[Federal Register Volume 68, Number 15 (Thursday, January 23, 2003)]
[Rules and Regulations]
[Pages 3366-3369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1409]



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Part IV





Department of Housing and Urban Development





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24 CFR Part 2004



Office of Inspector General Subpoenas and Production in Response to 
Subpoenas or Demands of Courts or Other Authorities; Final Rule

  Federal Register / Vol. 68, No. 15 / Thursday, January 23, 2003 / 
Rules and Regulations  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 2004

[Docket No. FR-4742-F-02]
RIN 2508-AA13


Office of Inspector General Subpoenas and Production in Response 
to Subpoenas or Demands of Courts or Other Authorities

AGENCY: Office of Inspector General, HUD.

ACTION: Final rule.

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SUMMARY: This final rule amends the regulations of the Office of 
Inspector General (OIG) to implement the statutory requirements 
concerning the issuance of OIG subpoenas, and responses to subpoenas 
issued to OIG employees in proceedings where OIG is not a party. This 
final rule follows publication of a proposed rule on September 20, 
2002. No public comments were received in response to the proposed 
rule. Accordingly, the Department is adopting the proposed rule without 
change.

DATES: Effective Date: February 24, 2003.

FOR FURTHER INFORMATION CONTACT: Bryan Saddler, Counsel to the 
Inspector General, Department of Housing and Urban Development, 451 
Seventh Street, SW., Room 8260, Washington, DC 20410. Telephone (202) 
708-1613 (this is not a toll-free number). A telecommunications device 
for hearing- and speech-impaired persons (TTY) is available at 1-800-
877-8339 (Federal Information Relay Services) (this is a toll-free 
number).

SUPPLEMENTARY INFORMATION:

I. Background--The September 20, 2002 Proposed Rule

    On September 20, 2002 (67 FR 59428), HUD published a proposed rule 
to amend the regulations of the HUD/OIG by updating the regulations in 
24 CFR part 2004. The proposed rule provided that the Inspector General 
would delegate to the Counsel to the Inspector General the authority 
and responsibility for responding to requests and demands for 
production of OIG records and testimony of OIG employees (Sec.  
2004.20). The proposed rule also identified the factors that OIG would 
consider in making determinations in response to such requests and what 
information requesters must provide (Sec. Sec.  2004.21 and 2004.22). 
The proposed rule further specified when the request should be 
submitted (Sec.  2004.22), the time period for review (Sec.  2004.24), 
potential fees (Sec.  2004.29), and, if a request is granted, any 
restrictions that may be placed on the disclosure of records or the 
appearance of an OIG employee as a witness (Sec. Sec.  2004.26 and 
2004.27). The proposed rule also indicated that the charges for 
witnesses are the same as those provided by the federal courts. 
Additionally, the rule explained that the fees related to production of 
records are the same as those charged under OIG's Freedom of 
Information Act regulation at 24 CFR part 2002. The rule further 
advised that the proposed charges for time spent by an employee to 
prepare for testimony and for production of records by OIG are 
authorized under 31 U.S.C. 9701. Under 31 U.S.C. 9701, an agency may 
charge for services or things of value that are provided by the agency.

II. This Final Rule

    This final rule follows publication of the September 20, 2002, 
proposed rule, which invited public comment on the rule. The public 
comment period closed on November 19, 2002, with the Department's 
receiving no comments on the proposed rule. Accordingly, the Department 
is adopting the proposed rule without change.

III. Findings and Certifications

Environmental Review

    This final rule does not direct, provide for assistance or loan and 
mortgage insurance for, or otherwise govern or regulate real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule 
is categorically excluded from environmental review under the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321).

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U. S. C. 1531-1538) 
establishes requirements for federal agencies to assess the effects of 
their regulatory actions on state, local, and tribal governments and 
the private sector. This final rule would not impose a federal mandate 
that will result in expenditures by state, local, or tribal governments 
and the private sector within the meaning of the Unfunded Mandates 
Reform Act of 1995.

Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed this rule before publication and by 
approving it certifies that this rule would not have a significant 
economic impact on a substantial number of small entities. There are no 
anti-competitive discriminatory aspects of the rule with regard to 
small entities and there are not any unusual procedures that would need 
to be complied with by small entities. Although HUD has determined that 
this final rule would not have a significant economic impact on a 
substantial number of small entities, HUD welcomes comments regarding 
any less burdensome alternatives to this rule that will meet HUD's 
objectives as described in this preamble.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either (1) imposes substantial direct compliance costs on state and 
local governments and is not required by statute, or (2) the rule 
preempts state law, unless the agency meets the consultation and 
funding requirements of section 6 of the Executive Order. This final 
rule does not have federalism implications and would not impose 
substantial direct compliance costs on state and local governments or 
preempt state law within the meaning of the Executive Order.

List of Subjects in 24 CFR Part 2004

    Administrative practice and procedure, courts.

    Accordingly, for the reasons described in the preamble, HUD amends 
24 CFR part 2004 to read as follows:

PART 2004--SUBPOENAS AND PRODUCTION IN RESPONSE TO SUBPOENAS OR 
DEMANDS OF COURTS OR OTHER AUTHORITIES

    1. Part 2004 is revised to read as follows:
Subpart A--General Requirements
Sec.
2004.1 Scope and purpose.
2004.2 Applicability.
2004.3 Definitions.
Subpart B--Office of Inspector General Subpoenas
2004.10 Service of an Office of Inspector General subpoena.
Subpart C--Requests for Testimony and Production of Documents
2004.20 General prohibition.
2004.21 Factors OIG will consider.
2004.22 Filing requirements for demands or requests for documents or 
testimony.
2004.23 Service of subpoenas or requests.
2004.24 Processing demands or requests.
2004.25 Final determination.

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2004.26 Restrictions that apply to testimony.
2004.27 Restrictions that apply to released records.
2004.28 Procedure in the event of an adverse ruling.
2004.29 Fees.

    Authority: Inspector General Act of 1978, as amended (5 U.S.C. 
app.) and 42 U.S.C. 3535(d).

Subpart A--General Requirements


Sec.  2004.1  Scope and purpose.

    (a) This part sets forth the policy for service of a subpoena 
issued by the Office of Inspector General (OIG), and policies and 
procedures that you must follow when you submit a demand or request to 
an employee of the OIG to produce official records and information, or 
provide testimony relating to official information, in connection with 
a legal proceeding. You must comply with these requirements when you 
request the release or disclosure of official records and information.
    (b) The OIG intends these provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving OIG in controversial 
issues not related to OIG's functions;
    (3) Maintain OIG's impartiality among private litigants where OIG 
is not a named party; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of OIG.
    (c) In providing for these requirements, OIG does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of OIG. 
This part does not create any right or benefit, substantive or 
procedural, that a party may rely upon in any legal proceeding against 
the United States.


Sec.  2004.2  Applicability.

    This subpart applies to demands and requests to employees for 
factual or expert testimony relating to official information, or for 
production of official records or information, in legal proceedings in 
which HUD or OIG is not a named party. However, this subpart does not 
apply to:
    (a) Demands upon or requests for an OIG employee to testify as to 
facts or events that are unrelated to his or her official duties or 
that are unrelated to the functions of OIG;
    (b) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and
    (c) Congressional demands and Congressional requests for testimony 
or records.


Sec.  2004.3  Definitions.

    Counsel means the Counsel to the Inspector General.
    Demand means a subpoena, or an order or other command of a court or 
other competent authority, for the production, disclosure, or release 
of records or for the appearance and testimony of an OIG employee that 
is issued in a legal proceeding.
    Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    OIG means the Office of Inspector General, U.S. Department of 
Housing and Urban Development.
    OIG employee or employee means:
    (1) Any current or former officer or employee of OIG;
    (2) Any other individual hired through contractual agreement by or 
on behalf of OIG or who has performed or is performing services under 
such an agreement for OIG; and
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to OIG, whether formal or informal.
    Records or official records or information means:
    (1) All documents and materials that are OIG agency records under 
the Freedom of Information Act, 5 U.S.C. 552;
    (2) All other documents and materials contained in OIG files; and
    (3) All other information or materials acquired by an OIG employee 
in the performance of his or her official duties or because of his or 
her official status.
    Request means any informal request, by whatever method, for the 
production of records and information or for testimony that has not 
been ordered by a court or other competent authority.
    Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
recorded interviews, and statements made by an individual in connection 
with a legal proceeding.

Subpart B--Office of Inspector General Subpoenas


Sec.  2004.10  Service of an Office of Inspector General subpoena.

    Service of a subpoena issued by OIG may be accomplished as follows:
    (a) Personal service. Service may be made by delivering the 
subpoena to the person to whom it is addressed. If the subpoena is 
addressed to a corporation or other business entity, it may be served 
upon an employee of the corporation or entity. Service made to an 
employee, agent, or legal representative of the addressee shall 
constitute service upon the addressee.
    (b) Service by mail. Service may also be made by mailing the 
subpoena, certified mail--return receipt requested, to the addressee at 
his or her last known business or personal address.

Subpart C--Requests for Testimony and Production of Documents


Sec.  2004.20  General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the Inspector General 
or the Counsel.


Sec.  2004.21  Factors OIG will consider.

    The Counsel or Inspector General, in their discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to a demand or request. Among the relevant factors that the Inspector 
General or the Counsel may consider in making this decision are 
whether:
    (a) The purposes of this part are met;
    (b) OIG has an interest in the decision that may be rendered in the 
legal proceeding;
    (c) Allowing such testimony or production of records would assist 
or hinder OIG in performing its statutory duties or use OIG resources 
where responding to the request will interfere with the ability of OIG 
employees to do their work;
    (d) The records or testimony can be obtained from other sources;
    (e) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (f) Disclosure would violate or be inconsistent with a statute, 
Executive Order, or regulation;
    (g) Disclosure would reveal confidential or privileged information, 
trade secrets, or similar, confidential commercial, or financial 
information;
    (h) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceedings, or compromise constitutional 
rights;

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    (i) Disclosure would result in OIG appearing to favor one litigant 
over another;
    (j) Disclosure relates to documents that were produced by another 
agency;
    (k) The demand or request is in conformance with all other 
applicable rules;
    (l) The demand or request is sufficiently specific to be answered; 
and
    (m) For any other good cause.


Sec.  2004.22  Filing requirements for demands or requests for 
documents or testimony.

    You must comply with the following requirements whenever you issue 
demands or requests to an OIG employee for official records and 
information or testimony.
    (a) Your request must be in writing and must be submitted to the 
Counsel. If you serve a subpoena on OIG or on an OIG employee before 
submitting a written request and receiving a final determination from 
the Counsel, OIG will oppose the subpoena on grounds that your request 
was not submitted in accordance with this subpart.
    (b) Your written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document 
sufficient to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought;
    (4) A statement as to how the need for the information outweighs 
the need to maintain any confidentiality of the information and 
outweighs the burden on OIG to produce the records or provide 
testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than an OIG employee, such as a retained 
expert;
    (6) 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;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require with each OIG employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The OIG reserves the right to require additional information to 
complete your request where appropriate.
    (d) Your request should be submitted at least 30 days before the 
date that records or testimony are required. Requests submitted less 
than 30 days before records or testimony are required must be 
accompanied by a written explanation stating the reasons for the late 
request and the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the Counsel to 
make an informed decision may serve as the basis for a determination 
not to comply with your request.


Sec.  2004.23  Service of subpoenas or requests.

    Subpoenas or requests for official records or information or 
testimony must be served on the Counsel to the Inspector General, 
Office of Inspector General, U.S. Department of Housing and Urban 
Development, 451 Seventh Street, SW, Room 8260, Washington, DC 20410-
4500.


Sec.  2004.24  Processing demands or requests.

    (a) After service of a demand or request to testify, the Counsel 
will review the demand or request and, in accordance with the 
provisions of this subpart, determine whether, or under what 
conditions, to authorize the employee to testify on matters relating to 
official information and/or to produce official records and 
information.
    (b) The OIG will process requests in the order in which they are 
received. Absent exigent or unusual circumstances, OIG will respond 
within 30 days from the date that we receive all information necessary 
to the evaluation of the demand or request. The time for response will 
depend upon the scope of the request.
    (c) The Counsel may grant a waiver of any procedure described in 
this subpart where a waiver is considered necessary to promote a 
significant interest of OIG, HUD, and the United States, or for other 
good cause.


Sec.  2004.25  Final determination.

    The Counsel makes the final determination on demands and requests 
to employees for production of official records and information or 
testimony. All final determinations are within the sole discretion of 
the Counsel. The Counsel will notify the requester of the final 
determination, the reasons for the grant or denial of the demand or 
request, and any conditions that the Counsel may impose on the release 
of records or information, or on the testimony of an OIG employee.


Sec.  2004.26  Restrictions that apply to testimony.

    (a) The Counsel may impose conditions or restrictions on the 
testimony of OIG employees including, for example, limiting the areas 
of testimony or requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal or will only be used or made available in the particular 
legal proceeding for which testimony was requested. The Counsel may 
also require a copy of the transcript of testimony at the requester's 
expense.
    (b) The OIG may offer the employee's written declaration in lieu of 
testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the Counsel, the employee shall 
not:
    (1) Disclose confidential or privileged information;
    (2) Testify as to facts when the Counsel determines such testimony 
would not be in the best interest of OIG, HUD and the United States; or
    (3) Testify as an expert or opinion witness with regard to any 
matter arising out of the employee's official duties or the functions 
of OIG. This provision does not apply to requests from the United 
States for expert or opinion testimony.


Sec.  2004.27  Restrictions that apply to released records.

    (a) The Counsel may impose conditions or restrictions on the 
release of official records and information, including the requirement 
that parties to the proceeding obtain a protective order or execute a 
confidentiality agreement to limit access and any further disclosure. 
The terms of the protective order or of a confidentiality agreement 
must be acceptable to the Counsel. In cases where protective orders or 
confidentiality agreements have already been executed, OIG may 
condition the release of official records and information on an 
amendment to the existing protective order or confidentiality 
agreement.
    (b) If the Counsel so determines, original OIG records may be 
presented for examination in response to a demand or request, but they 
are not to

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be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official OIG records, nor are they to be 
marked or altered. In lieu of the original records, certified copies 
will be presented for evidentiary purposes.


Sec.  2004.28  Procedure in the event of an adverse ruling.

    If the Counsel declines to approve a demand for records or 
testimony and the court or other authority rules that the demand must 
be complied with irrespective of the instructions from the OIG 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, citing United States ex 
rel. Touhy v. Ragen, 340 U.S. 462.


Sec.  2004.29  Fees.

    (a) Generally. The Counsel may condition the production of records 
or appearance for testimony upon advance payment of a reasonable 
estimate of the costs to OIG.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the demand or request, and expenses generated 
by materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowance, and benefits). Fees for duplication will be the same as 
those charged by OIG in its Freedom of Information Act Regulations at 
24 CFR part 2002.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the federal district court closest to the location where 
the witness will appear. Such fees will include cost of time spent by 
the witness to prepare for testimony, in travel, and for attendance in 
the legal proceeding.
    (d) Payment of fees. You must pay any applicable witness fees for 
current OIG employees and any records certification fees by submitting 
to the Counsel a check or money order for the appropriate amount made 
payable to the Treasury of the United States. In the case of testimony 
by former OIG employees, you must pay applicable fees directly to the 
former employee in accordance with applicable statutes.
    (e) Waiver or reduction of fees. The Counsel, in his or her sole 
discretion, may, upon a showing of reasonable cause, waive or reduce 
any fees in connection with the testimony or production of records. 
Additionally, fees will not be assessed if the total charge would be 
$10.00 or less.

    Dated: January 9, 2003.
Kenneth M. Donohue, Sr.,
Inspector General.
[FR Doc. 03-1409 Filed 1-22-03; 8:45 am]
BILLING CODE 4210-78-P