[Federal Register Volume 62, Number 104 (Friday, May 30, 1997)]
[Rules and Regulations]
[Pages 29285-29286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13964]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 104 / Friday, May 30, 1997 / Rules 
and Regulations  

[[Page 29285]]


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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: Final rule.

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SUMMARY: This final rule sets forth regulations to be followed by the 
Office of Management and Budget (OMB) staff 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.

EFFECTIVE DATE: June 30, 1997.

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

SUPPLEMENTARY INFORMATION: On December 17, 1996 (61 FR 66232), OMB 
requested public comment on proposed regulations which 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. Such regulations were upheld by the Supreme Court in 
its decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951). This regulation establishes procedures to respond to such 
demands in an orderly and consistent manner.
    No public comments were received in response to the December 1996 
proposed rule. No changes have been made to the proposed rule, which is 
being adopted.
    The proposed OMB ``Touhy'' regulation, which is set forth below, 
will be placed in a new Part 1305 in OMB's regulations, which are found 
at 5 CFR Chapter III.

Paperwork Reduction Act

    As part of the notice of proposed rulemaking, OMB published a 
request for comments concerning the collection of information contained 
in Secs. 1305.3(a), 1305.3(b), and 1305.4 of the proposed rule. See 61 
FR 66232. OMB received no comments regarding the collection of 
information. The sponsoring office in OMB also submitted an analysis of 
the information collection to the Office of Information and Regulatory 
Affairs (OIRA) in OMB for review in accordance with section 3507(d) of 
the Paperwork Reduction Act of 1995. See 44 U.S.C. 3507(d). OIRA, 
acting for OMB, assigned a control number, 0348-0056, and approved the 
information collection without conditions with an expiration date of 
February 28, 2000. Potential respondents are not required to respond to 
the collection of information unless the regulation collecting the 
information displays a currently valid control number assigned by OMB. 
See, id., 3512(a). The final rule does not modify the approved 
information collection.

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 final rule will not have a significant economic effect on a 
substantial number of small entities; the final 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 final rule will not significantly or 
uniquely affect small governments, and will not result in increased 
expenditures by State, local, and tribal governments, or by the private 
sector, of $100 million or more. Finally, the final rule is not a 
``major rule'' under 5 U.S.C. Chapter 8; the rule will not have any of 
the effects set forth in 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 1305

    Administrative practice and procedure.

    Issued in Washington, D.C., May 19, 1997.
Franklin D. Raines,
Director.

    For the reasons set forth in the preamble, OMB amends 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

[[Page 29286]]

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.

(Approved by the Office of Management and Budget under control number 
0348-0056)


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)).

(Approved by the Office of Management and Budget under control number 
0348-0056)


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. 97-13964 Filed 5-29-97; 8:45 am]
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