§ 2.6 Testimony of employees.

(a) An officer or employee of the Department shall not testify in any judicial or administrative proceeding concerning matters related to the business of the Government without the permission of the head of the bureau, or his designee, or of the Secretary of the Interior, or his designee. If the head of a bureau, or his designee, concludes that permission should be withheld, he shall report the matter immediately to the Solicitor for a determination, and the officer or employee shall appear in answer to process and respectfully decline to testify, pending the receipt of instructions from the Secretary on the ground that testimony is prohibited by the regulations in this part. Pending instructions from the Secretary, or his designee, an officer or employee in the Office of the Secretary shall follow the same procedure.

(b) Any person (including a public agency) wishing an officer or employee of the Department to testify in a judicial or administrative proceeding concerning a matter related to the business of the Government may be required to submit a statement setting forth the interest of the litigant and the information with respect to which the testimony of the officer or employee of the Department is desired, before permission to testify will be granted under this section.

(c) The Solicitor of the Department of the Interior and the Deputy Solicitor may exercise all of the authority of the Secretary of the Interior under this section.

§2.7 Definition.

As used in the regulations in this part, the term "bureau" includes the other Departmental offices.

32 F.R. 9974
July 7, 1967

43 CFR 2.1

DEPARTMENT OF AGRICULTURE

§ 1.2 Request for examination or copy of records.

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

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

§1.3 Authentication.

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

§ 1.4 Restrictions on availability.

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

(i) Matters specifically required by Executive order to be kept secret ; (ii) Matters related solely to the internal personnel rules and practices of the Department;

(iii) Matters specifically exempted from disclosure by statute;

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

(v) Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Department;

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

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

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

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

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

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

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

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

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

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

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

§ 1.5 Compulsory process.

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

(b) Demand before court or other authority for records or information exempt from disclosure. Whenever a demand of the type described in paragraph (a) of this section is made upon an employee of this Department by a court or other authority while he is apearing before, or is otherwise in the presence of the court or other authority, the employee, or other appropriate Government official or attorney acting on behalf of the employee, shall (1) immediately inform the court or other authority that this section prohibits the employee from producing or disclosing the information or material demanded without the prior approval of the agency head or the Secretary of Agriculture, and (2) offer

to refer the demand for the prompt consideration of the agency head or the Secretary of Agriculture. Unless the court or other authority withdraws the demand, the employee, or other appropriate Government official or attorney, shall provide the court or other authority a copy of the regulations prescribed by this subpart and shall respectfully request the court or other authority to stay the demand pending the receipt of instructions or directions from the agency head or the Secretary of Agriculture concerning the demand.

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

§ 1.6 Records in formal adjudication and formal rule-making proceedings.

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

ORGANIZATION, FUNCTIONS, AND AVAILABILITY OF INFORMATION

Notice is hereby given for the guidance of the general public as to the organization, functions, and availability of information of the Office of the Secretary, U.S. Department of Agriculture, pursuant to 5 U.S.C. 552, 559.

SECTION 1. Organization and functions. The Office of the Secretary, U.S. Department of Agriculture, consists of the Secretary, Under Secretary, and Assistant Secretaries of Agriculture, and other staff members. The Office of the Secretary provides the overall policy guidance and direction of the activities of the Department of Agriculture. Overall policy statements and announcements are made from this Office.

The Office of the Secretary is located in Washington, D.C. Hours of duty are from 9 a.m. to 5:30 p.m.

SEC. 2. Availability of internal directives. Internal administrative and program directives of the Office of the Secretary are available for public inspection and copying except as may be exempt under section 3. An index to such material is also available for inspection and copying. Facilities for inspection and copying are available in the Administration Building, U.S. Department of Agriculture, Washington, D.C. Arrangements for such may be made by contacting the Chief, Secretary's Records and Communications Division, Office of Plant and Operations, U.S. Department of Agriculture, either in person or by mail. Applicable fees are prescribed by the Director, Office of Plant and Operations.

SEC. 3. Availability of identifiable records. All records of the Office of the Secretary are available for inspection and copying except exempt records, which include the following:

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

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

(c) Matters specifically exempt from disclosure by statute;

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

(e) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the Department: (f) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; and

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

SEC. 4. Requests for records. Requests for Office of the Secretary records may be made in writing or in person to the Chief, Secretary's Records and Communications Division, Office of Plant and Operations, Administration Building, U.S. Department of Agriculture, Washington, D.C. 20250. Each request shall be reasonably specific in order to properly identify the record(s) sought.

SEC. 5. Determination. The Chief, Secretary's Records and Communications Division, shall make records available when requested in accordance with section 4, unless he determines that it is an exempt record. The Chief, Secretary's Records and Communications Division, shall give written notice of any such determination, together with the reasons therefor.

SEC. 6. Appeals. A denial by the Chief, Secretary's Records and Communications Division, for an Office of the Secretary record or records may be appealed, by the person who made the request, to the Assistant Secretary of Agriculture for Administration. The appeal shall be made in writing within 15 days of the date of the notice of denial. The Assistant Secretary will give written notice of the final determination of the Office of the Secretary.

SEC. 7. Inspection and copies. A person requesting available records may inspect them and, upon payment of applicable fees, copy them, in the Office of the Chief, Secretary's Records and Communications Division, on business days from 9:30 a.m. to 5 p.m. Copies of such records may also be purchased by mail. The applicable fees are prescribed by the Director, Office of Plant and Operations, U.S. Department of Agriculture.

32 F.R. 10118
July 8, 1967

AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE (Department of Agriculture)

§ 798.1 Records available to the public.

All ASCS records, unless exempted from disclosure by departmental regulations, shall be available to the general public. Records shall be available upon their creation (that is, when they are approved by proper authority or published) except where premature disclosure would constitute an unwarranted invasion of personal privacy, a violation of confidence, or would substantially prejudice effective performance of the program involved. The following are illustrative of records which shall be available some time after their creation:

(a) Records which shall be available as specified. (1) Information on the extent of price-support activity, such as the total amount of a commodity placed under loan for a particular period, shall be available after a national press release for the period has been issued. The national release is normally issued about the 20th of each month covering the activities up to the end of the preceding month.

(2) Commodity Credit Corporation (hereinafter referred to as CCC) pricesupport dockets shall be available after public announcement of the program has been made. ("Docket" means the several basic documents submitted to the CCC Board of Directors for their action.)

(3) CCC supply dockets shall be available after termination of purchase activity.

(4) CCC dockets involving programs under Titles I and II of Public Law 480, 83d Congress, as amended, shall be available after the program is terminated. (5) Records of the quantities and prices paid for grain sold from CCC stocks shall be available after one intervening market trading session.

(6) Records on commodity programs which would affect the markets shall be available after the markets close.

(b) Records which shall be available after 30 days. (1) The amount of any payment or loan to a farmer.

(2) Prices paid by individual buyers for cotton from CCC stocks.

(3) Names of successful bidders for grain from CCC stocks.

(4) Notices of sale submitted by exporters.

(5) Various reports compiled from the Daily Report of Wheat Sales Registered for Export.

§ 798.2 Index.

ASCS shall maintain for public inspection and copying an index of directives, CCC Board dockets, CCC Contract Disputes Board decisions, and Marketing Quota Review Committee determinations. "Directives" include such records as

handbooks, notices, and checklists issued by national and field offices, numbered Administrator's Memos, and bin site directories.

§ 798.3 Records not available to the public.

The following records are illustrative of records which shall not be made available to the public unless the Administrator, ASCS (Executive Vice President, CCC) in an individual case, where disclosure is not prohibited by Executive order or statute, determines that the disclosure will not adversely affect the national interest or constitute an unwarranted invasion of individual privacy:

(a) Information furnished in confidence by persons, including sugar processors and growers, wool producers, warehousemen, producer associations, and dealers to assist ASCS or CCC in formulating and operating programs involving these groups.

(b) Trade secrets and commercial or financial information furnished by any person incident to entering into a contract, or securing a loan, or transacting other business with ASCS or CCC.

(c) Bid documents on formal procurement contracts. (Abstract of bids is available to the public.)

(d) Working papers, preliminary drafts, internal correspondence, corrections, estimates, projections, economic analyses and budgetary planning documents involved with formulation of budget requests, CCC Board dockets, and plans for activities concerning total stocks and CCC stocks of agricultural commodities.

(e) Maximum and minimum price guidelines established for the guidance of purchasing officers and for merchandisers of CCC-owned commodities or of commodities under loan to CCC.

(f) Audit and investigation reports and their supporting case files, except to the extent available by law to a party other than an agency.

(g) Lists and case files of persons suspended or debarred from contracting with CCC or ASCS.

(h) Agency directives which contain operating rules and guidelines for investigators, examiners, and inspectors such as the Commodity Inspection and Maintenance Handbook (2-IM) and Protective Services for Shipments of ASCS Perishable Commodities Handbook (2–TS).

(i) Information on imports of sugar by individual companies.

(j) Minutes of executive meetings of State and county committees.

(k) Blank copies of accountable or negotiable forms.

(1) Data reported by or acquired from farmers engaged in the production of corn, wheat, cotton, rice, peanuts, or tobacco for market pursuant to 7 U.S.C. 1373, including proof of acreage, yield, storage, or marketings of the commodity. This includes aerial photographs on which such data is recorded.

(m) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency of the government in litigation with ASCS.

(n) Correspondence between ASCS or CCC and persons outside ASCS or CCC which is privileged or confidential.

(0) Individual personnel, medical, and similar records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(p) Records which are specifically exempted from disclosure by statute or Executive order.

§ 798.4 Determination of availability.

The head of the records-holding office upon request by any person for a record, the availability of which is in question, shall determine its availability subject to the approval of the appropriate deputy administrator of ASCS.

§ 798.5 Deletion of identifying details.

The records-holding office shall delete from the record, before making it available, identifying details such as business affairs and medical or family matters, the disclosure of which would be a clearly unwarranted invasion of personal privacy, and shall prepare a covering letter, to be furnished with the record, justifying the deletion.

§ 798.6 Procedure for requesting records.

(a) Where to request records. Each ASCS office in the field and each ASCS office and division in Washington (see statement of Organization and Functions of ASCS (28 F.R. 4368) and of CCC (28 F.R. 13795) and any amendments