Release of Official Information in Litigation and Presentation of Witness Testimony by DoD Personnel (Touhy, 57825-57830 [2022-20433]
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Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Rules and Regulations
that reference its former street address
to reflect the new street address.
DATES: This rule is effective September
22, 2022.
FOR FURTHER INFORMATION CONTACT:
Karen Levin (levin.karen@pbgc.gov),
Attorney, Regulatory Affairs Division,
Office of the General Counsel, Pension
Benefit Guaranty Corporation, 445 12th
Street SW, Washington, DC 20024–2101;
202–229–3559. If you are deaf or hard
of hearing or have a speech disability,
please dial 7–1–1 to access
telecommunications relay services.
SUPPLEMENTARY INFORMATION: Through
July 31, 2022, the Pension Benefit
Guaranty Corporation (PBGC) resided
and accepted mail at 1200 K Street NW,
Washington, DC, 20005–4026. On
August 1, 2022, PBGC officially
relocated to a new street address: 445
12th Street SW, Washington, DC 20024–
2101.
PBGC is promulgating these
amendments without advance notice or
an opportunity for public comment
because they fall under the ‘‘good
cause’’ exemption of the Administrative
Procedure Act at 5 U.S.C. 553(b)(3)(B).
PBGC finds that notice and comment are
unnecessary because these amendments
are merely technical; they effect no
substantive changes to any rule. For the
same reason, these amendments fall
within the ‘‘good cause’’ exception to
the delayed effective date provisions of
the Administrative Procedure Act and
the Congressional Review Act at 5
U.S.C. 553(d)(3), 808(2). Moreover,
because these amendments are exempt
from the notice and comment procedure
of the Administrative Procedure Act
under 5 U.S.C. 553(b), PBGC is not
required to conduct a regulatory
flexibility analysis under 5 U.S.C. 603 or
604.1
PBGC has determined that this action
is not a ‘‘significant regulatory action’’
under the criteria set forth in Executive
Order 12866.
PART 4000—FILING, ISSUANCE,
COMPUTATION OF TIME, AND
RECORD RETENTION
DEPARTMENT OF DEFENSE
1. The authority citation for part 4000
continues to read as follows:
32 CFR Part 97
List of Subjects
Authority: 5 U.S.C. 5514; 29
U.S.C.1302(b); 31 U.S.C. 3701–3719, 3720A;
5 CFR part 550, subpart K; 31 CFR part 285;
31 CFR parts 900–904.
29 CFR Part 4000
Administrative practice and
procedure, Pension insurance.
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Authority: 29 U.S.C. 1083(k), 1302(b)(3).
§ 4000.3
[Amended]
2. Amend § 4000.3(c)(3) by:
■ a. Removing ‘‘1200 K Street, NW,
Washington, DC. 20005–4026;’’ and
adding in its place ‘‘445 12th Street SW,
Washington, DC 20024–2101;’’
■ b. Removing ‘‘(TTY/TDD users may
call the Federal relay service toll-free at
1–800–877–8339 and ask to be
connected to the appropriate number.)’’
and adding in its place ‘‘(If you are deaf
or hard of hearing or have a speech
disability, please dial 7–1–1 to access
telecommunications relay services.)’’.
■
PART 4233—PARTITIONS OF
ELIGIBLE MULTIEMPLOYER PLANS
3. The authority citation for part 4233
continues to read as follows:
■
Authority: 29 U.S.C. 1302(b)(3), 1413.
§ 4233.11
[Amended]
4. Amend § 4233.11 by removing
‘‘1200 K Street NW, Washington, DC
20005–4026,’’ wherever it appears, and
adding in its place ‘‘445 12th Street SW,
Washington, DC 20024–2101,’’.
■
Appendix A to Part 4233 [Amended]
5. Amend appendix A to part 4233 by
removing ‘‘1200 K Street NW,
Washington, DC 20005–4026’’ wherever
it appears, and adding in its place ‘‘445
12th Street SW, Washington, DC 20024–
2101’’.
■
PART 4903—DEBT COLLECTION
6. The authority citation for part 4903
continues to read as follows:
■
§ 4903.21
29 CFR Part 4233
Employee benefit plans, Pension
insurance, Reporting and recordkeeping
requirements.
29 CFR Part 4903
Claims.
For the reasons given above, PBGC
amends 29 CFR parts 4000, 4233, and
4903 as follows.
■
[Amended]
7. Amend § 4903.21(c) by removing
‘‘1200 K Street NW, Washington, DC
20005.’’ and adding in its place ‘‘445
12th Street SW, Washington, DC 20024–
2101.’’.
■
Issued in Washington, DC, by
Gordon Hartogensis,
Director, Pension Benefit Guaranty
Corporation.
[FR Doc. 2022–19842 Filed 9–21–22; 8:45 am]
1 See
5 U.S.C. 601(2), 604(a).
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Office of the Secretary
[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)
Office of the General Counsel of
the Department of Defense (DoD), DoD.
ACTION: Final rule.
AGENCY:
DoD is finalizing the
requirements for submitting subpoenas
and litigation requests to the
Department as well as the procedures
that its personnel will follow to
respond. These amendments
consolidate component-level
requirements and procedures into a
single, updated Department-level Touhy
rule.
DATES: This final rule is effective on
October 24, 2022.
FOR FURTHER INFORMATION CONTACT: Ms.
Denise Shellman, 703–571–0793,
denise.v.shellman.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
A. 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
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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/.
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B. Discussion of Comments and
Changes
The proposed rule was published in
the Federal Register (86 FR 26444–
26448) on May 14, 2021, with no public
comments received. The rule proposed
modifications 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 included:
• Adding in § 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 paragraphs in
§ 97.2 to provide a more practical order
of categories covered by and excluded
from the rule.
• Revising in § 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 § 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 § 97.6(a),’’ which are used
awkwardly throughout the current rule
to refer to a component’s chief attorney.
Also adding in § 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 § 97.6 to § 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.
While no public comments were
received, DoD is making two
administrative revisions in this final
rule:
• Adding in § 97.8 a factor to consider
whether a disclosure would reveal
information protected by the Privacy
Act.
• Adding a third appendix for
litigation requests and demands to the
Department of the Army.
The general notice-and-comment
requirement of the Administrative
Procedure Act does not apply to these
administrative revisions. DoD finds for
good cause under 5 U.S.C. 553(b)(B) that
another round of notice and comment is
impracticable and unnecessary. Adding
Privacy Act information to the factors to
consider simply recognizes an existing
obligation set forth in 5 U.S.C. 552a. The
Litigation
requests in
2016
Impacted
requests
(%)
revision also will reinforce DoD
components’ compliance with this
statute. And similar to the previously
published appendices for the
Departments of the Navy and Air Force,
the Department of the Army appendix
simply lists the appropriate offices
where parties should submit their
requests and demands.
C. Expected Impact of the Final Rule
As no public comment was received
on this analysis, the Department is
finalizing this section without change.
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. The
Department has 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. 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 ...............................................
516G ............................................
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
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
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(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
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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.
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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.
REGULATORY COMPLIANCE
ANALYSIS
A. Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
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 final rule is not a
significant regulatory action under
section 3(f) of Executive Order 12866.
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 Final Rule
section. The present value savings are
estimated at $51,463.58.
B. Congressional Review Act (5 U.S.C.
801 et seq.)
Pursuant to the Congressional Review
Act, this rule has not been designated a
major rule, as defined by 5 U.S.C.
804(2).
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C. Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The DoD Office of General Counsel
certified that this final 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.
Accordingly, DoD is not required to
prepare a regulatory flexibility analysis.
D. 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
or more (in 1995 dollars, adjusted
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annually for inflation) in any one year.
This final rule will not mandate any
requirements for State, local, or tribal
governments, nor will it affect private
sector costs.
E. 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.
F. 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 final rule will not have a
substantial effect on State and local
governments.
G. Executive Order 13175,
‘‘Consultation and Coordination With
Indian Tribal Governments’’
Executive Order 13175 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
compliance costs on one or more Indian
tribes, preempts tribal law, or affects the
distribution of power and
responsibilities between the Federal
Government and Indian tribes. This
final rule will not have a substantial
effect on Indian tribal governments.
List of Subjects in 32 CFR Part 97
Archives and records, Courts,
Information.
Accordingly, 32 CFR part 97 is 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.
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Appendix A to Part 97—Litigation Requests
and Demands to the Department of the
Army
Appendix B to Part 97—Litigation Requests
and Demands to the Department of the
Navy
Appendix C to Part 97—Litigation Requests
and Demands to the Department of the
Air Force
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
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.
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(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.
(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.
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§ 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
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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
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 October 24, 2022.
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§ 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
this paragraph (a) (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.
§ 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/
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dodm/520001-V4p.PDF?ver=2018-0509-115318-927).
(3) Technical data withheld pursuant
to 32 CFR part 250.
(4) Information protected by the
Privacy Act, which may not be
disclosed in the absence of written
consent, a routine use, or other
authority listed in 5 U.S.C. 552a(b).
(5) 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.
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§ 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
VerDate Sep<11>2014
16:21 Sep 21, 2022
Jkt 256001
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
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 paragraph
(a) of this section, personnel must
respectfully decline to comply with the
court’s order unless the chief legal
advisor directs otherwise.
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
57829
Appendix A to Part 97—Litigation
Requests and Demands to the
Department of the Army
A litigation request or demand to the
Department of the Army (DA) must be
submitted at least 14 days before the desired
date to the appropriate disclosure authority:
(a) Staff Judge Advocates (SJAs), chief
counsel, and legal advisors are the disclosure
authorities for requests and demands
involving unclassified information within the
custody, control, or knowledge of their
respective organizations when the United
States has no interest in the litigation.
Requests and demands will be processed by
local legal offices (in consultation with
Litigation Division as needed) subject to the
limitations in this appendix.
(b) The General Litigation Branch,
Litigation Division, U.S. Army Legal Services
Agency (USALSA), 9275 Gunston Road, Fort
Belvoir, VA 22060, is the disclosure authority
or may delegate disclosure authority for
requests and demands involving:
(1) Terrorism, espionage, nuclear weapons,
or intelligence sources and methods.
(2) Classified information.
(3) Privileged information.
(4) Technical data pursuant to 32 CFR part
250.
(5) Safety records and information
produced by commands, installation safety
offices, or the U.S. Army Combat Readiness
Command and Safety Center (USACRC).
(6) Expert testimony.
(7) All other matters not listed in this
appendix.
(c) Army Medical Center and Command
Judge Advocates and supporting SJAs (in
consultation with the Defense Health Agency
as needed) are the disclosure authorities for
requests and demands involving medical
records or other information within the
custody, control, or knowledge of their
respective permanent station hospitals. For
requests and demands involving factual
testimony by medical providers,
Commanders (in consultation with their legal
advisors) are the disclosure authorities for
their respective Medical Commands when
the United States has no interest in the
litigation.
(d) The Contract Litigation & Intellectual
Property Division, USALSA, 9275 Gunston
Road, Fort Belvoir, VA 22060, is the
disclosure authority for requests and
demands involving:
(1) Patents, copyrights, trade secrets, or
trademarks.
(2) Taxation matters.
(3) Bid protests or contract appeals before
the Armed Services Board of Contract
Appeals (ASBCA) or the Government
Accountability Office, except that contracting
officers (in coordination with their servicing
SJAs and the Division-assigned trial attorney)
may release official information for use in
litigation before the ASBCA, pursuant to 48
CFR part 5, subpart 5.4 (the Federal
Acquisition Regulation (FAR)).
(e) The Procurement Fraud Division,
USALSA, 9275 Gunston Road, Fort Belvoir,
VA 22060, is the disclosure authority for
requests and demands involving
procurement fraud matters, including qui
tam actions.
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57830
Federal Register / Vol. 87, No. 183 / Thursday, September 22, 2022 / Rules and Regulations
(f) The Environmental Law Division,
USALSA, 9275 Gunston Road, Fort Belvoir,
VA 22060, is the disclosure authority for
requests and demands involving:
(1) Energy, communication, transportation,
or utility service proceedings.
(2) Environmental or natural resources
matters, to include water rights and
affirmative environmental cost recovery.
(g) The Tort Litigation Branch, Litigation
Division, USALSA, 9275 Gunston Road, Fort
Belvoir, VA 22060, is the disclosure authority
for requests and demands involving medical
care cost recovery or property claims brought
by the United States.
(h) The Office of the Chief Counsel, U.S.
Army Corps of Engineers (USACE), 441 G
Street NW, Washington, DC, 20314–1000, is
the disclosure authority for requests and
demands involving USACE navigation, civil
works, Clean Water Act 404 permit authority,
environmental response activities, or real
property functions.
(i) DA personnel may not release Inspector
General (IG) records or present testimony
involving information obtained through the
performance of IG duties, except with the
approval of the Secretary of the Army, The
Inspector General (TIG), the TIG Legal
Advisor, or the Chief, Litigation Division.
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.
Appendix B to Part 97—Litigation
Requests and Demands to the
Department of the Navy
[Docket Number USCG–2022–0797]
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.
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.
Security Zones; Corpus Christi Ship
Channel, Corpus Christi, TX
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.
16:21 Sep 21, 2022
Jkt 256001
[FR Doc. 2022–20433 Filed 9–21–22; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
RIN 1625–AA87
Appendix C to Part 97—Litigation
Requests and Demands to the
Department of the Air Force
VerDate Sep<11>2014
Dated: September 16, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing three temporary, 500-yard
radius, moving security zones for
certain vessels carrying Certain
Dangerous Cargoes (CDC) within the
Corpus Christi Ship Channel and La
Quinta Channel. The temporary security
zones are needed to protect the vessels,
the CDC cargo, and the surrounding
waterway from terrorist acts, sabotage,
or other subversive acts, accidents, or
other events of a similar nature. Entry of
vessels or persons into these zones is
prohibited unless specifically
authorized by the Captain of the Port
Sector Corpus Christi or a designated
representative.
SUMMARY:
This rule is effective without
actual notice from September 22, 2022
until September 25, 2022. For the
purposes of enforcement, actual notice
will be used from September 21, 2022,
until September 22, 2022.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Lieutenant Commander Anthony
Garofalo, Sector Corpus Christi
Waterways Management Division, U.S.
Coast Guard; telephone 361–939–5130,
email Anthony.M.Garofalo@uscg.mil.
SUPPLEMENTARY INFORMATION:
DATES:
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port Sector Corpus
Christi
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background Information and
Regulatory History
The Coast Guard is issuing this
temporary rule without prior notice and
opportunity to comment pursuant to
authority under section 4(a) of the
Administrative Procedure Act (APA) (5
U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because it is
impracticable. We must establish these
security zones by September 21, 2022 to
ensure security of these vessels and lack
sufficient time to provide a reasonable
comment period and then consider
those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. Delaying the effective date of
this rule would be contrary to the public
interest because immediate action is
needed to provide for the security of the
vessel.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule
under authority in 46 U.S.C. 70034
(previously 33 U.S.C. 1231). The
Captain of the Port Sector Corpus
Christi (COTP) has determined that
potential hazards associated with the
transit of the Motor Vessel (M/V)
CELSIUS CAROLINA when loaded will
be a security concern within a 500-yard
radius of the vessel. This rule is needed
to provide for the safety and security the
vessel, their cargo, and surrounding
waterway from terrorist acts, sabotage or
other subversive acts, accidents, or other
events of a similar nature while they are
transiting within Corpus Christi, TX,
from September 21, 2022 until
September 25, 2022.
IV. Discussion of the Rule
The Coast Guard is establishing four
500-yard radius temporary moving
security zones around M/V CELSIUS
CAROLINA. The zone for the vessel will
E:\FR\FM\22SER1.SGM
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]]>Agencies
[Federal Register Volume 87, Number 183 (Thursday, September 22, 2022)]
[Rules and Regulations]
[Pages 57825-57830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20433]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is finalizing the requirements for submitting subpoenas
and litigation requests to the Department as well as the procedures
that its personnel will follow to respond. These amendments consolidate
component-level requirements and procedures into a single, updated
Department-level Touhy rule.
DATES: This final rule is effective on October 24, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Denise Shellman, 703-571-0793,
[email protected].
SUPPLEMENTARY INFORMATION:
A. 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
[[Page 57826]]
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/.
B. Discussion of Comments and Changes
The proposed rule was published in the Federal Register (86 FR
26444-26448) on May 14, 2021, with no public comments received. The
rule proposed modifications 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 included:
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 paragraphs 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.
While no public comments were received, DoD is making two
administrative revisions in this final rule:
Adding in Sec. 97.8 a factor to consider whether a
disclosure would reveal information protected by the Privacy Act.
Adding a third appendix for litigation requests and
demands to the Department of the Army.
The general notice-and-comment requirement of the Administrative
Procedure Act does not apply to these administrative revisions. DoD
finds for good cause under 5 U.S.C. 553(b)(B) that another round of
notice and comment is impracticable and unnecessary. Adding Privacy Act
information to the factors to consider simply recognizes an existing
obligation set forth in 5 U.S.C. 552a. The revision also will reinforce
DoD components' compliance with this statute. And similar to the
previously published appendices for the Departments of the Navy and Air
Force, the Department of the Army appendix simply lists the appropriate
offices where parties should submit their requests and demands.
C. Expected Impact of the Final Rule
As no public comment was received on this analysis, the Department
is finalizing this section without change. 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. The
Department has 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. 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 in requests Hours saved Lawyers' savings to
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
516G.................................. 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 57827]]
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.
REGULATORY COMPLIANCE ANALYSIS
A. Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
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 final rule is
not a significant regulatory action under section 3(f) of Executive
Order 12866. 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 Final Rule section. The present value savings are estimated at
$51,463.58.
B. Congressional Review Act (5 U.S.C. 801 et seq.)
Pursuant to the Congressional Review Act, this rule has not been
designated a major rule, as defined by 5 U.S.C. 804(2).
C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The DoD Office of General Counsel certified that this final 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. Accordingly, DoD is not required to prepare a
regulatory flexibility analysis.
D. 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
or more (in 1995 dollars, adjusted annually for inflation) in any one
year. This final rule will not mandate any requirements for State,
local, or tribal governments, nor will it affect private sector costs.
E. 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.
F. 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 final rule will not have a substantial effect on
State and local governments.
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct compliance costs on one or
more Indian tribes, preempts tribal law, or affects the distribution of
power and responsibilities between the Federal Government and Indian
tribes. This final rule will not have a substantial effect on Indian
tribal governments.
List of Subjects in 32 CFR Part 97
Archives and records, Courts, Information.
0
Accordingly, 32 CFR part 97 is 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 Army
Appendix B to Part 97--Litigation Requests and Demands to the
Department of the Navy
Appendix C to Part 97--Litigation Requests and Demands to the
Department of the Air Force
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.
[[Page 57828]]
(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 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 October 24,
2022.
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 (a) (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.
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/
[[Page 57829]]
dodm/520001-V4p.PDF?ver=2018-05-09-115318-927).
(3) Technical data withheld pursuant to 32 CFR part 250.
(4) Information protected by the Privacy Act, which may not be
disclosed in the absence of written consent, a routine use, or other
authority listed in 5 U.S.C. 552a(b).
(5) 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 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
paragraph (a) of this section, 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 Army
A litigation request or demand to the Department of the Army
(DA) must be submitted at least 14 days before the desired date to
the appropriate disclosure authority:
(a) Staff Judge Advocates (SJAs), chief counsel, and legal
advisors are the disclosure authorities for requests and demands
involving unclassified information within the custody, control, or
knowledge of their respective organizations when the United States
has no interest in the litigation. Requests and demands will be
processed by local legal offices (in consultation with Litigation
Division as needed) subject to the limitations in this appendix.
(b) The General Litigation Branch, Litigation Division, U.S.
Army Legal Services Agency (USALSA), 9275 Gunston Road, Fort
Belvoir, VA 22060, is the disclosure authority or may delegate
disclosure authority for requests and demands involving:
(1) Terrorism, espionage, nuclear weapons, or intelligence
sources and methods.
(2) Classified information.
(3) Privileged information.
(4) Technical data pursuant to 32 CFR part 250.
(5) Safety records and information produced by commands,
installation safety offices, or the U.S. Army Combat Readiness
Command and Safety Center (USACRC).
(6) Expert testimony.
(7) All other matters not listed in this appendix.
(c) Army Medical Center and Command Judge Advocates and
supporting SJAs (in consultation with the Defense Health Agency as
needed) are the disclosure authorities for requests and demands
involving medical records or other information within the custody,
control, or knowledge of their respective permanent station
hospitals. For requests and demands involving factual testimony by
medical providers, Commanders (in consultation with their legal
advisors) are the disclosure authorities for their respective
Medical Commands when the United States has no interest in the
litigation.
(d) The Contract Litigation & Intellectual Property Division,
USALSA, 9275 Gunston Road, Fort Belvoir, VA 22060, is the disclosure
authority for requests and demands involving:
(1) Patents, copyrights, trade secrets, or trademarks.
(2) Taxation matters.
(3) Bid protests or contract appeals before the Armed Services
Board of Contract Appeals (ASBCA) or the Government Accountability
Office, except that contracting officers (in coordination with their
servicing SJAs and the Division-assigned trial attorney) may release
official information for use in litigation before the ASBCA,
pursuant to 48 CFR part 5, subpart 5.4 (the Federal Acquisition
Regulation (FAR)).
(e) The Procurement Fraud Division, USALSA, 9275 Gunston Road,
Fort Belvoir, VA 22060, is the disclosure authority for requests and
demands involving procurement fraud matters, including qui tam
actions.
[[Page 57830]]
(f) The Environmental Law Division, USALSA, 9275 Gunston Road,
Fort Belvoir, VA 22060, is the disclosure authority for requests and
demands involving:
(1) Energy, communication, transportation, or utility service
proceedings.
(2) Environmental or natural resources matters, to include water
rights and affirmative environmental cost recovery.
(g) The Tort Litigation Branch, Litigation Division, USALSA,
9275 Gunston Road, Fort Belvoir, VA 22060, is the disclosure
authority for requests and demands involving medical care cost
recovery or property claims brought by the United States.
(h) The Office of the Chief Counsel, U.S. Army Corps of
Engineers (USACE), 441 G Street NW, Washington, DC, 20314-1000, is
the disclosure authority for requests and demands involving USACE
navigation, civil works, Clean Water Act 404 permit authority,
environmental response activities, or real property functions.
(i) DA personnel may not release Inspector General (IG) records
or present testimony involving information obtained through the
performance of IG duties, except with the approval of the Secretary
of the Army, The Inspector General (TIG), the TIG Legal Advisor, or
the Chief, Litigation Division.
Appendix B 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 C 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: September 16, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-20433 Filed 9-21-22; 8:45 am]
BILLING CODE 5001-06-P
