or on a formal
review of a sourcing area shall include the docket number and may be
submitted to the Judge for 30 calendar days following publication of
the notice. Persons submitting comments shall send a copy of the
comments to the Regional Forester of the region in which the
manufacturing facility being sourced is located. All comments must be
received by the Judge and by the Regional Forester by the 30th day of
the comment period.
Sec. 1.417 Review period.
(a) Review of comments. The sourcing area applicant, the sourcing
area holder whose sourcing area is the subject of a formal review and
other parties who submitted written comments will be allowed 10 working
days from the close of the comment period to review the written
comments at the Regional Forester's office during regular business
hours.
(b) Recommendation to Judge to approve or disapprove a sourcing
area application. During the 10 working day review period, parties who
have submitted written comments on an application or on a formal review
of a sourcing area may submit a written recommendation to the Judge,
including an analysis of the facts and law as to why the Judge should
approve or disapprove that application. A sourcing area applicant whose
sourcing area application is the subject of the proceeding, and a
sourcing area holder whose sourcing area is the subject of a formal
review, may also submit a written recommendation to the Judge. The
recommendation must be postmarked no later than the 10th working day of
the review period.
(c) Request for a hearing. The sourcing area applicant, the
sourcing area holder whose sourcing area is the subject of a formal
review and persons who submitted written comments, or the attorney of
record for a party in the proceeding, may review the comments and
request a hearing within 10 working days after the comment period,
pursuant to 36 CFR 233.190(h)(2). The request must be postmarked no
later than the 10th working day of the review period. An attorney may
file an appearance of record prior to the scheduled hearing. The
request for a hearing shall be filed with the Judge. The hearing is for
the purpose of supplementing the written record submitted prior to the
hearing. The written record submitted prior to the hearing consists of
papers and documents submitted during the 30 calendar day comment
period, the 10 working day review period, and any motions submitted
before the hearing. For purposes of a formal review of a sourcing area,
the written record also consists of the papers and documents submitted
during the informal review.
(1) Contents of the notice of hearing. The Judge shall issue a
notice of hearing regarding a particular sourcing area application or
regarding formal review of a sourcing area application or regarding
formal review of a sourcing area to all parties of record for that
application or formal review. The notice of hearing shall contain a
reference to the authority under which the sourcing area is proposed or
formally reviewed; shall define the scope of the hearing; shall contain
a reference to the sourcing area that is the subject of the hearing;
and shall state the date, time and place of such hearing; and shall
state the date, time and place of such hearing; which shall be set with
due regard for the necessity and convenience of the parties of record
or their representatives. The Judge shall schedule a hearing no later
than 21 calendar days after the 10 working day period for reviewing
written comments ends. The Judge may consolidate requests for a hearing
regarding the same application.
(2) Giving notice of hearing. The notice of hearing shall be served
upon the parties of record for the sourcing area application at issue
by the Hearing Clerk.
Sec. 1.418 Procedure upon no request for hearing.
If no hearing is requested by a party of record, the Judge shall
issue an initial decision based on the written record and without
further procedure or hearing. If no hearing is requested, the written
record consists of papers and documents submitted during the 30-day
comment period, the 10-day review period, and includes motions
submitted before the Judge issues an initial decision. For purposes of
a formal review of a sourcing area, the written record also consists of
the papers and documents submitted during the informal review. Copies
of the decision shall be served by the Hearing Clerk upon each of the
parties of record.
Sec. 1.419 Amendment of a sourcing area application.
The sourcing area applicant may move to amend the sourcing area
application with clarifying and technical amendments at any time prior
to the Judge's initial determination if there is no hearing, or prior
to the close of the hearing if there is a hearing.
Sec. 1.420 Consent recommendation.
Any time before the Judge files the decision, the parties of record
may enter a consent recommendation. Such consent recommendation shall
be filed with the Hearing Clerk, signed by the parties with appropriate
space for signature by the Judge. The consent recommendation shall
contain an admission of the jurisdictional facts, the factual and legal
basis for the recommended sourcing area, the consent to the issuance of
the recommended decision as the final decision of the agency without
further procedure and such other admissions or statements as may be
recommended by the parties. The Judge shall review the recommendation
to determine whether such recommendation conforms with the Forest
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620,
et seq.), 36 CFR 223.190, 36 CFR 223.191(e) and these procedures. If
the recommendation conforms to the aforementioned Act, regulations, and
procedures, the Judge may enter such decision without further
procedure, unless an error is apparent on the face of the document. If
the Judge enters the decision, such decision shall have the same force
and effect as a decision issued after full hearing and shall become
final upon issuance to become effective in accordance with the terms of
the decision.
Sec. 1.421 Prehearing conferences and procedures.
(a) Purpose and Scope. (1) Upon motion of a party of record or upon
the Judge's own motion, the Judge may direct the parties or their
counsel to attend a conference at any reasonable time, prior to or
during the course of the hearing, when the Judge finds that the
proceeding would be expedited by a prehearing conference. Reasonable
notice of the time and place of the conference shall be given. The
Judge may order each of the parties to furnish at or subsequent to the
conference any or all of the following:
(i) An outline of a party's position;
(ii) The facts upon which the party will rely;
(iii) The legal theories upon which the party will rely;
(iv) Copies of or a list of documents which the party
anticipates introducing at the hearing; and
(v) A list of anticipated witnesses who will testify on behalf
of the party. At the discretion of the party furnishing such list of
witnesses, the names of the witnesses need not be furnished if they
are otherwise identified in some meaningful way such as a short
statement of the type of evidence they will offer.
(2) The Judge shall not order any of the foregoing procedures
that a party can show is inappropriate or unwarranted under the
circumstances of the particular determination.
(3) At the conference, the following matters shall be
considered:
(i) The simplification of issues;
(ii) The possibility of obtaining stipulations of facts and of
the authenticity, accuracy, and admissibility of documents, which
will avoid unnecessary proof;
(iii) The limitation of the number of expert or other witnesses;
(iv) Negotiation, compromise, or settlement of issues;
(v) The exchange of copies of proposed exhibits;
(vi) The identification of documents or matters of which
official notice may be requested;
(vii) A schedule to be followed by the parties for completion of
the actions decided at the conference; and
(viii) Such other matters as may expedite and aid in the
disposition of the proceeding.
(b) Reporting. A prehearing conference will not be
stenographically reported unless so directed by the Judge.
(c) Action in lieu of personal attendance at a conference. In
the event the Judge concludes that personal attendance by the Judge
and the parties or counsel at a prehearing conference is unwarranted
or impracticable, but determines that a conference would expedite
the proceeding, the Judge may conduct such conference by telephone
or correspondence.
(d) Order. Actions taken as a result of a conference shall be
reduced to an appropriate written order, unless the Judge concludes
that a stenographic report shall suffice, or if the Judge elects to
make a statement on the record at the hearing summarizing the
actions taken.
Sec. 1.422 Conduct of the Hearing.
(a) Time and place. The hearing shall be held at the time and place
fixed in the notice of hearing. If any change in the time or place of
the hearing is made, the Judge shall file with the Hearing Clerk a
notice of such change, which notice shall be served upon the parties,
unless it is made during the course of an oral script, or actual notice
is given to the parties.
(b) Appearances. The parties may appear in person or by attorney of
record in the proceeding. Any party who desires to be heard in person
shall, before proceeding to testify, state his name, address, and
occupation. If any such person is appearing through counsel, such
person or such counsel shall, before proceeding to testify or otherwise
to participate in the hearing, state for the record the authority to
act as such counsel or representative, and the names, addresses, and
occupations of such person and such counsel. Any such person or such
counsel shall give such other information respecting his appearance as
the Judge may request. Any person who appears as counsel must conform
to the standards of ethical conduct required of practitioners before
the courts of the United States.
(c) Failure to appear. A party of record who, after being duly
notified, fails to appear at the hearing without good cause, shall be
deemed to have waived the right to an oral hearing in the proceeding.
Failure to appear at a hearing shall not be deemed to be a waiver of
the right to be served with a copy of the Judge's decision.
(d) Order of proceeding. The Judge shall determine the order in
which the parties shall proceed.
(e) Evidence--(1) In general. (i) The testimony of witnesses at a
hearing shall be on oath or affirmation and shall be subject to cross-
examination. Cross-examination shall be permitted to the extent
required for a full and true disclosure of the facts. The Judge may
require that testimony on one issue raised by numerous parties be heard
at one time.
(ii) Upon a finding of good cause, the Judge may order that any
witness be examined separately and apart from all other witnesses
except those who may be parties to the proceeding.
(iii) After a witness has testified on direct examination, any
other party may request and obtain the production of any statement, or
part thereof, of such witness in the possession of the party who called
the witness, which relates to the subject matter as to which the
witness has testified. Such production shall be made according to the
procedures and subject to the definitions and limitations prescribed in
the Jencks Act (18 U.S.C. 3500).
(iv) Evidence which is immaterial, or unduly repetitious, or which
is not of the sort upon which responsible persons are accustomed to
rely, shall be excluded insofar as practicable.
(2) Objections. (i) If a party objects to the admission of any
evidence or to the limitation of the scope of any examination or cross-
examination or to any other ruling of the Judge, the party shall state
briefly the grounds of such objection, whereupon an automatic exception
will follow if the objection is overruled by the Judge.
(ii) Only objections made before the Judge may subsequently be
relied upon in the proceeding.
(3) Depositions. The deposition of any witness shall be admitted in
the manner provided in and subject to the provisions of Sec. 1.228 of
these procedures.
(4) Exhibits. Unless the Judge finds that the furnishing of copies
is impracticable, two copies of each exhibit shall be filed with the
Judge. The party submitting the exhibit shall serve on every other
party of record a copy of the exhibit, pursuant to Sec. 1.427(c) of
these procedures. A true copy of an exhibit may be substituted for the
original.
(5) Official records or documents. An official government record or
document or entry therein, if admissible for any purpose, shall be
admissible in evidence without the production of the person who made or
prepared the same, and shall be prima facie evidence of the relevant
facts stated therein. Such record or document shall be evidenced by an
official publication thereof or a copy certified by a person having
legal authority to make such certification.
(6) Official notice. Official notice shall be taken of such matters
as are judicially noted by the courts of the United States and of any
other matter of technical, scientific, or commercial fact of
established character: Provided, That the parties shall be given
adequate notice of matters so noticed, and shall be given adequate
opportunity to show that such facts are erroneously noticed.
(7) Offer of proof. Whenever evidence is excluded by the Judge, the
party offering such evidence may make an offer of proof, which shall be
included in the transcript. The offer of proof shall consist of a brief
statement describing the evidence excluded. If the evidence consists of
a brief oral statement, it shall be included in the transcript in toto.
If the evidence consists of an exhibit, it shall be marked for
identification and inserted in the hearing record.
(f) Transcript. Hearings shall be recorded and transcribed
verbatim. Transcripts thereof shall be made available to any person, at
actual cost of duplication (5 U.S.C. App. 2, section 11).
Sec. 1.423 Post-hearing procedure.
(a) Corrections to transcript. (1) Within the period of time fixed
by the Judge, any party may file a motion proposing corrections to the
transcript.
(2) Unless a party files such motion in the manner prescribed, the
transcript shall be presumed, except for obvious typographical errors,
to be complete.
(3) As soon as practicable after the close of the hearing and after
consideration of any timely objections filed as to the transcript, the
Judge shall issue an order making any corrections to the transcript
which the Judge finds are warranted, which corrections shall be entered
onto the original transcript by the Hearing Clerk (without obscuring
the origianl text).
(b) Proposed findings of fact, conclusions, order, and brief. Prior
to the close of the hearing, each party may submit for consideration
proposed findings of fact, conclusions, order, and brief in support
thereof. A copy of each such document filed by a party shall be served
upon each of the other parties.
(c) Judge's decision. (1) The Judge may, upon motion of any party
or in his or her own discretion, issue a decision orally at the close
of the hearing, or within 10 calendar days after the close of the
hearing, or within 10 calendar days after submission of the record, if
no hearing is requested.
(2) If the decision is announced orally, a copy thereof, excerpted
from the transcript of the record, shall be furnished to the parties by
the Hearing Clerk. Irrespective of the date such copy is mailed, the
issuance date of the decision shall be the date the oral decision was
announced.
(3) If the decision is in writing, it shall be filed with the
Hearing Clerk and served upon the parties as provided in Sec. 1.427.
(4) The Judge's decision shall become effective without further
proceedings 21 calendar days after the issuance of the decision, if
announced orally at the hearing, or if the decision is in writing, 21
calendar days after the date of service thereof upon the respondent,
unless there is an appeal to the Judicial Officer by a party to the
proceeding pursuant to Sec. 1.426; Provided, however, that no decision
shall be final for purposes of judicial review except a final decision
of the Judicial Officer upon appeal.
(5) The Judicial Officer shall issue a decision within 10 calendar
days of the receipt of the response to the appeal.
Sec. 1.424 Motions and requests.
(a) General. All motions and requests shall be filed with the
Hearing Clerk, and served upon all the parties except motions and
requests made on the record during the oral hearing.
(b) Motions entertained. No dispositive motions, including motions
to dismiss on the pleadings and motions for summary judgment, shall be
entertained unless specifically mentioned herein or allowed in the
discretion of the Judge.
(c) Contents. All written motions and requests shall state the
particular order, ruling, or action desired and the grounds therefore.
(d) Response to motions and requests. Within 5 days after service
of any written motion or request, or within such shorter or longer
period as may be fixed by the Judge, an opposing party may file a
response to the motion or request. The other party shall have no right
to reply to the response.
Sec. 1.425 Judges.
(a) Assignment. No Judge shall be assigned to serve in any
proceeding who:
(1) Has any pecuniary interest in any matter or business involved
in the proceeding;
(2) Is related within the third degree by blood or marriage to any
party to the proceeding; or
(3) Has any conflict of interest which might impair the Judge's
objectivity in the proceeding.
(b) Disqualification of Judge. (1) Any party to the proceeding may,
by motion made to the Judge, request that the Judge withdraw from the
proceeding because of an alleged disqualifying reason. Such motion
shall set forth with particularity the grounds of alleged
disqualification. The Judge may then either rule upon or certify the
motion to the Secretary, but not both.
(2) A Judge shall withdraw from any proceeding for any reason
deemed by the Judge to be disqualifying.
(c) Powers. Subject to review as provided elsewhere in this part,
the Judge, in any assigned proceeding shall have power to:
(1) Rule upon motions and requests;
(2) Set the time and place of a pre-hearing conference and the
hearing, adjourn the hearing from time to time, and change the time and
place of hearing;
(3) Administer oaths and affirmations;
(4) Request the presence of and examine witnesses and receive
relevant evidence at the hearing;
(5) Take or order the taking of depositions as authorized under
these rules;
(6) Admit or exclude evidence;
(7) Hear oral argument on facts or law,
(8) Do all acts and take all measures necessary for the maintenance
of order, including the exclusion of contumacious counsel or other
persons;
(9) Request additional information from any party to aid in the
Judge's determination; and
(10) Take all other actions authorized under these procedures.
(d) Who may act in the absence of the Judge. In case of the absence
of the Judge or the Judge's inability to act, the powers and duties to
be performed by the Judge under these rules of practice in connection
with any assigned proceeding may, without abatement of the proceeding
unless otherwise directed by the Chief Judge, be assigned to any other
Judge.
Sec. 1.426 Appeal to Judicial Officer.
(a) Filing of petition. Within 10 calendar days after receiving
service of the Judge's decision, a party who disagrees with the
decision, or any part thereof, or any ruling by the Judge or any
alleged deprivation of rights, may appeal such decision to the Judicial
Officer by filing an appeal petition with the Hearing Clerk. As
provided in Sec. 1.422(e)(2), objections regarding evidence or a
limitation regarding examination or cross-examination or other rulings
made before the Judge may be relied upon in an appeal. Each issue set
forth in the petition, and the arguments thereon, shall be separately
numbered; shall be plainly and concisely stated; and shall contain
detailed citations of the record, statutes, regulations or authorities
being relied upon in support thereof. A brief may be filed in support
of the appeal simultaneously with the petition. A party filing a
petition of appeal to the Judicial Officer, and any brief in support
thereof, shall serve the other parties to the proceeding with a copy of
the petition and supporting brief. The copies of the petition and
supporting brief shall be served on the parties to the proceeding with
a copy of the petition and supporting brief. The copies of the petition
and supporting brief shall be served on the parties to the proceeding
on the same day as the petition and supporting brief are filed with the
Judicial Officer.
(b) Response to appeal petition. Within 10 calendar days after the
service of a copy of an appeal petition and any brief in support
thereof, filed by a party to the proceeding, any other party may file
with the Hearing Clerk a response in support of or in opposition to the
appeal and in such response any relevant issue, not presented in the
appeal petition, may be raised. A party filing a response to a petition
of appeal to the Judicial Officer shall serve the other parties to the
proceeding with a copy of the response. The copies of the response
shall be served on the parties to the proceeding on the same day as the
response is filed with the Judicial Officer.
(c) Transmittal of record. Whenever an appeal of a Judge's decision
is filed and a response thereto has been filed or time for filing a
response has expired, the Hearing Clerk shall transmit to the Judicial
Officer the record of the proceeding. Such record shall include: The
pleadings; motions and requests filed and rulings thereon; the
transcript of the testimony taken at the hearing, together with the
exhibits filed in connection therewith; any documents or papers filed
in connection with a prehearing conference; such proposed findings of
fact, conclusions, and orders, and briefs in support thereof, as may
have been filed in connection with the proceeding; the Judge's
decision; such exceptions, statements of objections and briefs in
support thereof as may have been filed in the proceeding; and the
appeal petition, and such briefs in support thereof and responses
thereto as may have been filed in the proceeding.
(d) Decision of the Judicial Officer on appeal. The Judicial
Officer, upon the basis of and after due consideration of the record
and any matter of which official notice is taken, shall rule on the
appeal within 4 months after the institution of the proceeding,
pursuant to 16 U.S.C. 620b(c)(3). If the Judicial Officer decides that
no change or modification of the Judge's decision is warranted, the
Judicial Officer may adopt the Judge's decision as the final order in
the proceeding, preserving any right of the party bringing the appeal
to seek judicial review of such decision in the proper forum. A final
order issued by the Judicial Officer shall be filed with the Hearing
Clerk. Such order may be regarded by a party as final for purposes of
judicial review.
Sec. 1.427 Filing; Identification of parties of record; service; and
computation of time.
(a) Filing; number of copies. Except as otherwise provided in this
section, all documents or papers required or authorized by the rules in
this part to be filed with the Hearing Clerk shall be filed in
duplicate. Any document or paper required or authorized under the rules
in this part to be filed with the Hearing Clerk shall, during the
course of an oral hearing, be filed with the Judge.
(b) parties of record shall receive a list from the Hearing Clerk
of the names and addresses of all parties of record immediately after
the close of the comment period.
(c) Service; proof of service. (1) Each party of record is
responsible for serving on every other party and to the Judge all
papers and documents submitted after the comment period. Service shall
be made either:
(i) by delivering a copy of the document or paper to the individual
to be served or to a member of the partnership to be served, or to the
president, secretary, or other executive officer or a director of the
corporation or association to be served, or to the attorney of record
representing such individual, partnership, corporation, organization,
or association; or
(ii) by leaving a copy of the document or paper at the principal
office or place of business or residence of such individual,
partnership, corporation, organization, or association, or of the
attorney or agent of record and mailing by regular mail another copy to
such person at such address; or
(iii) by registering or certifying and mailing a copy of the
document or paper, addressed to such individual, partnership,
corporation, organization, or association, or to the attorney or agent
of record, at the last known residence or principal office or place of
business of such person: Provided, That if the registered or certified
document or paper is returned undelivered because the addressee refused
or failed to accept delivery, the document or paper shall be served by
remailing it by regular mail; or
(iv) by mailing the document or paper by regular mail.
(2) Proof of service hereunder shall be made by the certificate of
the person who actually made the service: Provided, that if the service
is made by mail, as outlined in paragraph (b)(3) of this section, proof
of service shall be made by the return post-office receipt, in the case
of registered or certified mail, and if that service is made by regular
mail, as outlined in paragraphs (b)(3) and (b)(4) of this section,
proof of service shall be made by the certificate of the person who
mailed the matter by regular mail. The certificate and post-office
receipt contemplated herein shall be filed with the Hearing Clerk, and
made a part of the record of the proceeding. The Judge and the Hearing
Clerk shall follow the procedures outlined in (c) for service of papers
or documents signed by the Judge and/or the Hearing Clerk.
(d) Effective date of filing. Any document or paper required or
authorized under the rules in this part to be filed shall be deemed to
be filed at the time when it reaches the Hearing Clerk; or, if
authorized to be filed with another officer or employee of the
Department it shall be deemed to be filed at the time when it reaches
such officer or employee.
(e) Computations of time. Saturdays, Sundays and Federal holidays
shall be included in computing the time allowed for the filing of any
document or paper except as provided in these rules; Provided, that,
when such time expires on a Saturday, Sunday, or Federal holiday, such
period shall be extended to include the next following business day.
Sec. 1.428 Depositions.
(a) Motion for taking deposition. Upon the motion of a party to the
proceeding, the Judge may, at any time after the filing of the
submission, order the taking of testimony by deposition. The Motion
shall be in writing, shall be filed with the Hearing Clerk, and shall
set forth:
(1) The name and address of the proposed deponent;
(2) The name and address of the person (referred to hereafter in
this section as the ``officer'') qualified under the regulations in
this part to take depositions, before whom the proposed examination is
to be made;
(3) The proposed time and place of the examination; and
(4) The reasons why such deposition should be taken, which shall be
solely for the purpose of eliciting testimony which otherwise might not
be available at the time of the hearing, for uses as provided in
paragraph (g) of this section.
(b) Judge's order for taking deposition. (1) If the Judge finds
that testimony may not be otherwise available at the hearing, the
taking of the deposition may be ordered. The order shall be served upon
the parties, and shall state:
(i) The time and place of the examination;
(ii) The name of the officer before whom the examination is to be
made; and
(iii) The name of the deponent.
(2) The officer and the time and place need not be the same as
those suggested in the motion.
(c) Qualifications of officer. The deposition shall be made before
the Judge or before an officer authorized by the law of the United
States or by the law of the place of the examination to administer
oaths, or before an officer authorized by the Secretary to administer
oaths.
(d) Procedure on examinations. (1) The deponent shall be subject to
cross-examination. Objections to questions or documents shall be in
short form, stating the grounds of objections relied upon. The
questions propounded, together with all objections made (but not
including argument or debate), shall be recorded verbatim. In lieu of
oral examination, parties may transmit written questions to the officer
prior to the examination and the officer shall propound such questions
to the deponent.
(2) The applicant shall arrange for the examination of the witness
either by oral examination, or by written questions upon agreement of
the parties or as directed by the Judge. If the examination is
conducted by means of written questions, copies of the questions shall
be served upon the other party to the proceeding and filed with the
officer and the other party may serve cross questions and file them
with the officer at any time prior to the time of the examination.
(e) Certification by officer. The officer shall certify on the
deposition that the deponent was duly sworn and that the deposition is
a true record of the deponent's testimony. The officer shall then
securely seal the deposition, together with one copy thereof (unless
there are more than two parties in the proceeding, in which case there
should be another copy for each additional party), in an envelope and
mail the same by registered or certified mail to the Hearing Clerk.
(f) Corrections to the transcript. (1) At any time prior to the
hearing any party may file a motion proposing corrections to the
transcript of the deposition.
(2) Unless a party files such a motion in the manner prescribed,
the transcript shall be presumed, except for obvious typographical
errors, to be a true, correct, and complete transcript of the testimony
given in the deposition proceeding and to contain an accurate
description or reference to all exhibits in connection therewith, and
shall be deemed to be certified correct without further procedure.
(3) At any time prior to use of the deposition in accordance with
paragraph (g) of this section and after consideration of any objections
filed thereto, the Judge may issue an order making any corrections in
the transcript which the Judge finds are warranted, which corrections
shall be entered onto the original transcript by the Hearing Clerk
(without obscuring the original text).
(g) Use of deposition. A deposition ordered and taken in accordance
with the provisions of this section may be used in a proceeding under
these rules if the Judge finds that the evidence is otherwise
admissible and that the witness is dead; that the witness is unable to
attend or testify because of age, sickness, infirmity, or imprisonment;
or that such exceptional circumstances exist as to make it desirable,
in the interests of justice, to allow the deposition to be used. If the
party upon whose motion the deposition was taken refuses to offer it in
evidence, any other party may offer the deposition or any thereof in
evidence. If only part of a deposition is offered in evidence by a
party, an adverse party may require the introduction of any other part
which ought in fairness to be considered with the part introduced and
any party may introduce any other parts.
Sec. 1.429 Ex parte communications.
(a) At no stage of the proceeding between its institution and
issuance of the final decision shall an employee of the Department who
is or may reasonably be expected to be involved in the decisional
process of the proceeding discuss ex parte the merits of the proceeding
with any person having an interest in the proceeding, or with any
representative of such person: Provided, That, procedural matters and
status reports shall not be included within this limitation; and
Provided further, That an employee of the Department who is or may be
involved in the decisional process of the proceeding may discuss the
merits of the proceeding if all parties of record have been given
notice and an opportunity to participate. A memorandum of any such
discussion shall be included in the record.
(b) No interested person shall make or knowingly cause to be made
to the Judge an ex parte communication relevant to the merits of the
proceeding.
(c) If the Judge reviews an ex parte communication in violation of
this section, the one who receives the communication shall place in the
public record of the proceeding:
(1) All such written communication;
(2) Memoranda stating the substance of all such oral
communications; and
(3) All written responses, and memoranda stating the substance of
all oral responses thereto.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the Judge
may, to the extent consistent with the interests of justice and the
policy of the underlying statute, require the party to show cause why
his claim or interest in the proceeding should not be dismissed,
denied, disregarded, or otherwise adversely affected on account of such
violation.
(e) To the extent consistent with the interests of justice and the
policy of the underlying statute, a violation of this section shall be
sufficient grounds for a decision adverse to the party who knowingly
commits a violation of this section or who knowingly causes such a
violation to occur.
(f) For purposes of this section ``ex parte communication'' means
an oral or written communication not on the public record with respect
to which reasonable prior notice to all parties is not given, but it
shall not include requests for status reports on any matter or the
proceeding.
PART 2--DELEGATIONS OF AUTHORITY BY THE SECRETARY OF AGRICULTURE
AND GENERAL OFFICERS OF THE DEPARTMENT
3. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 301 and Reorganization Plan No. 2 of 1953.
Subpart D--Delegation of Authority to Other General Officers and
Agency Heads
Sec. 2.35 [Amended]
4. Amended Sec. 2.35 by removing in paragraph (a) the words ``in
sourcing area adjudications under the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.);'', and adding, in
their place, the words ``in adjudication proceedings subject to the
`Rules of Practice Governing the Adjudication of Sourcing Area
Applications and Formal Review of Sourcing Areas Pursuant to the Forest
Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620,
et seq.)' set forth in 7 CFR part 1, subpart M;''.
Title 36
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
5. The authority citation for part 223 continues to read as
follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620h, unless otherwise
noted.
Subpart F--Interim Rules to Implement the Forest Resources
Conservation and Shortage Relief Act 1990
6. Amend Sec. 223.190 as follows:
a. Remove paragraph (h) introductory text, and (h)(1) through (3);
b. Redesignate paragraph (h)(4) as paragraph (h) and redesignate
paragraphs (h)(5) (i) through (iv) as paragraphs (i) (1) through (4);
c. In newly redesignated paragraph (i)(1), remove the words
``approving official'', and add, in their place, the words, ``the
Administrative Law Judge, or, on appeal, the Judicial Officer''; and
d. Revise paragraph (g) and newly designated paragraph (h) to read
as follows:
Sec. 223.190 Sourcing area procedures.
* * * * *
(g) The sourcing area application review process will be conducted
pursuant to the Rules of Practice Governing the Adjudication of
Sourcing Area Applications and Formal Review of Sourcing Areas Pursuant
to the Forest Resources Conservation and Shortage Relief Act of 1990
(16 U.S.C. 620, et. seq.), found at 7 CFR part 1, subpart M.
(h) A final decision on a sourcing area application or a formal
sourcing area review will be issued within four (4) months of the
receipt of the application or initiation of the review.
* * * * *
7. Amend Sec. 223.191 by removing the words ``deciding official's''
in the second sentence of paragraph (e)(1) and adding, in their place,
the words, ``the Administrative Law Judge, or, on appeal, the Judicial
Officer'', and by revising the last sentence in paragraph (e)(1) to
read as follows:
Sec. 223.191 Sourcing area disapproval and review procedures.
* * * * *
(e) * * *
(1) * * * The deciding official shall on the record and after
opportunity for a hearing, approve or disapprove the sourcing area
being reviewed pursuant to the Rules of Practice Governing the
Adjudication of Sourcing Area Applications and Formal Review of
Sourcing Areas Pursuant to the Forest Resources Conservation and
Shortage Relief Act of 1990 (16 U.S.C. 620 et seq.), found at 7 CFR
part 1, subpart M.
* * * * *
Dated: February 11, 1994.
Mike Espy,
Secretary.
[FR Doc. 94-3884 Filed 2-23-94; 8:45 am]
BILLING CODE 3410-11-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.