46986 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

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. 

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 

§ 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 


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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 crossreference 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 

§ 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 § 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 

§ 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 § 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 

§§ 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 

§ 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 § 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: 

Information collection Number of 

respondents 

Responses 

per 

respondent 

Total annual 

responses 

Hours per 

response Total hours 

§ 15.301 ................................................................................ 106 1 106 1.5 159 

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 § 15.1(b) and (c) to read as 

follows: 

§ 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 § 15.2(b) add, in alphabetical 

order, definitions of the terms 

‘‘Demand,’’ ‘‘Good cause,’’ ‘‘Material,’’

‘‘Production,’’ ‘‘Testimony,’’ and 

‘‘United States’’ to read as follows: 

§ 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. 

§ 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. 

§ 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 

§ 15.201. 

§ 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. 

§ 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 

§ 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 

§ 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: 


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(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. 

§ 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 § 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. 

§ 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 § 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. 

§ 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. 

§ 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. 


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Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 46991 

§ 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. 

§ 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 


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