[Code of Federal Regulations]

[Title 7, Volume 3]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR110.8]



[Page 280-286]

 

                          TITLE 7--AGRICULTURE

 

 CHAPTER I--AGRICULTURAL MARKETING SERVICE \1\ (STANDARDS, INSPECTIONS, 

       MARKETING PRACTICES), DEPARTMENT OF AGRICULTURE (CONTINUED)

 

PART 110_RECORDKEEPING ON RESTRICTED USE PESTICIDES BY CERTIFIED 

APPLICATORS; SURVEYS AND REPORTS--Table of Contents

 

Sec. 110.8  Rules of practice.



    (a) Notice of violation. If there is reason to believe that a person 

has violated or is violating any provision of this part, the complainant 

may file with the Presiding Officer a notice of violation signed by the 

complainant. The notice of violation shall state:

    (1) The date of issuance of the notice of violation;

    (2) The nature of the proceeding;

    (3) The identification of the complainant and respondent;

    (4) The legal authority under which the proceeding is instituted;

    (5) The allegations of fact and provisions of law which constitute 

the basis for the proceeding;

    (6) The amount of the proposed civil penalty; and

    (7) The name, mailing address, and telephone number of the Presiding 

Officer.

    (b) Answer. Within 30 days after the service of the notice of 

violation, the respondent shall file with the Presiding Officer an 

answer signed by the respondent or by the attorney of record in the 

proceeding. The answer shall:

    (1) Admit, deny, or explain each of the allegations in the notice of 

violation and set forth any defense asserted by the respondent; or

    (2) State that the respondent admits all the facts alleged in the 

notice of violation; or

    (3) State that the respondent admits the jurisdictional allegations 

in the notice of violation and neither admits nor denies the remaining 

allegations and consents to the issuance of an order without further 

procedure.

    (c) Default. Failure to file an answer within 30 days after service 

of the notice of violation shall be deemed, for purposes of the 

proceeding, an admission of the allegations in the notice of violation, 

and failure to deny or otherwise respond to an allegation in the notice 

of violation shall be deemed, for purposes of the proceeding, an 

admission of the allegation, unless the complainant and respondent have 

agreed to a consent decision pursuant to paragraph (e) of this section.

    (d) Amendment of notice of violation or answer. At any time prior to 

the filing of a motion for a hearing, the notice of violation or answer 

may be amended with the consent of the complainant and respondent or as 

authorized by the Presiding Officer upon a showing of good cause.

    (e) Consent decision. At any time before the Presiding Officer files 

the decision, the complainant and respondent may agree to the entry of a 

consent decision. The agreement shall be in the form of a decision 

signed by the complainant and respondent with appropriate space for 

signature by the Presiding Officer, and shall contain an admission of at 

least the jurisdictional facts, consent to the issuance of the agreed 

decision without further procedure, and such other admissions or 

statements as may be agreed to by the complainant and respondent. The 

Presiding Officer shall enter such decision without further procedure, 

unless an error is apparent on the face of the document. The consent 

decision shall have the same force and effect as a decision issued after 

a full hearing, shall become final upon issuance, and shall become 

effective in accordance with the terms of the decision.

    (f) Procedure upon failure to file an answer or admission of facts. 

The failure to file an answer with the Presiding Officer, or the 

admission by the answer of all the material allegations of fact 

contained in the notice of violation, shall constitute a waiver of 

hearing. Upon such admission or failure to submit an answer, complainant 

shall file with the Presiding Officer a proposed decision, along with a 

motion for the adoption of the proposed decision both of which shall be 

served upon the respondent by the Presiding Officer. Within 20 days 

after service of the motion and proposed decision, the respondent may 

file with the Presiding Officer objections to the motion and proposed 

decision. If the Presiding Officer finds that meritorious objections 

have been filed,



[[Page 281]]



complainant's motion shall be denied with supporting reasons. If 

meritorious objections are not filed, the Presiding Officer shall issue 

a decision without further procedure or hearing. Copies of the decision 

or denial of complainant's motion shall be served by the Presiding 

Officer upon the respondent and the complainant and may be appealed 

pursuant to paragraph (l) of this section. Where the decision as 

proposed by complainant is entered, such decision shall become final and 

effective without further proceedings 35 days after the date of service 

of the decision upon the respondent, unless there is an appeal to the 

Administrator by the complainant or respondent, pursuant to paragraph 

(l) of this section.

    (g) Conferences. (1) Upon motion of the complainant or respondent, 

the Presiding Officer may direct the complainant and respondent or their 

counsel to attend a conference at any reasonable time, prior to or 

during the course of the hearing, when the Presiding Officer finds that 

the proceeding would be expedited by a conference. Reasonable notice of 

the time and place of the conference shall be given. The Presiding 

Officer may order the complainant or respondent to furnish at or 

subsequent to the conference any or all of the following:

    (i) An outline of the case or defense;

    (ii) The legal theories upon which the party will rely;

    (iii) A list of documents which the party anticipates introducing at 

the hearing; and

    (iv) A list of anticipated witnesses who will testify on behalf of 

the party. At the discretion of the party furnishing such list of 

witnesses, the names of the witnesses need not be furnished if they are 

otherwise identified in some meaningful way such as a short statement of 

the type of evidence they will offer.

    (2) The Presiding Officer shall not order a party to furnish the 

information or documents listed in paragraph (g)(1) (i) through (iv) of 

this section if the party can show that providing the particular 

information or document is inappropriate or unwarranted under the 

circumstances of the particular case.

    (3) At the conference, the following matters may be considered:

    (i) The simplification of issues;

    (ii) The necessity of amendments to the notice of violation or 

answer;

    (iii) The possibility of obtaining stipulations of facts and of the 

authenticity, accuracy, and admissibility of documents, which will avoid 

unnecessary proof;

    (iv) The limitation of the number of expert or other witnesses;

    (v) Negotiation, compromise, or settlement of issues;

    (vi) The exchange of copies of proposed exhibits;

    (vii) The identification of documents or matters of which official 

notice may be requested;

    (viii) A schedule to be followed by the parties for completion of 

the actions decided at the conference; and

    (ix) Such other matters as may expedite and aid in the disposition 

of the proceeding.

    (4) A conference will not be stenographically reported unless so 

directed by the Presiding Officer.

    (5) In the event the Presiding Officer concludes that personal 

attendance by the Presiding Officer and the parties or counsel at a 

conference is unwarranted or impractical, but determines that a 

conference would expedite the proceeding, the Presiding Officer may 

conduct the conference by telephone or correspondence.

    (6) Actions taken as a result of a conference shall be reduced to a 

written appropriate order, unless the Presiding Officer concludes that a 

stenographic report shall suffice, or, the Presiding Officer elects to 

make a statement on the record at the hearing summarizing the actions 

taken.

    (h) Procedure for hearing--(1) Request for hearing. The complainant 

or respondent may request a hearing on the facts by including such a 

request in the notice of violation or answer, or by a separate request, 

in writing, filed with the Presiding Officer within the time in which an 

answer may be filed. Failure to request a hearing within the time 

allowed for the filing of the answer shall constitute a waiver of a 

hearing. In the event the respondent denies any material fact and fails 

to file a timely request for a hearing, the



[[Page 282]]



matter may be set down for hearing on motion of the complainant filed 

with the Presiding Officer or upon the Presiding Officer's own motion.

    (2) Time and place. If any material issue of fact is joined by the 

pleading, the Presiding Officer, upon motion of any of the parties 

stating that the matter is at issue and is ready for hearing, shall set 

a time and place for hearing as soon as feasible with due regard for the 

public interest and the convenience and necessity of the parties. The 

Presiding Officer shall issue a notice stating the time and place of 

hearing. If any change in the time or place of the hearing is made, the 

Presiding Officer shall issue a notice of this change, which notice 

shall be served upon the complainant and respondent, unless it is made 

during the course of an oral hearing and made a part of the transcript, 

or actual notice is given to the parties.

    (3) Appearances. The parties may appear in person or by attorney of 

record in the proceeding. Any individual who appears as an attorney must 

conform to the standard of ethical conduct required of practitioners 

before the courts of the United States.

    (4) Debarment of attorney. Whenever a Presiding Officer finds that 

an individual acting as attorney for any party to the proceeding is 

guilty of unethical or contumacious conduct, in or in connection with a 

proceeding, the Presiding Officer may order that the individual be 

precluded from further acting as attorney in the proceeding. An appeal 

to the Administrator may be taken from any such order, but no proceeding 

shall be delayed or suspended pending disposition of the appeal: 

Provided, That the Presiding Officer shall suspend the proceeding for a 

reasonable time for the purpose of enabling the party to obtain another 

attorney.

    (5) Failure to appear. A respondent who, after being duly notified, 

fails to appear at the hearing without good cause, shall be deemed to 

have waived the right to an oral hearing in the proceeding and to have 

admitted any facts which may be presented at the hearing. The failure by 

the respondent to appear at the hearing shall also constitute an 

admission of all the material allegations of fact contained in the 

notice of violation. The complainant shall have an election whether to 

follow the procedure set forth in paragraph (f) of this section or 

whether to present evidence, in whole or in part, in the form of 

affidavits, exhibits, or by oral testimony before the Presiding Officer. 

Failure to appear at a hearing shall not be deemed to be a waiver of the 

right to be served with a copy of the Presiding Officer's decision and 

to appeal to the Administrator pursuant to paragraph (l) of this 

section.

    (6) Order of proceeding. Except as may be determined otherwise by 

the Presiding Officer, the complainant shall proceed first at the 

hearing.

    (7) Evidence. (i) The testimony of witnesses at a hearing shall be 

on oath or affirmation and subject to cross-examination.

    (ii) Upon a finding of good cause, the Presiding Officer may order 

that any witness be examined separately and apart from all other 

witnesses except those who are parties to the proceeding.

    (iii) Evidence which is immaterial, irrelevant, or unduly 

repetitious, or which is not of the sort upon which responsible persons 

are accustomed to rely, shall be excluded insofar as practicable.

    (8) Objections. (i) If a party objects to the admission of any 

evidence or to the limitation of the scope of any examination or cross-

examination or to any other ruling of the Presiding Officer, the party 

shall state briefly the grounds of such objection, whereupon an 

automatic exception will follow if the objection is overruled by the 

Presiding Officer.

    (ii) Only objections made before the Presiding Officer may 

subsequently be relied upon in the proceeding.

    (9) Exhibits. Unless the Presiding Officer finds that the furnishing 

of copies is impracticable, four copies of each exhibit shall be filed 

with the Presiding Officer: Provided, That, where there are more than 

two parties in the proceeding, an additional copy shall be filed for 

each additional party. A true copy of an exhibit may be substituted for 

the original.



[[Page 283]]



    (10) Official records or documents. An official government record or 

document or entry in such a record or document, if admissible for any 

purpose, shall be admissible in evidence without the production of the 

individual who made or prepared the same, and shall be prima facie 

evidence of the relevant facts stated in the record or document. Such 

record or document shall be evidenced by an official publication of the 

record or document or by a copy certified by an individual having legal 

authority to make such certification.

    (11) Official notice. Official notice shall 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: Provided, That the parties shall be given adequate notice of 

matters so noticed, and shall be given adequate opportunity to show that 

such facts are erroneously noticed.

    (12) Offer of proof. Whenever evidence is excluded by the Presiding 

Officer, the party offering such evidence may make an offer of proof, 

which shall be included in the transcript. The offer of proof shall 

consist of a brief statement describing the evidence excluded. If the 

evidence consists of a brief oral statement, the statement shall be 

included in the transcript in its entirety. If the evidence consists of 

an exhibit, it shall be marked for identification and inserted in the 

hearing record. In either event, the evidence shall be considered a part 

of the transcript and hearing record if the Administrator, upon appeal, 

decides the Presiding Officer's ruling excluding the evidence was 

erroneous and prejudicial. If the Administrator, upon appeal, decides 

the Presiding Officer's ruling excluding the evidence was erroneous and 

prejudicial and that it would be appropriate to have such evidence 

considered a part of the hearing record, the Administrator may direct 

that the hearing be reopened to permit the taking of such evidence or 

for any purpose in connection with the excluded evidence.

    (13) Transcript. Hearings shall be recorded and transcribed 

verbatim.

    (i) Post-hearing procedure--(1) Corrections to transcript. (i) 

Within the period of time fixed by the Presiding Officer, any party may 

file a motion proposing corrections to the transcript.

    (ii) Unless a party files a motion proposing corrections to the 

transcript in the time fixed by the Presiding Officer, the transcript 

shall be presumed, except for obvious typographical errors, to be a 

true, correct, and complete transcript of the testimony given at the 

hearing and to contain an accurate description or reference to all 

exhibits received in evidence and made part of the hearing record and 

shall be deemed to be certified without further action by the Presiding 

Officer.

    (iii) As soon as practicable after the close of the hearing and 

after consideration of any timely objection filed as to the transcript, 

the Presiding Officer shall issue an order making any corrections to the 

transcript which the Presiding Officer finds are warranted, which 

corrections shall be entered on to the original transcript by the 

Presiding Officer without obscuring the original text.

    (2) Proposed finding of fact, conclusions, order, and briefs. Prior 

to the Presiding Officer's decision, each party shall be afforded a 

reasonable opportunity to submit for consideration proposed findings of 

fact, conclusions, order, and brief in support of the proposed findings 

of fact, conclusions and order. A copy of each such document filed by a 

party shall be served upon each of the other parties.

    (3) Presiding Officer's decision. (i) The Presiding Officer shall 

issue a decision within 30 days after the hearing, or, if any party 

submits proposed findings of fact, conclusions, order, and a brief in 

support thereof in accordance with paragraph (i)(2) of this section, 30 

days after the last such submission. The Presiding Officer's decision 

shall include the Presiding Officer's findings of the fact, conclusions 

of law, and the reasons or basis for the findings of fact and 

conclusions of law.

    (ii) The Presiding Officer's decision shall become effective without 

further proceedings 35 days after the date of service of the decision 

upon the respondent, unless there is an appeal to the Administrator by a 

party to the proceeding pursuant to paragraph (l) of this section.



[[Page 284]]



    (j) Motions and requests--(1) General. All motions and requests 

shall be filed with the Presiding Officer, and served upon all the 

parties, except:

    (i) requests for extensions of time pursuant to paragraph (m)(3) of 

this section; and

    (ii) motions and requests made on the record during the oral 

hearing. The Presiding Officer shall rule upon all motions and requests 

filed or made prior to the filing of an appeal of the Presiding 

Officer's decision pursuant to paragraph (l) of this section except 

motions directly relating to the appeal. Thereafter, the Administrator 

will rule on any motions and requests, as well as the motions directly 

relating to the appeal.

    (2) Motions entertained. (i) Any motion will be entertained other 

than a motion to dismiss on the pleading. (A motion by the complainant 

seeking the voluntary dismissal of the notice of violation may be 

entertained by the Presiding Officer or the Administrator.)

    (ii) All motions and requests concerning the notice of violation 

must be made within the time allowed for filing an answer, except 

motions by the complainant seeking voluntary dismissal of the notice of 

violation.

    (3) Contents. All written motions and requests shall state the 

particular order, ruling, or action desired and the grounds for the 

order, ruling, or action desired.

    (4) Response to motions and requests. Within 10 days after service 

of any written motion or request, or within a shorter or longer period 

as may be fixed by the Presiding Officer or the Administrator, an 

opposing party may file a response to the motion or request. The other 

party shall have no right to reply to the response; however, the 

Presiding Officer or the Administrator, in their discretion, may order 

that a reply be filed.

    (k) Presiding Officer--(1) Assignment. No Presiding Officer shall be 

assigned to serve in any proceeding who:

    (i) Has any pecuniary interest in any matter or business involved in 

the proceeding;

    (ii) Is related within the third degree by blood or marriage to any 

party to the proceeding; or

    (iii) Has any conflict of interest which might impair the Presiding 

Officer's objectivity in the proceeding.

    (2) Disqualification of Presiding Officer. (i) Any party to the 

proceeding may, by motion made to the Presiding Officer, request that 

the Presiding Officer withdraw from the proceeding because of an alleged 

disqualifying reason. Such motion shall set forth with particularity the 

grounds of alleged disqualification. The Presiding Officer may then 

either rule upon or certify the motion to the Administrator, but not 

both.

    (ii) A Presiding Officer shall withdraw from any proceeding for any 

reason deemed by the Presiding Officer to be disqualifying.

    (3) Powers. The Presiding Officer, in any assigned proceeding, shall 

have power to:

    (i) Rule upon motions and requests;

    (ii) Set the time and place of a conference and the hearing, adjourn 

the hearing from time to time, and change the time and place of hearing;

    (iii) Administer oaths and affirmations;

    (iv) Summon and examine witnesses and receive evidence at the 

hearing;

    (v) Admit or exclude evidence;

    (vi) Hear oral argument on facts or law;

    (vii) Do all acts and take all measures necessary for maintenance or 

order, including the exclusion of contumacious counsel or other persons; 

and

    (viii) Take all other actions authorized under this section.

    (l) Appeal to the Administrator--(1) Filing of petition. Within 30 

days after receiving notice of the Presiding Officer's decision, a party 

who disagrees with the decision, or any part of the Presiding Officer's 

decision, or any ruling by the Presiding Officer or a party who alleges 

a deprivation of rights, may appeal the Presiding Officer's decision or 

rulings to the Administrator by filing an appeal petition with the 

Administrator. As provided in paragraph (h)(8) of this section, 

objections regarding evidence or a limitation regarding examination or 

cross examination or other ruling made before the Presiding Officer may 

be relied upon in an appeal. The appeal petition shall state



[[Page 285]]



the name and address of the person filing the appeal petition. Each 

issue set forth in the appeal petition, and the arguments on each issue, 

shall be separately numbered; shall be plainly and concisely stated; and 

shall contain detailed citations of the record, statutes, regulations, 

or authorities being relied upon in support of the argument. A brief may 

be filed in support of the appeal simultaneously with the appeal 

petition.

    (2) Response to appeal petition. Within 20 days after the service of 

a copy of an appeal petition and any brief in support of the appeal 

petition, filed by a party to the proceeding, any other party may file 

with the Administrator a response in support of or in opposition to the 

appeal petition and, in such response any relevant issue, not presented 

in the appeal petition, may be raised.

    (3) Transmittal of record. Whenever an appeal to the Presiding 

Officer's decision is filed and a response to the appeal has been filed 

or time for filing a response has expired, the Presiding Officer shall 

transmit to the Administrator the record of the proceeding. The record 

shall include: the pleading; motions and requests filed and rulings on 

such motions and requests; the transcript of the testimony taken at the 

hearing, together with the exhibits filed in connection with the 

hearing; any documents or papers filed in connection with a conference; 

such proposed findings of fact, conclusions, and orders, and briefs in 

support thereof, as may have been filed in connection with the 

proceeding; the Presiding Officer's decision; and such exceptions, 

statements of objections and briefs in support thereof as may have been 

filed in the proceeding.

    (4) Decision of the Administrator on appeal. As soon as practicable 

after the receipt of the record from the Presiding Officer, the 

Administrator, upon the basis of and after due consideration of the 

record and any matter of which official notice is taken, shall rule on 

the appeal. If the Administrator decides that no change or modification 

of the Presiding Officer's decision is warranted, the Administrator may 

adopt the Presiding Officer's decision as the final order in the 

proceeding, preserving any right of the party bringing the appeal to 

seek judicial review of such decision in the proper forum.

    (m) Filing; service; extensions of time; and computation of time--

(1) Filing; number of copies. Except as otherwise provided in this 

section, all documents or papers required or authorized by this section 

to be filed with the Presiding Officer or Administrator shall be filed 

in quadruplicate: Provided, That where there are more than two parties 

in the proceeding, an additional copy shall be filed for each additional 

party.

    (2) Service; proof of service. Copies of all documents or papers 

required or authorized by this section to be filed with the Presiding 

Officer or Administrator shall be served upon the parties by the person 

with whom such documents or papers are filed. Service shall be made 

either:

    (i) By delivering a copy of the document or paper to the individual 

to be served or to a member of the partnership to be served, or to the 

president, secretary, or other executive officer or any director of the 

corporation or association to be served, or to the attorney of record 

representing such person; or

    (ii) By leaving a copy of the document or paper at the principal 

office or place of business or residence of such individual, 

partnership, corporation, organization, or association, or of the 

attorney of record representing such person and mailing by regular mail 

another copy to such person at such address; or

    (iii) By registering or certifying and mailing a copy of the 

document or paper, addressed to such individual, partnership, 

corporation, organization, or association, or to the attorney of record 

representing such person, at the last known residence or principal 

office or place of business of such person: Provided, That if the 

registered or certified document or paper is returned undelivered 

because the addressee refused or failed to accept delivery, the document 

or paper shall be served by remailing it by regular mail. Proof of 

service under this paragraph shall be made by the certificate of the 

person who actually made the service: Provided, That if the service be 

made by mail, under paragraph (m)(2)(iii) of this section, proof of 

service shall be made by the return



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post-office receipt, in the case of registered or certified mail, or by 

the certificate of the person who mailed the matter by regular mail. Any 

certificate or post-office receipt returned to the Presiding Officer or 

Administrator shall be filed by the Presiding Officer or Administrator, 

and made a part of the record of the proceeding.

    (3) Extensions of time. The time for the filing of any document or 

paper required or authorized under this section to be filed may be 

extended by the Presiding Officer or the Administrator as provided in 

paragraph (j) of this section, if in the judgment of the Presiding 

Officer or the Administrator, as the case may be, there is good reason 

for the extension. In all instances in which time permits, notice of the 

request for extension of the time shall be given to the other party with 

opportunity to submit views concerning the request.

    (4) Effective date of filing. Any document or paper required or 

authorized under this section to be filed shall be deemed to be filed at 

the time when it reaches the person with whom the document or paper must 

be filed.

    (5) Computation of time. Saturdays, Sundays, and holidays shall be 

included in computing the time allowed for the filing of any document or 

paper: Provided, That, when such time expires on a Saturday, Sunday, or 

holiday, such period shall be extended to include the next following 

business day.

    (n) Ex parte communications. (1) At no stage of the proceeding 

between its institution and the issuance of the final decision shall the 

Presiding Officer or Administrator discuss ex parte the merits of the 

proceeding with any person who is connected with the proceeding in an 

advocative or in an investigative capacity, or with any representative 

of such person: Provided, That the Presiding Officer or Administrator 

may discuss the merits of the case with such a person if all parties to 

the proceeding, or their attorneys have been given notice and an 

opportunity to participate. A memorandum of such discussion shall be 

included in the record.

    (2) No interested person shall make or knowingly cause to be made to 

the Presiding Officer or Administrator an ex parte communication 

relevant to the merits of the proceeding.

    (3) If the Presiding Officer of the Administrator receives an ex 

parte communication in violation of this paragraph (n), the individual 

who receives the communication shall place in the public record of the 

proceeding:

    (i) Any such written communication;

    (ii) Memoranda stating the substance of such oral communication; and

    (iii) Any written response, and memoranda stating the substance of 

any oral response to the ex parte communication.

    (4) For purposes of this section ex parte communication means an 

oral or written communication not on the public record with respect to 

which reasonable prior notice to all parties is not given, but it shall 

not include requests for status reports on any matter or the proceeding.