[Federal Register Volume 60, Number 33 (Friday, February 17, 1995)]
[Rules and Regulations]
[Pages 9291-9294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3998]



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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.

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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. [[Page 9292]] 


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 [[Page 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.


Sec. 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.


Sec. 15a.6  Legal Proceedings between private litigants: Expert or 
opinion testimony.

    In addition to the policies and procedures as outlined in 
Secs. 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.


Sec. 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 [[Page 9294]] 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 Secs. 15a.1 through 
15a.8. Where an applicable confidentiality statute mandates disclosure, 
Secs. 15a.1 through 15a.8 will not apply.


Sec. 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]
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