[Federal Register Volume 62, Number 104 (Friday, May 30, 1997)]
[Rules and Regulations]
[Pages 29285-29286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13964]
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Rules and Regulations
Federal Register
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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. 62, No. 104 / Friday, May 30, 1997 / Rules
and Regulations
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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: Final rule.
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SUMMARY: This final rule sets forth regulations to be followed by the
Office of Management and Budget (OMB) staff 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.
EFFECTIVE DATE: June 30, 1997.
FOR FURTHER INFORMATION CONTACT: Steven Aitken, Assistant General
Counsel, Office of Management and Budget, at (202) 395-4728.
SUPPLEMENTARY INFORMATION: On December 17, 1996 (61 FR 66232), OMB
requested public comment on proposed regulations which 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. Such regulations were upheld by the Supreme Court in
its decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951). This regulation establishes procedures to respond to such
demands in an orderly and consistent manner.
No public comments were received in response to the December 1996
proposed rule. No changes have been made to the proposed rule, which is
being adopted.
The proposed OMB ``Touhy'' regulation, which is set forth below,
will be placed in a new Part 1305 in OMB's regulations, which are found
at 5 CFR Chapter III.
Paperwork Reduction Act
As part of the notice of proposed rulemaking, OMB published a
request for comments concerning the collection of information contained
in Secs. 1305.3(a), 1305.3(b), and 1305.4 of the proposed rule. See 61
FR 66232. OMB received no comments regarding the collection of
information. The sponsoring office in OMB also submitted an analysis of
the information collection to the Office of Information and Regulatory
Affairs (OIRA) in OMB for review in accordance with section 3507(d) of
the Paperwork Reduction Act of 1995. See 44 U.S.C. 3507(d). OIRA,
acting for OMB, assigned a control number, 0348-0056, and approved the
information collection without conditions with an expiration date of
February 28, 2000. Potential respondents are not required to respond to
the collection of information unless the regulation collecting the
information displays a currently valid control number assigned by OMB.
See, id., 3512(a). The final rule does not modify the approved
information collection.
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 final rule will not have a significant economic effect on a
substantial number of small entities; the final 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 final rule will not significantly or
uniquely affect small governments, and will not result in increased
expenditures by State, local, and tribal governments, or by the private
sector, of $100 million or more. Finally, the final rule is not a
``major rule'' under 5 U.S.C. Chapter 8; the rule will not have any of
the effects set forth in 5 U.S.C. 804(2).
List of Subjects in 5 CFR Part 1305
Administrative practice and procedure.
Issued in Washington, D.C., May 19, 1997.
Franklin D. Raines,
Director.
For the reasons set forth in the preamble, OMB amends 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
[[Page 29286]]
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.
(Approved by the Office of Management and Budget under control number
0348-0056)
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)).
(Approved by the Office of Management and Budget under control number
0348-0056)
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. 97-13964 Filed 5-29-97; 8:45 am]
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