[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Proposed Rules]
[Pages 53249-53255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20651]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 15

[Docket No. 210915-0188]
RIN 0605-AA52


Department of Commerce Regulations on Procedures for Responding 
to Requests for Documents or Testimony for Use in Legal Proceedings

AGENCY: Office of the Secretary, Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would revise the Department of Commerce's 
(Commerce) regulations, known as ``Touhy regulations,'' that set forth 
the procedures for responding to requests for documents or testimony 
for use in legal proceedings. The Department intends these revisions to 
provide greater clarity to entities seeking documents or testimony from 
current or former Department employees. Specifically, these revisions 
would clarify, update, and streamline the language of several 
provisions, provide greater transparency regarding the factors that the 
agency will consider when reviewing such requests, and more directly 
address issues that frequently arise in requests for documents or 
testimony based on the facts of the request, such as whether the 
testimony requested is that of a former employee, whether the United 
States is a party to the underlying legal proceedings, or whether the 
testimony or documents are requested from the Office of the Inspector 
General.

DATES: Written comments must be received on or before October 27, 2021.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 0605-AA52, by either of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include the RIN 0605-AA52 in the 
subject line.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. Electronic comments may 
be submitted via www.regulations.gov prior to midnight eastern time on 
October 27, 2021. Comments may not be considered if they are sent by 
any other method, to any other address or individual, or received after 
the comment period ends at 11:59 p.m. eastern time on the date of 
comment period closure. All comments received are a part of the public 
record and will generally be posted without change to http://regulations.gov. For posted comments, all personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender is publicly accessible. Anonymous comments (enter ``N/A'' 
in the required fields if you wish to remain anonymous) will be 
accepted. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, WordPerfect, or Adobe portable document format 
(PDF) only.
    Submit written comments regarding the burden-hour estimates or 
other aspects of the collection-of-information requirements contained 
in this proposed rule within 30 days of publication of this notice to 
www.reginfo.gov/public/do/PRAMain. Find this particular information 
collection by selecting ``Currently under 30-day Review--Open for 
Public Comments'' or by using the search function.

FOR FURTHER INFORMATION CONTACT: Sapna Sharma, General Litigation 
Division, Office of the General Counsel, U.S. Department of Commerce, 
1401 Constitution Ave. NW, Rm. 5890, Washington, DC 20230; 
[email protected].

SUPPLEMENTARY INFORMATION: This rulemaking proposes revisions to the 
Department's regulations promulgated pursuant to 5 U.S.C. 301. Sections 
15 CFR 15.11-15.18 set forth the procedures currently applicable to 
requests submitted to Commerce for the testimony of employees and the 
production of documents for use in legal proceedings to which the 
agency is not a party. These regulations are also known as ``Touhy 
regulations,'' in reference to the case in which the Supreme Court 
upheld the validity of such agency regulations promulgated pursuant to 
5 U.S.C. 301. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).
    These proposed revisions to the Department's regulations clarify 
the process by which demands for documents or testimony are to be made 
and considered. They also update and streamline the language of several 
provisions where past experiences suggest need for elucidation. 
Additionally, the Department is revising these regulations to more 
directly address issues that arise frequently in requests for documents 
or testimony. The Department intends these revisions to provide greater 
clarity to entities seeking documents or testimony from current or 
former Department employees. Following is a description of the 
revisions to specific provisions of the Touhy regulations.
    Section 15.11--Scope.
    Paragraph (a) would be revised to more clearly set forth the scope 
and applicability of this subpart, and to state upfront that an 
employee's compliance with any demand for information or testimony 
requires prior authorization by the appropriate legal officers. New 
paragraph (c) would be added to clarify that this subpart does not 
apply to proceedings in which the Department is a party. New paragraph 
(d) would be added to direct requests for documents or testimony from 
the United States Patent and Trademark Office (USPTO) to the applicable 
USPTO Touhy regulations; all references to the USPTO in the previous 
regulation would be deleted throughout the revised Subpart B. New 
paragraph (e) would combine previous paragraph (c) with previous 
section 15.17 to clarify that the Department will determine if other 
statutory authorities exist that address disclosure of the requested 
information before applying the procedures in this subpart.
    Section 15.12--Definitions.
    Broadly, this section has been revised to provide additional detail 
in definitions and add definitions for new terms used in the proposed 
revisions. Paragraph (a) has been revised to provide more detail in the 
definition of agency counsel. Paragraphs (c) and (i) define the Office 
of the Inspector General and its Counsel, reflecting the proposed 
addition of new section 15.17 to address requests that are made for 
documents or testimony from the Office of the Inspector General. 
Paragraphs (b), (d)-(h), and (j)-(m) have been revised to clarify 
language and provide greater detail.
    Section 15.13--Demand for testimony or production of documents: 
Department procedures.

[[Page 53250]]

    This proposed rule would significantly revise section 15.13. The 
rule proposes to move from section 15.13 to section 15.16(a) the 
policies and considerations that Commerce will use in determining 
responses to demands for documents or testimony. Paragraph (a) of 
revised section 15.13 restates the existing rule that no document or 
information may be produced without authorization from the General 
Counsel or appropriate agency counsel. Paragraph (b) of revised section 
15.13 would set forth in more detail the notification requirements for 
requests submitted pursuant to this subpart; these notification 
requirements were formerly found at section 15.14(c). Paragraph (b)(1) 
would be revised to include the full address for mailed requests and an 
email address for submitting requests electronically. Paragraph (b)(2) 
would refer requestors to regulations for the United States Patent and 
Trademark Office, for requests relating to that agency. Paragraph (c) 
would direct employees to forward any demand to the appropriate office 
within the General Counsel's Office; this direction and contact 
information is currently set forth in section 15.14(a) of the 
regulations. Paragraph (d) would specifically address the course of 
action that the Department will take if it determines its employee 
should not comply with a subpoena. In addition, this paragraph would 
specify that electronic service of subpoenas is not authorized.
    Section 15.14--Demand for testimony or production of documents in 
matters in which the United States is not a party.
    This section would be revised to consolidate the procedures to be 
followed for requests relating to matters in which the United States is 
not a party to proceedings, which were previously interspersed in 
sections 15.14, 15.15, and 15.16 of the current regulations. Notably, 
paragraph (g)(2) of revised section 15.14 would set forth new rules and 
procedures for former Department employees who are asked to provide 
opinion or expert testimony in such proceedings; these rules and 
procedures had not previously been addressed. The procedures for 
matters in which the United States is a party would now be provided 
separately in new section 15.15.
    Section 15.15--Demand for testimony or production of documents in 
matters in which the United States is a party.
    This section would be partly new, and would encompass provisions 
found in current sections 15.16 and 15.18 on expert and opinion 
testimony. It would set forth the procedures for requests relating to 
matters in which the United States, but not the Department, is a named 
party. Paragraph (a) would address requests received from entities 
other than the United States, in proceedings in which the United States 
is a party, and would require that counsel of record representing the 
interests of the United States or one of its other agencies and 
instrumentalities be informed of such demands. Paragraph (b) would 
address requests received from agencies or instrumentalities of the 
United States other than the Department. Notably, and consistent with 
past practice, paragraph (b) would now state that the General Counsel 
may require reimbursement to the Department of expenses associated with 
a Department employee providing consultations on behalf of the United 
States. Paragraph (c) would separately set forth the procedures for 
expert or opinion testimony for both current and former employees in 
matters in which the United States, but not the Department, is a named 
party.
    Section 15.16--Demand for testimony or production of documents: 
Department and Policy Considerations.
    This proposed rule would revise section 15.16 to set forth in 
greater detail the factors that, as appropriate, will be considered in 
deciding whether the requested disclosure of information or testimony 
is in the interests of the Department. The policy factors in previous 
section 15.13(a)-(f) would be moved to this section and expanded to 
better inform non-government requesters. Paragraph (a)(1-9) would set 
forth a list of factors to be considered. Paragraph (b)(1-3) would set 
forth additional considerations for the General Counsel to weigh, once 
requirements in sections 15.14 and 15.15 of this subpart have been 
satisfied. Finally, new paragraph (c)(1-8) would set forth a non-
exclusive list of the factors that preclude disclosure of information 
that may be requested.
    Section 15.17-- Subpoenas and demands served upon employees or 
former employees of the Office of the Inspector General.
    The proposed rule would add this new section to address requests 
that are made for documents or testimony from the Office of the 
Inspector General and to clarify that this subpart applies to requests 
for documents or testimony from the Office of the Inspector General. 
This section would provide the notification procedures for requests to 
the Inspector General.

Classification

    This rule is published under the authority of 15 CFR part 15, 
subpart B (sections 15.11 through 15.18), which sets forth the 
procedures currently applicable to requests submitted to the Department 
for the testimony of employees and the production of documents for use 
in legal proceedings to which the Department is not a party. These 
regulations are also known as ``Touhy regulations,'' in reference to 
the case in which the Supreme Court upheld the validity of such agency 
regulations promulgated pursuant to 5 U.S.C. 301. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    This rulemaking has been determined to be not significant for the 
purposes of Executive Order (E.O.) 12866. The Department has identified 
no duplicative, overlapping, or conflicting Federal rules.

Congressional Review Act

    The changes in this proposed rule are not expected to result in an 
annual effect on the economy of $100 million or more, a major increase 
in costs or prices, or significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets. Therefore, this rulemaking 
is not expected to be considered a ``major rule'' as defined in 5 
U.S.C. 804(2) of the Congressional Review Act provisions of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et 
seq.).

Regulatory Flexibility Act

    The Chief Counsel for Regulation, Department of Commerce, has 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, under the provisions of the Regulatory Flexibility Act, 
5 U.S.C. 605(b), that this proposed rule, if implemented, would not 
have a significant economic impact on a substantial number of small 
entities. If implemented, this proposed rule would amend existing 
regulations in order to clarify the policies, practices, 
responsibilities, and procedures for Department of Commerce employees 
related to production of official Departmental documents and testimony 
by current or former employees as witnesses in legal proceedings. 
Specifically, the changes in this proposed rule fall into three 
categories: (1) Clarifying the requirements for individuals or entities 
making requests for Department information or testimony for use in 
legal proceedings; (2) refining the procedures the Department uses and 
elaborating on the polices that support the Department's decision 
regarding whether to grant

[[Page 53251]]

such requests; and (3) making non-substantive clarifying changes in the 
regulations. This proposed rule would apply to any individual or entity 
or their legal representative who requests information from the 
Department or testimony from Departmental employees for use in legal 
proceedings. There is no requirement that an individual or entity or 
their legal representative make such a request to the Department unless 
they seek information or testimony for use in a legal proceeding. If 
such a request is made, however, the proposed rule would clarify the 
current regulatory language that describes to whom in the Department 
the request should be sent, the standards that the request must meet, 
and the procedures the Department will apply to process the request and 
determine whether to grant it. The changes proposed in this rule are 
not expected to have any impact on affected entities. For example, the 
clarifying changes applicable to the actions of Department employees, 
reorganization of certain provisions, and harmonization of terminology 
would have no impact on affected entities seeking information or 
testimony from the Department for use in legal proceedings. Other 
proposed changes would impose no additional burden on individuals or 
entities seeking information or testimony from the Department for use 
in legal proceedings. For these reasons, this proposed rule, if 
implemented, would not have a significant economic impact on a 
substantial number of small entities. Because this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities, an initial regulatory flexibility analysis is not required, 
and none has been prepared.

Paperwork Reduction Act

    This proposed rule contains no new collection of information 
subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Request for Comments

    Commerce is seeking comments on this proposed rule on or before 
October 27, 2021 (see instructions for submitting comments in the 
ADDRESSES section above). All comments received are a part of the 
public record and will generally be posted without change to http://regulations.gov. For posted comments, all personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender is publicly accessible. Anonymous comments will be 
accepted. Enter ``N/A'' in the required fields if you wish to remain 
anonymous. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, WordPerfect, or Adobe portable document format 
(PDF) only.

List of Subjects in 15 CFR Part 15

    Administrative practice and procedure, Courts, Government 
employees, Legal Proceedings.

Brian D. DiGiacomo,
Assistant General Counsel for Employment, Litigation, and Information, 
Office of the General Counsel.

    For the reasons set out in the preamble, Commerce proposes to amend 
15 CFR part 15 as follows:

PART 15--LEGAL PROCEEDINGS

0
1. The authority for part 15 continues to read as follows:

    Authority:  5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and 
1518; Reorganization Plan No. 5 of 1950; 3 CFR, 1949-1953 Comp., p. 
1004; 44 U.S.C. 3101; subpart C is issued under 37 U.S.C. 101, 706; 
15 U.S.C. 1673; 42 U.S.C. 665.

    Editorial Note: Nomenclature changes to part 15 appear at 62 FR 
19669, Apr. 23, 1997.

Subpart B-Testimony by Employees and the Production of Documents in 
Legal Proceedings

0
2. In subpart B, revise Sec. Sec.  15.11 through 15.17 to read as 
follows:


Sec.  15.11  Scope.

    (a) This subpart sets forth the policies and procedures to be 
followed with respect to the production or disclosure of the testimony 
of employees and former employees of the Department of Commerce as 
witnesses in legal proceedings and the production or disclosure of 
information contained in Department of Commerce documents, or any 
information acquired by any person while such person was an employee of 
the Department of Commerce, for use in legal proceedings pursuant to a 
request, order, or subpoena (collectively referred to in this subpart 
as a ``demand''). No Department employee or former employee shall 
comply with such a demand without the prior authorization of the 
General Counsel or appropriate agency counsel, in accordance with this 
subpart.
    (b) This subpart does not apply to any legal proceeding in which an 
employee is to testify while on leave status, regarding facts or events 
unrelated to the official business of the Department or the duties of 
the employee.
    (c) This subpart does not apply to any legal proceeding in which 
the Department is a party or to subpoenas for testimony or documents 
received from Congress, a federal agency Inspector General, or a 
Special Prosecutor.
    (d) This subpart does not apply to any demand for testimony of 
employees and former employees of the United States Patent and 
Trademark Office (USPTO) or to demands for the production of USPTO 
documents. The process for any demand for testimony of an employee or 
for the production of documents of the USPTO can be found at 37 CFR 
104.21 through 24, and any such demands must be sent directly to the 
USPTO.
    (e) This subpart in no way affects the rights and procedures 
governing public access to records pursuant to the Freedom of 
Information Act, the Privacy Act or the Trade Secrets Act or other 
federal law restricting the disclosure of information. Moreover, 
demands in legal proceedings for the production of records, or for the 
testimony of Department employees regarding information protected by 
the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905, 
Census data under Title 13, U.S.C., or other confidentiality statutes, 
must satisfy the requirements for disclosure set forth in those 
statutes, if any, before the records may be provided or testimony 
given. The General Counsel or appropriate agency counsel should first 
determine if there is a legal basis to provide the testimony or records 
sought under applicable confidentiality statutes before applying the 
procedures established in this subpart.
    (f) This subpart is not intended to be relied upon to, and does 
not, create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States.


Sec.  15.12   Definitions.

    For the purpose of this subpart:
    (a) Agency Counsel means the Chief Counsel/s or General Counsel/s 
(or that official's designee) of a bureau or operating unit within the 
U.S. Department of Commerce who is the senior legal officer responsible 
for overseeing legal advice and guidance provided to a particular 
bureau or operating unit.
    (b) Component means Office of the Secretary or a bureau or 
operating unit of the Department as defined in Department Organization 
Order 1-1.
    (c) Counsel to the Inspector General means Counsel to the Inspector 
General of the U.S. Department of Commerce.
    (d) Demand means a request, order, or subpoena for testimony or 
documents for use in any legal proceeding,

[[Page 53252]]

regardless of whether the United States is a party to the proceeding.
    (e) Department means the United States Department of Commerce and 
any of its components, bureaus, or operating units.
    (f) Document or Information means any record, regardless of format, 
medium or physical characteristic, document, electronically stored 
information, paper and other property of the Department, including 
without limitation, official letters, telegrams, memoranda, reports, 
studies, writings, emails, calendar and diary entries, text or chat 
messages, maps, graphs, pamphlets, notes, charts, tabulations, 
analyses, statistical or informational accumulations, any kind of 
summaries of meetings and conversations, film impressions, magnetic 
tapes or sound or mechanical reproductions. Nothing herein shall be 
interpreted as requiring the creation of a new document to respond to 
any demand.
    (g) Employee means any current or former employees or officers of 
the U.S. Department of Commerce, including any commissioned officer of 
the National Oceanic and Atmospheric Administration or any other 
individual who has been appointed by, or is subject to the supervision, 
jurisdiction, or control of the U.S. Department of Commerce, including 
contract employees. Contractors may be included.
    (h) General Counsel means the General Counsel of the U.S. 
Department of Commerce or other U.S. Department of Commerce employee to 
whom the General Counsel has delegated authority to act under this 
subpart.
    (i) Inspector General means the Inspector General of the U.S. 
Department of Commerce.
    (j) Legal proceeding means all pretrial, trial, and post-trial 
stages of any existing or reasonably anticipated judicial or 
administrative actions, hearings, investigations, or similar 
proceedings before administrative, civil, or criminal courts, 
commissions, boards, or other tribunals, domestic--including local, 
tribal, state, and federal--foreign, or international. This phrase 
includes all phases of discovery as well as responses to any formal or 
informal requests by attorneys, investigators, or other persons not 
employed by the Department, regarding, testimony, documents, 
information, or consultation, solicited for use in any legal 
proceedings.
    (k) Official business means the authorized business of the U.S. 
Department of Commerce.
    (l) Secretary means the Secretary of the U.S. Department of 
Commerce.
    (m) Testimony means a statement in any form, including personal 
appearances before a judge, magistrate, administrative law judge, 
administrative judge, hearing officer, special master, special counsel, 
investigating officer or board, or any other court or legal tribunal; 
declarations made pursuant to 28 U.S.C. 1746; interviews; depositions; 
telephonic, televised, or videotaped statements; or any responses given 
during discovery or similar proceedings, which response would involve 
more than the production of documents.
    (n) United States means the Federal Government, its departments and 
agencies, and individuals acting on behalf of the Federal Government.


Sec.  15.13  Demand for testimony or production of documents: 
Department procedures.

    (a) General. No employee, in response to a demand, shall produce 
any documents or information of the Department, or provide testimony 
regarding any information relating to, or based upon Department 
documents, or disclose any information or produce documents acquired or 
generated as part of the performance of that employee's official duties 
or because of that employee's official status without the prior 
authorization of the General Counsel or appropriate agency counsel.
    (b) Notifications. (1) A demand for the testimony of an employee or 
for the production of documents of the Department shall be made in 
writing and addressed to the Assistant General Counsel for Employment, 
Litigation, and Information, U.S. Department of Commerce, 1401 
Constitution Avenue, NW, Room 5896, Washington, DC 20230; or by email 
to: [email protected]; or to appropriate agency counsel.
    (2) The process for any demand for testimony of an employee or for 
the production of documents of the USPTO can be found at 37 CFR 104.21 
through 24, and any such demands should be sent directly to the USPTO, 
in accordance with Sec.  15.11(d) of this subpart.
    (c) Employee Procedure. Whenever a Department employee receives an 
inquiry or demand for testimony or production of documents, that 
employee shall not respond, and shall immediately notify the Office of 
the Assistant General Counsel for Employment, Litigation, and 
Information as provided above, or appropriate agency counsel, and 
provide a copy of the demand. An employee may not answer inquiries from 
a person not employed by the Department regarding testimony or 
documents subject to a demand or a potential demand under the 
provisions of this subpart without the approval of the General Counsel 
or appropriate agency counsel.
    (d) Subpoenas. A subpoena for testimony or production of documents 
by a Department employee must be served in person, at the office or 
home, or by mail in accordance with the Federal Rules of Civil or 
Criminal Procedure or applicable state procedure. Service solely by 
electronic means is not authorized. If service is made upon anyone 
other than the General Counsel or appropriate agency counsel, then a 
copy of the subpoena shall also be contemporaneously sent to the 
General Counsel at the appropriate addresses in subsection (b) above, 
or appropriate agency counsel.
    (1) An employee who receives a such a subpoena shall not respond 
and shall immediately forward the subpoena to the Office of the 
Assistant General Counsel for Employment, Litigation, and Information 
or the appropriate agency counsel. The General Counsel or appropriate 
agency counsel will determine the extent to which a Department employee 
will comply with the subpoena.
    (2) If the General Counsel or appropriate agency counsel determines 
that an employee should not comply with a properly-served subpoena, the 
General Counsel or agency counsel will attempt to have the subpoena 
withdrawn or modified. If this cannot be done with regard to a subpoena 
for documents, the Department will provide the tribunal with an 
objections letter or other notification that the documents will not be 
produced. If this cannot be done with regard to a subpoena for 
testimony, the General Counsel or appropriate agency counsel will 
attempt to obtain U.S. Department of Justice representation for the 
employee and move to have the subpoena modified or quashed. If, because 
of time constraints, this is not possible prior to the compliance date 
specified in the subpoena, the employee should appear at the time and 
place set forth in the subpoena. If legal counsel cannot appear on 
behalf of the employee, the employee should produce a copy of the 
Department's regulations and inform the legal tribunal that the 
employee has been advised by counsel not to provide the requested 
testimony and/or produce documents. If the legal tribunal rules that 
the demand in the subpoena must be complied with, the employee shall 
respectfully decline to comply with the demand. United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).

[[Page 53253]]

Sec.  15.14   Demand for testimony or production of documents in 
matters in which the United States is not a party.

    (a) General. Every demand for testimony or documents in a legal 
matter in which the United States is not a named party shall be made in 
writing, delivered in accordance with section 15.13(b) of this subpart 
no later than 30 days before the document or testimony is required, and 
shall be accompanied by an affidavit or written declaration under 28 
U.S.C. 1746, or, if an affidavit or declaration is not feasible, a 
written statement setting forth:
    (1) The title of the legal proceeding,
    (2) The forum;
    (3) The requesting party's interest in the legal proceeding;
    (4) The reason for the demand and the relevance of the request to 
the legal proceeding;
    (5) A showing that the desired testimony or document is not 
reasonably available from any other source; and
    (6) If testimony is requested, the intended use of the testimony a 
general summary of the desired testimony; the time that will be 
required to prepare for, travel to, and present testimony; and a 
showing that no document could be provided and used in lieu of 
testimony, including from opposing parties via discovery proceedings.
    (b) Purpose. The purpose of this requirement is to assist the 
General Counsel or appropriate agency counsel in making an informed 
decision regarding whether testimony or the production of a document(s) 
should be authorized, in accordance with Sec.  15.16 of this subpart. 
Any authorization for testimony by an employee of the Department shall 
be limited to the scope of the demand as summarized in the statement or 
as negotiated in subparagraph (e) of this section.
    (c) Prior Authorization. A certified copy of a document that has 
been authorized pursuant to Sec.  15.16(a) for use in a legal 
proceeding may be provided upon written request and payment of 
applicable fees. Written requests for certification must be addressed 
to the agency counsel for the component having possession, custody, or 
control of the document. The requestor must provide the agency with 
information regarding the prior authorization for release of the 
requested document pursuant to Sec.  15.16(a), including date of 
release and parties to whom the document was released.
    (d) Secretary's Authority. The Secretary retains the authority to 
authorize and direct testimony in those cases where a statute or 
Presidential order mandates a personal decision by the Secretary.
    (e) Consultation. The General Counsel or appropriate agency counsel 
may consult or negotiate with an attorney for a party, or with the 
party if not represented by an attorney, to refine or limit a demand so 
that compliance is less burdensome or seek additional information about 
the demand necessary to make the determination required by paragraph 
(b) of this section. Failure of the attorney or party to cooperate in 
good faith to enable the General Counsel or the appropriate agency 
counsel to make an informed decision under this subpart may serve, 
where appropriate, as a basis for a determination not to comply with 
the demand. In addition, the General Counsel or appropriate agency 
counsel may impose further conditions or restrictions on the production 
of any document or testimony when that is in the best interests of the 
United States.
    (f) Fact witness. If an employee is authorized to give testimony in 
a legal proceeding not involving the United States, the testimony, if 
otherwise proper, shall be limited to facts within the personal 
knowledge of the employee that are not classified, privileged, or 
protected from disclosure under applicable law or regulation. If asked 
to provide factual testimony that the employee believes may be 
classified, privileged, or protected from disclosure under applicable 
law or regulation, then the witness shall:
    (1) Respectfully decline to answer on the grounds that such 
testimony is prohibited; and
    (2) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel.
    (g) Expert or Opinion Witness.
    (1) Current employees, with or without compensation, shall not 
provide expert or opinion testimony in any legal proceedings regarding 
Department information, subjects, or activities except on behalf of the 
United States or a party represented by the United States Department of 
Justice. However, upon a showing by the requester that there are 
exceptional circumstances and that the anticipated testimony will not 
be adverse to the interests of the Department or the United States, the 
General Counsel, or appropriate agency counsel after consultation with 
the Office of the General Counsel, may grant special authorization in 
writing for a current employee to appear and give the expert or opinion 
testimony.
    (i) If, while testifying in any legal proceeding, an employee is 
asked for expert or opinion testimony regarding official information, 
subjects or activities, which testimony has not been approved in 
advance in accordance with the regulations in this subpart, the witness 
shall:
    (A) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by the regulations in this subpart;
    (B) Request an opportunity to consult with the General Counsel or 
appropriate agency counsel before giving such testimony; and
    (C) Explain that upon such consultation, approval for such 
testimony may be provided.
    (ii) If the body conducting the proceeding then orders the witness 
to provide expert or opinion testimony regarding official information, 
subjects, or activities without the opportunity to consult with either 
the General Counsel or appropriate agency counsel, the witness shall 
respectfully refuse to provide such testimony. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (iii) If an employee is unaware of the regulations in this subpart 
and provides expert or opinion testimony regarding official 
information, subjects, or activities in a legal proceeding without the 
aforementioned consultation, the witness must, as soon as possible 
after testifying, inform the General Counsel or appropriate agency 
counsel that such testimony was given and provide a written summary of 
the expert or opinion testimony provided.
    (2) Former employees may provide opinion or expert testimony if: 
(i) The testimony does not involve non-public facts, information, or 
documents about a particular matter that were acquired by the former 
employee during the performance of their employment with the United 
States; and (ii) the involvement of the former employee in the 
proceeding as a witness complies with 18 U.S.C. 207 and applicable 
post-employment Ethics rules. See 5 CFR 2641. Former employees offering 
expert or opinion testimony and those seeking such testimony from 
former employees, must confer with the General Counsel or appropriate 
agency counsel to ascertain if the prospective expert or opinion 
testimony is consistent with this subpart.
    (h) A decision under this subpart to comply or not to comply with a 
demand is neither an assertion or waiver of privilege, nor an assertion 
of lack of relevance or technical deficiency, nor does it reflect any 
other ground for noncompliance.
    (i) The General Counsel or appropriate agency counsel may waive any 
requirements set forth under this

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section to the extent allowed by law, when circumstances warrant.


Sec.  15.15  Demand for testimony or production of documents in matters 
in which the United States is a party.

    If a demand is received pertaining to a legal matter in which the 
United States but not the Department is a named party, or where a party 
other than the Department is represented by the Department of Justice, 
the following rules apply.
    (a) Demand not from the United States. For demands for documents 
from, or testimony of an employee of the Department, from an entity 
other than the United States pursuant to a legal proceeding in which 
the United States is a party, the demand must be in writing and signed, 
delivered in accordance with section 15.13(b), setting forth the 
information required in section 15.14(a), and copied to the attorneys 
of record representing or acting under the authority of the United 
States in the legal proceeding. Upon receipt of the demand, the General 
Counsel or appropriate agency counsel shall promptly contact the 
appropriate Department of Justice office to coordinate any response in 
accordance with applicable federal or state rules of civil procedure 
governing discovery matters.
    (b) Demand from the United States. When a demand for documents 
from, testimony of, or consultation with an employee of the Department 
comes from an attorney representing or acting under the authority of 
the United States concerning a legal proceeding in which the United 
States is a party, every such demand should be accompanied by a 
statement setting forth the legal proceeding, the forum, the United 
States' interest in the legal proceeding, and the relevance and use of 
the requested documents or testimony. The purpose of this requirement 
is to assist the General Counsel or the appropriate agency counsel in 
making all necessary arrangements to facilitate the demand on behalf of 
the United States. Where appropriate, the General Counsel or 
appropriate agency counsel may require reimbursement to the Department 
of the expenses associated with a Department employee giving testimony 
or providing consultation on behalf of the United States.
    (c) Expert or Opinion Witness. In a legal proceeding in which the 
United States is a party, a current Department employee may not testify 
as an expert or opinion witness for any other party other than the 
United States. However, a former employee may provide opinion or expert 
testimony for a party other than the United States if: (i) The 
testimony does not involve facts, information, or documents about a 
particular matter that were acquired by the former employee during the 
performance of their official duties as an employee of the United 
States; and (ii) the involvement of the former employee in the 
proceeding as a witness complies with applicable post-employment 
conflict of interest laws. See 18 U.S.C. 207 and 5 CFR 2641. A former 
employee offering expert or opinion testimony or consulting, and those 
seeking such testimony from a former employee, shall confer with the 
General Counsel or appropriate agency counsel to ascertain if the 
prospective expert or opinion testimony or consulting is consistent 
with this subpart.


Sec.  15.16   Demand for testimony or production of documents: 
Department Policy and Considerations.

    (a) Decision. In deciding whether to authorize a demand for 
testimony or documents under this subpart, the General Counsel or 
appropriate agency counsel shall consider whether the disclosure or 
testimony is in the interests of the Department. The following factors 
should be considered:
    (1) Conserving the time of Department employees for conducting 
official business;
    (2) Minimizing the possibility of involving the Department in 
controversial issues that are not related to the Department's mission 
or matters that do not further the Department's mission;
    (3) Preventing the possibility that the public will misconstrue 
variances between personal opinions of Department employees and 
official Department policy;
    (4) Avoiding spending the time and money of the United States for 
private purposes;
    (5) Preserving the integrity of the administrative or judicial 
process;
    (6) Protecting classified, confidential, or controlled unclassified 
information, and the deliberative process of the Department;
    (7) Preventing the appearance of improperly favoring one litigant 
over another;
    (8) Avoiding the denial of a party's constitutional or statutory 
rights;
    (9) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose;
    (10) Whether disclosure is appropriate under the relevant 
substantive law concerning privilege; and
    (11) Any other issue that is relevant to the decision.
    (b) Non-disclosure Factors. Demands for testimony or documents in 
response to which disclosure will not be made by any Department 
official include, but are not limited to, those demands with respect to 
which any of the following factors exist:
    (1) Disclosure is restricted by statute or regulation, or would 
violate a rule of procedure, executive order, policy, or an applicable 
government directive;
    (2) Disclosure would reveal classified or controlled unclassified 
information, unless appropriately declassified or decontrolled by the 
originating agency;
    (3) Disclosure would reveal a confidential source or informant, 
unless the investigative agency and the source or informant have no 
objection;
    (4) Disclosure would reveal investigatory records compiled for law 
enforcement purposes and would interfere with enforcement proceedings 
or disclose investigative techniques and procedures, the effectiveness 
of which would thereby be impaired.
    (5) Disclosure would improperly reveal trade secrets or disclose 
information protected by law, a non-disclosure agreement, or court 
order without authorized consent;
    (6) Disclosure would be unduly costly, burdensome, or otherwise 
inappropriate under applicable court rules;
    (7) Disclosure would involve the Department in controversial issues 
that are not related to the Department's mission or issues that do not 
further the Department's mission; or
    (8) Disclosure would involve scientific or expert opinion on 
research that is controversial or contrary to Department policy, or 
would result in burdensome repetition of similar testimony in 
subsequent proceedings.


Sec.  15.17  Subpoenas and demands served upon employees or former 
employees of the Office of the Inspector General.

    Notwithstanding the requirements set forth in Sec. Sec.  15.11 
through 15.16, this subpart is applicable to demands served on 
employees or former employees of the Office of the Inspector General 
(OIG), except that wherever in Sec. Sec.  15.11 through 15.16 there 
appear the phrases General Counsel, Agency Counsel, or Assistant 
General Counsel for Employment, Litigation, and Information, there 
shall be substituted in lieu thereof the Inspector General or Counsel 
to the Inspector General. In addition, the appropriate address for 
notifications specified in Sec.  15.13(b) pertaining to employees and 
former employees covered under this section is Office of the Inspector 
General, U.S. Department of Commerce, 1401

[[Page 53255]]

Constitution Avenue NW, Room 7896, Washington, DC 20230.

[FR Doc. 2021-20651 Filed 9-24-21; 8:45 am]
BILLING CODE 3510-BW-P