11480 Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 / Rules and Regulations 

OFFICE OF THE DIRECTOR OF 

NATIONAL INTELLIGENCE 

32 CFR Part 1703 

Regulations Governing the Production 

of Office of the Director of National 

Intelligence Information or Material in 

Proceedings Before Federal, State, 

Local or Other Government Entity of 

Competent Jurisdiction 

AGENCY: Office of the Director of 

National Intelligence. 

ACTION: Final rule. 

SUMMARY: This final regulation governs 

the procedures the ODNI will follow for 

the production of ODNI information or 

material in proceedings before federal, 

state, local or other government entity of 

competent jurisdiction. 

DATES: Effective Date: March 18, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Tricia Wellman, (703) 275–2527. 

SUPPLEMENTARY INFORMATION: The Office 

of the Director of National Intelligence 

(ODNI) was created by the Intelligence 

Reform and Terrorism Prevention Act of 

2004, Public Law 108–458, 118 Stat. 

3638. The ODNI began operations on 

April 22, 2005, the day after the first 

Director of National Intelligence took 

office. This regulation outlines the 

procedures current and former ODNI 

employees must follow when they 

receive a demand for ODNI information 

or material in connection with 

proceedings before federal, state, local 

or other government entity of competent 

jurisdiction. These regulations are 

typically called Touhy regulations 

because of the Supreme Court’s decision 

in United States ex rel. Touhy v. Ragen, 

340 U.S. 462 (1951), in which the Court 

held that an agency employee could not 

be held in contempt for refusing to 

disclose agency records or information 

when following the instructions of his 

or her supervisor. 

The ODNI received no comments to 

its proposed regulation previously 

published on October 17, 2008 (73 FR 

61772). 

List of Subjects in 32 CFR Part 1703 

Courts, Government employees. 

■ Title 32 of the Code of Federal 

Regulations is amended by adding Part 

1703 to read as follows: 

PART 1703—PRODUCTION OF ODNI 

INFORMATION OR MATERIAL IN 

PROCEEDINGS BEFORE FEDERAL, 

STATE, LOCAL OR OTHER 

GOVERNMENT ENTITY OF 

COMPETENT JURISDICTION 

Sec.

1703.1 Scope and purpose. 

1703.2 Definitions. 

1703.3 General. 

1703.4 Procedure for production. 

1703.5 Interpretation. 

Authority: The Intelligence Reform and 

Terrorism Prevention Act of 2004, Public 

Law No. 108–458, 118 Stat. 3638 (2004); 

National Security Act of 1947, as amended, 

50 U.S.C. 401 et seq.; Executive Order 12333, 

as amended; and United States ex rel. Touhy 

v. Ragen, 340 U.S. 462 (1951). 

§ 1703.1 Scope and purpose. 

This part sets forth the policy and 

procedures with respect to the 

production or disclosure of material 

contained in the files of the ODNI, 

information relating to or based upon 

material contained in the files of the 

ODNI, and information acquired by any 

person while such person was an 

employee of the ODNI as part of the 

performance of that person’s official 

duties or because of that person’s 

association with the ODNI. 

§ 1703.2 Definitions. 

The following definitions apply to 

this part: 

Defenses: Any and all legal defenses, 

privileges or objections available to the 

ODNI in response to a demand. 

Demand: 

(1) Any subpoena, order or other legal 

summons issued by a federal, state, 

local or other government entity of 

competent jurisdiction with the 

authority to require a response on a 

particular matter or a request for 

appearance of an individual where a 

demand could issue. 

(2) Any request for production or 

disclosure which may result in the 

issuance of a subpoena, order, or other 

legal process to compel production or 

disclosure. 

DNI: The Director of National 

Intelligence. 

General Counsel: The ODNI’s General 

Counsel, Acting General Counsel or 

Deputy General Counsel. 

ODNI: The Office of the Director of 

National Intelligence and all of its 

components, including, but not limited 

to, the Office of the National 

Counterintelligence Executive, the 

National Counterterrorism Center, the 

National Counterproliferation Center, 

the Program Manager for the 

Information Sharing Environment, and 

all national intelligence centers and 

program managers the DNI may 

establish. 

ODNI Employee: Any current or 

former employee, contractor, 

independent contractor, assignee or 

detailee to the ODNI. 

ODNI Information or Material: 

Information or material that is contained 

in ODNI files, related to or based upon 

material contained in ODNI files or 

acquired by any ODNI employee as part 

of that employee’s official duties or 

because of that employee’s association 

with the ODNI. 

OGC: The Office of the General 

Counsel of the ODNI. 

OGC Attorney: Any attorney in the 

OGC. 

Proceeding: Any matter before a court 

of law, administrative law judge, 

administrative tribunal or commission 

or other body that conducts legal or 

administrative proceedings, and 

includes all phases of the proceeding. 

Production or Produce: The 

disclosure of ODNI information or 

material in response to a demand. 

§ 1703.3 General. 

(a) No ODNI employee shall respond 

to a demand for ODNI information or 

material without prior authorization as 

set forth in this part. 

(b) This part is intended only to 

provide procedures for responding to 

demands for production of documents 

or information, and does not create any 

right or benefit, substantive or 

procedural, enforceable by any party 

against the United States. 

§ 1703.4 Procedure for production. 

(a) Whenever a demand is made for 

ODNI information or material, the 

employee who received the demand 

shall immediately notify OGC ((703) 

275–2527). The OGC and the ODNI 

employee shall then follow the 

procedures set forth in this section. 

(b) The OGC may assert any and all 

defenses before any search for 

potentially responsive ODNI 

information or material begins. Further, 

in its sole discretion the ODNI may 

decline to begin a search for potentially 

responsive ODNI information or 

material until a final and nonappealable disposition of any or all of 

the asserted defenses is made by the 

federal, state, local or government entity 

of competent jurisdiction. When the 

OGC determines that it is appropriate to 

search for potentially responsive ODNI 

information and material, the OGC will 

forward the demand to the appropriate 

ODNI offices or entities with 

responsibility for the ODNI information 

or material sought in the demand. Those 

ODNI offices or entities shall then 

search for and provide to the OGC all 

potentially responsive ODNI 

information and material. The OGC may 

then assert any and all defenses to the 

production of what it determines is 

responsive ODNI information or 

material. 


tjames on PRODPC61 with RULES
Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 / Rules and Regulations 11481 

(c) In reaching a decision on whether 

to produce responsive ODNI 

information or material, or to object to 

the demand, the OGC shall consider 

whether: 

(1) Any relevant privileges are 

applicable; 

(2) The applicable rules of discovery 

or procedure require production; 

(3) Production would violate a statute, 

regulation, executive order or other 

provision of law; 

(4) Production would violate a nondisclosure agreement; 

(5) Production would be inconsistent 

with the DNI’s responsibility to protect 

intelligence sources and methods, or 

reveal classified information or state 

secrets; 

(6) Production would violate a 

specific ODNI policy issuance or 

instruction; and 

(7) Production would unduly interfere 

with the orderly conduct of ODNI 

functions. 

(d) If oral or written testimony is 

sought by a demand in a case or matter 

in which the ODNI is not a party, a 

reasonably detailed description of the 

testimony sought in the form of an 

affidavit, or a written statement if that 

is not feasible, by the party seeking the 

testimony or its attorney must be 

furnished to the OGC. 

(e) The OGC shall notify the 

appropriate employees of all decisions 

regarding responses to demands and 

provide advice and counsel for the 

implementation of the decisions. 

(f) If response to a demand is required 

before a decision is made whether to 

provide responsive ODNI information or 

material, an OGC attorney will request 

that a Department of Justice attorney 

appear with the ODNI employee upon 

whom that demand has been made 

before the court or other competent 

authority and provide it with a copy of 

this regulation and inform the court or 

other authority as to the status of the 

demand. The court will be requested to 

stay the demand pending resolution by 

the ODNI. If the request for a stay is 

denied or there is a ruling that the 

demand must be complied with 

irrespective of instructions rendered in 

accordance with this Part, the employee 

upon whom the demand was made 

shall, if directed to do so by the General 

Counsel or its designee, respectfully 

decline to comply with the demand 

under the authority of United States ex 

rel. Touhy v. Ragen, 340 U.S. 462 

(1951), and this regulation. 

(g) ODNI officials may delegate in 

writing any authority given to them in 

this Part to subordinate officials. 

(h) Any individual or entity not an 

ODNI employee as defined in this Part 

who receives a demand for the 

production or disclosure of ODNI 

information or material acquired 

because of that person’s or entity’s 

association with the ODNI should notify 

the OGC ((703) 275–2527) for guidance 

and assistance. In such cases the 

provisions of this regulation shall be 

applicable. 

§ 1703.5 Interpretation. 

Any questions concerning 

interpretation of this Regulation shall be 

referred to the OGC for resolution. 

Corin R. Stone, 

Acting General Counsel, Office of the Director 

of National Intelligence. 

[FR Doc. E9–5756 Filed 3–17–09; 8:45 am] 

BILLING CODE 3910–A7–P 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 334 

United States Navy Restricted Area, 

Naval Support Activity, Panama City, 

FL 

AGENCY: U.S. Army Corps of Engineers, 

DoD. 

ACTION: Correcting amendments. 

SUMMARY: The U.S. Army Corps of 

Engineers (Corps) published a document 

in the Federal Register on September 

12, 2008 (73 FR 52926), revising the 

restricted areas at Naval Support 

Activity (NSA), Panama City (PC), 

Florida. The latitude of the shared point 

for the southeast point of restricted area 

BA–1 (Sec. 334.761(a)(2)) and the 

southwest point of restricted area BA– 

2 (Sec. 334.761(a)(3)) should have been 

provided as 30°10′32′′ N. This document 

corrects the final regulation by revising 

these actions. 

DATES: Effective date: March 18, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Olson, Headquarters, Operations 

and Regulatory Community of Practice, 

Washington, DC at 202–761–4922 or Mr. 

Jon Griffin, U.S. Army Corps of 

Engineers, Jacksonville District, 

Regulatory Division at 904–232–1680. 

SUPPLEMENTARY INFORMATION: On 

September 12, 2008, (73 FR 52926) the 

Corps published a final rule establishing 

ten restricted areas at Naval Support 

Activity (NSA), Panama City (PC), 

Florida. In that final rule, the shared 

point at the southeast point of Area BA– 

1 (§ 334.761(a)(2)) and the southwest 

point of Area BA–2 (§ 334.761(a)(3)) 

overlap a portion of Area BA–3 

(§ 334.761(a)(4)) by one second. To 

correct this error, the southeast point of 

Area BA–1 and the southwest point of 

Area BA–2 are changed to 30°10′32′′ N, 

with no change in the longitudinal 

value. 

List of Subjects in 33 CFR Part 334 

Danger zones, Navigation (water), 

Restricted areas, Waterways. 

■ Accordingly, 33 CFR part 334 is 

amended by making the following 

correcting amendments: 

PART 334—DANGER ZONE AND 

RESTRICTED AREA REGULATIONS 

■ 1. The authority citation for part 334 

continues to read as follows: 

Authority: 40 Stat. 266 (33 U.S.C. 1) and 

40 Stat. 892 (33 U.S.C. 3). 

■ 2. In § 334.761, revise paragraphs 

(a)(2) and (a)(3) to read as follows: 

§ 334.761 Naval Support Activity Panama 

City; St. Andrews Bay; restricted areas. 

* * * * * 

(a) * * * 

(2) Area BA–1. The area is bounded 

by a line directly connecting the 

following coordinates (listed by latitude, 

then longitude): Northwest point— 

30°11′14′′ N, 085°44′59′′ W; Northeast 

point—30°11′13′′ N, 085°44′32′′ W; 

Southeast point—30°10′32′′ N, 

085°44′32′′ W; Southwest point— 

30°10′32′′ N, 085°44′59′′ W, then 

northerly to point of origin. 

(3) Area BA–2. The area is bounded 

by a line directly connecting the 

following coordinates (listed by latitude, 

then longitude): Northwest point— 

30°11′13′′ N, 085°44′32′′ W; Northeast 

point—30°11′07′′ N, 085°44′01′′ W; 

Southeast point—30°10′32′′ N, 

085°44′00′′ W; Southwest point— 

30°10′32′′ N, 085°44′32′′ W, then 

northerly to point of origin. 

* * * * * 

Dated: March 9, 2009. 

Michael Ensch, 

Chief, Operations, Directorate of Civil Works. 

[FR Doc. E9–5748 Filed 3–17–09; 8:45 am] 

BILLING CODE 3710–92–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN03 

The Dr. James Allen Veteran Vision 

Equity Act of 2007 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 


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