[Federal Register Volume 79, Number 147 (Thursday, July 31, 2014)]
[Rules and Regulations]
[Pages 44278-44280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16757]
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MILLENNIUM CHALLENGE CORPORATION
22 CFR Part 1305
[MCC FR 14-03]
Touhy Regulations
AGENCY: Millennium Challenge Corporation.
ACTION: Final rule.
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SUMMARY: This rule implements the procedures by which the Millennium
Challenge Corporation responds to subpoenas or other official demands
for information and testimony served upon itself or its employees.
DATES: This rule is effective July 31, 2014.
FOR FURTHER INFORMATION CONTACT: John C. Mantini, Office of the General
Counsel, Millennium Challenge Corporation, 202-521-3863, or
[email protected].
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 regulation
governs the Millennium Challenge Corporation's procedures for
authorizing or denying such demands. MCC published a proposed
regulation on May 9, 2014 in 79 FR 26659 and invited interested parties
to submit comments. MCC received no comments. Accordingly, the proposed
regulation is adopted as a final regulation with only minor editorial
changes.
List of Subjects in 22 CFR Part 1305:
Administrative Practice and procedure, Courts, Disclosure,
Exemptions, Government employees, Subpoenas, Records, Testimony.
0
For the reasons set forth above, the Millennium Challenge Corporation
amends Chapter XIII of 22 CFR by adding Part 1305, to read as follows:
[[Page 44279]]
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 to be considered by the General Counsel.
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,
without the prior, written approval of the General Counsel.
Sec. 1305.4 Factors to be considered by the General Counsel.
(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 would be compromised;
(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, 875 Fifteenth Street NW., Washington, DC 20005-2221.
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
[[Page 44280]]
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 procedural,
enforceable at law by a party against the United States.
Dated: July 11, 2014.
John Mantini,
Assistant General Counsel, Millennium Challenge Corporation.
[FR Doc. 2014-16757 Filed 7-30-14; 8:45 am]
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