Production or Disclosure of Records, Information and Employee Testimony in Legal Proceedings, 89846-89848 [2016-29875]

Agencies

• Office of the United States Trade Representative

[Federal Register Volume 81, Number 239 (Tuesday, December 13, 2016)]
[Rules and Regulations]
[Pages 89846-89848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29875]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

15 CFR Part 2004

[Docket Number USTR-2016-0016]
RIN 0350-AA10


Production or Disclosure of Records, Information and Employee 
Testimony in Legal Proceedings

AGENCY: Office of the United States Trade Representative.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule adds subparts A and D to part 2004 of the Office of 
the United States Trade Representative's (USTR) regulations. Subpart A 
contains definitions used throughout part 2004. Subpart D governs how 
USTR responds to official demands and informal requests for records, 
information or employee testimony in connection with legal proceedings 
in which neither the United States nor USTR is a party. It includes the 
requirements and procedures for demanding or requesting parties to 
submit demands or requests, and factors for USTR to consider in 
determining whether USTR employees will provide records, information or 
testimony relating to their official duties.

DATES: The final rule will become effective December 13, 2016.

FOR FURTHER INFORMATION CONTACT: Janice Kaye, Monique Ricker or Melissa 
Keppel, Office of General Counsel, United States Trade Representative, 
Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., 
Washington, DC 20509, jkaye@ustr.eop.gov; mricker@ustr.eop.gov; 
mkeppel@ustr.eop.gov; 202-395-3150.

SUPPLEMENTARY INFORMATION: On September 22, 2016, USTR published a 
proposed rule to add subparts A and D to part 2004. See 81 FR 65309. 
The 60-day comment period ended on November 21, 2016. USTR did not 
receive any comments. We have made one non-substantive change to the 
proposed rule. In subpart A, which contain definitions used throughout 
part 2004, we added a new term--``OGIS''--which means the Office of 
Government Information Services of the National Archives and Records 
Administration. OGIS, offers FOIA dispute resolution services. For 
convenience, the entire text of the final rule is set out below.

Regulatory Flexibility Act

    USTR has considered the impact of the final rule and determined 
that it is not likely to have a significant economic impact on a 
substantial number of small business entities because it is applicable 
only to USTR's internal operations and legal obligations. See 5 U.S.C. 
601 et seq.

Paperwork Reduction Act

    The final rule does not contain any information collection 
requirement that requires the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

List of Subjects in 15 CFR Part 2004

    Administrative practice and procedure, Courts, Disclosure, 
Exemptions, Freedom of information, Government employees, Privacy, 
Records, Subpoenas, Testimony.


0
For the reasons stated in the preamble, the Office of the United States 
Trade Representative is revising part 2004 of chapter XX of title 15 of 
the Code of Federal Regulations to read as follows:

PART 2004--DISCLOSURE OF RECORDS AND INFORMATION

Subpart A--Definitions
Sec.
2004.0 Definitions.
Subpart B--Freedom of Information Act Policies and Procedures 
[Reserved]
2004.1 through 2004.9 [Reserved]
Subpart C--Privacy Act Policies and Procedures [Reserved]
2004.10 through 2004.29 [Reserved]
Subpart D--Production or Disclosure of USTR Records, Information and 
Employee Testimony in Legal Proceedings
2004.30 Purpose and scope.
2004.31 Definitions.
2004.32 Production prohibited unless approved.
2004.33 Factors the General Counsel may consider.
2004.34 Submitting demands and requests.
2004.35 Processing demands and requests.
2004.36 Restrictions that apply to testimony.
2004.37 Restrictions that apply to released records or information.
2004.38 In the event of an adverse ruling.
2004.39 Fees.

Subpart A--Definitions

    Authority:  19 U.S.C. 2171(e)(3).


Sec.  2004.0   Definitions.

    For purposes of this part:
    Days, unless otherwise indicated, means working days, and does not 
include Saturdays, Sundays, and legal public holidays. If the last day 
of a specified period falls on a Saturday, Sunday, or legal public 
holiday, the period will be extended until the next working day.
    FOIA means the Freedom of Information Act, as amended, 5 U.S.C. 
552.
    Privacy Act means the Privacy Act of 1974, as amended, 5 U.S.C. 
552a.
    OGIS means the Office of Government Information Services of the 
National Archives and Records Administration, which offers FOIA dispute 
resolution services.
    USTR means the Office of the United States Trade Representative.

Subpart B--Freedom of Information Act Policies and Procedures 
[Reserved]


Sec. Sec.  2004.1 through 2004.9   [Reserved]

Subpart C--Privacy Act Policies and Procedures [Reserved]


Sec. Sec.  2004.10 through 2004.29   [Reserved]

Subpart D--Production or Disclosure of USTR Records, Information 
and Employee Testimony in Legal Proceedings

    Authority:  5 U.S.C. 301; 19 U.S.C. 2171(e)(3).


Sec.  2004.30   Purpose and scope.

    (a) Why are we issuing this rule? This subpart establishes the 
procedures USTR will follow when any federal, state or local government 
court or other

[[Page 89847]]

authority seeks production of USTR records or information, or testimony 
relating to an employee's official duties, in the context of a legal 
proceeding. Parties seeking records, information or testimony must 
comply with these requirements when submitting demands or requests to 
USTR.
    (b) What does this rule cover? This subpart applies to demands or 
requests for records, information or testimony in legal proceedings in 
which USTR is not a named party. It does not apply to: Demands or 
requests for a USTR employee to testify as to facts or events that are 
unrelated to his or her official duties or to USTR's functions; FOIA or 
Privacy Act requests; or Congressional demands or requests for records 
or testimony.
    (c) Not a waiver. (1) By providing these policies and procedures, 
USTR does not waive the sovereign immunity of the United States.
    (2) The production of records, information or testimony pursuant to 
this subpart does not constitute a waiver by USTR of any privilege.
    (d) This subpart provides guidance for USTR's internal operations 
and does not create any right or benefit, substantive or procedural, 
that a party may rely upon in any legal proceeding against USTR or the 
United States.


Sec.  2004.31   Definitions.

    For purposes of this subpart:
    Demand means a request, order, subpoena or other demand of a 
federal, state or local court or other authority for records, 
information or employee testimony in a legal proceeding in which USTR 
is not a named party.
    Employee means any current or former employee or officer of USTR, 
including contractors, detailees, interns, and any individual who has 
served or is serving in any consulting or advisory capacity to USTR, 
whether formal or informal.
    General Counsel means USTR's General Counsel or a person within 
USTR's Office of General Counsel to whom the General Counsel has 
delegated authority to act under this subpart.
    Legal proceeding means any matter, including all phases of 
litigation, before a court of law, administrative board or tribunal, 
commission, administrative law judge, hearing officer, or other body 
that conducts a legal or administrative proceeding.
    Records or information means all documents and materials that are 
USTR agency records under the FOIA; any original or copy of a record or 
other property, no matter what media, contained in USTR files; and any 
other information or materials acquired by a USTR employee in the 
performance of his or her official duties or because of his or her 
official status.
    Request means any informal request, by whatever method, in 
connection with a legal proceeding, seeking production of records, 
information or testimony that has not been ordered by a court or other 
competent authority.
    Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations and 
recorded interviews made by an individual about USTR information in 
connection with a legal proceeding.


Sec.  2004.32   Production prohibited unless approved.

    (a) Approval required. An employee or any other person or entity in 
possession of records or information may not produce those records or 
information, or provide any testimony related to the records or 
information, in response to any demand or request without prior written 
approval from the General Counsel.
    (b) Penalties. Any person or entity that fails to comply with this 
subpart may be subject to the penalties provided in 18 U.S.C. 641 and 
other applicable laws. A current employee also may be subject to 
administrative or disciplinary proceedings.


Sec.  2004.33   Factors the General Counsel may consider.

    The General Counsel may grant an employee permission to testify 
regarding USTR matters and to produce records and information in 
response to a demand or request. Among the relevant factors the General 
Counsel may consider in making this determination are whether:
    (a) The requested records, information or testimony are reasonable 
in scope, relevant and material to the pending action, and unavailable 
from other sources such as a non-USTR employee, or a USTR employee 
other than the employee named.
    (b) Production of the records, information or testimony might 
result in USTR appearing to favor one litigant over another.
    (c) USTR has an interest in the decision that may be rendered in 
the legal proceeding.
    (d) Approving the demand or request would assist or hinder USTR in 
performing statutory duties or unduly burden USTR resources.
    (e) The demand or request is unduly burdensome or otherwise 
inappropriate under the rules of discovery or procedure governing the 
case or matter in which the demand or request arose.
    (f) Production of the records, information or testimony might 
violate or be inconsistent with a statute, Executive Order, regulation 
or other legal authority.
    (g) Disclosure, including release in camera, is appropriate or 
necessary under the relevant substantive law concerning privilege.
    (h) Disclosure, except when in camera and necessary to assert a 
claim of privilege, would reveal information properly classified or 
other matters exempt from unrestricted disclosure.
    (i) Disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of 
an intelligence source or confidential informant, or disclose trade 
secrets or similarly confidential commercial or financial information.
    (j) Any other appropriate factor.


Sec.  2004.34   Submitting demands and requests.

    (a) Where do I send a demand or request? To make a demand or 
request for records, information or testimony you should write directly 
to the General Counsel. Heightened security delays mail delivery. To 
avoid mail delivery delays, we strongly suggest that you email your 
demand or request to TOUHY@ustr.eop.gov. The mailing address is General 
Counsel, Office of the United States Trade Representative, Anacostia 
Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 
20509. To ensure delivery, you should mark the subject line of your 
email or your envelope and letter ``Touhy Request.''
    (b) When should I submit it? You should submit your demand or 
request at least 45 calendar days in advance of the date on which the 
records, information or testimony is needed.
    (c) What must be included? (1) A demand or request must include an 
affidavit or, if that is not feasible, a clear and concise statement by 
the party or his or her counsel summarizing the legal and factual 
issues in the proceeding and explaining how the records, information or 
testimony will contribute substantially to the resolution of one or 
more specifically identified issues.
    (2) A demand or request for testimony also must include an estimate 
of the amount of time that the employee will need to devote to the 
process of testifying (including anticipated travel time and 
anticipated duration of round trip travel), plus a showing that no 
document or the testimony of non-USTR persons, including retained 
experts, could suffice in lieu of the employee's testimony.

[[Page 89848]]

    (d) Limits. The General Counsel will limit any authorization for 
testimony to the scope of the demand, and the scope of permissible 
production of records and information to that set forth in the written 
authorization.
    (e) Failure to meet requirements and exceptions. USTR may oppose 
any demand or request that does not meet the requirements set forth in 
this subpart. The General Counsel may grant exceptions to the 
requirements in this subpart upon a showing of compelling need, to 
promote a significant interest of USTR or the United States, or for 
other good cause.


Sec.  2004.35   Processing demands and requests.

    (a) The General Counsel will review a request or demand to produce 
or disclose records, information or testimony and determine whether, or 
under what conditions, to authorize the employee to testify regarding 
USTR matters or produce records and information. The General Counsel 
will notify the requester of the final determination, the reasons for 
the grant or denial of the demand or request, and any conditions on 
disclosure.
    (b) When necessary, the General Counsel will coordinate with the 
U.S. Department of Justice to file appropriate motions, including 
motions to remove the matter to Federal court, to quash, or to obtain a 
protective order.
    (c) The General Counsel will process demands and requests in the 
order in which they are received. Absent unusual circumstances and 
depending on the scope of the demand or request, the General Counsel 
will respond within 45 calendar days of the date USTR receives all 
information necessary to evaluate the demand or request.


Sec.  2004.36   Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of USTR employees including, for example, limiting the 
scope of testimony or requiring the requester and other parties to the 
legal proceeding to agree that the testimony transcript will be kept 
under seal or will only be used or made available in the particular 
legal proceeding for which testimony was requested. The General Counsel 
also may require a copy of the testimony transcript at the requester's 
expense.
    (b) USTR may offer the employee's written declaration in lieu of 
testimony.
    (c) If authorized to testify pursuant to this subpart, an employee 
may testify as to relevant facts within his or her personal knowledge, 
but, unless specifically authorized to do so by the General Counsel, 
the employee must not:
    (1) Disclose classified, confidential or privileged information; or
    (2) For a current USTR employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or USTR's mission or functions, unless testimony is 
provided on behalf of the United States. A former employee can provide 
expert or opinion testimony where the testimony involves only general 
expertise gained while employed as a USTR employee.


Sec.  2004.37   Restrictions that apply to released records and 
information.

    (a) The General Counsel may impose conditions or restrictions on 
the release of records and information, including requiring the parties 
to the legal proceeding to obtain a protective order or to execute a 
confidentiality agreement to limit access and further disclosure. The 
terms of a protective order or confidentiality agreement must be 
acceptable to the General Counsel. In cases where protective orders or 
confidentiality agreements already have been executed, USTR may 
condition the release of records and information on an amendment to the 
existing protective order or confidentiality agreement.
    (b) If the General Counsel so determines, USTR may present original 
records for examination in response to a demand or request, but the 
records cannot be marked or altered or presented as evidence or 
otherwise used in a manner by which they could lose their status as 
original records. In lieu of original records, certified copies will be 
presented for evidentiary purposes. (See 28 U.S.C. 1733).


Sec.  2004.38   In the event of an adverse ruling.

    (a) Notwithstanding USTR's rejection of a demand or request for 
records, information or testimony, if a court or other competent 
authority orders a USTR employee to comply with the demand, the 
employee promptly must notify the General Counsel of the order, and 
must respectfully decline to comply, citing United States ex rel. Touhy 
v. Ragen, 340 U.S. 462 (1951).
    (b) To seek reconsideration of USTR's rejection of a demand or 
request, or of any restrictions on receiving records, information or 
testimony, a requester must send a petition for reconsideration in 
accordance with Sec.  2004.34(a) within 10 days of the date of the 
determination. The petition must contain a clear and concise statement 
of the basis for the reconsideration with supporting authorities. 
Determinations about petitions for reconsideration are within the 
discretion of the United States Trade Representative or his/her 
designee, and are final.
    (c) Pursuant to section 704 of the Administrative Procedure Act, 5 
U.S.C. 704, a petition for reconsideration of a final determination 
under this section is a prerequisite to judicial review.


Sec.  2004.39   Fees.

    (a) USTR may condition the production of records, information or an 
employee's appearance on advance payment of reasonable costs, which may 
include but are not limited to those associated with employee search 
time, copying, computer usage, and certifications.
    (b) Witness fees will include fees, expenses and allowances 
prescribed by the rules applicable to the particular legal proceeding. 
If no fees are prescribed, USTR will base fees on the rule of the 
federal district court closest to the location where the witness will 
appear. Such fees may include but are not limited to time for 
preparation, travel and attendance at the legal proceeding.

Janice Kaye,
Chief Counsel for Administrative Law, Office of the U.S. Trade 
Representative.
[FR Doc. 2016-29875 Filed 12-12-16; 8:45 am]
 BILLING CODE 3290-F7-P