[Federal Register Volume 83, Number 22 (Thursday, February 1, 2018)]
[Proposed Rules]
[Pages 4827-4829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01731]


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LEGAL SERVICES CORPORATION

45 CFR Part 1603


Requests for Documents and Testimony

AGENCY: Legal Services Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Legal Services Corporation (LSC) proposes to create a rule 
governing subpoenas and requests for LSC documents and testimony by 
non-federal litigants in cases in which LSC is not a party. Currently, 
LSC has no internal or external procedures in place to process such 
requests. This rule provides the public with guidance on where to send 
requests and establishes procedures by which those requests will be 
processed.

DATES: Comments must be received by March 5, 2018.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking Portal: Follow the instructions for 
submitting comments.
     Email: [email protected]. Include ``Touhy Rulemaking'' 
in the subject line of the message.
     Fax: (202) 337-6519.
     Mail: Stefanie K. Davis, Assistant General Counsel, Legal 
Services Corporation, 3333 K Street NW, Washington, DC 20007, ATTN: 
Touhy Rulemaking.
     Hand Delivery/Courier: Stefanie K. Davis, Assistant 
General Counsel, Legal Services Corporation, 3333 K Street NW, 
Washington, DC 20007, ATTN: Touhy Rulemaking.
     Instructions: LSC prefers electronic submissions via email 
with attachments in Acrobat PDF format. LSC will not consider written 
comments sent to any other address or received after the end of the 
comment period.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, 202-295-1563, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    LSC proposes to create a new regulation, known as a Touhy 
regulation, that will establish a process by which litigants in cases 
where LSC is not a party may obtain documents or testimony from LSC and 
its employees. Arising from the Supreme Court's decision in U.S. ex rel 
Touhy v. Ragen, 340 U.S. 462 (1951), Touhy regulations define agencies' 
procedures for responding to document or testimony requests, as well as 
individual agency employees' obligation to follow such procedures.
    Between 2013 and 2017, LSC and its Office of the Inspector General 
(OIG) received several subpoenas and requests for testimony or 
documents, but did not have internal or external guidance in place 
regarding such requests. At the OIG's recommendation, LSC added 
rulemaking on requests for documents and testimony to its rulemaking 
agenda in 2015. On October 15, 2017, the Operations and Regulations 
Committee (Committee) of LSC's Board of Directors (Board) voted to 
recommend that the Board authorize rulemaking on part 1603. On October 
17, 2017, the Board authorized LSC to begin rulemaking.
    Regulatory action is justified for four reasons. First, a Touhy 
regulation will promote efficiency and timeliness by identifying those 
LSC officials with the authority to respond to requests or subpoenas 
for documents or testimony and establishing a procedure for LSC's 
consideration of such requests. Second, it will minimize the 
possibility of involving LSC in controversies not related to its 
functions. Third, it will prevent the misuse of LSC's employees as 
involuntary expert witnesses for private interests or as inappropriate 
expert witnesses as to the state of the law. Fourth, it will maintain 
LSC's impartiality toward private litigants.
    On January 21, 2018, the Committee voted to recommend that the 
Board approve this notice of proposed rulemaking (NPRM) for 
publication. On January 23, 2018, the Board accepted the Committee's 
recommendation and voted to approve publication of this NPRM with a 30-
day comment period.

II. Discussion of Proposed Rule

    In an NPRM published elsewhere in this issue of the Federal 
Register, LSC proposes to remove the existing version of part 1603 
pertaining to state advisory councils. In its place, LSC proposes to 
add this regulation.

1603.1 Scope, Purpose, and Applicability

    LSC proposes to prescribe which proceedings and employees will be 
governed by the rule. All LSC employees, including former employees, 
members of the Board of Directors, and employees of the OIG, are 
governed by this rule concerning information acquired during the 
performance of official duties or because of such person's official 
capacity with LSC. This rule applies to all non-federal litigants in 
civil, criminal, or administrative proceedings to which LSC is not a 
party.
    Congress created LSC through the Legal Services Corporation Act, 42 
U.S.C. 2996 et seq. and appropriates funds for LSC annually. See, e.g., 
Consolidated Appropriations Act, 2017, Public Law 115-31, 131 Stat. 135 
(2017). These funds are appropriated for LSC to fulfill its 
congressionally-mandated mission. Therefore, it is appropriate to 
mirror traditional federal entities in creating LSC's Touhy regulation.

1603.2 Definitions

    LSC proposes to define the following terms.
    Certify: LSC proposes to define this term to mean that it will 
authenticate copies of any document produced by affixing its seal to 
the document.
    Employee: LSC proposes to define this term to include current and 
former employees of LSC and the OIG, as well as members of its Board of 
Directors.
    LSC: Consistent with the Sec.  1602.2 definition, LSC refers to 
both the Legal Services Corporation and the LSC Office of the Inspector 
General, unless otherwise specified.
    Testify and testimony: LSC proposes to define these terms to mean 
written or oral statements made under oath before any tribunal or 
official body.

1603.3 What is LSC's policy on presentation of testimony and production 
of documents?

    LSC proposes to prohibit current and former employees from 
providing documents or testimony in response to requests covered by 
this rule without prior authorization from the General Counsel or OIG 
Legal Counsel.

1603.4 How does a person request voluntary testimony from an employee?

    LSC proposes to require parties to submit requests for testimony 
from LSC employees to its General Counsel as

[[Page 4828]]

LSC's chief legal officer. LSC proposes to direct parties to submit 
requests for OIG employees' testimony to the OIG Legal Counsel.
    Requests must state the nature of the requested testimony, why the 
information sought is unavailable by any other means, and the reasons 
why providing the testimony would further LSC's interests. This 
information will assist the General Counsel and the OIG Legal Counsel 
in their decision making.

1603.5 How will LSC respond to a request for expert testimony from an 
employee?

    LSC proposes to prohibit its employees from serving as expert 
witnesses without authorization from the General Counsel or OIG Legal 
Counsel, as appropriate. This section prevents public resources from 
being used for private litigation. Even if employees and LSC are 
compensated, time spent preparing and delivering testimony is time 
diverted from support of LSC's mission.

1603.6 How will LSC respond to a subpoena for documents?

    LSC proposes procedures for its employees to follow if they are 
personally served with subpoenas requesting information acquired in the 
course of performing official duties or because of their official 
capacity. This provision has the dual benefits of providing guidance 
for subpoenaed employees and instructing members of the public how to 
request the information they seek.
    Consistent with Federal agencies' Touhy regulations, LSC proposes 
to treat legally insufficient subpoenas as FOIA requests. Thus, LSC may 
work toward honoring the spirit of the subpoena without violating its 
obligations and privileges. Furthermore, LSC's interests in remaining 
transparent and in conserving the public's trust are best served by 
providing public information when requested. LSC also proposes to 
direct employees to appear before the court and state that they cannot, 
consistent with these rules, provide the required documents when the 
General Counsel or OIG Legal Counsel has not made a decision about the 
legal sufficiency of a subpoena by the date on which an LSC or OIG 
employee is commanded to appear. Without this provision, such 
individuals would be faced with violating a court order or violating 
LSC rules and policies when responding to a subpoena. LSC proposes that 
the General Counsel or OIG Legal Counsel may determine that responding 
to the subpoena is not appropriate and direct an employee not to 
respond. Examples of when responding may be inappropriate include 
instances where the subpoena was not validly issued or served, where 
the subpoena has been withdrawn, or where discovery has been stayed.

1603.7 When will LSC certify the authenticity of records?

    LSC proposes to certify, upon request, the authenticity of records 
to be disclosed. Such a service does not generally use significant 
resources.

1603.8 Does this part give individuals any rights?

    LSC proposes this section to make clear that no private rights 
arise from this rule.

List of Subjects in 45 CFR Part 1603

    Administrative practice and procedure; Archives and records; 
Courts.

0
For the reasons discussed in the preamble, the Legal Services 
Corporation proposes to add 45 CFR part 1603 to read as follows:

PART 1603--TESTIMONY BY EMPLOYEES AND PRODUCTION OF DOCUMENTS IN 
PROCEEDINGS WHERE THE UNITED STATES IS NOT A PARTY

Sec.
1603.1 Scope, purpose, and applicability.
1603.2 Definitions.
1603.3 What is LSC's policy on presentation of testimony and 
production of documents?
1603.4 How does a person request voluntary testimony from an 
employee?
1603.5 How will LSC respond to a request for expert testimony from 
an employee?
1603.6 How will LSC respond to a subpoena for documents?
1603.7 When will LSC certify the authenticity of records?
1603.8 Does this part give individuals any rights?

    Authority: 42 U.S.C. 2996g(e).


Sec.  1603.1  Scope, purpose, and applicability.

    (a) This part sets forth rules to be followed when a litigant 
requests an employee of the Legal Services Corporation (LSC), including 
LSC's Office of the Inspector General (OIG), to provide testimony in a 
deposition, trial, or other similar proceeding concerning information 
acquired in the course of performing official duties or because of such 
person's official capacity with LSC. This part also sets forth 
procedures for the handling of subpoenas for documents and other 
requests for documents in the possession of LSC or the OIG, and for the 
processing of requests for certification of copies of documents.
    (b) It is LSC's policy to provide information, data, and records to 
non-federal litigants to the same extent and in the same manner that 
they are made available to the public. When subject to the jurisdiction 
of a court or other tribunal presiding over litigation between non-
federal parties, LSC will follow all applicable procedural and 
substantive rules relating to the production of information, data, and 
records by a non-party. The availability of LSC employees to testify in 
litigation not involving federal parties is governed by LSC's policy to 
maintain strict impartiality with respect to private litigants and to 
minimize the disruption of official duties.
    (c) This part applies to state, local, and tribal judicial, 
administrative, and legislative proceedings, and to federal judicial 
and administrative proceedings.
    (d) This part does not apply to:
    (1) Any civil or criminal proceedings to which LSC is a party.
    (2) Congressional requests or subpoenas for testimony or documents.
    (3) Consultative services and technical assistance provided by LSC 
in carrying out its normal program activities.
    (4) Employees serving as expert witnesses in connection with 
professional and consultative services as approved outside activities. 
In cases where employees are providing such outside services, they must 
state for the record that the testimony represents their own views and 
does not necessarily represent the official position of LSC.
    (5) Employees making appearances in their private capacity in legal 
or administrative proceedings that do not relate to LSC, such as cases 
arising out of traffic accidents, crimes, domestic relations, etc., and 
not involving professional and consultative services.
    (6) Any civil or criminal proceedings in State court brought on 
behalf of LSC.
    (7) Any criminal proceeding brought as a result of a referral for 
prosecution by the OIG or by any other Inspector General in connection 
with a case worked jointly with the OIG.


Sec.  1603.2   Definitions.

    (a) Certify means to authenticate official LSC documents.
    (b) Employee means current and former LSC employees, including 
temporary employees, OIG employees, and members of the Board of 
Directors.
    (c) LSC means the Legal Services Corporation. Unless explicitly 
stated otherwise, LSC includes the OIG.
    (d) Testify and testimony include in-person, oral statements before 
a court, legislative or administrative body and

[[Page 4829]]

statements made pursuant to depositions, interrogatories, declarations, 
affidavits, or other formal participation.


Sec.  1603.3   What is LSC's policy on presentation of testimony and 
production of documents?

    In any proceedings to which this part applies, no employee may 
provide testimony or produce documents concerning information acquired 
in the course of performing official duties or because of the person's 
official relationship with LSC unless authorized by the General Counsel 
or the OIG Legal Counsel pursuant to this part based on his 
determination that compliance with the request would promote LSC's 
objectives.


Sec.  1603.4   How does a person request voluntary testimony from an 
employee?

    (a) All requests for testimony by an employee in his or her 
official capacity and not subject to the exceptions set forth in Sec.  
1603.1(d) of this part must be in writing and addressed to the General 
Counsel.
    (b) All requests for testimony by an employee of the OIG must be in 
writing and addressed to the OIG Legal Counsel.
    (c) Requests must state the nature of the requested testimony, why 
the information sought is unavailable by any other means, and the 
reasons why the testimony would be in the interest of LSC.


Sec.  1603.5   How will LSC respond to a request for expert testimony 
from an employee?

    No employee shall serve as an expert witness in any proceeding 
described in Sec.  1603.1(c) or before a court or agency of the United 
States unless the General Counsel or the OIG Legal Counsel authorizes 
the employee's participation.


Sec.  1603.6   How will LSC respond to a subpoena for documents?

    (a) Whenever a subpoena commanding the production of any LSC record 
has been served upon an employee, the employee shall refer the subpoena 
to the General Counsel or the OIG Legal Counsel, as appropriate. The 
General Counsel or the OIG Legal Counsel shall determine whether the 
subpoena is legally sufficient, whether the subpoena was properly 
served, and whether the issuing court or other tribunal has 
jurisdiction over LSC. If the General Counsel or the OIG Legal Counsel 
determines that the subpoena satisfies all three factors, LSC shall 
comply with the terms of the subpoena unless LSC takes affirmative 
action to modify or quash the subpoena in accordance with Fed. R. Civ. 
P. 45 (c).
    (b) If a subpoena commanding the production of any record served 
upon an employee is determined by the General Counsel or the OIG Legal 
Counsel to be legally insufficient, improperly served, or from a 
tribunal not having jurisdiction, LSC shall deem the subpoena a request 
for records under the Freedom of Information Act. LSC shall handle the 
subpoena pursuant to the rules governing public disclosure established 
in 45 CFR part 1602.
    (c) If the General Counsel or the OIG Legal Counsel denies approval 
to comply with a subpoena for testimony or has not acted by the return 
date, the employee will be directed to appear at the stated time and 
place, unless advised by the General Counsel or the OIG Legal Counsel 
that responding to the subpoena would be inappropriate. The employee 
will be directed to produce a copy of these regulations and 
respectfully decline to testify or produce any documents on the basis 
of these regulations.


Sec.  1603.7   When will LSC certify the authenticity of records?

    Upon request, LSC will certify the authenticity of copies of 
records that are to be disclosed. The requesting party will be 
responsible for reasonable fees for copying and certification.


Sec.  1603.8   Does this part give individuals any rights?

    This part is intended only to provide a process for receipt and 
processing of private litigants' requests for LSC documents and 
testimony. It does not, and may not be relied upon, to create a right 
or benefit, substantive or procedural, enforceable at law by a party 
against LSC.

    Dated: January 25, 2018.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2018-01731 Filed 1-31-18; 8:45 am]
 BILLING CODE 7050-01-P