[Federal Register Volume 72, Number 119 (Thursday, June 21, 2007)]
[Proposed Rules]
[Pages 34205-34207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-12038]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[Docket No. OAG 106; A.G. Order No. 2884-2007]
RIN 1105-AB21


Office of the Attorney General; Production of Certain Information 
or Testimony by State or Local Law Enforcement or Prosecutive Officials 
Serving on a Department of Justice Task Force

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The United States Department of Justice is proposing to amend 
its regulations concerning agency management. The production of certain 
information or testimony by Department officials in response to 
subpoenas or demands of courts or other authorities is governed by 28 
CFR 16.21-16.29, often referred to as the Department's Touhy 
regulations, see United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951). The revision avoids any doubt that the Touhy regulations cover 
information acquired by a State or local law enforcement and 
prosecutive official while serving as a task force official on a 
Department of Justice task force.

DATES: Comments must be received on or before August 20, 2007.

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. OAG 106'' on all written and electronic correspondence. 
Written comments being sent via regular mail should be sent to Robert 
Hinchman, Senior Counsel, Office of Legal Policy, 950 Pennsylvania 
Avenue, NW., Room 4252, Washington, DC 20530. Comments may be directly 
sent to the Office of Legal Policy (OLP) electronically by sending an 
electronic message to [email protected]. Comments may also be sent 
electronically through www.regulations.gov using the electronic comment 
form provided on that site. An electronic copy of this document is also 
available at the www.regulations.gov Web site. OLP will accept 
electronic comments containing MS Word, WordPerfect, Adobe PDF, or 
Excel files only. OLP will not accept any file format other than those 
specifically listed here.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, 950 Pennsylvania Avenue, NW., Room 4252, 
Washington, DC 20530; Telephone: (202) 514-8059.

SUPPLEMENTARY INFORMATION: State and local law enforcement and 
prosecutive personnel often participate voluntarily and cooperatively 
on Department of Justice task forces. The cohesive efforts of task 
force members serve to multiply the expertise of each participating law 
enforcement organization in pursuing its law enforcement mission. 
Examples of these mutually beneficial Department task forces include 
drug task forces, joint terrorism task forces, gun violence reduction 
task forces, and fugitive apprehension task forces. Depending upon 
operational needs, these task forces operate on an ad hoc basis or more 
formally, such as pursuant to written agreement, see, e.g., 21 U.S.C. 
873(a)(7); 31 U.S.C. 6305; 28 U.S.C. 566(c) and (c)(1)(B). When such 
Department task forces are established--whether on an ad hoc basis or 
under formal arrangements, involving, for example, a memorandum of 
understanding between the participating agencies or the deputation of 
the participating State and local law enforcement officials--State or 
local law enforcement and prosecutive officials are frequently provided 
access to sensitive Department information. The Department has always 
considered Special Deputy United States Marshals and Special Assistant 
United States Attorneys to be subject to the Attorney General's 
direction with respect to carrying out their respective 
responsibilities. It is also recognized that although Department task 
force investigations generally will be prosecuted in Federal courts, 
there may be specific circumstances to indicate that prosecution should 
be made in State court, depending upon which method of prosecution will 
result in the greatest benefit to law enforcement and the public.
    To clarify that the Department retains appropriate controls over 
the use and dissemination of such sensitive information by non-
Department employees who acquire the information through service on 
Department task forces, this revision is being proposed to the 
Department's Touhy regulations, Subpart B of part 16, chapter I, Title 
28, CFR, i.e., 28 CFR 16.21-16.29. Those regulations take their name 
for United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), which 
held that the Attorney General could validly prescribe regulations 
regarding the release of government documents and witnesses.
    The Touhy regulations set forth procedures to be followed for 
producing or disclosing Department materials or information in response 
to subpoenas or demands of courts or other authorities. The proposed 
revision of the regulations would make clear that the regulation now 
also covers any proceeding relating to a task force investigation where 
the Department has declined to exercise jurisdiction over a particular 
case or class of cases. The proposed rule defines the term ``task force 
official'' as meaning ``an employee of a State or local law enforcement 
agency or prosecutive office serving on a Department of Justice task 
force established for a law enforcement or national security purpose 
under the authority of the Attorney General or one of the components of 
the Department of Justice.'' In addition, the term ``current and former 
task force official'' would be inserted in appropriate parts of the 
regulation to ensure that such officials are subject to the same 
requirements with respect to responding to demands for information 
acquired through task force service as apply to current and former 
Department employees responding to requests for information acquired 
through their official status.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, 
certifies that it will not have a significant economic impact on a 
substantial number of small entities because it pertains to personnel 
and administrative matters affecting the Department. The rule affects 
only State and local law enforcement and prosecutive officials 
voluntarily serving under ad hoc or formal arrangements on Department 
task forces and does not impose any economic impact on small entities.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), and accordingly this rule has not been

[[Page 34206]]

reviewed by the Office of Management and Budget.

Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. The State or local law enforcement agencies and 
prosecutive offices affected by the rule are not mandated to serve on 
Department task forces, and the rule affects only officials in such 
agencies or offices who voluntarily serve on such task forces through 
ad hoc or formal arrangements with Department components. Therefore, in 
accordance with Executive Order 13132, Federalism, the Department has 
determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995, 2 
U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule'' as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 16

    Administrative practice and procedure, Courts, Freedom of 
Information, Privacy, Sunshine Act.

    Accordingly, part 16 of title 28 of the Code of Federal Regulations 
is proposed to be amended as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

    1. The authority for citation for part 16 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.

    2. Revise paragraphs (a) and (b) of Sec.  16.21 to read as follows:


Sec.  16.21  Purpose and scope.

    (a) This subpart sets forth procedures to be followed with respect 
to the production or disclosure of any material contained in the files 
of the Department, any information relating to material contained in 
the files of the Department, any information acquired by any person 
while such person was an employee of the Department as part of the 
performance of that person's official status or because of that 
person's official status, or any information acquired by a State or 
local law enforcement or prosecutive official while serving ad hoc or 
formally as a task force official on a Department of Justice task 
force:
    (1) In all Federal and State proceedings in which the United States 
is a party; and
    (2) In all Federal and State proceedings in which the United States 
is not a party, including any proceedings in which the Department is 
representing a government employee solely in that employee's individual 
capacity or any proceedings relating to a task force investigation in 
which the Department has declined to exercise jurisdiction over a 
particular case or class of cases, when a subpoena, order, or other 
demand (collectively, a ``demand'') of a court or other authority is 
issued for such material or information.
    (b) For purpose of this subpart:
    (1) The term employee of the Department includes all officers and 
employees of the United States appointed by, or subject to the 
supervision, jurisdiction, or control of the Attorney General of the 
United States, including United States Attorneys, United States 
Marshals, U.S. Trustees, and members of the staffs of those officials; 
and
    (2) The term task force official means an employee of a State or 
local law enforcement agency or prosecutive office serving on a 
Department of Justice task force established for a law enforcement or 
national security purpose under the authority of the Attorney General 
or one of the components of the Department of Justice.
* * * * *
    3. Revise paragraphs (a), (b), and (c) of Sec.  16.22 to read as 
follows:


Sec.  16.22  General prohibition of production or disclosure in Federal 
and State proceedings in which the United States is not a party.

    (a) In any Federal or State case or matter in which the United 
States is not a party, no employee or former employee of the Department 
of Justice or present or former task force official shall, in response 
to a demand, produce any material contained in the files of the 
Department, or disclose any information relating to or based upon 
material contained in the files of the Department, or disclose any 
information or produce any material acquired as part of the performance 
of that person's official duties or because of that person's official 
status or because of that person's service on a Department of Justice 
task force without prior approval of the proper Department official in 
accordance with Sec. Sec.  16.24 and 16.25 of this part.
    (b) Whenever a demand is made upon an employee or former employee 
or a present or former task force official as described in paragraph 
(a) of this section, the employee or task force official shall 
immediately notify the United States Attorney for the district where 
the issuing authority is located. The responsible U.S. Attorney shall 
follow procedures set forth in Sec.  16.24 of this part.
    (c) If oral testimony is sought by a demand in any case or matter 
in which the United States is not a party, an affidavit, or, if that is 
not feasible, a statement by the party seeking the testimony or by his 
attorney, setting forth a summary of the testimony sought and its 
relevance to the proceeding, must be furnished to the responsible U.S. 
Attorney. Any authorization for testimony by a present or former 
employee or a present or former task force official of the Department 
shall be limited to the scope of the demand as summarized in such 
statement.
* * * * *
    4. Revise paragraph (a) of Sec.  16.23 to read as follows:


Sec.  16.23  General disclosure authority in Federal and State 
proceedings in which the United States is a party.

    (a) Every attorney in the Department of Justice in charge of any 
case or matter in which the United States is a party is authorized, 
after consultation with the ``originating component'' as defined in 
paragraph 16.24(a) of this part, to reveal and furnish to any person, 
including an actual or prospective witness, a grand jury, counsel, or a 
court, either during

[[Page 34207]]

or preparatory to a proceeding, such testimony, and relevant 
unclassified material, documents, or information secured by any 
attorney, or investigator of the Department of Justice, or task force 
official, as such attorney shall deem necessary or desirable to the 
discharge of the attorney's official duties, provided:
    (1) Such an attorney shall consider, with respect to any 
disclosure, the factors set forth in paragraph 16.26(a) of this part; 
and
    (2) An attorney shall not reveal or furnish any material, 
documents, testimony or information when, in the attorney's judgment, 
any of the factors specified in paragraph 16.26(b) exists, without the 
express prior approval by the Assistant Attorney General in charge of 
the division responsible for the case or proceeding, the Director of 
the Executive Office for United States Trustees (``EOUST''), or such 
persons'' designees.
* * * * *
    5. Revise paragraphs (a), (b) introductory text, and (c) of Sec.  
16.24 to read as follows:


Sec.  16.24  Procedure in the event of a demand where disclosure is not 
otherwise authorized.

    (a) Whenever a matter is referred under Sec.  16.22 of this part to 
a U.S. Attorney or, under Sec.  16.23 of this part, to an Assistant 
Attorney General, the Director of the EOUST, or their designees 
(collectively, ``responsible official''), the responsible official 
shall immediately advise the official, or the official's designee, in 
charge of the bureau, division, office, or agency of the Department:
    (1) That was responsible for the collection, assembly, or other 
preparation of the material demanded; or
    (2) That, at the time the person whose testimony was demanded 
acquired the information in question:
    (I) Employed such person; or
    (ii) Designated such person as a task force official; 
(collectively, ``originating component'').
    In any instance in which the responsible official is also the 
official in charge of the originating component, the responsible 
official may perform all functions and make all determinations that 
this regulation vests in the originating component.
    (b) The responsible official, subject to the terms of paragraph (c) 
of this section, may authorize the appearance and testimony of a 
present or former Department employee or a present or former task force 
official, or the production of material from Department files if:
    (1) * * *
    (2) * * *
    (3) * * *
    (c) It is Department policy that the responsible official shall, 
following any necessary consultation with the originating component, 
authorize testimony by a present or former employee or a present or 
former task force official of the Department or the production of 
material from Department files without further authorization from 
Department officials whenever possible: provided, that, when 
information is collected, assembled, or prepared in connection with 
litigation or an investigation supervised by a division of the 
Department or by the EOUST, the Assistant Attorney General in charge of 
such a division or the Director of the EOUST may require that the 
originating component obtain the division's or the EOUST's approval 
before authorizing a responsible official to disclose such information. 
Prior to authorizing such testimony or production, however, the 
responsible official shall, through negotiation and, if necessary, 
appropriate motions, seek to limit the demand to information, the 
disclosure of which would not be inconsistent with the considerations 
specified in Sec.  16.26 of this part.
* * * * *

    Dated: June 15, 2007.
Alberto R. Gonzales,
Attorney General.
 [FR Doc. E7-12038 Filed 6-20-07; 8:45 am]
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