[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]



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Rules and Regulations
                                                Federal Register
________________________________________________________________________

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

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

========================================================================


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 
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; <a href="/cdn-cgi/l/email-protection#167d7764737838707a7362757e7364566365727738717960"><span class="__cf_email__" data-cfemail="afc4ceddcac181c9c3cadbccc7caddefdadccbce81c8c0d9">[email protected]</span></a>; (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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> The term ``appropriate Department official'' to mean the 
head of a Department agency.

[[Page 10926]]

    <bullet> The term ``Office of the General Counsel'' to mean the 
Office of the General Counsel of the Department.
    <bullet> 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:
    <bullet> Congressional requests and subpoenas seeking official 
information or employee testimony relating to official information;
    <bullet> Federal court civil proceedings in which the United States 
is a party;
    <bullet> Federal administrative proceedings in which the Department 
is a party;
    <bullet> 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
    <bullet> 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:
    <bullet> Information about the underlying legal proceeding, 
including copies of the complaint and any relevant pleadings;
    <bullet> 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;
    <bullet> 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;
    <bullet> An explanation of the unavailability of the requested 
official information or employee testimony through other sources; and
    <bullet> 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:
    <bullet> Inform their supervisors about the demand so the 
supervisors may inform an appropriate Department official and the 
Office of the General Counsel; and
    <bullet> 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:
    <bullet> 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;
    <bullet> Whether complying with the demand is appropriate under the 
relevant substantive law concerning privilege or disclosure of 
information;
    <bullet> The public interest;
    <bullet> The need to conserve the time and expense of Department 
employees for conducting official business;
    <bullet> The need to avoid spending the resources of the United 
States for non-Federal government purposes;
    <bullet> The need to maintain impartiality between private 
litigants in cases in which a substantial Department interest is not 
involved;
    <bullet> Whether complying with the demand would adversely affect 
the Department's mission and duties;
    <bullet> The need to avoid involving the Department in issues 
unrelated to its mission; and
    <bullet> 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:
    <bullet> Violating a statute, rule of procedure, regulation, or 
executive order;
    <bullet> Revealing classified information;
    <bullet> Revealing confidential commercial or financial information 
or trade secrets without the owner's consent;
    <bullet> Revealing the internal deliberative processes of the 
Executive Branch or other privileged information; or
    <bullet> 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:
    <bullet> 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;
    <bullet> Limit the scope of the subject matter areas of the 
permitted testimony;
    <bullet> Prescribe the manner, time, location, and duration of any 
testimony provided by deposition; and
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#b1fef6f2eee5dec4d9c8eef5d4dcd0dfd5c2f1c4c2d5d09fd6dec7"><span class="__cf_email__" data-cfemail="e1aea6a2beb58e948998bea5848c808f8592a194928580cf868e97">[email protected]</span></a>; 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 <a href="/cdn-cgi/l/email-protection#2f606668017b607a6776026b6a626e616b7c6f404648015a5c4b4e01484059"><span class="__cf_email__" data-cfemail="652a2c224b312a302d3c48212028242b2136250a0c024b101601044b020a13">[email protected]</span></a>.

[[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


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