[Federal Register Volume 85, Number 205 (Thursday, October 22, 2020)]
[Rules and Regulations]
[Pages 67265-67267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22330]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
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  Federal Register / Vol. 85, No. 205 / Thursday, October 22, 2020 / 
Rules and Regulations  

[[Page 67265]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1631


Availability of Records

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Direct final rule.

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SUMMARY: The Federal Retirement Thrift Investment Board (FRTIB) is 
amending its regulations to update the procedures by which it makes its 
employees and records available in response to subpoenas in legal 
proceedings in which the FRTIB is not a party.

DATES: This rule is effective without further action on December 1, 
2020, unless significant adverse comment is received by November 23, 
2020. If significant adverse comment is received, the FRTIB will 
publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: You may submit comments using one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Office of General Counsel, Attn: Dharmesh Vashee, 
Federal Retirement Thrift Investment Board, 77 K Street NE, Suite 1000, 
Washington, DC 20002.
     Facsimile: Comments may be submitted by facsimile at (202) 
942-1676.
    Since March 23, 2020, the FRTIB has been operating in mandatory 
telework status due to the coronavirus pandemic, which has limited the 
ability to timely monitor mail and facsimiles. Therefore, we strongly 
encourage using the Federal Rulemaking Portal to submit comments.

FOR FURTHER INFORMATION CONTACT: Laurissa Stokes at (202) 942-1645.

SUPPLEMENTARY INFORMATION: The FRTIB administers the Thrift Savings 
Plan (TSP), which was established by the Federal Employees' Retirement 
System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP 
provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 
and 8401-79. The TSP is a tax-deferred retirement savings plan for 
Federal civilian employees and members of the uniformed services. The 
TSP is similar to cash or deferred arrangements established for 
private-sector employees under section 401(k) of the Internal Revenue 
Code (26 U.S.C. 401(k)).

Background

    Federal agencies often receive formal demands (such as subpoenas) 
or informal requests to produce records, information, or testimony in 
judicial, legislative, or administrative proceedings in which those 
agencies are not a named party. Responding to these demands or requests 
may disrupt agency employees' work schedules significantly, may involve 
the agency in issues unrelated to its statutory mission, and may divert 
agency resources from accomplishing its mission-critical functions. 
Consequently, many Federal agencies have issued regulations to 
efficiently address the submission, evaluation, and processing of these 
demands or requests.
    The United States Supreme Court upheld these types of regulations 
in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (holding 
that provisions in the federal ``housekeeping'' statute, 5 U.S.C. 301, 
authorize agencies to promulgate rules governing record production and 
employee testimony). These types of regulations, which are often 
referred to as Touhy regulations, help ensure efficient use of Federal 
agency resources, minimize the possibility of involving an agency in 
issues unrelated to its mission, promote uniformity in responding to 
demands or requests, and maintain the impartiality of Federal agencies 
in matters that are in dispute between private parties.
    The FRTIB's Touhy regulation, currently codified at 5 CFR part 
1631, subpart B, was originally published in 52 FR 92 (May 13, 1987). 
The FRTIB has amended subpart B only once since 1987. Specifically, in 
2007, the FRTIB added a section that describes the method by which the 
FRTIB authenticates copies of its records for use as evidence in legal 
proceedings. See 72 FR 181 (September 19, 2007).
    This final rule amends the FRTIB'S existing Touhy regulation to 
clarify that it applies only when the FRTIB (or the FRTIB employee to 
whom a demand or request is directed) is not a party to the legal 
proceeding. This final rule also (1) delegates authority from the 
Executive Director to the General Counsel to allow testimony or 
production of records, (2) adds a list of factors that the General 
Counsel will consider when deciding whether to allow testimony or 
production of records, (3) adds filing requirements for demands or 
requests for testimony, and (4) adds a provision for charging fees and 
expenses that the FRTIB incurs by responding to demands or requests for 
production or testimony.

Direct Final Rulemaking

    The FRTIB is publishing this regulation as a direct final rule. In 
a direct final rulemaking, an agency publishes its rule in the Federal 
Register along with a statement that the rule will become effective 
unless the agency receives significant adverse comment within a 
specified period.
    The content of this direct final rule pertains to internal agency 
procedures rather than substantive rights or obligations. It does not 
create a right to obtain official records or the official testimony of 
an FRTIB employee, nor does it create any additional right or privilege 
not already available to FRTIB to deny any demand or request for 
testimony or documents. Therefore, pursuant to 5 U.S.C. 553, notice and 
comment are not required, and this rule may become effective after 
publication in the Federal Register without public comment.
    Nevertheless, the FRTIB appreciates that members of the public may 
have perspectives or information that could impact the FRTIB's views 
with respect to its internal procedures. The FRTIB, therefore, is 
providing a 30-day public comment period, and intends to consider all 
comments submitted during that period. The FRTIB will withdraw the rule 
if it receives significant adverse comment. Comments that are not 
adverse may be considered for modifications to part 1631 at a future 
date. If no significant adverse comment is received, the rule will 
become effective 40 days after publication, without additional notice.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities.

[[Page 67266]]

This regulation will affect Federal employees and members of the 
uniformed services who participate in the Thrift Savings Plan, which is 
a Federal defined contribution retirement savings plan created under 
the Federal Employees' Retirement System Act of 1986 (FERSA), Public 
Law 99-335, 100 Stat. 514, and which is administered by the FRTIB.

Paperwork Reduction Act

    I certify that these regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 
632, 653, 1501-1571, the effects of this regulation on state, local, 
and tribal governments and the private sector have been assessed. This 
regulation will not compel the expenditure in any one year of $100 
million or more by state, local, and tribal governments, in the 
aggregate, or by the private sector. Therefore, a statement under 
section 1532 is not required.

Submission to Congress and the General Accounting Office

    Pursuant to 5 U.S.C. 810(a)(1)(A), the FRTIB submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States before publication of this rule in the Federal Register. 
This rule is not a major rule as defined at 5 U.S.C. 804(2).

List of Subjects in 5 CFR Part 1631

    Courts, Freedom of information, Government employees.

Ravindra Deo,
Executive Director, Federal Retirement Thrift Investment Board.

    For the reasons stated in the preamble, the FRTIB revises 5 CFR 
part 1631, subpart B, to read as follows:

PART 1631--AVAILABILITY OF RECORDS

Subpart B--Production in Response to Subpoenas or Demands of Courts 
or Other Authorities

Sec.
1631.30 Applicability.
1631.31 Definitions.
1631.32 General prohibition.
1631.33 Factors the General Counsel will consider.
1631.34 Filing requirements for demands or requests for testimony.
1631.35 Certification (authentication) of copies of records.
1631.36 Fees.

    Authority:  5 U.S.C. 301, 522, and 8474(b).


Sec.  1631.30   Applicability.

    This subpart applies to demands and requests to a Board employee 
for factual or expert testimony relating to official information, or 
for production of official records or information, in legal proceedings 
in which neither the Board or nor the Board employee is a named party. 
However, it does not apply to:
    (a) Demands upon, or requests for, a current Board 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 Board;
    (b) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552(a); and
    (c) Congressional demands and requests for testimony of records.


Sec.  1631.31   Definitions.

    Demand means a subpoena, or an order or other command of a court or 
other competent authority, for the production, disclosure, or release 
of records or for the appearance and testimony of a Board employee that 
is issued in a legal proceeding.
    General Counsel means the General Counsel of the Board or his or 
her delegatee.
    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 litigation.
    Board employee or employee means:
    (1) Any current or former officer or employee of the Board;
    (2) Any other individual hired through contractual agreement by or 
on behalf of the Board or who has performed or is performing services 
under such an agreement for the Board; and
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to the Board, whether formal or informal.
    (4) Provided, that this definition does not include persons who are 
no longer employed by the Board 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 Board.
    Records or official records and information mean:
    (1) All documents and materials which are Board records under the 
Freedom of Information Act, 5 U.S.C. 552;
    (2) All other documents and materials contained in Board files; and
    (3) All other information or materials acquired by a Board 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, 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.  1631.32   General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the General Counsel.


Sec.  1631.33   Factors the General Counsel will consider.

    (a) 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:
    (1) Allowing such testimony or production of records would assist 
or hinder the Board in performing its statutory duties or use Board 
resources in a way that will interfere with the ability of Board 
employees to do their regular work;
    (2) Allowing such testimony or production of records would be in 
the best interest of Thrift Savings Plan participants and 
beneficiaries;
    (3) The records or testimony can be obtained from other sources;
    (4) The Board has an interest in the decision that may be rendered 
in the legal proceeding;
    (5) The demand improperly seeks to compel a Board employee to serve 
as an expert witness for a private interest;
    (6) The demand improperly seeks to compel a Board employee to 
testify as to a matter of law;
    (7) Disclosure would result in the Board appearing to favor one 
private litigant over another private litigant;
    (8) Disclosure relates to documents that were produced by another 
government agency; and
    (9) The demand or request is unduly burdensome or otherwise 
inappropriate

[[Page 67267]]

under the applicable rules of discovery or the rules of procedure 
governing the case or matter in which the demand or request arose.
    (b) The factors listed in paragraph (a) of this section are 
illustrative and not exhaustive.


Sec.  1631.34   Filing requirements for demands or requests for 
testimony.

    You must comply with the following requirements whenever you send a 
demand or request for testimony to the Board or a Board employee. If 
you serve a subpoena on the Board or a Board employee that is not 
accompanied by a written request that complies with the requirements in 
this section, the General Counsel may oppose the subpoena on grounds 
that your request was not submitted in accordance with this subpart.
    (a) Your request must be in writing and 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 relevance;
    (3) A specific description of the substance of the testimony 
sought;
    (4) 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 Board employee, such as a 
retained expert;
    (5) An explanation as to why no document could be provided and used 
in lieu of testimony;
    (6) If oral testimony is sought, an explanation as to why a written 
declaration or affidavit cannot be used in lieu of oral testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
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 Board employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (b) The Board reserves the right to require additional information 
to complete your request where appropriate.
    (c) Your request should be submitted at least 45 days before the 
date that the testimony is required. Requests submitted in less than 45 
days before testimony is required must be accompanied by a written 
explanation stating the reasons for the late request and the reasons 
for requesting expedited processing.
    (d) 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 your request.


Sec.  1631.35   Certification (authentication) of copies of records.

    The Board may certify that copies of records are true copies in 
order to facilitate their use as evidence. The records custodian or 
other qualified individual shall certify copies of books, records, 
papers, writings, and documents by attaching a written declaration that 
complies with current Federal Rules of Evidence. No seal or 
notarization shall be required.


Sec.  1631.36   Fees.

    (a) Generally. The Board may condition the production, disclosure, 
or release of records or the appearance and testimony of a Board 
employee upon advance payment of a reasonable estimate of the costs to 
the Board.
    (b) Fees for records. Fees for the production, disclosure, or 
release of records are the same as those charged by the Board in its 
Freedom of Information Act regulations in subpart A of this part.
    (c) Fees for oral testimony. 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, in travel, and for 
attendance in the legal proceeding.
    (d) Fees for written testimony. For time spent by each employee 
preparing affidavits or declarations (including declarations to 
authenticate records), the Board may assess charges at the rate 
described in Sec.  1631.14(a).

[FR Doc. 2020-22330 Filed 10-21-20; 8:45 am]
BILLING CODE 6760-01-P