Production or Disclosure of Official Information in Legal Proceedings, 10925-10930 [2022-03880]
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10925
Rules and Regulations
Federal Register
Vol. 87, No. 39
Monday, February 28, 2022
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.
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
[Docket No. USDA–2021–0009]
RIN 0503–AA74
Production or Disclosure of Official
Information in Legal Proceedings
Office of the Secretary, USDA.
Direct final rule.
AGENCY:
ACTION:
We are revising our
regulations regarding the production or
disclosure of official information in
legal proceedings (referred to as Touhy
regulations). These regulations are being
updated to promote consistent
processing of Touhy requests among
U.S. Department of Agriculture (USDA
or Department) agencies; clarify the
responsibilities of all parties in the
Touhy process; and provide additional
information about criteria that USDA
agencies should consider in the Touhy
process.
DATES: This rule will be effective on
April 29, 2022, unless we receive
written adverse comments or written
notice of intent to submit adverse
comments on or before March 30, 2022.
If we receive written adverse comments
or written notice of intent to submit
adverse comments, we will publish a
document in the Federal Register
withdrawing this rule before the
effective date.
ADDRESSES: You may submit comments
or written notice of intent to submit
adverse comments using the Federal
eRulemaking Portal. Go to https://
www.regulations.gov and search for
docket number USDA–2021–0009.
FOR FURTHER INFORMATION CONTACT:
Karen Carrington Fletcher, Senior
Counsel, Office of the General Counsel,
USDA, 1400 Independence Ave. SW,
Room 103–W, Washington, DC 20250;
karen.fletcher@usda.gov; (202) 720–
0944.
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SUMMARY:
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SUPPLEMENTARY INFORMATION:
Background
Under 5 U.S.C. 301, the
‘‘Housekeeping Statute,’’ and in
response to a demand for official
information that arises out of a legal
proceeding, many agencies have
regulations governing the production of
official information and employee
testimony relating to official
information. Known as Touhy
regulations, these regulations usually
prohibit unauthorized disclosures of
official information by employees.
These regulations also establish
procedures for agencies responding to
subpoenas for official information or
employee testimony relating to official
information. (See United States ex rel. v.
Touhy v. Ragen, 340 U.S. 462 (1951)).
Currently, the Department’s Touhy
regulations are located at 7 CFR part 1,
subpart K (§§ 1.210 to 1.219). Those
regulations were established in 1990
and have not been amended since 1993.
This direct final rule revises subpart K
in its entirety, with the new regulations
spanning §§ 1.210 through 1.224. The
revised regulations are presented in a
question-and-answer format to enhance
clarity and readability.
The Department is amending its
Touhy regulations to: (1) Promote
consistent processing of Touhy requests
among USDA agencies; (2) clarify the
responsibilities of all parties in the
Touhy process; and (3) provide
additional information about criteria
that USDA agencies should consider in
the Touhy process. A discussion of
certain specific changes follows.
The revised regulations set forth the
procedures to be followed with respect
to a demand seeking official information
or employee testimony relating to
official information for use in a legal
proceeding. The revised regulations also
set forth certain definitions that were
not used in the existing regulations. The
revised regulations define:
• The term ‘‘demand’’ to mean any
effort or attempt to obtain, for use in a
legal proceeding, official information or
testimony relating to official
information, including any request,
order, subpoena, or other command, as
well as any informal or other attempt
(by any method) to obtain official
information, or testimony relating to
official information, by an attorney,
investigator, or others.
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• The term ‘‘legal proceeding’’ to
mean all pretrial, trial, and post-trial
stages of all existing or reasonably
anticipated judicial or administrative
actions, hearings, investigations, or
similar proceedings before courts,
commissions, boards, grand juries, or
other tribunals. This phrase includes all
phases of discovery as well as formal or
informal requests by attorneys or others
involved in legal proceedings.
• The term ‘‘official information’’ to
mean all information of any kind,
however stored, that is in the custody
and control of the Department or relates
to information in the custody and
control of the Department, or
information or knowledge acquired by a
Department employee as part of the
employee’s official duties or because of
the employee’s official status with the
Department.
• The term ‘‘Department’’ to mean the
United States Department of
Agriculture, its constituent agencies,
and Department officials authorized to
decide whether to allow disclosures of
official information or testimony
relating to official information in
response to a demand.
• The term ‘‘employee’’ to mean all
employees or officers of the Department,
including individuals who are or have
been appointed by the Department, or
who are or have been subject to the
Department’s supervision, jurisdiction,
or control, including individuals hired
through contractual agreements by or on
behalf of the Department, or performing
services under such agreements for the
Department, such as consultants,
contractors, subcontractors, and their
employees or other personnel. Also
included in the definition are former
Department employees where the
demand seeks testimony relating to
official information acquired while the
person was an employee of the
Department.
• The term ‘‘testimony’’ to mean any
written or oral statement by an
employee, including personal
appearances in court or at depositions,
interviews, or informal inquiries in
person or by telephone, responses to
written interrogatories or other written
statements such as reports, declarations,
or affidavits, or any response involving
more than the delivery of documents.
• The term ‘‘appropriate Department
official’’ to mean the head of a
Department agency.
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• The term ‘‘Office of the General
Counsel’’ to mean the Office of the
General Counsel of the Department.
• The term ‘‘United States’’ to means
the Federal Government, its
departments, and its agencies.
The revised regulations explicitly
state that the following matters are not
covered by the regulations:
• Congressional requests and
subpoenas seeking official information
or employee testimony relating to
official information;
• Federal court civil proceedings in
which the United States is a party;
• Federal administrative proceedings
in which the Department is a party;
• The disclosure of official
information or employee testimony
relating to official information provided
to other Federal agencies in connection
with a legal proceeding conducted on
behalf of or in defense of the United
States or a legal proceeding in which the
United States has an interest; and
• Employees who testify on their own
time or in approved leave status as
private citizens about facts or events
that are unrelated to official business.
The revised regulations outline the
responsibilities for those involved in the
Touhy process, i.e., the parties
submitting a demand to Department
agencies, Department employees who
receive a demand, and Department
agencies deciding whether to grant or
deny a demand.
Parties who submit a demand are to
provide the following to the
Department:
• Information about the underlying
legal proceeding, including copies of the
complaint and any relevant pleadings;
• The identity of the Department
employee whose testimony is sought
and a detailed summary about the
relevance of the employee’s testimony
to the underlying legal proceeding;
• If the demand seeks documents or
other materials, a description of the
requested official information sought
and a detailed summary about its
relevance to the underlying legal
proceeding;
• An explanation of the unavailability
of the requested official information or
employee testimony through other
sources; and
• An explanation of how each of the
factors set forth in 7 CFR 1.220(a) apply
to their demand.
The revised regulations require that
this information must be submitted at
least 14 calendar days before the official
information or employee testimony is
needed and further require the
submission of the above information
even if parties serve a subpoena on the
Department or a Department employee.
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A demand may not be granted if a party
fails to follow the instructions set forth
in the regulations.
Department employees who receive a
demand are to:
• Inform their supervisors about the
demand so the supervisors may inform
an appropriate Department official and
the Office of the General Counsel; and
• If appropriate Department officials
deny the demand in accordance with
the requirements of this regulation,
refrain from providing official
information and/or testimony in
response to the demand.
Employees may be subject to
disciplinary action, including
termination, if they provide official
information or testimony relating to
official information pursuant to a
demand without approval from
appropriate Department officials.
The revised regulations provide that
the Department will consider the
following criteria when evaluating a
demand:
• Whether complying with the
demand would be unduly burdensome,
disproportionate to the needs of the
case, or otherwise inappropriate under
the applicable rules of discovery or
rules of procedure governing the legal
proceeding underlying the demand;
• Whether complying with the
demand is appropriate under the
relevant substantive law concerning
privilege or disclosure of information;
• The public interest;
• The need to conserve the time and
expense of Department employees for
conducting official business;
• The need to avoid spending the
resources of the United States for nonFederal government purposes;
• The need to maintain impartiality
between private litigants in cases in
which a substantial Department interest
is not involved;
• Whether complying with the
demand would adversely affect the
Department’s mission and duties;
• The need to avoid involving the
Department in issues unrelated to its
mission; and
• Any other factor relevant to the
interests of the Department.
In comparison with the existing
regulations, the above-referenced factors
provide additional detail regarding the
considerations that the Department will
weigh in deciding whether to grant or
deny a demand. The existing regulations
list only three factors for Department
officials to consider in determining
whether to authorize an employee’s
appearance in a legal proceeding where
the Government is not a party. These
above-referenced factors apply to all
demands for official information or
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testimony relating to official
information.
The revised regulations provide that a
demand will be denied if a Department
official determines that producing
employee testimony or official
information would result in:
• Violating a statute, rule of
procedure, regulation, or executive
order;
• Revealing classified information;
• Revealing confidential commercial
or financial information or trade secrets
without the owner’s consent;
• Revealing the internal deliberative
processes of the Executive Branch or
other privileged information; or
• Potentially impeding or prejudicing
an on-going law enforcement
investigation.
The revised regulations clarify the
role of USDA’s Office of the General
Counsel (OGC) and Counsel to the
Inspector General in the Touhy process
and describe how OGC may interact
with a party that submits a demand. The
proposed regulations also ensure that
OGC reviews and concurs with any
Touhy decision.
Finally, the revised regulations set
forth conditions that the Department
may place on producing official
information or authorizing employee
testimony in response to a demand.
Specifically, the Department may:
• Require the parties in the legal
proceeding underlying the demand
obtain a protective order or execute a
confidentiality agreement to limit access
to the official information or testimony
provided;
• Limit the scope of the subject
matter areas of the permitted testimony;
• Prescribe the manner, time,
location, and duration of any testimony
provided by deposition; and
• Impose any other condition deemed
to be in the best interests of the United
States.
Dates
We are publishing this rule without a
prior proposal because we view this
action as noncontroversial and
anticipate no adverse public comment.
This rule will be effective, as published
in this document, on April 29, 2022,
unless we receive written adverse
comments or written notice of intent to
submit adverse comments on or before
March 30, 2022.
Adverse comments are comments that
suggest the rule should not be adopted
or that suggest the rule should be
changed.
If we receive written adverse
comments or written notice of intent to
submit adverse comments, we will
publish a document in the Federal
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Register withdrawing this rule before
the effective date. We will then publish
a proposed rule for public comment.
If we receive no written adverse
comments or written notice of intent to
submit adverse comments within 30
days of publication of this direct final
rule, this direct final rule will become
effective 60 days following its
publication.
Executive Order 12866 and Regulatory
Flexibility Act
The Office of Management and Budget
has determined that this regulatory
action does not require a significance
designation under Executive Order
12866, Regulatory Planning and Review.
The regulations revised by this rule
relate to the internal management of
USDA insofar as they address the
receipt and handling of requests for the
production or disclosure of official
information in legal proceedings. As
such, it is for the use of Department
personnel only and is not intended to,
and does not, create any right or benefit,
substantive or procedural, enforceable at
law or in equity by any party against the
United States, its agencies or other
entities, its officers or employees, or any
other person. Therefore, we expect the
economic impact of this rule, if any, to
be minimal and, accordingly, this action
will not have a significant economic
impact on a substantial number of small
entities.
Paperwork Reduction Act
This rule contains no new reporting
or recordkeeping requirements under
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
PART 1—ADMINISTRATIVE
REGULATIONS
1. The authority citation for part 1
continues to read as follows:
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■
Authority: 5 U.S.C. 301, unless otherwise
noted.
2. Revise subpart K to read as follows:
Subpart K—Production or Disclosure
of Official Information in Legal
Proceedings
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Responsibilities of the Department
1.219 How will the Department process my
demand?
1.220 The Department’s considerations in
deciding whether to grant or deny a
demand.
1.221 In responding to my demand, what
conditions or restrictions may the
Department impose on the production of
official information or testimony relating
to official information?
1.222 Delegation authority for deciding
whether to grant or deny a demand.
Responsibilities of Department Employees
1.223 What must I, as an employee, do
upon receiving a demand?
1.224 What must I, as an employee, do
upon becoming aware that a court or
other authority has ordered compliance
with a demand?
§ 1.210
Administrative practice and
procedure, Antitrust, Claims,
Cooperatives, Courts, Equal access to
justice, Fraud, Freedom of information,
Government employees, Indemnity
payments, Lawyers, Motion pictures,
Penalties, Privacy.
Accordingly, we are amending 7 CFR
part 1 as follows:
Sec.
Responsibilities if Making a Demand
1.213 How can I obtain official information
or testimony relating to official
information in response to my demand?
1.214 What information must I include with
my demand?
1.215 How soon before I need the official
information or testimony relating to
official information should I submit my
demand?
1.216 If I serve a subpoena, must I also
submit information in accordance with
§ 1.214?
1.217 Where must I send my demand?
1.218 How much will I be charged?
General Information
List of Subjects in 7 CFR Part 1
■
General Information
1.210 What does this subpart cover?
1.211 Definitions that apply to this subpart.
1.212 What is the Department’s policy on
providing official information or
testimony relating to official information
in response to a demand?
What does this subpart cover?
(a) This subpart sets forth the
procedures to be followed with respect
to demands seeking official information
or employee testimony relating to
official information for use in a legal
proceeding.
(b) This subpart does not apply to:
(1) Congressional requests or
subpoenas for official information or
testimony relating to official
information;
(2) Federal court civil proceedings in
which the United States is a party;
(3) Federal administrative
proceedings in which the Department is
a party;
(4) The disclosure of official
information or testimony relating to
official information provided to other
Federal agencies, including United
States Department of Justice attorneys,
in connection with a legal proceeding
conducted on behalf of or in defense of
the United States or a legal proceeding
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in which the United States has an
interest; and
(5) Employees who testify, while on
their own time or in approved leave
status, as private citizens as to facts or
events that are not related to the official
business of the Department.
(c) Nothing in this subpart affects the
rights, procedures, or Department
regulations governing requests for, and
release of, records under the Freedom of
Information Act (FOIA, 5 U.S.C. 552),
the Privacy Act (5 U.S.C. 552a), or the
Government in the Sunshine Act (5
U.S.C. 552b).
(d) Nothing in this subpart affects
procedures governing requests for
authentication or certified copies of
records under § 1.10.
(e) Nothing in this subpart permits the
Department or employees to disclose
official in-formation or give testimony
relating to official information if the
disclosure or testimony is protected or
prohibited by statute or other applicable
law.
(f) This subpart only provides
guidance for the internal operations of
the Department, and neither creates nor
is intended to waive the sovereign
immunity of the United States or create
any enforceable right or benefit against
the United States.
§ 1.211 Definitions that apply to this
subpart.
For the purpose of this subpart:
(a) The term ‘‘demand’’ means any
effort or attempt to obtain, for use in a
legal proceeding, official information or
testimony relating to official
information, including any request,
order, subpoena, or other command, as
well as any informal or other attempt
(by any method) to obtain official
information, or testimony relating to
official information, by an attorney,
investigator, or others.
(b) The term ‘‘Department’’ means the
United States Department of
Agriculture, its constituent agencies,
and Department officials authorized to
decide whether to allow disclosures of
official information or testimony
relating to official information in
response to demands.
(c) The term ‘‘appropriate Department
official’’ means the head of a
Department agency or office.
(d) The term ‘‘employee’’ means all
employees or officers of the Department,
including individuals who are or have
been appointed by the Department, or
who are or have been subject to the
Department’s supervision, jurisdiction,
or control, including individuals hired
through contractual agreements by or on
behalf of the Department, or performing
services under such agreements for the
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Department, such as consultants,
contractors, subcontractors, and their
employees or other personnel. Also
included in the definition are former
Department employees where the
demand seeks testimony relating to
official information acquired while the
person was an employee of the
Department.
(e) The term ‘‘legal proceeding’’
means all pretrial, trial, and post-trial
stages of all existing or reasonably
anticipated judicial or administrative
actions, hearings, investigations, or
similar proceedings before courts,
commissions, boards, grand juries, or
other tribunals. This phrase includes all
phases of discovery as well as formal or
informal requests by attorneys or others
involved in legal proceedings.
(f) The term ‘‘Office of the General
Counsel’’ means the Office of the
General Counsel of the Department.
(g) The term ‘‘official information’’
means all information of any kind,
however stored, that is in the custody
and control of the Department or relates
to information in the custody and
control of the Department, or
information or knowledge acquired by a
Department employee as part of the
employee’s official duties or because of
the employee’s official status with the
Department.
(h) The term ‘‘testimony’’ means any
written or oral statement by an
employee, including personal
appearances in court or at depositions,
interviews, or informal inquiries in
person or by telephone, responses to
written interrogatories or other written
statements such as reports, declarations,
or affidavits, or any response involving
more than the de-livery of documents.
(i) The term ‘‘United States’’ means
the Federal Government, its
departments, and its agencies.
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§ 1.212 What is the Department’s policy on
providing official information or testimony
relating to official information in response
to a demand?
(a) It is the Department’s general
policy not to allow its employees to
provide official information or
testimony relating to official
information in response to a demand.
However, the Department will consider
a demand submitted in accordance with
this subpart and issue a decision to
grant or deny the demand.
(b) No employee may provide official
information or testimony relating to
official information in response to a
demand unless authorized by the
Department in accordance with this
subpart. See United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951). An
employee who fails to comply with this
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regulation may be subject to
disciplinary action up to and including
removal.
Responsibilities if Making a Demand
§ 1.213 How can I obtain official
information or testimony relating to official
information in response to my demand?
You must submit a demand in
accordance with this subpart (see
United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951)). The appropriate
Department official, in consultation
with the Office of the General Counsel,
will consider your demand in
accordance with this subpart. The
Counsel to the Inspector General will
consider and make any final
determinations regarding all demands
seeking official information or employee
testimony from the Office of Inspector
General.
§ 1.214 What information must I include
with my demand?
Your demand must include the
following information, if applicable:
(a) The caption of the legal proceeding
underlying your demand, including the
docket number and the name of the
court or other authority involved;
(b) The parties to the legal proceeding
underlying your demand and any
known relationships they have to the
Department’s mission or programs;
(c) A copy of the complaint or
equivalent document setting forth the
assertions in the legal proceeding
underlying your demand;
(d) The identity of the employee
whose testimony is sought and an
affidavit or declaration under 28 U.S.C.
1746 or, if such an affidavit or
declaration is not feasible, a written
statement by you or your attorney,
setting forth a reasonably detailed
summary of the testimony sought and
its relevance to the legal proceeding
underlying your demand. Any
authorization the Department decides to
grant for testimony by an employee
shall be limited to testimony within the
scope of the summary provided;
(e) If the demand seeks documents or
other materials to be obtained or
inspected, a de-scription of the official
information and the relevance to the
legal proceeding underlying your
demand;
(f) A written description of all prior
decisions, orders, or pending motions in
the legal proceeding underlying your
demand that bear on the relevance of
the official information or testimony
you seek;
(g) A showing that the desired official
information or testimony is not
reasonably available from any other
source, including a showing that no
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document could be provided and used
in lieu of testimony; and
(h) An explanation of how each of the
Department’s considerations set forth in
§ 1.220(a) apply to your demand.
§ 1.215 How soon before I need the official
information or testimony relating to official
information should I submit my demand?
You must submit your demand,
including all information identified in
§ 1.214, at least 14 calendar days before
the date when you need the official
information or testimony relating to
official information.
§ 1.216 If I serve a subpoena, must I also
submit information in accordance with
§ 1.214?
Yes. A subpoena shall be served in
accordance with the Federal Rules of
Civil Procedure, Federal Rules of
Criminal Procedure, or applicable state
procedure, as appropriate. If you serve
a subpoena, including a subpoena duces
tecum, together with the subpoena you
must also submit information in
accordance with § 1.214. If you serve a
subpoena on the Department or a
Department employee before submitting
information in accordance with § 1.214
of this subpart, the Department may
oppose the subpoena on the grounds
that you failed to follow the
requirements of this subpart.
§ 1.217
Where must I send my demand?
(a) Except for subpoenas served in
accordance with the Federal Rules of
Civil Procedure, Federal Rules of
Criminal Procedure, or applicable state
procedure as appropriate, you must
send your demand, including all
information required by § 1.214 of this
subpart, to:
(1) The Office of the General Counsel
at 1400 Independence Avenue SW,
Washington, DC 20250, Attention:
‘‘Touhy Demands,’’ or by electronic
mail to OGC_Touhy_Demands@
usda.gov; and
(2) The United States Department of
Agriculture agency office from which
the official information or testimony is
sought.
(b) Notwithstanding paragraph (a) of
this section, a demand for Office of
Inspector General information or
testimony must be sent to the Counsel
to the Inspector General, United States
Department of Agriculture, Attention:
‘‘Touhy Demands,’’ at 1400
Independence Avenue SW, Mail Stop
2308, Washington, DC 20250–2308; by
facsimile to (202) 690–1528; or by
electronic mail to OIG.TOUHYDEMANDS@oig.usda.gov.
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§ 1.218
How much will I be charged?
(a) In the event that a demand is
granted, the Department may charge
reasonable fees. The appropriate
Department official will determine all
fees, if any, associated with this subpart
and shall timely notify you of the fees,
particularly those that are to be paid in
advance.
(b) When a demand is granted under
this subchapter to permit an employee
to testify, you must pay the witness the
fee and expenses, including any travel
related costs, prescribed for attendance
by the applicable rule of court. If no
such fees are prescribed, the local
Federal district court rule relating to
witness fees for the Federal district
court closest to where the witness
appears will apply.
(c) When a demand is granted under
this subchapter to produce documents,
blueprints, electronic tapes, or other
official information, the fees to be
charged and paid prior to production
shall be calculated as provided in
Department regulations implementing
the fee provisions of the FOIA.
Responsibilities of the Department
§ 1.219 How will the Department process
my demand?
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(a) The appropriate Department
official, in consultation with the Office
of the General Counsel, will consider
your demand, and decide whether to
grant or deny it. An Office of the
General Counsel attorney or Department
official may negotiate with you or your
representative to refine or limit your
demand. All demands for Office of
Inspector General information or
testimony will be processed by the
Counsel to the Inspector General.
(b) Any decision in response to your
demand will be limited to the scope of
information requested in accordance
with the requirements of this subpart.
(c) If you fail to follow the
requirements of this subpart, the
Department may decide not to grant
your demand. If the Department
determines that your demand is not
complete, the Department may require
that you provide additional information
before your demand will be considered.
(d) If your demand is complete, the
Department will consider it by applying
the criteria under § 1.220.
§ 1.220 The Department’s considerations
in deciding whether to grant or deny a
demand.
(a) In deciding whether to grant or
deny a demand, the appropriate
Department official should consider the
following factors:
(1) Whether compliance with the
demand would be unduly burdensome,
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disproportionate to the needs of the
case, or otherwise inappropriate under
the applicable rules of discovery or
rules of procedure governing the legal
proceeding underlying the demand;
(2) Whether compliance with the
demand is appropriate under the
relevant substantive law concerning
privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time and
expense of Department employees for
the conduct of official business;
(5) The need to avoid spending the
time and money of the United States for
non-Federal government purposes;
(6) The need to maintain impartiality
between private litigants in cases in
which a substantial Department interest
is not implicated;
(7) Whether compliance with the
demand would have an adverse effect
on the Department’s mission and duties;
(8) The need to avoid involving the
Department in issues not related to its
mission; and
(9) Any other factor the Department
determines to be relevant to the interests
of the Department.
(b) A demand will not be granted if
the disclosure of official information or
employee testimony relating to official
information:
(1) Would violate a statute or a rule
of procedure;
(2) Would violate a regulation or
executive order;
(3) Would reveal information properly
classified in the interest of national
security;
(4) Would reveal confidential
commercial or financial information or
trade secrets in the absence of the
owner’s consent;
(5) Would reveal the internal
deliberative processes of the Executive
Branch or other privileged information;
or
(6) Would potentially impede or
prejudice an on-going law enforcement
investigation.
§ 1.221 In responding to my demand, what
conditions or restrictions may the
Department impose on the production of
official information or testimony relating to
official information?
In responding to a demand, the
Department may, at its discretion,
impose conditions or restrictions on the
production of official information or
testimony relating to official
information. Such conditions or
restrictions may include the following:
(a) A requirement that the parties to
the legal proceeding underlying your
demand obtain a protective order or
execute a confidentiality agreement to
limit access to, and limit any further
PO 00000
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Fmt 4700
Sfmt 4700
10929
disclosure of, official information or
testimony provided;
(b) A limitation on the subject matter
areas of the permitted testimony;
(c) A requirement that the manner,
time, location, and duration of any
testimony be prescribed by the
Department;
(d) A requirement that the parties to
the legal proceeding underlying your
demand agree that a transcript of the
permitted testimony be kept under seal
or will only be used or only made
available in the particular legal
proceeding underlying the demand;
(e) A requirement that you purchase
an extra copy of the transcript of the
employee’s testimony from the court
reporter and provide the Department
with a copy at your expense; or
(f) Any other condition or restriction
deemed to be in the best interests of the
United States.
§ 1.222 Delegation authority for deciding
whether to grant or deny a demand.
(a) Except as provided in paragraphs
(b), (c), or (d) of this section, the
appropriate department official may
delegate his or her responsibilities
under this subpart to employees of his
or her agency as follows:
(1) In the national office of the agency,
to a level no lower than two levels
below the agency head;
(2) In a field component of an agency,
to a level no lower than the official who
heads a state office.
(b) Notwithstanding paragraph (a) of
this section, the Chief of the Forest
Service may delegate his or her
responsibilities under this subpart as
follows:
(1) In the national office of the Forest
Service, to a level no lower than a
Deputy Chief of the Forest Service;
(2) In a field component of the Forest
Service, to a level no lower than a
Regional Forester or Station Director.
(c) Notwithstanding paragraph (a) of
this section, the General Counsel may
delegate his or her responsibilities
under this subpart as follows:
(1) In the national office of the Office
of the General Counsel, to a level no
lower than an Assistant General
Counsel;
(2) In the field component of the
Office of the General Counsel, to
Regional Attorneys who may redelegate
their responsibilities to Associate
Regional Attorneys and Assistant
Regional Attorneys who report to them.
(d) Notwithstanding paragraph (a) of
this section, the Counsel to the
Inspector General may delegate his or
her responsibility under this subpart to
the Deputy Counsel or an Assistant
Counsel.
E:\FR\FM\28FER1.SGM
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10930
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations
Responsibilities of Department
Employees
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
§ 1.223 What must I, as an employee, do
upon receiving a demand?
7 CFR Part 205
(a)(1) If you receive a demand, you
must immediately notify your
supervisor, who must in turn notify the
appropriate Department official. Either
your supervisor or the appropriate
Department official must notify the
Office of the General Counsel contact for
your region or division for assistance
with issuing the proper response.
(2) Demands for Office of Inspector
General official information or
testimony should be forwarded
immediately to the Counsel to the
Inspector General.
(b)(1) The appropriate Department
official will decide whether to grant or
deny the demand. Before a decision
granting or denying a demand is made,
the Office of the General Counsel
contact for your region or division must
be consulted for advice. All decisions
granting or denying a demand must be
in writing and must receive Office of the
General Counsel concurrence prior to
issuance. Absent Office of the General
Counsel concurrence, a demand
decision cannot be issued.
(2) The Counsel to the Inspector
General will decide whether to grant or
deny a demand for Office of Inspector
General information and testimony.
(c) In the event that the appropriate
Department official decides to deny the
demand, the decision shall state that
you are not authorized to provide
official information or testimony and, if
applicable, that you will not personally
appear in response to the demand.
khammond on DSKJM1Z7X2PROD with RULES
§ 1.224 What must I, as an employee, do
upon becoming aware that a court or other
authority has ordered compliance with a
demand?
(a) If you become aware that a court
or other authority has ordered
compliance with a demand, you must
promptly notify your supervisor, who
must in turn notify the Office of the
General Counsel for your region or
division.
(b) In the case of compliance orders
involving a demand for Office of
Inspector General information and
testimony, promptly forward them to
your supervisor and the Counsel to the
Inspector General.
Dated: September 2, 2021.
David Grahn,
Principal Deputy General Counsel, United
States Department of Agriculture.
[FR Doc. 2022–03880 Filed 2–25–22; 8:45 am]
16:12 Feb 25, 2022
RIN 0581–AD98
National Organic Program;
Amendments to the National List of
Allowed and Prohibited Substances
(2022 Sunset)
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
This final rule amends the
United States Department of
Agriculture’s (USDA) organic
regulations to implement
recommendations from the National
Organic Standards Board (NOSB). The
rule prohibits fourteen nonorganic
ingredients, which are currently
allowed in the manufacture of organic
processed products. The rule also
prohibits two substances (vitamin B1
and procaine), which are currently
allowed in organic crop and livestock
production. Finally, the rule renews an
allowance for two substances (oxytocin
and sucrose octanoate esters) in organic
production.
DATES:
Effective Date: This rule is effective
on March 30, 2022.
Compliance Dates: The compliance
date for the amendments that remove
vitamin B1 and procaine from the
National List is March 15, 2023. The
compliance date for all other
amendments that remove substances
from the National List is March 15,
2024. Products in the stream of
commerce after the compliance date that
are labeled as ‘‘organic’’ or ‘‘made with
organic (specified ingredients or food
group(s))’’ may contain substances
removed in this final rule if
manufactured prior to the compliance
date. The final rule renews an allowance
for two substances (oxytocin and
sucrose octanoate esters) in organic
production. This rule maintains the
current regulatory structure with regard
to these two substances upon
publication for up to five years.
FOR FURTHER INFORMATION CONTACT:
Jared Clark, Standards Division,
National Organic Program. Telephone:
(202) 720–3252 or Email: Jared.Clark@
usda.gov.
SUMMARY:
SUPPLEMENTARY INFORMATION:
BILLING CODE 3410–90–P
VerDate Sep<11>2014
[Document Number AMS–NOP–19–0106;
NOP–19–03]
Jkt 256001
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Frm 00006
Fmt 4700
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I. Background
On December 21, 2000, the Secretary
of Agriculture (‘‘Secretary’’) established
the Agricultural Marketing Service’s
(AMS) National Organic Program (NOP)
and the USDA organic regulations (65
FR 80547). Within the USDA organic
regulations (7 CFR part 205) is the
National List of Allowed and Prohibited
Substances (or ‘‘National List’’). The
National List identifies the synthetic
substances that may be used in organic
crop and livestock production as well as
the nonsynthetic (natural) substances
that may not be used. It also identifies
the nonorganic substances that may be
used in or on processed organic
products.
AMS is finalizing 16 amendments to
the National List in accordance with the
procedures detailed in the Organic
Foods Production Act of 1990 (OFPA) (7
U.S.C. 6501–6524). OFPA establishes
what may be included on the National
List and the procedures that the USDA
must follow to amend the National List
(7 U.S.C. 6517). OFPA also describes the
NOSB’s responsibilities in proposing
amendments to the National List,
including the criteria for evaluating
amendments to the National List (7
U.S.C. 6518).
To remain on the National List,
substances must be: (1) Reviewed every
five years by the NOSB, a 15-member
federal advisory committee; and (2)
renewed by the Secretary (7 U.S.C.
6517(e)). This action of NOSB review
and USDA renewal is commonly
referred to as the ‘‘sunset review’’ or
‘‘sunset process.’’ AMS published
information about this process in the
Federal Register on September 16, 2013
(78 FR 56811). The sunset date (i.e., the
date by which the Secretary must renew
a substance for the listing to remain
valid on the National List) for each
substance is included in the NOP
Program Handbook (document NOP
5611).
The removal of substances from the
National List addresses National
Organic Standards Board (NOSB)
recommendations submitted to the
Secretary after the conclusion of the
NOSB’s public meetings on October 29,
2015; November 2, 2017; October 26,
2018; and October 30, 2020.
During a 60-day comment period that
closed on October 25, 2021, AMS
received 60 comments on the proposed
rule. See below for a discussion of the
comments received and AMS’s
responses to comments. Comments on
the proposed rule can also be viewed
through Regulations.gov. Use the search
area on the homepage at https://
www.regulations.gov to enter a keyword,
E:\FR\FM\28FER1.SGM
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]]>Agencies
[Federal Register Volume 87, Number 39 (Monday, February 28, 2022)]
[Rules and Regulations]
[Pages 10925-10930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03880]
========================================================================
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.
========================================================================
Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 /
Rules and Regulations
[[Page 10925]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
[Docket No. USDA-2021-0009]
RIN 0503-AA74
Production or Disclosure of Official Information in Legal
Proceedings
AGENCY: Office of the Secretary, USDA.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: We are revising our regulations regarding the production or
disclosure of official information in legal proceedings (referred to as
Touhy regulations). These regulations are being updated to promote
consistent processing of Touhy requests among U.S. Department of
Agriculture (USDA or Department) agencies; clarify the responsibilities
of all parties in the Touhy process; and provide additional information
about criteria that USDA agencies should consider in the Touhy process.
DATES: This rule will be effective on April 29, 2022, unless we receive
written adverse comments or written notice of intent to submit adverse
comments on or before March 30, 2022. If we receive written adverse
comments or written notice of intent to submit adverse comments, we
will publish a document in the Federal Register withdrawing this rule
before the effective date.
ADDRESSES: You may submit comments or written notice of intent to
submit adverse comments using the Federal eRulemaking Portal. Go to
https://www.regulations.gov and search for docket number USDA-2021-0009.
FOR FURTHER INFORMATION CONTACT: Karen Carrington Fletcher, Senior
Counsel, Office of the General Counsel, USDA, 1400 Independence Ave.
SW, Room 103-W, Washington, DC 20250; [email protected]; (202)
720-0944.
SUPPLEMENTARY INFORMATION:
Background
Under 5 U.S.C. 301, the ``Housekeeping Statute,'' and in response
to a demand for official information that arises out of a legal
proceeding, many agencies have regulations governing the production of
official information and employee testimony relating to official
information. Known as Touhy regulations, these regulations usually
prohibit unauthorized disclosures of official information by employees.
These regulations also establish procedures for agencies responding to
subpoenas for official information or employee testimony relating to
official information. (See United States ex rel. v. Touhy v. Ragen, 340
U.S. 462 (1951)).
Currently, the Department's Touhy regulations are located at 7 CFR
part 1, subpart K (Sec. Sec. 1.210 to 1.219). Those regulations were
established in 1990 and have not been amended since 1993. This direct
final rule revises subpart K in its entirety, with the new regulations
spanning Sec. Sec. 1.210 through 1.224. The revised regulations are
presented in a question-and-answer format to enhance clarity and
readability.
The Department is amending its Touhy regulations to: (1) Promote
consistent processing of Touhy requests among USDA agencies; (2)
clarify the responsibilities of all parties in the Touhy process; and
(3) provide additional information about criteria that USDA agencies
should consider in the Touhy process. A discussion of certain specific
changes follows.
The revised regulations set forth the procedures to be followed
with respect to a demand seeking official information or employee
testimony relating to official information for use in a legal
proceeding. The revised regulations also set forth certain definitions
that were not used in the existing regulations. The revised regulations
define:
The term ``demand'' to mean any effort or attempt to
obtain, for use in a legal proceeding, official information or
testimony relating to official information, including any request,
order, subpoena, or other command, as well as any informal or other
attempt (by any method) to obtain official information, or testimony
relating to official information, by an attorney, investigator, or
others.
The term ``legal proceeding'' to mean all pretrial, trial,
and post-trial stages of all existing or reasonably anticipated
judicial or administrative actions, hearings, investigations, or
similar proceedings before courts, commissions, boards, grand juries,
or other tribunals. This phrase includes all phases of discovery as
well as formal or informal requests by attorneys or others involved in
legal proceedings.
The term ``official information'' to mean all information
of any kind, however stored, that is in the custody and control of the
Department or relates to information in the custody and control of the
Department, or information or knowledge acquired by a Department
employee as part of the employee's official duties or because of the
employee's official status with the Department.
The term ``Department'' to mean the United States
Department of Agriculture, its constituent agencies, and Department
officials authorized to decide whether to allow disclosures of official
information or testimony relating to official information in response
to a demand.
The term ``employee'' to mean all employees or officers of
the Department, including individuals who are or have been appointed by
the Department, or who are or have been subject to the Department's
supervision, jurisdiction, or control, including individuals hired
through contractual agreements by or on behalf of the Department, or
performing services under such agreements for the Department, such as
consultants, contractors, subcontractors, and their employees or other
personnel. Also included in the definition are former Department
employees where the demand seeks testimony relating to official
information acquired while the person was an employee of the
Department.
The term ``testimony'' to mean any written or oral
statement by an employee, including personal appearances in court or at
depositions, interviews, or informal inquiries in person or by
telephone, responses to written interrogatories or other written
statements such as reports, declarations, or affidavits, or any
response involving more than the delivery of documents.
The term ``appropriate Department official'' to mean the
head of a Department agency.
[[Page 10926]]
The term ``Office of the General Counsel'' to mean the
Office of the General Counsel of the Department.
The term ``United States'' to means the Federal
Government, its departments, and its agencies.
The revised regulations explicitly state that the following matters
are not covered by the regulations:
Congressional requests and subpoenas seeking official
information or employee testimony relating to official information;
Federal court civil proceedings in which the United States
is a party;
Federal administrative proceedings in which the Department
is a party;
The disclosure of official information or employee
testimony relating to official information provided to other Federal
agencies in connection with a legal proceeding conducted on behalf of
or in defense of the United States or a legal proceeding in which the
United States has an interest; and
Employees who testify on their own time or in approved
leave status as private citizens about facts or events that are
unrelated to official business.
The revised regulations outline the responsibilities for those
involved in the Touhy process, i.e., the parties submitting a demand to
Department agencies, Department employees who receive a demand, and
Department agencies deciding whether to grant or deny a demand.
Parties who submit a demand are to provide the following to the
Department:
Information about the underlying legal proceeding,
including copies of the complaint and any relevant pleadings;
The identity of the Department employee whose testimony is
sought and a detailed summary about the relevance of the employee's
testimony to the underlying legal proceeding;
If the demand seeks documents or other materials, a
description of the requested official information sought and a detailed
summary about its relevance to the underlying legal proceeding;
An explanation of the unavailability of the requested
official information or employee testimony through other sources; and
An explanation of how each of the factors set forth in 7
CFR 1.220(a) apply to their demand.
The revised regulations require that this information must be
submitted at least 14 calendar days before the official information or
employee testimony is needed and further require the submission of the
above information even if parties serve a subpoena on the Department or
a Department employee. A demand may not be granted if a party fails to
follow the instructions set forth in the regulations.
Department employees who receive a demand are to:
Inform their supervisors about the demand so the
supervisors may inform an appropriate Department official and the
Office of the General Counsel; and
If appropriate Department officials deny the demand in
accordance with the requirements of this regulation, refrain from
providing official information and/or testimony in response to the
demand.
Employees may be subject to disciplinary action, including
termination, if they provide official information or testimony relating
to official information pursuant to a demand without approval from
appropriate Department officials.
The revised regulations provide that the Department will consider
the following criteria when evaluating a demand:
Whether complying with the demand would be unduly
burdensome, disproportionate to the needs of the case, or otherwise
inappropriate under the applicable rules of discovery or rules of
procedure governing the legal proceeding underlying the demand;
Whether complying with the demand is appropriate under the
relevant substantive law concerning privilege or disclosure of
information;
The public interest;
The need to conserve the time and expense of Department
employees for conducting official business;
The need to avoid spending the resources of the United
States for non-Federal government purposes;
The need to maintain impartiality between private
litigants in cases in which a substantial Department interest is not
involved;
Whether complying with the demand would adversely affect
the Department's mission and duties;
The need to avoid involving the Department in issues
unrelated to its mission; and
Any other factor relevant to the interests of the
Department.
In comparison with the existing regulations, the above-referenced
factors provide additional detail regarding the considerations that the
Department will weigh in deciding whether to grant or deny a demand.
The existing regulations list only three factors for Department
officials to consider in determining whether to authorize an employee's
appearance in a legal proceeding where the Government is not a party.
These above-referenced factors apply to all demands for official
information or testimony relating to official information.
The revised regulations provide that a demand will be denied if a
Department official determines that producing employee testimony or
official information would result in:
Violating a statute, rule of procedure, regulation, or
executive order;
Revealing classified information;
Revealing confidential commercial or financial information
or trade secrets without the owner's consent;
Revealing the internal deliberative processes of the
Executive Branch or other privileged information; or
Potentially impeding or prejudicing an on-going law
enforcement investigation.
The revised regulations clarify the role of USDA's Office of the
General Counsel (OGC) and Counsel to the Inspector General in the Touhy
process and describe how OGC may interact with a party that submits a
demand. The proposed regulations also ensure that OGC reviews and
concurs with any Touhy decision.
Finally, the revised regulations set forth conditions that the
Department may place on producing official information or authorizing
employee testimony in response to a demand. Specifically, the
Department may:
Require the parties in the legal proceeding underlying the
demand obtain a protective order or execute a confidentiality agreement
to limit access to the official information or testimony provided;
Limit the scope of the subject matter areas of the
permitted testimony;
Prescribe the manner, time, location, and duration of any
testimony provided by deposition; and
Impose any other condition deemed to be in the best
interests of the United States.
Dates
We are publishing this rule without a prior proposal because we
view this action as noncontroversial and anticipate no adverse public
comment. This rule will be effective, as published in this document, on
April 29, 2022, unless we receive written adverse comments or written
notice of intent to submit adverse comments on or before March 30,
2022.
Adverse comments are comments that suggest the rule should not be
adopted or that suggest the rule should be changed.
If we receive written adverse comments or written notice of intent
to submit adverse comments, we will publish a document in the Federal
[[Page 10927]]
Register withdrawing this rule before the effective date. We will then
publish a proposed rule for public comment.
If we receive no written adverse comments or written notice of
intent to submit adverse comments within 30 days of publication of this
direct final rule, this direct final rule will become effective 60 days
following its publication.
Executive Order 12866 and Regulatory Flexibility Act
The Office of Management and Budget has determined that this
regulatory action does not require a significance designation under
Executive Order 12866, Regulatory Planning and Review.
The regulations revised by this rule relate to the internal
management of USDA insofar as they address the receipt and handling of
requests for the production or disclosure of official information in
legal proceedings. As such, it is for the use of Department personnel
only and is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party
against the United States, its agencies or other entities, its officers
or employees, or any other person. Therefore, we expect the economic
impact of this rule, if any, to be minimal and, accordingly, this
action will not have a significant economic impact on a substantial
number of small entities.
Paperwork Reduction Act
This rule contains no new reporting 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, Antitrust, Claims,
Cooperatives, Courts, Equal access to justice, Fraud, Freedom of
information, Government employees, Indemnity payments, Lawyers, Motion
pictures, Penalties, Privacy.
Accordingly, we are amending 7 CFR part 1 as follows:
PART 1--ADMINISTRATIVE REGULATIONS
0
1. The authority citation for part 1 continues to read as follows:
Authority: 5 U.S.C. 301, unless otherwise noted.
0
2. Revise subpart K to read as follows:
Subpart K--Production or Disclosure of Official Information in
Legal Proceedings
Sec.
General Information
1.210 What does this subpart cover?
1.211 Definitions that apply to this subpart.
1.212 What is the Department's policy on providing official
information or testimony relating to official information in
response to a demand?
Responsibilities if Making a Demand
1.213 How can I obtain official information or testimony relating to
official information in response to my demand?
1.214 What information must I include with my demand?
1.215 How soon before I need the official information or testimony
relating to official information should I submit my demand?
1.216 If I serve a subpoena, must I also submit information in
accordance with Sec. 1.214?
1.217 Where must I send my demand?
1.218 How much will I be charged?
Responsibilities of the Department
1.219 How will the Department process my demand?
1.220 The Department's considerations in deciding whether to grant
or deny a demand.
1.221 In responding to my demand, what conditions or restrictions
may the Department impose on the production of official information
or testimony relating to official information?
1.222 Delegation authority for deciding whether to grant or deny a
demand.
Responsibilities of Department Employees
1.223 What must I, as an employee, do upon receiving a demand?
1.224 What must I, as an employee, do upon becoming aware that a
court or other authority has ordered compliance with a demand?
General Information
Sec. 1.210 What does this subpart cover?
(a) This subpart sets forth the procedures to be followed with
respect to demands seeking official information or employee testimony
relating to official information for use in a legal proceeding.
(b) This subpart does not apply to:
(1) Congressional requests or subpoenas for official information or
testimony relating to official information;
(2) Federal court civil proceedings in which the United States is a
party;
(3) Federal administrative proceedings in which the Department is a
party;
(4) The disclosure of official information or testimony relating to
official information provided to other Federal agencies, including
United States Department of Justice attorneys, in connection with a
legal proceeding conducted on behalf of or in defense of the United
States or a legal proceeding in which the United States has an
interest; and
(5) Employees who testify, while on their own time or in approved
leave status, as private citizens as to facts or events that are not
related to the official business of the Department.
(c) Nothing in this subpart affects the rights, procedures, or
Department regulations governing requests for, and release of, records
under the Freedom of Information Act (FOIA, 5 U.S.C. 552), the Privacy
Act (5 U.S.C. 552a), or the Government in the Sunshine Act (5 U.S.C.
552b).
(d) Nothing in this subpart affects procedures governing requests
for authentication or certified copies of records under Sec. 1.10.
(e) Nothing in this subpart permits the Department or employees to
disclose official in-formation or give testimony relating to official
information if the disclosure or testimony is protected or prohibited
by statute or other applicable law.
(f) This subpart only provides guidance for the internal operations
of the Department, and neither creates nor is intended to waive the
sovereign immunity of the United States or create any enforceable right
or benefit against the United States.
Sec. 1.211 Definitions that apply to this subpart.
For the purpose of this subpart:
(a) The term ``demand'' means any effort or attempt to obtain, for
use in a legal proceeding, official information or testimony relating
to official information, including any request, order, subpoena, or
other command, as well as any informal or other attempt (by any method)
to obtain official information, or testimony relating to official
information, by an attorney, investigator, or others.
(b) The term ``Department'' means the United States Department of
Agriculture, its constituent agencies, and Department officials
authorized to decide whether to allow disclosures of official
information or testimony relating to official information in response
to demands.
(c) The term ``appropriate Department official'' means the head of
a Department agency or office.
(d) The term ``employee'' means all employees or officers of the
Department, including individuals who are or have been appointed by the
Department, or who are or have been subject to the Department's
supervision, jurisdiction, or control, including individuals hired
through contractual agreements by or on behalf of the Department, or
performing services under such agreements for the
[[Page 10928]]
Department, such as consultants, contractors, subcontractors, and their
employees or other personnel. Also included in the definition are
former Department employees where the demand seeks testimony relating
to official information acquired while the person was an employee of
the Department.
(e) The term ``legal proceeding'' means all pretrial, trial, and
post-trial stages of all existing or reasonably anticipated judicial or
administrative actions, hearings, investigations, or similar
proceedings before courts, commissions, boards, grand juries, or other
tribunals. This phrase includes all phases of discovery as well as
formal or informal requests by attorneys or others involved in legal
proceedings.
(f) The term ``Office of the General Counsel'' means the Office of
the General Counsel of the Department.
(g) The term ``official information'' means all information of any
kind, however stored, that is in the custody and control of the
Department or relates to information in the custody and control of the
Department, or information or knowledge acquired by a Department
employee as part of the employee's official duties or because of the
employee's official status with the Department.
(h) The term ``testimony'' means any written or oral statement by
an employee, including personal appearances in court or at depositions,
interviews, or informal inquiries in person or by telephone, responses
to written interrogatories or other written statements such as reports,
declarations, or affidavits, or any response involving more than the
de-livery of documents.
(i) The term ``United States'' means the Federal Government, its
departments, and its agencies.
Sec. 1.212 What is the Department's policy on providing official
information or testimony relating to official information in response
to a demand?
(a) It is the Department's general policy not to allow its
employees to provide official information or testimony relating to
official information in response to a demand. However, the Department
will consider a demand submitted in accordance with this subpart and
issue a decision to grant or deny the demand.
(b) No employee may provide official information or testimony
relating to official information in response to a demand unless
authorized by the Department in accordance with this subpart. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). An employee
who fails to comply with this regulation may be subject to disciplinary
action up to and including removal.
Responsibilities if Making a Demand
Sec. 1.213 How can I obtain official information or testimony
relating to official information in response to my demand?
You must submit a demand in accordance with this subpart (see
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)). The
appropriate Department official, in consultation with the Office of the
General Counsel, will consider your demand in accordance with this
subpart. The Counsel to the Inspector General will consider and make
any final determinations regarding all demands seeking official
information or employee testimony from the Office of Inspector General.
Sec. 1.214 What information must I include with my demand?
Your demand must include the following information, if applicable:
(a) The caption of the legal proceeding underlying your demand,
including the docket number and the name of the court or other
authority involved;
(b) The parties to the legal proceeding underlying your demand and
any known relationships they have to the Department's mission or
programs;
(c) A copy of the complaint or equivalent document setting forth
the assertions in the legal proceeding underlying your demand;
(d) The identity of the employee whose testimony is sought and an
affidavit or declaration under 28 U.S.C. 1746 or, if such an affidavit
or declaration is not feasible, a written statement by you or your
attorney, setting forth a reasonably detailed summary of the testimony
sought and its relevance to the legal proceeding underlying your
demand. Any authorization the Department decides to grant for testimony
by an employee shall be limited to testimony within the scope of the
summary provided;
(e) If the demand seeks documents or other materials to be obtained
or inspected, a de-scription of the official information and the
relevance to the legal proceeding underlying your demand;
(f) A written description of all prior decisions, orders, or
pending motions in the legal proceeding underlying your demand that
bear on the relevance of the official information or testimony you
seek;
(g) A showing that the desired official information or testimony is
not reasonably available from any other source, including a showing
that no document could be provided and used in lieu of testimony; and
(h) An explanation of how each of the Department's considerations
set forth in Sec. 1.220(a) apply to your demand.
Sec. 1.215 How soon before I need the official information or
testimony relating to official information should I submit my demand?
You must submit your demand, including all information identified
in Sec. 1.214, at least 14 calendar days before the date when you need
the official information or testimony relating to official information.
Sec. 1.216 If I serve a subpoena, must I also submit information in
accordance with Sec. 1.214?
Yes. A subpoena shall be served in accordance with the Federal
Rules of Civil Procedure, Federal Rules of Criminal Procedure, or
applicable state procedure, as appropriate. If you serve a subpoena,
including a subpoena duces tecum, together with the subpoena you must
also submit information in accordance with Sec. 1.214. If you serve a
subpoena on the Department or a Department employee before submitting
information in accordance with Sec. 1.214 of this subpart, the
Department may oppose the subpoena on the grounds that you failed to
follow the requirements of this subpart.
Sec. 1.217 Where must I send my demand?
(a) Except for subpoenas served in accordance with the Federal
Rules of Civil Procedure, Federal Rules of Criminal Procedure, or
applicable state procedure as appropriate, you must send your demand,
including all information required by Sec. 1.214 of this subpart, to:
(1) The Office of the General Counsel at 1400 Independence Avenue
SW, Washington, DC 20250, Attention: ``Touhy Demands,'' or by
electronic mail to [email protected]; and
(2) The United States Department of Agriculture agency office from
which the official information or testimony is sought.
(b) Notwithstanding paragraph (a) of this section, a demand for
Office of Inspector General information or testimony must be sent to
the Counsel to the Inspector General, United States Department of
Agriculture, Attention: ``Touhy Demands,'' at 1400 Independence Avenue
SW, Mail Stop 2308, Washington, DC 20250-2308; by facsimile to (202)
690-1528; or by electronic mail to [email protected].
[[Page 10929]]
Sec. 1.218 How much will I be charged?
(a) In the event that a demand is granted, the Department may
charge reasonable fees. The appropriate Department official will
determine all fees, if any, associated with this subpart and shall
timely notify you of the fees, particularly those that are to be paid
in advance.
(b) When a demand is granted under this subchapter to permit an
employee to testify, you must pay the witness the fee and expenses,
including any travel related costs, prescribed for attendance by the
applicable rule of court. If no such fees are prescribed, the local
Federal district court rule relating to witness fees for the Federal
district court closest to where the witness appears will apply.
(c) When a demand is granted under this subchapter to produce
documents, blueprints, electronic tapes, or other official information,
the fees to be charged and paid prior to production shall be calculated
as provided in Department regulations implementing the fee provisions
of the FOIA.
Responsibilities of the Department
Sec. 1.219 How will the Department process my demand?
(a) The appropriate Department official, in consultation with the
Office of the General Counsel, will consider your demand, and decide
whether to grant or deny it. An Office of the General Counsel attorney
or Department official may negotiate with you or your representative to
refine or limit your demand. All demands for Office of Inspector
General information or testimony will be processed by the Counsel to
the Inspector General.
(b) Any decision in response to your demand will be limited to the
scope of information requested in accordance with the requirements of
this subpart.
(c) If you fail to follow the requirements of this subpart, the
Department may decide not to grant your demand. If the Department
determines that your demand is not complete, the Department may require
that you provide additional information before your demand will be
considered.
(d) If your demand is complete, the Department will consider it by
applying the criteria under Sec. 1.220.
Sec. 1.220 The Department's considerations in deciding whether to
grant or deny a demand.
(a) In deciding whether to grant or deny a demand, the appropriate
Department official should consider the following factors:
(1) Whether compliance with the demand would be unduly burdensome,
disproportionate to the needs of the case, or otherwise inappropriate
under the applicable rules of discovery or rules of procedure governing
the legal proceeding underlying the demand;
(2) Whether compliance with the demand is appropriate under the
relevant substantive law concerning privilege or disclosure of
information;
(3) The public interest;
(4) The need to conserve the time and expense of Department
employees for the conduct of official business;
(5) The need to avoid spending the time and money of the United
States for non-Federal government purposes;
(6) The need to maintain impartiality between private litigants in
cases in which a substantial Department interest is not implicated;
(7) Whether compliance with the demand would have an adverse effect
on the Department's mission and duties;
(8) The need to avoid involving the Department in issues not
related to its mission; and
(9) Any other factor the Department determines to be relevant to
the interests of the Department.
(b) A demand will not be granted if the disclosure of official
information or employee testimony relating to official information:
(1) Would violate a statute or a rule of procedure;
(2) Would violate a regulation or executive order;
(3) Would reveal information properly classified in the interest of
national security;
(4) Would reveal confidential commercial or financial information
or trade secrets in the absence of the owner's consent;
(5) Would reveal the internal deliberative processes of the
Executive Branch or other privileged information; or
(6) Would potentially impede or prejudice an on-going law
enforcement investigation.
Sec. 1.221 In responding to my demand, what conditions or
restrictions may the Department impose on the production of official
information or testimony relating to official information?
In responding to a demand, the Department may, at its discretion,
impose conditions or restrictions on the production of official
information or testimony relating to official information. Such
conditions or restrictions may include the following:
(a) A requirement that the parties to the legal proceeding
underlying your demand obtain a protective order or execute a
confidentiality agreement to limit access to, and limit any further
disclosure of, official information or testimony provided;
(b) A limitation on the subject matter areas of the permitted
testimony;
(c) A requirement that the manner, time, location, and duration of
any testimony be prescribed by the Department;
(d) A requirement that the parties to the legal proceeding
underlying your demand agree that a transcript of the permitted
testimony be kept under seal or will only be used or only made
available in the particular legal proceeding underlying the demand;
(e) A requirement that you purchase an extra copy of the transcript
of the employee's testimony from the court reporter and provide the
Department with a copy at your expense; or
(f) Any other condition or restriction deemed to be in the best
interests of the United States.
Sec. 1.222 Delegation authority for deciding whether to grant or
deny a demand.
(a) Except as provided in paragraphs (b), (c), or (d) of this
section, the appropriate department official may delegate his or her
responsibilities under this subpart to employees of his or her agency
as follows:
(1) In the national office of the agency, to a level no lower than
two levels below the agency head;
(2) In a field component of an agency, to a level no lower than the
official who heads a state office.
(b) Notwithstanding paragraph (a) of this section, the Chief of the
Forest Service may delegate his or her responsibilities under this
subpart as follows:
(1) In the national office of the Forest Service, to a level no
lower than a Deputy Chief of the Forest Service;
(2) In a field component of the Forest Service, to a level no lower
than a Regional Forester or Station Director.
(c) Notwithstanding paragraph (a) of this section, the General
Counsel may delegate his or her responsibilities under this subpart as
follows:
(1) In the national office of the Office of the General Counsel, to
a level no lower than an Assistant General Counsel;
(2) In the field component of the Office of the General Counsel, to
Regional Attorneys who may redelegate their responsibilities to
Associate Regional Attorneys and Assistant Regional Attorneys who
report to them.
(d) Notwithstanding paragraph (a) of this section, the Counsel to
the Inspector General may delegate his or her responsibility under this
subpart to the Deputy Counsel or an Assistant Counsel.
[[Page 10930]]
Responsibilities of Department Employees
Sec. 1.223 What must I, as an employee, do upon receiving a demand?
(a)(1) If you receive a demand, you must immediately notify your
supervisor, who must in turn notify the appropriate Department
official. Either your supervisor or the appropriate Department official
must notify the Office of the General Counsel contact for your region
or division for assistance with issuing the proper response.
(2) Demands for Office of Inspector General official information or
testimony should be forwarded immediately to the Counsel to the
Inspector General.
(b)(1) The appropriate Department official will decide whether to
grant or deny the demand. Before a decision granting or denying a
demand is made, the Office of the General Counsel contact for your
region or division must be consulted for advice. All decisions granting
or denying a demand must be in writing and must receive Office of the
General Counsel concurrence prior to issuance. Absent Office of the
General Counsel concurrence, a demand decision cannot be issued.
(2) The Counsel to the Inspector General will decide whether to
grant or deny a demand for Office of Inspector General information and
testimony.
(c) In the event that the appropriate Department official decides
to deny the demand, the decision shall state that you are not
authorized to provide official information or testimony and, if
applicable, that you will not personally appear in response to the
demand.
Sec. 1.224 What must I, as an employee, do upon becoming aware that
a court or other authority has ordered compliance with a demand?
(a) If you become aware that a court or other authority has ordered
compliance with a demand, you must promptly notify your supervisor, who
must in turn notify the Office of the General Counsel for your region
or division.
(b) In the case of compliance orders involving a demand for Office
of Inspector General information and testimony, promptly forward them
to your supervisor and the Counsel to the Inspector General.
Dated: September 2, 2021.
David Grahn,
Principal Deputy General Counsel, United States Department of
Agriculture.
[FR Doc. 2022-03880 Filed 2-25-22; 8:45 am]
BILLING CODE 3410-90-P
