[Federal Register Volume 82, Number 144 (Friday, July 28, 2017)]
[Proposed Rules]
[Pages 35134-35136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13922]



[[Page 35134]]

=======================================================================
-----------------------------------------------------------------------

MILLENNIUM CHALLENGE CORPORATION

22 CFR Part 1305

[MCC FR 17-03]


Touhy Regulations

AGENCY: Millennium Challenge Corporation.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The purpose of this document is to provide an update to the 
outline of the procedures by which the Millennium Challenge Corporation 
proposes to respond to subpoenas or other official demands for 
information and testimony served upon itself or its employees.

DATES: Submit comments on or before September 26, 2017.

ADDRESSES: Send comments to: Office of the General Counsel, Millennium 
Challenge Corporation, 1099 14th Street NW., Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Tamiko N.W. Watkins, Office of the 
General Counsel, Millennium Challenge Corporation, 1099 14th Street 
NW., Washington, DC 20005.

SUPPLEMENTARY INFORMATION: The United States Supreme Court held in 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), that the 
head of a federal agency may make the determination on his/her sole 
authority to produce documents and authorize employee's testimony in 
response to a subpoena or other demand for information. This proposed 
regulation will govern the Millennium Challenge Corporation's 
procedures for producing documents authorizing employer testimony in 
response to a subpoena or other formal demand for information served 
upon the agency.

List of Subjects in 22 CFR Part 1305

    Administrative practice and procedure, Courts, Government 
employees, Archives and records.
    For the reasons set forth above, the Millennium Challenge 
Corporation proposes to amend Chapter XIII of 22 CFR by revising part 
1305 to read as follows:

PART 1305--RELEASE OF OFFICIAL INFORMATION AND TESTIMONY BY MCC 
PERSONNEL AS WITNESSES

Sec.
1305.1 Purpose and scope.
1305.2 Definitions.
1305.3 Production prohibited unless approved.
1305.4 Factors the General Counsel may consider.
1305.5 Service of demands.
1305.6 Processing demands.
1305.7 Final determination.
1305.8 Restrictions that apply to testimony.
1305.9 Restrictions that apply to released documents.
1305.10 Procedure when a decision is not made prior to the time a 
response is required.
1305.11 Procedure in the event of an adverse ruling.
1305.12 No private right of action.

    Authority:  5 U.S.C. 301.


Sec.  1305.1  Purpose and scope.

    Pursuant to 5 U.S.C. 301, the head of an executive department or 
military department may prescribe regulations for the government of 
his/her department, the conduct of its employees, the distribution and 
performance of its business, and the custody, use, and preservation of 
its records, papers, and property. Section 301 does not authorize 
withholding information from the public or limiting the availability of 
records to the public. This part contains the regulations of the 
Millennium Challenge Corporation (MCC) concerning procedures to be 
followed when a request, subpoena, order or other demand (hereinafter 
in this part referred to as a ``demand'') of a court or other 
authorities in any state or federal proceeding is issued for the 
production or disclosure of:
    (a) Any material contained in the files of MCC;
    (b) Any information relating to materials contained in the files of 
MCC; or
    (c) Any information or material acquired by an employee of MCC 
during the performance of the employee's official duties or because of 
the employee's official status.


Sec.  1305.2  Definitions.

    For purposes of this part:
    (a) Demand means a request, order, or subpoena for testimony or 
documents related to or for possible use in a legal proceeding.
    (b) Document means any record or other property, no matter what 
media and including copies thereof, held by MCC, including without 
limitation, official letters, telegrams, memoranda, reports, studies, 
calendar and diary entries, maps, graphs, pamphlets, notes, charts, 
tabulations, analyses, statistical or informational accumulations, any 
kind of summaries of meetings and conversations, film impressions, 
magnetic tapes and sound or mechanical reproductions.
    (c) Employee means all employees and officers of MCC, including 
contractors who have been appointed by, or are subject to the 
supervision, jurisdiction or control of MCC. The procedures established 
within this part also apply to former employees and contractors of MCC.
    (d) General Counsel means the General Counsel or MCC employee to 
whom the General Counsel has delegated authority to act under this 
subpart.


Sec.  1305.3  Production prohibited unless approved.

    No employee or former employee shall, in response to a demand of a 
court or other authority, disclose any information relating to 
materials contained in the files of MCC, 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, 
record without the prior, written approval of the General Counsel.


Sec.  1305.4  Factors the General Counsel may consider.

    (a) In deciding whether to authorize the release of official 
information or the testimony of employees concerning official 
information, the General Counsel shall consider the following factors:
    (1) Whether the demand is unduly burdensome;
    (2) MCC's ability to maintain impartiality in conducting its 
business;
    (3) Whether the time and money of the United States would be used 
for private purposes;
    (4) The extent to which the time of employees for conducting 
official business would be compromised;
    (5) Whether the public might misconstrue variances between personal 
opinions of employees and MCC policy;
    (6) Whether the demand demonstrates that the information requested 
is relevant and material to the action pending, genuinely necessary to 
the proceeding, unavailable from other sources, and reasonable in its 
scope;
    (7) Whether the number of similar demands would have a cumulative 
effect on the expenditure of agency resources;
    (8) Whether disclosure otherwise would be inappropriate under the 
circumstances; and
    (9) Any other factor that is appropriate.
    (b) Among those demands in response to which compliance will not 
ordinarily be authorized are those with respect to which any of the 
following factors exists:
    (1) The disclosure would violate a statute, Executive order, or 
regulation;
    (2) The integrity of the administrative and deliberative processes 
of MCC Department would be compromised;

[[Page 35135]]

    (3) The disclosure would not be appropriate under the rules of 
procedure governing the case or matter in which the demand arose;
    (4) The disclosure, including release in camera, is not appropriate 
or necessary under the relevant substantive law concerning privilege;
    (5) The 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; or
    (6) The 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.


Sec.  1305.5  Service of demands.

    Demands for official documents, information or testimony must be in 
writing, and served on the General Counsel, Millennium Challenge 
Corporation, 1099 14th Street NW., Washington, DC 20005.


Sec.  1305.6  Processing demands.

    (a) After service of a demand to produce or disclose official 
documents and information, the General Counsel will review the demand 
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 produce official 
documents.
    (b) If information or material is sought by a demand in any case or 
matter in which MCC 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/her 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 MCC 
shall be limited to the scope of the demand.
    (c) When necessary, the General Counsel will coordinate with the 
Department of Justice to file appropriate motions, including motions to 
remove the matter to Federal court, to quash, or to obtain a protective 
order.
    (d) If a demand fails to follow the requirements of these 
regulations, MCC will not allow the testimony or produce the documents.
    (e) MCC will process demands in the order in which they are 
received. Absent unusual circumstances, MCC will respond within 45 days 
of the date that the demand was received. The time for response will 
depend upon the scope of the demand.
    (f) The General Counsel may grant a waiver of any procedure 
described by this subpart where a waiver is considered necessary to 
promote a significant interest of MCC or the United States or for other 
good cause.


Sec.  1305.7  Final determination.

    The General Counsel makes the final determination on demands to 
employees for production of official documents and information or 
testimony. All final determinations are within the sole discretion of 
the General Counsel. The General Counsel will notify the requester and 
the Court or other authority of the final determination, the reasons 
for the grant or denial of the demand, and any conditions that the 
General Counsel may impose on the release of documents, or on the 
testimony of an employee. When in doubt about the propriety of granting 
or denying a demand for testimony or documents, the General Counsel 
should consult with the Department of Justice.


Sec.  1305.8  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of MCC 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 
General Counsel may also require a copy of the transcript of testimony 
at the requester's expense.
    (b) MCC may offer the employee's declaration in lieu of testimony, 
in whatever form the court finds acceptable.
    (c) If authorized to testify pursuant to this part, an employee may 
testify to relevant unclassified materials or information within his or 
her personal knowledge, but, unless specifically authorized to do so by 
the General Counsel, the employee shall not:
    (1) Disclose confidential or privileged information; or
    (2) For a current MCC employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or the functions of MCC, unless testimony is being 
given on behalf of the United States.


Sec.  1305.9  Restrictions that apply to released documents.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official documents 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 the confidentiality 
agreement must be acceptable to the General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, MCC may condition the release of official documents and 
information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the General Counsel so determines, original MCC documents 
may be presented in response to a demand, but they are not to be 
presented as evidence or otherwise used in a manner by which they could 
lose their identity as official MCC documents nor are they to be marked 
or altered. In lieu of original records, certified copies will be 
presented for evidentiary purposes. (See 28 U.S.C. 1733).


Sec.  1305.10  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand is required before the General Counsel 
can make the determination referred to above, the General Counsel, when 
necessary, will provide the court or other competent authority with a 
copy of this part, inform the court or other competent authority that 
the demand is being reviewed, and respectfully seek a stay of the 
demand pending a final determination.


Sec.  1305.11  Procedure in the event of an adverse ruling.

    If the court or other competent authority declines to stay the 
demand in response to a request made in accordance with Sec.  1305.10, 
or if the court or other competent 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.  1305.12  No private right of action.

    This part is intended only to provide guidance for the internal 
operations of MCC, and is not intended to, and does not, and may not be 
relied upon, to create a right or benefit, substantive or

[[Page 35136]]

procedural, enforceable at law by a party against the United States.

    Dated: June 27, 2017.
Thomas G. Hohenthaner,
Vice President, General Counsel and Corporate Secretary (Acting), 
Millennium Challenge Corporation.
[FR Doc. 2017-13922 Filed 7-27-17; 8:45 am]
BILLING CODE 9211-03-P