SUPPLEMENTARY INFORMATION:

I. Background

This action amends the regulations at 15 CFR part 15, subpart B, which govern testimony by current and former employees of the Department and the production of documents in legal proceedings. Those regulations were promulgated on February 17, 1995 (60 FR 9291), and redesignated on April 23, 1997 (62 FR 19669). The cited statutory bases for the regulations include, among others, 5 U.S.C. 301, which grants the Secretary of Commerce the authority to “prescribe regulations for the government of his department, the conduct of its employees, . . . and the custody, use, and preservation of its records, papers, and property”; and 5 U.S.C. 1512, which vests the Department “with jurisdiction and control” over its “bureaus, offices, and branches.”

The regulations at part 15, subpart B, are known as the Department's “Touhy regulations,” referring to the Supreme Court's decision in Touhy v. Ragen, 340 U.S. 462 (1951). In that case, the Supreme Court held that a subordinate official of the Department of Justice could lawfully refuse to obey a subpoena duces tecum ordering the production of government papers in his possession pursuant to a housekeeping regulation issued by the Attorney General. Id. at 463-70. Accordingly, many Federal agencies have promulgated their own Touhy regulations restricting subordinate officials from testifying or producing agency records in legal proceedings without certain prior approval from the agency head or his designee. See, e.g.,32 CFR part 97 (Department of War); 7 CFR part 1, subpart K (Department of Agriculture); 43 CFR part 2, subpart L (Department of the Interior); 6 CFR part 5, subpart C (Department of Homeland Security).

As for the Department of Commerce's Touhy regulations, subpart B consists of eight sections. See15 CFR 15.11-15.18. Section 15.11 describes the scope of the subpart; clarifies that the subpart does not apply to certain scenarios ( e.g., testimony while on leave status regarding facts or events unrelated to the official business of the Department, subpoenas for testimony from Congress, demands for testimony by the United States Patent and Trademark Office (USPTO)); and notes that the 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. Section 15.12 sets forth various definitions for the subpart. Section 15.13 sets forth general rules and restrictions governing demands for the testimony of an employee or for the production of documents of the Department; namely, it establishes that “[n]o 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.” Section 15.14 sets forth additional rules and restrictions governing demands for the testimony of an employee or for the production of documents of the Department with respect to matters in which the United States is not a party, and section 15.15 does the same with respect to matters in which the United States is a party. Section 15.16 elaborates on the policy and factors to be considered by the General Counsel or appropriate agency counsel when determining whether disclosure or testimony is in the interests of the Department. Section 15.17 addresses the scenario of demands served upon employees or former employees of the Office of the Inspector General. Lastly, section 15.18 re-addresses the issue of testimony of Department employees in proceedings involving the United States.

II. Discussion

This action amends the regulations at part 15, subpart B, in the following ways.

First, this action removes text that is plainly redundant. In particular, this action removes from § 15.11(a) the ( printed page 65965) language prohibiting compliance with certain demands without prior authorization, as that language merely previews the more-detailed restrictions set forth throughout the rest of subpart B. This action also amends §§ 15.12 and 15.15(c) by replacing redundant text ( i.e., duplicative definitions and language regarding expert or opinion witnesses in matters in which the United States is a party) with cross-references to earlier portions of part 15 that set forth substantially identical language. This action eliminates § 15.18 entirely, as that section merely restates certain language found at § 15.15(a) and (b) and re-addresses the issue of testimony of Department employees in proceedings involving the United States. These changes streamline subpart B of part 15, and reduce the possibility of confusion associated with redundant text, without making any meaningful substantive changes to the contents of part 15.

Second, this action removes unnecessary citations and references to authorities that speak for themselves. For instance, this action removes from §§ 15.13(d)(2) and 15.14(g)(1)(ii) ( i.e., two subsections addressing when it is appropriate for employees to refuse to provide testimony or produce documents) the citations to Touhy v. Ragen, 340 U.S. 462 (1951); that Supreme Court decision is sufficiently well established, and these bare citations to it do not provide enough explanatory or contextual value to justify their continued presence in the Code of Federal Regulations. Similarly, this action removes from §§ 15.11(d) and 15.13(b)(2) the cross-references to the USPTO regulations at 37 CFR part 104, while keeping intact the general clarification that subpart B does not apply to demands for testimony of an employee or for the production of documents of the USPTO; the regulations at 37 CFR part 104 are already sufficiently available to the public, and removing the cross-references thereto streamlines subpart B and also eliminates the possibility of confusion in the event that the USPTO regulations are reclassified.

Third, this action removes—and consolidates, as appropriate—a miscellaneous set of unnecessary and excessive regulatory text. Specifically, this action removes: (1) language requiring employees to make certain communications about declining or refusing to comply “respectfully,” see §§ 15.13(d)(2) and 15.14(f)-(g); (2) language elaborating on the purpose of certain regulatory requirements, see §§ 15.14(b) and 15.15(b); (3) language stating that, “where a statute or Presidential order mandates a personal decision by the Secretary,” he “retains” the authority to make such a decision, see § 15.14(d); and (4) language elaborating on the Department's internal administrative processes and requirements related to legal review, consultation, and authorization, see §§ 15.11(e), 15.13(d)(1), 15.13(d)(2), 15.14(g)(1), 15.14(g)(1)(i)(C), 15.15(a). None of this language is necessary and, upon review, the Department considers the continued maintenance of such language in the Code of Federal Regulations to be unwarranted.

Overall, this action simplifies and streamlines the regulations at part 15, subpart B, without significantly altering any entitlements, obligations, or processes in connection with testimony by Department employees or the production of Department documents.

Regulatory Classifications

A. Administrative Procedure Act

Pursuant to 5 U.S.C. 553(a)(2), the provisions of the Administrative Procedure Act requiring notice of proposed rulemaking and the opportunity for public participation are inapplicable to this rule because it concerns “a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” This rule sets forth requirements and restrictions regarding the testimony of Department employees and the production of Department documents; accordingly, it plainly concerns agency management, personnel, and property.

The Department also finds good cause to waive the prior notice and opportunity for public participation requirements of the Administrative Procedure Act for this final rule pursuant to 5 U.S.C. 553(b)(B). The Department has determined that prior notice and opportunity for public participation is unnecessary and unwarranted, because this rule merely removes and/or replaces excess regulatory text; none of the text being removed by this rule is required by any authority, and none of the removals will meaningfully impact any substantive requirement, restriction, or entitlement. This action is consistent with the Department's commitment to pursuing regulatory simplicity and efficiency, and the Department considers public participation impracticable for this housekeeping action.

Similarly, the Department has determined that delaying the effectiveness of this rule would be contrary to the public interest. The described removals and amendments will streamline part 15, subpart B—and thereby enhance clarity and minimize the possibility of confusion and/or distraction—without meaningfully altering any requirement, restriction, or entitlement, and at little to no cost. These regulatory revisions do not require any affected entity to take any advance action to come into compliance with any provision.

For these reasons, the Department issues this final rule without prior public notice and comment or a delayed effective date pursuant to 5 U.S.C. 553(a)(2). Additionally, the Department finds good cause to waive the public notice and comment period under 553(b)(B) and to waive the 30-day delay in effectiveness under 553(d)(3).

B. Executive Orders 12866, 14192, and 13132

The Office of Management and Budget has determined this rule is not significant pursuant to Executive Order (E.O.) 12866. This rule is an E.O. 14192 deregulatory action. This rule does not contain policies having federalism implications as the term is defined in E.O. 13132.

C. Regulatory Flexibility Act

Because a notice of proposed rulemaking and an opportunity for public participation are not required to be given for this rule by 5 U.S.C. 553(b)(B), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

D. Paperwork Reduction Act

This rule will not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

Accordingly, for the reasons set forth above, part 15 of title 15 of the Code of Federal Regulations is amended as follows:

91 FR 65964