[Federal Register Volume 78, Number 233 (Wednesday, December 4, 2013)]
[Proposed Rules]
[Pages 72850-72851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28954]



22 CFR Part 713

[No. TOUHY-2013]
RIN 3420-AA02

Production of Nonpublic Records and Testimony of OPIC Employees 
in Legal Proceedings

AGENCY: Overseas Private Investment Corporation.

ACTION: Notice of proposed rulemaking.


SUMMARY: This rule proposes revisions to the Overseas Private 
Investment Corporation's (``OPIC'') regulations governing the 
production of nonpublic testimony or records for court proceedings, 
commonly known as Touhy regulations after Touhy v. Ragen, 340 U.S. 462 

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before January 3, 2014.

ADDRESSES: You may submit comments, identified by Docket Number TOUHY-
2013, by one of the following methods:
     Email: foia@opic.gov. Include docket number TOUHY-2013 in 
the subject line of the message.
     Mail: Nichole Cadiente, Administrative Counsel, Overseas 
Private Investment Corporation, 1100 New York Avenue NW., Washington, 
DC 20527. Include docket number TOUHY-2013 on both the envelope and the 

FOR FURTHER INFORMATION CONTACT: Nichole Cadiente, Administrative 
Counsel, (202) 336-8400, or foia@opic.gov.

SUPPLEMENTARY INFORMATION: The amendment of Part 713 clarifies that the 
Touhy regulations must be complied with prior to the serving of a 
    In general, comments received, including attachments and other 
supporting materials, are part of the public record and are available 
to the public. Do not submit any information in your comment or 
supporting materials that you consider confidential or inappropriate 
for public disclosure.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
the head of OPIC has certified that this proposed rule, as promulgated, 
will not have a significant economic impact on a substantial number of 
small entities. The proposed rule amends regulations governing the 
procedures for a third party to request government records and 
testimony in litigation, and does not economically impact Federal 
Government relations with the private sector. Further, under these 
regulations, OPIC may only charge the actual cost for records, based 
upon FOIA regulations in Part 706, and the fees set by the court for 
witness testimony. OPIC is authorized to charge actual costs for its 
services based on 31 U.S.C. 9701.

Executive Order 12866

    OPIC is exempted from the requirements of this Executive Order per 
the Office of Management and Budget's October 12, 1993 memorandum. 
Accordingly, OMB did not review this proposed rule. However this rule 
was generally composed with the principles stated in Sec.  1(b) of the 
Executive Order in mind.

Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202-05)

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
801 et seq.)

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United State based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 22 CFR Part 713

    Administrative practice and procedure, Courts, Government 
employees, Subpoenas.
    For the reasons stated in the preamble the Overseas Private 
Investment Corporation proposes to amend 22 CFR Part 713 as follows:


1. The authority citation for part 713 continues to read as follows:

    Authority:  5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 
702, 18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C. 
2. Revise Sec.  713.2 to read as follows:

Sec.  713.2  When does this part apply?

    This part applies if you want to obtain nonpublic records or 
testimony of an OPIC employee for a legal proceeding. It does not apply 
to records that OPIC is required to release, records which OPIC 
discretionarily releases under the Freedom of Information Act (FOIA), 
records that OPIC releases to federal or state investigatory agencies, 
records that OPIC is required to release pursuant to the Privacy Act, 5 
U.S.C. 552a, or records that OPIC releases under any other applicable 
3. Revise Sec.  713.3 to read as follows:

Sec.  713.3  How do I request nonpublic records or testimony?

    To request nonpublic records or the testimony of an OPIC employee, 
you must submit a written request as described in Sec.  713.4 of this 
part to the Vice-President/General Counsel of OPIC. If you serve a 
subpoena on OPIC or an OPIC employee before submitting a written 
request and receiving a final determination, OPIC will oppose the 
subpoena on the grounds that you failed to follow the requirements of 
this part.
4. Revise Sec.  713.5 to read as follows:

Sec.  713.5  When should I make my request?

    Submit your request at least 45 days before the date you need the 
records or testimony. If you want your request processed in a shorter 
time, you must explain why you could not submit the request earlier and 
why you need such expedited processing. OPIC retains full discretion to 
grant, deny, or propose a new completion date on any request for 
expedited processing. If you are requesting the testimony of an OPIC 
employee, OPIC expects you to anticipate your need for the testimony in 
sufficient time to obtain it by deposition. The Vice-President/General 
Counsel may well deny a request for testimony at a legal proceeding 
unless you explain why you could not have used deposition testimony 
instead. The Vice-President/General Counsel will

[[Page 72851]]

determine the location of a deposition, taking into consideration 
OPIC's interest in minimizing the disruption for an OPIC employee's 
work schedule and the costs and convenience of other persons attending 
the deposition.
5. Revise the section heading of Sec.  713.10 to read as follows:

Sec.  713.10  Definitions.

* * * * *

    Dated: November 22, 2013.
Nichole Cadiente,
Administrative Counsel, Department of Legal Affairs.
[FR Doc. 2013-28954 Filed 12-3-13; 8:45 am]