Rule2021-27190
Department of Commerce Regulations on Procedures for Responding to Requests for Documents or Testimony for Use in Legal Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 4, 2022
Effective
January 4, 2022
Issuing agencies
Commerce Department
Abstract
This final rule revises 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 revisions provide greater clarity to entities seeking documents or testimony from current or former Department employees. Specifically, these revisions 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
<html>
<head>
<title>Federal Register, Volume 87 Issue 2 (Tuesday, January 4, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Rules and Regulations]
[Pages 160-166]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27190]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Office of the Secretary
15 CFR Part 15
[Docket No. 211210-0256]
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises 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 revisions provide greater clarity to
entities seeking documents or testimony from current or former
Department employees. Specifically, these revisions 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: Effective January 4, 2022.
FOR FURTHER INFORMATION CONTACT: Megan Heller, Chief, General
Litigation Division, Office of the General Counsel, U.S. Department of
Commerce, 1401 Constitution Ave. NW, Rm. 5896, Washington, DC 20230;
telephone, (202) 482-1328.
SUPPLEMENTARY INFORMATION: This final rule revises the Department's
regulations promulgated pursuant to 5 U.S.C. 301. The regulations at 15
CFR 15.11 through 15.18 set forth the procedures 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 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) has been 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) clarifies that this subpart does not apply to proceedings
in which the Department is a party. New paragraph (d) has been 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 regulations
have been deleted throughout the revised subpart B. New paragraph (e)
combines previous paragraph (c) with previous Sec. 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 addition of
new Sec. 15.17 to address requests that are made for documents or
testimony from the Office of the Inspector General. Paragraphs (b), (d)
through (h), and (j) through (m) has been revised to clarify language
and provide greater detail.
Section 15.13--Demand for testimony or production of documents:
Department procedures.
This rule significantly revises Sec. 15.13. The rule moves from
Sec. 15.13 to Sec. 15.16(a) the policies and considerations that
Commerce will use in determining responses to demands for documents or
testimony. Paragraph (a) of revised Sec. 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 Sec. 15.13 sets forth in more detail the
notification requirements for requests submitted pursuant to this
subpart; these notification requirements were formerly found at Sec.
15.14(c). Paragraph (b)(1) has been revised to include the full address
for mailed requests and an email address for submitting requests
electronically. Paragraph (b)(2) refers requestors to regulations for
the United States Patent and Trademark Office, for requests relating to
that agency.
[[Page 161]]
Paragraph (c) directs 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 Sec. 15.14(a) of the
regulations. Paragraph (d) specifically addresses the course of action
that the Department will take if it determines its employee should not
comply with a subpoena. In addition, this paragraph specifies 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 has been 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
Sec. Sec. 15.14, 15.15, and 15.16 of the regulations. Notably,
paragraph (g)(2) of revised Sec. 15.14 sets 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 are now provided
separately in new Sec. 15.15.
Section 15.15--Demand for testimony or production of documents in
matters in which the United States is a party.
This section is partly new, and encompasses provisions found
previously in Sec. Sec. 15.16 and 15.18 on expert and opinion
testimony. It sets forth the procedures for requests relating to
matters in which the United States, but not the Department, is a named
party. Paragraph (a) addresses requests received from entities other
than the United States, in proceedings in which the United States is a
party, and requires 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) addresses requests received
from agencies or instrumentalities of the United States other than the
Department. Notably, and consistent with past practice, paragraph (b)
now states 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) separately
sets 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 rule revises Sec. 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 Sec.
15.13(a) through (f) have been moved to this section and expanded to
better inform non-government requesters. Paragraphs (a)(1) through (9)
sets forth a list of factors to be considered. Paragraphs (b)(1)
through (3) sets forth additional considerations for the General
Counsel to weigh, once requirements in Sec. Sec. 15.14 and 15.15 of
this subpart have been satisfied. Finally, new paragraphs (c)(1)
through (8) sets 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.
This final rule adds 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 provides the notification procedures for requests to the
Inspector General.
Comments on the Proposed Rule
The proposed rule was published in the Federal Register on
September 27, 2021 (86 FR 53251), with a request for comments to be
submitted by October 27, 2021. No comments were received.
No Substantive Changes From the Proposed Rule
This final rule makes no substantive changes to the proposed rule.
We note that the regulatory text of this final rule contains two minor
typographical corrections in the regulatory text of the proposed rule:
The deletion of an extra word, ``a'', in the first sentence of 15 CFR
15.13(d)(1), and the addition of a missing semi-colon after the phrase
``the intended use of the testimony'' in 15 CFR 15.14(a)(6).
Classification
This final rule is published under the authority of 15 CFR part 15,
subpart B (Sec. Sec. 15.11 through 15.18), which sets forth the
procedures 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 final rule 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.
Pursuant to 5 U.S.C. 553(d)(3), the Department of Commerce has
determined that there is good cause to waive the 30-day delay in the
date of effectiveness for this final action. Specifically, there is
good cause to waive the 30-day delay in the date of effectiveness,
because this final rule provides clarifications that will reduce
confusion for entities seeking documents or testimony from current or
former Department employees, for use in legal proceedings. The
Department of Commerce's Touhy regulations were last revised in 1995.
This final rule improves the readability of the regulations, and
provides clarifications on several points that have been the subject of
consideration over the past twenty-five years. It is not necessary to
have a 30-day delay in effectiveness for this final rule because (1) it
imposes no additional burdens on entities seeking documents or
testimony from the agency, and (2) clarifies the process making such
requests, thereby making it easier for entities to submit requests to
the agency. As such, the Department believes that a 30-day delay in the
date of effectiveness of this final rule would be contrary to the
public interest. For the reasons described above, the Department finds
good cause to make this rule effective immediately upon publication in
the Federal Register.
Congressional Review Act
The changes in this final 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 final rule
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.).
[[Page 162]]
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 rule will not have a significant economic
impact on a substantial number of small entities. This final rule
amends 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 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 such requests; and (3) making non-
substantive clarifying changes in the regulations. This rule applies 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, this final rule
clarifies 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 revisions made by this
final 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 have no impact on affected entities
seeking information or testimony from the Department for use in legal
proceedings. Other changes impose no additional burden on individuals
or entities seeking information or testimony from the Department for
use in legal proceedings. For these reasons, this final rule will not
have a significant economic impact on a substantial number of small
entities.
No comments were received on this determination during the public
comment period for the proposed rule. Nor has the Department received
any new information that would affect its determination that this rule
would not have a significant economic impact on a substantial number of
small entities. As a result, a final regulatory flexibility analysis
was not required and none was prepared.
Paperwork Reduction Act
This final rule contains no new collection of information subject
to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in 15 CFR Part 15
Administrative practice and procedure, Courts, Government
employees.
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 amends 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.
Subpart B--Testimony by Employees and the Production of Documents
in Legal Proceedings
0
2. Revise Sec. Sec. 15.11 through 15.17 to read as follows:
Sec.
* * * * *
15.11 Scope.
15.12 Definitions.
15.13 Demand for testimony or production of documents: Department
procedures.
15.14 Demand for testimony or production of documents in matters in
which the United States is not a party.
15.15 Demand for testimony or production of documents in matters in
which the United States is a party.
15.16 Demand for testimony or production of documents: Department
policy and considerations.
15.17 Subpoenas and demands served upon employees or former
employees of the Office of the Inspector General.
* * * * *
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 104.24, 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
[[Page 163]]
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, 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 in this paragraph
(f) 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. ``Legal
proceedings'' 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#03576c766b7a43676c602d646c75"><span class="__cf_email__" data-cfemail="2a7e455f42536a4e4549044d455c">[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 104.24, and any such demands should be sent directly to the
USPTO, in accordance with Sec. 15.11(d).
(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 in paragraph (b)(1) of this section, 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 paragraph (b) of this
section, or appropriate agency counsel.
(1) An employee who receives 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
[[Page 164]]
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 in this subpart 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).
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 Sec. 15.13(b) 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 the requirement in this section 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. 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 paragraph (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
consultation discussed in paragraph (g)(1)(i) of this section, 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
[[Page 165]]
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 part 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) Decision. 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) Waiver. The General Counsel or appropriate agency counsel may
waive any requirements set forth under this 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 Sec. 15.13(b), setting forth the
information required in Sec. 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 the requirement in
this paragraph (b) 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:
(1) 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
(2) 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 part 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
[[Page 166]]
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 Constitution Avenue NW, Room
7896, Washington, DC 20230.
[FR Doc. 2021-27190 Filed 1-3-22; 8:45 am]
BILLING CODE 3510-BW-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on January 4, 2022.
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.