82 FR 51149 - Rules of Practice and Procedure Governing Formal Rulemaking Proceedings Instituted by the Secretary

DEPARTMENT OF AGRICULTURE
Office of the Secretary of Agriculture

Federal Register Volume 82, Issue 212 (November 3, 2017)

Page Range		51149-51154
FR Document		2017-23877
The U.S. Department of Agriculture (USDA) is adopting a final rule to establish rules of practice and procedure governing formal rulemaking proceedings instituted by the Secretary. This final rule applies to rulemakings that are not subject to the rules of practice and procedure for the promulgation of, or an amendment to, marketing orders or research and promotion orders.
Federal Register, Volume 82 Issue 212 (Friday, November 3, 2017)
[Federal Register Volume 82, Number 212 (Friday, November 3, 2017)]
[Rules and Regulations]
[Pages 51149-51154]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-23877]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

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Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / 
Rules and Regulations

[[Page 51149]]



DEPARTMENT OF AGRICULTURE

Office of the Secretary of Agriculture

7 CFR Part 1


Rules of Practice and Procedure Governing Formal Rulemaking 
Proceedings Instituted by the Secretary

AGENCY: Office of the Secretary of Agriculture, USDA.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (USDA) is adopting a final 
rule to establish rules of practice and procedure governing formal 
rulemaking proceedings instituted by the Secretary. This final rule 
applies to rulemakings that are not subject to the rules of practice 
and procedure for the promulgation of, or an amendment to, marketing 
orders or research and promotion orders.

DATES: This final rule is effective on December 4, 2017.

FOR FURTHER INFORMATION CONTACT: Rupa Chilukuri, Trial Attorney, Office 
of the General Counsel, telephone: 202-720-4982, email: 
Rupa.Chilukuri@ogc.usda.gov.

SUPPLEMENTARY INFORMATION: USDA is issuing this final rule to establish 
rules of practice and procedure for formal rulemakings to implement 
certain statutes under the Secretary's purview in a new subpart P under 
7 CFR part 1.
    The Agricultural Marketing Service has rules of practice and 
procedure to formulate marketing agreements and marketing orders under 
7 CFR part 900. Those rules of practice and procedure are applicable to 
proceedings under the Agricultural Marketing Agreement Act of 1937, as 
amended (50 Stat. 246). In addition, rules of practice and procedure 
also exist for proceedings under the Cotton Research and Promotion Act, 
as amended (7 U.S.C. 2101-2119), the Egg Research and Consumer 
Information Act, as amended (7 U.S.C. 2701-2718), the Pork Promotion, 
Research, and Consumer Information Act (7 U.S.C. 4801-4819), and the 
Potato Research and Promotion Act, as amended (7 U.S.C. 2611-2627). 
Those rules appear under 7 CFR part 1200.
    This new subpart largely reflects language in 7 CFR part 900 and 7 
CFR part 1200. For purposes of efficiency and modernization, this 
subpart also includes: A provision requiring that interested persons 
notify the Administrator of their intent to participate in the hearing, 
a provision requiring pre-hearing submissions of direct testimony, and 
a provision allowing the notice of hearing to include alternative 
procedures.

5 U.S.C. 553, 601, and 804

    This final rule establishes agency rules of practice and procedure. 
Under the Administrative Procedure Act, prior notice and opportunity 
for comment are not required for the promulgation of agency rules of 
practice and procedure. 5 U.S.C. 553(b)(3)(A). Only substantive rules 
require publication 30 days prior to their effective date. 5 U.S.C. 
553(d). Therefore, this final rule is effective upon publication in the 
Federal Register.
    Furthermore, under 5 U.S.C. 804, this rule is not subject to 
congressional review under the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121. In addition, because prior 
notice and opportunity for comment are not required to be provided for 
this final rule, this rule is exempt from the requirements of the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.

Executive Orders 12866 and 13563

    This rule does not meet the definition of a significant regulatory 
action under section 3(f) of Executive Order 12866, Regulatory Planning 
and Review, as supplemented by Executive Order 13563. Because this rule 
is not a significant regulatory action, it has not been reviewed by the 
Office of Management and Budget.

Executive Order 13771

    Additionally, because this rule does not meet the definition of a 
significant regulatory action it does not trigger the requirements of 
Executive Order 13771. See OMB's Memorandum titled ``Interim Guidance 
Implementing Section 2 of the Executive Order of January 30, 2017 
titled `Reducing Regulation and Controlling Regulatory Costs''' 
(February 2, 2017).

Executive Order 12988

    This rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. This rule is not intended to have retroactive effect. 
This rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule. There are no administrative proceedings that must be exhausted 
before parties may file suit in court challenging this rule.

Executive Order 13132

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13132, Federalism. The review reveals that this rule 
does not contain policies with federalism implications sufficient to 
warrant federalism consultation under Executive Order 13132.

Executive Order 13175

    This rule has been reviewed in accordance with the requirements of 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments. The review reveals that this regulation would not have 
substantial and direct effects on tribal governments and would not have 
significant tribal implications.

Paperwork Reduction Act

    This rule contains no information collections or recordkeeping 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

List of Subjects in 7 CFR Part 1

    Administrative practice and procedure.

0
Accordingly, Subpart P is added to Part 1 of Subtitle A of Title 7 of 
the Code of Federal Regulations to read as follows:

PART 1--ADMINISTRATIVE REGULATIONS

Subpart P--Rules of Practice and Procedure Governing Formal Rulemaking 
Proceedings Instituted by the Secretary
Sec.
1.800 Words in the singular form.
1.801 Scope and applicability of this subpart.

[[Page 51150]]

1.802 Definitions.
1.803 Institution of proceedings.
1.804 Notification by interested persons.
1.805 Docket number.
1.806 Judge.
1.807 Direct testimony submitted as written documents.
1.808 Motions and requests.
1.809 Conduct of the hearing.
1.810 Oral and written arguments.
1.811 Certification of the transcript.
1.812 Copies of the transcript.
1.813 Administrator's recommended decision.
1.814 Submission to Secretary.
1.815 Decision by the Secretary.
1.816 Filing, extension of time, effective date of filing, and 
computation of time.
1.817 Ex parte communications.
1.818 Additional documents to be filed with hearing clerk.
1.819 Hearing before Secretary.

    Authority:  Pub. L. 89-554, 80 Stat. 378, 5 U.S.C. 301.

Subpart P--Rules of Practice and Procedure Governing Formal 
Rulemaking Proceedings Instituted by the Secretary


Sec.  1.800  Words in the singular form.

    Words in this subpart in the singular form shall be deemed to 
import the plural, and vice versa, as the context may require.


Sec.  1.801   Scope and applicability of this subpart.

    Except for proceedings covered by 7 CFR part 900, and by 7 CFR part 
1200, the rules of practice and procedure in this subpart shall be 
applicable to all formal rulemaking proceedings.


Sec.  1.802   Definitions.

    As used in this subpart:
    Administrator means the Administrator of the Agency administering 
the statute involved, or any officer or employee of the Agency to whom 
authority has heretofore been delegated, or to whom authority may 
hereafter be delegated, to act for the Administrator.
    Department means the U.S. Department of Agriculture.
    Federal Register means the publication provided for by the Federal 
Register Act, approved July 26, 1935 (44 U.S.C. 1501-1511), and acts 
supplementing and amending it.
    Hearing means that part of the proceeding that involves the 
submission of evidence.
    Hearing clerk means the Hearing Clerk, U.S. Department of 
Agriculture, Washington, DC
    Judge means any administrative law Judge appointed pursuant to 5 
U.S.C. 3105 and assigned to conduct the hearing.
    Party means:
    (1) Any employee or contractor of the Department acting in an 
official capacity; or
    (2) A person who intends to cross examine a witness at the hearing 
and has notified the person named in the notice of hearing by specified 
dates of his or her intent to participate in the hearing as a ``party'' 
pursuant to Sec.  1.804.
    Proceeding means a proceeding before the Secretary arising under a 
statute in which the Secretary uses formal rulemaking procedures as set 
forth in this subpart.
    Secretary means the Secretary of Agriculture of the United States, 
or any officer or employee of the Department to whom authority has 
heretofore been delegated, or to whom authority may hereafter be 
delegated, to act for the Secretary.
    Witness means any person who:
    (1) Has notified the person named in the notice of hearing by the 
specified date of his or her intent to participate in the hearing as a 
witness pursuant to Sec.  1.804; and
    (2) Who submits written direct testimony on the proposed 
regulations pursuant to Sec.  1.807; and
    (3) Testifies orally at the hearing.


Sec.  1.803  Institution of proceedings.

    (a) Filing and contents of the notice of hearing. A proceeding 
under this subpart shall be instituted by the Secretary or designee 
through filing the notice of hearing with the hearing clerk.The notice 
of hearing shall state:
    (1) The legal authority under which the rule is proposed.
    (2) The scope and nature of the hearing, including witness 
instructions for testifying, including the means and timing of the 
submission of pre-hearing documents, and scheduling, as necessary.
    (3) The terms or substance of the proposed rule or a description of 
the subjects and issues involved.
    (4) The time and place of such hearing.
    (5) The final date for notification of intent to participate as a 
party or witness in the hearing pursuant to Sec.  1.804.
    (6) The person to whom notification of intent to participate as a 
party or witness is to be provided pursuant to Sec.  1.804, and the 
means by which such notifications are to be provided.
    (7) Any alternative procedures established pursuant to paragraph 
(d) of this section.
    (b) Giving notice of hearing. (1) The Administrator shall give or 
cause to be given notice of hearing in the following manner:
    (i) By publication of the notice of hearing in the Federal 
Register.
    (ii) By posting of the notice of hearing to the USDA Web site.
    (2) Legal notice of the hearing shall be deemed to be given if 
notice is given in the manner provided by paragraph (b)(1)(i) of this 
section.
    (c) Record of notice. A copy of the notice of hearing published in 
the Federal Register pursuant to paragraph (b)(1)(i) of this section 
shall be filed with the hearing clerk and submitted to the Judge at the 
hearing.
    (d) Alternative procedures. The Administrator may establish 
alternative procedures for the proceeding that are in addition to or in 
lieu of one or more procedures in this subpart, provided that the 
procedures are consistent with 5 U.S.C. 556 and 557. The alternative 
procedures must be described in the notice of hearing, as required in 
paragraph (a)(7) of this section.


Sec.  1.804  Notification by interested persons.

    (a) Any person desiring to participate as a party or witness at the 
hearing shall notify the person named in the notice of hearing, as 
prescribed in the notice of hearing, on or before the date specified in 
the notice of hearing. A person may be both a party and a witness.
    (b) The notification must clearly state whether the interested 
person is participating at the hearing as a party, witness, or both.
    (c) If a party or witness will be participating with or through a 
representative or counsel, the notification must so state and provide 
the name of the representative or counsel.
    (d) Persons who fail to comply with this section and any specified 
instructions in the notice of hearing shall be deemed to have waived 
their right to participate in the hearing. Failure to comply with this 
section shall result in the exclusion of any filed written testimony.


Sec.  1.805  Docket number.

    Each proceeding, immediately following its institution, shall be 
assigned a docket number by the hearing clerk and thereafter the 
proceeding may be referred to by such number.


Sec.  1.806   Judge.

    (a) Assignment. No Judge who has any pecuniary interest in the 
outcome of a proceeding shall serve as Judge in such proceeding.
    (b) Power of Judge. Subject to review by the Secretary, as provided 
elsewhere in this subpart, the Judge in any proceeding shall have power 
to:
    (1) Rule upon motions and requests;

[[Page 51151]]

    (2) Change the time and place of hearings, and adjourn the hearing 
from time to time or from place to place;
    (3) Administer oaths and affirmations and take affidavits;
    (4) Examine and cross-examine witnesses and receive evidence;
    (5) Admit or exclude evidence;
    (6) Hear oral argument on facts or law; and
    (7) Do all acts and take all measures necessary for the maintenance 
of order at the hearings and the efficient conduct of the proceeding.
    (c) Who may act in absence of the Judge. In case of the absence of 
the Judge or that Judge's inability to act, the powers and duties to be 
performed by the Judge under this subpart in connection with a 
proceeding may, without abatement of the proceeding unless otherwise 
ordered by the Secretary, be assigned to any other Judge.
    (d) Disqualification of Judge. The Judge may at any time withdraw 
as Judge in a proceeding if such Judge deems himself or herself to be 
disqualified. Upon the filing by an interested person in good faith of 
a timely and sufficient affidavit of personal bias or disqualification 
of a Judge, the Secretary shall determine the matter as a part of the 
record and decision in the proceeding, after making such investigation 
or holding such hearings, or both, as the Secretary may deem 
appropriate in the circumstances.


Sec.  1.807   Direct testimony submitted as written documents.

    Any person desiring to participate as a witness at the hearing 
shall submit direct testimony as written documents as prescribed by the 
following:
    (a) Direct testimony by a witness, including accompanying exhibits, 
must be submitted as specified in the notice of the hearing pursuant to 
Sec.  1.803. Exhibits constituting part of such direct testimony, 
referred to in the direct testimony and made a part thereof must be 
attached to the direct testimony. Direct testimony submitted with 
exhibits must state the issue(s) to which the exhibit relates; if no 
such statement is made, the Judge, at the hearing, shall determine the 
relevance of the exhibit to the issues published in the Federal 
Register.
    (b) The direct testimony submitted shall contain:
    (1) A concise statement of the witness' interest in the proceeding 
and his or her position regarding the issues presented. If the direct 
testimony is presented by a witness who is not a party, the witness 
shall state the witness' relationship to the party on behalf of whom 
the testimony is proffered; and
    (2) Facts that are relevant and material.
    (c) Copies of all direct testimony, including accompanying 
exhibits, must be submitted as prescribed by the notice of hearing.
    (d) Upon receipt, direct testimony shall be assigned a number and 
stamped with that number and the docket number.


Sec.  1.808  Motions and requests.

    (a) General. (1) Parties shall file all motions and requests with 
the hearing clerk except that those made during the course of the 
hearing may be filed with the Judge or may be stated orally and made a 
part of the transcript.
    (2) Except as provided in Sec.  1.816(b), such motions and requests 
shall be addressed to, and ruled on by, the Judge if made prior to 
certification of the transcript pursuant to Sec.  1.811 or by the 
Secretary if made thereafter.
    (b) Certification to Secretary. The Judge may, in his or her 
discretion, submit or certify to the Secretary for decision any motion, 
request, objection, or other question addressed to the Judge.


Sec.  1.809   Conduct of the hearing.

    (a) Time and place. The hearing shall be held at the time and place 
established in the notice of hearing. If the Judge subsequently changes 
the time or place, the Judge shall file a notice of such changes with 
the hearing clerk, and the Administrator shall give or cause to be 
given notice in the Federal Register in the same manner as provided in 
Sec.  1.803. If the change in time or place of hearing is made less 
than five days prior to the date previously established for the 
hearing, the Judge, either in addition to, or in lieu of, causing the 
notice of the change to be given, shall announce the change at the time 
and place previously established for the hearing.
    (b) Appearances--(1) Right to appear. Any interested person shall 
be given an opportunity to appear, as a witness, with or without, 
authorized counsel or representative, and to be heard with respect to 
matters relevant and material to the proceeding, provided that such 
interested person complies with Sec. Sec.  1.804, 1.807, and any 
alternative procedures included in the hearing notice pursuant to Sec.  
1.803. In addition to compliance with any witness instructions set 
forth in the notice of hearing, any witness who desires to be heard in 
person at any hearing shall, before proceeding to testify do so under 
oath or affirmation.
    (2) Appearance with or through counsel or representative. (i) A 
witness may appear with counsel or a representative if the witness 
identifies the counsel or representative in the notification submitted 
pursuant to Sec.  1.804.
    (ii) The counsel or representative shall, before proceeding with 
the witness testimony, state for the record the authority to act as 
such counsel or representative, and the names, addresses, and 
occupations of such counsel or representative.
    (iii) The witness or his or her counsel or representative shall 
give such other information respecting the witness' appearance as the 
Judge may request.
    (3) Debarment of counsel or representative. (i) Whenever, while a 
proceeding is pending before the Judge, such Judge finds that a person, 
acting as counsel or representative for any party or witness, is guilty 
of unethical or unprofessional conduct, the Judge may order that such 
person be precluded from further acting as counsel or representative in 
such proceeding.
    (ii) Except as provided in paragraph (b)(3)(iii) of this section, 
an appeal to the Secretary may be taken from any such order, but the 
proceeding shall not be delayed or suspended pending disposition of the 
appeal.
    (iii) In case the Judge has ordered that a person be precluded from 
further action as counsel or representative in the proceeding, the 
Judge within a reasonable time thereafter shall submit to the Secretary 
a report of the facts and circumstances surrounding such order and 
shall recommend what action the Secretary should take respecting the 
appearance of such person as counsel or representative in other 
proceedings before the Secretary. Thereafter the Secretary may, after 
notice and an opportunity for hearing, issue such order respecting the 
appearance of such person as counsel or representative in proceedings 
before the Secretary as the Secretary finds to be appropriate.
    (4) Failure to appear. If any interested person, who complied with 
Sec. Sec.  1.804, 1.807, fails to appear at the hearing, that person 
shall be deemed to have waived the right to be heard in the proceeding 
and such failure to appear shall result in the exclusion of that 
person's written testimony.
    (c) Order of procedure. (1) The Judge shall, at the opening of the 
hearing prior to the taking of testimony, note as part of the record 
the notice of hearing as published in the Federal Register.
    (2) Evidence shall then be received with respect to the matters 
specified in the notice of the hearing in such order as the Judge shall 
announce.

[[Page 51152]]

    (d) Evidence--(1) General. The hearing shall be publicly conducted, 
and the testimony given at the hearing shall be reported verbatim.
    (i) Every witness shall, before proceeding to testify, be sworn or 
make an affirmation.
    (ii) When necessary, in order to prevent undue prolongation of the 
hearing, the Judge may:
    (A) Limit the number of times any witness may testify to the same 
matter or the amount of corroborative or cumulative evidence.
    (B) Limit cross examination of a witness by time, scope, or as 
appropriate, provided that the Judge announces the time limit at the 
beginning of the hearing, prior to the taking of testimony.
    (iii) The Judge shall exclude from the record evidence which is 
immaterial, irrelevant, or unduly repetitious, or which is not of the 
sort upon which responsible persons are accustomed to rely.
    (2) Objections. If a party objects to the admission or rejection of 
any evidence or to any other ruling of the Judge during the hearing, 
such party shall state briefly the grounds of such objection, whereupon 
an automatic exception will follow if the objection is overruled by the 
Judge. The ruling of the Judge on any objection shall be a part of the 
transcript. Only objections made before the Judge may subsequently be 
relied upon in the proceeding.
    (3) Upon proper motion, the Judge may accept direct testimony 
submitted pursuant to Sec.  1.807 into evidence without a witness 
reading the direct testimony into evidence. Such direct testimony shall 
become a part of the record subject to exclusion of irrelevant and 
immaterial parts thereof. A party shall be deemed to have waived the 
right to introduce pre-hearing written direct testimony and documents 
if such party fails to present a witness to introduce those documents. 
The witness introducing direct testimony and documents shall do so 
under oath or affirmation and shall:
    (i) State his or her name, address and occupation.
    (ii) State qualifications for introducing the direct testimony. If 
an expert, the witness shall briefly state the scientific or technical 
training which qualifies the witness as an expert.
    (iii) Identify the direct testimony and documents previously 
submitted pursuant to Sec.  1.807 of this subpart.
    (iv) Submit to direct and cross examination determined to be 
necessary and appropriate by the Judge.
    (4) Cross examination. For purposes of this section, the 
Administrator's or his or her representative's interest shall be 
considered adverse to all parties. The Judge may:
    (i) Require the cross-examiner to outline the intended scope of the 
cross examination, which shall generally be limited to the scope of the 
direct testimony.
    (ii) Prohibit parties from cross-examining witnesses unless the 
Judge has determined that the cross-examiner has an adverse interest on 
the facts at issue to the party or witness.
    (iii) Limit the number of times any party or parties having a 
common interest may cross-examine an adverse witness on the same 
matter.
    (5) Proof and authentication of official records or documents. An 
official record or document, when admissible for any purpose, shall be 
admissible as evidence without the presence of the person who made or 
prepared the same. The Judge shall exercise discretion in determining 
whether an official publication of such record or document shall be 
necessary, or whether a copy would be permissible. If permissible such 
a copy shall be attested to by the person having legal custody of it, 
and accompanied by a certificate that such person has the custody.
    (6) Exhibits. (i) All written statements, documents, charts, 
tabulations, or data offered into evidence at the hearing shall, after 
identification by the witness or his or her counsel or representative 
and upon satisfactory showing of authenticity, relevancy, and 
materiality, be numbered as exhibits and received in evidence and made 
a part of the record.
    (ii) Such exhibits shall be submitted in quadruplicate and in 
documentary form.
    (7) Official notice. (i) Subject to paragraph (d)(7)(ii) of this 
section, official notice at the hearing may be taken of such matters as 
are judicially noticed by the courts of the United States and of any 
other matter of technical, scientific, or commercial fact of 
established character.
    (ii) Interested persons shall be given an adequate period of time, 
at the hearing or subsequent to it, of matters so noticed and shall be 
given adequate opportunity to show that such facts are inaccurate or 
are erroneously noticed.
    (8) Offer of proof. (i) Whenever evidence is excluded from the 
record, the party offering such evidence may make an offer of proof, 
which shall be included in the transcript.
    (ii) The offer of proof shall consist of a brief statement 
describing the evidence to be offered. If the evidence consists of a 
brief oral statement, it shall be inserted into the transcript; if the 
evidence consists of an exhibit(s), it shall be inserted into the 
record for the purpose of an offer of proof. In such event, it shall be 
considered a part of the record if the Secretary determines that the 
Judge's ruling in excluding the evidence was erroneous.
    (iii) The Judge shall not allow the insertion of such evidence in 
toto if the taking of such evidence will consume a considerable length 
of time at the hearing. In such event, if the Secretary determines that 
the Judge erred in excluding the evidence, and that such error was 
substantial, the hearing may be reopened to permit the taking of such 
evidence.


Sec.  1.810   Oral and written arguments.

    (a) Oral argument before the Judge. Oral argument before the Judge 
shall be in the discretion of the Judge. Such argument, when permitted, 
may be limited by the Judge to any extent that the Judge finds 
necessary for the expeditious disposition of the proceeding and shall 
be made part of the transcript.
    (b) Briefs, proposed findings, and conclusions. (1) The Judge shall 
announce at the hearing a reasonable period of time within which 
interested persons may file with the hearing clerk proposed findings 
and conclusions, and written arguments or briefs, based upon the 
evidence received at the hearing, citing, where practicable, the page 
or pages of the transcript of the testimony where such evidence 
appears.
    (2) Factual material other than that adduced at the hearing or 
subject to official notice shall not be alluded to therein, and, in any 
case, shall not be considered in the formulation of the rule.
    (3) If the person filing a brief desires the Secretary to consider 
any objection made by such person to a ruling of the Judge, as provided 
in Sec.  1.809(d), that person shall include in the brief a concise 
statement concerning each such objection, referring, where practicable, 
to the pertinent pages of the transcript.


Sec.  1.811  Certification of the transcript.

    (a) The Judge shall notify the hearing clerk of the close of a 
hearing and of the time for filing transcript corrections, written 
arguments, briefs, proposed findings, and proposed conclusions.
    (b)(1) After the hearing, the Administrator, shall transmit to the 
hearing clerk an original and three copies of the transcript of the 
testimony and the original and all copies of the exhibits not already 
on file with the hearing clerk.
    (2) The Judge shall attach to the original transcript of the 
testimony a certificate stating that, to the best of the

[[Page 51153]]

Judge's knowledge and belief, the transcript is a true transcript of 
the testimony given at the hearing, except in such particulars as the 
Judge shall specify, and that the exhibits transmitted are all the 
exhibits as introduced at the hearing with such exceptions as the Judge 
shall specify. A copy of such certificate shall be attached to each of 
the copies of the transcript of testimony.
    (3) In accordance with such certificate the hearing clerk shall 
note upon the official record copy, and cause to be noted on other 
copies of the transcript, each correction detailed therein by adding or 
crossing out (but without obscuring the text as originally transcribed) 
at the appropriate place any words necessary to make the same conform 
to the correct meaning, as certified by the Judge.
    (4) The hearing clerk shall obtain and file certifications to the 
effect that such corrections have been effectuated in copies other than 
the official record copy.


Sec.  1.812  Copies of the transcript.

    (a) During the period in which the proceeding has an active status 
in the Department, a copy of the transcript and exhibits shall be kept 
on file with the hearing clerk where it shall be available for 
examination during official hours of business. Thereafter the 
transcript and exhibits shall be made available by the hearing clerk 
for examination during official hours of business after prior request 
and reasonable notice to the hearing clerk.
    (b) A copy of the transcripts of the hearing shall be made 
available to any person at actual cost of duplication.


Sec.  1.813  Administrator's recommended decision.

    (a) Preparation. As soon as practicable following the termination 
of the period allowed for the filing of written arguments or briefs and 
proposed findings and conclusions the Administrator shall file with the 
hearing clerk a recommended decision.
    (b) Contents. The Administrator's recommended decision shall 
include:
    (1) A preliminary statement containing a description of the history 
of the proceedings, a brief explanation of the material issues of fact, 
law and proposed findings and conclusions about such issues, including 
the reasons or basis for such proposed findings.
    (2) A ruling upon proposed findings or conclusions submitted by 
interested persons.
    (3) An appropriate proposed rule effectuating the Administrator's 
recommendations.
    (c) Exceptions to recommended decision. (1) Immediately following 
the filing of the recommended decision, the Administrator shall give 
notice thereof and opportunity to file exceptions thereto by 
publication in the Federal Register.
    (2) Within the period of time specified in such notice, any 
interested person may file with the hearing clerk exceptions to the 
Administrator's proposed rule and a brief in support of such 
exceptions.
    (3) Such exceptions shall be in writing, shall refer, where 
practicable, to the related pages of the transcript, and may suggest 
appropriate changes in the proposed rule.
    (d) Omission of recommended decision. The procedure provided in 
this section may be omitted only if the Secretary finds on the basis of 
the record that due and timely execution of the Secretary's functions 
imperatively and unavoidably requires such omission.


Sec.  1.814  Submission to Secretary.

    (a) Upon the expiration of the period allowed for filing exceptions 
or upon request of the Secretary, the hearing clerk shall transmit to 
the Secretary the record of the proceeding.
    (b) Such record shall include:
    (1) All motions and requests filed with the hearing clerk and 
rulings thereon.
    (2) The certified transcript.
    (3) Any proposed findings or conclusions or written arguments or 
briefs that may have been filed.
    (4) The Administrator's recommended decision, if any.
    (5) Filed exceptions.


Sec.  1.815  Decision by the Secretary.

    After due consideration of the record, the Secretary shall render a 
decision. Such decision shall become a part of the record and shall 
include:
    (a) A statement of findings and conclusions, including the reasons 
or basis for such findings, upon all the material issues of fact or law 
presented on the record.
    (b) A ruling upon proposed findings and proposed conclusions not 
previously ruled upon in the record.
    (c) A ruling upon exceptions filed by interested persons.
    (d) Either a denial of the proposal to issue a rule, or, if the 
findings upon the record so warrant, a rule, the provisions of which 
shall be set forth and such rule shall be complete.


Sec.  1.816  Filing, extension of time, effective date of filing, and 
computation of time.

    (a) Number of copies. Except as provided otherwise, all documents 
or papers required or authorized by the foregoing provisions hereof to 
be filed with the hearing clerk shall be filed in quadruplicate. Any 
documents or papers so required or authorized to be filed with the 
hearing clerk shall be filed with the Judge during the course of an 
oral hearing.
    (b) Extension of time. (1) The time for filing of any document or 
paper required or authorized by the foregoing provisions to be filed 
may be extended by the Judge (before the record is so certified by the 
Judge) or by the Administrator (after the record is so certified by the 
Judge but before it is transmitted to the Secretary), or by the 
Secretary (after the record is transmitted to the secretary) upon 
request filed, and if, in the judgment of the Judge, Administrator, or 
the Secretary, as the case may be, there is good reason for the 
extension.
    (2) All rulings made pursuant to this paragraph shall be filed with 
the hearing clerk.
    (c) Effective date of filing. Any document or paper required or 
authorized in this subpart to be filed shall be deemed to be filed at 
the time it is received by the Hearing Clerk.
    (d) Computation of time. (1) Each day, including Saturdays, 
Sundays, and legal public holidays, shall be included in computing the 
time allowed for filing any document or paper.
    (2) That when the time for filing a document or paper expires on a 
Saturday, Sunday, or legal public holiday, the time allowed for filing 
the document or paper shall be extended to include the following 
business day.


Sec.  1.817  Ex parte communications.

    (a) For the purposes of this section, ex parte communication means 
any oral or written communication not on the public record with respect 
to which reasonable prior notice to all interested parties is not 
given, but which shall not include requests for status reports 
(including requests on procedural matters) on a proceeding.
    (b) At no stage of the proceeding following the issuance of a 
notice of hearing and prior to the issuance of the Secretary's decision 
thereon shall an employee of the Department who is or may reasonably be 
expected to be involved in the decision 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. 
This prohibition does not include communications about:
    (1) Procedural matters and status reports.

[[Page 51154]]

    (2) The merits of the proceeding if all parties known to be 
interested in the proceeding have been given notice and an opportunity 
to participate. A memorandum of any such discussion shall be included 
in the record of the proceeding.
    (c) No interested person outside the Department shall make or 
knowingly cause to be made to an employee of the Department who is or 
may reasonably be expected to be involved in the decisional process of 
the proceeding, an ex parte communication relevant to the merits of the 
proceeding except as provided in paragraph (a) of this section.
    (d) If an employee of the Department who is or may reasonably be 
expected to be involved in the decisional process of the proceeding 
receives or makes or knowingly causes to be made a communication 
prohibited by this section, the Department shall place on the public 
record of the proceeding:
    (1) All such written communications;
    (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.
    (e) Upon receipt of a communication knowingly made or knowingly 
caused to be made by a party in violation of this section, the 
Department may, to the extent consistent with the interest 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.
    (f) This section does not constitute authority to withhold 
information from Congress.


Sec.  1.818   Additional documents to be filed with hearing clerk.

    In addition to the documents or papers required or authorized by 
the foregoing provisions of this subpart to be filed with the hearing 
clerk, the hearing clerk shall receive for filing and shall have 
custody of all papers, reports, records, orders, and other documents 
which relate to the administration of any order and which the Secretary 
is required to issue or to approve.


Sec.  1.819  Hearing before Secretary.

    (a) The Secretary may act in the place and stead of a Judge in any 
proceeding herein. When the Secretary so acts, the hearing clerk shall 
transmit the record to the Secretary at the expiration of the period 
provided for the filing of proposed findings of fact, conclusions, and 
orders, and the Secretary shall then, after due consideration of the 
record, issue the final decision in the proceeding.
    (b) The Secretary may issue a tentative decision in which event the 
parties shall be afforded an opportunity to file exceptions before the 
issuance of the final decision.

Stephen Alexander Vaden,
Principal Deputy General Counsel, Office of the General Counsel.
[FR Doc. 2017-23877 Filed 11-2-17; 8:45 am]
BILLING CODE 3410-90-P
51149

Rules and Regulations Federal Register
Vol. 82, No. 212

Friday, November 3, 2017

This section of the FEDERAL REGISTER (7 U.S.C. 2701–2718), the Pork Section 2 of the Executive Order of
contains regulatory documents having general Promotion, Research, and Consumer January 30, 2017 titled ‘Reducing
applicability and legal effect, most of which Information Act (7 U.S.C. 4801–4819), Regulation and Controlling Regulatory
are keyed to and codified in the Code of and the Potato Research and Promotion Costs’’’ (February 2, 2017).
Federal Regulations, which is published under Act, as amended (7 U.S.C. 2611–2627).
50 titles pursuant to 44 U.S.C. 1510. Executive Order 12988
Those rules appear under 7 CFR part
The Code of Federal Regulations is sold by 1200. This rule has been reviewed under
the Superintendent of Documents. This new subpart largely reflects Executive Order 12988, Civil Justice
language in 7 CFR part 900 and 7 CFR Reform. This rule is not intended to
part 1200. For purposes of efficiency have retroactive effect. This rule will
DEPARTMENT OF AGRICULTURE and modernization, this subpart also not preempt any State or local laws,
includes: A provision requiring that regulations, or policies, unless they
Office of the Secretary of Agriculture interested persons notify the present an irreconcilable conflict with
Administrator of their intent to this rule. There are no administrative
7 CFR Part 1 participate in the hearing, a provision proceedings that must be exhausted
requiring pre-hearing submissions of before parties may file suit in court
Rules of Practice and Procedure direct testimony, and a provision challenging this rule.
Governing Formal Rulemaking allowing the notice of hearing to include
Proceedings Instituted by the Executive Order 13132
alternative procedures.
Secretary This rule has been reviewed in
5 U.S.C. 553, 601, and 804 accordance with the requirements of
AGENCY: Office of the Secretary of
Agriculture, USDA. This final rule establishes agency Executive Order 13132, Federalism. The
ACTION: Final rule.
rules of practice and procedure. Under review reveals that this rule does not
the Administrative Procedure Act, prior contain policies with federalism
SUMMARY: The U.S. Department of notice and opportunity for comment are implications sufficient to warrant
Agriculture (USDA) is adopting a final not required for the promulgation of federalism consultation under Executive
rule to establish rules of practice and agency rules of practice and procedure. Order 13132.
procedure governing formal rulemaking 5 U.S.C. 553(b)(3)(A). Only substantive
Executive Order 13175
proceedings instituted by the Secretary. rules require publication 30 days prior
This final rule applies to rulemakings to their effective date. 5 U.S.C. 553(d). This rule has been reviewed in
that are not subject to the rules of Therefore, this final rule is effective accordance with the requirements of
practice and procedure for the upon publication in the Federal Executive Order 13175, Consultation
promulgation of, or an amendment to, Register. and Coordination with Indian Tribal
marketing orders or research and Furthermore, under 5 U.S.C. 804, this Governments. The review reveals that
promotion orders. rule is not subject to congressional this regulation would not have
DATES: This final rule is effective on review under the Small Business substantial and direct effects on tribal
December 4, 2017. Regulatory Enforcement Fairness Act of governments and would not have
1996, Public Law 104–121. In addition, significant tribal implications.
FOR FURTHER INFORMATION CONTACT:
Rupa Chilukuri, Trial Attorney, Office because prior notice and opportunity for Paperwork Reduction Act
of the General Counsel, telephone: 202– comment are not required to be
provided for this final rule, this rule is This rule contains no information
720–4982, email: Rupa.Chilukuri@ collections or recordkeeping
ogc.usda.gov. exempt from the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601 requirements under the Paperwork
SUPPLEMENTARY INFORMATION: USDA is et seq. Reduction Act of 1995 (44 U.S.C. 3501
issuing this final rule to establish rules et seq.).
of practice and procedure for formal Executive Orders 12866 and 13563
List of Subjects in 7 CFR Part 1
rulemakings to implement certain This rule does not meet the definition
statutes under the Secretary’s purview of a significant regulatory action under Administrative practice and
in a new subpart P under 7 CFR part 1. section 3(f) of Executive Order 12866, procedure.
The Agricultural Marketing Service Regulatory Planning and Review, as ■ Accordingly, Subpart P is added to
has rules of practice and procedure to supplemented by Executive Order Part 1 of Subtitle A of Title 7 of the
formulate marketing agreements and 13563. Because this rule is not a Code of Federal Regulations to read as
marketing orders under 7 CFR part 900. significant regulatory action, it has not follows:
Those rules of practice and procedure been reviewed by the Office of
are applicable to proceedings under the Management and Budget. PART 1—ADMINISTRATIVE
Agricultural Marketing Agreement Act REGULATIONS
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of 1937, as amended (50 Stat. 246). In Executive Order 13771
Subpart P—Rules of Practice and
addition, rules of practice and Additionally, because this rule does Procedure Governing Formal Rulemaking
procedure also exist for proceedings not meet the definition of a significant Proceedings Instituted by the Secretary
under the Cotton Research and regulatory action it does not trigger the Sec.
Promotion Act, as amended (7 U.S.C. requirements of Executive Order 13771. 1.800 Words in the singular form.
2101–2119), the Egg Research and See OMB’s Memorandum titled 1.801 Scope and applicability of this
Consumer Information Act, as amended ‘‘Interim Guidance Implementing subpart.

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1.802 Definitions. (1) Any employee or contractor of the (ii) By posting of the notice of hearing
1.803 Institution of proceedings. Department acting in an official to the USDA Web site.
1.804 Notification by interested persons. capacity; or (2) Legal notice of the hearing shall be
1.805 Docket number. (2) A person who intends to cross
1.806 Judge. deemed to be given if notice is given in
examine a witness at the hearing and the manner provided by paragraph
1.807 Direct testimony submitted as written
documents. has notified the person named in the (b)(1)(i) of this section.
1.808 Motions and requests. notice of hearing by specified dates of (c) Record of notice. A copy of the
1.809 Conduct of the hearing. his or her intent to participate in the notice of hearing published in the
1.810 Oral and written arguments. hearing as a ‘‘party’’ pursuant to § 1.804. Federal Register pursuant to paragraph
1.811 Certification of the transcript. Proceeding means a proceeding before (b)(1)(i) of this section shall be filed
1.812 Copies of the transcript. the Secretary arising under a statute in with the hearing clerk and submitted to
1.813 Administrator’s recommended which the Secretary uses formal
decision. the Judge at the hearing.
rulemaking procedures as set forth in
1.814 Submission to Secretary. (d) Alternative procedures. The
this subpart.
1.815 Decision by the Secretary. Secretary means the Secretary of Administrator may establish alternative
1.816 Filing, extension of time, effective
Agriculture of the United States, or any procedures for the proceeding that are
date of filing, and computation of time. in addition to or in lieu of one or more
1.817 Ex parte communications. officer or employee of the Department to
whom authority has heretofore been procedures in this subpart, provided
1.818 Additional documents to be filed that the procedures are consistent with
with hearing clerk. delegated, or to whom authority may
hereafter be delegated, to act for the 5 U.S.C. 556 and 557. The alternative
1.819 Hearing before Secretary.
Secretary. procedures must be described in the
Authority: Pub. L. 89–554, 80 Stat. 378, 5 notice of hearing, as required in
U.S.C. 301. Witness means any person who:
(1) Has notified the person named in paragraph (a)(7) of this section.
Subpart P—Rules of Practice and the notice of hearing by the specified § 1.804 Notification by interested persons.
Procedure Governing Formal date of his or her intent to participate
in the hearing as a witness pursuant to (a) Any person desiring to participate
Rulemaking Proceedings Instituted by as a party or witness at the hearing shall
the Secretary § 1.804; and
(2) Who submits written direct notify the person named in the notice of
§ 1.800 Words in the singular form. testimony on the proposed regulations hearing, as prescribed in the notice of
Words in this subpart in the singular pursuant to § 1.807; and hearing, on or before the date specified
form shall be deemed to import the (3) Testifies orally at the hearing. in the notice of hearing. A person may
plural, and vice versa, as the context be both a party and a witness.
§ 1.803 Institution of proceedings. (b) The notification must clearly state
may require.
(a) Filing and contents of the notice of whether the interested person is
§ 1.801 Scope and applicability of this hearing. A proceeding under this participating at the hearing as a party,
subpart. subpart shall be instituted by the witness, or both.
Except for proceedings covered by 7 Secretary or designee through filing the (c) If a party or witness will be
CFR part 900, and by 7 CFR part 1200, notice of hearing with the hearing participating with or through a
the rules of practice and procedure in clerk.The notice of hearing shall state: representative or counsel, the
this subpart shall be applicable to all (1) The legal authority under which notification must so state and provide
formal rulemaking proceedings. the rule is proposed. the name of the representative or
(2) The scope and nature of the
§ 1.802 Definitions. counsel.
hearing, including witness instructions
As used in this subpart: for testifying, including the means and (d) Persons who fail to comply with
Administrator means the timing of the submission of pre-hearing this section and any specified
Administrator of the Agency documents, and scheduling, as instructions in the notice of hearing
administering the statute involved, or necessary. shall be deemed to have waived their
any officer or employee of the Agency (3) The terms or substance of the right to participate in the hearing.
to whom authority has heretofore been proposed rule or a description of the Failure to comply with this section shall
delegated, or to whom authority may subjects and issues involved. result in the exclusion of any filed
hereafter be delegated, to act for the (4) The time and place of such written testimony.
Administrator. hearing. § 1.805 Docket number.
Department means the U.S. (5) The final date for notification of
Department of Agriculture. intent to participate as a party or Each proceeding, immediately
Federal Register means the witness in the hearing pursuant to following its institution, shall be
publication provided for by the Federal § 1.804. assigned a docket number by the
Register Act, approved July 26, 1935 (44 (6) The person to whom notification hearing clerk and thereafter the
U.S.C. 1501–1511), and acts of intent to participate as a party or proceeding may be referred to by such
supplementing and amending it. witness is to be provided pursuant to number.
Hearing means that part of the § 1.804, and the means by which such § 1.806 Judge.
proceeding that involves the submission notifications are to be provided.
of evidence. (7) Any alternative procedures (a) Assignment. No Judge who has any
Hearing clerk means the Hearing established pursuant to paragraph (d) of pecuniary interest in the outcome of a
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Clerk, U.S. Department of Agriculture, this section. proceeding shall serve as Judge in such
Washington, DC (b) Giving notice of hearing. (1) The proceeding.
Judge means any administrative law Administrator shall give or cause to be (b) Power of Judge. Subject to review
Judge appointed pursuant to 5 U.S.C. given notice of hearing in the following by the Secretary, as provided elsewhere
3105 and assigned to conduct the manner: in this subpart, the Judge in any
hearing. (i) By publication of the notice of proceeding shall have power to:
Party means: hearing in the Federal Register. (1) Rule upon motions and requests;

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(2) Change the time and place of the party on behalf of whom the (2) Appearance with or through
hearings, and adjourn the hearing from testimony is proffered; and counsel or representative. (i) A witness
time to time or from place to place; (2) Facts that are relevant and may appear with counsel or a
(3) Administer oaths and affirmations material. representative if the witness identifies
and take affidavits; (c) Copies of all direct testimony, the counsel or representative in the
(4) Examine and cross-examine including accompanying exhibits, must notification submitted pursuant to
witnesses and receive evidence; be submitted as prescribed by the notice § 1.804.
(5) Admit or exclude evidence; of hearing. (ii) The counsel or representative
(6) Hear oral argument on facts or law; (d) Upon receipt, direct testimony shall, before proceeding with the
and shall be assigned a number and stamped witness testimony, state for the record
(7) Do all acts and take all measures with that number and the docket the authority to act as such counsel or
necessary for the maintenance of order number. representative, and the names,
at the hearings and the efficient conduct addresses, and occupations of such
§ 1.808 Motions and requests. counsel or representative.
of the proceeding. (a) General. (1) Parties shall file all (iii) The witness or his or her counsel
(c) Who may act in absence of the motions and requests with the hearing or representative shall give such other
Judge. In case of the absence of the clerk except that those made during the information respecting the witness’
Judge or that Judge’s inability to act, the course of the hearing may be filed with appearance as the Judge may request.
powers and duties to be performed by the Judge or may be stated orally and (3) Debarment of counsel or
the Judge under this subpart in made a part of the transcript. representative. (i) Whenever, while a
connection with a proceeding may, (2) Except as provided in § 1.816(b), proceeding is pending before the Judge,
without abatement of the proceeding such motions and requests shall be such Judge finds that a person, acting as
unless otherwise ordered by the addressed to, and ruled on by, the Judge counsel or representative for any party
Secretary, be assigned to any other if made prior to certification of the or witness, is guilty of unethical or
Judge. transcript pursuant to § 1.811 or by the unprofessional conduct, the Judge may
(d) Disqualification of Judge. The Secretary if made thereafter. order that such person be precluded
Judge may at any time withdraw as (b) Certification to Secretary. The from further acting as counsel or
Judge in a proceeding if such Judge Judge may, in his or her discretion, representative in such proceeding.
deems himself or herself to be submit or certify to the Secretary for (ii) Except as provided in paragraph
disqualified. Upon the filing by an decision any motion, request, objection, (b)(3)(iii) of this section, an appeal to
interested person in good faith of a or other question addressed to the the Secretary may be taken from any
timely and sufficient affidavit of Judge. such order, but the proceeding shall not
personal bias or disqualification of a be delayed or suspended pending
Judge, the Secretary shall determine the § 1.809 Conduct of the hearing.
disposition of the appeal.
matter as a part of the record and (a) Time and place. The hearing shall (iii) In case the Judge has ordered that
decision in the proceeding, after making be held at the time and place a person be precluded from further
such investigation or holding such established in the notice of hearing. If action as counsel or representative in
hearings, or both, as the Secretary may the Judge subsequently changes the time the proceeding, the Judge within a
deem appropriate in the circumstances. or place, the Judge shall file a notice of reasonable time thereafter shall submit
such changes with the hearing clerk, to the Secretary a report of the facts and
§ 1.807 Direct testimony submitted as and the Administrator shall give or
written documents.
circumstances surrounding such order
cause to be given notice in the Federal and shall recommend what action the
Any person desiring to participate as Register in the same manner as Secretary should take respecting the
a witness at the hearing shall submit provided in § 1.803. If the change in appearance of such person as counsel or
direct testimony as written documents time or place of hearing is made less representative in other proceedings
as prescribed by the following: than five days prior to the date before the Secretary. Thereafter the
(a) Direct testimony by a witness, previously established for the hearing, Secretary may, after notice and an
including accompanying exhibits, must the Judge, either in addition to, or in opportunity for hearing, issue such
be submitted as specified in the notice lieu of, causing the notice of the change order respecting the appearance of such
of the hearing pursuant to § 1.803. to be given, shall announce the change person as counsel or representative in
Exhibits constituting part of such direct at the time and place previously proceedings before the Secretary as the
testimony, referred to in the direct established for the hearing. Secretary finds to be appropriate.
testimony and made a part thereof must (b) Appearances—(1) Right to appear. (4) Failure to appear. If any interested
be attached to the direct testimony. Any interested person shall be given an person, who complied with §§ 1.804,
Direct testimony submitted with opportunity to appear, as a witness, 1.807, fails to appear at the hearing, that
exhibits must state the issue(s) to which with or without, authorized counsel or person shall be deemed to have waived
the exhibit relates; if no such statement representative, and to be heard with the right to be heard in the proceeding
is made, the Judge, at the hearing, shall respect to matters relevant and material and such failure to appear shall result
determine the relevance of the exhibit to to the proceeding, provided that such in the exclusion of that person’s written
the issues published in the Federal interested person complies with testimony.
Register. §§ 1.804, 1.807, and any alternative (c) Order of procedure. (1) The Judge
(b) The direct testimony submitted procedures included in the hearing shall, at the opening of the hearing prior
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shall contain: notice pursuant to § 1.803. In addition to the taking of testimony, note as part
(1) A concise statement of the witness’ to compliance with any witness of the record the notice of hearing as
interest in the proceeding and his or her instructions set forth in the notice of published in the Federal Register.
position regarding the issues presented. hearing, any witness who desires to be (2) Evidence shall then be received
If the direct testimony is presented by heard in person at any hearing shall, with respect to the matters specified in
a witness who is not a party, the witness before proceeding to testify do so under the notice of the hearing in such order
shall state the witness’ relationship to oath or affirmation. as the Judge shall announce.

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Judge’s knowledge and belief, the (c) Exceptions to recommended papers required or authorized by the
transcript is a true transcript of the decision. (1) Immediately following the foregoing provisions hereof to be filed
testimony given at the hearing, except in filing of the recommended decision, the with the hearing clerk shall be filed in
such particulars as the Judge shall Administrator shall give notice thereof quadruplicate. Any documents or
specify, and that the exhibits and opportunity to file exceptions papers so required or authorized to be
transmitted are all the exhibits as thereto by publication in the Federal filed with the hearing clerk shall be
introduced at the hearing with such Register. filed with the Judge during the course
exceptions as the Judge shall specify. A (2) Within the period of time specified of an oral hearing.
copy of such certificate shall be attached in such notice, any interested person (b) Extension of time. (1) The time for
to each of the copies of the transcript of may file with the hearing clerk filing of any document or paper
testimony. exceptions to the Administrator’s required or authorized by the foregoing
(3) In accordance with such certificate proposed rule and a brief in support of provisions to be filed may be extended
the hearing clerk shall note upon the such exceptions. by the Judge (before the record is so
official record copy, and cause to be (3) Such exceptions shall be in certified by the Judge) or by the
noted on other copies of the transcript, writing, shall refer, where practicable, to Administrator (after the record is so
each correction detailed therein by the related pages of the transcript, and certified by the Judge but before it is
adding or crossing out (but without may suggest appropriate changes in the transmitted to the Secretary), or by the
obscuring the text as originally proposed rule. Secretary (after the record is transmitted
transcribed) at the appropriate place any (d) Omission of recommended to the secretary) upon request filed, and
words necessary to make the same decision. The procedure provided in if, in the judgment of the Judge,
conform to the correct meaning, as this section may be omitted only if the Administrator, or the Secretary, as the
certified by the Judge. Secretary finds on the basis of the case may be, there is good reason for the
(4) The hearing clerk shall obtain and record that due and timely execution of extension.
file certifications to the effect that such the Secretary’s functions imperatively (2) All rulings made pursuant to this
corrections have been effectuated in and unavoidably requires such paragraph shall be filed with the hearing
copies other than the official record omission. clerk.
copy. (c) Effective date of filing. Any
§ 1.814 Submission to Secretary.
§ 1.812 Copies of the transcript. (a) Upon the expiration of the period document or paper required or
allowed for filing exceptions or upon authorized in this subpart to be filed
(a) During the period in which the
request of the Secretary, the hearing shall be deemed to be filed at the time
proceeding has an active status in the
clerk shall transmit to the Secretary the it is received by the Hearing Clerk.
Department, a copy of the transcript and
record of the proceeding. (d) Computation of time. (1) Each day,
exhibits shall be kept on file with the
(b) Such record shall include: including Saturdays, Sundays, and legal
hearing clerk where it shall be available
(1) All motions and requests filed public holidays, shall be included in
for examination during official hours of
with the hearing clerk and rulings computing the time allowed for filing
business. Thereafter the transcript and
thereon. any document or paper.
exhibits shall be made available by the
hearing clerk for examination during (2) The certified transcript. (2) That when the time for filing a
official hours of business after prior (3) Any proposed findings or document or paper expires on a
request and reasonable notice to the conclusions or written arguments or Saturday, Sunday, or legal public
hearing clerk. briefs that may have been filed. holiday, the time allowed for filing the
(4) The Administrator’s recommended document or paper shall be extended to
(b) A copy of the transcripts of the
decision, if any. include the following business day.
hearing shall be made available to any (5) Filed exceptions.
person at actual cost of duplication. § 1.817 Ex parte communications.
§ 1.815 Decision by the Secretary.
§ 1.813 Administrator’s recommended (a) For the purposes of this section, ex
decision. After due consideration of the record, parte communication means any oral or
the Secretary shall render a decision. written communication not on the
(a) Preparation. As soon as practicable
Such decision shall become a part of the public record with respect to which
following the termination of the period
record and shall include: reasonable prior notice to all interested
allowed for the filing of written (a) A statement of findings and
arguments or briefs and proposed parties is not given, but which shall not
conclusions, including the reasons or include requests for status reports
findings and conclusions the basis for such findings, upon all the
Administrator shall file with the hearing (including requests on procedural
material issues of fact or law presented matters) on a proceeding.
clerk a recommended decision. on the record.
(b) Contents. The Administrator’s (b) At no stage of the proceeding
(b) A ruling upon proposed findings
recommended decision shall include: following the issuance of a notice of
and proposed conclusions not
(1) A preliminary statement hearing and prior to the issuance of the
previously ruled upon in the record.
containing a description of the history Secretary’s decision thereon shall an
(c) A ruling upon exceptions filed by
of the proceedings, a brief explanation employee of the Department who is or
interested persons.
of the material issues of fact, law and (d) Either a denial of the proposal to may reasonably be expected to be
proposed findings and conclusions issue a rule, or, if the findings upon the involved in the decision process of the
about such issues, including the reasons record so warrant, a rule, the provisions proceeding discuss ex parte the merits
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or basis for such proposed findings. of which shall be set forth and such rule of the proceeding with any person
(2) A ruling upon proposed findings shall be complete. having an interest in the proceeding or
or conclusions submitted by interested with any representative of such person.
persons. § 1.816 Filing, extension of time, effective This prohibition does not include
(3) An appropriate proposed rule date of filing, and computation of time. communications about:
effectuating the Administrator’s (a) Number of copies. Except as (1) Procedural matters and status
recommendations. provided otherwise, all documents or reports.

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(2) The merits of the proceeding if all after due consideration of the record, Administration; Mailing Address: 8701
parties known to be interested in the issue the final decision in the Morrissette Drive, Springfield, Virginia
proceeding have been given notice and proceeding. 22152; Telephone: (202) 598–6812.
an opportunity to participate. A (b) The Secretary may issue a SUPPLEMENTARY INFORMATION:
memorandum of any such discussion tentative decision in which event the
shall be included in the record of the parties shall be afforded an opportunity Legal Authority
proceeding. to file exceptions before the issuance of Section 201 of the Controlled
(c) No interested person outside the the final decision. Substances Act (CSA), 21 U.S.C. 811,
Department shall make or knowingly provides the Attorney General with the
Stephen Alexander Vaden, authority to temporarily place a
cause to be made to an employee of the
Department who is or may reasonably Principal Deputy General Counsel, Office of substance into schedule I of the CSA for
the General Counsel. two years without regard to the
be expected to be involved in the
[FR Doc. 2017–23877 Filed 11–2–17; 8:45 am] requirements of 21 U.S.C. 811(b) if he
decisional process of the proceeding, an
ex parte communication relevant to the BILLING CODE 3410–90–P finds that such action is necessary to
merits of the proceeding except as avoid an imminent hazard to the public
provided in paragraph (a) of this safety. 21 U.S.C. 811(h)(1). In addition,
section. DEPARTMENT OF JUSTICE if proceedings to control a substance are
(d) If an employee of the Department initiated under 21 U.S.C. 811(a)(1), the
who is or may reasonably be expected Drug Enforcement Administration Attorney General may extend the
to be involved in the decisional process temporary scheduling 1 for up to one
of the proceeding receives or makes or 21 CFR Part 1308 year. 21 U.S.C. 811(h)(2).
knowingly causes to be made a Where the necessary findings are
[Docket No. DEA–472]
communication prohibited by this made, a substance may be temporarily
section, the Department shall place on Schedules of Controlled Substances: scheduled if it is not listed in any other
the public record of the proceeding: Temporary Placement of FUB–AMB schedule under section 202 of the CSA,
(1) All such written communications; Into Schedule I 21 U.S.C. 812, or if there is no
(2) Memoranda stating the substance exemption or approval in effect for the
of all such oral communications; and AGENCY: Drug Enforcement substance under section 505 of the
(3) All written responses, and Administration, Department of Justice. Federal Food, Drug, and Cosmetic Act
memoranda, stating the substance of all ACTION: Temporary amendment; (FDCA), 21 U.S.C. 355. 21 U.S.C.
oral responses thereto. temporary scheduling order. 811(h)(1). The Attorney General has
(e) Upon receipt of a communication delegated scheduling authority under 21
knowingly made or knowingly caused to SUMMARY: The Administrator of the Drug U.S.C. 811 to the Administrator of the
be made by a party in violation of this Enforcement Administration is issuing DEA. 28 CFR 0.100.
section, the Department may, to the this temporary scheduling order to
schedule the synthetic cannabinoid, Background
extent consistent with the interest of
justice and the policy of the underlying methyl 2-(1-(4-fluorobenzyl)-1H- Section 201(h)(4) of the CSA 21 U.S.C.
statute, require the party to show cause indazole-3-carboxamido)-3- 811(h)(4), requires the Administrator to
why his claim or interest in the methylbutanoate [FUB–AMB, MMB– notify the Secretary of the Department
proceeding should not be dismissed, FUBINACA, AMB–FUBINACA], and its of Health and Human Services (HHS) of
denied, disregarded, or otherwise optical, positional, and geometric his intention to temporarily place a
adversely affected on account of such isomers, salts, and salts of isomers into substance into schedule I of the CSA.2
violation. schedule I. This action is based on a The Acting Administrator transmitted
(f) This section does not constitute finding by the Administrator that the notice of his intent to place FUB–AMB
authority to withhold information from placement of this synthetic cannabinoid into schedule I on a temporary basis to
Congress. into schedule I of the Controlled the Assistant Secretary for Health by
Substances Act is necessary to avoid an letter dated May 19, 2017. The Assistant
§ 1.818 Additional documents to be filed imminent hazard to the public safety. Secretary responded to this notice by
with hearing clerk. As a result of this order, the regulatory letter dated June 9, 2017, and advised
In addition to the documents or controls and administrative, civil, and that based on a review by the Food and
papers required or authorized by the criminal sanctions applicable to Drug Administration (FDA), there were
foregoing provisions of this subpart to schedule I controlled substances will be no active investigational new drug
be filed with the hearing clerk, the imposed on persons who handle applications or approved new drug
hearing clerk shall receive for filing and (manufacture, distribute, reverse
shall have custody of all papers, reports, distribute, import, export, engage in 1 Though DEA has used the term ‘‘final order’’

records, orders, and other documents research, conduct instructional with respect to temporary scheduling orders in the
which relate to the administration of past, this notification adheres to the statutory
activities or chemical analysis, or language of 21 U.S.C. 811(h), which refers to a
any order and which the Secretary is possess), or propose to handle, FUB– ‘‘temporary scheduling order.’’ No substantive
required to issue or to approve. AMB. change is intended.
2 As discussed in a memorandum of
§ 1.819 Hearing before Secretary. DATES: This temporary scheduling order understanding entered into by the Food and Drug
(a) The Secretary may act in the place is effective November 3, 2017, until Administration (FDA) and the National Institute on
jstallworth on DSKBBY8HB2PROD with RULES

November 4, 2019. If this order is Drug Abuse (NIDA), the FDA acts as the lead agency
and stead of a Judge in any proceeding within the Department of Health and Human
herein. When the Secretary so acts, the extended or made permanent, the DEA Service (HHS) in carrying out the Secretary’s
hearing clerk shall transmit the record will publish a document in the Federal scheduling responsibilities under the CSA, with the
to the Secretary at the expiration of the Register. concurrence of NIDA. 50 FR 9518, Mar. 8, 1985.
The Secretary of the HHS has delegated to the
period provided for the filing of FOR FURTHER INFORMATION CONTACT:
Assistant Secretary for Health of the HHS the
proposed findings of fact, conclusions, Michael J. Lewis, Diversion Control authority to make domestic drug scheduling
and orders, and the Secretary shall then, Division, Drug Enforcement recommendations. 58 FR 35460, July 1, 1993.

VerDate Sep<11>2014 15:05 Nov 02, 2017 Jkt 244001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\03NOR1.SGM 03NOR1
Document Created: 2018-10-25 10:24:02
Document Modified: 2018-10-25 10:24:02
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective on December 4, 2017.
Contact		Rupa Chilukuri, Trial Attorney, Office of the General Counsel, telephone: 202-720-4982, email: [email protected]
FR Citation		82 FR 51149
82 FR 51149 - Rules of Practice and Procedure Governing Formal Rulemaking Proceedings Instituted by the Secretary

DEPARTMENT OF AGRICULTUREOffice of the Secretary of Agriculture

Federal Register Volume 82, Issue 212 (November 3, 2017)

DEPARTMENT OF AGRICULTURE
Office of the Secretary of Agriculture
