Release of Official Information in Litigation and Presentation of Witness Testimony by DoD Personnel (Touhy Regulation), 26444-26448 [2021-10077]
Download as PDF
<![CDATA[
26444
Proposed Rules
Federal Register
Vol. 86, No. 92
Friday, May 14, 2021
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
FOR FURTHER INFORMATION CONTACT:
A. Summary of New and Amended
Regulatory Provisions and Their
Impact
DoD’s longstanding policy—that
official information should be made
Office of the Secretary
reasonably available for use in litigation,
as long as the information is not
32 CFR Part 97
classified, privileged, or otherwise
protected—is unchanged. This proposed
[Docket ID: DOD–2018–OS–0103]
rule modifies existing regulations at 32
RIN 0790–AK11
CFR part 97 primarily to clarify and
streamline the requirements for the
Release of Official Information in
proper submission of subpoenas and
Litigation and Presentation of Witness litigation requests, the factors that chief
Testimony by DoD Personnel (Touhy
legal advisors will consider when
Regulation)
responding, and the fees that may be
AGENCY: Office of the General Counsel of collected to cover associated expenses.
The modifications include:
the Department of Defense (DoD), DoD.
• Adding in § 97.1 references to 5
ACTION: Proposed rule.
U.S.C. 301 and the Supreme Court’s
SUMMARY: Commonly known as the
decision in United States ex rel. Touhy
Touhy regulation, this rule prescribes
v. Ragen, 340 U.S. 462 (1951), to note
the requirements for submitting
the legal basis for this rule’s purpose.
subpoenas and litigation requests to the
• Reorganizing the subsections in
Department as well as the procedures
§ 97.2 to provide a more practical order
that its personnel will follow to
of categories covered by and excluded
respond. The Department proposes to
from the rule.
amend and consolidate component-level
• Revising in § 97.3 the definition of
requirements and procedures into a
‘‘personnel’’ to make clear that the rule
single Department-level Touhy rule.
covers not only Service members and
civilian employees of every DoD
DATES: Comments must be received by
component, but also employees of other
July 13, 2021.
federal agencies who are assigned to,
ADDRESSES: You may submit comments,
detailed to, or otherwise affiliated with
identified by docket number and/or
a DoD component.
Regulatory Information Number (RIN)
• Adding in § 97.3 the defined term
number and title, by any of the
‘‘chief legal advisors’’ to replace the
following methods:
phrases ‘‘appropriate DoD official
• Federal Rulemaking Portal: https://
designated in paragraph (a) of this
www.regulations.gov. Follow the
section’’ and ‘‘appropriate DoD official
instructions for submitting comments.
designated in § 97.6(a),’’ which are used
• Mail: The DoD cannot receive
written comments at this time due to the awkwardly throughout the current rule
COVID–19 pandemic. Comments should to refer to a component’s chief attorney.
Also adding in § 97.3 the defined term
be sent electronically to the docket
‘‘court’’ to replace the awkward phrase
listed above.
Instructions: All submissions received ‘‘court of competent jurisdiction or
must include the agency name and
other appropriate authority’’ throughout
docket number or RIN for this Federal
the rule. These changes allow for
Register document. The general policy
cleaner sentences and result in a more
for comments and other submissions
straightforward rule that is easier to
from members of the public is to make
follow.
• Moving the definition of
these submissions available for public
‘‘disclosure’’ from § 97.6 to § 97.3, the
viewing on the internet at https://
Definitions section, so that the reader
www.regulations.gov as they are
received without change, including any may find it easily. For the same reason,
separating the defined terms ‘‘litigation’’
personal identifiers or contact
and ‘‘litigation request,’’ which appear
information.
DEPARTMENT OF DEFENSE
khammond on DSKJM1Z7X2PROD with PROPOSALS
Ms.
Denise Shellman, 703–571–0793,
denise.v.shellman.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
16:54 May 13, 2021
Jkt 253001
PO 00000
Frm 00001
Fmt 4702
Sfmt 4702
together in the current rule under the
definition of ‘‘litigation.’’
• Dividing the Responsibilities
section into two separate sections (GC
DoD and DoD Component heads);
dividing the Procedures section into five
separate sections (authorities, factors to
consider, requirements and
determinations, fees, and expert or
opinion testimony); and subdividing the
five new Procedures sections to list
separately each item that requesting
parties, personnel, and chief legal
advisors must take into account. These
formatting changes result in a more
streamlined rule that is easier to use.
The proposed revisions will also
consolidate four existing and one
proposed component-level rules, which
are redundant, into the existing
Department-level rule. When this
proposed rule is finalized, DoD will
rescind:
• The National Security Agency’s
Touhy regulation at 32 CFR part 93,
‘‘Acceptance of Service of Process;
Release of Official Information in
Litigation; and Testimony by NSA
Personnel as Witnesses’’;
• the Department of the Army’s
Touhy regulation at 32 CFR part 516,
‘‘Litigation’’;
• the Department of the Navy’s Touhy
regulation at 32 CFR part 725, ‘‘Release
of Official Information for Litigation
Purposes and Testimony by Department
of the Navy Personnel’’; and
• the Department of the Navy’s
additional rules on delivery of
personnel and production of official
records at 32 CFR part 720, ‘‘Delivery of
Personnel; Service of Process and
Subpoenas; Production of Official
Records’’.
In addition, DoD will not finalize the
National Reconnaissance Office’s
proposed Touhy regulation published in
the Federal Register on November 25,
2016 (81 FR 85196–85201), ‘‘Production
of Official Records or Disclosure of
Official Information in Proceedings
Before Federal, State or Local
Governmental Entities of Competent
Jurisdiction,’’ which would appear at 32
CFR part 267. This consolidation will
further streamline the litigation-request
process and promote uniformity across
the Department in the release of
information to third-party litigants.
E:\FR\FM\14MYP1.SGM
14MYP1
26445
Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Proposed Rules
B. Background and Legal Basis for This
Rule
The Housekeeping Statute, 5 U.S.C.
301, authorizes agency heads to
promulgate regulations governing ‘‘the
custody, use, and preservation of its
records, papers, and property.’’
The Supreme Court held in United
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951), that under such authority,
agency heads may establish procedures
for determining whether to release
official information and allow personnel
testimony sought through a subpoena or
other litigation request. This regulation
sets forth DoD’s procedures, which as
the Supreme Court explained, are useful
and necessary as a matter of internal
administration to prevent possible harm
from unrestricted disclosures in court.
In DoD Directive 5145.01, ‘‘General
Counsel of the Department of Defense
(GC DoD),’’ December 2, 2013, as
amended (available at https://
www.esd.whs.mil/Portals/54/
Documents/DD/issuances/dodd/
514501p.pdf), and pursuant to 10 U.S.C.
113, the Secretary of Defense has
delegated the authority to establish
those procedures to the General
Counsel.
C. Expected Impact of the Proposed
Rule
This rule action will not impose any
new costs. Consolidating Touhy
requirements into a single rule, along
with updating the rule to make it clearer
and more streamlined, will produce
efficiencies and uniformity to the
public’s benefit. Less attorney time will
be spent searching for only one rule and
complying with its requirements. After
consulting with subject matter experts
in the DoD Office of the General
Counsel and offices of the chief legal
Litigation
requests
in 2016
Impacted
requests
(%)
counsels of various components, the
Department concluded that attorneys for
third-party litigants will save an
estimated 30 minutes of research,
review, and compliance time per
subpoena or litigation request when
referring to the CFR for guidance.
For purposes of estimating the cost
savings, the Department’s subject matter
experts deemed it reasonable to use the
mean hourly wage for lawyers as
informed by the Bureau of Labor and
Statistics, $69.86.1 Subject matter
experts further advised that at least 80%
of subpoenas and litigation requests
submitted to DoD involve consultation
of the various rules in the CFR.2 An
average of 1,405 requests are received
annually across the entire Department,
according to Fiscal Year 2016 data.
When finalized, this rule should result
in an annual cost savings of
approximately $39,261.32, which is the
impacted percentage (80%) of total
annual requests (1,405) multiplied by
the attorney hours saved per request
(0.5) and the mean hourly wage
($69.86)—in other words,
0.8*1,405*0.5*69.86 = $39,261.32.
These savings are reflected in the chart
below.
Hours
saved per
request
Projected cost
savings to
public
Lawyers’
hourly wage
Rules
Components
93 .................................................
97 .................................................
267 ...............................................
516 ...............................................
720, 725 .......................................
NSA ..............................................
DoD ..............................................
NRO .............................................
Army .............................................
Navy .............................................
35
20
10
400
940
×
×
×
×
×
80
80
80
80
80
×
×
×
×
×
0.5
0.5
0.5
0.5
0.5
×
×
×
×
×
69.86
69.86
69.86
69.86
69.86
=
=
=
=
=
$978.04
558.88
279.44
11,177.60
26,267.36
Total ......................................
......................................................
....................
....
....................
....
....................
....
....................
=
39,261.32
In addition to these cost savings, there
will be an unquantified benefit of
transparency through access to official
information, while safeguarding
classified, privileged, and personally
identifiable information.
D. Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ Executive Order
13563, ‘‘Improving Regulation and
Regulatory Review,’’ and Congressional
Review Act (5 U.S.C. 801–08)
khammond on DSKJM1Z7X2PROD with PROPOSALS
This rule’s corresponding internal
issuance is DoD Directive 5405.2,
‘‘Release of Official Information in
Litigation and Testimony by DoD
Personnel as Witnesses,’’ July 23, 1985
(available at https://www.esd.whs.mil/
Portals/54/Documents/DD/issuances/
dodd/540502p.pdf). When this rule is
finalized, DoD Directive 5405.2 will be
reissued as DoD Instruction 5405.02,
‘‘Release of Official Information in
Litigation and Presentation of Witness
Testimony by DoD Personnel,’’ which
will be made available at https://
www.esd.whs.mil/Directives/issuances/
dodi/.
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distribute impacts, and equity).
1 This information can be found in the website of
the Bureau of Labor Statistics under National Wage
Data for Lawyers, Occupation Code 23–1011
VerDate Sep<11>2014
16:54 May 13, 2021
Jkt 253001
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. Following the requirements
of these Executive Orders, the Office of
Management and Budget has
determined that this proposed rule is
not a significant regulatory action under
section 3(f) of Executive Order 12866
nor a ‘‘major rule’’ as defined by 5
U.S.C. 804(2).
DoD estimates that the rule would
generate $9,309.05 in annualized cost
savings at the 7% discount rate,
discounted to a 2016 equivalent, over a
perpetual time as discussed in the
Expected Impact of the Proposed Rule
section. The present value savings are
estimated at $51,463.58.
E. Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
DoD certifies that this proposed rule
is not subject to the Regulatory
Flexibility Act, 5 U.S.C. 601, because it
would not have a significant economic
impact on a substantial number of small
entities. Therefore, the Regulatory
Flexibility Act, as amended, does not
require us to prepare a regulatory
flexibility analysis.
(available at https://www.bls.gov/oes/current/
oes231011.htm), last updated in May 2019.
2 The Department consulted with subject matter
experts in the DoD Office of the General Counsel
and offices of chief legal counsels of various
components, who provided the estimates of
impacted percentage of total requests and of the
attorney hours saved per request.
PO 00000
Frm 00002
Fmt 4702
Sfmt 4702
F. Section 202 of Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’ (2
U.S.C. 1532)
Section 202 of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1532, requires agencies to assess
anticipated costs and benefits before
issuing any rule whose mandates
require the expenditure of $100 million
E:\FR\FM\14MYP1.SGM
14MYP1
26446
Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Proposed Rules
or more (in 1995 dollars, adjusted
annually for inflation) in any one year.
This proposed rule will not mandate
any requirements for State, local, or
tribal governments, nor will it affect
private sector costs.
G. Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been determined that 32 CFR
part 97 does not impose reporting or
recordkeeping requirements under the
Paperwork Reduction Act.
H. Executive Order 13132,
‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This proposed rule will not have a
substantial effect on State and local
governments.
List of Subjects in 32 CFR Part 97
Archives and records, Courts,
Information.
Accordingly, 32 CFR part 97 is
proposed to be revised to read as
follows:
■
PART 97—RELEASE OF OFFICIAL
INFORMATION IN LITIGATION AND
PRESENTATION OF WITNESS
TESTIMONY BY DOD PERSONNEL
(TOUHY REGULATION)
Sec.
97.1
97.2
97.3
97.4
97.5
97.6
Purpose.
Applicability.
Definitions.
Policy.
Responsibilities—GC DoD.
Responsibilities—DoD Component
heads.
97.7 Procedures—authorities.
97.8 Procedures—factors to consider.
97.9 Procedures—requirements and
determinations.
97.10 Procedures—fees.
97.11 Procedures—expert or opinion
testimony.
Appendix A to part 97—Litigation Requests
and Demands to the Department of the
Navy.
khammond on DSKJM1Z7X2PROD with PROPOSALS
Authority: 5 U.S.C. 301, 10 U.S.C. 113.
§ 97.1
Purpose.
This part establishes policy, assigns
responsibilities, and prescribes
procedures for the release of official
information in litigation and the
presentation of witness testimony by
Department of Defense (DoD) personnel
pursuant to 5 U.S.C. 301 and the
Supreme Court’s decision in United
VerDate Sep<11>2014
16:54 May 13, 2021
Jkt 253001
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951).
§ 97.2
Applicability.
This part:
(a) Applies to the Office of the
Secretary of Defense, the Military
Departments, the Office of the Chairman
of the Joint Chiefs of Staff and the Joint
Staff, the Combatant Commands, the
Office of the Inspector General of the
Department of Defense, the Defense
Agencies, the DoD Field Activities, and
all other organizational entities within
the DoD (referred to collectively in this
part as the ‘‘DoD Components’’).
(b) Is intended only to provide
guidance for the internal operations of
the DoD, without displacing the
responsibility of the Department of
Justice to represent the United States in
litigation.
(c) Does not preclude official
comments on matters in litigation.
(d) Does not apply to the release of
official information or the presentation
of witness testimony in connection
with:
(1) Courts-martial convened by the
authority of a Military Department.
(2) Administrative proceedings or
investigations conducted by or for a
DoD Component.
(3) Security-clearance adjudicative
proceedings, including those conducted
pursuant to DoD Directive 5220.6,
‘‘Defense Industrial Personnel Security
Clearance Review Program,’’ January 2,
1992, as amended (available at https://
www.esd.whs.mil/Portals/54/
Documents/DD/issuances/dodd/
522006p.pdf).
(4) Administrative proceedings
conducted by or for the Equal
Employment Opportunity Commission
or the Merit Systems Protection Board.
(5) Negotiated grievance proceedings
conducted in accordance with a
collective bargaining agreement.
(6) Requests by government counsel
representing the United States or a
federal agency in litigation.
(7) Disclosures to federal, State, local,
or foreign authorities related to
investigations or other law-enforcement
activities conducted by a DoD lawenforcement officer, agent, or
organization.
(e) Does not affect in any way existing
laws or DoD programs governing:
(1) The release of official information
or the presentation of witness testimony
in grand jury proceedings.
(2) Freedom of Information Act
requests submitted pursuant to 32 CFR
part 286, even if the records sought are
related to litigation.
(3) Privacy Act requests submitted
pursuant to 32 CFR part 310, even if the
records sought are related to litigation.
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
(4) The release of official information
outside of litigation.
(f) Does not create any right or benefit
(substantive or procedural) enforceable
at law against the DoD or the United
States.
§ 97.3
Definitions.
These terms and their definitions are
for the purpose of this part.
Chief legal advisors. (1) The General
Counsel of the Department of Defense
(GC DoD).
(2) The General Counsel of a Military
Department.
(3) The Legal Counsel to the Chairman
of the Joint Chiefs of Staff.
(4) The Judge Advocate General of a
Military Service.
(5) The Staff Judge Advocate to the
Commandant of the Marine Corps.
(6) The Staff Judge Advocate to a
Combatant Commander.
(7) The General Counsel to the
Inspector General of the Department of
Defense.
(8) The General Counsel of a Defense
Agency.
(9) The General Counsel of a DoD
Field Activity.
(10) The chief legal advisor of any
other organizational entity within the
DoD.
Court. A federal, State, or local court,
tribunal, commission, board, or other
adjudicative body of competent
jurisdiction.
Demand. An order or subpoena by a
court of competent jurisdiction for the
production or release of official
information or for the presentation of
witness testimony by DoD personnel at
deposition or trial.
Disclosure. The release of official
information in litigation or the
presentation of witness testimony by
DoD personnel.
Litigation. All pretrial (e.g.,
discovery), trial, and post-trial stages of
existing judicial or administrative
actions, hearings, investigations, or
similar proceedings before a civilian
court, whether foreign or domestic.
Litigation request. Any written
request by a party in litigation or the
party’s attorney for the production or
release of official information or for the
presentation of witness testimony by
DoD personnel at deposition, trial, or
similar proceeding.
Official information. All information
of any kind and however stored that is
in the custody and control of the DoD,
relates to information in the custody
and control of the DoD, or was acquired
by DoD personnel due to their official
duties or status.
Personnel. (1) Present and former
(e.g., retired, separated) Service
E:\FR\FM\14MYP1.SGM
14MYP1
Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Proposed Rules
members, including Service academy
cadets and midshipmen.
(2) Present and former (e.g., retired,
separated) civilian employees of a DoD
Component, including non-appropriated
fund activity employees.
(3) Present and former (e.g., retired,
separated) employees of another federal
agency assigned to, detailed to, or
otherwise affiliated with a DoD
Component.
(4) Non-U.S. nationals who perform or
have performed services overseas for
any of the Military Services in
accordance with a status of forces
agreement.
(5) Any individuals who perform or
have performed services for a DoD
Component through a contractual
arrangement.
§ 97.4
Policy.
The DoD generally should make
official information reasonably available
for use in federal, State, and foreign
courts and other adjudicative bodies if
the information is not classified,
privileged, or otherwise protected from
public disclosure.
§ 97.5
Responsibilities—GC DoD.
The GC DoD has overall responsibility
for the policy in this part, oversees the
implementation of its procedures
throughout the DoD, and provides
supplemental guidance as appropriate.
§ 97.6 Responsibilities—DoD Component
heads.
The DoD Component heads:
(a) Implement the policy and
procedures in this part and, through
their chief legal advisors, provide
guidance for their respective
components.
(b) Must issue or update, as
appropriate, their respective
components’ implementing regulations
within 180 days of this part’s effective
date.
khammond on DSKJM1Z7X2PROD with PROPOSALS
§ 97.7
Procedures—authorities.
(a) In response to a litigation request
or demand, and after any required
coordination with the Department of
Justice, the chief legal advisors (see
§ 97.3) are authorized to:
(1) Determine whether their
respective DoD Components may release
official information originated by or in
the custody of such components.
(2) Determine whether personnel
assigned to, detailed to, or affiliated
with their respective DoD Components
may be contacted, interviewed, or used
as witnesses concerning official
information or, in exceptional
circumstances, as expert witnesses.
(3) Impose conditions or limitations
on disclosures approved pursuant to
VerDate Sep<11>2014
16:54 May 13, 2021
Jkt 253001
this paragraph (e.g., approve the release
of official information only to a federal
judge for in camera review).
(4) Assert claims of privilege or
protection before any court or
adjudicative body.
(b) The GC DoD may assume primary
responsibility for responding to any
litigation request or demand,
particularly if it involves terrorism,
espionage, nuclear weapons, or
intelligence means or sources.
§ 97.8
Procedures—factors to consider.
In making a determination pursuant
to § 97.7(a), the chief legal advisors will
consider whether:
(a) The litigation request or demand is
overbroad, unduly burdensome, or
otherwise inappropriate under
applicable law or court rules.
(b) The disclosure would be improper
(e.g., the information is irrelevant,
cumulative, or disproportional to the
needs of the case) under the rules of
procedure governing the litigation from
which the request or demand arose.
(c) The official information or witness
testimony is privileged or otherwise
protected from disclosure under
applicable law.
(d) The disclosure would violate a
statute, Executive order, regulation, or
policy.
(e) The disclosure would reveal:
(1) Information properly classified
pursuant to Volume 1 of DoD Manual
5200.01, ‘‘DoD Information Security
Program: Overview, Classification, and
Declassification,’’ February 24, 2012, as
amended (available at https://
www.esd.whs.mil/Portals/54/
Documents/DD/issuances/dodm/
520001m_vol1.pdf?ver=2018-05-04091448-843).
(2) Controlled Unclassified
Information pursuant to Volume 4 of
DoD Manual 5200.01, ‘‘DoD Information
Security Program: Controlled
Unclassified Information (CUI),’’
February 24, 2012, as amended
(available at https://www.esd.whs.mil/
Portals/54/Documents/DD/issuances/
dodm/520001-V4p.PDF?ver=2018-0509-115318-927).
(3) Technical data withheld pursuant
to 32 CFR part 250.
(4) Information otherwise exempt
from unrestricted disclosure.
(f) The disclosure would:
(1) Interfere with an ongoing
enforcement proceeding.
(2) Compromise a constitutional right.
(3) Expose an intelligence source or
confidential informant.
(4) Divulge a trade secret or similar
confidential information.
(5) Be otherwise inappropriate.
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
26447
§ 97.9 Procedures—requirements and
determinations.
(a) A litigation request or demand
must describe, in writing and with
specificity, the nature of the official
information or witness testimony
sought, its relevance to the litigation,
and other pertinent details addressing
the factors in § 97.8.
(b) Personnel who receive a litigation
request or demand must notify their
DoD Component’s chief legal advisor
immediately. Former personnel (e.g.,
retired Service members, separated
employees, past contractors) must notify
the chief legal advisor of the component
to which they were last assigned.
(c) If another DoD Component or
federal agency originated the responsive
information or otherwise has the
primary equity with respect to that
information, the chief legal advisor will:
(1) Transfer the litigation request or
demand (or the appropriate portions) to
such other component or agency for
action.
(2) Inform the requesting party or
issuing court.
(3) In case of conflict, elevate to the
GC DoD for resolution.
(d) If the litigation request or demand
requires a response before a
determination can be made, the chief
legal advisor will inform the requesting
party or the issuing court that the
request or demand is still under
consideration. The chief legal advisor
also may seek a stay from the court in
question until a final determination is
made.
(e) Upon making a final determination
pursuant to § 97.7(a), the chief legal
advisor will inform the requesting party
or issuing court.
(f) If the chief legal advisor approves
the release of official information or the
presentation of witness testimony,
personnel will limit the disclosure to
those matters specified in the litigation
request or demand, subject to any
conditions imposed by the chief legal
advisor. Personnel may not release,
produce, comment on, or testify about
any official information without the
chief legal advisor’s prior written
approval.
(g) If a court orders a disclosure that
the chief legal advisor previously
disapproved or has yet to approve,
personnel must respectfully decline to
comply with the court’s order unless the
chief legal advisor directs otherwise.
§ 97.10
Procedures—fees.
Parties seeking official information by
litigation request or demand may be
charged reasonable fees in accordance
with Volume 11A, Chapter 4 of DoD
7000.14–R, ‘‘Department of Defense
E:\FR\FM\14MYP1.SGM
14MYP1
26448
Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Proposed Rules
Financial Management Regulation:
Reimbursable Operations Policy: User
Fees,’’ July 2016 (available at https://
comptroller.defense.gov/Portals/45/
documents/fmr/current/11a/11a_
04.pdf), to reimburse expenses
associated with the government’s
response. These reimbursable expenses
may include the cost of:
(a) Materials and equipment used to
search for, copy, and produce
responsive information.
(b) Personnel time spent processing
and responding to the request or
demand.
(c) Attorney time spent assisting with
the government’s response, to include
reviewing the request or demand and
the potentially responsive information.
§ 97.11 Procedures—expert or opinion
testimony.
(a) Personnel may not present expert
or opinion testimony involving official
information, except when:
(1) The testimony is presented on
behalf of the United States, a federal
agency, or any party represented by the
Department of Justice.
(2) The chief legal advisor of the DoD
Component with primary equity has
granted special written approval upon a
showing of exceptional need or unique
circumstances, but only if the
anticipated testimony is not adverse to
the interests of the DoD or the United
States and is presented at no expense to
the government.
(b) If a court orders the presentation
of testimony disallowed by § 97.11(a),
personnel must respectfully decline to
comply with the court’s order unless the
chief legal advisor directs otherwise.
khammond on DSKJM1Z7X2PROD with PROPOSALS
Appendix A to part 97—Litigation
Requests and Demands to the
Department of the Navy
A litigation request to the Department of
the Navy must be submitted to the
appropriate determining authority as defined
in Secretary of the Navy Instruction
5820.8_, ‘‘Release of Official Information for
Litigation Purposes and Testimony by
Department of the Navy Personnel,’’ August
27, 1991, as amended (available at https://
www.secnav.navy.mil/doni/Directives/
05000%20General%20Management
%20Security%20and%20Safety
%20Services/05-800%20Laws%20and
%20Legal%20Services/5820.8A%20CH1.pdf).
As with all service of process on the
Department of the Navy, a demand (subpoena
or court order) must be delivered to the Naval
Litigation Office using registered or certified
mail, a commercial courier service, or a
process server. The address for all service of
process is: General Counsel of the
Department of the Navy, Naval Litigation
Office, 720 Kennon St. SE, Room 233,
Washington Navy Yard, DC 20374–5013.
VerDate Sep<11>2014
16:54 May 13, 2021
Jkt 253001
Answers to frequently asked questions on
Touhy requests are available at https://
www.jag.navy.mil/organization/documents/
Touhy_Requests.pdf. Contact the Office of
the General Counsel at 202–685–7039 or the
Office of the Judge Advocate General at 202–
685–5450 with any additional questions.
Appendix B to Part 97—Litigation
Requests and Demands to the
Department of the Air Force
A litigation request or demand to the
Department of the Air Force must be
submitted to the base-level or servicing Staff
Judge Advocate for the installation or
organization where the official information or
witness is located.
Should the information or witness be
located in a Headquarters-level office, the
request or demand must be submitted to the
Commercial Litigation Field Support Center
(for matters involving contracts, acquisition,
and procurement) or to the Air Force General
Litigation Division (for all other matters).
Their addresses are: Commercial Litigation
Field Support Center, AFLOA/JAQC, 1500 W
Perimeter Rd., Suite 4100, Joint Base
Andrews, MD 20762; Air Force General
Litigation Division, AFLOA/JACL, 1500 W
Perimeter Rd., Suite 1370, 1st Floor, Joint
Base Andrews, MD 20762.
Dated: May 7, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2021–10077 Filed 5–13–21; 8:45 am]
BILLING CODE 5001–06–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2020–0706; FRL–10023–
22–Region 3]
Air Plan Approval; Pennsylvania;
Emissions Statement Rule Certification
for the 2015 Ozone National Ambient
Air Quality Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
state implementation plan (SIP) revision
submitted by the Commonwealth of
Pennsylvania. This revision fulfills
Pennsylvania’s emissions statement
requirement for the 2015 ozone national
ambient air quality standard (NAAQS).
This action is being taken under the
Clean Air Act (CAA).
DATES: Written comments must be
received on or before June 14, 2021.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R03–
OAR–2020–0706 at https://
www.regulations.gov, or via email to
SUMMARY:
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
Talley.David@epa.gov. For comments
submitted at Regulations.gov, follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
confidential business information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Serena Nichols, Planning &
Implementation Branch (3AD30), Air &
Radiation Division, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103. The telephone number is (215)
814–2053. Ms. Nichols can also be
reached via electronic mail at
Nichols.Serena@epa.gov.
SUPPLEMENTARY INFORMATION: On April
23, 2020, the Pennsylvania Department
of Environmental Protection (PADEP)
submitted a revision to the
Pennsylvania SIP intended to satisfy the
Commonwealth’s obligations under the
CAA related to emissions statements for
the 2015 ozone NAAQS.
I. Background
On October 26, 2015, EPA revised the
ozone NAAQS from 0.075 parts per
million (ppm) to 0.070 ppm. See 80 FR
65291. Subsequently, on June 4, 2018,
EPA designated the PhiladelphiaWilmington-Atlantic City (PA-NJ-MDDE) Area as a marginal nonattainment
area for the 2015 ozone NAAQS. See 83
FR 25776. Pennsylvania’s portion of this
area includes Bucks, Chester, Delaware,
Montgomery, and Philadelphia
Counties. See 40 CFR 81.339.
Section 182 of the CAA identifies
plan submissions and requirements for
ozone nonattainment areas. Specifically,
section 182(a)(3)(B) of the CAA requires
E:\FR\FM\14MYP1.SGM
14MYP1
]]>Agencies
[Federal Register Volume 86, Number 92 (Friday, May 14, 2021)]
[Proposed Rules]
[Pages 26444-26448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10077]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 86, No. 92 / Friday, May 14, 2021 / Proposed
Rules
[[Page 26444]]
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 97
[Docket ID: DOD-2018-OS-0103]
RIN 0790-AK11
Release of Official Information in Litigation and Presentation of
Witness Testimony by DoD Personnel (Touhy Regulation)
AGENCY: Office of the General Counsel of the Department of Defense
(DoD), DoD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Commonly known as the Touhy regulation, this rule prescribes
the requirements for submitting subpoenas and litigation requests to
the Department as well as the procedures that its personnel will follow
to respond. The Department proposes to amend and consolidate component-
level requirements and procedures into a single Department-level Touhy
rule.
DATES: Comments must be received by July 13, 2021.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, by any of the
following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: The DoD cannot receive written comments at this time
due to the COVID-19 pandemic. Comments should be sent electronically to
the docket listed above.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
internet at https://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Denise Shellman, 703-571-0793,
[email protected].
SUPPLEMENTARY INFORMATION:
A. Summary of New and Amended Regulatory Provisions and Their Impact
DoD's longstanding policy--that official information should be made
reasonably available for use in litigation, as long as the information
is not classified, privileged, or otherwise protected--is unchanged.
This proposed rule modifies existing regulations at 32 CFR part 97
primarily to clarify and streamline the requirements for the proper
submission of subpoenas and litigation requests, the factors that chief
legal advisors will consider when responding, and the fees that may be
collected to cover associated expenses.
The modifications include:
Adding in Sec. 97.1 references to 5 U.S.C. 301 and the
Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951), to note the legal basis for this rule's purpose.
Reorganizing the subsections in Sec. 97.2 to provide a
more practical order of categories covered by and excluded from the
rule.
Revising in Sec. 97.3 the definition of ``personnel'' to
make clear that the rule covers not only Service members and civilian
employees of every DoD component, but also employees of other federal
agencies who are assigned to, detailed to, or otherwise affiliated with
a DoD component.
Adding in Sec. 97.3 the defined term ``chief legal
advisors'' to replace the phrases ``appropriate DoD official designated
in paragraph (a) of this section'' and ``appropriate DoD official
designated in Sec. 97.6(a),'' which are used awkwardly throughout the
current rule to refer to a component's chief attorney. Also adding in
Sec. 97.3 the defined term ``court'' to replace the awkward phrase
``court of competent jurisdiction or other appropriate authority''
throughout the rule. These changes allow for cleaner sentences and
result in a more straightforward rule that is easier to follow.
Moving the definition of ``disclosure'' from Sec. 97.6 to
Sec. 97.3, the Definitions section, so that the reader may find it
easily. For the same reason, separating the defined terms
``litigation'' and ``litigation request,'' which appear together in the
current rule under the definition of ``litigation.''
Dividing the Responsibilities section into two separate
sections (GC DoD and DoD Component heads); dividing the Procedures
section into five separate sections (authorities, factors to consider,
requirements and determinations, fees, and expert or opinion
testimony); and subdividing the five new Procedures sections to list
separately each item that requesting parties, personnel, and chief
legal advisors must take into account. These formatting changes result
in a more streamlined rule that is easier to use.
The proposed revisions will also consolidate four existing and one
proposed component-level rules, which are redundant, into the existing
Department-level rule. When this proposed rule is finalized, DoD will
rescind:
The National Security Agency's Touhy regulation at 32 CFR
part 93, ``Acceptance of Service of Process; Release of Official
Information in Litigation; and Testimony by NSA Personnel as
Witnesses'';
the Department of the Army's Touhy regulation at 32 CFR
part 516, ``Litigation'';
the Department of the Navy's Touhy regulation at 32 CFR
part 725, ``Release of Official Information for Litigation Purposes and
Testimony by Department of the Navy Personnel''; and
the Department of the Navy's additional rules on delivery
of personnel and production of official records at 32 CFR part 720,
``Delivery of Personnel; Service of Process and Subpoenas; Production
of Official Records''.
In addition, DoD will not finalize the National Reconnaissance
Office's proposed Touhy regulation published in the Federal Register on
November 25, 2016 (81 FR 85196-85201), ``Production of Official Records
or Disclosure of Official Information in Proceedings Before Federal,
State or Local Governmental Entities of Competent Jurisdiction,'' which
would appear at 32 CFR part 267. This consolidation will further
streamline the litigation-request process and promote uniformity across
the Department in the release of information to third-party litigants.
[[Page 26445]]
B. Background and Legal Basis for This Rule
The Housekeeping Statute, 5 U.S.C. 301, authorizes agency heads to
promulgate regulations governing ``the custody, use, and preservation
of its records, papers, and property.''
The Supreme Court held in United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951), that under such authority, agency heads may establish
procedures for determining whether to release official information and
allow personnel testimony sought through a subpoena or other litigation
request. This regulation sets forth DoD's procedures, which as the
Supreme Court explained, are useful and necessary as a matter of
internal administration to prevent possible harm from unrestricted
disclosures in court. In DoD Directive 5145.01, ``General Counsel of
the Department of Defense (GC DoD),'' December 2, 2013, as amended
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/514501p.pdf), and pursuant to 10 U.S.C. 113, the
Secretary of Defense has delegated the authority to establish those
procedures to the General Counsel.
This rule's corresponding internal issuance is DoD Directive
5405.2, ``Release of Official Information in Litigation and Testimony
by DoD Personnel as Witnesses,'' July 23, 1985 (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/540502p.pdf).
When this rule is finalized, DoD Directive 5405.2 will be reissued as
DoD Instruction 5405.02, ``Release of Official Information in
Litigation and Presentation of Witness Testimony by DoD Personnel,''
which will be made available at https://www.esd.whs.mil/Directives/issuances/dodi/.
C. Expected Impact of the Proposed Rule
This rule action will not impose any new costs. Consolidating Touhy
requirements into a single rule, along with updating the rule to make
it clearer and more streamlined, will produce efficiencies and
uniformity to the public's benefit. Less attorney time will be spent
searching for only one rule and complying with its requirements. After
consulting with subject matter experts in the DoD Office of the General
Counsel and offices of the chief legal counsels of various components,
the Department concluded that attorneys for third-party litigants will
save an estimated 30 minutes of research, review, and compliance time
per subpoena or litigation request when referring to the CFR for
guidance.
For purposes of estimating the cost savings, the Department's
subject matter experts deemed it reasonable to use the mean hourly wage
for lawyers as informed by the Bureau of Labor and Statistics,
$69.86.\1\ Subject matter experts further advised that at least 80% of
subpoenas and litigation requests submitted to DoD involve consultation
of the various rules in the CFR.\2\ An average of 1,405 requests are
received annually across the entire Department, according to Fiscal
Year 2016 data. When finalized, this rule should result in an annual
cost savings of approximately $39,261.32, which is the impacted
percentage (80%) of total annual requests (1,405) multiplied by the
attorney hours saved per request (0.5) and the mean hourly wage
($69.86)--in other words, 0.8*1,405*0.5*69.86 = $39,261.32. These
savings are reflected in the chart below.
---------------------------------------------------------------------------
\1\ This information can be found in the website of the Bureau
of Labor Statistics under National Wage Data for Lawyers, Occupation
Code 23-1011 (available at https://www.bls.gov/oes/current/oes231011.htm), last updated in May 2019.
\2\ The Department consulted with subject matter experts in the
DoD Office of the General Counsel and offices of chief legal
counsels of various components, who provided the estimates of
impacted percentage of total requests and of the attorney hours
saved per request.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Litigation Impacted Projected cost
Rules Components requests requests Hours saved Lawyers' savings to
in 2016 (%) per request hourly wage public
--------------------------------------------------------------------------------------------------------------------------------------------------------
93.................................... NSA..................... 35 x 80 x 0.5 x 69.86 = $978.04
97.................................... DoD..................... 20 x 80 x 0.5 x 69.86 = 558.88
267................................... NRO..................... 10 x 80 x 0.5 x 69.86 = 279.44
516................................... Army.................... 400 x 80 x 0.5 x 69.86 = 11,177.60
720, 725.............................. Navy.................... 940 x 80 x 0.5 x 69.86 = 26,267.36
---------------------------------------------------------------------------------------
Total............................. ........................ ........... ... ........... ... ........... ... ........... = 39,261.32
--------------------------------------------------------------------------------------------------------------------------------------------------------
In addition to these cost savings, there will be an unquantified
benefit of transparency through access to official information, while
safeguarding classified, privileged, and personally identifiable
information.
D. Executive Order 12866, ``Regulatory Planning and Review,'' Executive
Order 13563, ``Improving Regulation and Regulatory Review,'' and
Congressional Review Act (5 U.S.C. 801-08)
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Following the requirements of these Executive Orders, the
Office of Management and Budget has determined that this proposed rule
is not a significant regulatory action under section 3(f) of Executive
Order 12866 nor a ``major rule'' as defined by 5 U.S.C. 804(2).
DoD estimates that the rule would generate $9,309.05 in annualized
cost savings at the 7% discount rate, discounted to a 2016 equivalent,
over a perpetual time as discussed in the Expected Impact of the
Proposed Rule section. The present value savings are estimated at
$51,463.58.
E. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
DoD certifies that this proposed rule is not subject to the
Regulatory Flexibility Act, 5 U.S.C. 601, because it would not have a
significant economic impact on a substantial number of small entities.
Therefore, the Regulatory Flexibility Act, as amended, does not require
us to prepare a regulatory flexibility analysis.
F. Section 202 of Public Law 104-4, ``Unfunded Mandates Reform Act'' (2
U.S.C. 1532)
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require the expenditure of $100 million
[[Page 26446]]
or more (in 1995 dollars, adjusted annually for inflation) in any one
year. This proposed rule will not mandate any requirements for State,
local, or tribal governments, nor will it affect private sector costs.
G. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been determined that 32 CFR part 97 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
H. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This proposed rule will not have a substantial effect on
State and local governments.
List of Subjects in 32 CFR Part 97
Archives and records, Courts, Information.
0
Accordingly, 32 CFR part 97 is proposed to be revised to read as
follows:
PART 97--RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND
PRESENTATION OF WITNESS TESTIMONY BY DOD PERSONNEL (TOUHY
REGULATION)
Sec.
97.1 Purpose.
97.2 Applicability.
97.3 Definitions.
97.4 Policy.
97.5 Responsibilities--GC DoD.
97.6 Responsibilities--DoD Component heads.
97.7 Procedures--authorities.
97.8 Procedures--factors to consider.
97.9 Procedures--requirements and determinations.
97.10 Procedures--fees.
97.11 Procedures--expert or opinion testimony.
Appendix A to part 97--Litigation Requests and Demands to the
Department of the Navy.
Authority: 5 U.S.C. 301, 10 U.S.C. 113.
Sec. 97.1 Purpose.
This part establishes policy, assigns responsibilities, and
prescribes procedures for the release of official information in
litigation and the presentation of witness testimony by Department of
Defense (DoD) personnel pursuant to 5 U.S.C. 301 and the Supreme
Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 97.2 Applicability.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the DoD Field Activities, and all other organizational entities within
the DoD (referred to collectively in this part as the ``DoD
Components'').
(b) Is intended only to provide guidance for the internal
operations of the DoD, without displacing the responsibility of the
Department of Justice to represent the United States in litigation.
(c) Does not preclude official comments on matters in litigation.
(d) Does not apply to the release of official information or the
presentation of witness testimony in connection with:
(1) Courts-martial convened by the authority of a Military
Department.
(2) Administrative proceedings or investigations conducted by or
for a DoD Component.
(3) Security-clearance adjudicative proceedings, including those
conducted pursuant to DoD Directive 5220.6, ``Defense Industrial
Personnel Security Clearance Review Program,'' January 2, 1992, as
amended (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/522006p.pdf).
(4) Administrative proceedings conducted by or for the Equal
Employment Opportunity Commission or the Merit Systems Protection
Board.
(5) Negotiated grievance proceedings conducted in accordance with a
collective bargaining agreement.
(6) Requests by government counsel representing the United States
or a federal agency in litigation.
(7) Disclosures to federal, State, local, or foreign authorities
related to investigations or other law-enforcement activities conducted
by a DoD law-enforcement officer, agent, or organization.
(e) Does not affect in any way existing laws or DoD programs
governing:
(1) The release of official information or the presentation of
witness testimony in grand jury proceedings.
(2) Freedom of Information Act requests submitted pursuant to 32
CFR part 286, even if the records sought are related to litigation.
(3) Privacy Act requests submitted pursuant to 32 CFR part 310,
even if the records sought are related to litigation.
(4) The release of official information outside of litigation.
(f) Does not create any right or benefit (substantive or
procedural) enforceable at law against the DoD or the United States.
Sec. 97.3 Definitions.
These terms and their definitions are for the purpose of this part.
Chief legal advisors. (1) The General Counsel of the Department of
Defense (GC DoD).
(2) The General Counsel of a Military Department.
(3) The Legal Counsel to the Chairman of the Joint Chiefs of Staff.
(4) The Judge Advocate General of a Military Service.
(5) The Staff Judge Advocate to the Commandant of the Marine Corps.
(6) The Staff Judge Advocate to a Combatant Commander.
(7) The General Counsel to the Inspector General of the Department
of Defense.
(8) The General Counsel of a Defense Agency.
(9) The General Counsel of a DoD Field Activity.
(10) The chief legal advisor of any other organizational entity
within the DoD.
Court. A federal, State, or local court, tribunal, commission,
board, or other adjudicative body of competent jurisdiction.
Demand. An order or subpoena by a court of competent jurisdiction
for the production or release of official information or for the
presentation of witness testimony by DoD personnel at deposition or
trial.
Disclosure. The release of official information in litigation or
the presentation of witness testimony by DoD personnel.
Litigation. All pretrial (e.g., discovery), trial, and post-trial
stages of existing judicial or administrative actions, hearings,
investigations, or similar proceedings before a civilian court, whether
foreign or domestic.
Litigation request. Any written request by a party in litigation or
the party's attorney for the production or release of official
information or for the presentation of witness testimony by DoD
personnel at deposition, trial, or similar proceeding.
Official information. All information of any kind and however
stored that is in the custody and control of the DoD, relates to
information in the custody and control of the DoD, or was acquired by
DoD personnel due to their official duties or status.
Personnel. (1) Present and former (e.g., retired, separated)
Service
[[Page 26447]]
members, including Service academy cadets and midshipmen.
(2) Present and former (e.g., retired, separated) civilian
employees of a DoD Component, including non-appropriated fund activity
employees.
(3) Present and former (e.g., retired, separated) employees of
another federal agency assigned to, detailed to, or otherwise
affiliated with a DoD Component.
(4) Non-U.S. nationals who perform or have performed services
overseas for any of the Military Services in accordance with a status
of forces agreement.
(5) Any individuals who perform or have performed services for a
DoD Component through a contractual arrangement.
Sec. 97.4 Policy.
The DoD generally should make official information reasonably
available for use in federal, State, and foreign courts and other
adjudicative bodies if the information is not classified, privileged,
or otherwise protected from public disclosure.
Sec. 97.5 Responsibilities--GC DoD.
The GC DoD has overall responsibility for the policy in this part,
oversees the implementation of its procedures throughout the DoD, and
provides supplemental guidance as appropriate.
Sec. 97.6 Responsibilities--DoD Component heads.
The DoD Component heads:
(a) Implement the policy and procedures in this part and, through
their chief legal advisors, provide guidance for their respective
components.
(b) Must issue or update, as appropriate, their respective
components' implementing regulations within 180 days of this part's
effective date.
Sec. 97.7 Procedures--authorities.
(a) In response to a litigation request or demand, and after any
required coordination with the Department of Justice, the chief legal
advisors (see Sec. 97.3) are authorized to:
(1) Determine whether their respective DoD Components may release
official information originated by or in the custody of such
components.
(2) Determine whether personnel assigned to, detailed to, or
affiliated with their respective DoD Components may be contacted,
interviewed, or used as witnesses concerning official information or,
in exceptional circumstances, as expert witnesses.
(3) Impose conditions or limitations on disclosures approved
pursuant to this paragraph (e.g., approve the release of official
information only to a federal judge for in camera review).
(4) Assert claims of privilege or protection before any court or
adjudicative body.
(b) The GC DoD may assume primary responsibility for responding to
any litigation request or demand, particularly if it involves
terrorism, espionage, nuclear weapons, or intelligence means or
sources.
Sec. 97.8 Procedures--factors to consider.
In making a determination pursuant to Sec. 97.7(a), the chief
legal advisors will consider whether:
(a) The litigation request or demand is overbroad, unduly
burdensome, or otherwise inappropriate under applicable law or court
rules.
(b) The disclosure would be improper (e.g., the information is
irrelevant, cumulative, or disproportional to the needs of the case)
under the rules of procedure governing the litigation from which the
request or demand arose.
(c) The official information or witness testimony is privileged or
otherwise protected from disclosure under applicable law.
(d) The disclosure would violate a statute, Executive order,
regulation, or policy.
(e) The disclosure would reveal:
(1) Information properly classified pursuant to Volume 1 of DoD
Manual 5200.01, ``DoD Information Security Program: Overview,
Classification, and Declassification,'' February 24, 2012, as amended
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol1.pdf?ver=2018-05-04-091448-843).
(2) Controlled Unclassified Information pursuant to Volume 4 of DoD
Manual 5200.01, ``DoD Information Security Program: Controlled
Unclassified Information (CUI),'' February 24, 2012, as amended
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001-V4p.PDF?ver=2018-05-09-115318-927).
(3) Technical data withheld pursuant to 32 CFR part 250.
(4) Information otherwise exempt from unrestricted disclosure.
(f) The disclosure would:
(1) Interfere with an ongoing enforcement proceeding.
(2) Compromise a constitutional right.
(3) Expose an intelligence source or confidential informant.
(4) Divulge a trade secret or similar confidential information.
(5) Be otherwise inappropriate.
Sec. 97.9 Procedures--requirements and determinations.
(a) A litigation request or demand must describe, in writing and
with specificity, the nature of the official information or witness
testimony sought, its relevance to the litigation, and other pertinent
details addressing the factors in Sec. 97.8.
(b) Personnel who receive a litigation request or demand must
notify their DoD Component's chief legal advisor immediately. Former
personnel (e.g., retired Service members, separated employees, past
contractors) must notify the chief legal advisor of the component to
which they were last assigned.
(c) If another DoD Component or federal agency originated the
responsive information or otherwise has the primary equity with respect
to that information, the chief legal advisor will:
(1) Transfer the litigation request or demand (or the appropriate
portions) to such other component or agency for action.
(2) Inform the requesting party or issuing court.
(3) In case of conflict, elevate to the GC DoD for resolution.
(d) If the litigation request or demand requires a response before
a determination can be made, the chief legal advisor will inform the
requesting party or the issuing court that the request or demand is
still under consideration. The chief legal advisor also may seek a stay
from the court in question until a final determination is made.
(e) Upon making a final determination pursuant to Sec. 97.7(a),
the chief legal advisor will inform the requesting party or issuing
court.
(f) If the chief legal advisor approves the release of official
information or the presentation of witness testimony, personnel will
limit the disclosure to those matters specified in the litigation
request or demand, subject to any conditions imposed by the chief legal
advisor. Personnel may not release, produce, comment on, or testify
about any official information without the chief legal advisor's prior
written approval.
(g) If a court orders a disclosure that the chief legal advisor
previously disapproved or has yet to approve, personnel must
respectfully decline to comply with the court's order unless the chief
legal advisor directs otherwise.
Sec. 97.10 Procedures--fees.
Parties seeking official information by litigation request or
demand may be charged reasonable fees in accordance with Volume 11A,
Chapter 4 of DoD 7000.14-R, ``Department of Defense
[[Page 26448]]
Financial Management Regulation: Reimbursable Operations Policy: User
Fees,'' July 2016 (available at https://comptroller.defense.gov/Portals/45/documents/fmr/current/11a/11a_04.pdf), to reimburse expenses
associated with the government's response. These reimbursable expenses
may include the cost of:
(a) Materials and equipment used to search for, copy, and produce
responsive information.
(b) Personnel time spent processing and responding to the request
or demand.
(c) Attorney time spent assisting with the government's response,
to include reviewing the request or demand and the potentially
responsive information.
Sec. 97.11 Procedures--expert or opinion testimony.
(a) Personnel may not present expert or opinion testimony involving
official information, except when:
(1) The testimony is presented on behalf of the United States, a
federal agency, or any party represented by the Department of Justice.
(2) The chief legal advisor of the DoD Component with primary
equity has granted special written approval upon a showing of
exceptional need or unique circumstances, but only if the anticipated
testimony is not adverse to the interests of the DoD or the United
States and is presented at no expense to the government.
(b) If a court orders the presentation of testimony disallowed by
Sec. 97.11(a), personnel must respectfully decline to comply with the
court's order unless the chief legal advisor directs otherwise.
Appendix A to part 97--Litigation Requests and Demands to the
Department of the Navy
A litigation request to the Department of the Navy must be
submitted to the appropriate determining authority as defined in
Secretary of the Navy Instruction 5820.8_, ``Release of Official
Information for Litigation Purposes and Testimony by Department of
the Navy Personnel,'' August 27, 1991, as amended (available at
https://www.secnav.navy.mil/doni/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05-800%20Laws%20and%20Legal%20Services/5820.8A%20CH-1.pdf).
As with all service of process on the Department of the Navy, a
demand (subpoena or court order) must be delivered to the Naval
Litigation Office using registered or certified mail, a commercial
courier service, or a process server. The address for all service of
process is: General Counsel of the Department of the Navy, Naval
Litigation Office, 720 Kennon St. SE, Room 233, Washington Navy
Yard, DC 20374-5013.
Answers to frequently asked questions on Touhy requests are
available at https://www.jag.navy.mil/organization/documents/Touhy_Requests.pdf. Contact the Office of the General Counsel at
202-685-7039 or the Office of the Judge Advocate General at 202-685-
5450 with any additional questions.
Appendix B to Part 97--Litigation Requests and Demands to the
Department of the Air Force
A litigation request or demand to the Department of the Air
Force must be submitted to the base-level or servicing Staff Judge
Advocate for the installation or organization where the official
information or witness is located.
Should the information or witness be located in a Headquarters-
level office, the request or demand must be submitted to the
Commercial Litigation Field Support Center (for matters involving
contracts, acquisition, and procurement) or to the Air Force General
Litigation Division (for all other matters). Their addresses are:
Commercial Litigation Field Support Center, AFLOA/JAQC, 1500 W
Perimeter Rd., Suite 4100, Joint Base Andrews, MD 20762; Air Force
General Litigation Division, AFLOA/JACL, 1500 W Perimeter Rd., Suite
1370, 1st Floor, Joint Base Andrews, MD 20762.
Dated: May 7, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-10077 Filed 5-13-21; 8:45 am]
BILLING CODE 5001-06-P
