[Federal Register Volume 81, Number 184 (Thursday, September 22, 2016)]
[Proposed Rules]
[Pages 65309-65313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22864]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

15 CFR Part 2004

[Docket Number USTR-2016-0016]
RIN 0350-AA10


Production or Disclosure of Records, Information and Employee 
Testimony in Legal Proceedings

AGENCY: Office of the United States Trade Representative.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of the United States Trade Representative (USTR) is 
renaming and reorganizing part 2004 to include all of the rules 
governing disclosure of records and information by USTR. Part 2004 will 
include four subparts--subpart A will contain definitions used 
throughout part 2004, subpart B will implement the Freedom of 
Information Act, subpart C will implement the Privacy Act of 1974, and 
subpart D will govern how USTR responds to official demands and 
informal requests for records, information or employee testimony in 
connection with legal proceedings in which neither the United States 
nor USTR is a party. This proposed rule

[[Page 65310]]

would establish subpart A, which contains definitions used throughout 
part 2004, and subpart D, which includes the requirements and 
procedures for demanding or requesting parties to submit demands or 
requests, and factors for USTR to consider in determining whether USTR 
employees will provide records, information or testimony relating to 
their official duties.

DATES: We must receive your written comments on or before November 21, 
2016.

ADDRESSES: You should submit written comments through the Federal 
eRulemaking Portal: http://www.regulations.gov. The docket number for 
this rulemaking is USTR-2016-0016. USTR invites comments on all aspects 
of the proposed rule, and will revise the language as appropriate after 
taking all timely comments into consideration. Copies of all comments 
will be available for public viewing at www.regulations.gov upon 
completion of processing. You can view a submission by entering the 
docket number USTR-2016-0016 in the search field at http://www.regulations.gov. We will post comments without change and will 
include any personal information you provide, such as your name, 
mailing address, email address, and telephone number.

FOR FURTHER INFORMATION CONTACT: Janice Kaye, Monique Ricker or Melissa 
Keppel, Office of General Counsel, United States Trade Representative, 
Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., 
Washington, DC 20509, [email protected]; [email protected]; 
[email protected]; 202-395-3150.

SUPPLEMENTARY INFORMATION:

I. Background

    Federal agencies often receive formal demands (including subpoenas) 
or informal requests to produce records, information or testimony in 
judicial, legislative or administrative proceedings in which those 
agencies or the United States is not a named party. Many federal 
agencies have issued regulations to address the submission, evaluation 
and processing of these demands or requests. They have done so because 
responding to these demands or requests can be burdensome, may disrupt 
an agency employee's work schedule, may involve the agency in issues 
unrelated to its responsibilities, may divert agency resources from 
accomplishing mission critical functions, and may impede the agency's 
accomplishment of its mission and goals. Standard rules alleviate these 
difficulties by ensuring timely notice and centralized, objective 
decision making. The United States Supreme Court upheld this type of 
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951), holding that agencies may issue rules governing record 
production and employee testimony. These rules are commonly referred to 
as ``Touhy rules.''
    The proposed rule will establish a USTR Touhy rule that governs the 
process we use to authorize or deny such demands. It prohibits USTR 
employees from producing records, information or testimony in response 
to demands or requests, unless the demands or requests comply with the 
rule, and USTR grants permission for the production. Compliance with 
the rule is necessary, but not sufficient, for production to occur. The 
rule identifies the information that demanding or requesting parties 
must provide and the factors that USTR may consider when evaluating 
demands or requests.
    We are renaming and reorganizing 15 CFR part 2004, which will 
include all of the rules governing disclosure of records and 
information by USTR. Part 2004 will include four subparts--subpart A 
will contain definitions used throughout part 2004, subpart B will 
implement the Freedom of Information Act, 5 U.S.C. 552, subpart C will 
implement the Privacy Act of 1974, 5 U.S.C. 552a, and subpart D will 
establish the USTR Touhy rule.

II. Section-by-Section Analysis

Subpart A: Definitions

    Section 2004.0--Definitions: This section sets forth definitions of 
select terms that are used throughout Part 2004.

Subpart D: Touhy Rule

    Section 2004.30--Purpose and scope: This section describes the 
proposed rule's scope, which includes internal agency operations. It 
also sets forth the rule's purpose, which is to specify the manner in 
which, and standards by which, demands or requests for records, 
information or testimony must be submitted, evaluated and processed.
    Section 2004.31--Definitions: This section defines terms relevant 
to this subpart.
    Section 2004.32--Production prohibited unless approved: This 
section bars producing USTR records, information or testimony in 
response to a demand or request without proper written authorization.
    Section 2004.33--Factors the General Counsel May Consider: This 
section sets forth factors that the USTR General Counsel may consider 
when evaluating demands or requests.
    Section 2004.34--Submitting demands and requests: This section 
describes the manner in which demands or requests for USTR records, 
information or testimony must be submitted. It prescribes the 
information that must be included in the demand or request and explains 
limitations on the scope of production or testimony. It also explains 
the consequences of failing to meet requirements in this subpart and 
the limited instances in which we may waive them.
    Section 2004.35--Processing demands and requests: This section 
describes how we will process demands or requests and establishes 
deadlines.
    Section 2004.36--Restrictions that apply to testimony: This section 
authorizes the imposition of conditions on USTR employee testimony.
    Section 2004.37--Restrictions that apply to released records and 
information: This section authorizes the imposition of conditions on 
production of USTR records or information.
    Section 2004.38--In the event of an adverse ruling: This section 
directs persons in possession of USTR information to decline to comply 
with a court order that conflicts with a USTR determination. It 
establishes an administrative mechanism by which parties aggrieved by a 
USTR determination about a demand or request may seek reconsideration 
of that determination. This section also establishes a petition for 
USTR reconsideration as a prerequisite to judicial review.
    Section 2004.39--Fees: This section describes USTR's entitlement to 
fees arising from the production of requested records, information or 
testimony.

III. Regulatory Flexibility Act

    USTR has considered the impact of the proposed rule and determined 
that if adopted as a final rule it is not likely to have a significant 
economic impact on a substantial number of small business entities 
because it is applicable only to USTR's internal operations and legal 
obligations. See 5 U.S.C. 601 et seq.

IV. Paperwork Reduction Act

    The proposed rule does not contain any information collection 
requirement that requires the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

List of Subjects in 15 CFR Part 2004

    Administrative practice and procedure, Courts, Disclosure,

[[Page 65311]]

Exemptions, Freedom of information, Government employees, Privacy, 
Records, Subpoenas, Testimony.


0
For the reasons stated in the preamble, the Office of the United States 
Trade Representative is proposing to revise part 2004 of chapter XX of 
title 15 of the Code of Federal Regulations to read as follows:

PART 2004--DISCLOSURE OF RECORDS AND INFORMATION

Subpart A--Definitions
Sec.
2004.0 Definitions.
Subpart B--Freedom of Information Act Policies and Procedures
2004.1 through 2004.9 [Reserved]
Subpart C--Privacy Act Policies and Procedures
2004.10 through 2004.29 [Reserved]
Subpart D--Production or Disclosure of Records, Information and 
Employee Testimony in Legal Proceedings
2004.30 Purpose and scope.
2004.31 Definitions.
2004.32 Production prohibited unless approved.
2004.33 Factors the General Counsel may consider.
2004.34 Submitting demands and requests.
2004.35 Processing demands and requests.
2004.36 Restrictions that apply to testimony.
2004.37 Restrictions that apply to released records or information.
2004.38 In the event of an adverse ruling.
2004.39 Fees.

Subpart A--Definitions

    Authority:  19 U.S.C. 2171(e)(3).


Sec.  2004.0  Definitions.

    For purposes of this part:
    Days, unless otherwise indicated, means working days, and does not 
include Saturdays, Sundays, and legal public holidays. If the last day 
of a specified period falls on a Saturday, Sunday, or legal public 
holiday, the period will be extended until the next working day.
    FOIA means the Freedom of Information Act, as amended, 5 U.S.C. 
552.
    Privacy Act means the Privacy Act of 1974, as amended, 5 U.S.C. 
552a.
    USTR means the Office of the United States Trade Representative.

Subpart D--Production or Disclosure of USTR Records, Information 
and Employee Testimony in Legal Proceedings

    Authority: 5 U.S.C. 301; 19 U.S.C. 2171(e)(3).


Sec.  2004.30  Purpose and scope.

    (a) Why are we issuing this rule? This subpart establishes the 
procedures USTR will follow when any federal, state or local government 
court or other authority seeks production of USTR records or 
information, or testimony relating to an employee's official duties, in 
the context of a legal proceeding. Parties seeking records, information 
or testimony must comply with these requirements when submitting 
demands or requests to USTR.
    (b) What does this rule cover? This subpart applies to demands or 
requests for records, information or testimony in legal proceedings in 
which USTR is not a named party. It does not apply to: Demands or 
requests for a USTR employee to testify as to facts or events that are 
unrelated to his or her official duties or to USTR's functions; FOIA or 
Privacy Act requests; or Congressional demands or requests for records 
or testimony.
    (c) Not a waiver. (1) By providing these policies and procedures, 
USTR does not waive the sovereign immunity of the United States.
    (2) The production of records, information or testimony pursuant to 
this subpart does not constitute a waiver by USTR of any privilege.
    (d) This subpart provides guidance for USTR's internal operations 
and does not create any right or benefit, substantive or procedural, 
that a party may rely upon in any legal proceeding against USTR or the 
United States.


Sec.  2004.31  Definitions.

    For purposes of this subpart:
    Demand means a request, order, subpoena or other demand of a 
federal, state or local court or other authority for records, 
information or employee testimony in a legal proceeding in which USTR 
is not a named party.
    Employee means any current or former employee or officer of USTR, 
including contractors, detailees, interns, and any individual who has 
served or is serving in any consulting or advisory capacity to USTR, 
whether formal or informal.
    General Counsel means USTR's General Counsel or a person within 
USTR's Office of General Counsel to whom the General Counsel has 
delegated authority to act under this subpart.
    Legal proceeding means any matter, including all phases of 
litigation, 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.
    Records or Information means all documents and materials that are 
USTR agency records under the FOIA; any original or copy of a record or 
other property, no matter what media, contained in USTR files; and any 
other information or materials acquired by a USTR 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, in 
connection with a legal proceeding, seeking production of records, 
information or 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 and 
recorded interviews made by an individual about USTR information in 
connection with a legal proceeding.


Sec.  2004.32  Production prohibited unless approved.

    (a) Approval required. An employee or any other person or entity in 
possession of records or information may not produce those records or 
information, or provide any testimony related to the records or 
information, in response to any demand or request without prior written 
approval from the General Counsel.
    (b) Penalties. Any person or entity that fails to comply with this 
subpart may be subject to the penalties provided in 18 U.S.C. 641 and 
other applicable laws. A current employee also may be subject to 
administrative or disciplinary proceedings.


Sec.  2004.33  Factors the General Counsel may consider.

    The General Counsel may grant an employee permission to testify 
regarding USTR matters and to produce records and information in 
response to a demand or request. Among the relevant factors the General 
Counsel may consider in making this determination are whether:
    (a) The requested records, information or testimony are reasonable 
in scope, relevant and material to the pending action, and unavailable 
from other sources such as a non-USTR employee, or a USTR employee 
other than the employee named.
    (b) Production of the records, information or testimony might 
result in USTR appearing to favor one litigant over another.
    (c) USTR has an interest in the decision that may be rendered in 
the legal proceeding.
    (d) Approving the demand or request would assist or hinder USTR in

[[Page 65312]]

performing statutory duties or unduly burden USTR resources.
    (e) The demand or request is unduly burdensome or otherwise 
inappropriate under the rules of discovery or procedure governing the 
case or matter in which the demand or request arose.
    (f) Production of the records, information or testimony might 
violate or be inconsistent with a statute, Executive Order, regulation 
or other legal authority.
    (g) Disclosure, including release in camera, is appropriate or 
necessary under the relevant substantive law concerning privilege.
    (h) Disclosure, except when in camera and necessary to assert a 
claim of privilege, would reveal information properly classified or 
other matters exempt from unrestricted disclosure.
    (i) Disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of 
an intelligence source or confidential informant, or disclose trade 
secrets or similarly confidential commercial or financial information.
    (j) Any other appropriate factor.


Sec.  2004.34  Submitting demands and requests.

    (a) Where do I send a demand or request? To make a demand or 
request for records, information or testimony you should write directly 
to the General Counsel. Heightened security delays mail delivery. To 
avoid mail delivery delays, we strongly suggest that you email your 
demand or request to [email protected]. The mailing address is General 
Counsel, Office of the United States Trade Representative, Anacostia 
Naval Annex, Building 410/Door 123, 250 Murray Lane SW., Washington, DC 
20509. To ensure delivery, you should mark the subject line of your 
email or your envelope and letter ``Touhy Request.''
    (b) When should I submit it? You should submit your demand or 
request at least 45 calendar days in advance of the date on which the 
records, information or testimony is needed.
    (c) What must be included? A demand or request must include an 
affidavit or, if that is not feasible, a clear and concise statement by 
the party or his or her counsel summarizing the legal and factual 
issues in the proceeding and explaining how the records, information or 
testimony will contribute substantially to the resolution of one or 
more specifically identified issues.
    A demand or request for testimony also must include an estimate of 
the amount of time that the employee will need to devote to the process 
of testifying (including anticipated travel time and anticipated 
duration of round trip travel), plus a showing that no document or the 
testimony of non-USTR persons, including retained experts, could 
suffice in lieu of the employee's testimony.
    (d) Limits. The General Counsel will limit any authorization for 
testimony to the scope of the demand, and the scope of permissible 
production of records and information to that set forth in the written 
authorization.
    (e) Failure to meet requirements and exceptions. USTR may oppose 
any demand or request that does not meet the requirements set forth in 
this subpart. The General Counsel may grant exceptions to the 
requirements in this subpart upon a showing of compelling need, to 
promote a significant interest of USTR or the United States, or for 
other good cause.


Sec.  2004.35  Processing demands and requests.

    (a) The General Counsel will review a request or demand to produce 
or disclose records, information or testimony and determine whether, or 
under what conditions, to authorize the employee to testify regarding 
USTR matters or produce records and information. The General Counsel 
will notify the requester of the final determination, the reasons for 
the grant or denial of the demand or request, and any conditions on 
disclosure.
    (b) When necessary, the General Counsel will coordinate with the 
U.S. Department of Justice to file appropriate motions, including 
motions to remove the matter to Federal court, to quash, or to obtain a 
protective order.
    (c) The General Counsel will process demands and requests in the 
order in which they are received. Absent unusual circumstances and 
depending on the scope of the demand or request, the General Counsel 
will respond within 45 calendar days of the date USTR receives all 
information necessary to evaluate the demand or request.


Sec.  2004.36  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of USTR employees including, for example, limiting the 
scope of testimony or requiring the requester and other parties to the 
legal proceeding to agree that the testimony transcript will be kept 
under seal or will only be used or made available in the particular 
legal proceeding for which testimony was requested. The General Counsel 
also may require a copy of the testimony transcript at the requester's 
expense.
    (b) USTR may offer the employee's written declaration in lieu of 
testimony.
    (c) If authorized to testify pursuant to this subpart, an employee 
may testify as to relevant facts within his or her personal knowledge, 
but, unless specifically authorized to do so by the General Counsel, 
the employee must not:
    (1) Disclose classified, confidential or privileged information; or
    (2) For a current USTR employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or USTR's mission or functions, unless testimony is 
provided on behalf of the United States. A former employee can provide 
expert or opinion testimony where the testimony involves only general 
expertise gained while employed as a USTR employee.


Sec.  2004.37  Restrictions that apply to released records and 
information.

    (a) The General Counsel may impose conditions or restrictions on 
the release of records and information, including requiring the parties 
to the legal proceeding to obtain a protective order or to execute a 
confidentiality agreement to limit access and further disclosure. The 
terms of a protective order or confidentiality agreement must be 
acceptable to the General Counsel. In cases where protective orders or 
confidentiality agreements already have been executed, USTR may 
condition the release of records and information on an amendment to the 
existing protective order or confidentiality agreement.
    (b) If the General Counsel so determines, USTR may present original 
records for examination in response to a demand or request, but the 
records cannot be marked or altered or presented as evidence or 
otherwise used in a manner by which they could lose their status as 
original records. In lieu of original records, certified copies will be 
presented for evidentiary purposes. (See 28 U.S.C. 1733).


Sec.  2004.38  In the event of an adverse ruling.

    (a) Notwithstanding USTR's rejection of a demand or request for 
records, information or testimony, if a court or other competent 
authority orders a USTR employee to comply with the demand, the 
employee promptly must notify the General Counsel of the order, and 
must respectfully decline to comply, citing United States ex rel. Touhy 
v. Ragen, 340 U.S. 462 (1951).
    (b) To seek reconsideration of USTR's rejection of a demand or 
request, or of any restrictions on receiving records, information or 
testimony, a requester must send a petition for reconsideration

[[Page 65313]]

in accordance with Sec.  2004.34(a) within 10 days of the date of the 
determination. The petition must contain a clear and concise statement 
of the basis for the reconsideration with supporting authorities. 
Determinations about petitions for reconsideration are within the 
discretion of the United States Trade Representative or his/her 
designee, and are final.
    (c) Pursuant to section 704 of the Administrative Procedure Act, 5 
U.S.C. 704, a petition for reconsideration of a final determination 
under this section is a prerequisite to judicial review.


Sec.  2004.39  Fees.

    (a) USTR may condition the production of records, information or an 
employee's appearance on advance payment of reasonable costs, which may 
include but are not limited to those associated with employee search 
time, copying, computer usage, and certifications.
    (b) Witness fees will include fees, expenses and allowances 
prescribed by the rules applicable to the particular legal proceeding. 
If no fees are prescribed, USTR will base fees on the rule of the 
federal district court closest to the location where the witness will 
appear. Such fees may include but are not limited to time for 
preparation, travel and attendance at the legal proceeding.

Janice Kaye,
Chief Counsel for Administrative Law, Office of the U.S. Trade 
Representative.
[FR Doc. 2016-22864 Filed 9-21-16; 8:45 am]
 BILLING CODE 3290-F6-P