Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Rules and Regulations 9291

Shelbyville, IN, Shelbyville Muni, VOR or

GPS RWY 18, Amdt 9

Shenandoah, IA, Shenandoah Muni, VOR/

DME OR GPS RWY 12, Amdt 3

Rochester, NH, Sykhaven, GPS RWY 33, Orig

Hickory, NC, Hickory Regional, VOR/DME or

GPS RWY 6, Orig, Cancelled

Maxton, NC, Laurinburg-Maxton, VOR/DME–

A, Orig–A, Cancelled

Sanford, NC, Sanford-Lee County Brick Field,

VOR/DME–A, Orig-A, Cancelled

Wilmington, NC, New Hanover County, VOR

or TACAN–A, Amdt 2A, Cancelled

Wilmington, NC, New Hanover County,

RNAV RWY 24, Amdt 4A, Cancelled

Harrison, OH, Cincinnati West, VOR or GPS

RWY 18, Amdt 2

Marysville, OH, Union County, NDB or GPS

RWY 27, Amdt 5

Ardmore, OK, Ardmore Muni, ILS RWY 30,

Amdt 3

Chambersburg, PA, Chambersburg Muni,

VOR/DME–A, Amdt 2, Cancelled

Friday Harbor, WA, Friday Harbor, NDB

RWY 34, Orig.

* * * Effective March 2, 1995

Holland, MI, Tulip City, ILS/DME RWY 26,

Orig

Amarillo, TX, Amarillo Intl, GPS RWY 22,

Orig

* * * Effective 2 February 1995

Jacksonville, FL, Jacksonville Intl, ILS RWY

7, Amdt 12

* * * Effective Upon Publication

Teterboro, NJ, Teterboro, VOR/DME RWY 24,

Amdt 8

Santa Fe, NM, Santa Fe County Muni, VOR

OR GPS RWY 33, Amdt 8

Castroville, TX, Castroville Muni, NDB OR

GPS RWY 33, Amdt 2

Bluefield, WV, Mercer County, VOR/DME or

GPS RWY 23, Amdt 4

[FR Doc. 95–4071 Filed 2–16–95; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 15a

[Docket No. 950126028–5028–01]

RIN 0690–AA22

Testimony by Employees and the

Production of Documents in Legal

Proceedings

AGENCY: Office of the Secretary,

Department of Commerce.

ACTION: Final rule.

SUMMARY: The Department of Commerce

is revising its regulations which

prescribes policies and procedures to be

followed with respect to the testimony

of Department employees regarding

official matters, and the production of

Department documents in legal

proceedings. These regulations will

serve as a statement of policy and the

amendments expand the scope of the

existing regulations and provide for

more comprehensive standards and

guidelines for Department components,

employees, former employees, other

federal agencies, and the public in

general regarding the appropriate

procedures concerning testimony and

the production of documents.

EFFECTIVE DATE: March 20, 1995.

FOR FURTHER INFORMATION CONTACT: M.

Timothy Conner or Donald J. Reed,

(202) 482–1067.

SUPPLEMENTARY INFORMATION: Section

301 of Title 5, United States Code,

provides that the head of an Executive

department may prescribe regulations

for the custody, use and preservation of

its records. The Supreme Court has

upheld the ability of Federal agencies to

establish procedures in section 301

regulations governing the production of

records and testimony in legal

proceedings in which the United States

is not a party. United States ex rel.

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

These rules establish Department of

Commerce (DOC) policies and

procedures applicable to the production

of DOC documents and/or testimony by

DOC employees in legal proceedings.

Basically, the legal proceedings

addressed in the rules are any

administrative or judicial activities

traditionally conducted within the

executive or judicial branches of

Federal, state, local or foreign

governmental entities in which the

United States: (i) Is not a party; (ii) is

not represented; (iii) does not have a

direct and substantial interest; and (iv)

is not providing representation to an

individual or entity that is a party.

Similarly, the rules will not cover

activities that are not legal proceedings

such as Congressional request for

records or testimony, or requests for

records under the Freedom of

Information Act, 5 U.S.C. 552. In

addition, the rules will not infringe

upon or displace responsibilities

committed to the Department of Justice

in conducting litigation on behalf of the

United States.

Finally, the rules will not remove the

need to comply with any applicable

confidentiality provisions such as the

Privacy Act, The Freedom of

Information Act or the Trade Secrets

Act. In fact, if the requirements of

confidentiality statutes or regulations

are not met, records or testimony cannot

be provided even where the

requirements of these regulations are

satisfied.

A notice of proposed rule making was

published on September 9, 1994, (59 FR

46598). One comment was received

regarding the standing of the individual

or business entity, from whom the

information was obtained, to contest its

production or release. This comment

did not require a modification in the

final rule. The Department of

Commerce’s Touhy regulations cannot,

in and of themselves, provide standing

to third parties. Touhy regulations only

provide a procedure whereby the agency

can determine whether any evidentiary

privileges or statutory requirements of

privacy or confidentiality apply, or if

there is any other legal basis for

withholding information.

This rule has been determined to be

‘‘not significant’’ for purposes of

Executive Order 12866.

The Assistant General Counsel for

Legislation and Regulation certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule would not have a significant

economic impact on a substantial

number of small entities. This is

because the rule is established to

facilitate the Department’s safeguarding,

control and preservation of its records,

information, papers and property . As a

result, a regulatory flexibility analysis

was not prepared.

List of Subjects in 15 CFR Part 15a

Administrative practice and

procedure, Courts, Government

employees.

For the reasons set out in the

preamble Part 15a is revised to read as

follows:

PART 15a—TESTIMONY BY

EMPLOYEES AND THE PRODUCTION

OF DOCUMENTS IN LEGAL

PROCEEDINGS

Sec.

15a.1 Scope.

15a.2 Definitions.

15a.3 Demands for testimony or production

of documents: Department Policy.

15a.4 Demand for testimony or production

of documents: Department procedures.

15a.5 Procedures when a Department

employee receives a subpoena.

15a.6 Legal Proceedings between private

litigants: Expert and/or opinion

testimony.

15a.7 Demands or requests in legal

proceedings for records protected by

confidentiality statutes.

15a.8 Testimony of Department employees

in proceedings involving the United

States.

Authority: 5 U. S. C. 301; 15 U. S. C. 1501,

1512, 1513, 1515 and 1518; Reorganization

Plan No. 5 of 1950; 3 CFR, 1949–1953 Comp.,

p. 1004; 44 U.S.C. 3101.
9292 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Rules and Regulations

§ 15a.1 Scope.

(a) This part sets forth the policies

and procedures of the Department of

Commerce regarding the testimony of

employees, and former employees, as

witnesses in legal proceedings and the

production or disclosure of information

contained in Department of Commerce

documents for use in legal proceedings

pursuant to a request, order, or

subpoena (collectively referred to in this

part as a ‘‘demand’’).

(b) This part does not apply to any

legal proceeding in which an employee

is to testify while on leave status,

regarding facts or events that are

unrelated to the official business of the

Department.

(c) This part in no way affects the

rights and procedures governing public

access to records pursuant to the

Freedom of Information Act, the Privacy

Act or the Trade Secrets Act..

(d) This part is not intended to be

relied upon to, and does not, create any

right or benefit, substantive or

procedural, enforceable at law by any

party against the United States.

§ 15a.2 Definitions.

For the purpose of this part:

(a) Agency counsel means the chief

legal officer (or his/her designee) of an

agency within the Department of

Commerce.

(b) Component means Office of the

Secretary or an operating unit of the

Department as defined in Department

Organization Order 1–1.

(c) Demand means a request, order, or

subpoena for testimony or documents

for use in a legal proceeding.

(d) Department means the United

States Department of Commerce and its

constituent agencies.

(e) Document means any record,

paper and other property held by the

Department, including without

limitation, official letters, telegrams,

memoranda, reports, studies, calendar

and diary entries, maps, graphs,

pamphlets, notes, charts, tabulations,

analyses, statistical or informational

accumulations, any kind of summaries

of meetings and conversations, film

impressions, magnetic tapes and sound

or mechanical reproductions.

(f) Employee means all current or

former employees or officers of the

Department, including commissioned

officers of the National Oceanic and

Atmospheric Administration and any

other individual who has been

appointed by, or subject to the

supervision, jurisdiction or control of

the Secretary of the Department of

Commerce.

(g) General Counsel means the

General Counsel of the Department or

other Department employee to whom

the General Counsel has delegated

authority to act under this part.

(h) Legal proceeding means all

pretrial, trial and post trial stages of all

existing or reasonably anticipated

judicial or administrative actions,

hearings, investigations, or similar

proceedings before courts, commissions,

boards or other tribunals, foreign or

domestic. This phrase includes all

phases of discovery as well as responses

to formal or informal requests by

attorneys or others involved in legal

proceedings.

(i) Official business means the

authorized business of the Department.

(j) Secretary means the Secretary of

the Department of Commerce.

(k) Solicitor means the Solicitor of the

Patent and Trademark Office.

(l) Testimony means a statement in

any form, including personal

appearances before a court or other legal

tribunal, interviews, depositions,

telephonic, televised, or videotaped

statements or any responses given

during discovery or similar proceedings,

which response would involve more

than the production of documents.

(m) United States means the Federal

Government, its departments and

agencies, and individuals acting on

behalf of the Federal Government.

§ 15a.3. Demand for testimony or

production of documents: Department

policy.

No employee shall in response to a

demand, produce any documents, or

provide testimony regarding any

information relating to, or based upon

Department of Commerce documents, or

disclose any information or produce

materials acquired as part of the

performance of that employee’s official

duties, or because of that employee’s

official status without the prior

authorization of the General Counsel, or

the Solicitor, or the appropriate agency

counsel. The reasons for this policy are

as follows:

(a) To conserve the time of

Department employees for conducting

official business;

(b) To minimize the possibility of

involving the Department in

controversial issues that are not related

to the Department’s mission;

(c) To prevent the possibility that the

public will misconstrue variances

between personal opinions of

Department employees and Department

policy;

(d) To avoid spending the time and

money of the United States for private

purposes;

(e) To preserve the integrity of the

administrative process; and

(f) To protect confidential, sensitive

information and the deliberative process

of the Department.

§ 15a.4. Demand for testimony or

production of documents: Department

procedures.

(a) Whenever a demand for testimony

or for the production of documents is

made upon an employee, the employee

shall immediately notify the General

Counsel (Room 5890, U. S. Department

of Commerce, Washington, D. C. 20230,

(202) 482–1067) or appropriate agency

counsel. When a demand for testimony

or for the production of documents is

made upon an employee of the Patent

and Trademark Office, the employee

should immediately notify the Solicitor,

by phone, (703) 305–9035; by mailed

addressed Solicitor, Box 8, Patent and

Trademark Office, Washington, D. C.

20231; or in person to 2121 Crystal

Drive, Crystal Park 2, Suite 918,

Arlington, Virginia 22215.

(b) A Department employee may not

give testimony, produce documents, or

answer inquiries from a person not

employed by the Department regarding

testimony or documents subject to a

demand or a potential demand under

the provisions of this part without the

approval of the General Counsel, or the

Solicitor, or the appropriate agency

counsel. A Department employee shall

immediately refer all inquiries and

Demands to the General Counsel, or the

Solicitor, or appropriate agency counsel.

Where appropriate, the General

Counsel, or the Solicitor, or appropriate

agency counsel, may instruct the

Department employee, orally or in

writing, not to give testimony or

produce documents.

(c)(1) Demand for testimony or

documents. A demand for the testimony

of a Department employee shall be

addressed to the General Counsel, Room

5890, Department of Commerce,

Washington, D. C. 20230 or appropriate

agency counsel. A demand for

testimony of an employee of the Patent

and Trademark Office shall be mail

addressed to the Solicitor, Box 8, Patent

and Trademark Office, Washington, D.

C. 20231; or in person to 2121 Crystal

Drive, Crystal Park 2, Suite 918,

Arlington, Virginia 22215.

(2) Subpoenas. A subpoena for

testimony by a Department employee or

a document shall be served in

accordance with the Federal Rules of

Civil or Criminal Procedure or

applicable state procedure and a copy of

the subpoena shall be sent to the

General Counsel, or the Solicitor, or

appropriate agency counsel.

(3) Affidavit. Except when the United

States is a party, every demand shall be
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Rules and Regulations 9293

accompanied by an affidavit or

declaration under 28 U.S.C. 1746 or, if

an affidavit is not feasible, a statement

setting forth the title of the legal

proceeding, the forum, the requesting

party’s interest in the legal proceeding,

the reason for the demand, a showing

that the desired testimony or document

is not reasonably available from any

other source, and if testimony is

requested, the intended use of the

testimony, a general summary of the

desired testimony, and a showing that

no document could be provided and

used in lieu of testimony. The purpose

of this requirement is to assist the

General Counsel, or the Solicitor, or

appropriate agency counsel in making

an informed decision regarding whether

testimony or the production of a

document(s) should be authorized.

(d) A certified copy of a document for

use in a legal proceeding may be

provided upon written request and

payment of applicable fees. Written

requests for certification shall be

addressed to the agency counsel for the

component having possession, custody,

or control of the document. Unless

governed by another applicable

provision of law or component

regulation, the applicable fee includes

charges for certification and

reproduction as set out in 15 CFR part

4.9. Other reproduction costs and

postage fees, as appropriate, must also

be borne by the requester.

(e) The Secretary retains the authority

to authorize and direct testimony in

those cases where a statute or

Presidential order mandates a personal

decision by the Secretary.

(f) The General Counsel, or the

Solicitor, or appropriate agency counsel

may consult or negotiate with an

attorney for a party or the party if not

represented by an attorney, to refine or

limit a demand so that compliance is

less burdensome or obtain information

necessary to make the determination

required by paragraph (b) of this section.

Failure of the attorney to cooperate in

good faith to enable the General

Counsel, or the Solicitor, or the

Secretary, or the appropriate agency

counsel to make an informed

determination under this part may

serve, where appropriate, as a basis for

a determination not to comply with the

demand.

(g) A determination under this part to

comply or not to comply with a demand

is not an assertion or waiver of

privilege, lack of relevance, technical

deficiency or any other ground for

noncompliance.

(h) The General Counsel, or the

Solicitor, or appropriate agency counsel

may waive any requirements set forth

under this section when circumstances

warrant.

§ 15a.5 Procedures when a Department

employee receives a subpoena.

(a) A Department employee who

receives a subpoena shall immediately

forward the subpoena to the General

Counsel, or the appropriate agency

counsel. In the case of an employee of

the Patent and Trademark Office, the

subpoena shall immediately be

forwarded to the Solicitor. The General

Counsel, or the Solicitor, or appropriate

agency counsel will determine the

extent to which a Department employee

will comply with the subpoena.

(b) If an employee is served with a

subpoena that the General Counsel, or

the Solicitor, or appropriate agency

counsel determines should not be

complied with, the General Counsel,

Solicitor or appropriate agency counsel

will attempt to have the subpoena

withdrawn or modified. If this cannot be

done, the General Counsel, Solicitor or

appropriate agency counsel will attempt

to obtain Department of Justice

representation for the employee and

move to have the subpoena modified or

quashed. If, because of time constraints,

this is not possible prior to the

compliance date specified in the

subpoena, the employee should appear

at the time and place set forth in the

subpoena. If legal counsel cannot appear

on behalf of the employee, the employee

should produce a copy of the

Department’s regulations and inform the

legal tribunal that he/she has been

advised by counsel not to provide the

requested testimony and/or produce

documents. If the legal tribunal rules

that the demand in the subpoena must

be complied with, the employee shall

respectfully decline to comply with the

demand. United States ex rel. Touhy v.

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

(c) Where the Department employee is

an employee of the Office of the

Inspector General, the Inspector General

in consultation with the General

Counsel, will make a determination

under paragraphs (a) and (b) of this

section.

§ 15a.6 Legal Proceedings between private

litigants: Expert or opinion testimony.

In addition to the policies and

procedures as outlined in §§ 15a.1

through 15a.6., the following applies to

legal proceedings between private

litigants:

(a) If a Department employee is

authorized to give testimony in a legal

proceeding not involving the United

States, the testimony, if otherwise

proper, shall be limited to facts within

the personal knowledge of the

Department employee. Employees, with

or without compensation, shall not

provide expert testimony in any legal

proceedings regarding Department

information, subjects or activities except

on behalf of the United States or a party

represented by the United States

Department of Justice. However, upon a

showing by the requester that there are

exceptional circumstances and that the

anticipated testimony will not be

adverse to the interest of the Department

or the United States, the General

Counsel, or the Solicitor, or appropriate

agency counsel may, in writing grant

special authorization for the employee

to appear and give the expert or opinion

testimony.

(b)(1) If, while testifying in any legal

proceeding, an employee is asked for

expert or opinion testimony regarding

official DOC information, subjects or

activities, which testimony has not been

approved in advance in accordance with

the regulations in this part, the witness

shall:

(i) Respectfully decline to answer on

the grounds that such expert or opinion

testimony is forbidden by the

regulations in this part;

(ii) Request an opportunity to consult

with the General Counsel, or the

Solicitor, or appropriate agency counsel

before giving such testimony; and

(iii) Explain that upon such

consultation, approval for such

testimony may be provided.

(2) If the witness is then ordered by

the body conducting the proceeding to

provide expert or opinion testimony

regarding official DOC information,

subjects or activities without the

opportunity to consult with either the

General Counsel, or the Solicitor, or

appropriate agency counsel, the witness

shall respectfully refuse to provide such

testimony. See United States ex rel.

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

(c) If an employee is unaware of the

regulations in this part and provides

expert or opinion testimony regarding

official DOC information, subjects or

activities in a legal proceeding without

the aforementioned consultation, the

witness shall, as soon after testifying as

possible, inform the General Counsel, or

the Solicitor, or appropriate agency

counsel that such testimony was given

and provide a written summary of the

expert or opinion testimony provided.

§ 15a.7 Demands or requests in legal

proceedings for records protected by

confidentiality statutes.

Demands in legal proceedings for the

production of records, or for the

testimony of Department employees

regarding information protected by the

Privacy Act, 5 U.S.C. 552a, the Trade
9294 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Rules and Regulations

Secrets Act, 18 U.S.C. 1905 or other

confidentiality statutes, must satisfy the

requirements for disclosure set forth in

those statutes before the records may be

provided or testimony given. The

General Counsel, or the Solicitor, or

appropriate agency counsel should first

determine if there is a legal basis to

provide the testimony or records sought

under applicable confidentiality statutes

before applying §§ 15a.1 through 15a.8.

Where an applicable confidentiality

statute mandates disclosure, §§ 15a.1

through 15a.8 will not apply.

§ 15a.8 Testimony of Department

employees in proceedings involving the

United States.

The following applies in legal

proceedings in which the United States

is a party:

(a) A Department employee may not

testify as an expert or opinion witness

for any other party other than the

United States.

(b) Whenever, in any legal proceeding

involving the United States, a request is

made by an attorney representing or

acting under the authority of the United

States, the General Counsel, or the

Solicitor, or appropriate agency counsel

will make all necessary arrangements

for the Department employee to give

testimony on behalf of the United

States. Where appropriate, the General

Counsel, or the Solicitor, or appropriate

agency counsel may require

reimbursement to the Department of the

expenses associated with a Department

employee giving testimony on behalf of

the United States.

Alden F. Abbott,

Assistant General Counsel for Finance and

Litigation.

[FR Doc. 95–3998 Filed 2–16–95; 8:45 am]

BILLING CODE 3510–BW–P

National Oceanic and Atmospheric

Administration

15 CFR Part 925

RIN 0648–AC63

Olympic Coast National Marine

Sanctuary Regulations

AGENCY: Sanctuaries and Reserves

Division (SRD), Office of Ocean and

Coastal Resource Management (OCRM),

National Ocean Service (NOS), National

Oceanic and Atmospheric

Administration (NOAA), Department of

Commerce (DOC).

ACTION: Correcting amendment.

SUMMARY: This document contains

corrections to Appendix A to the final

regulations for the Olympic Coast

National Marine Sanctuary which were

published on Wednesday, May 11, 1994

(59 FR 24586).

EFFECTIVE DATE: February 17, 1995.

FOR FURTHER INFORMATION CONTACT:

Todd Jacobs, Sanctuary Manager, at

(206) 457–6622 or Elizabeth Moore at

(301) 713–3141.

SUPPLEMENTARY INFORMATION: The

National Oceanic and Atmospheric

Administration (NOAA), by the

designation document published in the

59 FR 24586, May 11, 1994, designated

approximately 2,500 square nautical

miles of coastal and ocean waters, and

the submerged lands thereunder, off the

Olympic Peninsula of Washington State,

including the waters of the Strait of Juan

de Fuca eastward to Koitlah Point, as

the Olympic Coast National Marine

Sanctuary (Sanctuary). This notice

corrects a discrepancy between the

Sanctuary boundary as described in 15

CFR 925.2(b) and the coordinates for

that boundary listed in Appendix A.

Section 925.2(b) describes the Sanctuary

boundary as extending from Koitlah

Point due north to the U.S./Canada

international boundary seaward to the

100 fathom isobath. The seaward

boundary of the Sanctuary approximates

the 100 fathom isobath in a southerly

direction from the U.S./Canada

international boundary to a point due

west of the mouth of the Copalis River

cutting across the heads of Nitnat, Juan

de Fuca and Quinault Canyons.

Appendix A has been corrected to more

accurately represent the U.S./

international boundary, which

delineates the northern boundary of the

Sanctuary. The remaining coordinates

have not been changed.

(Federal Domestic Assistance Catalog

Number 11.429 Marine Sanctuary Program.)

List of Subjects in 15 CFR Part 925

Administrative practice and

procedure, Coastal zone, Education,

Environmental protection, Marine

resources, Natural resources, Penalties,

Recreation and recreation areas,

Reporting and recordkeeping

requirements, Research.

Accordingly, 15 CFR part 925 is

corrected by making the following

correcting amendment:

PART 925—OLYMPIC COAST

NATIONAL MARINE SANCTUARY

1. The authority citation for part 925

continues to read as follows:

Authority: Sections 302, 303, 304, 305,

306, 307, 310, and 312 of Title III of the

Marine Protection, Research, and Sanctuaries

Act of 1972, as amended (16 U.S.C. 1431 et

seq.).

2. Appendix A to part 925 is revised

to read as follows:

Appendix A To Part 925—Olympic

Coast National Marine Sanctuary

Boundary Coordinates

[Based on North American Datum of 1983]

Point

2500 square nautical miles

Latitude Longitude

1 ............................................................................................................................................................................. 47 07′45′′ 124 11′02′′

2 ............................................................................................................................................................................. 47 07′45′′ 124 58′12′′

3 ............................................................................................................................................................................. 47 35′05′′ 124 00′00′′

4 ............................................................................................................................................................................. 47 40′05′′ 124 04′44′′

5 ............................................................................................................................................................................. 47 50′01′′ 124 05′42′′

6 ............................................................................................................................................................................. 47 57′13′′ 124 29′13′′

7 ............................................................................................................................................................................. 48 07′33′′ 125 38′20′′

8 ............................................................................................................................................................................. 48 15′00′′ 125 40′54′′

9 ............................................................................................................................................................................. 48 18′21.2′′ 125 30′02.9′′

10 ............................................................................................................................................................................. 48 20′15.2′′ 125 22′52.9′′

11 ............................................................................................................................................................................. 48 26′46.2′′ 125 09′16.9′′

12 ............................................................................................................................................................................. 48 27′09.2′′ 125 08′29.9′′

13 ............................................................................................................................................................................. 48 28′08.2′′ 125 05′51.9′′

14 ............................................................................................................................................................................. 48 29′43.2′′ 125 00′10.9′′

15 ............................................................................................................................................................................. 48 29′56.2′′ 124 59′19.9′′

16 ............................................................................................................................................................................. 48 30′13.2′′ 124 54′56.9′′

17 ............................................................................................................................................................................. 48 30′21.2′′ 124 50′25.9′′