[Federal Register Volume 71, Number 157 (Tuesday, August 15, 2006)]
[Proposed Rules]
[Pages 46986-46991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6882]



[[Page 46985]]

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Part II





Department of Housing and Urban Development





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24 CFR Part 15



 Public Access to HUD Records Under the Freedom of Information Act 
(FOIA) and Production of Material or Provision of Testimony by HUD 
Employees; Proposed Rule

Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / 
Proposed Rules

[[Page 46986]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-5015-P-01]
RIN 2501-AD18


Public Access to HUD Records Under the Freedom of Information Act 
(FOIA) and Production of Material or Provision of Testimony by HUD 
Employees

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule is intended to clarify and explain the 
various types of requests for HUD documents and testimony by HUD 
employees that are intended to be covered by the Department's document 
production and testimony approval regulations. This proposed rule 
describes the procedures to be followed by a party in making a demand 
for HUD documents and HUD testimony. The proposed rule also explains 
the standards that are to be followed by HUD in determining whether 
production of documents or testimony should be permitted and, if so, 
any conditions or restrictions imposed.

DATES: Comment Due Date: October 16, 2006.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Office of the General Counsel, Rules Docket 
Clerk, Department of Housing and Urban Development, 451 Seventh Street, 
SW, Room 10276, Washington, DC 20410-0001. Communications should refer 
to the above docket number and title and should contain the information 
specified in the ``Request for Comments'' section.
    Electronic Submission of Comments. Interested persons may submit 
comments electronically through the Federal eRulemaking Portal at 
http://www.regulations.gov. HUD strongly encourages commenters to 
submit comments electronically. Electronic submission of comments 
allows the commenter maximum time to prepare and submit a comment, 
ensures timely receipt by HUD, and enables HUD to make them immediately 
available to the public. Comments submitted electronically through the 
http://www.regulations.gov Web site can be viewed by other commenters 
and interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.
    No Facsimile Comments. Facsimile (FAX) comments are not acceptable. 
In all cases, communications must refer to the docket number and title.
    Public Inspection of Public Comments. All comments and 
communications submitted to HUD will be available, without charge, for 
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the 
above address. Due to security measures at the HUD Headquarters 
building, an advance appointment to review the public comments must be 
scheduled by calling the Regulations Division at (202) 708-3055 (this 
is not a toll-free number). Copies of all comments submitted are 
available for inspection and downloading at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nancy Christopher, Associate General 
Counsel for Litigation, Office of Litigation, Office of General 
Counsel, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Room 10258, Washington, DC 20410-5000; telephone (202) 
708-0300 (this is not a toll-free telephone number). Persons with 
hearing or speech impairments may access this number via TTY by calling 
the toll-free Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    HUD's regulations at 24 CFR part 15 describe the policies and 
procedures governing public access to HUD records under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552), and the policies and procedures 
governing the production of material or provision of testimony by HUD 
employees, which Sec.  15.2 defines to include all current or former 
employees who are not employees of the Office of the Inspector General. 
On January 22, 2001, the Department published a final rule (66 FR 6973) 
that amended the Department's FOIA regulations and redesignated former 
subparts H and I of part 15 that deal with the production of documents 
and provision of testimony by HUD employees, as subparts C and D, 
respectively. Aside from the designations and conforming amendments to 
reflect these new designations, no revisions were made to those 
subparts at that time.
    HUD's regulations at 24 CFR part 15 were amended again on October 
23, 2002 (67 FR 65276). That amendment delegated authority to the 
General Counsel to authorize an employee, upon a show of good cause, to 
testify as an expert or opinion witness in matters in which the United 
States is a party, as well as in matters exclusively among non-federal 
litigants. Prior to this amendment, only the Secretary was authorized 
to permit expert or opinion testimony.
    This proposed rule would revise and amend subparts C and D in order 
to clarify the various types of requests for HUD documents and 
testimony by HUD employees that are intended to be covered by the 
regulations in 24 CFR part 15. The proposed rule also describes the 
procedures to be followed by a party in making a demand to HUD for 
documents or testimony. The proposed rule also explains the standards 
that are to be followed by HUD in determining whether production or 
testimony should be permitted and, if so, any conditions or 
restrictions imposed. In addition to these changes, the proposed rule 
would make certain technical corrections in both subparts C and D.
    As proposed to be amended by this rule, the organization of part 15 
would no longer be based on a distinction between production of 
material and provision of testimony, but rather would be based on the 
parties involved in the legal proceeding. Subpart C would govern 
litigation between private parties, while subpart D would govern 
litigation where one of the parties is the federal government. In order 
to improve clarity and highlight the processes to be followed, subparts 
C and D would be revised in their entirety.
    The following sections of this preamble provide a summary of the 
existing subparts and a discussion of the proposed changes to 24 CFR 
part 15, subparts C and D.

II. Proposed Changes to 24 CFR Part 15, Subpart C

    Subpart C of 24 CFR part 15, currently titled ``Production in 
Response to Subpoenas or Demands of Courts or Other Authorities,'' was 
designed to contain HUD's procedures to be followed when a subpoena, 
order, or other demand of a court or other authority is issued to HUD 
for the production of material, or the disclosure of information in its 
possession or the disclosure of information acquired by an employee or 
former employee as a part of the performance of the employee's official 
duties or because of his or her official status. The current subpart C 
prohibits production of material without the prior approval of the 
Secretary or General Counsel (24 CFR 15.202).
    Though not expressly referred to in the title of the subpart, 
subpart C was also intended to address the provision of testimony by 
HUD employees, and

[[Page 46987]]

not just the production of material. In addition to the need to clarify 
the inclusion of demands for testimony, subpart C requires 
clarification. This clarification is needed because subpart C does not 
explicitly contain the standards that must be followed in determining: 
(1) Whether production of material or provision of testimony should be 
permitted and (2) if it is permitted, whether the production or 
testimony should or will be subject to conditions or restrictions. 
Furthermore, the current subpart C regulations cross-reference to 24 
CFR part 15, subpart I, for the standards to be followed in deciding 
whether to approve such demands. Under this proposed rule, these 
standards would instead be found in subpart D.
    This proposed rule would also make several amendments to subpart C, 
to clearly set forth the procedures to be followed and standards to be 
applied by HUD in processing demands for the production of material or 
provision of testimony in legal proceedings among private litigants. 
The purpose and scope of the subpart would largely be unchanged and 
prior approval by the Secretary or the General Counsel would still be 
required before the release of material or the provision of testimony 
by HUD employees.
    This proposed rule would revise the title of subpart C to more 
clearly describe the scope of the regulations contained in the subpart 
(the proposed new title would be ``Production of material or provision 
of testimony in response to demands in legal proceedings among private 
litigants''). The proposed rule would also revise Sec.  15.203 to list, 
with specificity, the requirements that must be included in a demand to 
HUD for the production of material or the provision of testimony. 
Section 15.203 would also be revised to provide that the Associate 
General Counsel for Litigation or a designee shall be notified 
immediately of all demands, is to be provided with a copy of the 
demand, will maintain a record of all demands served upon the 
Department, and will refer the demand to the appropriate designee for 
processing and determination.
    Further, the proposed rule would revise Sec.  15.204 to explain how 
HUD will consider demands for material or testimony. The Secretary or 
the General Counsel would have to evaluate demands to determine what 
material will be produced or testimony provided. The revised regulation 
will make clear that material or testimony cannot be used for expert or 
opinion purposes unless authorized by the Secretary or General Counsel 
for good cause shown. Once a determination is made, the requester will 
be notified, will be given the underlying reasoning for the decision, 
and will be apprised of any applicable conditions imposed on the 
material or testimony provided. The determination by the Secretary 
constitutes final agency action, meaning administrative appeals of the 
determination could not be made.
    In the event that a response to a demand for material or the 
production of testimony is required before the Secretary renders a 
determination, the U.S. Attorney or such other attorney as may be 
designated for the purpose will furnish the court or other authority a 
copy of HUD's public access to records regulations and respectfully 
request that the demand be stayed until a prompt determination can be 
made. If the court or other authority requires compliance, regardless 
of the fact that the Secretary has not made a determination, or the 
fact that the Secretary decided either not to respond or decided to 
respond subject to conditions or restrictions, the employee must choose 
if so directed by an attorney representing the Department, to 
respectfully decline to comply with the demand.

III. Proposed Changes to 24 CFR Part 15, Subpart D

    Subpart D of 24 CFR part 15, currently titled ``Testimony of 
Employees in Legal Proceedings,'' addresses testimony of HUD employees, 
including expert or opinion testimony, with respect to material or 
information contained in the files of the Department, or information 
learned as part of the performance of their official duties or because 
of their official status in any legal proceeding. However, subpart D 
does not expressly list the standards that are followed in determining 
whether testimony or production should be permitted and subject to what 
conditions or restrictions, other than an express prohibition against 
any HUD employee being called to testify as an expert or opinion 
witness by any party other than the federal government, unless 
specifically authorized by the Secretary or the General Counsel for 
good cause shown. This proposed rule would amend Subpart D to set forth 
and clarify the procedures to be followed and standards to be applied 
in processing demands for the production of material or provision of 
testimony in legal proceedings in which the United States is a party.
    This proposed rule would revise the title of subpart D to more 
clearly describe the scope of the regulations contained in the subpart 
(the proposed new title would be ``Production of material or provision 
of testimony in response to demands in legal proceedings in which the 
United States is a party'').
    The proposed rule would also revise Sec.  15.302 to provide that 
demands for production of material or provision of testimony in any 
legal proceeding in which the United States is a party will be directed 
to the agency by the attorney representing the United States, after 
which the Associate General Counsel for Litigation or designee will be 
internally notified of the demand. Additionally, the blanket 
authorization of factual testimony would be removed and the 
determination of what testimony to approve would be made by HUD in 
consultation with the attorney representing the federal government. The 
content of Sec.  15.304 has been removed from the regulations because, 
as a result of the other amendments now being proposed to this part, it 
would no longer be necessary. The procedures governing legal 
proceedings among private litigants are set forth in Sec. Sec.  15.201 
through 15.206.

IV. Other Proposed Regulatory Changes

    This proposed rule would also make certain technical corrections to 
both subparts C and D of 24 CFR part 15. One such technical correction 
is that the rule would not apply to any legal proceeding in which an 
employee would testify, not on official time, as to opinions or facts 
that do not involve covered material or information (i.e., are in no 
way related to the duties the employee performs for, or to the 
functions of, the Department). Such legal proceedings are outside the 
scope of this proposed rule.
    This proposed rule would also amend Sec.  15.1, which describes the 
scope of each subpart in part 15, to conform the descriptions of 
subparts C and D to the proposed regulatory changes. In addition, the 
proposed rule would revise Sec.  15.2, which contains the definitions 
for 24 CFR part 15, to set forth the defined terms applicable to 
revised subparts C and D.

V. Findings and Certifications

Paperwork Reduction Act

    The proposed information collection requirements contained in this 
rule have been submitted to the Office of Management and Budget (OMB) 
for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). Under this Act, an agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless the collection displays a valid control number.

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    The public reporting burden for this collection of information is 
estimated to include the time for reviewing the instructions, for 
gathering and preparing the information required to be included in 
demands, and for completing and reviewing the information to be 
provided.
    The following table provides information on the estimated public 
reporting burden:

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                                                                        Number of      Responses per     Total annual      Hours per
                       Information collection                          respondents       respondent       responses         response       Total hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec.   15.301......................................................             106                1              106              1.5              159
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    In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments 
from members of the public and affected agencies concerning the 
proposed collection of information to:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated 
collection techniques or other forms of information technology (e.g., 
permitting responses to be submitted electronically). Interested 
persons are invited to submit comments regarding the information 
collection requirements in this proposal. Under the provisions of 5 CFR 
1320, OMB is required to make a decision concerning this collection of 
information between 30 and 60 days after today's publication date. 
Therefore, any comment on the information collection requirements is 
best assured of having its full effect if OMB receives the comment 
within 30 days of today's publication. However, this time frame does 
not affect the deadline for comments to the agency on the proposed 
rule. Comments must refer to the proposal by the proposal's name and 
docket number (FR-5015-P-01) and must be sent to:

HUD Desk Officer, Office of Management and Budget, New Executive Office 
Building, Washington, DC 20503; and
Celestine R. Smith, Regulations and Directives Clearance Officer, 
Office of the General Counsel, Office of Legislation and Regulations, 
Department of Housing and Urban Development, 451 Seventh Street, SW, 
Room 10276, Washington, DC 20410-5000.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and subject to comment 
rulemaking requirements, unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. The regulatory amendments that would be made by this proposed 
rule are procedural. Accordingly, the rule would not have any impact on 
the substantive rights or duties of small entities requesting HUD 
records under the Freedom of Information Act. Furthermore, because the 
fees charged under this rule are limited by FOIA to direct costs of 
searching for, reviewing, and duplicating the records processed for 
requesters, the fees are not economically significant.
    Accordingly, the undersigned certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. Notwithstanding HUD's determination that this rule will not 
have a significant effect on a substantial number of small entities, 
HUD specifically invites comments regarding any less burdensome 
alternatives to this rule that will meet HUD's objectives as described 
in the preamble to this rule.

Environmental Impact

    This proposed rule does not direct, provide for assistance, or loan 
and mortgage insurance for, or otherwise govern or regulate, real 
property acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
proposed rule is categorically excluded from the requirements of the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This proposed rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments or preempt state law 
within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.1531-
1538) (UMRA) establishes requirements for federal agencies to assess 
the effects of their regulatory actions on state, local, and tribal 
governments, and on the private sector. This proposed rule does not 
impose any federal mandates on any state, local, or tribal government, 
or on the private sector, within the meaning of UMRA.

List of Subjects in 24 CFR Part 15

    Classified information, Courts, Freedom of information, Government 
employees, reporting and recordkeeping requirements.

    Accordingly, for the reasons discussed in the preamble, HUD 
proposes to amend 24 CFR part 15 to read as follows:

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD 
EMPLOYEES

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

    Authority: 42 U.S.C. 3535(d).

    2. Revise Sec.  15.1(b) and (c) to read as follows:


Sec.  15.1  What is the purpose of this part?

* * * * *
    (b) Subpart C of this part. Subpart C of this part describes the 
procedures to be followed and standards to be applied in processing 
demands for the production of material or provision of

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testimony in legal proceedings among private litigants.
    (c) Subpart D of this part. Subpart D of this part describes the 
procedures to be followed and standards to be applied in processing 
demands for the production of material or provision of testimony in 
legal proceedings in which the United States is a party.
* * * * *
    3. In Sec.  15.2(b) add, in alphabetical order, definitions of the 
terms ``Demand,'' ``Good cause,'' ``Material,'' ``Production,'' 
``Testimony,'' and ``United States'' to read as follows:


Sec.  15.2  Definitions.

* * * * *
    Demand means a subpoena, order, or other demand of a court or other 
authority that is issued in a legal proceeding and any accompanying 
submissions.
* * * * *
    Good cause means necessary to prevent a miscarriage of justice or 
to promote a significant interest of the Department.
* * * * *
    Material means either documents or information contained in or 
relating to contents of the files of the Department or documents or 
information acquired by any person while such person was an employee of 
the Department as a part of the performance of his or her official 
duties or because of his or her official status.
* * * * *
    Production refers to the provision of material by any means other 
than through the provision of oral testimony.
* * * * *
    Testimony refers to any oral or written statements made in 
litigation under oath or penalty of perjury.
* * * * *
    United States refers to the Federal Government of the United States 
(including the Department), the Secretary, and any employees of the 
Department in their official capacities.
    4. Revise subpart C to read as follows:

Subpart C--Production of Material or Provision of Testimony in 
Response to Demands in Legal Proceedings Among Private Litigants

Sec.
15.201 Purpose and scope.
15.202 Production of material or provision of testimony prohibited 
unless approved by the Secretary or General Counsel.
15.203 Making a demand for production of material or provision of 
testimony.
15.204 Consideration of demands for production of material or 
provision of testimony.
15.205 Method of production of material or provision of testimony.
15.206 Procedure in the event of an adverse ruling regarding 
production of material or provision of testimony.


Sec.  15.201  Purpose and scope.

    (a) This subpart contains the regulations of the Department 
concerning the procedures to be followed and standards to be applied 
when demand is issued in a legal proceeding among private litigants for 
the production or disclosure of any material, whether provided through 
production of material or provision of testimony.
    (b) This subpart does not apply to demands, which are covered by 
part 2004 of this title, for production of material in the files of the 
Office of Inspector General or provision of testimony by employees 
within the Office of Inspector General.


Sec.  15.202  Production of material or provision of testimony 
prohibited unless approved by the Secretary or General Counsel.

    Neither the Department nor any employee of the Department shall 
comply with any demand for production of material or provision of 
testimony in a legal proceeding among private litigants, unless the 
prior approval of the Secretary or General Counsel has been obtained in 
accordance with this subpart. This rule does not apply to any legal 
proceeding in which an employee may be called to participate, either 
through the production of documents or the provision of testimony, not 
on official time, as to facts or opinions that are in no way related to 
material described in Sec.  15.201.


Sec.  15.203  Making a demand for production of material or provision 
of testimony.

    (a) Any demand made to the Department or an employee of the 
Department to produce any material or provide any testimony in a legal 
proceeding among private litigants, must:
    (1) Be submitted in writing to the Department or employee of the 
Department, with a copy to the Associate General Counsel for 
Litigation, no later than 30 days before the date the material or 
testimony is required;
    (2) State, with particularity, the material or testimony sought;
    (3) State whether expert or opinion testimony will be sought from 
the employee;
    (4) State whether the production of such material or provision of 
such testimony could reveal classified, confidential, or privileged 
material;
    (5) Summarize the need for and relevance of the material or 
testimony sought in the legal proceeding;
    (6) State whether the material or testimony is available from any 
other source and, if so, state all such other sources;
    (7) State why no document[s], or declaration or affidavit, could be 
used in lieu of oral testimony that is being sought;
    (8) Estimate the amount of time the employee will need in order to 
prepare for, travel to, and attend the legal proceeding, as 
appropriate;
    (9) State why the production of the material or provision of the 
testimony is appropriate under the rules of procedure governing the 
legal proceeding for which it is sought (e.g., not unduly burdensome or 
otherwise inappropriate under the relevant rules governing discovery); 
and
    (10) Describe how producing such material or providing such 
testimony would affect the interests of the United States.
    (b) Whenever a demand is made upon the Department or an employee of 
the Department for the production of material or provision of 
testimony, the Associate General Counsel for Litigation or designee 
shall be notified immediately. The Associate General Counsel for 
Litigation or designee shall maintain a record of all demands served 
upon the Department and refer the demand to the appropriate designee 
for processing and determination.


Sec.  15.204  Consideration of demands for production of material or 
provision of testimony.

    (a) The Secretary or General Counsel shall determine what material 
is to be produced or what testimony is to be provided, based upon the 
following standards:
    (1) Expert or opinion material or testimony. In any legal 
proceeding among private litigants, no employee of the Department may 
produce material or provide testimony as described in Sec.  15.201 that 
is of an expert or opinion nature, unless specifically authorized by 
the Secretary or the General Counsel for good cause shown.
    (2) Factual material or testimony. In any legal proceeding among 
private litigants, no employee of the Department may produce material 
or provide testimony as described in Sec.  15.201 unless specifically 
authorized by the Secretary or General Counsel. Such authorization may 
be granted if the Secretary or General Counsel determines that it is 
warranted based upon an assessment of whether:

[[Page 46990]]

    (i) Producing such material or providing such testimony would 
violate a statute or regulation;
    (ii) Producing such material or providing such testimony would 
reveal classified, confidential, or privileged material;
    (iii) Such material or testimony is relevant to the legal 
proceeding;
    (iv) Such material or testimony can be obtained from any other 
source;
    (v) One or more documents, or a declaration or affidavit, could 
reasonably be provided in lieu of oral testimony;
    (vi) The amount of employees' time necessary to comply with the 
demand is reasonable;
    (vii) Production of the material or provision of the testimony is 
appropriate under the rules of procedure governing the legal proceeding 
for which it is sought (e.g., unduly burdensome or otherwise 
inappropriate under the relevant rules governing discovery); and
    (viii) Producing such material or providing such testimony would 
impede a significant interest of the United States.
    (b) Once a determination has been made, the requester will be 
notified of the determination, the reasons for the grant or denial of 
the demand, and any conditions that have been imposed upon the 
production of the material or provision of the testimony demanded.
    (c) The Secretary or General Counsel may impose conditions or 
restrictions on the production of any material or provision of any 
testimony. Such conditions or restrictions may include the following:
    (1) A requirement that the parties to the legal proceeding obtain a 
protective order or execute a confidentiality agreement, the terms of 
which must be acceptable to the Secretary or General Counsel, to limit 
access to, and limit any further disclosure of, material or testimony;
    (2) A requirement that the requester accept examination of 
documentary material on HUD premises in lieu of production of copies;
    (3) A limitation on the subject areas of testimony permitted;
    (4) A requirement that testimony of a HUD employee be provided by 
deposition at a location prescribed by HUD or by written declaration or 
affidavit;
    (5) A requirement that the parties to the legal proceeding agree 
that a transcript of the permitted testimony be kept under seal or will 
only be used or made available in the particular legal proceeding for 
which testimony was demanded;
    (6) A requirement that the requester provide the Department with a 
copy of a transcript of the employee's testimony free of charge; or
    (7) Any other condition or restriction deemed to be in the best 
interests of the United States.
    (d) The determination made with respect to the production of 
material or provision of testimony is within the sole discretion of the 
Secretary or General Counsel and shall constitute final agency action 
from which no administrative appeal is available.


Sec.  15.205  Method of production of material or provision of 
testimony.

    (a) Where the Secretary or General Counsel has authorized the 
production of material or provision of testimony, the Department shall 
produce such material or provide such testimony in accordance with this 
section and any conditions imposed upon production of material or 
provision of testimony pursuant to Sec.  15.204.
    (b) In any legal proceeding where the Secretary or General Counsel 
has authorized the production of documents, the Department shall 
respond by producing authenticated copies of the documents, to which 
the seal of the Department has been affixed, in accordance with its 
authentication procedures. That authentication shall be evidence that 
the documents are true copies of documents in the Department's files 
and be sufficient for the purposes of Rule 902 of the Federal Rules of 
Evidence.
    (c) If response to the demand is required before the determination 
from the Secretary or General Counsel is received, the U.S. Attorney, 
or such other attorney as may be designated for the purpose, will 
appear or make such filings as are necessary to furnish the court or 
other authority with a copy of the regulations contained in this 
subpart and inform the court or other authority that the demand has 
been, or is being, as the case may be, referred for prompt 
consideration. The court or other authority shall be requested 
respectfully to stay the demand pending receipt of the requested 
determination from the Secretary or General Counsel.


Sec.  15.206  Procedure in the event of an adverse ruling regarding 
production of material or provision of testimony.

    If the court or other authority declines to stay the demand made in 
accordance with Sec.  15.205 pending receipt of the determination from 
the Secretary or General Counsel, or if the court or other authority 
rules that the demand must be complied with irrespective of the 
determination by the Secretary or General Counsel not to produce the 
material or provide the testimony demanded or to produce subject to 
conditions or restrictions, the employee upon whom the demand has been 
made shall, if so directed by an attorney representing the Department, 
respectfully decline to comply with the demand. (United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951)).
    5. Revise subpart D to read as follows:

Subpart D--Production of Material or Provision of Testimony in 
Response to Demands in Legal Proceedings in Which the United States 
is a Party

Sec.
15.301 Purpose and scope.
15.302 Procedure for review of demands for production of material or 
provision of testimony in any legal proceeding in which the United 
States is a party.
15.303 Consideration of demands for production of material or 
provision of testimony.
15.304 Method of production of material or provision of testimony.


Sec.  15.301  Purpose and scope.

    (a) This subpart contains the regulations of the Department 
concerning the procedures to be followed and standards to be applied 
when demand is issued in a legal proceeding in which the United States 
is a party for the production or disclosure of any material, whether 
provided through production of material or provision of testimony.
    (b) This subpart does not apply to demands, which are covered by 
part 2004 of this title, for production of material in the files of the 
Office of Inspector General or provision of testimony by employees 
within the Office of Inspector General.


Sec.  15.302  Procedure for review of demands for production of 
material or provision of testimony in any legal proceeding in which the 
United States is a party.

    All demands for production of material or provision of testimony in 
any legal proceeding in which the United States is a party shall be 
directed to the agency through the attorney representing the United 
States in the proceeding. Whenever the Department or an employee of the 
Department is notified by the attorney representing the United States 
of the demand for the production of material or provision of testimony 
in any legal proceeding in which the United States is a party, the 
Associate General Counsel for Litigation or designee shall be notified 
immediately.

[[Page 46991]]

Sec.  15.303  Consideration of demands for production of material or 
provision of testimony.

    (a) The Secretary or General Counsel shall consult with the 
attorney representing the United States, as to the response to the 
demand for production of material, or to the provision of testimony.
    (b) An employee of the Department may not testify as an expert or 
opinion witness unless specifically authorized by the Secretary or the 
General Counsel for good cause shown.


Sec.  15.304  Method of production of material or provision of 
testimony.

    Where the Secretary or General Counsel has authorized the 
production of material or provision of testimony, the Associate General 
Counsel for Litigation or designee shall arrange for the production of 
any authorized material or provision of any authorized testimony 
through the attorney representing the United States. Where the 
Secretary or General Counsel has authorized the production of 
documents, the Department may respond by producing authenticated copies 
of the documents, to which the seal of the Department has been affixed 
in accordance with its authentication procedures. That authentication 
shall be evidence that the documents are true copies of documents in 
the Department's files and be sufficient for the purposes of Rule 902 
of the Federal Rules of Evidence.

    Dated: July 12, 2006.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. 06-6882 Filed 8-14-06; 8:45 am]
BILLING CODE 4210-67-P