[Federal Register Volume 61, Number 243 (Tuesday, December 17, 1996)]
[Proposed Rules]
[Pages 66232-66233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31794]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 243 / Tuesday, December 17, 1996 /
Proposed Rules
[[Page 66232]]
OFFICE OF MANAGEMENT AND BUDGET
5 CFR Part 1305
RIN 0348-AB35
Release of Official Information, and Testimony by OMB Personnel
as Witnesses in Litigation
AGENCY: Office of Management and Budget, Executive Office of the
President.
ACTION: Proposed rule.
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SUMMARY: The Office of Management and Budget (OMB) seeks public comment
on a proposed rule that would set forth the procedures to be followed
when, in litigation (including administrative proceedings), a subpoena,
order or other demand of a court or other authority is issued for the
production or disclosure of: Any material contained in the files of
OMB; any information relating to materials contained in the files of
OMB; or any information or material acquired by any person while such
person was an employee of OMB as a part of the performance of the
person's official duties or because of the person's official status.
Many agencies have issued regulations of this kind in the past in order
to establish procedures to respond to such demands in an orderly and
consistent manner.
DATES: Comments must be received no later than February 18, 1997.
ADDRESSES: Comments on the proposed rule should be addressed to: Steven
Aitken, Assistant General Counsel, Office of Management and Budget,
Room 464, Old Executive Office Building, Washington, D.C. 20503.
Comments up to three pages in length may be submitted via facsimile to
(202) 395-7294. Electronic mail comments may be submitted via Internet
to [email protected] Please include the full body of electronic mail
comments in the text and not as an attachment. Please include the name,
title, organization, postal address, and E-mail address in the text of
the message.
Comments regarding collection of information requirements contained
in the proposed rule should be addressed to Mr. Aitken at the address
above and to: Edward Springer, OMB Desk Officer, Office of Information
and Regulatory Affairs, OMB, Room 10236, New Executive Office Building,
Washington, D.C. 20503.
FOR FURTHER INFORMATION CONTACT: Steven Aitken, Assistant General
Counsel, Office of Management and Budget, at (202) 395-4728.
SUPPLEMENTARY INFORMATION: As have many agencies over the years, OMB is
proposing to issue a ``Touhy'' regulation regarding the production or
disclosure of OMB materials and information in response to a subpoena,
order or other demand of a court or other authority. Such regulations
were upheld by the Supreme Court in its decision in United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
The proposed OMB ``Touhy'' regulation, which is set forth below,
would be placed in a new Part 1305 in OMB's regulations, which are
found at 5 CFR Chapter III. OMB invites comments on the proposed
regulation.
Paperwork Reduction Act
This proposed rule contains collection of information requirements
subject to the Paperwork Reduction Act. The requirement in
Sec. 1305.3(a), for a person receiving a demand to notify the OMB
General Counsel that the demand has been made, is estimated to take 5
minutes; this can be satisfied by a phone call relating the demand and/
or by a facsimile transmission of the demand. The requirement in
Sec. 1305.3(b), for the person making the demand to submit an affidavit
or statement summarizing the information or material sought and its
relevance to the proceeding, is estimated to take 15 minutes; a demand
for documents will generally already specify the documents sought, the
person making a demand for testimony should already know what
information is sought (and therefore needs only to describe that
information), and in each case the person making the demand should
already know the relevance of the documents or testimony to the
proceeding (and therefore needs only to state that relevance). To the
extent that any disclosure is required under Sec. 1305.4, it is
estimated to take 5 minutes; the only additional disclosure that might
result from this provision would be for a person to state, when
declining to comply with a demand, that he or she is doing so pursuant
to this regulation. Based on previous experience with demands for OMB
information and materials, it is estimated that there will generally be
not more than 10 respondents/year subject to the above requirements.
Comments are solicited concerning the proposed collection of
information requirements to: (1) Evaluate whether the proposed
collection of information is necessary for the proper functions of OMB,
including whether the information will have practical utility; (2)
Evaluate the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) Enhance the quality, utility, and
clarity of the information to be collected; and (4) Minimize the burden
on those who are to respond, such as using appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. Comments should be sent to the persons
specified above (see ADDRESSES).
Regulatory Flexibility Act, Unfunded Mandates Reform Act, and Executive
Orders 12866 and 12875
For purposes of the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the proposed rule will not, if promulgated, have a significant
economic effect on a substantial number of small entities; the proposed
rule addresses only the procedures to be followed in the production or
disclosure of OMB materials and information in litigation. For purposes
of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as
Executive Orders No. 12866 and 12875, the proposed rule would not
significantly or uniquely affect small governments, and would not
result in increased expenditures by State, local, and tribal
governments, or by the private sector, of $100 million or more.
[[Page 66233]]
Issued in Washington, D.C., December 9, 1996.
Franklin D. Raines,
Director.
For the reasons set forth in the preamble, OMB proposes to amend 5
CFR Chapter III by adding a new part 1305 to read as follows:
PART 1305--RELEASE OF OFFICIAL INFORMATION, AND TESTIMONY BY OMB
PERSONNEL AS WITNESSES, IN LITIGATION
Sec.
1305.1 Purpose and scope.
1305.2 Production prohibited unless approved.
1305.3 Procedures in the event of a demand for disclosure.
1305.4 Procedure in the event of an adverse ruling.
1305.5 No private right of action.
Authority: 31 U.S.C. 502.
Sec. 1305.1 Purpose and scope.
This part contains the regulations of the Office of Management and
Budget (OMB) concerning procedures to be followed when, in litigation
(including administrative proceedings), a subpoena, order or other
demand (hereinafter in this part referred to as a ``demand'') of a
court or other authority is issued for the production or disclosure of:
(a) Any material contained in the files of OMB;
(b) Any information relating to materials contained in the files of
OMB; or
(c) Any information or material acquired by any person while such
person was an employee of OMB as a part of the performance of the
person's official duties or because of the person's official status.
Sec. 1305.2 Production prohibited unless approved.
No employee or former employee of OMB shall, in response to a
demand of a court or other authority, produce any material contained in
the files of OMB, disclose any information relating to materials
contained in the files of OMB, or disclose any information or produce
any material acquired as part of the performance of the person's
official duties, or because of the person's official status, without
the prior approval of the General Counsel.
Sec. 1305.3 Procedures in the event of a demand for disclosure.
(a) Whenever a demand is made upon an employee or former employee
of OMB for the production of material or the disclosure of information
described in Sec. 1305.2, he shall immediately notify the General
Counsel. If possible, the General Counsel shall be notified before the
employee or former employee concerned replies to or appears before the
court or other authority.
(b) If information or material is sought by a demand in any case or
matter in which OMB is not a party, an affidavit (or, if that is not
feasible, a statement by the party seeking the information or material,
or by his attorney) setting forth a summary of the information or
material sought and its relevance to the proceeding, must be submitted
before a decision is made as to whether materials will be produced or
permission to testify or otherwise provide information will be granted.
Any authorization for testimony by a present or former employee of OMB
shall be limited to the scope of the demand as summarized in such
statement.
(c) If response to a demand is required before instructions from
the General Counsel are received, an attorney designated for that
purpose by OMB shall appear, and shall furnish the court or other
authority with a copy of the regulations contained in this part and
inform the court or other authority that the demand has been or is
being, as the case may be, referred for prompt consideration by the
General Counsel. The court or other authority shall be requested
respectfully to stay the demand pending receipt of the requested
instructions from the General Counsel.
Sec. 1305.4 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand in response to a request made in accordance with Sec. 1305.3(c)
pending receipt of instructions from the General Counsel, or if the
court or other authority rules that the demand must be complied with
irrespective of the instructions from the General Counsel not to
produce the material or disclose the information sought, the employee
or former employee upon whom the demand has been made shall
respectfully decline to comply with the demand (United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951)).
Sec. 1305.5 No private right of action.
This part is intended only to provide guidance for the internal
operations of OMB, and is not intended to, and does not, and may not be
relied upon to create a right or benefit, substantive or procedural,
enforceable at law by a party against the United States.
[FR Doc. 96-31794 Filed 12-16-96; 8:45 am]
BILLING CODE 3110-01-P
