[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)]
[Rules and Regulations]
[Pages 49747-49751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23388]


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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED

41 CFR Part 51-11

RIN 3037-AA04


Touhy Regulations

AGENCY: Committee for Purchase From People Who Are Blind or Severely 
Disabled.

ACTION: Final rule.

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SUMMARY: The Committee for Purchase From People Who Are Blind or 
Severely Disabled (Committee) has revised procedures to respond to 
subpoenas or other official demands for information and testimony 
served upon itself or its employees.

DATES: This rule is effective November 27, 2017

FOR FURTHER INFORMATION CONTACT: Timi Kenealy, (703) 603-2100, Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Committee, operating as the U.S. AbilityOne Commission, 
administers the AbilityOne Program pursuant to the authority of 41 
U.S.C. 8501. Through this program, employment opportunities are 
provided to people who are blind or severely disabled through the 
provisions of products and services to the Federal Government.
    Pursuant to 5 U.S.C. 301, the head of an Executive department or 
military department may prescribe regulations for the government of his 
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. The part does not authorize 
withholding information from the public or limiting the availability of 
records to the public.
    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 regulation governs the Committee's procedures for authorizing 
or denying such demands. In addition to the updates for the Touhy case, 
the Committee made technical corrections to include changes to the 
mailing address and changed ``JWOD'' to ``AbilityOne'' the operating 
name of the agency since 2010. Changes to this section of the CFR were 
last made in 1994. On July 18, 2017, the Committee published a proposed 
rule outlining these changes on https://www.federalregister.gov/. No 
comments were received and this rule is being finalized with no 
additional changes.

Regulatory Analysis

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule benefits the public and the United States 
Government by providing clear procedures for members of the public and 
Government employees to follow when official

[[Page 49748]]

testimony or official documents, records, files or information are 
sought from the Committee or from Committee personnel in connection 
with legal proceedings. This rule has not been designated a significant 
regulatory action.

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2016, that threshold is approximately $146 million. This rule will not 
mandate any requirements for State, local, or tribal governments, nor 
will it affect private sector costs.

Public Law 96-354, Regulatory Flexibility Act

    The Committee certifies this proposed rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. Ch. 6) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule will provide clarity to U.S. Government 
personnel and outside counsel on the proper rules and procedures to 
serve process on U.S. Government officials in their official capacity 
and to obtain official U.S. Government testimony or documents for use 
in legal proceedings. Therefore, the Regulatory Flexibility Act, as 
amended, does not require the Committee to prepare a regulatory 
flexibility analysis.

Executive Order 13132, Federalism

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This rule will not have a substantial effect on the 
States; the relationship between the National Government and the 
States; or the distribution of power and responsibilities among the 
various levels of Government.

Public Law 96-511, Paperwork Reduction Act

    It has been determined that this rule does not impose reporting or 
record keeping requirements under the Paperwork Reduction Act of 1995 
(44 U.S.C. Chapter 35).

List of Subjects in 41 CFR Part 51-11

    Administrative practices and procedures, Courts, Disclosure, 
Exemptions, Government employees, Subpoenas, Records, Testimony.


0
For the reasons set forth above, the Committee amends chapter 51 of 
title 41 by adding part 51-11 to read as follows:

PART 51-11--PRODUCTION OR DISCLOSURE IN FEDERAL AND STATE 
PROCEEDINGS

Sec.
51-11.1 Scope and purpose.
51-11.2 Applicability.
51-11.3 Definitions.
51-11.4 General prohibition.
51-11.5 Service of demand.
51-11.6 Filing requirements for demand for documents or testimony.
51-11.7 Factors the Committee will consider.
51-11.8 Processing demands or requests.
51-11.9 Final determination.
51-11.10 Restrictions that apply to testimony.
51-11.11 Restrictions that apply to released records.
51-11.12 Procedure when a decision is not made prior to the time a 
response is required.
51-11.13 Procedure in the event of an adverse ruling.
51-11.14 Fees.
51-11.15 Penalties.

    Authority:  41 U.S.C. 8503(d); 41 CFR Ch. 51.


Sec.  51-11.1   Scope and purpose.

    (a) This part sets forth policies and procedures of the Committee 
for Purchase From People Who Are Blind or Severely Disabled (Committee) 
regarding the testimony of current and former employees as witnesses 
and the production or disclosure of Committee documents or information:
    (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, when a demand pursuant to a subpoena, order or request 
(collectively referred to in this part as a ``demand'') of a court or 
other authority is issued for such material, testimony, or information.
    (b) The Committee intends these provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving the Committee in 
controversial issues not related to its functions;
    (3) Prevent the misuse of the Committee's employees as involuntary 
expert witnesses for private interests or as inappropriate expert 
witnesses as to the state of the law;
    (4) Maintain the Committee's impartiality among private litigants 
where neither the Committee nor any other Federal entity is a named 
party; and
    (5) Protect sensitive, confidential information and the 
deliberative processes of the Committee.
    (c) In providing for these requirements, the Committee does not 
waive the sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of the 
Committee. The procedures specified in this part, or the failure of any 
Committee employee to follow the procedures specified in this part, are 
not intended to, do 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.


Sec.  51-11.2   Applicability.

    This part applies to demands and requests to employees of the 
Committee in legal proceedings, for factual or expert testimony 
relating to official information or for production of official records 
or information. However, it does not apply to:
    (a) Demands for a current Committee 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 the Committee;
    (b) Demands for a former Committee employee to testify as to 
matters in which the former employee was not directly or materially 
involved while at the Committee;
    (c) Requests for the release of non-exempt records under the 
Freedom of Information Act, 5 U.S.C. 552 (41 CFR part 51-8), or the 
Privacy Act, 5 U.S.C. 552(a) (41 CFR part 51-9); and
    (d) Congressional or Government Accountability Office (GAO) demands 
and requests for testimony or records.


Sec.  51-11.3   Definitions.

    As used in this part:
    Committee means the Committee for Purchase From People Who Are 
Blind or Severely Disabled.
    Committee employee or employee means:
    (1) Any current or former officer or employee of the Committee;
    (2) Any other individual hired through contractual agreement by or 
on behalf of the Committee or who has performed or is performing 
services under such an agreement for the Committee; and
    (3) Any individual who served or is serving in any consulting or 
advisory

[[Page 49749]]

capacity to the Committee, whether formal or informal.
    (4) Provided, that this definition does not include persons who are 
no longer employed by the Committee and who are retained or hired as 
expert witnesses or who agree to testify about general matters 
available to the public, or matters with which they had no specific 
involvement or responsibility during their employment with the 
Committee.
    Demand means a subpoena, request, or an order or other command of a 
court or other competent authority, for the production, disclosure, or 
release of records or information related to, for the appearance and 
testimony of a Committee employee that is issued in a legal proceeding.
    General Counsel means Committee General Counsel or Committee 
employee to whom the General Counsel has delegated authority to act 
under this part.
    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 discovery, 
litigation and informal requests by attorneys or others involved in 
legal proceedings seeking interviews or the like.
    Records or official records and information mean all documents and 
materials, however stored, that is in the custody and control of the 
Committee, relating to information in the custody and control of the 
Committee, or acquired by a Committee employee in the performance of 
his or her official duties or because of his or her official status, 
while such individual was employed.
    Request means any informal request, by whatever method, for the 
production of records and information or for testimony which 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.


Sec.  51-11.4   General prohibition.

    (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 Committee 
shall, in response to a demand, produce any record contained in the 
files of the Committee, or disclose any information relating to or 
based upon record contained in the files of the Department, or disclose 
any information or produce any record acquired as part of the 
performance of that person's official duties or because of that 
person's official status without prior written approval of the General 
Counsel in accordance with Sec.  51-11.9.
    (1) Whenever a demand is made upon an employee or former employee 
as described in this paragraph (a), the employee shall immediately 
notify the General Counsel. The General Counsel shall follow procedures 
set forth in Sec.  51-11.8.
    (2) 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 General Counsel. 
Any authorization for testimony by a present or former employee of the 
Committee shall be limited to the scope of the demand as summarized in 
such statement.
    (3) When information other than oral testimony is sought by a 
demand, the General Counsel shall request a summary of the information 
sought and its relevance to the proceeding.
    (b) In any Federal or State case or matter in which the United 
States is a party, the General Counsel is authorized to reveal and 
furnish to any person, including an actual or prospective witness, a 
grand jury, counsel, or a court, either during or preparatory to a 
proceeding, such testimony, and relevant unclassified material, 
documents, or information secured by the employee or former employee of 
the Committee, as the General Counsel shall deem necessary or desirable 
to the discharge of the attorney's official duties: Provided, Such an 
attorney shall consider, with respect to any disclosure, the factors 
set forth in Sec.  51-11.7.
    (1) If oral testimony is sought by a demand in a case or matter in 
which the United States is a party, an affidavit, or, if that is not 
feasible, a statement by the party seeking the testimony or by the 
party's attorney setting forth a summary of the testimony sought must 
be furnished to the agency attorney handling the case or matter.
    (2) [Reserved]
    (c) In appropriate cases, the General Counsel shall notify the 
United States Department of Justice (DOJ) of the demand and coordinate 
with the DOJ to file any appropriate motions or other pleadings.


Sec.  51-11.5  Service of demand.

    (a) Written demands directed to the Committee or requests for 
official records, information or testimony shall be served in 
accordance with the requirements of the Federal Rules of Civil or 
Criminal Procedure, or applicable State procedures, as appropriate. If 
the demand is served by U.S. mail, it should be addressed to the 
General Counsel, Committee for Purchase From People Who Are Blind or 
Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, VA 
22202. The Committee's acceptance of service of a demand shall not 
constitute an admission or waiver of any objection with respect to the 
propriety of jurisdiction, service of process, venue or any other 
defense in law or equity available under applicable law.
    (b) If any doubt exists, whether a demand relates to purely 
personal matters or arises out of the performance of official duties, 
copies of the demand may be delivered to the General Counsel for such 
determination.


Sec.  51-11.6   Filing requirements for demands for documents or 
testimony.

    Compliance with the following requirements is required when issuing 
demands or requests for official records, information or testimony.
    (a) Requests must be in writing and must be submitted to the 
General Counsel. If a subpoena is served on the Committee or a 
Committee employee before submitting a written request and receiving a 
final determination, the Committee will object to the subpoena on 
grounds that it was not submitted in accordance with this part.
    (b) Written requests 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 necessary 
to show the relevance of the information sought;
    (3) 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 the Committee 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 a Committee employee, such as a 
retained expert;

[[Page 49750]]

    (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 Committee employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance at the 
legal proceeding.
    (c) The Committee reserves the right to require additional 
information to complete any request where appropriate.
    (d) Requests should be submitted at least 45 calendar days before 
the date that records or testimony is required. Requests submitted in 
less than 45 calendar days before records or testimony is 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 General 
Counsel to make an informed decision may serve as the basis for a 
determination not to comply with the request.


Sec.  51-11.7  Factors the Committee will consider.

    The General Counsel in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to an appropriate demand or request. Among the relevant factors that 
the General Counsel may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) The Committee has an interest in the decision that may be 
rendered in the legal proceeding;
    (d) Allowing such testimony or production of records would assist 
or hinder the Committee in performing its statutory duties or use the 
Committee resources in a way that will interfere with the ability of 
the Committee employees to do their regular work;
    (e) Allowing such testimony or production of records would be in 
the best interest of the Committee or the United States;
    (f) The records or testimony can be obtained from other sources;
    (g) 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;
    (h) Disclosure would violate a statute, Executive order or 
regulation;
    (i) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, otherwise protected information, or would 
otherwise be inappropriate for release;
    (j) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceedings, or compromise constitutional 
rights;
    (k) Disclosure would result in the Committee appearing to favor one 
private litigant over another private litigant;
    (l) Disclosure relates to documents that originate from another 
agency;
    (m) A substantial Government interest is implicated;
    (n) The demand or request is within the authority of the party 
making it;
    (o) The demand improperly seeks to compel a Committee employee to 
serve as an expert witness for a private interest;
    (p) The demand improperly seeks to compel a Committee employee to 
testify as to a matter of law; and/or
    (q) The demand or request is sufficiently specific to be answered.


Sec.  51-11.8  Processing demands or requests.

    (a) After service of a demand or request, the General Counsel will 
review the demand or request and, in accordance with the provisions of 
this part, determine whether, or under what conditions, to authorize an 
employee to testify on matters relating to Committee records and/or 
produce records.
    (b) The Committee will process requests in the order in which they 
are received. Absent exigent or unusual circumstances, the Committee 
will respond within 45 calendar days from the date of receipt. The time 
for response will depend upon the scope of the request.
    (c) The General Counsel may grant a waiver of any procedure 
described by this part where a waiver is considered necessary to 
promote a significant interest of the Committee or the United States or 
for other good cause.


Sec.  51-11.9  Final determination.

    The General Counsel makes the final determination on demands and 
requests for production of official records 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 or request, and any conditions 
that the General Counsel may impose on the release of records or 
information, or on the testimony of a Committee employee.


Sec.  51-11.10   Restrictions that apply to testimony.

    (a) Conditions or restrictions may be imposed on the testimony of 
the Committee employees including, for example, limiting the areas of 
testimony or requiring the requester and other parties to the legal 
proceeding to agree that they will seek to file the transcript of the 
testimony under seal and that it will be used or made available only in 
the particular legal proceeding for which testimony was requested. The 
General Counsel may also require a copy of the transcript or testimony 
be provided to the Committee at the requester's expense.
    (b) The Committee 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 General Counsel, the employee 
shall not:
    (1) Disclose confidential or privileged information;
    (2) Testify as to any information outside the scope of the General 
Counsel's authorization (see Sec.  51-11.7); or
    (3) For a current Committee 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 the Committee unless testimony is 
being given on behalf of the United States whether or not the United 
States is a party.


Sec.  51-11.11  Restrictions that apply to released records.

    (a) The General 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 General Counsel. In cases where 
protective orders or confidentiality agreements

[[Page 49751]]

have already been executed, the Committee may condition the release of 
official records and information on an amendment to the existing 
protective order or confidentiality agreement.
    (b) If the General Counsel so determines, original Committee 
records may be presented for examination in response to a demand or 
request, but they are not to be presented as evidence or otherwise used 
in a manner by which they could lose their identity as official 
Committee records, and they are not to be marked or altered. In lieu of 
the original records, certified copies will be presented for 
evidentiary purposes.


Sec.  51-11.12  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination previously referred to, 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 or request is being reviewed, and seek a stay 
of the demand or request pending a final determination.


Sec.  51-11.13   Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay the demand, 
the employee upon whom the demand or request is made, unless otherwise 
advised by the General Counsel, will appear at the stated time and 
place, produce a copy of this part, state that the employee has not 
been authorized to provide the requested testimony or produce 
documents, and respectfully decline to comply with the demand, citing 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). A written 
response may be offered to a request, or to a demand, if permitted by 
the court or other competent authority.


Sec.  51-11.14   Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs to the Committee.
    (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 the Committee in its Freedom of Information Act 
regulations at 41 CFR part 51-8.
    (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, travel time and expenses, and for 
attendance in the legal proceeding.
    (d) Payment of fees. Witness fees for current Committee employees 
and any records certification fees shall be paid by check or money 
order presented to the Committee made payable to the United States 
Department of Treasury. Applicable fees for former Committee employees' 
testimony must be paid directly to the former employee in accordance 
with 28 U.S.C. 1821 or other applicable statutes.
    (e) Certification (authentication) of copies of records. The 
Committee Records Manager may certify that records are true copies in 
order to facilitate their use as evidence. Certification requests 
require 45 calendar days for processing and a fee of $15.00 for each 
document certified.
    (f) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (g) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.


Sec.  51-11.15   Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by the Committee, or as ordered by a Federal court after the 
Committee has had the opportunity to be heard, may face the penalties 
provided in 18 U.S.C. 641 and other applicable laws. Additionally, 
former Committee employees are subject to the restrictions and 
penalties of 18 U.S.C. 207 and 216.
    (b) A current Committee employee who testifies or produces official 
records and information in violation of this part may be subject to 
disciplinary action.

Patricia Briscoe,
Deputy Director, Business Operations (Pricing and Information 
Management).
[FR Doc. 2017-23388 Filed 10-26-17; 8:45 am]
 BILLING CODE 6353-01-P