Requests for Testimony or the Production of Records in a Court or Other Proceedings in Which the United States Is Not a Party, 15561-15564 [2012-6306]
Download as PDF
<![CDATA[
Federal Register / Vol. 77, No. 52 / Friday, March 16, 2012 / Rules and Regulations
information in dispute will have the
information in dispute clearly noted and
a copy of the concise statement
furnished, setting forth its reasons for
not making the requested changes, if
SIGAR chooses to file such a statement.
A copy of the individual’s statement,
and if it chooses, SIGAR’s statement,
will be sent to any prior transferee of the
disputed information who is listed on
the accounting required by 5 U.S.C.
552a(c).
srobinson on DSK4SPTVN1PROD with RULES
§ 9301.19
Officer, Office of the Special Inspector
General for Afghanistan Reconstruction,
2530 Crystal Drive, Arlington, VA
22202.
(5) A receipt for fees paid will be
given upon request.
Dated: March 12, 2012.
Steven J Trent,
Acting Inspector General, Special Inspector
General for Afghanistan Reconstruction.
[FR Doc. 2012–6335 Filed 3–15–12; 8:45 am]
BILLING CODE 3710–L9–P
Schedule of fees.
(a) Prohibitions against charging fees.
Individuals will not be charged for:
(1) The search and review of the
record;
(2) Any copies of the record produced
as a necessary part of the process of
making the record available for access;
or
(3) Any copies of the requested record
when it has been determined that access
can only be accomplished by providing
a copy of the record through the mail.
(b) Waiver. The Privacy Officer may,
at no charge, provide copies of a record
if it is determined that the production
of the copies is in the interest of the
Government.
(c) Fee schedule and method of
payment. Fees will be charged as
provided below except as provided in
paragraphs (a) and (b) of this section.
(1) Duplication of records. Records
will be duplicated at a rate of $.10 per
page for copying of 4 pages or more.
There is no charge for copying fewer
pages.
(2) Where it is anticipated that the
fees chargeable under this section will
amount to more than $25, the person
making the request shall be notified of
the amount of the anticipated fee or
such portion thereof as can readily be
estimated. In instances where the
estimated fees will greatly exceed $25,
an advance deposit may be required.
The notice or request for an advance
deposit shall extend an offer to the
person requesting to consult with the
Privacy Officer in order to reformulate
the request in a manner which will
reduce the fees, yet still meet the needs
of individuals making the request.
(3) Fees must be paid in full prior to
issuance of requested copies. In the
event the person requesting is in arrears
for previous requests copies will not be
provided for any subsequent request
until the arrears have been paid in full.
(4) Remittances shall be in the form
either of a personal check or bank draft
drawn on a bank in the United States,
or a postal money order. Remittances
shall be made payable to the order of the
Treasury of the United States and
mailed or delivered to the Privacy
VerDate Mar<15>2010
16:29 Mar 15, 2012
Jkt 226001
SPECIAL INSPECTOR GENERAL FOR
AFGHANISTAN RECONSTRUCTION
5 Part 9302
RIN 3460–AA02
Requests for Testimony or the
Production of Records in a Court or
Other Proceedings in Which the United
States Is Not a Party
Special Inspector General for
Afghanistan Reconstruction.
ACTION: Interim final rule.
AGENCY:
This interim final rule
establishes procedures for the public to
obtain the production or disclosure of
information and documents of Special
Inspector General for Afghanistan
Reconstruction (SIGAR) in connection
with legal proceedings in which neither
the United States nor the SIGAR is a
party. It sets forth the procedures used
when determining whether SIGAR
employees will be permitted to testify or
provide records relating to their official
duties when they are subpoenaed or
otherwise requested to testify. The rule
also specifies the criteria that SIGAR
officials are to use when deciding
whether to allow an employee to testify
or provide records.
DATES: This interim final rule is
effective March 16, 2012. Written
comments may be submitted by April
16, 2012.
ADDRESSES: Submit written comments
to Hugo Teufel, Acting General Counsel,
email: hugo.teufel.civ@mail.mil, Special
Inspector General for Afghanistan
Reconstruction, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT:
Hugo Teufel, Acting General Counsel, at
(703) 703–545–5990, email:
hugo.teufel.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
On January 28, 2008, the President
signed into law the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181), which created the
Special Inspector General for
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
15561
Afghanistan Reconstruction (SIGAR).
Under 5 U.S.C. 301, heads of Executive
or military departments may prescribe
regulations governing the conduct of its
employees and the custody, use, and
preservation of the department’s
records, papers, and property. Many
departments and agencies have
promulgated such regulations to provide
procedures for the disclosure of official
records and information.
Generally, these are termed Touhy
regulations, after the Supreme Court’s
decision in United States ex rel. Touhy
v. Regan, 340 U.S. 462 (1951). In that
case, the Supreme Court held that an
agency employee could not be held in
contempt for refusing to disclose agency
records or information when following
instructions of his or her supervisor
regarding the disclosure that were
issued pursuant to agency regulations.
As such, an agency’s Touhy regulations
are the instructions agency employees
are to follow when those employees
receive requests or demands to testify or
otherwise disclose agency records or
information.
SIGAR’s proposed Touhy regulations
provide generally that employees of
SIGAR may not disclose documents or
information in response to a demand or
order of a court or any other authority
without first being authorized by the
agency to do so. The purpose of these
regulations is to conserve valuable
agency resources, protect SIGAR
employees from becoming enmeshed in
litigation, and to protect sensitive
Government information and decision
making processes within the confines of
the law. In order to establish procedures
to facilitate public interaction with
SIGAR, SIGAR is issuing proposed and
interim final regulations.
II. The Interim Final Rule
This interim final rule establishes
procedures governing the disclosure of
information and records in connection
with court litigation and certain other
types of proceedings.
III. Procedural Requirements
This interim final rule is generally
similar to the Touhy procedures
concerning the disclosure of
information in litigation that have been
adopted by other agencies. Further, this
rule relates to agency management and
personnel. Accordingly, SIGAR has
determined that notice and public
procedure thereon are impracticable,
unnecessary and contrary to the public
interest pursuant to 5 U.S.C.
553(b)(3)(B). For the same reasons,
SIGAR has determined that this interim
rule should be issued without a delayed
effective date pursuant to 5 U.S.C.
E:\FR\FM\16MRR1.SGM
16MRR1
15562
Federal Register / Vol. 77, No. 52 / Friday, March 16, 2012 / Rules and Regulations
553(d)(3). Nevertheless, SIGAR will
consider any public comments on this
interim final rule before issuing its final
rule.
Because no notice of proposed
rulemaking is required, the provisions
of the Regulatory Flexibility Act (5
U.S.C. chapter 6) do not apply.
It has been determined that this
rulemaking is not a significant
regulatory action for the purposes of
Executive Order 12866. Accordingly, a
regulatory impact analysis is not
required.
List of Subjects in 5 CFR Part 9302
Courts, Government employees,
Freedom of information, Government
employees.
Authority and Issuance
For the reasons set forth above, 5 CFR
chapter LXXXIII is amended to add part
9302 to read as follows:
■
PART 9302—REQUESTS FOR
TESTIMONY OR THE PRODUCTION OF
RECORDS IN A COURT OR OTHER
PROCEEDINGS IN WHICH THE UNITED
STATES IS NOT A PARTY
Authority: Pub. L. 110–181 (Jan. 28, 2008),
Section 1229 (122 Stat. 378–85), as amended,
and Section 842 (122 Stat. 234–36), 10 U.S.C.
2302 note; and 5 U.S.C. 301.
srobinson on DSK4SPTVN1PROD with RULES
§ 9302.1
SIGAR Touhy regulations.
(a) Applicability. (1) This section sets
forth the policies and procedures of the
Special Inspector General for
Afghanistan Reconstruction (SIGAR or
the agency) regarding the testimony of
employees and former employees as
witnesses and the production or
disclosure of SIGAR documents or
information for use in legal proceedings
in which the United States is not a party
and where the demand is pursuant to a
subpoena, order or request (collectively
referred to in this section as a
‘‘demand’’).
(2) This section does not apply to any
legal proceeding in which an employee
is to testify while on leave status
regarding facts or events that are
unrelated to the official business of
SIGAR.
(3)(i) Nothing in this section affects
the rights and procedures governing
public access to agency records
pursuant to the Freedom of Information
Act (5 U.S.C. 552) or the Privacy Act
(5 U.S.C. 552a).
(ii) Demands in legal proceedings in
which the United States is not a party
for the production of SIGAR records or
information, or for the testimony of
SIGAR employees, regarding
information or documents that are
VerDate Mar<15>2010
16:29 Mar 15, 2012
Jkt 226001
protected by the Privacy Act (5 U.S.C.
552a), the Trade Secrets Act (18 U.S.C.
1905) or other statutes, must satisfy the
requirements for disclosure set forth in
those statutes and the applicable
regulations of this part, before the
records may be provided or testimony
given.
(4) This section is intended to provide
guidance for the internal operations of
SIGAR and to inform the public about
SIGAR procedures concerning service of
process upon SIGAR and its responses
to demands. The procedures specified
in this section, or the failure of any
SIGAR employee to follow the
procedures specified in this section, are
not intended to, do not, and may not be
relied upon to create a right or benefit,
substantive or procedural, enforceable at
law by a party against the United States.
(b) Definitions. For purposes of this
section:
Agency counsel means: SIGAR’s
General Counsel or his or her designee.
Demand means a subpoena, order or
request for testimony, documents or
information related to, or for possible
use in, a legal proceeding in which the
United States is not a party.
Document means any record or other
property, no matter what media, and
including copies thereof, held by
SIGAR, including without limitation,
letters, Emails, telegrams, memoranda,
facsimiles, reports, studies, calendar
and diary entries, maps, graphs,
pamphlets, notes, charts, tabulations,
analyses, statistical or informational
accumulations, summaries of meetings
and conversations, film impressions,
magnetic tapes and sound or
mechanical reproductions.
Employee means all employees or
officers of SIGAR, including (for the
purpose of this section only) contractors
and any other individuals who have
been appointed by, or are subject to the
supervision, jurisdiction or control of
SIGAR. The procedures established
within this subpart also apply to former
employees of SIGAR where specifically
stated in this section.
General Counsel means the General
Counsel of SIGAR.
Legal proceeding means all pretrial,
trial and post-trial stages of all judicial
or administrative actions, hearings,
investigations, arbitrations or similar
proceedings before courts, commissions,
boards, grand juries, or other tribunals,
foreign or domestic. This term includes
all phases of discovery as well as
responses to informal requests by
attorneys or others involved in legal
proceedings seeking interviews or the
like.
Official business means the
authorized business of SIGAR as stated
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
in the ‘‘National Defense Authorization
Act for Fiscal Year 2008,’’ Pub. L. 110–
181 (Jan. 28, 2008), Section 1229 (122
Stat. 378–85), as amended, and Section
842 (122 Stat. 234–36), 10 U.S.C. 2302
note.
Testimony means an employee’s
statement in any form, including
testifying before a court or other tribunal
or board, giving depositions, interviews,
telephonic, televised, videoconference
or videotaped statements, and providing
written responses to interrogatories,
admission requests or other discovery.
(c) SIGAR policy. (1) SIGAR was
established by Section 1229 of the
National Defense Authorization Act for
Fiscal Year 2008, Public Law 110–181
(January 28, 2008), as a wartime or
overseas contingency operation
oversight agency of the United States
Government’s Executive Branch.
SIGAR’s Inspector General is appointed
by the President of the United States.
See Pub. L. 110–181, Section 1229(c).
SIGAR performs oversight of
Afghanistan reconstruction and security
programs, operations and contracts to
prevent and detect waste, fraud and
abuse pursuant to Sections 1229 and
842 of Public Law 110–181. The records
of an inspector general frequently
contain sensitive law enforcement
information that is protected from
disclosure or obtained under guarantees
of confidentiality.
(2) In appropriate cases, the agency
counsel shall notify the United States
Department of Justice (DOJ) of the
demand and coordinate with the DOJ to
file any appropriate motions or other
pleadings.
(3) No current or former employee
shall, in response to a demand, produce
any SIGAR documents, provide
testimony regarding any information
relating to or based upon SIGAR
documents, or disclose any information
or produce materials acquired as part of
the performance of that employee’s
official duties or official status, in a
legal proceeding in which the United
States is not a party, without the prior
written authorization of the General
Counsel. See United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951);
and 5 U.S.C. 301 (‘‘The head of an
Executive department or military
department may prescribe regulations
for the government of his department,
the conduct of its employees, the
distribution and performance of its
business, and the custody, use, and
preservation of its records, papers, and
property. This section does not
authorize withholding information from
the public or limiting the availability of
records to the public.’’)
E:\FR\FM\16MRR1.SGM
16MRR1
srobinson on DSK4SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 52 / Friday, March 16, 2012 / Rules and Regulations
(d) Procedures for demand for
testimony or production of documents.
(1) A written demand directed to
SIGAR for the testimony of a SIGAR
employee or for the production of
documents shall be served in
accordance with the requirements of the
Federal Rules of Civil Procedure,
Federal Rules of Criminal Procedure, or
applicable state procedures, as
appropriate. If the demand is served by
the U.S. mails, it should be addressed to
the General Counsel, Special Inspector
General for Afghanistan Reconstruction,
2530 Crystal Drive, Arlington, VA
22202–3940. If the demand is served by
overnight delivery service or courier, it
should be directed to the General
Counsel, Special Inspector General for
Afghanistan Reconstruction, 2530
Crystal Drive, Arlington, VA 22202–
3940. SIGAR’s acceptance of a demand
shall not constitute an admission or
waiver of any objection with respect to
the propriety of jurisdiction, service of
process, venue, or any other defense in
law or equity available under applicable
law.
(2) A subpoena or other demand for
testimony directed to an employee or
former employee shall be served in
accordance with the Federal Rules of
Civil or Criminal Procedure or
applicable State procedure; and a copy
of the subpoena or demand shall be
delivered to the General Counsel.
(3)(i) Touhy Request. In court cases in
which the United States or SIGAR is not
a party, where the giving of testimony
or the production of documents by
SIGAR, or a current or former employee
is desired, a verified statement
(declaration under penalty of perjury)
by the litigant or his counsel, setting
forth the information with respect to
which the testimony or production is
desired (‘‘Touhy Request’’), must be
submitted in order to obtain a decision
concerning whether such testimony or
production will be authorized by
SIGAR. The Touhy Request should
include: the title of the legal proceeding,
the court or other forum, the requesting
party’s interest in the legal proceeding,
a statement whether other evidence
reasonably suited to the requester’s
needs is not otherwise available, and, if
testimony is requested, the subject
matter and intended use of the
testimony, a statement whether
document(s) could be provided in lieu
of testimony to satisfy the request, and
a statement that the requester will
submit a check for costs of duplication
at commercially reasonable rates to
SIGAR if the request is granted. The
purpose of these requirements is to
assist the General Counsel in making a
fair and informed decision under
VerDate Mar<15>2010
16:29 Mar 15, 2012
Jkt 226001
governing law regarding whether
testimony or the production of
document should be authorized and
under what conditions, if any.
Permission to testify or produce
documents will be limited to the areas
of proposed testimony described in the
Touhy Request.
(ii) Agency counsel may consult or
negotiate with an attorney for a party or
the party, if not represented by an
attorney, to refine or limit a demand so
that compliance is less burdensome or
to obtain information necessary to make
the determination required by paragraph
(e) of this section. Failure of the
requester to cooperate in good faith to
enable the General Counsel to make an
informed determination under this
subpart may serve as a basis for denying
the Touhy Request.
(iii) A determination under this
section to comply or not to comply with
the Touhy Request is without prejudice
to the agency’s assertion of privilege,
lack of relevance, technical deficiency,
or any other objection to the demand.
(4)(i) Employees shall immediately
refer all inquiries and demands made to
SIGAR or its employees to the General
Counsel.
(ii) An employee who receives a
demand shall forward the demand to
the General Counsel, who will
determine the agency’s response to the
demand under this section.
(e) Factors to be considered by the
General Counsel with respect to a Touhy
Request. (1) In deciding whether to
authorize the release of official
information or the testimony of SIGAR
personnel concerning official
information (hereafter referred to as the
‘‘disclosure’’), the General Counsel shall
consider the following factors:
(i) Whether the demand is unduly
burdensome to the agency or otherwise
inappropriate under the applicable rules
of discovery, evidence and procedure
governing the litigation in which the
demand arose, balanced against the
need for the specific testimony or
documents sought;
(ii) Whether the demand is
appropriate under the relevant
substantive law of privilege and
disclosure of Government information,
or seeks information or documents
protected from disclosure under the
Freedom of Information Act, 5 U.S.C.
552(b), the Privacy Act, 5 U.S.C. 552a,
or the Inspector General Act of 1978, as
amended, 5 U.S.C. App.;
(iii) Whether the demand would
interfere with SIGAR’s statutory
mandate stated in the ‘‘National Defense
Authorization Act for Fiscal Year 2008,’’
Pub. L. 110–181 (Jan. 28, 2008), Section
1229 (122 Stat. 378–85), as amended;
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
15563
Pub. L. 110–181, Section 842 (122 Stat.
234–36), 10 U.S.C. 2302 note; or the
Inspector General Act of 1978, as
amended, 5 U.S.C. App.;
(iv) Whether the demand would be in
the public interest;
(v) The extent to which the time of
employees for conducting official
agency business would be
compromised;
(vi) Whether the request demonstrates
that the information requested is
relevant and material to the action
pending, genuinely necessary to the
proceeding, unavailable from other
sources, and reasonable in scope; and
(vii) Whether other similar requests
are likely to have a deleterious
cumulative effect on the expenditure of
agency time and resources.
(2) Among those demands and
requests in response to which
compliance will ordinarily not be
authorized are those with respect to
which any of the following factors
exists:
(i) The requested disclosure elicits
information or documents protected by
a statute, Executive Order or regulation,
including but not limited to Section 7(b)
of the Inspector General Act of 1978, as
amended, 5 U.S.C. App. 3, section 7(b),
or other prohibition from disclosure;
(ii) The requested disclosure would
interfere with ongoing enforcement
proceedings, compromise constitutional
rights, reveal the identity of an
intelligence source, confidential
informant or undercover agent, or
disclose trade secrets or similar
confidential commercial or financial
information.
(iii) The integrity of the
administrative and deliberative
processes of SIGAR would be
jeopardized;
(iv) The requested disclosure would
not be appropriate under the rules of
procedure governing the pending
litigation or matter in which the
demand arose;
(v) The requested disclosure is not
appropriate under the relevant
substantive law concerning privilege; or
(vi) The requested disclosure, except
when production is in camera, would
reveal information properly classified or
other matters exempt from unrestricted
disclosure.
(3) All decisions granting or denying
a Touhy Request must be in writing and,
if a denial, provide the grounds for the
decision in summary form based on one
or more of the factors listed above.
(f) Requests for opinion or expert
testimony. (1) Pursuant to 5 CFR
2635.805, an employee shall not
provide, with or without compensation,
opinion or expert testimony in any
E:\FR\FM\16MRR1.SGM
16MRR1
srobinson on DSK4SPTVN1PROD with RULES
15564
Federal Register / Vol. 77, No. 52 / Friday, March 16, 2012 / Rules and Regulations
proceeding before a court or agency of
the United States in which the United
States is a party or has a direct and
substantial interest, except on behalf of
the United States or a party represented
by the Department of Justice, without
written approval of agency counsel.
(2) Upon a showing by the requestor
of exceptional need or unique
circumstances, the General Counsel
may, in writing, grant authorization for
an employee, or former employee, to
appear and testify.
(3) Any expert or opinion testimony
by a former employee of SIGAR shall be
excepted from the restriction under 5
CFR 2635.805 where the testimony
involves only general expertise gained
while employed at SIGAR.
(g) Procedures when agency counsel
directs an employee not to testify or
provide documents. (1) If agency
counsel determines that an employee or
former employee should not comply
with a subpoena or other request for
testimony or the production of
documents, agency counsel will so
inform the employee and the requesting
party who submitted the demand.
(2) If, despite the determination of the
agency counsel that testimony should
not be given or documents not be
produced, a court of competent
jurisdiction or other tribunal orders the
employee or former employee to testify
and/or produce documents, the
employee shall promptly notify the
General Counsel of such Order.
(i) If agency counsel determines that
no further legal review of, appeal from,
or challenge to, the Order will be
sought, agency counsel shall promptly
inform the employee or former
employee of said determination.
(ii) If SIGAR determines to challenge
an Order directing testimony or the
production of documents in litigation in
which the United States is not a party,
the employee should not comply with
the Order. The employee should appear
at the time and place as commanded in
the order or subpoena. If legal counsel
cannot appear on behalf of the
employee, the employee should produce
a copy of this section and respectfully
inform the Court or other legal tribunal
that he/she has been advised by the
General Counsel not to provide the
requested testimony or documents
pursuant to the decision of the United
States Supreme Court in United States
ex rel. Touhy v. Ragen, 340 U.S. 462
(1951), and this section. Agency counsel
will coordinate with the DOJ to file such
motions or other pleadings that may be
deemed appropriate in the
circumstances, such as, for example, a
notice to remove the case from state
court to Federal court, or a motion to
VerDate Mar<15>2010
16:29 Mar 15, 2012
Jkt 226001
quash or modify the subpoena, or a
motion for a protective order.
(h) Fees. In the event that a Touhy
Request is granted, SIGAR may charge
reasonable fees to parties seeking
official information or records. Such
fees are calculated to reimburse the
Government for the expense of
providing such information or records,
and may include the costs of time
expended by SIGAR employees to
process and respond to the request;
attorney time for reviewing the request
and any responsive records and for
related legal work in connection with
the request; and reasonable expenses
generated by materials and equipment
used to search for, produce, and copy
the responsive information or records.
Dated: March 12, 2012.
Steven J Trent,
Acting Inspector General, Special Inspector
General for Afghanistan Reconstruction.
[FR Doc. 2012–6306 Filed 3–15–12; 8:45 am]
BILLING CODE 3710–L9–P
DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1735
RIN 0572–AC24
Expansion of 911 Access Loans and
Loan Guarantees
Rural Utilities Service, USDA.
Affirmation of interim rule as
final rule.
AGENCY:
ACTION:
The Rural Utilities Service
(RUS) is adopting as a final rule,
without change, an interim rule to
implement the Expansion of 911 as
authorized by Section 315 of the Rural
Electrification Act of 1936 (RE Act) as
provided for in Section 6107 of the
Food, Conservation, and Energy Act of
2008 (2008 Farm Bill). The interim rule
codified the Secretary’s authority to
make loans in five areas of eligibility to
expand or improve 911 access and
integrated emergency communications
systems in rural areas for the
Telecommunications Loan Program.
DATES: Effective on March 16, 2012, we
are adopting as a final rule the interim
rule published at 76 FR 56091–56094 on
September 12, 2011.
FOR FURTHER INFORMATION CONTACT:
David Villano, Assistant Administrator,
Telecommunications Program, USDA—
Rural Utilities Service, 1400
Independence Avenue SW., STOP 1590,
Room 5151–S, Washington, DC 20250–
1590. Telephone number: (202) 720–
9554, Facsimile: (202) 720–0810.
SUMMARY:
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
SUPPLEMENTARY INFORMATION:
Background
A. Introduction
The Agency improves the quality of
life in rural America by providing
investment capital for deployment of
rural telecommunications infrastructure.
Financial assistance is provided to rural
utilities; municipalities; commercial
corporations; limited liability
companies; public utility districts;
Indian tribes; and cooperative,
nonprofit, limited-dividend, or mutual
associations. In order to achieve the goal
of increasing economic opportunity in
rural America, the Agency finances
infrastructure that enables access to a
seamless, nationwide
telecommunications network. With
access to the same advanced
telecommunications networks as its
urban counterparts, especially
broadband networks designed to
accommodate distance learning,
telework, and telemedicine, rural
America will eventually see improving
educational opportunities, health care,
economies, safety and security, and
ultimately higher employment. The
Agency shares the assessment of
Congress, State and local officials,
industry representatives, and rural
residents that broadband service is a
critical component to the future of rural
America and modern emergency
communications capabilities are critical
to the safety and security of all
Americans. The Agency is committed to
ensuring that rural America will have
access to affordable, reliable,
telecommunications and broadband
services and to provide a healthy, safe,
and prosperous place to live and work.
B. Regulatory History
Following the September 11, 2001,
attacks on the United States, significant
Congressional attention was placed on
weaknesses in the nation’s emergency
communications capabilities. The
ability of rural communities, carriers
and emergency responders to keep up
with changing communications
technologies was and continues to be a
concern of emergency response
professionals. Interoperability; or the
ability of emergency responders from
various agencies and jurisdictions to
communicate with each other is also a
pressing national need.
In 2002, the Congress gave the RUS
statutory authority to ‘‘to expand or
improve 911 access and integrated
emergency communications systems in
rural areas’’ in section 315 of the RE Act
(6102 of the 2002 Farm Security and
Rural Investment Act of 2002). No
E:\FR\FM\16MRR1.SGM
16MRR1
]]>Agencies
- SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15561-15564]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6306]
-----------------------------------------------------------------------
SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
5 Part 9302
RIN 3460-AA02
Requests for Testimony or the Production of Records in a Court or
Other Proceedings in Which the United States Is Not a Party
AGENCY: Special Inspector General for Afghanistan Reconstruction.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes procedures for the public
to obtain the production or disclosure of information and documents of
Special Inspector General for Afghanistan Reconstruction (SIGAR) in
connection with legal proceedings in which neither the United States
nor the SIGAR is a party. It sets forth the procedures used when
determining whether SIGAR employees will be permitted to testify or
provide records relating to their official duties when they are
subpoenaed or otherwise requested to testify. The rule also specifies
the criteria that SIGAR officials are to use when deciding whether to
allow an employee to testify or provide records.
DATES: This interim final rule is effective March 16, 2012. Written
comments may be submitted by April 16, 2012.
ADDRESSES: Submit written comments to Hugo Teufel, Acting General
Counsel, email: hugo.teufel.civ@mail.mil, Special Inspector General for
Afghanistan Reconstruction, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Hugo Teufel, Acting General Counsel,
at (703) 703-545-5990, email: hugo.teufel.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
I. Background
On January 28, 2008, the President signed into law the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), which
created the Special Inspector General for Afghanistan Reconstruction
(SIGAR). Under 5 U.S.C. 301, heads of Executive or military departments
may prescribe regulations governing the conduct of its employees and
the custody, use, and preservation of the department's records, papers,
and property. Many departments and agencies have promulgated such
regulations to provide procedures for the disclosure of official
records and information.
Generally, these are termed Touhy regulations, after the Supreme
Court's decision in United States ex rel. Touhy v. Regan, 340 U.S. 462
(1951). In that case, the Supreme Court held that an agency employee
could not be held in contempt for refusing to disclose agency records
or information when following instructions of his or her supervisor
regarding the disclosure that were issued pursuant to agency
regulations. As such, an agency's Touhy regulations are the
instructions agency employees are to follow when those employees
receive requests or demands to testify or otherwise disclose agency
records or information.
SIGAR's proposed Touhy regulations provide generally that employees
of SIGAR may not disclose documents or information in response to a
demand or order of a court or any other authority without first being
authorized by the agency to do so. The purpose of these regulations is
to conserve valuable agency resources, protect SIGAR employees from
becoming enmeshed in litigation, and to protect sensitive Government
information and decision making processes within the confines of the
law. In order to establish procedures to facilitate public interaction
with SIGAR, SIGAR is issuing proposed and interim final regulations.
II. The Interim Final Rule
This interim final rule establishes procedures governing the
disclosure of information and records in connection with court
litigation and certain other types of proceedings.
III. Procedural Requirements
This interim final rule is generally similar to the Touhy
procedures concerning the disclosure of information in litigation that
have been adopted by other agencies. Further, this rule relates to
agency management and personnel. Accordingly, SIGAR has determined that
notice and public procedure thereon are impracticable, unnecessary and
contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). For
the same reasons, SIGAR has determined that this interim rule should be
issued without a delayed effective date pursuant to 5 U.S.C.
[[Page 15562]]
553(d)(3). Nevertheless, SIGAR will consider any public comments on
this interim final rule before issuing its final rule.
Because no notice of proposed rulemaking is required, the
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply.
It has been determined that this rulemaking is not a significant
regulatory action for the purposes of Executive Order 12866.
Accordingly, a regulatory impact analysis is not required.
List of Subjects in 5 CFR Part 9302
Courts, Government employees, Freedom of information, Government
employees.
Authority and Issuance
0
For the reasons set forth above, 5 CFR chapter LXXXIII is amended to
add part 9302 to read as follows:
PART 9302--REQUESTS FOR TESTIMONY OR THE PRODUCTION OF RECORDS IN A
COURT OR OTHER PROCEEDINGS IN WHICH THE UNITED STATES IS NOT A
PARTY
Authority: Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122
Stat. 378-85), as amended, and Section 842 (122 Stat. 234-36), 10
U.S.C. 2302 note; and 5 U.S.C. 301.
Sec. 9302.1 SIGAR Touhy regulations.
(a) Applicability. (1) This section sets forth the policies and
procedures of the Special Inspector General for Afghanistan
Reconstruction (SIGAR or the agency) regarding the testimony of
employees and former employees as witnesses and the production or
disclosure of SIGAR documents or information for use in legal
proceedings in which the United States is not a party and where the
demand is pursuant to a subpoena, order or request (collectively
referred to in this section as a ``demand'').
(2) This section does not apply to any legal proceeding in which an
employee is to testify while on leave status regarding facts or events
that are unrelated to the official business of SIGAR.
(3)(i) Nothing in this section affects the rights and procedures
governing public access to agency records pursuant to the Freedom of
Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a).
(ii) Demands in legal proceedings in which the United States is not
a party for the production of SIGAR records or information, or for the
testimony of SIGAR employees, regarding information or documents that
are protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act
(18 U.S.C. 1905) or other statutes, must satisfy the requirements for
disclosure set forth in those statutes and the applicable regulations
of this part, before the records may be provided or testimony given.
(4) This section is intended to provide guidance for the internal
operations of SIGAR and to inform the public about SIGAR procedures
concerning service of process upon SIGAR and its responses to demands.
The procedures specified in this section, or the failure of any SIGAR
employee to follow the procedures specified in this section, are not
intended to, do not, and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law by a party
against the United States.
(b) Definitions. For purposes of this section:
Agency counsel means: SIGAR's General Counsel or his or her
designee.
Demand means a subpoena, order or request for testimony, documents
or information related to, or for possible use in, a legal proceeding
in which the United States is not a party.
Document means any record or other property, no matter what media,
and including copies thereof, held by SIGAR, including without
limitation, letters, Emails, telegrams, memoranda, facsimiles, reports,
studies, calendar and diary entries, maps, graphs, pamphlets, notes,
charts, tabulations, analyses, statistical or informational
accumulations, summaries of meetings and conversations, film
impressions, magnetic tapes and sound or mechanical reproductions.
Employee means all employees or officers of SIGAR, including (for
the purpose of this section only) contractors and any other individuals
who have been appointed by, or are subject to the supervision,
jurisdiction or control of SIGAR. The procedures established within
this subpart also apply to former employees of SIGAR where specifically
stated in this section.
General Counsel means the General Counsel of SIGAR.
Legal proceeding means all pretrial, trial and post-trial stages of
all judicial or administrative actions, hearings, investigations,
arbitrations or similar proceedings before courts, commissions, boards,
grand juries, or other tribunals, foreign or domestic. This term
includes all phases of discovery as well as responses to informal
requests by attorneys or others involved in legal proceedings seeking
interviews or the like.
Official business means the authorized business of SIGAR as stated
in the ``National Defense Authorization Act for Fiscal Year 2008,''
Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat. 378-85), as
amended, and Section 842 (122 Stat. 234-36), 10 U.S.C. 2302 note.
Testimony means an employee's statement in any form, including
testifying before a court or other tribunal or board, giving
depositions, interviews, telephonic, televised, videoconference or
videotaped statements, and providing written responses to
interrogatories, admission requests or other discovery.
(c) SIGAR policy. (1) SIGAR was established by Section 1229 of the
National Defense Authorization Act for Fiscal Year 2008, Public Law
110-181 (January 28, 2008), as a wartime or overseas contingency
operation oversight agency of the United States Government's Executive
Branch. SIGAR's Inspector General is appointed by the President of the
United States. See Pub. L. 110-181, Section 1229(c). SIGAR performs
oversight of Afghanistan reconstruction and security programs,
operations and contracts to prevent and detect waste, fraud and abuse
pursuant to Sections 1229 and 842 of Public Law 110-181. The records of
an inspector general frequently contain sensitive law enforcement
information that is protected from disclosure or obtained under
guarantees of confidentiality.
(2) In appropriate cases, the agency counsel shall notify the
United States Department of Justice (DOJ) of the demand and coordinate
with the DOJ to file any appropriate motions or other pleadings.
(3) No current or former employee shall, in response to a demand,
produce any SIGAR documents, provide testimony regarding any
information relating to or based upon SIGAR documents, or disclose any
information or produce materials acquired as part of the performance of
that employee's official duties or official status, in a legal
proceeding in which the United States is not a party, without the prior
written authorization of the General Counsel. See United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951); and 5 U.S.C. 301 (``The head of an
Executive department or military department may prescribe regulations
for the government of his department, the conduct of its employees, the
distribution and performance of its business, and the custody, use, and
preservation of its records, papers, and property. This section does
not authorize withholding information from the public or limiting the
availability of records to the public.'')
[[Page 15563]]
(d) Procedures for demand for testimony or production of documents.
(1) A written demand directed to SIGAR for the testimony of a SIGAR
employee or for the production of documents shall be served in
accordance with the requirements of the Federal Rules of Civil
Procedure, Federal Rules of Criminal Procedure, or applicable state
procedures, as appropriate. If the demand is served by the U.S. mails,
it should be addressed to the General Counsel, Special Inspector
General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington,
VA 22202-3940. If the demand is served by overnight delivery service or
courier, it should be directed to the General Counsel, Special
Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive,
Arlington, VA 22202-3940. SIGAR's acceptance of a demand shall not
constitute an admission or waiver of any objection with respect to the
propriety of jurisdiction, service of process, venue, or any other
defense in law or equity available under applicable law.
(2) A subpoena or other demand for testimony directed to an
employee or former employee shall be served in accordance with the
Federal Rules of Civil or Criminal Procedure or applicable State
procedure; and a copy of the subpoena or demand shall be delivered to
the General Counsel.
(3)(i) Touhy Request. In court cases in which the United States or
SIGAR is not a party, where the giving of testimony or the production
of documents by SIGAR, or a current or former employee is desired, a
verified statement (declaration under penalty of perjury) by the
litigant or his counsel, setting forth the information with respect to
which the testimony or production is desired (``Touhy Request''), must
be submitted in order to obtain a decision concerning whether such
testimony or production will be authorized by SIGAR. The Touhy Request
should include: the title of the legal proceeding, the court or other
forum, the requesting party's interest in the legal proceeding, a
statement whether other evidence reasonably suited to the requester's
needs is not otherwise available, and, if testimony is requested, the
subject matter and intended use of the testimony, a statement whether
document(s) could be provided in lieu of testimony to satisfy the
request, and a statement that the requester will submit a check for
costs of duplication at commercially reasonable rates to SIGAR if the
request is granted. The purpose of these requirements is to assist the
General Counsel in making a fair and informed decision under governing
law regarding whether testimony or the production of document should be
authorized and under what conditions, if any. Permission to testify or
produce documents will be limited to the areas of proposed testimony
described in the Touhy Request.
(ii) Agency counsel may consult or negotiate with an attorney for a
party or the party, if not represented by an attorney, to refine or
limit a demand so that compliance is less burdensome or to obtain
information necessary to make the determination required by paragraph
(e) of this section. Failure of the requester to cooperate in good
faith to enable the General Counsel to make an informed determination
under this subpart may serve as a basis for denying the Touhy Request.
(iii) A determination under this section to comply or not to comply
with the Touhy Request is without prejudice to the agency's assertion
of privilege, lack of relevance, technical deficiency, or any other
objection to the demand.
(4)(i) Employees shall immediately refer all inquiries and demands
made to SIGAR or its employees to the General Counsel.
(ii) An employee who receives a demand shall forward the demand to
the General Counsel, who will determine the agency's response to the
demand under this section.
(e) Factors to be considered by the General Counsel with respect to
a Touhy Request. (1) In deciding whether to authorize the release of
official information or the testimony of SIGAR personnel concerning
official information (hereafter referred to as the ``disclosure''), the
General Counsel shall consider the following factors:
(i) Whether the demand is unduly burdensome to the agency or
otherwise inappropriate under the applicable rules of discovery,
evidence and procedure governing the litigation in which the demand
arose, balanced against the need for the specific testimony or
documents sought;
(ii) Whether the demand is appropriate under the relevant
substantive law of privilege and disclosure of Government information,
or seeks information or documents protected from disclosure under the
Freedom of Information Act, 5 U.S.C. 552(b), the Privacy Act, 5 U.S.C.
552a, or the Inspector General Act of 1978, as amended, 5 U.S.C. App.;
(iii) Whether the demand would interfere with SIGAR's statutory
mandate stated in the ``National Defense Authorization Act for Fiscal
Year 2008,'' Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat.
378-85), as amended; Pub. L. 110-181, Section 842 (122 Stat. 234-36),
10 U.S.C. 2302 note; or the Inspector General Act of 1978, as amended,
5 U.S.C. App.;
(iv) Whether the demand would be in the public interest;
(v) The extent to which the time of employees for conducting
official agency business would be compromised;
(vi) Whether the request demonstrates that the information
requested is relevant and material to the action pending, genuinely
necessary to the proceeding, unavailable from other sources, and
reasonable in scope; and
(vii) Whether other similar requests are likely to have a
deleterious cumulative effect on the expenditure of agency time and
resources.
(2) Among those demands and requests in response to which
compliance will ordinarily not be authorized are those with respect to
which any of the following factors exists:
(i) The requested disclosure elicits information or documents
protected by a statute, Executive Order or regulation, including but
not limited to Section 7(b) of the Inspector General Act of 1978, as
amended, 5 U.S.C. App. 3, section 7(b), or other prohibition from
disclosure;
(ii) The requested disclosure would interfere with ongoing
enforcement proceedings, compromise constitutional rights, reveal the
identity of an intelligence source, confidential informant or
undercover agent, or disclose trade secrets or similar confidential
commercial or financial information.
(iii) The integrity of the administrative and deliberative
processes of SIGAR would be jeopardized;
(iv) The requested disclosure would not be appropriate under the
rules of procedure governing the pending litigation or matter in which
the demand arose;
(v) The requested disclosure is not appropriate under the relevant
substantive law concerning privilege; or
(vi) The requested disclosure, except when production is in camera,
would reveal information properly classified or other matters exempt
from unrestricted disclosure.
(3) All decisions granting or denying a Touhy Request must be in
writing and, if a denial, provide the grounds for the decision in
summary form based on one or more of the factors listed above.
(f) Requests for opinion or expert testimony. (1) Pursuant to 5 CFR
2635.805, an employee shall not provide, with or without compensation,
opinion or expert testimony in any
[[Page 15564]]
proceeding before a court or agency of the United States in which the
United States is a party or has a direct and substantial interest,
except on behalf of the United States or a party represented by the
Department of Justice, without written approval of agency counsel.
(2) Upon a showing by the requestor of exceptional need or unique
circumstances, the General Counsel may, in writing, grant authorization
for an employee, or former employee, to appear and testify.
(3) Any expert or opinion testimony by a former employee of SIGAR
shall be excepted from the restriction under 5 CFR 2635.805 where the
testimony involves only general expertise gained while employed at
SIGAR.
(g) Procedures when agency counsel directs an employee not to
testify or provide documents. (1) If agency counsel determines that an
employee or former employee should not comply with a subpoena or other
request for testimony or the production of documents, agency counsel
will so inform the employee and the requesting party who submitted the
demand.
(2) If, despite the determination of the agency counsel that
testimony should not be given or documents not be produced, a court of
competent jurisdiction or other tribunal orders the employee or former
employee to testify and/or produce documents, the employee shall
promptly notify the General Counsel of such Order.
(i) If agency counsel determines that no further legal review of,
appeal from, or challenge to, the Order will be sought, agency counsel
shall promptly inform the employee or former employee of said
determination.
(ii) If SIGAR determines to challenge an Order directing testimony
or the production of documents in litigation in which the United States
is not a party, the employee should not comply with the Order. The
employee should appear at the time and place as commanded in the order
or subpoena. If legal counsel cannot appear on behalf of the employee,
the employee should produce a copy of this section and respectfully
inform the Court or other legal tribunal that he/she has been advised
by the General Counsel not to provide the requested testimony or
documents pursuant to the decision of the United States Supreme Court
in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and this
section. Agency counsel will coordinate with the DOJ to file such
motions or other pleadings that may be deemed appropriate in the
circumstances, such as, for example, a notice to remove the case from
state court to Federal court, or a motion to quash or modify the
subpoena, or a motion for a protective order.
(h) Fees. In the event that a Touhy Request is granted, SIGAR may
charge reasonable fees to parties seeking official information or
records. Such fees are calculated to reimburse the Government for the
expense of providing such information or records, and may include the
costs of time expended by SIGAR employees to process and respond to the
request; attorney time for reviewing the request and any responsive
records and for related legal work in connection with the request; and
reasonable expenses generated by materials and equipment used to search
for, produce, and copy the responsive information or records.
Dated: March 12, 2012.
Steven J Trent,
Acting Inspector General, Special Inspector General for Afghanistan
Reconstruction.
[FR Doc. 2012-6306 Filed 3-15-12; 8:45 am]
BILLING CODE 3710-L9-P
