Public Access to HUD Records Under the Freedom of Information Act (FOIA) and Production of Material or Provision of Testimony by HUD Employees

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: August 15, 2006 (Volume 71, Number 157)]
[Proposed Rules]
[Page 46985-46991]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15au06-15]
[[Page 46986]]

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR-5015-P-01]
RIN 2501-AD18

Public Access to HUD Records Under the Freedom of Information Act (FOIA)
and Production of Material or Provision of Testimony by HUD Employees

AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.

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SUMMARY: This proposed rule is intended to clarify and explain the
various types of requests for HUD documents and testimony by HUD
employees that are intended to be covered by the Department's document
production and testimony approval regulations. This proposed rule
describes the procedures to be followed by a party in making a demand
for HUD documents and HUD testimony. The proposed rule also explains
the standards that are to be followed by HUD in determining whether
production of documents or testimony should be permitted and, if so,
any conditions or restrictions imposed.

DATES: Comment Due Date: October 16, 2006.

ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Office of the General Counsel, Rules Docket
Clerk, Department of Housing and Urban Development, 451 Seventh Street,
SW, Room 10276, Washington, DC 20410-0001. Communications should refer
to the above docket number and title and should contain the information
specified in the ``Request for Comments'' section.
Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
http://www.regulations.gov. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the commenter maximum time to prepare and submit a comment,
ensures timely receipt by HUD, and enables HUD to make them immediately
available to the public. Comments submitted electronically through the
http://www.regulations.gov Web site can be viewed by other commenters
and interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
No Facsimile Comments. Facsimile (FAX) comments are not acceptable.
In all cases, communications must refer to the docket number and title.
Public Inspection of Public Comments. All comments and
communications submitted to HUD will be available, without charge, for
public inspection and copying between 8 a.m. and 5 p.m. weekdays at the
above address. Due to security measures at the HUD Headquarters
building, an advance appointment to review the public comments must be
scheduled by calling the Regulations Division at (202) 708-3055 (this
is not a toll-free number). Copies of all comments submitted are
available for inspection and downloading at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Nancy Christopher, Associate General
Counsel for Litigation, Office of Litigation, Office of General
Counsel, Department of Housing and Urban Development, 451 Seventh
Street, SW., Room 10258, Washington, DC 20410-5000; telephone (202)
708-0300 (this is not a toll-free telephone number). Persons with
hearing or speech impairments may access this number via TTY by calling
the toll-free Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

HUD's regulations at 24 CFR part 15 describe the policies and
procedures governing public access to HUD records under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), and the policies and procedures
governing the production of material or provision of testimony by HUD
employees, which Sec. 15.2 defines to include all current or former
employees who are not employees of the Office of the Inspector General.
On January 22, 2001, the Department published a final rule (66 FR 6973)
that amended the Department's FOIA regulations and redesignated former
subparts H and I of part 15 that deal with the production of documents
and provision of testimony by HUD employees, as subparts C and D,
respectively. Aside from the designations and conforming amendments to
reflect these new designations, no revisions were made to those
subparts at that time.
HUD's regulations at 24 CFR part 15 were amended again on October
23, 2002 (67 FR 65276). That amendment delegated authority to the
General Counsel to authorize an employee, upon a show of good cause, to
testify as an expert or opinion witness in matters in which the United
States is a party, as well as in matters exclusively among non-federal
litigants. Prior to this amendment, only the Secretary was authorized
to permit expert or opinion testimony.
This proposed rule would revise and amend subparts C and D in order
to clarify the various types of requests for HUD documents and
testimony by HUD employees that are intended to be covered by the
regulations in 24 CFR part 15. The proposed rule also describes the
procedures to be followed by a party in making a demand to HUD for
documents or testimony. The proposed rule also explains the standards
that are to be followed by HUD in determining whether production or
testimony should be permitted and, if so, any conditions or
restrictions imposed. In addition to these changes, the proposed rule
would make certain technical corrections in both subparts C and D.
As proposed to be amended by this rule, the organization of part 15
would no longer be based on a distinction between production of
material and provision of testimony, but rather would be based on the
parties involved in the legal proceeding. Subpart C would govern
litigation between private parties, while subpart D would govern
litigation where one of the parties is the federal government. In order
to improve clarity and highlight the processes to be followed, subparts
C and D would be revised in their entirety.
The following sections of this preamble provide a summary of the
existing subparts and a discussion of the proposed changes to 24 CFR
part 15, subparts C and D.

II. Proposed Changes to 24 CFR Part 15, Subpart C

Subpart C of 24 CFR part 15, currently titled ``Production in
Response to Subpoenas or Demands of Courts or Other Authorities,'' was
designed to contain HUD's procedures to be followed when a subpoena,
order, or other demand of a court or other authority is issued to HUD
for the production of material, or the disclosure of information in its
possession or the disclosure of information acquired by an employee or
former employee as a part of the performance of the employee's official
duties or because of his or her official status. The current subpart C
prohibits production of material without the prior approval of the
Secretary or General Counsel (24 CFR 15.202).
Though not expressly referred to in the title of the subpart,
subpart C was also intended to address the provision of testimony by
HUD employees, and

[[Page 46987]]

not just the production of material. In addition to the need to clarify
the inclusion of demands for testimony, subpart C requires
clarification. This clarification is needed because subpart C does not
explicitly contain the standards that must be followed in determining:
(1) Whether production of material or provision of testimony should be
permitted and (2) if it is permitted, whether the production or
testimony should or will be subject to conditions or restrictions.
Furthermore, the current subpart C regulations cross-reference to 24
CFR part 15, subpart I, for the standards to be followed in deciding
whether to approve such demands. Under this proposed rule, these
standards would instead be found in subpart D.
This proposed rule would also make several amendments to subpart C,
to clearly set forth the procedures to be followed and standards to be
applied by HUD in processing demands for the production of material or
provision of testimony in legal proceedings among private litigants.
The purpose and scope of the subpart would largely be unchanged and
prior approval by the Secretary or the General Counsel would still be
required before the release of material or the provision of testimony
by HUD employees.
This proposed rule would revise the title of subpart C to more
clearly describe the scope of the regulations contained in the subpart
(the proposed new title would be ``Production of material or provision
of testimony in response to demands in legal proceedings among private
litigants''). The proposed rule would also revise Sec. 15.203 to list,
with specificity, the requirements that must be included in a demand to
HUD for the production of material or the provision of testimony.
Section 15.203 would also be revised to provide that the Associate
General Counsel for Litigation or a designee shall be notified
immediately of all demands, is to be provided with a copy of the
demand, will maintain a record of all demands served upon the
Department, and will refer the demand to the appropriate designee for
processing and determination.
Further, the proposed rule would revise Sec. 15.204 to explain how
HUD will consider demands for material or testimony. The Secretary or
the General Counsel would have to evaluate demands to determine what
material will be produced or testimony provided. The revised regulation
will make clear that material or testimony cannot be used for expert or
opinion purposes unless authorized by the Secretary or General Counsel
for good cause shown. Once a determination is made, the requester will
be notified, will be given the underlying reasoning for the decision,
and will be apprised of any applicable conditions imposed on the
material or testimony provided. The determination by the Secretary
constitutes final agency action, meaning administrative appeals of the
determination could not be made.
In the event that a response to a demand for material or the
production of testimony is required before the Secretary renders a
determination, the U.S. Attorney or such other attorney as may be
designated for the purpose will furnish the court or other authority a
copy of HUD's public access to records regulations and respectfully
request that the demand be stayed until a prompt determination can be
made. If the court or other authority requires compliance, regardless
of the fact that the Secretary has not made a determination, or the
fact that the Secretary decided either not to respond or decided to
respond subject to conditions or restrictions, the employee must choose
if so directed by an attorney representing the Department, to
respectfully decline to comply with the demand.

III. Proposed Changes to 24 CFR Part 15, Subpart D

Subpart D of 24 CFR part 15, currently titled ``Testimony of
Employees in Legal Proceedings,'' addresses testimony of HUD employees,
including expert or opinion testimony, with respect to material or
information contained in the files of the Department, or information
learned as part of the performance of their official duties or because
of their official status in any legal proceeding. However, subpart D
does not expressly list the standards that are followed in determining
whether testimony or production should be permitted and subject to what
conditions or restrictions, other than an express prohibition against
any HUD employee being called to testify as an expert or opinion
witness by any party other than the federal government, unless
specifically authorized by the Secretary or the General Counsel for
good cause shown. This proposed rule would amend Subpart D to set forth
and clarify the procedures to be followed and standards to be applied
in processing demands for the production of material or provision of
testimony in legal proceedings in which the United States is a party.
This proposed rule would revise the title of subpart D to more
clearly describe the scope of the regulations contained in the subpart
(the proposed new title would be ``Production of material or provision
of testimony in response to demands in legal proceedings in which the
United States is a party'').
The proposed rule would also revise Sec. 15.302 to provide that
demands for production of material or provision of testimony in any
legal proceeding in which the United States is a party will be directed
to the agency by the attorney representing the United States, after
which the Associate General Counsel for Litigation or designee will be
internally notified of the demand. Additionally, the blanket
authorization of factual testimony would be removed and the
determination of what testimony to approve would be made by HUD in
consultation with the attorney representing the federal government. The
content of Sec. 15.304 has been removed from the regulations because,
as a result of the other amendments now being proposed to this part, it
would no longer be necessary. The procedures governing legal
proceedings among private litigants are set forth in Sec. Sec. 15.201
through 15.206.

IV. Other Proposed Regulatory Changes

This proposed rule would also make certain technical corrections to
both subparts C and D of 24 CFR part 15. One such technical correction
is that the rule would not apply to any legal proceeding in which an
employee would testify, not on official time, as to opinions or facts
that do not involve covered material or information (i.e., are in no
way related to the duties the employee performs for, or to the
functions of, the Department). Such legal proceedings are outside the
scope of this proposed rule.
This proposed rule would also amend Sec. 15.1, which describes the
scope of each subpart in part 15, to conform the descriptions of
subparts C and D to the proposed regulatory changes. In addition, the
proposed rule would revise Sec. 15.2, which contains the definitions
for 24 CFR part 15, to set forth the defined terms applicable to
revised subparts C and D.

V. Findings and Certifications

Paperwork Reduction Act

The proposed information collection requirements contained in this
rule have been submitted to the Office of Management and Budget (OMB)
for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). Under this Act, an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless the collection displays a valid control number.

[[Page 46988]]

The public reporting burden for this collection of information is
estimated to include the time for reviewing the instructions, for
gathering and preparing the information required to be included in
demands, and for completing and reviewing the information to be provided.
The following table provides information on the estimated public
reporting burden:

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Number of Responses per Total annual Hours per
Information collection respondents respondent responses response Total hours
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Sec. 15.301......... 106 1 106 1.5 159
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In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning the
proposed collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
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;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
collection techniques or other forms of information technology (e.g.,
permitting responses to be submitted electronically). Interested
persons are invited to submit comments regarding the information
collection requirements in this proposal. Under the provisions of 5 CFR
1320, OMB is required to make a decision concerning this collection of
information between 30 and 60 days after today's publication date.
Therefore, any comment on the information collection requirements is
best assured of having its full effect if OMB receives the comment
within 30 days of today's publication. However, this time frame does
not affect the deadline for comments to the agency on the proposed
rule. Comments must refer to the proposal by the proposal's name and
docket number (FR-5015-P-01) and must be sent to:

HUD Desk Officer, Office of Management and Budget, New Executive Office
Building, Washington, DC 20503; and
Celestine R. Smith, Regulations and Directives Clearance Officer,
Office of the General Counsel, Office of Legislation and Regulations,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Room 10276, Washington, DC 20410-5000.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and subject to comment
rulemaking requirements, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. The regulatory amendments that would be made by this proposed
rule are procedural. Accordingly, the rule would not have any impact on
the substantive rights or duties of small entities requesting HUD
records under the Freedom of Information Act. Furthermore, because the
fees charged under this rule are limited by FOIA to direct costs of
searching for, reviewing, and duplicating the records processed for
requesters, the fees are not economically significant.
Accordingly, the undersigned certifies that this rule will not have
a significant economic impact on a substantial number of small
entities. Notwithstanding HUD's determination that this rule will not
have a significant effect on a substantial number of small entities,
HUD specifically invites comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in the preamble to this rule.

Environmental Impact

This proposed rule does not direct, provide for assistance, or loan
and mortgage insurance for, or otherwise govern or regulate, real
property acquisition, disposition, leasing, rehabilitation, alteration,
demolition, or new construction, or establish, revise, or provide for
standards for construction or construction materials, manufactured
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this
proposed rule is categorically excluded from the requirements of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Executive Order 13132, Federalism

Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This proposed rule does not have
federalism implications and does not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.1531-
1538) (UMRA) establishes requirements for federal agencies to assess
the effects of their regulatory actions on state, local, and tribal
governments, and on the private sector. This proposed rule does not
impose any federal mandates on any state, local, or tribal government,
or on the private sector, within the meaning of UMRA.

List of Subjects in 24 CFR Part 15

Classified information, Courts, Freedom of information, Government
employees, reporting and recordkeeping requirements.

Accordingly, for the reasons discussed in the preamble, HUD
proposes to amend 24 CFR part 15 to read as follows:

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF INFORMATION
ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD EMPLOYEES

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

Authority: 42 U.S.C. 3535(d).

2. Revise Sec. 15.1(b) and (c) to read as follows:

Sec. 15.1 What is the purpose of this part?

* * * * *
(b) Subpart C of this part. Subpart C of this part describes the
procedures to be followed and standards to be applied in processing
demands for the production of material or provision of

[[Page 46989]]

testimony in legal proceedings among private litigants.
(c) Subpart D of this part. Subpart D of this part describes the
procedures to be followed and standards to be applied in processing
demands for the production of material or provision of testimony in
legal proceedings in which the United States is a party.
* * * * *
3. In Sec. 15.2(b) add, in alphabetical order, definitions of the
terms ``Demand,'' ``Good cause,'' ``Material,'' ``Production,''
``Testimony,'' and ``United States'' to read as follows:

Sec. 15.2 Definitions.

* * * * *
Demand means a subpoena, order, or other demand of a court or other
authority that is issued in a legal proceeding and any accompanying
submissions.
* * * * *
Good cause means necessary to prevent a miscarriage of justice or
to promote a significant interest of the Department.
* * * * *
Material means either documents or information contained in or
relating to contents of the files of the Department or documents or
information acquired by any person while such person was an employee of
the Department as a part of the performance of his or her official
duties or because of his or her official status.
* * * * *
Production refers to the provision of material by any means other
than through the provision of oral testimony.
* * * * *
Testimony refers to any oral or written statements made in
litigation under oath or penalty of perjury.
* * * * *
United States refers to the Federal Government of the United States
(including the Department), the Secretary, and any employees of the
Department in their official capacities.
4. Revise subpart C to read as follows:

Subpart C--Production of Material or Provision of Testimony in
Response to Demands in Legal Proceedings Among Private Litigants

Sec.
15.201 Purpose and scope.
15.202 Production of material or provision of testimony prohibited
unless approved by the Secretary or General Counsel.
15.203 Making a demand for production of material or provision of
testimony.
15.204 Consideration of demands for production of material or
provision of testimony.
15.205 Method of production of material or provision of testimony.
15.206 Procedure in the event of an adverse ruling regarding
production of material or provision of testimony.

Sec. 15.201 Purpose and scope.

(a) This subpart contains the regulations of the Department
concerning the procedures to be followed and standards to be applied
when demand is issued in a legal proceeding among private litigants for
the production or disclosure of any material, whether provided through
production of material or provision of testimony.
(b) This subpart does not apply to demands, which are covered by
part 2004 of this title, for production of material in the files of the
Office of Inspector General or provision of testimony by employees
within the Office of Inspector General.

Sec. 15.202 Production of material or provision of testimony
prohibited unless approved by the Secretary or General Counsel.

Neither the Department nor any employee of the Department shall
comply with any demand for production of material or provision of
testimony in a legal proceeding among private litigants, unless the
prior approval of the Secretary or General Counsel has been obtained in
accordance with this subpart. This rule does not apply to any legal
proceeding in which an employee may be called to participate, either
through the production of documents or the provision of testimony, not
on official time, as to facts or opinions that are in no way related to
material described in Sec. 15.201.

Sec. 15.203 Making a demand for production of material or provision
of testimony.

(a) Any demand made to the Department or an employee of the
Department to produce any material or provide any testimony in a legal
proceeding among private litigants, must:
(1) Be submitted in writing to the Department or employee of the
Department, with a copy to the Associate General Counsel for
Litigation, no later than 30 days before the date the material or
testimony is required;
(2) State, with particularity, the material or testimony sought;
(3) State whether expert or opinion testimony will be sought from
the employee;
(4) State whether the production of such material or provision of
such testimony could reveal classified, confidential, or privileged
material;
(5) Summarize the need for and relevance of the material or
testimony sought in the legal proceeding;
(6) State whether the material or testimony is available from any
other source and, if so, state all such other sources;
(7) State why no document[s], or declaration or affidavit, could be
used in lieu of oral testimony that is being sought;
(8) Estimate the amount of time the employee will need in order to
prepare for, travel to, and attend the legal proceeding, as appropriate;
(9) State why the production of the material or provision of the
testimony is appropriate under the rules of procedure governing the
legal proceeding for which it is sought (e.g., not unduly burdensome or
otherwise inappropriate under the relevant rules governing discovery);
and
(10) Describe how producing such material or providing such
testimony would affect the interests of the United States.
(b) Whenever a demand is made upon the Department or an employee of
the Department for the production of material or provision of
testimony, the Associate General Counsel for Litigation or designee
shall be notified immediately. The Associate General Counsel for
Litigation or designee shall maintain a record of all demands served
upon the Department and refer the demand to the appropriate designee
for processing and determination.

Sec. 15.204 Consideration of demands for production of material or
provision of testimony.

(a) The Secretary or General Counsel shall determine what material
is to be produced or what testimony is to be provided, based upon the
following standards:
(1) Expert or opinion material or testimony. In any legal
proceeding among private litigants, no employee of the Department may
produce material or provide testimony as described in Sec. 15.201 that
is of an expert or opinion nature, unless specifically authorized by
the Secretary or the General Counsel for good cause shown.
(2) Factual material or testimony. In any legal proceeding among
private litigants, no employee of the Department may produce material
or provide testimony as described in Sec. 15.201 unless specifically
authorized by the Secretary or General Counsel. Such authorization may
be granted if the Secretary or General Counsel determines that it is
warranted based upon an assessment of whether:

[[Page 46990]]

(i) Producing such material or providing such testimony would
violate a statute or regulation;
(ii) Producing such material or providing such testimony would
reveal classified, confidential, or privileged material;
(iii) Such material or testimony is relevant to the legal proceeding;
(iv) Such material or testimony can be obtained from any other source;
(v) One or more documents, or a declaration or affidavit, could
reasonably be provided in lieu of oral testimony;
(vi) The amount of employees' time necessary to comply with the
demand is reasonable;
(vii) Production of the material or provision of the testimony is
appropriate under the rules of procedure governing the legal proceeding
for which it is sought (e.g., unduly burdensome or otherwise
inappropriate under the relevant rules governing discovery); and
(viii) Producing such material or providing such testimony would
impede a significant interest of the United States.
(b) Once a determination has been made, the requester will be
notified of the determination, the reasons for the grant or denial of
the demand, and any conditions that have been imposed upon the
production of the material or provision of the testimony demanded.
(c) The Secretary or General Counsel may impose conditions or
restrictions on the production of any material or provision of any
testimony. Such conditions or restrictions may include the following:
(1) A requirement that the parties to the legal proceeding obtain a
protective order or execute a confidentiality agreement, the terms of
which must be acceptable to the Secretary or General Counsel, to limit
access to, and limit any further disclosure of, material or testimony;
(2) A requirement that the requester accept examination of
documentary material on HUD premises in lieu of production of copies;
(3) A limitation on the subject areas of testimony permitted;
(4) A requirement that testimony of a HUD employee be provided by
deposition at a location prescribed by HUD or by written declaration or
affidavit;
(5) A requirement that the parties to the legal proceeding agree
that a transcript of the permitted testimony be kept under seal or will
only be used or made available in the particular legal proceeding for
which testimony was demanded;
(6) A requirement that the requester provide the Department with a
copy of a transcript of the employee's testimony free of charge; or
(7) Any other condition or restriction deemed to be in the best
interests of the United States.
(d) The determination made with respect to the production of
material or provision of testimony is within the sole discretion of the
Secretary or General Counsel and shall constitute final agency action
from which no administrative appeal is available.

Sec. 15.205 Method of production of material or provision of testimony.

(a) Where the Secretary or General Counsel has authorized the
production of material or provision of testimony, the Department shall
produce such material or provide such testimony in accordance with this
section and any conditions imposed upon production of material or
provision of testimony pursuant to Sec. 15.204.
(b) In any legal proceeding where the Secretary or General Counsel
has authorized the production of documents, the Department shall
respond by producing authenticated copies of the documents, to which
the seal of the Department has been affixed, in accordance with its
authentication procedures. That authentication shall be evidence that
the documents are true copies of documents in the Department's files
and be sufficient for the purposes of Rule 902 of the Federal Rules of
Evidence.
(c) If response to the demand is required before the determination
from the Secretary or General Counsel is received, the U.S. Attorney,
or such other attorney as may be designated for the purpose, will
appear or make such filings as are necessary to furnish the court or
other authority with a copy of the regulations contained in this
subpart and inform the court or other authority that the demand has
been, or is being, as the case may be, referred for prompt
consideration. The court or other authority shall be requested
respectfully to stay the demand pending receipt of the requested
determination from the Secretary or General Counsel.

Sec. 15.206 Procedure in the event of an adverse ruling regarding
production of material or provision of testimony.

If the court or other authority declines to stay the demand made in
accordance with Sec. 15.205 pending receipt of the determination from
the Secretary or General Counsel, or if the court or other authority
rules that the demand must be complied with irrespective of the
determination by the Secretary or General Counsel not to produce the
material or provide the testimony demanded or to produce subject to
conditions or restrictions, the employee upon whom the demand has been
made shall, if so directed by an attorney representing the Department,
respectfully decline to comply with the demand. (United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951)).
5. Revise subpart D to read as follows:

Subpart D--Production of Material or Provision of Testimony in
Response to Demands in Legal Proceedings in Which the United States
is a Party

Sec.
15.301 Purpose and scope.
15.302 Procedure for review of demands for production of material or
provision of testimony in any legal proceeding in which the United
States is a party.
15.303 Consideration of demands for production of material or
provision of testimony.
15.304 Method of production of material or provision of testimony.

Sec. 15.301 Purpose and scope.

(a) This subpart contains the regulations of the Department
concerning the procedures to be followed and standards to be applied
when demand is issued in a legal proceeding in which the United States
is a party for the production or disclosure of any material, whether
provided through production of material or provision of testimony.
(b) This subpart does not apply to demands, which are covered by
part 2004 of this title, for production of material in the files of the
Office of Inspector General or provision of testimony by employees
within the Office of Inspector General.

Sec. 15.302 Procedure for review of demands for production of
material or provision of testimony in any legal proceeding in which the
United States is a party.

All demands for production of material or provision of testimony in
any legal proceeding in which the United States is a party shall be
directed to the agency through the attorney representing the United
States in the proceeding. Whenever the Department or an employee of the
Department is notified by the attorney representing the United States
of the demand for the production of material or provision of testimony
in any legal proceeding in which the United States is a party, the
Associate General Counsel for Litigation or designee shall be notified
immediately.

[[Page 46991]]

Sec. 15.303 Consideration of demands for production of material or
provision of testimony.

(a) The Secretary or General Counsel shall consult with the
attorney representing the United States, as to the response to the
demand for production of material, or to the provision of testimony.
(b) An employee of the Department may not testify as an expert or
opinion witness unless specifically authorized by the Secretary or the
General Counsel for good cause shown.

Sec. 15.304 Method of production of material or provision of testimony.

Where the Secretary or General Counsel has authorized the
production of material or provision of testimony, the Associate General
Counsel for Litigation or designee shall arrange for the production of
any authorized material or provision of any authorized testimony
through the attorney representing the United States. Where the
Secretary or General Counsel has authorized the production of
documents, the Department may respond by producing authenticated copies
of the documents, to which the seal of the Department has been affixed
in accordance with its authentication procedures. That authentication
shall be evidence that the documents are true copies of documents in
the Department's files and be sufficient for the purposes of Rule 902
of the Federal Rules of Evidence.

Dated: July 12, 2006.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. 06-6882 Filed 8-14-06; 8:45 am]
BILLING CODE 4210-67-P

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