[Federal Register Volume 83, Number 75 (Wednesday, April 18, 2018)]
[Rules and Regulations]
[Pages 17086-17088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07964]


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LEGAL SERVICES CORPORATION

45 CFR Part 1603


Requests for Documents and Testimony

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This final rule governs subpoenas and requests for LSC 
documents and testimony by non-federal litigants in cases in which LSC 
is not a party. This rule provides the public with guidance on where to 
send requests and establishes procedures by which those requests will 
be processed.

DATES: This final rule is effective on May 18, 2018.

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

SUPPLEMENTARY INFORMATION:

I. Background

    LSC proposed to create a new regulation, known as a Touhy 
regulation, that would establish a process by which litigants in cases 
where LSC is not a party could 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 was justified for four reasons. First, a Touhy 
regulation would 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 would minimize the 
possibility of involving LSC in controversies not related to its 
functions. Third, it would prevent the

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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 would 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. LSC published the notice of proposed rulemaking in 
the Federal Register on February 1, 2018, 83 FR 4827. The comment 
period remained open for thirty days and closed on March 5, 2018.
    On April 8, 2018, the Committee voted to recommend that the Board 
adopt this Final Rule and approve its publication in the Federal 
Register. On April 10, 2018, the Board accepted the Committee's 
recommendation and voted to adopt and approve publication of this final 
rule.
    Materials regarding this rulemaking are available in the open 
rulemaking section of LSC's website at http://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking. After the effective date of the 
rule, those materials will appear in the closed rulemaking section at 
http://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking/closed-rulemaking.

II. Discussion of the Final Rule

    LSC received no comments on the proposed rule. Consequently, LSC is 
adopting the text of the proposed rule published in the Federal 
Register at 83 FR 4827 with minor revisions. At the Operations and 
Regulations Committee meeting on April 8, 2018, the Committee 
recommended that LSC make two technical changes. The first was to 
include language in the definition of employee to make clear that this 
rule applies to non-Director members of Board committees. The second 
was to add language to Sec.  1603.4(a) clarifying that individuals 
seeking testimony from an employee of OIG must follow the procedures in 
Sec.  1603.4(b) for requesting testimony from the OIG Legal Counsel, 
rather than submitting the request to LSC's General Counsel. LSC 
Management concurred with the recommendations and revised the proposed 
final rule text accordingly.
    In a final rule published elsewhere in this issue of the Federal 
Register, LSC is removing the existing version of part 1603 pertaining 
to state advisory councils. LSC is replacing it with this regulation.

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 adds 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 and its Committees.
    (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 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

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his or her 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, except employees of OIG described in paragraph (b) 
of this section, 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) of this part 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: April 11, 2018.
Stefanie Davis,
Assistant General Counsel.
[FR Doc. 2018-07964 Filed 4-17-18; 8:45 am]
BILLING CODE 7050-01-P