Proposed Rule2021-20651
Department of Commerce Regulations on Procedures for Responding to Requests for Documents or Testimony for Use in Legal Proceedings
Primary source
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Published
September 27, 2021
Issuing agencies
Commerce Department
Abstract
This proposed rule would revise the Department of Commerce's (Commerce) regulations, known as "Touhy regulations," that set forth the procedures for responding to requests for documents or testimony for use in legal proceedings. The Department intends these revisions to provide greater clarity to entities seeking documents or testimony from current or former Department employees. Specifically, these revisions would clarify, update, and streamline the language of several provisions, provide greater transparency regarding the factors that the agency will consider when reviewing such requests, and more directly address issues that frequently arise in requests for documents or testimony based on the facts of the request, such as whether the testimony requested is that of a former employee, whether the United States is a party to the underlying legal proceedings, or whether the testimony or documents are requested from the Office of the Inspector General.
Full Text
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<title>Federal Register, Volume 86 Issue 184 (Monday, September 27, 2021)</title>
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[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Proposed Rules]
[Pages 53249-53255]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20651]
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DEPARTMENT OF COMMERCE
Office of the Secretary
15 CFR Part 15
[Docket No. 210915-0188]
RIN 0605-AA52
Department of Commerce Regulations on Procedures for Responding
to Requests for Documents or Testimony for Use in Legal Proceedings
AGENCY: Office of the Secretary, Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: This proposed rule would revise the Department of Commerce's
(Commerce) regulations, known as ``Touhy regulations,'' that set forth
the procedures for responding to requests for documents or testimony
for use in legal proceedings. The Department intends these revisions to
provide greater clarity to entities seeking documents or testimony from
current or former Department employees. Specifically, these revisions
would clarify, update, and streamline the language of several
provisions, provide greater transparency regarding the factors that the
agency will consider when reviewing such requests, and more directly
address issues that frequently arise in requests for documents or
testimony based on the facts of the request, such as whether the
testimony requested is that of a former employee, whether the United
States is a party to the underlying legal proceedings, or whether the
testimony or documents are requested from the Office of the Inspector
General.
DATES: Written comments must be received on or before October 27, 2021.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 0605-AA52, by either of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#86f5f5eee7f4ebe7c6e2e9e5a8e1e9f0"><span class="__cf_email__" data-cfemail="d2a1a1bab3a0bfb392b6bdb1fcb5bda4">[email protected]</span></a>. Include the RIN 0605-AA52 in the
subject line.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. Electronic comments may
be submitted via <a href="http://www.regulations.gov">www.regulations.gov</a> prior to midnight eastern time on
October 27, 2021. Comments may not be considered if they are sent by
any other method, to any other address or individual, or received after
the comment period ends at 11:59 p.m. eastern time on the date of
comment period closure. All comments received are a part of the public
record and will generally be posted without change to <a href="http://regulations.gov">http://regulations.gov</a>. For posted comments, all personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender is publicly accessible. Anonymous comments (enter ``N/A''
in the required fields if you wish to remain anonymous) will be
accepted. Attachments to electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or Adobe portable document format
(PDF) only.
Submit written comments regarding the burden-hour estimates or
other aspects of the collection-of-information requirements contained
in this proposed rule within 30 days of publication of this notice to
<a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Sapna Sharma, General Litigation
Division, Office of the General Counsel, U.S. Department of Commerce,
1401 Constitution Ave. NW, Rm. 5890, Washington, DC 20230;
<a href="/cdn-cgi/l/email-protection#6d1e1e050c1f000c2d09020e430a021b"><span class="__cf_email__" data-cfemail="0576766d6477686445616a662b626a73">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This rulemaking proposes revisions to the
Department's regulations promulgated pursuant to 5 U.S.C. 301. Sections
15 CFR 15.11-15.18 set forth the procedures currently applicable to
requests submitted to Commerce for the testimony of employees and the
production of documents for use in legal proceedings to which the
agency is not a party. These regulations are also known as ``Touhy
regulations,'' in reference to the case in which the Supreme Court
upheld the validity of such agency regulations promulgated pursuant to
5 U.S.C. 301. See United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
These proposed revisions to the Department's regulations clarify
the process by which demands for documents or testimony are to be made
and considered. They also update and streamline the language of several
provisions where past experiences suggest need for elucidation.
Additionally, the Department is revising these regulations to more
directly address issues that arise frequently in requests for documents
or testimony. The Department intends these revisions to provide greater
clarity to entities seeking documents or testimony from current or
former Department employees. Following is a description of the
revisions to specific provisions of the Touhy regulations.
Section 15.11--Scope.
Paragraph (a) would be revised to more clearly set forth the scope
and applicability of this subpart, and to state upfront that an
employee's compliance with any demand for information or testimony
requires prior authorization by the appropriate legal officers. New
paragraph (c) would be added to clarify that this subpart does not
apply to proceedings in which the Department is a party. New paragraph
(d) would be added to direct requests for documents or testimony from
the United States Patent and Trademark Office (USPTO) to the applicable
USPTO Touhy regulations; all references to the USPTO in the previous
regulation would be deleted throughout the revised Subpart B. New
paragraph (e) would combine previous paragraph (c) with previous
section 15.17 to clarify that the Department will determine if other
statutory authorities exist that address disclosure of the requested
information before applying the procedures in this subpart.
Section 15.12--Definitions.
Broadly, this section has been revised to provide additional detail
in definitions and add definitions for new terms used in the proposed
revisions. Paragraph (a) has been revised to provide more detail in the
definition of agency counsel. Paragraphs (c) and (i) define the Office
of the Inspector General and its Counsel, reflecting the proposed
addition of new section 15.17 to address requests that are made for
documents or testimony from the Office of the Inspector General.
Paragraphs (b), (d)-(h), and (j)-(m) have been revised to clarify
language and provide greater detail.
Section 15.13--Demand for testimony or production of documents:
Department procedures.
[[Page 53250]]
This proposed rule would significantly revise section 15.13. The
rule proposes to move from section 15.13 to section 15.16(a) the
policies and considerations that Commerce will use in determining
responses to demands for documents or testimony. Paragraph (a) of
revised section 15.13 restates the existing rule that no document or
information may be produced without authorization from the General
Counsel or appropriate agency counsel. Paragraph (b) of revised section
15.13 would set forth in more detail the notification requirements for
requests submitted pursuant to this subpart; these notification
requirements were formerly found at section 15.14(c). Paragraph (b)(1)
would be revised to include the full address for mailed requests and an
email address for submitting requests electronically. Paragraph (b)(2)
would refer requestors to regulations for the United States Patent and
Trademark Office, for requests relating to that agency. Paragraph (c)
would direct employees to forward any demand to the appropriate office
within the General Counsel's Office; this direction and contact
information is currently set forth in section 15.14(a) of the
regulations. Paragraph (d) would specifically address the course of
action that the Department will take if it determines its employee
should not comply with a subpoena. In addition, this paragraph would
specify that electronic service of subpoenas is not authorized.
Section 15.14--Demand for testimony or production of documents in
matters in which the United States is not a party.
This section would be revised to consolidate the procedures to be
followed for requests relating to matters in which the United States is
not a party to proceedings, which were previously interspersed in
sections 15.14, 15.15, and 15.16 of the current regulations. Notably,
paragraph (g)(2) of revised section 15.14 would set forth new rules and
procedures for former Department employees who are asked to provide
opinion or expert testimony in such proceedings; these rules and
procedures had not previously been addressed. The procedures for
matters in which the United States is a party would now be provided
separately in new section 15.15.
Section 15.15--Demand for testimony or production of documents in
matters in which the United States is a party.
This section would be partly new, and would encompass provisions
found in current sections 15.16 and 15.18 on expert and opinion
testimony. It would set forth the procedures for requests relating to
matters in which the United States, but not the Department, is a named
party. Paragraph (a) would address requests received from entities
other than the United States, in proceedings in which the United States
is a party, and would require that counsel of record representing the
interests of the United States or one of its other agencies and
instrumentalities be informed of such demands. Paragraph (b) would
address requests received from agencies or instrumentalities of the
United States other than the Department. Notably, and consistent with
past practice, paragraph (b) would now state that the General Counsel
may require reimbursement to the Department of expenses associated with
a Department employee providing consultations on behalf of the United
States. Paragraph (c) would separately set forth the procedures for
expert or opinion testimony for both current and former employees in
matters in which the United States, but not the Department, is a named
party.
Section 15.16--Demand for testimony or production of documents:
Department and Policy Considerations.
This proposed rule would revise section 15.16 to set forth in
greater detail the factors that, as appropriate, will be considered in
deciding whether the requested disclosure of information or testimony
is in the interests of the Department. The policy factors in previous
section 15.13(a)-(f) would be moved to this section and expanded to
better inform non-government requesters. Paragraph (a)(1-9) would set
forth a list of factors to be considered. Paragraph (b)(1-3) would set
forth additional considerations for the General Counsel to weigh, once
requirements in sections 15.14 and 15.15 of this subpart have been
satisfied. Finally, new paragraph (c)(1-8) would set forth a non-
exclusive list of the factors that preclude disclosure of information
that may be requested.
Section 15.17-- Subpoenas and demands served upon employees or
former employees of the Office of the Inspector General.
The proposed rule would add this new section to address requests
that are made for documents or testimony from the Office of the
Inspector General and to clarify that this subpart applies to requests
for documents or testimony from the Office of the Inspector General.
This section would provide the notification procedures for requests to
the Inspector General.
Classification
This rule is published under the authority of 15 CFR part 15,
subpart B (sections 15.11 through 15.18), which sets forth the
procedures currently applicable to requests submitted to the Department
for the testimony of employees and the production of documents for use
in legal proceedings to which the Department is not a party. These
regulations are also known as ``Touhy regulations,'' in reference to
the case in which the Supreme Court upheld the validity of such agency
regulations promulgated pursuant to 5 U.S.C. 301. See United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
This rulemaking has been determined to be not significant for the
purposes of Executive Order (E.O.) 12866. The Department has identified
no duplicative, overlapping, or conflicting Federal rules.
Congressional Review Act
The changes in this proposed rule are not expected to result in an
annual effect on the economy of $100 million or more, a major increase
in costs or prices, or significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets. Therefore, this rulemaking
is not expected to be considered a ``major rule'' as defined in 5
U.S.C. 804(2) of the Congressional Review Act provisions of the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et
seq.).
Regulatory Flexibility Act
The Chief Counsel for Regulation, Department of Commerce, has
certified to the Chief Counsel for Advocacy, Small Business
Administration, under the provisions of the Regulatory Flexibility Act,
5 U.S.C. 605(b), that this proposed rule, if implemented, would not
have a significant economic impact on a substantial number of small
entities. If implemented, this proposed rule would amend existing
regulations in order to clarify the policies, practices,
responsibilities, and procedures for Department of Commerce employees
related to production of official Departmental documents and testimony
by current or former employees as witnesses in legal proceedings.
Specifically, the changes in this proposed rule fall into three
categories: (1) Clarifying the requirements for individuals or entities
making requests for Department information or testimony for use in
legal proceedings; (2) refining the procedures the Department uses and
elaborating on the polices that support the Department's decision
regarding whether to grant
[[Page 53251]]
such requests; and (3) making non-substantive clarifying changes in the
regulations. This proposed rule would apply to any individual or entity
or their legal representative who requests information from the
Department or testimony from Departmental employees for use in legal
proceedings. There is no requirement that an individual or entity or
their legal representative make such a request to the Department unless
they seek information or testimony for use in a legal proceeding. If
such a request is made, however, the proposed rule would clarify the
current regulatory language that describes to whom in the Department
the request should be sent, the standards that the request must meet,
and the procedures the Department will apply to process the request and
determine whether to grant it. The changes proposed in this rule are
not expected to have any impact on affected entities. For example, the
clarifying changes applicable to the actions of Department employees,
reorganization of certain provisions, and harmonization of terminology
would have no impact on affected entities seeking information or
testimony from the Department for use in legal proceedings. Other
proposed changes would impose no additional burden on individuals or
entities seeking information or testimony from the Department for use
in legal proceedings. For these reasons, this proposed rule, if
implemented, would not have a significant economic impact on a
substantial number of small entities. Because this proposed rule would
not have a significant economic impact on a substantial number of small
entities, an initial regulatory flexibility analysis is not required,
and none has been prepared.
Paperwork Reduction Act
This proposed rule contains no new collection of information
subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Request for Comments
Commerce is seeking comments on this proposed rule on or before
October 27, 2021 (see instructions for submitting comments in the
ADDRESSES section above). All comments received are a part of the
public record and will generally be posted without change to <a href="http://regulations.gov">http://regulations.gov</a>. For posted comments, all personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender is publicly accessible. Anonymous comments will be
accepted. Enter ``N/A'' in the required fields if you wish to remain
anonymous. Attachments to electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or Adobe portable document format
(PDF) only.
List of Subjects in 15 CFR Part 15
Administrative practice and procedure, Courts, Government
employees, Legal Proceedings.
Brian D. DiGiacomo,
Assistant General Counsel for Employment, Litigation, and Information,
Office of the General Counsel.
For the reasons set out in the preamble, Commerce proposes to amend
15 CFR part 15 as follows:
PART 15--LEGAL PROCEEDINGS
0
1. The authority for part 15 continues to read as follows:
Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and
1518; Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p.
1004; 44 U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706;
15 U.S.C. 1673; 42 U.S.C. 665.
Editorial Note: Nomenclature changes to part 15 appear at 62 FR
19669, Apr. 23, 1997.
Subpart B-Testimony by Employees and the Production of Documents in
Legal Proceedings
0
2. In subpart B, revise Sec. Sec. 15.11 through 15.17 to read as
follows:
Sec. 15.11 Scope.
(a) This subpart sets forth the policies and procedures to be
followed with respect to the production or disclosure of the testimony
of employees and former employees of the Department of Commerce as
witnesses in legal proceedings and the production or disclosure of
information contained in Department of Commerce documents, or any
information acquired by any person while such person was an employee of
the Department of Commerce, for use in legal proceedings pursuant to a
request, order, or subpoena (collectively referred to in this subpart
as a ``demand''). No Department employee or former employee shall
comply with such a demand without the prior authorization of the
General Counsel or appropriate agency counsel, in accordance with this
subpart.
(b) This subpart does not apply to any legal proceeding in which an
employee is to testify while on leave status, regarding facts or events
unrelated to the official business of the Department or the duties of
the employee.
(c) This subpart does not apply to any legal proceeding in which
the Department is a party or to subpoenas for testimony or documents
received from Congress, a federal agency Inspector General, or a
Special Prosecutor.
(d) This subpart does not apply to any demand for testimony of
employees and former employees of the United States Patent and
Trademark Office (USPTO) or to demands for the production of USPTO
documents. The process for any demand for testimony of an employee or
for the production of documents of the USPTO can be found at 37 CFR
104.21 through 24, and any such demands must be sent directly to the
USPTO.
(e) This subpart in no way affects the rights and procedures
governing public access to records pursuant to the Freedom of
Information Act, the Privacy Act or the Trade Secrets Act or other
federal law restricting the disclosure of information. Moreover,
demands in legal proceedings for the production of records, or for the
testimony of Department employees regarding information protected by
the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905,
Census data under Title 13, U.S.C., or other confidentiality statutes,
must satisfy the requirements for disclosure set forth in those
statutes, if any, before the records may be provided or testimony
given. The General Counsel or appropriate agency counsel should first
determine if there is a legal basis to provide the testimony or records
sought under applicable confidentiality statutes before applying the
procedures established in this subpart.
(f) This subpart is not intended to be relied upon to, and does
not, create any right or benefit, substantive or procedural,
enforceable at law by any party against the United States.
Sec. 15.12 Definitions.
For the purpose of this subpart:
(a) Agency Counsel means the Chief Counsel/s or General Counsel/s
(or that official's designee) of a bureau or operating unit within the
U.S. Department of Commerce who is the senior legal officer responsible
for overseeing legal advice and guidance provided to a particular
bureau or operating unit.
(b) Component means Office of the Secretary or a bureau or
operating unit of the Department as defined in Department Organization
Order 1-1.
(c) Counsel to the Inspector General means Counsel to the Inspector
General of the U.S. Department of Commerce.
(d) Demand means a request, order, or subpoena for testimony or
documents for use in any legal proceeding,
[[Page 53252]]
regardless of whether the United States is a party to the proceeding.
(e) Department means the United States Department of Commerce and
any of its components, bureaus, or operating units.
(f) Document or Information means any record, regardless of format,
medium or physical characteristic, document, electronically stored
information, paper and other property of the Department, including
without limitation, official letters, telegrams, memoranda, reports,
studies, writings, emails, calendar and diary entries, text or chat
messages, maps, graphs, pamphlets, notes, charts, tabulations,
analyses, statistical or informational accumulations, any kind of
summaries of meetings and conversations, film impressions, magnetic
tapes or sound or mechanical reproductions. Nothing herein shall be
interpreted as requiring the creation of a new document to respond to
any demand.
(g) Employee means any current or former employees or officers of
the U.S. Department of Commerce, including any commissioned officer of
the National Oceanic and Atmospheric Administration or any other
individual who has been appointed by, or is subject to the supervision,
jurisdiction, or control of the U.S. Department of Commerce, including
contract employees. Contractors may be included.
(h) General Counsel means the General Counsel of the U.S.
Department of Commerce or other U.S. Department of Commerce employee to
whom the General Counsel has delegated authority to act under this
subpart.
(i) Inspector General means the Inspector General of the U.S.
Department of Commerce.
(j) Legal proceeding means all pretrial, trial, and post-trial
stages of any existing or reasonably anticipated judicial or
administrative actions, hearings, investigations, or similar
proceedings before administrative, civil, or criminal courts,
commissions, boards, or other tribunals, domestic--including local,
tribal, state, and federal--foreign, or international. This phrase
includes all phases of discovery as well as responses to any formal or
informal requests by attorneys, investigators, or other persons not
employed by the Department, regarding, testimony, documents,
information, or consultation, solicited for use in any legal
proceedings.
(k) Official business means the authorized business of the U.S.
Department of Commerce.
(l) Secretary means the Secretary of the U.S. Department of
Commerce.
(m) Testimony means a statement in any form, including personal
appearances before a judge, magistrate, administrative law judge,
administrative judge, hearing officer, special master, special counsel,
investigating officer or board, or any other court or legal tribunal;
declarations made pursuant to 28 U.S.C. 1746; interviews; depositions;
telephonic, televised, or videotaped statements; or any responses given
during discovery or similar proceedings, which response would involve
more than the production of documents.
(n) United States means the Federal Government, its departments and
agencies, and individuals acting on behalf of the Federal Government.
Sec. 15.13 Demand for testimony or production of documents:
Department procedures.
(a) General. No employee, in response to a demand, shall produce
any documents or information of the Department, or provide testimony
regarding any information relating to, or based upon Department
documents, or disclose any information or produce documents acquired or
generated as part of the performance of that employee's official duties
or because of that employee's official status without the prior
authorization of the General Counsel or appropriate agency counsel.
(b) Notifications. (1) A demand for the testimony of an employee or
for the production of documents of the Department shall be made in
writing and addressed to the Assistant General Counsel for Employment,
Litigation, and Information, U.S. Department of Commerce, 1401
Constitution Avenue, NW, Room 5896, Washington, DC 20230; or by email
to: <a href="/cdn-cgi/l/email-protection#65310a100d1c25010a064b020a13"><span class="__cf_email__" data-cfemail="267249534e5f6642494508414950">[email protected]</span></a>; or to appropriate agency counsel.
(2) The process for any demand for testimony of an employee or for
the production of documents of the USPTO can be found at 37 CFR 104.21
through 24, and any such demands should be sent directly to the USPTO,
in accordance with Sec. 15.11(d) of this subpart.
(c) Employee Procedure. Whenever a Department employee receives an
inquiry or demand for testimony or production of documents, that
employee shall not respond, and shall immediately notify the Office of
the Assistant General Counsel for Employment, Litigation, and
Information as provided above, or appropriate agency counsel, and
provide a copy of the demand. An employee may not answer inquiries from
a person not employed by the Department regarding testimony or
documents subject to a demand or a potential demand under the
provisions of this subpart without the approval of the General Counsel
or appropriate agency counsel.
(d) Subpoenas. A subpoena for testimony or production of documents
by a Department employee must be served in person, at the office or
home, or by mail in accordance with the Federal Rules of Civil or
Criminal Procedure or applicable state procedure. Service solely by
electronic means is not authorized. If service is made upon anyone
other than the General Counsel or appropriate agency counsel, then a
copy of the subpoena shall also be contemporaneously sent to the
General Counsel at the appropriate addresses in subsection (b) above,
or appropriate agency counsel.
(1) An employee who receives a such a subpoena shall not respond
and shall immediately forward the subpoena to the Office of the
Assistant General Counsel for Employment, Litigation, and Information
or the appropriate agency counsel. The General Counsel or appropriate
agency counsel will determine the extent to which a Department employee
will comply with the subpoena.
(2) If the General Counsel or appropriate agency counsel determines
that an employee should not comply with a properly-served subpoena, the
General Counsel or agency counsel will attempt to have the subpoena
withdrawn or modified. If this cannot be done with regard to a subpoena
for documents, the Department will provide the tribunal with an
objections letter or other notification that the documents will not be
produced. If this cannot be done with regard to a subpoena for
testimony, the General Counsel or appropriate agency counsel will
attempt to obtain U.S. Department of Justice representation for the
employee and move to have the subpoena modified or quashed. If, because
of time constraints, this is not possible prior to the compliance date
specified in the subpoena, the employee should appear at the time and
place set forth in the subpoena. If legal counsel cannot appear on
behalf of the employee, the employee should produce a copy of the
Department's regulations and inform the legal tribunal that the
employee has been advised by counsel not to provide the requested
testimony and/or produce documents. If the legal tribunal rules that
the demand in the subpoena must be complied with, the employee shall
respectfully decline to comply with the demand. United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951).
[[Page 53253]]
Sec. 15.14 Demand for testimony or production of documents in
matters in which the United States is not a party.
(a) General. Every demand for testimony or documents in a legal
matter in which the United States is not a named party shall be made in
writing, delivered in accordance with section 15.13(b) of this subpart
no later than 30 days before the document or testimony is required, and
shall be accompanied by an affidavit or written declaration under 28
U.S.C. 1746, or, if an affidavit or declaration is not feasible, a
written statement setting forth:
(1) The title of the legal proceeding,
(2) The forum;
(3) The requesting party's interest in the legal proceeding;
(4) The reason for the demand and the relevance of the request to
the legal proceeding;
(5) A showing that the desired testimony or document is not
reasonably available from any other source; and
(6) If testimony is requested, the intended use of the testimony a
general summary of the desired testimony; the time that will be
required to prepare for, travel to, and present testimony; and a
showing that no document could be provided and used in lieu of
testimony, including from opposing parties via discovery proceedings.
(b) Purpose. The purpose of this requirement is to assist the
General Counsel or appropriate agency counsel in making an informed
decision regarding whether testimony or the production of a document(s)
should be authorized, in accordance with Sec. 15.16 of this subpart.
Any authorization for testimony by an employee of the Department shall
be limited to the scope of the demand as summarized in the statement or
as negotiated in subparagraph (e) of this section.
(c) Prior Authorization. A certified copy of a document that has
been authorized pursuant to Sec. 15.16(a) for use in a legal
proceeding may be provided upon written request and payment of
applicable fees. Written requests for certification must be addressed
to the agency counsel for the component having possession, custody, or
control of the document. The requestor must provide the agency with
information regarding the prior authorization for release of the
requested document pursuant to Sec. 15.16(a), including date of
release and parties to whom the document was released.
(d) Secretary's Authority. The Secretary retains the authority to
authorize and direct testimony in those cases where a statute or
Presidential order mandates a personal decision by the Secretary.
(e) Consultation. The General Counsel or appropriate agency counsel
may consult or negotiate with an attorney for a party, or with the
party if not represented by an attorney, to refine or limit a demand so
that compliance is less burdensome or seek additional information about
the demand necessary to make the determination required by paragraph
(b) of this section. Failure of the attorney or party to cooperate in
good faith to enable the General Counsel or the appropriate agency
counsel to make an informed decision under this subpart may serve,
where appropriate, as a basis for a determination not to comply with
the demand. In addition, the General Counsel or appropriate agency
counsel may impose further conditions or restrictions on the production
of any document or testimony when that is in the best interests of the
United States.
(f) Fact witness. If an employee is authorized to give testimony in
a legal proceeding not involving the United States, the testimony, if
otherwise proper, shall be limited to facts within the personal
knowledge of the employee that are not classified, privileged, or
protected from disclosure under applicable law or regulation. If asked
to provide factual testimony that the employee believes may be
classified, privileged, or protected from disclosure under applicable
law or regulation, then the witness shall:
(1) Respectfully decline to answer on the grounds that such
testimony is prohibited; and
(2) Request an opportunity to consult with the General Counsel or
appropriate agency counsel.
(g) Expert or Opinion Witness.
(1) Current employees, with or without compensation, shall not
provide expert or opinion testimony in any legal proceedings regarding
Department information, subjects, or activities except on behalf of the
United States or a party represented by the United States Department of
Justice. However, upon a showing by the requester that there are
exceptional circumstances and that the anticipated testimony will not
be adverse to the interests of the Department or the United States, the
General Counsel, or appropriate agency counsel after consultation with
the Office of the General Counsel, may grant special authorization in
writing for a current employee to appear and give the expert or opinion
testimony.
(i) If, while testifying in any legal proceeding, an employee is
asked for expert or opinion testimony regarding official information,
subjects or activities, which testimony has not been approved in
advance in accordance with the regulations in this subpart, the witness
shall:
(A) Respectfully decline to answer on the grounds that such expert
or opinion testimony is forbidden by the regulations in this subpart;
(B) Request an opportunity to consult with the General Counsel or
appropriate agency counsel before giving such testimony; and
(C) Explain that upon such consultation, approval for such
testimony may be provided.
(ii) If the body conducting the proceeding then orders the witness
to provide expert or opinion testimony regarding official information,
subjects, or activities without the opportunity to consult with either
the General Counsel or appropriate agency counsel, the witness shall
respectfully refuse to provide such testimony. See United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(iii) If an employee is unaware of the regulations in this subpart
and provides expert or opinion testimony regarding official
information, subjects, or activities in a legal proceeding without the
aforementioned consultation, the witness must, as soon as possible
after testifying, inform the General Counsel or appropriate agency
counsel that such testimony was given and provide a written summary of
the expert or opinion testimony provided.
(2) Former employees may provide opinion or expert testimony if:
(i) The testimony does not involve non-public facts, information, or
documents about a particular matter that were acquired by the former
employee during the performance of their employment with the United
States; and (ii) the involvement of the former employee in the
proceeding as a witness complies with 18 U.S.C. 207 and applicable
post-employment Ethics rules. See 5 CFR 2641. Former employees offering
expert or opinion testimony and those seeking such testimony from
former employees, must confer with the General Counsel or appropriate
agency counsel to ascertain if the prospective expert or opinion
testimony is consistent with this subpart.
(h) A decision under this subpart to comply or not to comply with a
demand is neither an assertion or waiver of privilege, nor an assertion
of lack of relevance or technical deficiency, nor does it reflect any
other ground for noncompliance.
(i) The General Counsel or appropriate agency counsel may waive any
requirements set forth under this
[[Page 53254]]
section to the extent allowed by law, when circumstances warrant.
Sec. 15.15 Demand for testimony or production of documents in matters
in which the United States is a party.
If a demand is received pertaining to a legal matter in which the
United States but not the Department is a named party, or where a party
other than the Department is represented by the Department of Justice,
the following rules apply.
(a) Demand not from the United States. For demands for documents
from, or testimony of an employee of the Department, from an entity
other than the United States pursuant to a legal proceeding in which
the United States is a party, the demand must be in writing and signed,
delivered in accordance with section 15.13(b), setting forth the
information required in section 15.14(a), and copied to the attorneys
of record representing or acting under the authority of the United
States in the legal proceeding. Upon receipt of the demand, the General
Counsel or appropriate agency counsel shall promptly contact the
appropriate Department of Justice office to coordinate any response in
accordance with applicable federal or state rules of civil procedure
governing discovery matters.
(b) Demand from the United States. When a demand for documents
from, testimony of, or consultation with an employee of the Department
comes from an attorney representing or acting under the authority of
the United States concerning a legal proceeding in which the United
States is a party, every such demand should be accompanied by a
statement setting forth the legal proceeding, the forum, the United
States' interest in the legal proceeding, and the relevance and use of
the requested documents or testimony. The purpose of this requirement
is to assist the General Counsel or the appropriate agency counsel in
making all necessary arrangements to facilitate the demand on behalf of
the United States. Where appropriate, the General Counsel or
appropriate agency counsel may require reimbursement to the Department
of the expenses associated with a Department employee giving testimony
or providing consultation on behalf of the United States.
(c) Expert or Opinion Witness. In a legal proceeding in which the
United States is a party, a current Department employee may not testify
as an expert or opinion witness for any other party other than the
United States. However, a former employee may provide opinion or expert
testimony for a party other than the United States if: (i) The
testimony does not involve facts, information, or documents about a
particular matter that were acquired by the former employee during the
performance of their official duties as an employee of the United
States; and (ii) the involvement of the former employee in the
proceeding as a witness complies with applicable post-employment
conflict of interest laws. See 18 U.S.C. 207 and 5 CFR 2641. A former
employee offering expert or opinion testimony or consulting, and those
seeking such testimony from a former employee, shall confer with the
General Counsel or appropriate agency counsel to ascertain if the
prospective expert or opinion testimony or consulting is consistent
with this subpart.
Sec. 15.16 Demand for testimony or production of documents:
Department Policy and Considerations.
(a) Decision. In deciding whether to authorize a demand for
testimony or documents under this subpart, the General Counsel or
appropriate agency counsel shall consider whether the disclosure or
testimony is in the interests of the Department. The following factors
should be considered:
(1) Conserving the time of Department employees for conducting
official business;
(2) Minimizing the possibility of involving the Department in
controversial issues that are not related to the Department's mission
or matters that do not further the Department's mission;
(3) Preventing the possibility that the public will misconstrue
variances between personal opinions of Department employees and
official Department policy;
(4) Avoiding spending the time and money of the United States for
private purposes;
(5) Preserving the integrity of the administrative or judicial
process;
(6) Protecting classified, confidential, or controlled unclassified
information, and the deliberative process of the Department;
(7) Preventing the appearance of improperly favoring one litigant
over another;
(8) Avoiding the denial of a party's constitutional or statutory
rights;
(9) Whether such disclosure is appropriate under the rules of
procedure governing the case or matter in which the demand arose;
(10) Whether disclosure is appropriate under the relevant
substantive law concerning privilege; and
(11) Any other issue that is relevant to the decision.
(b) Non-disclosure Factors. Demands for testimony or documents in
response to which disclosure will not be made by any Department
official include, but are not limited to, those demands with respect to
which any of the following factors exist:
(1) Disclosure is restricted by statute or regulation, or would
violate a rule of procedure, executive order, policy, or an applicable
government directive;
(2) Disclosure would reveal classified or controlled unclassified
information, unless appropriately declassified or decontrolled by the
originating agency;
(3) Disclosure would reveal a confidential source or informant,
unless the investigative agency and the source or informant have no
objection;
(4) Disclosure would reveal investigatory records compiled for law
enforcement purposes and would interfere with enforcement proceedings
or disclose investigative techniques and procedures, the effectiveness
of which would thereby be impaired.
(5) Disclosure would improperly reveal trade secrets or disclose
information protected by law, a non-disclosure agreement, or court
order without authorized consent;
(6) Disclosure would be unduly costly, burdensome, or otherwise
inappropriate under applicable court rules;
(7) Disclosure would involve the Department in controversial issues
that are not related to the Department's mission or issues that do not
further the Department's mission; or
(8) Disclosure would involve scientific or expert opinion on
research that is controversial or contrary to Department policy, or
would result in burdensome repetition of similar testimony in
subsequent proceedings.
Sec. 15.17 Subpoenas and demands served upon employees or former
employees of the Office of the Inspector General.
Notwithstanding the requirements set forth in Sec. Sec. 15.11
through 15.16, this subpart is applicable to demands served on
employees or former employees of the Office of the Inspector General
(OIG), except that wherever in Sec. Sec. 15.11 through 15.16 there
appear the phrases General Counsel, Agency Counsel, or Assistant
General Counsel for Employment, Litigation, and Information, there
shall be substituted in lieu thereof the Inspector General or Counsel
to the Inspector General. In addition, the appropriate address for
notifications specified in Sec. 15.13(b) pertaining to employees and
former employees covered under this section is Office of the Inspector
General, U.S. Department of Commerce, 1401
[[Page 53255]]
Constitution Avenue NW, Room 7896, Washington, DC 20230.
[FR Doc. 2021-20651 Filed 9-24-21; 8:45 am]
BILLING CODE 3510-BW-P
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</html>Indexed from Federal Register on September 27, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.