(b) An employee who believes the remedial action will cause undue hardship may request a review and modification by forwarding to the Director of Personnel through the head of his agency a written statement setting forth all the facts and circumstances with the reasons for the request for a modification. § 0.735-64 Protection of reports.

(a) The statements of employment and financial interests, and supplements thereto, required by or pursuant to the regulations in this part shall be held in confidence and afforded adequate physical security. No information as to the contents thereof shall be disclosed except to the head of the employing agency and such other persons as may be designated custodians or reviewers of such reports unless specific authorization has been obtained from the Department Counselor. An official, custodian, reviewer, or other employee having possession of a statement of employment and financial interests shall not allow access to, or allow information to be disclosed from the statement except to carry out the purposes of this Part 0.

(b) Information from a statement of employment and financial interests shall not be disclosed outside of the Department except as the Civil Service Commission or the Secretary of Agriculture may determine for good cause shown.

(c) Reports shall be separately maintained by the officials designated as custodians for such reports and shall not be made a part of the official personnel folders.

(d) Regardless of the means or manner of transmission, when these reports leave the physical custody of the employee or a designated reviewer, they shall be enclosed in a double sealed envelope. The inner envelope shall be marked: "For Official Use Only," "Contains AD-392 (or AD-392-A)," as appropriate, and "To Be Opened By Addressee Only."

[31 F.R. 8528, June 18, 1966, as amended at 33 F.R. 955, Jan. 26, 1968]

§ 0.735-65 Agency implementation.

Agencies of the Department may issue such additional regulations as are necessary and consistent with the regulations in this part, following approval of the Director of Personnel. Such agency regulations shall be furnished to employees in the same manner as the regulations in this part.

to the maximum extent consistent with the national welfare and the rights of individual citizens. This means that, with certain exceptions, the records of the Department are freely available for public inspection. The exceptions are limited to those expressly required by law or authorized by the standards and principles contained in 5 U.S.C. 552(b). § 1.2 Request for examination or copy of records.

(a) General. Request for examination of a record or for a copy thereof shall be made to the agency administering the program. Examination of records shall be at the time and place specified by the agency; and copies or extracts shall be furnished and the recipient charged, where appropriate, in accordance with the Department fee schedule.

(b) Fee schedule. The Director, Office of Plant and Operations, shall issue regulations relating to fees and charges for reproductions and for furnishing copies and making searches of official records.

§ 1.3 Authentication.

When a request is received for an authenticated copy of a document which may be made available to the requesting party, the agency having possession thereof shall cause a correct copy to be prepared and sent to the Office of the General Counsel which shall certify the same and cause the seal of the Department to be affixed, except that the Judicial Officer, or the Hearing Clerk when directed by the Judicial Officer, may authenticate copies of documents in the records of the Hearing Clerk.

§ 1.4 Restrictions on availability.

(a) (1) Each agency in the Department, or the Assistant Secretary having responsibility for the activities of the agency, shall issue regulations setting forth the records which are exempt for disclosure because they are:

(i) Matters specifically required by Executive order to be kept secret;

(ii) Matters related solely to the internal personnel rules and practices of the Department;

(iii) Matters specifically exempted from disclosure by statute;

(iv) Trade secrets and commercial or financial information obtained from any person and privileged or confidential;

(v) Inter-agency or intra-agency memoranda or letters which would not

be available by law to a party other than an agency in litigation with the Department;

(vi) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(vii) Investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency;

(viii) Matters contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency of the Department responsible for the regulation or supervision of financial institutions; or

(ix) Geological and geophysical information and data, including maps, concerning wells.

(2) The records of the Department that are within the above categories shall not be available to the public even though not specifically set forth in the agency regulations.

(3) Except where disclosure is prohibited by Executive order or statute, or by regulations of other Government agencies, the head of an agency may, in individual cases, make records exempt from disclosure available if he determines that disclosure will not adversely affect the national interest or constitute an unwarranted invasion of individual privacy.

(b) Agency regulations shall specify when records become available for inspection, where and the time when records may be inspected, the procedures to be followed in requesting access, the opportunity for appeal to the head of the agency where access is denied, and such other provisions as may be necessary to carry out the policy of this subpart.

(c) In determining which records shall be exempt, agencies shall be guided by the Attorney General's Memorandum On The Public Information Section of the Administrative Procedure Act, June 1967, or any revision thereof, and the committee reports referred to therein. (This Memorandum may be purchased from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.)

(d) Upon determination by a representative of an agency that a record is not available, the person requesting the record may appeal in writing to the head of the agency whose decision shall be final.

(e) Many of the records in the files of agencies of the Department are obtained from other agencies of the Department and other departments and agencies of the Government. Where the question of the availability of a record is determined to be primarily the responsibility of an agency other than the agency receiving a request therefor, the request will be referred to that agency for processing in accordance with that agency's regulations and the person submitting the request shall be so notified. In such instance the decision of the responsible officer of the agency having such responsibility with respect to the record shall be honored by agencies of this Department.

(f) The regulations in this subpart and 5 U.S.C. 552(a) deal only with records in being and in the possession or control of an agency and impose no obligation to compile or procure a record in response to a request.

§ 1.5 Compulsory process.

(a) Referral to Secretary. In any case where it is sought by subpoena, order, or other compulsory process or demand (hereinafter in this part referred to as a "demand") to require the production or disclosure of any record or material which is exempt from disclosure under § 1.4 or information related thereto acquired by an employee of this Department in the performance of his official duties or because of his official status, the matter shall be referred to the agency head for determination. If the agency head determines that it would be improper to comply with the demand, the matter will be referred to the Secretary of Agriculture for final determination. Unless the Secretary determines that the records, material, or information should be produced, the employee who appears in answer to the demand will respectfully decline to produce or disclose the records, material, or information demanded on the ground that the disclosure is prohibited by this section. The employee shall provide the court or other authority with a copy of the regulations prescribed in this subpart and shall respectfully request the court or other authority to withdraw the demand.

(b) Demand before court or other authority for records or information exempt from disclosure. Whenever a demand of the type described in paragraph (a) of this section is made upon an employee of this Department by a court or

other authority while he is appearing before, or is otherwise in the presence of the court or other authority, the employee, or other appropriate Government official or attorney acting on behalf of the employee, shall (1) immediately inform the court or other authority that this section prohibits the employee from producing or disclosing the information or material demanded without the prior approval of the agency head or the Secretary of Agriculture, and (2) offer to refer the demand for the prompt consideration of the agency head or the Secretary of Agriculture. Unless the court or other authority withdraws the demand, the employee, or other appropriate Government official or attorney, shall provide the court or other authority a copy of the regulations prescribed by this subpart and shall respectfully request the court or other authority to stay the demand pending the receipt of instructions or directions from the agency head or the Secretary of Agriculture concerning the demand.

(c) Procedure in the event of an adverse ruling. If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with paragraph (a) or (b) of this section pending the receipt of instructions or directions from the agency head or the Secretary of Agriculture, or if the court or other authority rules adversely on any claim of privilege that may be asserted in conformity with the provisions of this subpart or with instructions or directions issued by the Secretary of Agriculture pursuant thereto, the employee upon whom the demand shall have been made shall, pursuant to the regulations prescribed in this subpart, respectfully decline to produce or disclose the records, material, or information demanded.

§ 1.6 Records in formal adjudication and formal rule-making proceedings. Records in formal adjudication and formal rule-making proceedings are on file in the Office of the Hearing Clerk, U.S. Department of Agriculture, Washington, D.C. 20250, and shall be made available to the public.

Subpart B-Departmental
Proceedings

§ 1.26 Representation before the Department of Agriculture.

(a) Applicability. The provisions of this section apply to all hearings and

(1) In

other proceedings before the Department of Agriculture, except to the extent that any other regulation of the Department may specifically make such provisions, or any part thereof, inapplicable as to particular hearings or other proceedings. (b) Administrative provisions. any hearing or other proceeding before the Department of Agriculture, the parties may appear in person or by counsel or other representative. Persons who appear as counsel or in a representative capacity in any hearing or proceeding must conform to the standards of ethical conduct required of practitioners before the U.S. District Court for the District of Columbia, and to any applicable standards of ethical conduct established by statutes, executive orders regulations.

and

(2) Whenever the Secretary finds, after notice and opportunity for hearing, that a person who is acting or has acted as counsel or representative in any hearing or other proceeding before the Department has not conformed to any such standards of ethical conduct, he may order that such person be precluded from acting as counsel or representative in any hearing or other proceeding before the Department for such period of time as he deems warranted. Whenever the Secretary has probable cause to believe that any person who is acting or has acted as counsel or representative in any such hearing or other proceeding has not conformed to any such standards of ethical conduct, he may, by written notice to such person, suspend him from acting as such a counsel or representative pending completion of the procedures specified in the preceding sentence.

(3) No employee or former employee of the Department shall be permitted to represent any person before the Department in connection with any particular matter as to which by reason of his employment he acquired personal knowledge of such a nature that it would be improper, unethical, or contrary to the public interest for him so to act.

(4) This section shall not be construed to prevent an employee or former employee of the Department from appearing as a witness in any hearing or other proceeding before the Department.

(c) Statutory provisions. Chapter 11 of Title 18, United States Code prohibits employees and former employees from

representing others under certain circumstances. See $0.735-41 of this subtitle for illustrations.

(18 U.S.C. 203, 205, 207) [32 F.R. 5458, Apr. 1, 1967]

§ 1.27 Rule making procedures.

In all cases where notice of proposed rule making is given:

(a) The notice shall indicate the procedure to be followed in the rule making proceeding unless the procedure is prescribed by statute or by published rule of the Department. Each notice of proposed rule making shall contain a statement which will advise the public of the policy regarding availability of written submissions by indicating specifically whether paragraphs (b), (c), or (d) of this section will be applicable to submissions made pursuant to the notice.

(b) All written submissions made pursuant to notice of proposed rule making shall be made available for public inspection at such times and places and in a manner convenient to the publio business.

(c) Any submission, pursuant to such notice, will be held confidential when so requested by the person making the submission upon a determination, by an official of the Department authorized to issue the rule under consideration, that he has shown that the making public of the submission may result in an adverse effect on him by reason of:

(1) disclosing trade secrets, processes, operations, style of work or apparatus, or the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures; or

(2) exposing such person to substantial disadvantage in his business or

employment.

Where request is made hereunder for confidential treatment of a submission, the person making the request shall be informed promptly in the event the request is denied and afforded an opportunity to withdraw the submission. Any such request will be held confidential; however, where a determination is made to grant a request for confidential treatment under subparagraph (2) of this paragraph, a statement of the specific basis for such determination which will not be susceptible of identifying the person making the request will be made available for public inspection.

(d) Where the nature of the subject matter of the proposed rule is such that meaningful submissions cannot be ex

pected unless they treat with matters of the kind referred to in paragraph (c) of this section, then in that event the notice of proposed rule making shall so indicate and also contain a statement that submissions pursuant thereto will be treated as confidential: Provided, That such action shall have the prior approval of the Secretary, the Under Secretary, or an Assistant Secretary.

(e) This section shall apply in any instance where the Department or an agency thereof by published notice solicits, or affords interested members of the public an opportunity to submit, written views with respect to any proposed action relating to any program administered in the Department regardless of the fact that the issuance of a rule may not be contemplated.

[29 F.R. 7311, June 5, 1964, as amended at 29 F.R. 9319, July 8, 1964]

Petitions by interested persons in accordance with the provisions of section 4(d) of the Administrative Procedure Act (60 Stat. 239; 5 U.S.C. 1003 (d)) for the issuance, amendment or repeal of a rule may be filed with the official that issued or is authorized to issue the rule. All such petitions will be given prompt consideration and petitioners will be notified promptly of the disposition made of their petitions.

[11 F.R. 177A-233, Sept. 11, 1946. Redesignated at 13 F.R. 6703, Nov. 16, 1948]

§ 1.29 Subpoenas relating to meat inspection program.

(a) Definitions. When used in this section, the following words, names, or terms shall be construed as follows:

(1) Secretary. The Secretary of Agriculture, or any person acting in his stead. (2) Administrator. The Administrator of the Consumer and Marketing Service, U.S. Department of Agriculture, or any person acting in his stead.

(3) Inspector General. The Inspector General of the U.S. Department of Agriculture, or any person acting in his stead.

(4) Designated place of hearing. Any place designated for the production of witnesses or documentary evidence, which may include a witness' place of business.

(5) Federal Meat Inspection Act. The Federal Meat Inspection Act (34 Stat. 1260, as amended by the Wholesome Meat Act, Public Law 90-201; 21 U.S.C. 601 et seq.).

(6) Investigation. Any investigation, inquiry, inspection, or audit conducted by the Consumer and Marketing Service or by the Office of the Inspector General, U.S. Department of Agriculture, relating to efficient administration and enforcement of the Federal Meat Inspection Act.

(b) Issuance of subpoena. The attendance of a witness and the production of documentary evidence relating to an investigation may, by subpoena, be required at any designated place of hearing. A subpoena may be issued by either the Secretary, the Administrator, or the Inspector General upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.

(c) Service of subpoena. (1) A subpoena issued pursuant to this section may be served by:

(i) A U.S. Marshal or Deputy Marshal, (ii) Any other person who is not less than 18 years of age, or

(iii) Certified or registered mailing of a copy of the subpoena addressed to the person to be served at his or its last known residence or principal place of business or residence.

(2) Proof of service may be made by the return of service on the subpoena by the U.S. Marshal or Deputy Marshal; or, if served by an individual other than a U.S. Marshal or Deputy Marshal, by an affidavit of such person stating that he personally served a copy of the subpoena upon the person named therein; or, if service was by certified or registered mail, by the signed return. Post Office receipt.

(3) In making personal service, the person making service shall leave a copy of the subpoena with the person subpoenaed; and the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the subpoena.

(Sec. 407, 34 Stat. 1260, as amended; 21 U.S.C. 677, 15 U.S.C. 49) [33 F.R. 7295, May 17, 1968]

Subpart C-Judicial Proceedings § 1.41 Service of process.

Process in any suit brought in Washington, District of Columbia, against the United States or any officer of the U.S. Department of Agriculture in any matter involving the activities of this Department, shall be served on the General Counsel of the Department. A U.S. Marshal or other process server attempting to serve process in such a suit on any