Streamlining the Regulations Governing Testimony by Employees and the Production of Documents in Legal Proceedings

Issuing agencies

Abstract

By this rule, the Department amends the regulations governing testimony by its current and former employees and the production of its documents in legal proceedings. This rule amends those regulations by removing and/or replacing language that is redundant, that references other authorities, or that provides only unnecessary elaboration. This action is necessary to streamline the Department's regulations and reduce regulatory complexity. This action is intended to promote efficiency and simplicity, and to minimize the risk of confusion and/or distraction, without significantly altering any entitlements, obligations, or processes in connection with testimony by Department employees or the production of Department documents.

Full Text

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<title>Federal Register, Volume 91 Issue 200 (Monday, October 19, 2026)</title>
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[Federal Register Volume 91, Number 200 (Monday, October 19, 2026)]
[Rules and Regulations]
[Pages 65964-65967]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21272]


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DEPARTMENT OF COMMERCE

15 CFR Part 15

[Docket No. 261015-0005]
RIN 0605-AA93


Streamlining the Regulations Governing Testimony by Employees and 
the Production of Documents in Legal Proceedings

AGENCY: Department of Commerce (Department).

ACTION: Final rule.

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SUMMARY: By this rule, the Department amends the regulations governing 
testimony by its current and former employees and the production of its 
documents in legal proceedings. This rule amends those regulations by 
removing and/or replacing language that is redundant, that references 
other authorities, or that provides only unnecessary elaboration. This 
action is necessary to streamline the Department's regulations and 
reduce regulatory complexity. This action is intended to promote 
efficiency and simplicity, and to minimize the risk of confusion and/or 
distraction, without significantly altering any entitlements, 
obligations, or processes in connection with testimony by Department 
employees or the production of Department documents.

DATES: The rule is effective October 19, 2026.

FOR FURTHER INFORMATION CONTACT: Daniel Sweeney, Deputy General Counsel 
for Economic, Statistical, and Regulatory Affairs, Office of the 
General Counsel, at (240) 474-3619.

SUPPLEMENTARY INFORMATION:

I. Background

    This action amends the regulations at 15 CFR part 15, subpart B, 
which govern testimony by current and former employees of the 
Department and the production of documents in legal proceedings. Those 
regulations were promulgated on February 17, 1995 (60 FR 9291), and 
redesignated on April 23, 1997 (62 FR 19669). The cited statutory bases 
for the regulations include, among others, 5 U.S.C. 301, which grants 
the Secretary of Commerce the authority to ``prescribe regulations for 
the government of his department, the conduct of its employees, . . . 
and the custody, use, and preservation of its records, papers, and 
property''; and 5 U.S.C. 1512, which vests the Department ``with 
jurisdiction and control'' over its ``bureaus, offices, and branches.''
    The regulations at part 15, subpart B, are known as the 
Department's ``Touhy regulations,'' referring to the Supreme Court's 
decision in Touhy v. Ragen, 340 U.S. 462 (1951). In that case, the 
Supreme Court held that a subordinate official of the Department of 
Justice could lawfully refuse to obey a subpoena duces tecum ordering 
the production of government papers in his possession pursuant to a 
housekeeping regulation issued by the Attorney General. Id. at 463-70. 
Accordingly, many Federal agencies have promulgated their own Touhy 
regulations restricting subordinate officials from testifying or 
producing agency records in legal proceedings without certain prior 
approval from the agency head or his designee. See, e.g., 32 CFR part 
97 (Department of War); 7 CFR part 1, subpart K (Department of 
Agriculture); 43 CFR part 2, subpart L (Department of the Interior); 6 
CFR part 5, subpart C (Department of Homeland Security).
    As for the Department of Commerce's Touhy regulations, subpart B 
consists of eight sections. See 15 CFR 15.11-15.18. Section 15.11 
describes the scope of the subpart; clarifies that the subpart does not 
apply to certain scenarios (e.g., testimony while on leave status 
regarding facts or events unrelated to the official business of the 
Department, subpoenas for testimony from Congress, demands for 
testimony by the United States Patent and Trademark Office (USPTO)); 
and notes that the 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. Section 
15.12 sets forth various definitions for the subpart. Section 15.13 
sets forth general rules and restrictions governing demands for the 
testimony of an employee or for the production of documents of the 
Department; namely, it establishes that ``[n]o 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.'' Section 15.14 sets forth additional rules 
and restrictions governing demands for the testimony of an employee or 
for the production of documents of the Department with respect to 
matters in which the United States is not a party, and section 15.15 
does the same with respect to matters in which the United States is a 
party. Section 15.16 elaborates on the policy and factors to be 
considered by the General Counsel or appropriate agency counsel when 
determining whether disclosure or testimony is in the interests of the 
Department. Section 15.17 addresses the scenario of demands served upon 
employees or former employees of the Office of the Inspector General. 
Lastly, section 15.18 re-addresses the issue of testimony of Department 
employees in proceedings involving the United States.

II. Discussion

    This action amends the regulations at part 15, subpart B, in the 
following ways.
    First, this action removes text that is plainly redundant. In 
particular, this action removes from Sec.  15.11(a) the

[[Page 65965]]

language prohibiting compliance with certain demands without prior 
authorization, as that language merely previews the more-detailed 
restrictions set forth throughout the rest of subpart B. This action 
also amends Sec. Sec.  15.12 and 15.15(c) by replacing redundant text 
(i.e., duplicative definitions and language regarding expert or opinion 
witnesses in matters in which the United States is a party) with cross-
references to earlier portions of part 15 that set forth substantially 
identical language. This action eliminates Sec.  15.18 entirely, as 
that section merely restates certain language found at Sec.  15.15(a) 
and (b) and re-addresses the issue of testimony of Department employees 
in proceedings involving the United States. These changes streamline 
subpart B of part 15, and reduce the possibility of confusion 
associated with redundant text, without making any meaningful 
substantive changes to the contents of part 15.
    Second, this action removes unnecessary citations and references to 
authorities that speak for themselves. For instance, this action 
removes from Sec. Sec.  15.13(d)(2) and 15.14(g)(1)(ii) (i.e., two 
subsections addressing when it is appropriate for employees to refuse 
to provide testimony or produce documents) the citations to Touhy v. 
Ragen, 340 U.S. 462 (1951); that Supreme Court decision is sufficiently 
well established, and these bare citations to it do not provide enough 
explanatory or contextual value to justify their continued presence in 
the Code of Federal Regulations. Similarly, this action removes from 
Sec. Sec.  15.11(d) and 15.13(b)(2) the cross-references to the USPTO 
regulations at 37 CFR part 104, while keeping intact the general 
clarification that subpart B does not apply to demands for testimony of 
an employee or for the production of documents of the USPTO; the 
regulations at 37 CFR part 104 are already sufficiently available to 
the public, and removing the cross-references thereto streamlines 
subpart B and also eliminates the possibility of confusion in the event 
that the USPTO regulations are reclassified.
    Third, this action removes--and consolidates, as appropriate--a 
miscellaneous set of unnecessary and excessive regulatory text. 
Specifically, this action removes: (1) language requiring employees to 
make certain communications about declining or refusing to comply 
``respectfully,'' see Sec. Sec.  15.13(d)(2) and 15.14(f)-(g); (2) 
language elaborating on the purpose of certain regulatory requirements, 
see Sec. Sec.  15.14(b) and 15.15(b); (3) language stating that, 
``where a statute or Presidential order mandates a personal decision by 
the Secretary,'' he ``retains'' the authority to make such a decision, 
see Sec.  15.14(d); and (4) language elaborating on the Department's 
internal administrative processes and requirements related to legal 
review, consultation, and authorization, see Sec. Sec.  15.11(e), 
15.13(d)(1), 15.13(d)(2), 15.14(g)(1), 15.14(g)(1)(i)(C), 15.15(a). 
None of this language is necessary and, upon review, the Department 
considers the continued maintenance of such language in the Code of 
Federal Regulations to be unwarranted.
    Overall, this action simplifies and streamlines the regulations at 
part 15, subpart B, without significantly altering any entitlements, 
obligations, or processes in connection with testimony by Department 
employees or the production of Department documents.

Regulatory Classifications

A. Administrative Procedure Act
    Pursuant to 5 U.S.C. 553(a)(2), the provisions of the 
Administrative Procedure Act requiring notice of proposed rulemaking 
and the opportunity for public participation are inapplicable to this 
rule because it concerns ``a matter relating to agency management or 
personnel or to public property, loans, grants, benefits, or 
contracts.'' This rule sets forth requirements and restrictions 
regarding the testimony of Department employees and the production of 
Department documents; accordingly, it plainly concerns agency 
management, personnel, and property.
    The Department also finds good cause to waive the prior notice and 
opportunity for public participation requirements of the Administrative 
Procedure Act for this final rule pursuant to 5 U.S.C. 553(b)(B). The 
Department has determined that prior notice and opportunity for public 
participation is unnecessary and unwarranted, because this rule merely 
removes and/or replaces excess regulatory text; none of the text being 
removed by this rule is required by any authority, and none of the 
removals will meaningfully impact any substantive requirement, 
restriction, or entitlement. This action is consistent with the 
Department's commitment to pursuing regulatory simplicity and 
efficiency, and the Department considers public participation 
impracticable for this housekeeping action.
    Similarly, the Department has determined that delaying the 
effectiveness of this rule would be contrary to the public interest. 
The described removals and amendments will streamline part 15, subpart 
B--and thereby enhance clarity and minimize the possibility of 
confusion and/or distraction--without meaningfully altering any 
requirement, restriction, or entitlement, and at little to no cost. 
These regulatory revisions do not require any affected entity to take 
any advance action to come into compliance with any provision.
    For these reasons, the Department issues this final rule without 
prior public notice and comment or a delayed effective date pursuant to 
5 U.S.C. 553(a)(2). Additionally, the Department finds good cause to 
waive the public notice and comment period under 553(b)(B) and to waive 
the 30-day delay in effectiveness under 553(d)(3).
B. Executive Orders 12866, 14192, and 13132
    The Office of Management and Budget has determined this rule is not 
significant pursuant to Executive Order (E.O.) 12866. This rule is an 
E.O. 14192 deregulatory action. This rule does not contain policies 
having federalism implications as the term is defined in E.O. 13132.
C. Regulatory Flexibility Act
    Because a notice of proposed rulemaking and an opportunity for 
public participation are not required to be given for this rule by 5 
U.S.C. 553(b)(B), the analytical requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, 
no regulatory flexibility analysis is required, and none has been 
prepared.
D. Paperwork Reduction Act
    This rule will not impose additional reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, 
et seq.

List of Subjects in 15 CFR Part 15

    Administrative practice and procedure, Courts, Government 
employees.

    Dated: October 15, 2026.
Daniel Sweeney,
Deputy General Counsel for Economic, Statistical, and Regulatory 
Affairs.

    Accordingly, for the reasons set forth above, part 15 of title 15 
of the Code of Federal Regulations is amended as follows:

PART 15--LEGAL PROCEEDINGS

0
1. The authority citation 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

[[Page 65966]]

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. Amend Sec.  15.11 by revising paragraphs (a), (c), (d), and (e) 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'').
* * * * *
    (c) This subpart does not apply to any legal proceeding in which 
the Department is a party or to demands 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. Any such demand must be sent directly to 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.
* * * * *

0
3. Revise Sec.  15.12 to read as follows:


Sec.  15.12   Definitions

    The definitions set forth at Sec.  15.2(b), (c), (f), and (g), and 
also the following definitions, shall apply to this subpart:
    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.
    Counsel to the Inspector General means Counsel to the Inspector 
General of the U.S. Department of Commerce.
    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.
    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.
    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.
    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.
    Inspector General means the Inspector General of the U.S. 
Department of Commerce.
    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.
    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.
    United States means the Federal Government, its departments and 
agencies, and individuals acting on behalf of the Federal Government.

0
4. Amend Sec.  15.13 by revising paragraphs (b) and (d) to read as 
follows:


Sec.  15.13   Demand for testimony or production of documents: 
Department procedures.

* * * * *
    (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#1e4a716b76675e7a717d30797168"><span class="__cf_email__" data-cfemail="affbc0dac7d6efcbc0cc81c8c0d9">[email&#160;protected]</span></a>; or in writing and addressed or email to appropriate 
agency counsel.
    (2) [Reserved]
* * * * *
    (d) Subpoenas. A subpoena for testimony or production of documents 
by a Department employee must be served in person 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 
appropriate agency counsel for their legal review and determination. No 
employee will comply with such a subpoena without

[[Page 65967]]

express permission of the of the General Counsel or appropriate agency 
counsel.
    (2) [Reserved]
* * * * *

0
5. Amend Sec.  15.14 by removing and reserving paragraphs (b) and (d) 
and by revising paragraphs (f)(1), (g) introductory text, (g)(1) and 
(2) to read as follows:


Sec.  15.14   Demand for testimony or production of documents in 
matters in which the United States is not a party.

* * * * *
    (f) * * *
    (1) Decline to answer on the grounds that such testimony is 
prohibited; and
* * * * *
    (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, unless they receive a prior 
authorization in writing from the General Counsel or appropriate agency 
counsel.
    (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) Decline to answer on the grounds that such expert or opinion 
testimony is forbidden by the regulations in this subpart; and
    (B) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel before giving such testimony.
    (C) [Reserved]
    (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 
decline to comply with that order.
* * * * *

0
6. Amend Sec.  15.15 by revising paragraphs (a), (b), and (c) to read 
as follows:


Sec.  15.15   Demand for testimony or production of documents in 
matters in which the United States is a party.

* * * * *
    (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.
    (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. 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 under the same 
conditions set out in Sec.  15.14(e)(2).


Sec.  15.18   [Removed and Reserved]

0
7. Remove and reserve Sec.  15.18.

[FR Doc. 2026-21272 Filed 10-16-26; 8:45 am]
BILLING CODE 3510-17-P


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