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.

Rules and Regulations Federal Register

10925 

Vol. 87, No. 39 

Monday, February 28, 2022 

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 http://

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. 

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. 

• 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. 

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 

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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Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 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 

■ 1. The authority citation for part 1 

continues to read as follows: 

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 

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 

§ 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 

§ 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 § 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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10928 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

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. 

§ 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 

§ 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 

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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Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 10929 

§ 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? 

(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, 

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 

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. 


khammond on DSKJM1Z7X2PROD with RULES
10930 Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 / Rules and Regulations 

Responsibilities of Department 

Employees 

§ 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. 

§ 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 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 205 

[Document Number AMS–NOP–19–0106; 

NOP–19–03] 

RIN 0581–AD98 

National Organic Program; 

Amendments to the National List of 

Allowed and Prohibited Substances 

(2022 Sunset) 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: 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. 

SUPPLEMENTARY INFORMATION: 

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, 


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