[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Rules and Regulations]
[Pages 8618-8619]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03037]



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: Final rule.


SUMMARY: This rule implements 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.

DATES: This rule is effective February 14, 2014.

FOR FURTHER INFORMATION CONTACT: Nichole Cadiente, Administrative

[[Page 8619]]

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 
    OPIC published a proposed rule on December 4, 2013 in 78 FR 72850 
and invited interested parties to submit comments. OPIC received no 
comments and therefore submits the revisions to Part 713 as a final 

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 final rule will not have a 
significant economic impact on a substantial number of small entities. 
The 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 final rule. However this rule was 
generally composed with the principles stated in section 1(b) of the 
Executive Order in mind.

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

    This final 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 final 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 amends 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 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 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: January 28, 2014.
Nichole Cadiente,
Administrative Counsel, Department of Legal Affairs.
[FR Doc. 2014-03037 Filed 2-12-14; 8:45 am]