82 FR 35134 - Touhy Regulations
MILLENNIUM CHALLENGE CORPORATION Federal Register Volume 82, Issue 144 (July 28, 2017)
Federal Register Volume 82, Issue 144 (July 28, 2017)
| Page Range | 35134-35136 | |
| FR Document | 2017-13922 |
[Federal Register Volume 82, Number 144 (Friday, July 28, 2017)] [Proposed Rules] [Pages 35134-35136] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-13922] [[Page 35134]] ======================================================================= ----------------------------------------------------------------------- MILLENNIUM CHALLENGE CORPORATION 22 CFR Part 1305 [MCC FR 17-03] Touhy Regulations AGENCY: Millennium Challenge Corporation. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The purpose of this document is to provide an update to the outline of the procedures by which the Millennium Challenge Corporation proposes to respond to subpoenas or other official demands for information and testimony served upon itself or its employees. DATES: Submit comments on or before September 26, 2017. ADDRESSES: Send comments to: Office of the General Counsel, Millennium Challenge Corporation, 1099 14th Street NW., Washington, DC 20005. FOR FURTHER INFORMATION CONTACT: Tamiko N.W. Watkins, Office of the General Counsel, Millennium Challenge Corporation, 1099 14th Street NW., Washington, DC 20005. SUPPLEMENTARY INFORMATION: The United States Supreme Court held in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), that the head of a federal agency may make the determination on his/her sole authority to produce documents and authorize employee's testimony in response to a subpoena or other demand for information. This proposed regulation will govern the Millennium Challenge Corporation's procedures for producing documents authorizing employer testimony in response to a subpoena or other formal demand for information served upon the agency. List of Subjects in 22 CFR Part 1305 Administrative practice and procedure, Courts, Government employees, Archives and records. For the reasons set forth above, the Millennium Challenge Corporation proposes to amend Chapter XIII of 22 CFR by revising part 1305 to read as follows: PART 1305--RELEASE OF OFFICIAL INFORMATION AND TESTIMONY BY MCC PERSONNEL AS WITNESSES Sec. 1305.1 Purpose and scope. 1305.2 Definitions. 1305.3 Production prohibited unless approved. 1305.4 Factors the General Counsel may consider. 1305.5 Service of demands. 1305.6 Processing demands. 1305.7 Final determination. 1305.8 Restrictions that apply to testimony. 1305.9 Restrictions that apply to released documents. 1305.10 Procedure when a decision is not made prior to the time a response is required. 1305.11 Procedure in the event of an adverse ruling. 1305.12 No private right of action. Authority: 5 U.S.C. 301. Sec. 1305.1 Purpose and scope. Pursuant to 5 U.S.C. 301, the head of an executive department or military department may prescribe regulations for the government of his/her department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. Section 301 does not authorize withholding information from the public or limiting the availability of records to the public. This part contains the regulations of the Millennium Challenge Corporation (MCC) concerning procedures to be followed when a request, subpoena, order or other demand (hereinafter in this part referred to as a ``demand'') of a court or other authorities in any state or federal proceeding is issued for the production or disclosure of: (a) Any material contained in the files of MCC; (b) Any information relating to materials contained in the files of MCC; or (c) Any information or material acquired by an employee of MCC during the performance of the employee's official duties or because of the employee's official status. Sec. 1305.2 Definitions. For purposes of this part: (a) Demand means a request, order, or subpoena for testimony or documents related to or for possible use in a legal proceeding. (b) Document means any record or other property, no matter what media and including copies thereof, held by MCC, including without limitation, official letters, telegrams, memoranda, reports, studies, calendar and diary entries, maps, graphs, pamphlets, notes, charts, tabulations, analyses, statistical or informational accumulations, any kind of summaries of meetings and conversations, film impressions, magnetic tapes and sound or mechanical reproductions. (c) Employee means all employees and officers of MCC, including contractors who have been appointed by, or are subject to the supervision, jurisdiction or control of MCC. The procedures established within this part also apply to former employees and contractors of MCC. (d) General Counsel means the General Counsel or MCC employee to whom the General Counsel has delegated authority to act under this subpart. Sec. 1305.3 Production prohibited unless approved. No employee or former employee shall, in response to a demand of a court or other authority, disclose any information relating to materials contained in the files of MCC, 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, record without the prior, written approval of the General Counsel. Sec. 1305.4 Factors the General Counsel may consider. (a) In deciding whether to authorize the release of official information or the testimony of employees concerning official information, the General Counsel shall consider the following factors: (1) Whether the demand is unduly burdensome; (2) MCC's ability to maintain impartiality in conducting its business; (3) Whether the time and money of the United States would be used for private purposes; (4) The extent to which the time of employees for conducting official business would be compromised; (5) Whether the public might misconstrue variances between personal opinions of employees and MCC policy; (6) Whether the demand demonstrates that the information requested is relevant and material to the action pending, genuinely necessary to the proceeding, unavailable from other sources, and reasonable in its scope; (7) Whether the number of similar demands would have a cumulative effect on the expenditure of agency resources; (8) Whether disclosure otherwise would be inappropriate under the circumstances; and (9) Any other factor that is appropriate. (b) Among those demands in response to which compliance will not ordinarily be authorized are those with respect to which any of the following factors exists: (1) The disclosure would violate a statute, Executive order, or regulation; (2) The integrity of the administrative and deliberative processes of MCC Department would be compromised; [[Page 35135]] (3) The disclosure would not be appropriate under the rules of procedure governing the case or matter in which the demand arose; (4) The disclosure, including release in camera, is not appropriate or necessary under the relevant substantive law concerning privilege; (5) The disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified or other matters exempt from unrestricted disclosure; or (6) The disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, or disclose trade secrets or similarly confidential commercial or financial information. Sec. 1305.5 Service of demands. Demands for official documents, information or testimony must be in writing, and served on the General Counsel, Millennium Challenge Corporation, 1099 14th Street NW., Washington, DC 20005. Sec. 1305.6 Processing demands. (a) After service of a demand to produce or disclose official documents and information, the General Counsel will review the demand and, in accordance with the provisions of this subpart, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official information and/or produce official documents. (b) If information or material is sought by a demand in any case or matter in which MCC 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/her 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 MCC shall be limited to the scope of the demand. (c) When necessary, the General Counsel will coordinate with the Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order. (d) If a demand fails to follow the requirements of these regulations, MCC will not allow the testimony or produce the documents. (e) MCC will process demands in the order in which they are received. Absent unusual circumstances, MCC will respond within 45 days of the date that the demand was received. The time for response will depend upon the scope of the demand. (f) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of MCC or the United States or for other good cause. Sec. 1305.7 Final determination. The General Counsel makes the final determination on demands to employees for production of official documents and information or testimony. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and the Court or other authority of the final determination, the reasons for the grant or denial of the demand, and any conditions that the General Counsel may impose on the release of documents, or on the testimony of an employee. When in doubt about the propriety of granting or denying a demand for testimony or documents, the General Counsel should consult with the Department of Justice. Sec. 1305.8 Restrictions that apply to testimony. (a) The General Counsel may impose conditions or restrictions on the testimony of MCC employees including, for example, limiting the areas of testimony or requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal or will only be used or made available in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the requester's expense. (b) MCC may offer the employee's declaration in lieu of testimony, in whatever form the court finds acceptable. (c) If authorized to testify pursuant to this part, an employee may testify to relevant unclassified materials or information within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not: (1) Disclose confidential or privileged information; or (2) For a current MCC employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of MCC, unless testimony is being given on behalf of the United States. Sec. 1305.9 Restrictions that apply to released documents. (a) The General Counsel may impose conditions or restrictions on the release of official documents and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of the confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, MCC may condition the release of official documents and information on an amendment to the existing protective order or confidentiality agreement. (b) If the General Counsel so determines, original MCC documents may be presented in response to a demand, but they are not to be presented as evidence or otherwise used in a manner by which they could lose their identity as official MCC documents nor are they to be marked or altered. In lieu of original records, certified copies will be presented for evidentiary purposes. (See 28 U.S.C. 1733). Sec. 1305.10 Procedure when a decision is not made prior to the time a response is required. If a response to a demand is required before the General Counsel can make the determination referred to above, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the demand is being reviewed, and respectfully seek a stay of the demand pending a final determination. Sec. 1305.11 Procedure in the event of an adverse ruling. If the court or other competent authority declines to stay the demand in response to a request made in accordance with Sec. 1305.10, or if the court or other competent 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. 1305.12 No private right of action. This part is intended only to provide guidance for the internal operations of MCC, and is not intended to, and does not, and may not be relied upon, to create a right or benefit, substantive or [[Page 35136]] procedural, enforceable at law by a party against the United States. Dated: June 27, 2017. Thomas G. Hohenthaner, Vice President, General Counsel and Corporate Secretary (Acting), Millennium Challenge Corporation. [FR Doc. 2017-13922 Filed 7-27-17; 8:45 am] BILLING CODE 9211-03-P
![35134 Federal Register / Vol. 82, No. 144 / Friday, July 28, 2017 / Proposed Rules
MILLENNIUM CHALLENGE 1305.5 Service of demands. jurisdiction or control of MCC. The
CORPORATION 1305.6 Processing demands. procedures established within this part
1305.7 Final determination. also apply to former employees and
22 CFR Part 1305 1305.8 Restrictions that apply to testimony. contractors of MCC.
1305.9 Restrictions that apply to released
(d) General Counsel means the
[MCC FR 17–03] documents.
1305.10 Procedure when a decision is not General Counsel or MCC employee to
Touhy Regulations made prior to the time a response is whom the General Counsel has
required. delegated authority to act under this
AGENCY: Millennium Challenge 1305.11 Procedure in the event of an subpart.
Corporation. adverse ruling.
1305.12 No private right of action. § 1305.3 Production prohibited unless
ACTION: Notice of proposed rulemaking.
approved.
Authority: 5 U.S.C. 301.
SUMMARY: The purpose of this document No employee or former employee
is to provide an update to the outline of § 1305.1 Purpose and scope. shall, in response to a demand of a court
the procedures by which the Pursuant to 5 U.S.C. 301, the head of or other authority, disclose any
Millennium Challenge Corporation an executive department or military information relating to materials
proposes to respond to subpoenas or department may prescribe regulations contained in the files of MCC, or
other official demands for information for the government of his/her disclose any information or produce any
and testimony served upon itself or its department, the conduct of its material acquired as part of the
employees. employees, the distribution and performance of the person’s official
DATES: Submit comments on or before performance of its business, and the duties, or because of the person’s
September 26, 2017. custody, use, and preservation of its official status, record without the prior,
records, papers, and property. Section written approval of the General Counsel.
ADDRESSES: Send comments to: Office of
the General Counsel, Millennium 301 does not authorize withholding § 1305.4 Factors the General Counsel may
Challenge Corporation, 1099 14th Street information from the public or limiting consider.
NW., Washington, DC 20005. the availability of records to the public. (a) In deciding whether to authorize
This part contains the regulations of the the release of official information or the
FOR FURTHER INFORMATION CONTACT:
Millennium Challenge Corporation testimony of employees concerning
Tamiko N.W. Watkins, Office of the
(MCC) concerning procedures to be official information, the General
General Counsel, Millennium Challenge
followed when a request, subpoena, Counsel shall consider the following
Corporation, 1099 14th Street NW.,
order or other demand (hereinafter in factors:
Washington, DC 20005.
this part referred to as a ‘‘demand’’) of (1) Whether the demand is unduly
SUPPLEMENTARY INFORMATION: The a court or other authorities in any state
United States Supreme Court held in burdensome;
or federal proceeding is issued for the (2) MCC’s ability to maintain
United States ex rel. Touhy v. Ragen, production or disclosure of: impartiality in conducting its business;
340 U.S. 462 (1951), that the head of a (a) Any material contained in the files (3) Whether the time and money of
federal agency may make the of MCC; the United States would be used for
determination on his/her sole authority (b) Any information relating to private purposes;
to produce documents and authorize materials contained in the files of MCC; (4) The extent to which the time of
employee’s testimony in response to a or employees for conducting official
subpoena or other demand for (c) Any information or material business would be compromised;
information. This proposed regulation acquired by an employee of MCC during (5) Whether the public might
will govern the Millennium Challenge the performance of the employee’s misconstrue variances between personal
Corporation’s procedures for producing official duties or because of the opinions of employees and MCC policy;
documents authorizing employer employee’s official status. (6) Whether the demand demonstrates
testimony in response to a subpoena or that the information requested is
other formal demand for information § 1305.2 Definitions.
relevant and material to the action
served upon the agency. For purposes of this part: pending, genuinely necessary to the
(a) Demand means a request, order, or proceeding, unavailable from other
List of Subjects in 22 CFR Part 1305 subpoena for testimony or documents sources, and reasonable in its scope;
Administrative practice and related to or for possible use in a legal (7) Whether the number of similar
procedure, Courts, Government proceeding. demands would have a cumulative
employees, Archives and records. (b) Document means any record or effect on the expenditure of agency
For the reasons set forth above, the other property, no matter what media resources;
Millennium Challenge Corporation and including copies thereof, held by (8) Whether disclosure otherwise
proposes to amend Chapter XIII of 22 MCC, including without limitation, would be inappropriate under the
CFR by revising part 1305 to read as official letters, telegrams, memoranda, circumstances; and
follows: reports, studies, calendar and diary (9) Any other factor that is
entries, maps, graphs, pamphlets, notes, appropriate.
PART 1305—RELEASE OF OFFICIAL charts, tabulations, analyses, statistical
asabaliauskas on DSKBBXCHB2PROD with PROPOSALS
(b) Among those demands in response
INFORMATION AND TESTIMONY BY or informational accumulations, any to which compliance will not ordinarily
MCC PERSONNEL AS WITNESSES kind of summaries of meetings and be authorized are those with respect to
conversations, film impressions, which any of the following factors
Sec.
1305.1 Purpose and scope.
magnetic tapes and sound or exists:
1305.2 Definitions. mechanical reproductions. (1) The disclosure would violate a
1305.3 Production prohibited unless (c) Employee means all employees statute, Executive order, or regulation;
approved. and officers of MCC, including (2) The integrity of the administrative
1305.4 Factors the General Counsel may contractors who have been appointed and deliberative processes of MCC
consider. by, or are subject to the supervision, Department would be compromised;
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![35136 Federal Register / Vol. 82, No. 144 / Friday, July 28, 2017 / Proposed Rules
procedural, enforceable at law by a DHS Department of Homeland Security Captain of the Port or her designated
party against the United States. E.O. Executive order representative. General boating public
FR Federal Register would be notified prior to the
Dated: June 27, 2017. LLNR Light List Number
Thomas G. Hohenthaner,
enforcement of the security zone via
NPRM Notice of proposed rulemaking
Pub. L. Public Law Broadcast Notice to Mariners. The
Vice President, General Counsel and
§ Section regulatory text we are proposing appears
Corporate Secretary (Acting), Millennium
Challenge Corporation. U.S.C. United States Code at the end of this document.
[FR Doc. 2017–13922 Filed 7–27–17; 8:45 am] II. Background, Purpose, and Legal IV. Regulatory Analyses
BILLING CODE 9211–03–P Basis We developed this proposed rule after
The Port of Los Angeles and the City considering numerous statutes and
of Los Angeles Fleet Week Committee executive orders (E.O.s) related to
DEPARTMENT OF HOMELAND has notified the Coast Guard that it will rulemaking. Below we summarize our
SECURITY be conducting an annual LA Fleet Week analyses based on a number of these
event at the LA World Cruise Center, statutes and E.O.s, and we discuss First
Coast Guard Berth 90–93, annually for a period of Amendment rights of protestors.
seven days around the Labor Day A. Regulatory Planning and Review
33 CFR Part 165 holiday weekend. The event at the LA
[Docket Number USCG–2017–0645] World Cruise Center is expected to Executive Orders 12866 and 13563
generate over 250,000 people in direct agencies to assess the costs and
RIN 1625–AA87 benefits of available regulatory
attendance each year. Hazards
associated with event security may arise alternatives and, if regulation is
Security Zone; Los Angeles Fleet necessary, to select regulatory
Week, San Pedro, California due to the expected high concentration
of people in attendance for the event, approaches that maximize net benefits.
AGENCY: Coast Guard, DHS. including potential visits from Executive Order 13771 directs agencies
ACTION: Notice of proposed rulemaking. dignitaries and VIP participants, within to control regulatory costs through a
the main shipping channel of the budgeting process. This NPRM has not
SUMMARY: The U.S. Coast Guard nation’s most economically vital port been designated a ‘‘significant
proposes establishing a security zone in complex. There is increased awareness regulatory action,’’ under Executive
the Port of Los Angeles Main Channel, regarding recent national and Order 12866. Accordingly, the NPRM
in support of Los Angeles Fleet Week. worldwide events that have has not been reviewed by the Office of
This action is necessary to protect the demonstrated direct threats to the Management and Budget (OMB), and
area surrounding the LA World Cruise security of large crowds in attendance pursuant to OMB guidance it is exempt
Center and the high concentration of for various high profile events. The from the requirements of Executive
people attending the event. This Captain of the Port Los Angeles-Long Order 13771.
proposed rulemaking is necessary to Beach has determined that potential This regulatory action determination
prohibit vessels from entering into, hazards associated with the number of is based on the size, location, and
transiting through, or remaining within people expected to be in attendance on duration of the security zone.
the designated area unless specifically the vessels and pier within LA Harbor Commercial vessel traffic will be able to
authorized by the Captain of the Port, are a significant concern for public safely transit through this security zone,
Los Angeles-Long Beach, or her security. which will impact a designated area of
designated representative. We invite The purpose of this rulemaking is to the LA main channel in the vicinity of
your comments on this proposed ensure the safety of, and reduce the risk the World Cruise Center Berth 90–93.
rulemaking. to, the persons in attendance for LA The Coast Guard and Inter Agency
DATES: Comments and related material Fleet Week. The Coast Guard proposes Unified Command will establish
must be received by the Coast Guard on this rulemaking under the authority of communications with the LA Pilots and
or before August 21, 2017. 33 U.S.C. 1231. Vessel Traffic Service/Marine Exchange
ADDRESSES: You may submit comments
to coordinate and mitigate all inbound
III. Discussion of Proposed Rule
identified by docket number USCG– and outbound commercial traffic
The COTP proposes to establish a movements through the security zone.
2017–0645 using the Federal security zone for 7 days during the
eRulemaking Portal at http:// Recreational traffic will be able to
Labor Day holiday weekend in August transit around this security zone, which
www.regulations.gov. See the ‘‘Public and September during the Fleet Week.
Participation and Request for extends 200 yds into the LA main
The security zone would encompass all channel leaving 150 to 200 yds of transit
Comments’’ portion of the navigable waters from the surface to the
SUPPLEMENTARY INFORMATION section for
area for small vessel traffic to pass
sea floor consisting of a line connecting around the security zone.
further instructions on submitting the following coordinates: 33°44.967′
comments. N., 118°16.664′ W.; 33°44.874′ N., B. Impact on Small Entities
FOR FURTHER INFORMATION CONTACT: If 118°16.362′ W.; 33°44.662′ N., The Regulatory Flexibility Act of
you have questions about this proposed 118°16.454′ W.; 33°44.370′ N., 1980, 5 U.S.C. 601–612, as amended,
asabaliauskas on DSKBBXCHB2PROD with PROPOSALS
rulemaking, call or email BMC James 118°16.580′ W.; and 33°44.386′ N., requires Federal agencies to consider
Morgia, Waterways Management, U.S. 118°16.696′ W. All coordinates the potential impact of regulations on
Coast Guard Sector Los Angeles-Long displayed are referenced by North small entities during rulemaking. The
Beach; telephone (310) 521–3860, email American Datum of 1983, World term ‘‘small entities’’ comprises small
James.M.Morgia@uscg.mil. Geodetic System, 1984. During the businesses, not-for-profit organizations
SUPPLEMENTARY INFORMATION: enforcement period, vessels are that are independently owned and
prohibited from entering into, transiting operated and are not dominant in their
I. Table of Abbreviations through, or remaining within the fields, and governmental jurisdictions
CFR Code of Federal Regulations designated area unless authorized by the with populations of less than 50,000.
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Document Created: 2017-07-28 03:11:01
Document Modified: 2017-07-28 03:11:01
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Submit comments on or before September 26, 2017. | |
| Contact | Tamiko N.W. Watkins, Office of the General Counsel, Millennium Challenge Corporation, 1099 14th Street NW., Washington, DC 20005. | |
| FR Citation | 82 FR 35134 | |
| CFR Associated | Administrative Practice and Procedure; Courts; Government Employees and Archives and Records |
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