[Federal Register Volume 61, Number 243 (Tuesday, December 17, 1996)]
[Proposed Rules]
[Pages 66232-66233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31794]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 61, No. 243 / Tuesday, December 17, 1996 / 
Proposed Rules  

[[Page 66232]]



OFFICE OF MANAGEMENT AND BUDGET

5 CFR Part 1305

RIN 0348-AB35


Release of Official Information, and Testimony by OMB Personnel 
as Witnesses in Litigation

AGENCY: Office of Management and Budget, Executive Office of the 
President.

ACTION: Proposed rule.

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SUMMARY: The Office of Management and Budget (OMB) seeks public comment 
on a proposed rule that would set forth the procedures to be followed 
when, in litigation (including administrative proceedings), a subpoena, 
order or other demand of a court or other authority is issued for the 
production or disclosure of: Any material contained in the files of 
OMB; any information relating to materials contained in the files of 
OMB; or any information or material acquired by any person while such 
person was an employee of OMB as a part of the performance of the 
person's official duties or because of the person's official status. 
Many agencies have issued regulations of this kind in the past in order 
to establish procedures to respond to such demands in an orderly and 
consistent manner.

DATES: Comments must be received no later than February 18, 1997.

ADDRESSES: Comments on the proposed rule should be addressed to: Steven 
Aitken, Assistant General Counsel, Office of Management and Budget, 
Room 464, Old Executive Office Building, Washington, D.C. 20503. 
Comments up to three pages in length may be submitted via facsimile to 
(202) 395-7294. Electronic mail comments may be submitted via Internet 
to [email protected]. Please include the full body of electronic mail 
comments in the text and not as an attachment. Please include the name, 
title, organization, postal address, and E-mail address in the text of 
the message.
    Comments regarding collection of information requirements contained 
in the proposed rule should be addressed to Mr. Aitken at the address 
above and to: Edward Springer, OMB Desk Officer, Office of Information 
and Regulatory Affairs, OMB, Room 10236, New Executive Office Building, 
Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Steven Aitken, Assistant General 
Counsel, Office of Management and Budget, at (202) 395-4728.

SUPPLEMENTARY INFORMATION: As have many agencies over the years, OMB is 
proposing to issue a ``Touhy'' regulation regarding the production or 
disclosure of OMB materials and information in response to a subpoena, 
order or other demand of a court or other authority. Such regulations 
were upheld by the Supreme Court in its decision in United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    The proposed OMB ``Touhy'' regulation, which is set forth below, 
would be placed in a new Part 1305 in OMB's regulations, which are 
found at 5 CFR Chapter III. OMB invites comments on the proposed 
regulation.

Paperwork Reduction Act

    This proposed rule contains collection of information requirements 
subject to the Paperwork Reduction Act. The requirement in 
Sec. 1305.3(a), for a person receiving a demand to notify the OMB 
General Counsel that the demand has been made, is estimated to take 5 
minutes; this can be satisfied by a phone call relating the demand and/
or by a facsimile transmission of the demand. The requirement in 
Sec. 1305.3(b), for the person making the demand to submit an affidavit 
or statement summarizing the information or material sought and its 
relevance to the proceeding, is estimated to take 15 minutes; a demand 
for documents will generally already specify the documents sought, the 
person making a demand for testimony should already know what 
information is sought (and therefore needs only to describe that 
information), and in each case the person making the demand should 
already know the relevance of the documents or testimony to the 
proceeding (and therefore needs only to state that relevance). To the 
extent that any disclosure is required under Sec. 1305.4, it is 
estimated to take 5 minutes; the only additional disclosure that might 
result from this provision would be for a person to state, when 
declining to comply with a demand, that he or she is doing so pursuant 
to this regulation. Based on previous experience with demands for OMB 
information and materials, it is estimated that there will generally be 
not more than 10 respondents/year subject to the above requirements.
    Comments are solicited concerning the proposed collection of 
information requirements to: (1) Evaluate whether the proposed 
collection of information is necessary for the proper functions of OMB, 
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, including the validity of the 
methodology and assumptions used; (3) Enhance the quality, utility, and 
clarity of the information to be collected; and (4) Minimize the burden 
on those who are to respond, such as using appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses. Comments should be sent to the persons 
specified above (see ADDRESSES).

Regulatory Flexibility Act, Unfunded Mandates Reform Act, and Executive 
Orders 12866 and 12875

    For purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), the proposed rule will not, if promulgated, have a significant 
economic effect on a substantial number of small entities; the proposed 
rule addresses only the procedures to be followed in the production or 
disclosure of OMB materials and information in litigation. For purposes 
of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as 
Executive Orders No. 12866 and 12875, the proposed rule would not 
significantly or uniquely affect small governments, and would not 
result in increased expenditures by State, local, and tribal 
governments, or by the private sector, of $100 million or more.


[[Page 66233]]


    Issued in Washington, D.C., December 9, 1996.
Franklin D. Raines,
Director.

    For the reasons set forth in the preamble, OMB proposes to amend 5 
CFR Chapter III by adding a new part 1305 to read as follows:

PART 1305--RELEASE OF OFFICIAL INFORMATION, AND TESTIMONY BY OMB 
PERSONNEL AS WITNESSES, IN LITIGATION

Sec.
1305.1  Purpose and scope.
1305.2  Production prohibited unless approved.
1305.3  Procedures in the event of a demand for disclosure.
1305.4  Procedure in the event of an adverse ruling.
1305.5  No private right of action.

    Authority: 31 U.S.C. 502.


Sec. 1305.1   Purpose and scope.

    This part contains the regulations of the Office of Management and 
Budget (OMB) concerning procedures to be followed when, in litigation 
(including administrative proceedings), a subpoena, order or other 
demand (hereinafter in this part referred to as a ``demand'') of a 
court or other authority is issued for the production or disclosure of:
    (a) Any material contained in the files of OMB;
    (b) Any information relating to materials contained in the files of 
OMB; or
    (c) Any information or material acquired by any person while such 
person was an employee of OMB as a part of the performance of the 
person's official duties or because of the person's official status.


Sec. 1305.2   Production prohibited unless approved.

    No employee or former employee of OMB shall, in response to a 
demand of a court or other authority, produce any material contained in 
the files of OMB, disclose any information relating to materials 
contained in the files of OMB, or disclose any information or produce 
any material acquired as part of the performance of the person's 
official duties, or because of the person's official status, without 
the prior approval of the General Counsel.


Sec. 1305.3   Procedures in the event of a demand for disclosure.

    (a) Whenever a demand is made upon an employee or former employee 
of OMB for the production of material or the disclosure of information 
described in Sec. 1305.2, he shall immediately notify the General 
Counsel. If possible, the General Counsel shall be notified before the 
employee or former employee concerned replies to or appears before the 
court or other authority.
    (b) If information or material is sought by a demand in any case or 
matter in which OMB is not a party, an affidavit (or, if that is not 
feasible, a statement by the party seeking the information or material, 
or by his attorney) setting forth a summary of the information or 
material sought and its relevance to the proceeding, must be submitted 
before a decision is made as to whether materials will be produced or 
permission to testify or otherwise provide information will be granted. 
Any authorization for testimony by a present or former employee of OMB 
shall be limited to the scope of the demand as summarized in such 
statement.
    (c) If response to a demand is required before instructions from 
the General Counsel are received, an attorney designated for that 
purpose by OMB shall appear, and shall furnish the court or other 
authority with a copy of the regulations contained in this part and 
inform the court or other authority that the demand has been or is 
being, as the case may be, referred for prompt consideration by the 
General Counsel. The court or other authority shall be requested 
respectfully to stay the demand pending receipt of the requested 
instructions from the General Counsel.


Sec. 1305.4   Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 1305.3(c) 
pending receipt of instructions from the General Counsel, or if the 
court or other authority rules that the demand must be complied with 
irrespective of the instructions from the General Counsel not to 
produce the material or disclose the information sought, the employee 
or former employee upon whom the demand has been made shall 
respectfully decline to comply with the demand (United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951)).


Sec. 1305.5   No private right of action.

    This part is intended only to provide guidance for the internal 
operations of OMB, and is not intended to, and does not, and may not be 
relied upon to create a right or benefit, substantive or procedural, 
enforceable at law by a party against the United States.

[FR Doc. 96-31794 Filed 12-16-96; 8:45 am]
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