Regulations Governing the Production of Office of the Director of National Intelligence Information or Material in Proceedings Before Federal, State, Local or Other Government Entity of Competent Jurisdiction, 61772-61773 [E8-24747]
Download as PDF
<![CDATA[
61772
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules
§ 1702.4 Notification to Office of General
Counsel.
An ODNI employee who receives or
has reason to expect to receive, service
of process in an official, individual or
combined individual and official
capacity in a matter that may involve
testimony or the furnishing of
documents that could reasonably be
expected to involve ODNI interests,
shall promptly notify the OGC ((703)
275–2527) prior to responding to the
service in any manner, and if possible,
before accepting service.
§ 1702.5
Interpretation.
Any questions concerning
interpretation of this regulation shall be
referred to the Office of General Counsel
for resolution.
Dated: October 2, 2008.
Corin R. Stone,
Deputy General Counsel, Office of the Director
of National Intelligence.
[FR Doc. E8–24744 Filed 10–16–08; 8:45 am]
BILLING CODE 3910–A7–P
(ODNI) was created by the Intelligence
Reform and Terrorism Prevention Act of
2004, Public Law 108–458, 118
Stat.3638. The ODNI began operations
on April 22, 2005, the day after the first
Director of National Intelligence took
office. Since that time the ODNI has
been working to publish regulations for
matters that may affect the public.
This regulation outlines the
procedures current and former ODNI
employees must follow when they
receive a demand for ODNI information
or material in connection with
proceedings before federal, state, local
or other government entity of competent
jurisdiction. These regulations are
typically called Touhy regulations
because of the Supreme Court’s decision
in United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951), in which the Court
held that an agency employee could not
be held in contempt for refusing to
disclose agency records or information
when following the instructions of his
or her supervisor.
Lists of Subjects in 32 CFR Part 1703
OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE
Courts, government employees.
32 CFR Part 1703
Regulations Governing the Production
of Office of the Director of National
Intelligence Information or Material in
Proceedings Before Federal, State,
Local or Other Government Entity of
Competent Jurisdiction
Office of the Director of
National Intelligence.
ACTION: Proposed regulation.
AGENCY:
The ODNI is publishing this
proposed regulation to invite public
comment prior to final adoption of the
regulation governing the procedures it
will follow for the production of ODNI
information or material in proceedings
before federal, state, local or other
government entity of competent
jurisdiction.
SUMMARY:
Submit comments on or before
November 17, 2008.
ADDRESSES: You may submit comments
by either of the following methods:
Mail: Office of the Director of National
Intelligence—Office of the General
Counsel, Washington, DC 20511,
Attention: Tricia Wellman.
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT:
Tricia Wellman, (703) 275–2527.
SUPPLEMENTARY INFORMATION: The Office
of the Director of National Intelligence
jlentini on PROD1PC65 with PROPOSALS
DATES:
VerDate Aug<31>2005
17:14 Oct 16, 2008
Jkt 217001
Title 32 of the Code of Federal
Regulations is amended by adding Part
1703 to read as follows:
PART 1703—PRODUCTION OF ODNI
INFORMATION OR MATERIAL IN
PROCEEDINGS BEFORE FEDERAL,
STATE, LOCAL OR OTHER
GOVERNMENT ENTITY OF
COMPETENT JURISDICTION
Sec.
1703.1
1703.2
1703.3
1703.4
1703.5
Scope and purpose.
Definitions.
General.
Procedure for production.
Interpretation.
Authority: The Intelligence Reform and
Terrorism Prevention Act of 2004, Public
Law No. 108–458, 118 Stat. 3638 (2004);
National Security Act of 1947, as amended,
50 U.S.C. sec. 401 et seq.; Executive Order
12333, as amended; and United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951).
§ 1703.1
Scope and purpose.
This Part sets forth the policy and
procedures with respect to the
production or disclosure of material
contained in the files of the ODNI,
information relating to or based upon
material contained in the files of the
ODNI, and information acquired by any
person while such person was an
employee of the ODNI as part of the
performance of that person’s official
duties or because of that person’s
association with the ODNI.
PO 00000
Frm 00026
Fmt 4702
Sfmt 4702
§ 1703.2
Definitions.
The following definitions apply to
this Part:
Defenses: Any and all legal defenses,
privileges or objections available to the
ODNI in response to a demand.
Demand:
(1) Any subpoena, order or other legal
summons issued by a federal, state,
local or other government entity of
competent jurisdiction with the
authority to require a response on a
particular matter or a request for
appearance of an individual where a
demand could issue.
(2) Any request for production or
disclosure which may result in the
issuance of a subpoena, order, or other
legal process to compel production or
disclosure.
DNI: The Director of National
Intelligence.
General Counsel: The ODNI’s General
Counsel, Acting General Counsel or
Deputy General Counsel.
ODNI: The Office of the Director of
National Intelligence and all of its
components, including, but not limited
to, the Office of the National
Counterintelligence Executive, the
National Counterterrorism Center, the
National Counterproliferation Center,
the Program Manager for the
Information Sharing Environment, and
all national intelligence centers and
program managers the DNI may
establish.
ODNI Employee: Any current or
former employee, contractor,
independent contractor, assignee or
detailee to the ODNI.
ODNI Information or Material:
Information or material that is contained
in ODNI files, related to or based upon
material contained in ODNI files or
acquired by any ODNI employee as part
of that employee’s official duties or
because of that employee’s association
with the ODNI.
OGC: The Office of the General
Counsel of the ODNI.
OGC Attorney: Any attorney in the
OGC.
Proceeding: Any matter before a court
of law, administrative law judge,
administrative tribunal or commission
or other body that conducts legal or
administrative proceedings, and
includes all phases of the proceeding.
Production or Produce: The
disclosure of ODNI information or
material in response to a demand.
§ 1703.3
General.
(a) No ODNI employee shall respond
to a demand for ODNI information or
material without prior authorization as
set forth in this Part.
(b) This part is intended only to
provide procedures for responding to
E:\FR\FM\17OCP1.SGM
17OCP1
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Proposed Rules
demands for production of documents
or information, and does not create any
right or benefit, substantive or
procedural, enforceable by any party
against the United States.
jlentini on PROD1PC65 with PROPOSALS
§ 1703.4
Procedure for production.
(a) Whenever a demand is made for
ODNI information or material, the
employee who received the demand
shall immediately notify OGC ((703)
275–2527). The OGC and the ODNI
employee shall then follow the
procedures set forth in this section.
(b) The OGC may assert any and all
defenses before any search for
potentially responsive ODNI
information or material begins. Further,
in its sole discretion the ODNI may
decline to begin a search for potentially
responsive ODNI information or
material until a final and nonappealable disposition of any or all of
the asserted defenses is made by the
federal, state, local or government entity
of competent jurisdiction. When the
OGC determines that it is appropriate to
search for potentially responsive ODNI
information and material, the OGC will
forward the demand to the appropriate
ODNI offices or entities with
responsibility for the ODNI information
or material sought in the demand. Those
ODNI offices or entities shall then
search for and provide to the OGC all
potentially responsive ODNI
information and material. The OGC may
then assert any and all defenses to the
production of what it determines is
responsive ODNI information or
material.
(c) In reaching a decision on whether
to produce responsive ODNI
information or material, or to object to
the demand, the OGC shall consider
whether:
(1) Any relevant privileges are
applicable;
(2) The applicable rules of discovery
or procedure require production;
(3) Production would violate a statute,
regulation, executive order or other
provision of law;
(4) Production would violate a nondisclosure agreement;
(5) Production would be inconsistent
with the DNI’s responsibility to protect
intelligence sources and methods, or
reveal classified information or state
secrets;
(6) Production would violate a
specific ODNI policy issuance or
instruction; and
(7) Production would unduly interfere
with the orderly conduct of ODNI
functions.
(d) If oral or written testimony is
sought by a demand in a case or matter
in which the ODNI is not a party, a
VerDate Aug<31>2005
17:14 Oct 16, 2008
Jkt 217001
reasonably detailed description of the
testimony sought in the form of an
affidavit, or a written statement if that
is not feasible, by the party seeking the
testimony or its attorney must be
furnished to the OGC.
(e) The OGC shall notify the
appropriate employees of all decisions
regarding responses to demands and
provide advice and counsel for the
implementation of the decisions.
(f) If response to a demand is required
before a decision is made whether to
provide responsive ODNI information or
material, an OGC attorney will request
that a Department of Justice attorney
appear with the ODNI employee upon
whom that demand has been made
before the court or other competent
authority and provide it with a copy of
this regulation and inform the court or
other authority as to the status of the
demand. The court will be requested to
stay the demand pending resolution by
the ODNI. If the request for a stay is
denied or there is a ruling that the
demand must be complied with
irrespective of instructions rendered in
accordance with this Part, the employee
upon whom the demand was made
shall, if directed to do so by the General
Counsel or its designee, respectfully
decline to comply with the demand
under the authority of United States ex
rel. Touhy v. Ragen, 340 U.S. 462
(1951), and this regulation.
(g) ODNI officials may delegate in
writing any authority given to them in
this Part to subordinate officials.
(h) Any individual or entity not an
ODNI employee as defined in this Part
who receives a demand for the
production or disclosure of ODNI
information or material acquired
because of that person’s or entity’s
association with the ODNI should notify
the OGC ((703) 275–2527) for guidance
and assistance. In such cases the
provisions of this regulation shall be
applicable.
§ 1703.5
Interpretation.
Any questions concerning
interpretation of this Regulation shall be
referred to the OGC for resolution.
Dated: October 2, 2008.
Corin R. Stone,
Deputy General Counsel, Office of the Director
of National Intelligence.
[FR Doc. E8–24747 Filed 10–16–08; 8:45 am]
BILLING CODE 3910–A7–P
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
61773
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 3
[EPA–HQ–OEI–2003–0001; FRL–8730–7]
RIN 2025–AA23
Extension of Cross-Media Electronic
Reporting Rule Deadline for
Authorized Programs
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: EPA is proposing to amend
the Final Cross-Media Electronic
Reporting Rule (CROMERR) deadline for
authorized programs (states, tribes, or
local governments) with existing
electronic document receiving systems
to submit an application for EPA
approval to revise or modify their
authorized programs. This action
proposes to extend the current October
13, 2008, deadline until January 13,
2010. Additionally, in the ‘‘Rules and
Regulations’’ section of this Federal
Register, EPA is making this revision as
a direct final rule without a prior
proposed rule. If the Agency receives no
relevant adverse comment, EPA will not
take further action on this proposed
rule.
DATES: Written comments must be
received by November 3, 2008.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA-HQOEI–2003–0001, by one of the following
methods:
• www.regulations.gov: Follow the
on-line instructions for submitting
comments.
• E-mail: oei.docket@epa.gov.
• Mail: CROMERR Docket,
Environmental Protection Agency,
Mailcode: 2822T, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460.
Hand Delivery: EPA Docket Room, EPA
West, Room 3334, 1301 Constitution
Avenue, Washington, DC 20460. Such
deliveries are only accepted during the
Docket’s normal hours of operation, and
special arrangements should be made
for deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OEI–2003–
0001. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
E:\FR\FM\17OCP1.SGM
17OCP1
]]>Agencies
[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Proposed Rules]
[Pages 61772-61773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24747]
-----------------------------------------------------------------------
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
32 CFR Part 1703
Regulations Governing the Production of Office of the Director of
National Intelligence Information or Material in Proceedings Before
Federal, State, Local or Other Government Entity of Competent
Jurisdiction
AGENCY: Office of the Director of National Intelligence.
ACTION: Proposed regulation.
-----------------------------------------------------------------------
SUMMARY: The ODNI is publishing this proposed regulation to invite
public comment prior to final adoption of the regulation governing the
procedures it will follow for the production of ODNI information or
material in proceedings before federal, state, local or other
government entity of competent jurisdiction.
DATES: Submit comments on or before November 17, 2008.
ADDRESSES: You may submit comments by either of the following methods:
Mail: Office of the Director of National Intelligence--Office of
the General Counsel, Washington, DC 20511, Attention: Tricia Wellman.
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
FOR FURTHER INFORMATION CONTACT: Tricia Wellman, (703) 275-2527.
SUPPLEMENTARY INFORMATION: The Office of the Director of National
Intelligence (ODNI) was created by the Intelligence Reform and
Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat.3638.
The ODNI began operations on April 22, 2005, the day after the first
Director of National Intelligence took office. Since that time the ODNI
has been working to publish regulations for matters that may affect the
public.
This regulation outlines the procedures current and former ODNI
employees must follow when they receive a demand for ODNI information
or material in connection with proceedings before federal, state, local
or other government entity of competent jurisdiction. These regulations
are typically called Touhy regulations because of the Supreme Court's
decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951),
in which the Court held that an agency employee could not be held in
contempt for refusing to disclose agency records or information when
following the instructions of his or her supervisor.
Lists of Subjects in 32 CFR Part 1703
Courts, government employees.
Title 32 of the Code of Federal Regulations is amended by adding
Part 1703 to read as follows:
PART 1703--PRODUCTION OF ODNI INFORMATION OR MATERIAL IN
PROCEEDINGS BEFORE FEDERAL, STATE, LOCAL OR OTHER GOVERNMENT ENTITY
OF COMPETENT JURISDICTION
Sec.
1703.1 Scope and purpose.
1703.2 Definitions.
1703.3 General.
1703.4 Procedure for production.
1703.5 Interpretation.
Authority: The Intelligence Reform and Terrorism Prevention Act
of 2004, Public Law No. 108-458, 118 Stat. 3638 (2004); National
Security Act of 1947, as amended, 50 U.S.C. sec. 401 et seq.;
Executive Order 12333, as amended; and United States ex rel. Touhy
v. Ragen, 340 U.S. 462 (1951).
Sec. 1703.1 Scope and purpose.
This Part sets forth the policy and procedures with respect to the
production or disclosure of material contained in the files of the
ODNI, information relating to or based upon material contained in the
files of the ODNI, and information acquired by any person while such
person was an employee of the ODNI as part of the performance of that
person's official duties or because of that person's association with
the ODNI.
Sec. 1703.2 Definitions.
The following definitions apply to this Part:
Defenses: Any and all legal defenses, privileges or objections
available to the ODNI in response to a demand.
Demand:
(1) Any subpoena, order or other legal summons issued by a federal,
state, local or other government entity of competent jurisdiction with
the authority to require a response on a particular matter or a request
for appearance of an individual where a demand could issue.
(2) Any request for production or disclosure which may result in
the issuance of a subpoena, order, or other legal process to compel
production or disclosure.
DNI: The Director of National Intelligence.
General Counsel: The ODNI's General Counsel, Acting General Counsel
or Deputy General Counsel.
ODNI: The Office of the Director of National Intelligence and all
of its components, including, but not limited to, the Office of the
National Counterintelligence Executive, the National Counterterrorism
Center, the National Counterproliferation Center, the Program Manager
for the Information Sharing Environment, and all national intelligence
centers and program managers the DNI may establish.
ODNI Employee: Any current or former employee, contractor,
independent contractor, assignee or detailee to the ODNI.
ODNI Information or Material: Information or material that is
contained in ODNI files, related to or based upon material contained in
ODNI files or acquired by any ODNI employee as part of that employee's
official duties or because of that employee's association with the
ODNI.
OGC: The Office of the General Counsel of the ODNI.
OGC Attorney: Any attorney in the OGC.
Proceeding: Any matter before a court of law, administrative law
judge, administrative tribunal or commission or other body that
conducts legal or administrative proceedings, and includes all phases
of the proceeding.
Production or Produce: The disclosure of ODNI information or
material in response to a demand.
Sec. 1703.3 General.
(a) No ODNI employee shall respond to a demand for ODNI information
or material without prior authorization as set forth in this Part.
(b) This part is intended only to provide procedures for responding
to
[[Page 61773]]
demands for production of documents or information, and does not create
any right or benefit, substantive or procedural, enforceable by any
party against the United States.
Sec. 1703.4 Procedure for production.
(a) Whenever a demand is made for ODNI information or material, the
employee who received the demand shall immediately notify OGC ((703)
275-2527). The OGC and the ODNI employee shall then follow the
procedures set forth in this section.
(b) The OGC may assert any and all defenses before any search for
potentially responsive ODNI information or material begins. Further, in
its sole discretion the ODNI may decline to begin a search for
potentially responsive ODNI information or material until a final and
non-appealable disposition of any or all of the asserted defenses is
made by the federal, state, local or government entity of competent
jurisdiction. When the OGC determines that it is appropriate to search
for potentially responsive ODNI information and material, the OGC will
forward the demand to the appropriate ODNI offices or entities with
responsibility for the ODNI information or material sought in the
demand. Those ODNI offices or entities shall then search for and
provide to the OGC all potentially responsive ODNI information and
material. The OGC may then assert any and all defenses to the
production of what it determines is responsive ODNI information or
material.
(c) In reaching a decision on whether to produce responsive ODNI
information or material, or to object to the demand, the OGC shall
consider whether:
(1) Any relevant privileges are applicable;
(2) The applicable rules of discovery or procedure require
production;
(3) Production would violate a statute, regulation, executive order
or other provision of law;
(4) Production would violate a non-disclosure agreement;
(5) Production would be inconsistent with the DNI's responsibility
to protect intelligence sources and methods, or reveal classified
information or state secrets;
(6) Production would violate a specific ODNI policy issuance or
instruction; and
(7) Production would unduly interfere with the orderly conduct of
ODNI functions.
(d) If oral or written testimony is sought by a demand in a case or
matter in which the ODNI is not a party, a reasonably detailed
description of the testimony sought in the form of an affidavit, or a
written statement if that is not feasible, by the party seeking the
testimony or its attorney must be furnished to the OGC.
(e) The OGC shall notify the appropriate employees of all decisions
regarding responses to demands and provide advice and counsel for the
implementation of the decisions.
(f) If response to a demand is required before a decision is made
whether to provide responsive ODNI information or material, an OGC
attorney will request that a Department of Justice attorney appear with
the ODNI employee upon whom that demand has been made before the court
or other competent authority and provide it with a copy of this
regulation and inform the court or other authority as to the status of
the demand. The court will be requested to stay the demand pending
resolution by the ODNI. If the request for a stay is denied or there is
a ruling that the demand must be complied with irrespective of
instructions rendered in accordance with this Part, the employee upon
whom the demand was made shall, if directed to do so by the General
Counsel or its designee, respectfully decline to comply with the demand
under the authority of United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), and this regulation.
(g) ODNI officials may delegate in writing any authority given to
them in this Part to subordinate officials.
(h) Any individual or entity not an ODNI employee as defined in
this Part who receives a demand for the production or disclosure of
ODNI information or material acquired because of that person's or
entity's association with the ODNI should notify the OGC ((703) 275-
2527) for guidance and assistance. In such cases the provisions of this
regulation shall be applicable.
Sec. 1703.5 Interpretation.
Any questions concerning interpretation of this Regulation shall be
referred to the OGC for resolution.
Dated: October 2, 2008.
Corin R. Stone,
Deputy General Counsel, Office of the Director of National
Intelligence.
[FR Doc. E8-24747 Filed 10-16-08; 8:45 am]
BILLING CODE 3910-A7-P
