Department of Commerce Regulations on Procedures for Responding to Requests for Documents or Testimony for Use in Legal Proceedings, 160-166 [2021-27190]

Agencies

• DEPARTMENT OF COMMERCE
• Office of the Secretary

[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Rules and Regulations]
[Pages 160-166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27190]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 15

[Docket No. 211210-0256]
RIN 0605-AA52


Department of Commerce Regulations on Procedures for Responding 
to Requests for Documents or Testimony for Use in Legal Proceedings

AGENCY: Office of the Secretary, Commerce.

ACTION: Final rule.

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SUMMARY: This final rule revises the Department of Commerce's 
(Commerce) regulations, known as ``Touhy regulations,'' that set forth 
the procedures for responding to requests for documents or testimony 
for use in legal proceedings. The revisions provide greater clarity to 
entities seeking documents or testimony from current or former 
Department employees. Specifically, these revisions clarify, update, 
and streamline the language of several provisions, provide greater 
transparency regarding the factors that the agency will consider when 
reviewing such requests, and more directly address issues that 
frequently arise in requests for documents or testimony based on the 
facts of the request, such as whether the testimony requested is that 
of a former employee, whether the United States is a party to the 
underlying legal proceedings, or whether the testimony or documents are 
requested from the Office of the Inspector General.

DATES: Effective January 4, 2022.

FOR FURTHER INFORMATION CONTACT: Megan Heller, Chief, General 
Litigation Division, Office of the General Counsel, U.S. Department of 
Commerce, 1401 Constitution Ave. NW, Rm. 5896, Washington, DC 20230; 
telephone, (202) 482-1328.

SUPPLEMENTARY INFORMATION: This final rule revises the Department's 
regulations promulgated pursuant to 5 U.S.C. 301. The regulations at 15 
CFR 15.11 through 15.18 set forth the procedures applicable to requests 
submitted to Commerce for the testimony of employees and the production 
of documents for use in legal proceedings to which the agency is not a 
party. These regulations are also known as ``Touhy regulations,'' in 
reference to the case in which the Supreme Court upheld the validity of 
such agency regulations promulgated pursuant to 5 U.S.C. 301. See 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    These revisions to the Department's regulations clarify the process 
by which demands for documents or testimony are to be made and 
considered. They also update and streamline the language of several 
provisions where past experiences suggest need for elucidation. 
Additionally, the Department is revising these regulations to more 
directly address issues that arise frequently in requests for documents 
or testimony. The Department intends these revisions to provide greater 
clarity to entities seeking documents or testimony from current or 
former Department employees. Following is a description of the 
revisions to specific provisions of the Touhy regulations.
    Section 15.11--Scope.
    Paragraph (a) has been revised to more clearly set forth the scope 
and applicability of this subpart, and to state upfront that an 
employee's compliance with any demand for information or testimony 
requires prior authorization by the appropriate legal officers. New 
paragraph (c) clarifies that this subpart does not apply to proceedings 
in which the Department is a party. New paragraph (d) has been added to 
direct requests for documents or testimony from the United States 
Patent and Trademark Office (USPTO) to the applicable USPTO Touhy 
regulations; all references to the USPTO in the previous regulations 
have been deleted throughout the revised subpart B. New paragraph (e) 
combines previous paragraph (c) with previous Sec.  15.17 to clarify 
that the Department will determine if other statutory authorities exist 
that address disclosure of the requested information before applying 
the procedures in this subpart.
    Section 15.12--Definitions.
    Broadly, this section has been revised to provide additional detail 
in definitions and add definitions for new terms used in the proposed 
revisions. Paragraph (a) has been revised to provide more detail in the 
definition of agency counsel. Paragraphs (c) and (i) define the Office 
of the Inspector General and its Counsel, reflecting the addition of 
new Sec.  15.17 to address requests that are made for documents or 
testimony from the Office of the Inspector General. Paragraphs (b), (d) 
through (h), and (j) through (m) has been revised to clarify language 
and provide greater detail.
    Section 15.13--Demand for testimony or production of documents: 
Department procedures.
    This rule significantly revises Sec.  15.13. The rule moves from 
Sec.  15.13 to Sec.  15.16(a) the policies and considerations that 
Commerce will use in determining responses to demands for documents or 
testimony. Paragraph (a) of revised Sec.  15.13 restates the existing 
rule that no document or information may be produced without 
authorization from the General Counsel or appropriate agency counsel. 
Paragraph (b) of revised Sec.  15.13 sets forth in more detail the 
notification requirements for requests submitted pursuant to this 
subpart; these notification requirements were formerly found at Sec.  
15.14(c). Paragraph (b)(1) has been revised to include the full address 
for mailed requests and an email address for submitting requests 
electronically. Paragraph (b)(2) refers requestors to regulations for 
the United States Patent and Trademark Office, for requests relating to 
that agency.

[[Page 161]]

Paragraph (c) directs employees to forward any demand to the 
appropriate office within the General Counsel's Office; this direction 
and contact information is currently set forth in Sec.  15.14(a) of the 
regulations. Paragraph (d) specifically addresses the course of action 
that the Department will take if it determines its employee should not 
comply with a subpoena. In addition, this paragraph specifies that 
electronic service of subpoenas is not authorized.
    Section 15.14--Demand for testimony or production of documents in 
matters in which the United States is not a party.
    This section has been revised to consolidate the procedures to be 
followed for requests relating to matters in which the United States is 
not a party to proceedings, which were previously interspersed in 
Sec. Sec.  15.14, 15.15, and 15.16 of the regulations. Notably, 
paragraph (g)(2) of revised Sec.  15.14 sets forth new rules and 
procedures for former Department employees who are asked to provide 
opinion or expert testimony in such proceedings; these rules and 
procedures had not previously been addressed. The procedures for 
matters in which the United States is a party are now provided 
separately in new Sec.  15.15.
    Section 15.15--Demand for testimony or production of documents in 
matters in which the United States is a party.
    This section is partly new, and encompasses provisions found 
previously in Sec. Sec.  15.16 and 15.18 on expert and opinion 
testimony. It sets forth the procedures for requests relating to 
matters in which the United States, but not the Department, is a named 
party. Paragraph (a) addresses requests received from entities other 
than the United States, in proceedings in which the United States is a 
party, and requires that counsel of record representing the interests 
of the United States or one of its other agencies and instrumentalities 
be informed of such demands. Paragraph (b) addresses requests received 
from agencies or instrumentalities of the United States other than the 
Department. Notably, and consistent with past practice, paragraph (b) 
now states that the General Counsel may require reimbursement to the 
Department of expenses associated with a Department employee providing 
consultations on behalf of the United States. Paragraph (c) separately 
sets forth the procedures for expert or opinion testimony for both 
current and former employees in matters in which the United States, but 
not the Department, is a named party.
    Section 15.16--Demand for testimony or production of documents: 
Department and Policy Considerations.
    This rule revises Sec.  15.16 to set forth in greater detail the 
factors that, as appropriate, will be considered in deciding whether 
the requested disclosure of information or testimony is in the 
interests of the Department. The policy factors in previous Sec.  
15.13(a) through (f) have been moved to this section and expanded to 
better inform non-government requesters. Paragraphs (a)(1) through (9) 
sets forth a list of factors to be considered. Paragraphs (b)(1) 
through (3) sets forth additional considerations for the General 
Counsel to weigh, once requirements in Sec. Sec.  15.14 and 15.15 of 
this subpart have been satisfied. Finally, new paragraphs (c)(1) 
through (8) sets forth a non-exclusive list of the factors that 
preclude disclosure of information that may be requested.
    Section 15.17--Subpoenas and demands served upon employees or 
former employees of the Office of the Inspector General.
    This final rule adds this new section to address requests that are 
made for documents or testimony from the Office of the Inspector 
General and to clarify that this subpart applies to requests for 
documents or testimony from the Office of the Inspector General. This 
section provides the notification procedures for requests to the 
Inspector General.

Comments on the Proposed Rule

    The proposed rule was published in the Federal Register on 
September 27, 2021 (86 FR 53251), with a request for comments to be 
submitted by October 27, 2021. No comments were received.

No Substantive Changes From the Proposed Rule

    This final rule makes no substantive changes to the proposed rule. 
We note that the regulatory text of this final rule contains two minor 
typographical corrections in the regulatory text of the proposed rule: 
The deletion of an extra word, ``a'', in the first sentence of 15 CFR 
15.13(d)(1), and the addition of a missing semi-colon after the phrase 
``the intended use of the testimony'' in 15 CFR 15.14(a)(6).

Classification

    This final rule is published under the authority of 15 CFR part 15, 
subpart B (Sec. Sec.  15.11 through 15.18), which sets forth the 
procedures applicable to requests submitted to the Department for the 
testimony of employees and the production of documents for use in legal 
proceedings to which the Department is not a party. These regulations 
are also known as ``Touhy regulations,'' in reference to the case in 
which the Supreme Court upheld the validity of such agency regulations 
promulgated pursuant to 5 U.S.C. 301. See United States ex rel. Touhy 
v. Ragen, 340 U.S. 462 (1951).
    This final rule has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866. The Department has identified 
no duplicative, overlapping, or conflicting Federal rules.
    Pursuant to 5 U.S.C. 553(d)(3), the Department of Commerce has 
determined that there is good cause to waive the 30-day delay in the 
date of effectiveness for this final action. Specifically, there is 
good cause to waive the 30-day delay in the date of effectiveness, 
because this final rule provides clarifications that will reduce 
confusion for entities seeking documents or testimony from current or 
former Department employees, for use in legal proceedings. The 
Department of Commerce's Touhy regulations were last revised in 1995. 
This final rule improves the readability of the regulations, and 
provides clarifications on several points that have been the subject of 
consideration over the past twenty-five years. It is not necessary to 
have a 30-day delay in effectiveness for this final rule because (1) it 
imposes no additional burdens on entities seeking documents or 
testimony from the agency, and (2) clarifies the process making such 
requests, thereby making it easier for entities to submit requests to 
the agency. As such, the Department believes that a 30-day delay in the 
date of effectiveness of this final rule would be contrary to the 
public interest. For the reasons described above, the Department finds 
good cause to make this rule effective immediately upon publication in 
the Federal Register.

Congressional Review Act

    The changes in this final rule are not expected to result in an 
annual effect on the economy of $100 million or more, a major increase 
in costs or prices, or significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets. Therefore, this final rule 
is not expected to be considered a ``major rule'' as defined in 5 
U.S.C. 804(2) of the Congressional Review Act provisions of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et 
seq.).

[[Page 162]]

Regulatory Flexibility Act

    The Chief Counsel for Regulation, Department of Commerce, has 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, under the provisions of the Regulatory Flexibility Act, 
5 U.S.C. 605(b), that this rule will not have a significant economic 
impact on a substantial number of small entities. This final rule 
amends existing regulations in order to clarify the policies, 
practices, responsibilities, and procedures for Department of Commerce 
employees related to production of official Departmental documents and 
testimony by current or former employees as witnesses in legal 
proceedings. Specifically, the changes in this rule fall into three 
categories: (1) Clarifying the requirements for individuals or entities 
making requests for Department information or testimony for use in 
legal proceedings; (2) refining the procedures the Department uses and 
elaborating on the polices that support the Department's decision 
regarding whether to grant such requests; and (3) making non-
substantive clarifying changes in the regulations. This rule applies to 
any individual or entity or their legal representative who requests 
information from the Department or testimony from Departmental 
employees for use in legal proceedings. There is no requirement that an 
individual or entity or their legal representative make such a request 
to the Department unless they seek information or testimony for use in 
a legal proceeding. If such a request is made, however, this final rule 
clarifies the current regulatory language that describes to whom in the 
Department the request should be sent, the standards that the request 
must meet, and the procedures the Department will apply to process the 
request and determine whether to grant it. The revisions made by this 
final rule are not expected to have any impact on affected entities. 
For example, the clarifying changes applicable to the actions of 
Department employees, reorganization of certain provisions, and 
harmonization of terminology have no impact on affected entities 
seeking information or testimony from the Department for use in legal 
proceedings. Other changes impose no additional burden on individuals 
or entities seeking information or testimony from the Department for 
use in legal proceedings. For these reasons, this final rule will not 
have a significant economic impact on a substantial number of small 
entities.
    No comments were received on this determination during the public 
comment period for the proposed rule. Nor has the Department received 
any new information that would affect its determination that this rule 
would not have a significant economic impact on a substantial number of 
small entities. As a result, a final regulatory flexibility analysis 
was not required and none was prepared.

Paperwork Reduction Act

    This final rule contains no new collection of information subject 
to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 15 CFR Part 15

    Administrative practice and procedure, Courts, Government 
employees.

Brian D. DiGiacomo,
Assistant General Counsel for Employment, Litigation, and Information, 
Office of the General Counsel.

    For the reasons set out in the preamble, Commerce amends 15 CFR 
part 15 as follows:

PART 15--LEGAL PROCEEDINGS

0
1. The authority for part 15 continues to read as follows:

    Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and 
1518; Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p. 
1004; 44 U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706; 
15 U.S.C. 1673; 42 U.S.C. 665.

Subpart B--Testimony by Employees and the Production of Documents 
in Legal Proceedings

0
2. Revise Sec. Sec.  15.11 through 15.17 to read as follows:

Sec.
* * * * *
15.11 Scope.
15.12 Definitions.
15.13 Demand for testimony or production of documents: Department 
procedures.
15.14 Demand for testimony or production of documents in matters in 
which the United States is not a party.
15.15 Demand for testimony or production of documents in matters in 
which the United States is a party.
15.16 Demand for testimony or production of documents: Department 
policy and considerations.
15.17 Subpoenas and demands served upon employees or former 
employees of the Office of the Inspector General.
* * * * *


Sec.  15.11  Scope.

    (a) This subpart sets forth the policies and procedures to be 
followed with respect to the production or disclosure of the testimony 
of employees and former employees of the Department of Commerce as 
witnesses in legal proceedings and the production or disclosure of 
information contained in Department of Commerce documents, or any 
information acquired by any person while such person was an employee of 
the Department of Commerce, for use in legal proceedings pursuant to a 
request, order, or subpoena (collectively referred to in this subpart 
as a ``demand''). No Department employee or former employee shall 
comply with such a demand without the prior authorization of the 
General Counsel or appropriate agency counsel, in accordance with this 
subpart.
    (b) This subpart does not apply to any legal proceeding in which an 
employee is to testify while on leave status, regarding facts or events 
unrelated to the official business of the Department or the duties of 
the employee.
    (c) This subpart does not apply to any legal proceeding in which 
the Department is a party or to subpoenas for testimony or documents 
received from Congress, a Federal agency Inspector General, or a 
Special Prosecutor.
    (d) This subpart does not apply to any demand for testimony of 
employees and former employees of the United States Patent and 
Trademark Office (USPTO) or to demands for the production of USPTO 
documents. The process for any demand for testimony of an employee or 
for the production of documents of the USPTO can be found at 37 CFR 
104.21 through 104.24, and any such demands must be sent directly to 
the USPTO.
    (e) This subpart in no way affects the rights and procedures 
governing public access to records pursuant to the Freedom of 
Information Act, the Privacy Act, or the Trade Secrets Act or other 
Federal law restricting the disclosure of information. Moreover, 
demands in legal proceedings for the production of records, or for the 
testimony of Department employees regarding information protected by 
the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905, 
Census data under Title 13, U.S.C., or other confidentiality statutes, 
must satisfy the requirements for disclosure set forth in those 
statutes, if any, before the records may be provided or testimony 
given. The General Counsel or appropriate agency counsel should first 
determine if there is a legal basis to provide the testimony or records 
sought under applicable confidentiality statutes before applying the 
procedures established in this subpart.
    (f) This subpart is not intended to be relied upon to, and does 
not, create any right or benefit, substantive or

[[Page 163]]

procedural, enforceable at law by any party against the United States.


Sec.  15.12  Definitions.

    For the purpose of this subpart:
    (a) Agency counsel means the Chief Counsel/s or General Counsel/s 
(or that official's designee) of a bureau or operating unit within the 
U.S. Department of Commerce who is the senior legal officer responsible 
for overseeing legal advice and guidance provided to a particular 
bureau or operating unit.
    (b) Component means Office of the Secretary or a bureau or 
operating unit of the Department as defined in Department Organization 
Order 1-1.
    (c) Counsel to the Inspector General means Counsel to the Inspector 
General of the U.S. Department of Commerce.
    (d) Demand means a request, order, or subpoena for testimony or 
documents for use in any legal proceeding, regardless of whether the 
United States is a party to the proceeding.
    (e) Department means the United States Department of Commerce and 
any of its components, bureaus, or operating units.
    (f) Document or information means any record, regardless of format, 
medium or physical characteristic, document, electronically stored 
information, paper and other property of the Department, including 
without limitation, official letters, telegrams, memoranda, reports, 
studies, writings, emails, calendar and diary entries, text or chat 
messages, maps, graphs, pamphlets, notes, charts, tabulations, 
analyses, statistical or informational accumulations, any kind of 
summaries of meetings and conversations, film impressions, magnetic 
tapes or sound or mechanical reproductions. Nothing in this paragraph 
(f) shall be interpreted as requiring the creation of a new document to 
respond to any demand.
    (g) Employee means any current or former employees or officers of 
the U.S. Department of Commerce, including any commissioned officer of 
the National Oceanic and Atmospheric Administration or any other 
individual who has been appointed by, or is subject to the supervision, 
jurisdiction, or control of the U.S. Department of Commerce, including 
contract employees. Contractors may be included.
    (h) General Counsel means the General Counsel of the U.S. 
Department of Commerce or other U.S. Department of Commerce employee to 
whom the General Counsel has delegated authority to act under this 
subpart.
    (i) Inspector General means the Inspector General of the U.S. 
Department of Commerce.
    (j) Legal proceeding means all pretrial, trial, and post-trial 
stages of any existing or reasonably anticipated judicial or 
administrative actions, hearings, investigations, or similar 
proceedings before administrative, civil, or criminal courts, 
commissions, boards, or other tribunals, domestic--including local, 
tribal, state, and Federal--foreign, or international. ``Legal 
proceedings'' includes all phases of discovery as well as responses to 
any formal or informal requests by attorneys, investigators, or other 
persons not employed by the Department, regarding, testimony, 
documents, information, or consultation, solicited for use in any legal 
proceedings.
    (k) Official business means the authorized business of the U.S. 
Department of Commerce.
    (l) Secretary means the Secretary of the U.S. Department of 
Commerce.
    (m) Testimony means a statement in any form, including personal 
appearances before a judge, magistrate, administrative law judge, 
administrative judge, hearing officer, special master, special counsel, 
investigating officer or board, or any other court or legal tribunal; 
declarations made pursuant to 28 U.S.C. 1746; interviews; depositions; 
telephonic, televised, or videotaped statements; or any responses given 
during discovery or similar proceedings, which response would involve 
more than the production of documents.
    (n) United States means the Federal Government, its departments and 
agencies, and individuals acting on behalf of the Federal Government.


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

    (a) General. No employee, in response to a demand, shall produce 
any documents or information of the Department, or provide testimony 
regarding any information relating to, or based upon Department 
documents, or disclose any information or produce documents acquired or 
generated as part of the performance of that employee's official duties 
or because of that employee's official status without the prior 
authorization of the General Counsel or appropriate agency counsel.
    (b) Notifications. (1) A demand for the testimony of an employee or 
for the production of documents of the Department shall be made in 
writing and addressed to the Assistant General Counsel for Employment, 
Litigation, and Information, U.S. Department of Commerce, 1401 
Constitution Avenue NW, Room 5896, Washington, DC 20230; or by email 
to: [email protected]; or to appropriate agency counsel.
    (2) The process for any demand for testimony of an employee or for 
the production of documents of the USPTO can be found at 37 CFR 104.21 
through 104.24, and any such demands should be sent directly to the 
USPTO, in accordance with Sec.  15.11(d).
    (c) Employee procedure. Whenever a Department employee receives an 
inquiry or demand for testimony or production of documents, that 
employee shall not respond, and shall immediately notify the Office of 
the Assistant General Counsel for Employment, Litigation, and 
Information as provided in paragraph (b)(1) of this section, or 
appropriate agency counsel, and provide a copy of the demand. An 
employee may not answer inquiries from a person not employed by the 
Department regarding testimony or documents subject to a demand or a 
potential demand under the provisions of this subpart without the 
approval of the General Counsel or appropriate agency counsel.
    (d) Subpoenas. A subpoena for testimony or production of documents 
by a Department employee must be served in person, at the office or 
home, or by mail in accordance with the Federal Rules of Civil or 
Criminal Procedure or applicable state procedure. Service solely by 
electronic means is not authorized. If service is made upon anyone 
other than the General Counsel or appropriate agency counsel, then a 
copy of the subpoena shall also be contemporaneously sent to the 
General Counsel at the appropriate addresses in paragraph (b) of this 
section, or appropriate agency counsel.
    (1) An employee who receives such a subpoena shall not respond and 
shall immediately forward the subpoena to the Office of the Assistant 
General Counsel for Employment, Litigation, and Information or the 
appropriate agency counsel. The General Counsel or appropriate agency 
counsel will determine the extent to which a Department employee will 
comply with the subpoena.
    (2) If the General Counsel or appropriate agency counsel determines 
that an employee should not comply with a properly-served subpoena, the 
General Counsel or agency counsel will attempt to have the subpoena 
withdrawn or modified. If this cannot be done with regard to a subpoena 
for documents, the Department will provide the tribunal with an 
objections letter or other notification that the documents will not be 
produced. If this cannot be done with regard to a subpoena for

[[Page 164]]

testimony, the General Counsel or appropriate agency counsel will 
attempt to obtain U.S. Department of Justice representation for the 
employee and move to have the subpoena modified or quashed. If, because 
of time constraints, this is not possible prior to the compliance date 
specified in the subpoena, the employee should appear at the time and 
place set forth in the subpoena. If legal counsel cannot appear on 
behalf of the employee, the employee should produce a copy of the 
Department's regulations in this subpart and inform the legal tribunal 
that the employee has been advised by counsel not to provide the 
requested testimony and/or produce documents. If the legal tribunal 
rules that the demand in the subpoena must be complied with, the 
employee shall respectfully decline to comply with the demand. United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).


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

    (a) General. Every demand for testimony or documents in a legal 
matter in which the United States is not a named party shall be made in 
writing, delivered in accordance with Sec.  15.13(b) no later than 30 
days before the document or testimony is required, and shall be 
accompanied by an affidavit or written declaration under 28 U.S.C. 
1746, or, if an affidavit or declaration is not feasible, a written 
statement setting forth:
    (1) The title of the legal proceeding,
    (2) The forum;
    (3) The requesting party's interest in the legal proceeding;
    (4) The reason for the demand and the relevance of the request to 
the legal proceeding;
    (5) A showing that the desired testimony or document is not 
reasonably available from any other source; and
    (6) If testimony is requested, the intended use of the testimony; a 
general summary of the desired testimony; the time that will be 
required to prepare for, travel to, and present testimony; and a 
showing that no document could be provided and used in lieu of 
testimony, including from opposing parties via discovery proceedings.
    (b) Purpose. The purpose of the requirement in this section is to 
assist the General Counsel or appropriate agency counsel in making an 
informed decision regarding whether testimony or the production of a 
document(s) should be authorized, in accordance with Sec.  15.16. Any 
authorization for testimony by an employee of the Department shall be 
limited to the scope of the demand as summarized in the statement or as 
negotiated in paragraph (e) of this section.
    (c) Prior authorization. A certified copy of a document that has 
been authorized pursuant to Sec.  15.16(a) for use in a legal 
proceeding may be provided upon written request and payment of 
applicable fees. Written requests for certification must be addressed 
to the agency counsel for the component having possession, custody, or 
control of the document. The requestor must provide the agency with 
information regarding the prior authorization for release of the 
requested document pursuant to Sec.  15.16(a), including date of 
release and parties to whom the document was released.
    (d) Secretary's authority. The Secretary retains the authority to 
authorize and direct testimony in those cases where a statute or 
Presidential order mandates a personal decision by the Secretary.
    (e) Consultation. The General Counsel or appropriate agency counsel 
may consult or negotiate with an attorney for a party, or with the 
party if not represented by an attorney, to refine or limit a demand so 
that compliance is less burdensome or seek additional information about 
the demand necessary to make the determination required by paragraph 
(b) of this section. Failure of the attorney or party to cooperate in 
good faith to enable the General Counsel or the appropriate agency 
counsel to make an informed decision under this subpart may serve, 
where appropriate, as a basis for a determination not to comply with 
the demand. In addition, the General Counsel or appropriate agency 
counsel may impose further conditions or restrictions on the production 
of any document or testimony when that is in the best interests of the 
United States.
    (f) Fact witness. If an employee is authorized to give testimony in 
a legal proceeding not involving the United States, the testimony, if 
otherwise proper, shall be limited to facts within the personal 
knowledge of the employee that are not classified, privileged, or 
protected from disclosure under applicable law or regulation. If asked 
to provide factual testimony that the employee believes may be 
classified, privileged, or protected from disclosure under applicable 
law or regulation, then the witness shall:
    (1) Respectfully decline to answer on the grounds that such 
testimony is prohibited; and
    (2) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel.
    (g) Expert or opinion witness. (1) Current employees, with or 
without compensation, shall not provide expert or opinion testimony in 
any legal proceedings regarding Department information, subjects, or 
activities except on behalf of the United States or a party represented 
by the United States Department of Justice. However, upon a showing by 
the requester that there are exceptional circumstances and that the 
anticipated testimony will not be adverse to the interests of the 
Department or the United States, the General Counsel, or appropriate 
agency counsel after consultation with the Office of the General 
Counsel, may grant special authorization in writing for a current 
employee to appear and give the expert or opinion testimony.
    (i) If, while testifying in any legal proceeding, an employee is 
asked for expert or opinion testimony regarding official information, 
subjects, or activities, which testimony has not been approved in 
advance in accordance with the regulations in this subpart, the witness 
shall:
    (A) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by the regulations in this subpart;
    (B) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel before giving such testimony; and
    (C) Explain that upon such consultation, approval for such 
testimony may be provided.
    (ii) If the body conducting the proceeding then orders the witness 
to provide expert or opinion testimony regarding official information, 
subjects, or activities without the opportunity to consult with either 
the General Counsel or appropriate agency counsel, the witness shall 
respectfully refuse to provide such testimony. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (iii) If an employee is unaware of the regulations in this subpart 
and provides expert or opinion testimony regarding official 
information, subjects, or activities in a legal proceeding without the 
consultation discussed in paragraph (g)(1)(i) of this section, the 
witness must, as soon as possible after testifying, inform the General 
Counsel or appropriate agency counsel that such testimony was given and 
provide a written summary of the expert or opinion testimony provided.
    (2) Former employees may provide opinion or expert testimony if:
    (i) The testimony does not involve non-public facts, information, 
or documents about a particular matter that were acquired by the former

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employee during the performance of their employment with the United 
States; and
    (ii) The involvement of the former employee in the proceeding as a 
witness complies with 18 U.S.C. 207 and applicable post-employment 
ethics rules. See 5 CFR part 2641. Former employees offering expert or 
opinion testimony and those seeking such testimony from former 
employees, must confer with the General Counsel or appropriate agency 
counsel to ascertain if the prospective expert or opinion testimony is 
consistent with this subpart.
    (h) Decision. A decision under this subpart to comply or not to 
comply with a demand is neither an assertion or waiver of privilege, 
nor an assertion of lack of relevance or technical deficiency, nor does 
it reflect any other ground for noncompliance.
    (i) Waiver. The General Counsel or appropriate agency counsel may 
waive any requirements set forth under this section to the extent 
allowed by law, when circumstances warrant.


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

    If a demand is received pertaining to a legal matter in which the 
United States but not the Department is a named party, or where a party 
other than the Department is represented by the Department of Justice, 
the following rules apply.
    (a) Demand not from the United States. For demands for documents 
from, or testimony of an employee of the Department, from an entity 
other than the United States pursuant to a legal proceeding in which 
the United States is a party, the demand must be in writing and signed, 
delivered in accordance with Sec.  15.13(b), setting forth the 
information required in Sec.  15.14(a), and copied to the attorneys of 
record representing or acting under the authority of the United States 
in the legal proceeding. Upon receipt of the demand, the General 
Counsel or appropriate agency counsel shall promptly contact the 
appropriate Department of Justice office to coordinate any response in 
accordance with applicable Federal or state rules of civil procedure 
governing discovery matters.
    (b) Demand from the United States. When a demand for documents 
from, testimony of, or consultation with an employee of the Department 
comes from an attorney representing or acting under the authority of 
the United States concerning a legal proceeding in which the United 
States is a party, every such demand should be accompanied by a 
statement setting forth the legal proceeding, the forum, the United 
States' interest in the legal proceeding, and the relevance and use of 
the requested documents or testimony. The purpose of the requirement in 
this paragraph (b) is to assist the General Counsel or the appropriate 
agency counsel in making all necessary arrangements to facilitate the 
demand on behalf of the United States. Where appropriate, the General 
Counsel or appropriate agency counsel may require reimbursement to the 
Department of the expenses associated with a Department employee giving 
testimony or providing consultation on behalf of the United States.
    (c) Expert or opinion witness. In a legal proceeding in which the 
United States is a party, a current Department employee may not testify 
as an expert or opinion witness for any other party other than the 
United States. However, a former employee may provide opinion or expert 
testimony for a party other than the United States if:
    (1) The testimony does not involve facts, information, or documents 
about a particular matter that were acquired by the former employee 
during the performance of their official duties as an employee of the 
United States; and
    (2) The involvement of the former employee in the proceeding as a 
witness complies with applicable post-employment conflict of interest 
laws. See 18 U.S.C. 207 and 5 CFR part 2641. A former employee offering 
expert or opinion testimony or consulting, and those seeking such 
testimony from a former employee, shall confer with the General Counsel 
or appropriate agency counsel to ascertain if the prospective expert or 
opinion testimony or consulting is consistent with this subpart.


Sec.  15.16  Demand for testimony or production of documents: 
Department policy and considerations.

    (a) Decision. In deciding whether to authorize a demand for 
testimony or documents under this subpart, the General Counsel or 
appropriate agency counsel shall consider whether the disclosure or 
testimony is in the interests of the Department. The following factors 
should be considered:
    (1) Conserving the time of Department employees for conducting 
official business;
    (2) Minimizing the possibility of involving the Department in 
controversial issues that are not related to the Department's mission 
or matters that do not further the Department's mission;
    (3) Preventing the possibility that the public will misconstrue 
variances between personal opinions of Department employees and 
official Department policy;
    (4) Avoiding spending the time and money of the United States for 
private purposes;
    (5) Preserving the integrity of the administrative or judicial 
process;
    (6) Protecting classified, confidential, or controlled unclassified 
information, and the deliberative process of the Department;
    (7) Preventing the appearance of improperly favoring one litigant 
over another;
    (8) Avoiding the denial of a party's constitutional or statutory 
rights;
    (9) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose;
    (10) Whether disclosure is appropriate under the relevant 
substantive law concerning privilege; and
    (11) Any other issue that is relevant to the decision.
    (b) Non-disclosure factors. Demands for testimony or documents in 
response to which disclosure will not be made by any Department 
official include, but are not limited to, those demands with respect to 
which any of the following factors exist:
    (1) Disclosure is restricted by statute or regulation, or would 
violate a rule of procedure, Executive order, policy, or an applicable 
Government directive;
    (2) Disclosure would reveal classified or controlled unclassified 
information, unless appropriately declassified or decontrolled by the 
originating agency;
    (3) Disclosure would reveal a confidential source or informant, 
unless the investigative agency and the source or informant have no 
objection;
    (4) Disclosure would reveal investigatory records compiled for law 
enforcement purposes and would interfere with enforcement proceedings 
or disclose investigative techniques and procedures, the effectiveness 
of which would thereby be impaired;
    (5) Disclosure would improperly reveal trade secrets or disclose 
information protected by law, a non-disclosure agreement, or court 
order without authorized consent;
    (6) Disclosure would be unduly costly, burdensome, or otherwise 
inappropriate under applicable court rules;
    (7) Disclosure would involve the Department in controversial issues 
that are not related to the Department's mission or issues that do not 
further the Department's mission; or
    (8) Disclosure would involve scientific or expert opinion on 
research

[[Page 166]]

that is controversial or contrary to Department policy, or would result 
in burdensome repetition of similar testimony in subsequent 
proceedings.


Sec.  15.17  Subpoenas and demands served upon employees or former 
employees of the Office of the Inspector General.

    Notwithstanding the requirements set forth in Sec. Sec.  15.11 
through 15.16, this subpart is applicable to demands served on 
employees or former employees of the Office of the Inspector General 
(OIG), except that wherever in Sec. Sec.  15.11 through 15.16 there 
appear the phrases General Counsel, agency counsel, or Assistant 
General Counsel for Employment, Litigation, and Information, there 
shall be substituted in lieu thereof the Inspector General or Counsel 
to the Inspector General. In addition, the appropriate address for 
notifications specified in Sec.  15.13(b) pertaining to employees and 
former employees covered under this section is Office of the Inspector 
General, U.S. Department of Commerce, 1401 Constitution Avenue NW, Room 
7896, Washington, DC 20230.

[FR Doc. 2021-27190 Filed 1-3-22; 8:45 am]
BILLING CODE 3510-BW-P