U.S. Code of Federal Regulations

Regulations most recently checked for updates: Oct 04, 2023

§ 2.31 - General Counsel.

(a) Related to legal services. The General Counsel, as the chief law officer of the Department, is legal advisor to the Secretary and other officials of the Department and responsible for providing legal services for all the activities of the Department. The delegations of authority by the Secretary of Agriculture to the General Counsel include the following:

(1) Consider, ascertain, adjust, determine, compromise, and settle claims pursuant to the Federal Tort Claims Act, as amended (28 U.S.C. 2671–2680), and the regulations of the Attorney General contained in 28 CFR part 14; delegate the authority to consider, ascertain, adjust, determine, compromise, and settle, pursuant to the Federal Tort Claims Act as amended (28 U.S.C. 2671–2680) and the regulations of the Attorney General contained in 28 CFR part 14, claims less than $2500 that allege the negligence or wrongful act of an employee of a USDA agency; and consider, ascertain, adjust, determine compromise, and settle claims pursuant to section 920 of the Federal Agriculture Improvement and Reform Act of 1996, Public Law 104–127 (7 U.S.C. 2262a).

(2) Certify documents as true copies of those on file in the Department.

(3) Sign releases of claims of the United States against private persons for damage to or destruction of property of the department, except those claims cognizable under the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.).

(4) Responsible for the overall management and operation of the Law Library, furnishing complete legal and legislative library services to the Office of the General Counsel and the Department.

(5) Make determinations as to whether employees of the Department may retain commercial rights in inventions; prepare patent applications and prosecute the same before the Patent Office.

(6) Represent the Department in formal rulemaking and adjudicatory proceedings held in connection with the administration of the Department's activities, and decide whether initial decisions of the administrative law judges shall be appealed by the Department to the Secretary.

(7) Represent the Department in connection with legal issues that arise in its relations with the Congress, the General Accounting Office, or other agencies of the Government.

(8) [Reserved]

(9) In civil actions arising out of the activities of the Department, present the Department's case to the Attorney General and U.S. attorneys and, upon request of the Department of Justice, assist in the preparation and trial of such cases and in the briefing and argument of such cases at the appellate level.

(10) Review cases having criminal aspects and refer them to the Department of Justice.

(11) Act as liaison between the Department and the Department of Justice.

(12) Perform the following legal services:

(i) Render legal opinions on questions arising in the conduct of the Department's activities;

(ii) Prepare or review regulations;

(iii) Draft proposed legislation;

(iv) Prepare or review contracts, mortgages, deeds, leases, and other documents; and

(v) Examine titles to land to be acquired or accepted as security for loans.

(13) Perform such other legal services as may be required in the administration of the Department's activities, including the defense program.

(14) Serve as a member of the Capper-Volstead Act Committee to identify cases of undue price enhancement by associations of producers and issue complaints requiring such associations to show cause why an order should not be made directing them to cease and desist from monopolization or restraint of trade (7 U.S.C. 292).

(15) Settle claims for damage to, or loss of, privately owned property pursuant to the provisions of 31 U.S.C. 3723.

(16) Serve on the USDA Hazardous Materials Policy Council.

(17) On a non-exclusive basis, assert in litigation the deliberative process privilege and other legally recognized privileges.

(18) Conduct legal sufficiency reviews and concur before a proposed settlement offer is made to an opposing party for all informal and formal Equal Employment Opportunity (EEO), Office of Special Counsel (OSC), or Merit Systems Protection Board (MSPB) complaints that:

(i) Require a payment of compensatory damages or attorney's fees resulting in costs to the Department totaling $50,000 or more; or

(ii) Are brought by, or allege discriminatory conduct by, any political appointee; or

(iii) Place any political appointee on a detail outside the Department or on an Intergovernmental Personnel Act (IPA) agreement for one year or more if the Department retains the obligation to pay the employee's salary and benefits during the duration of the detail or IPA agreement.

(19) Review monetary settlement agreements of any dollar amount negotiated by USDA offices or agencies upon request except that legal sufficiency review conducted by and concurrence from the Office of the General Counsel is required prior to execution for all proposed settlement agreements negotiated by USDA offices or agencies totaling $500,000 or more, including attorney's fees. This required review is in addition to existing delegations of authority and processes for USDA offices' or agencies' processing of settlement agreements. This required review does not apply to:

(i) Settlements pursuant to the Federal Tort Claims Act, which the Office of the General Counsel handles pursuant to paragraph (a)(1) of this section;

(ii) Settlements for personnel matters, which the Office of the General Counsel handles pursuant to paragraph (a)(18) of this section;

(iii) Settlement of contract claims, which contracting officers handle pursuant to the Contract Disputes Act (41 U.S.C. 601 et seq.) and Federal Acquisition Regulation (48 CFR parts 1 through 99); or

(iv) Settlement of USDA offices' or agencies' debt collection actions.

(20) Conduct legal sufficiency reviews and concur with all proposed agency contracts or other transactions to retain outside counsel or for the provision of legal services regardless of whether an agency has specific statutory authority to retain outside counsel or legal services. The following services do not require legal sufficiency review and concurrence from the Office of the General Counsel: Contracts for the provision of services in relation to USDA office's and agencies' Freedom of Information Act activities; contracts for the performance of trademark searches or other trademark or copyright related services; or contracts for the performance of patent prosecution or other related patent services.

(b) Related to ethics. The following delegation of authority is made by the Secretary to the General Counsel: Provide administrative supervision for the Office of Ethics.

(c) Related to the Freedom of Information Act. (1) Serve as the Chief Freedom of Information Act Officer for the Department; oversee general officers and agency heads in efficient and appropriate compliance with the provisions of the Freedom of Information Act (5 U.S.C. 552); monitor implementation of 5 U.S.C. 552 throughout the agency and keep the Secretary and the Attorney General informed regarding agency performance in its implementation; recommend to the Secretary necessary adjustments to agency practices, policies, personnel, and funding to improve implementation of 5 U.S.C. 552; review and report to the Attorney General, through the Secretary, as the Attorney General may direct; and, facilitate public understanding of the purposes of the statutory exemptions contained in 5 U.S.C. 552.

(2) Manage the Freedom of Information Act operations for the Research, Education, and Economics mission area, the Trade and Foreign Agricultural Affairs mission area, and all staff offices of the Department.

(d) Related to records management. Administer the Departmental records management program.

[60 FR 56393, Nov. 8, 1995, as amended at 61 FR 49237, Sept. 19, 1996; 65 FR 12429, Mar. 9, 2000; 70 FR 23927, May 6, 2005; 70 FR 30610, May 27, 2005; 78 FR 40938, July 9, 2013; 79 FR 44112, July 30, 2014; 83 FR 22184, May 14, 2018; 85 FR 65512, Oct. 15, 2020; 87 FR 44269, July 26, 2022]