
[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR2]

[Page 34-39]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
 
Subpart E--Legal Process: Testimony by Employees and Production of Records

    Source: 65 FR 46369, July 28, 2000, unless otherwise noted.

                           General Information

Sec. 2.80  What does this subpart cover?

    (a) This subpart describes how the Department of the Interior 
(including all its bureaus and offices) responds to requests or 
subpoenas for:
    (1) Testimony by employees in State, territorial or Tribal judicial, 
legislative or administrative proceedings concerning information 
acquired while performing official duties or because of an employee's 
official status;
    (2) Testimony by employees in Federal court civil proceedings in 
which the United States is not a party concerning information acquired 
while performing official duties or because of an employee's official 
status;
    (3) Testimony by employees in any judicial or administrative 
proceeding in which the United States, while not a party, has a direct 
and substantial interest;
    (4) Official records or certification of such records for use in 
Federal, State, territorial or Tribal judicial, legislative or 
administrative proceedings.
    (b) In this subpart, ``employee'' means a current or former 
Department employee, including a contract or special government 
employee.
    (c) This subpart does not apply to:
    (1) Congressional requests or subpoenas for testimony or records;
    (2) Federal court civil proceedings in which the United States is a 
party;
    (3) Federal administrative proceedings;
    (4) Federal, State and Tribal criminal court proceedings;
    (5) Employees who voluntarily testify, while on their own time or in 
approved leave status, as private citizens as to facts or events that 
are not related to the official business of the Department. The employee 
must state for the record that the testimony represents the employee's 
own views and is not necessarily the official position of the 
Department. See 5 CFR Secs. 2635.702(b), 2635.807 (b).
    (6) Testimony by employees as expert witnesses on subjects outside 
their official duties, except that they must obtain prior approval if 
required by Sec. 2.90.
    (d) This subpart does not affect the rights of any individual or the 
procedures for obtaining records under the Freedom of Information Act 
(FOIA), Privacy Act, or statutes governing the certification of official 
records. The Department FOIA and Privacy Act regulations are found at 43 
CFR Part 2, subparts B and D.
    (e) Nothing in this subpart is intended to impede the appropriate 
disclosure under applicable laws of Department information to Federal, 
State, territorial, Tribal, or foreign law enforcement, prosecutorial, 
or regulatory agencies.
    (f) This subpart only provides guidance for the internal operations 
of the Department, and neither creates nor is intended to create any 
enforceable right or benefit against the United States.

Sec. 2.81  What is the Department's policy on granting requests for 
          employee testimony or Department records?

    (a) Except for proceedings covered by Sec. 2.80(c) and (d), it is 
the Department's general policy not to allow its employees to testify or 
to produce Department records either upon request or by subpoena. 
However, if you request in writing, the Department will consider whether 
to allow testimony or production of records under this subpart. The 
Department's policy ensures the orderly execution of its mission and 
programs while not impeding any proceeding inappropriately.
    (b) No Department employee may testify or produce records in any 
proceeding to which this subpart applies unless authorized by the 
Department under Secs. 2.80 through 2.90 United States

[[Page 35]]

ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                     Responsibilities of Requesters

Sec. 2.82  How can I obtain employee testimony or Department records?

    (a) To obtain employee testimony, you must submit:
    (1) A written request (hereafter a ``Touhy Request;'' see Sec. 2.84 
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
    (2) A statement that you will submit a check for costs to the 
Department of the Interior, in accordance with Sec. 2.85, if your Touhy 
Request is granted.
    (b) To obtain official Department records, you must submit:
    (1) A Touhy Request; and
    (2) A Statement that you agree to pay the costs of duplication in 
accordance with 43 CFR Part 2, appendix A, if your Touhy Request is 
granted.
    (c) You must send your Touhy Request to:
    (1) The employee's office address;
    (2) The official in charge of the employee's bureau, division, 
office or agency; and
    (3) The appropriate unit of the Solicitor's Office.
    (d) To obtain employee testimony or records of the Office of 
Inspector General, you must send your Touhy Request to the General 
Counsel for the Office of Inspector General.
    (e) 43 CFR Part 2, Appendix B contains a list of the addresses of 
the Department's bureaus and offices and the units of the Solicitor's 
Office. The General Counsel for the Inspector General is located at the 
address for the Office of the Inspector General. If you do not know the 
employee's address, you may obtain it from the employee's bureau or 
office.

Sec. 2.83  If I serve a subpoena duces tecum, must I also submit a Touhy 
          request?

    Yes. If you serve a subpoena for employee testimony, you also must 
submit a request under United States ex rel. Touhy v. Regan, 340 U.S. 
462 (1951)? If you serve a subpoena duces tecum for records in the 
possession of the Department, you also must submit a Touhy Request.

Sec. 2.84  What information must I put in my Touhy Request?

    Your Touhy Request must:
    (a) Identify the employee or record;
    (b) Describe the relevance of the desired testimony or records to 
your proceeding and provide a copy of the pleadings underlying your 
request;
    (c) Identify the parties to your proceeding and any known 
relationships they have to the Department's mission or programs;
    (d) Show that the desired testimony or records are not reasonably 
available from any other source;
    (e) Show that no record could be provided and used in lieu of 
employee testimony;
    (f) Provide the substance of the testimony expected of the employee; 
and
    (g) Explain why you believe your Touhy Request complies with 
Sec. 2.88.

Sec. 2.85  How much will I be charged?

    We will charge you the costs, including travel expenses, for 
employees to testify under the relevant substantive and procedural laws 
and regulations. You must pay costs for record production under 43 CFR 
Part 2, Appendix A. Costs must be paid by check or money order payable 
to the Department of the Interior.

Sec. 2.86  Can I get an authenticated copy of a Department record?

    Yes. We may provide an authenticated copy of a Department record, 
for purposes of admissibility under Federal, State or Tribal law. We 
will do this only if the record has been officially released or would 
otherwise be released under Sec. 2.13 or this Subpart.

                    Responsibility of the Department

Sec. 2.87  How will the Department process my Touhy Request?

    (a) The appropriate Department official will decide whether to grant 
or deny your Touhy Request. Our Solicitor's Office or, in the case of 
the Office of Inspector General, its General Counsel, may negotiate with 
you or your attorney to refine or limit both the timing and content of 
your Touhy Request. When necessary, the Solicitor's Office or, in the 
case of the Office of Inspector General, its General Counsel, also will

[[Page 36]]

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.
    (b) We will limit our decision to allow employee testimony to the 
scope of your Touhy Request.
    (c) If you fail to follow the requirements of this Subpart, we will 
not allow the testimony or produce the records.
    (d) If your Touhy Request is complete, we will consider the request 
under Sec. 2.88.

Sec. 2.88  What criteria will the Department consider in responding to 
          my Touhy Request?

    In deciding whether to grant your Touhy Request, the appropriate 
Department official will consider:
    (a) Your ability to obtain the testimony or records from another 
source;
    (b) The appropriateness of the employee testimony and record 
production under the relevant regulations of procedure and substantive 
law, including the FOIA or the Privacy Act; and
    (c) Our ability to:
    (1) Conduct our official business unimpeded;
    (2) Maintain impartiality in conducting our business;
    (3) Minimize the possibility that we will become involved in issues 
that are not related to our mission or programs;
    (4) Avoid spending public employee's time for private purposes;
    (5) Avoid the negative cumulative effect of granting similar 
requests;
    (6) Ensure that privileged or protected matters remain confidential; 
and
    (7) Avoid undue burden on us.

                      Responsibilities of Employees

Sec. 2.89  What must I, as an employee, do upon receiving a request?

    (a) If you receive a request or subpoena that does not include a 
Touhy Request, you must immediately notify your supervisor and the 
Solicitor's Office, or the General Counsel of the Office of the 
Inspector General, as applicable, for assistance in issuing the proper 
response.
    (b) If you receive a Touhy Request, you must promptly notify your 
supervisor and forward the request to the head of your bureau, division 
or office. After consulting with the Solicitor's Office or, in the case 
of the Office of Inspector General, its General Counsel, the official in 
charge will decide whether to grant the Touhy Request under Sec. 2.88.
    (c) All decisions granting or denying a Touhy Request must be in 
writing. The official in charge must ask the applicable unit of the 
Solicitor's Office or, in the case of the Office of Inspector General, 
its General Counsel, for advice when preparing the decision.
    (d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), 
or comparable State or Tribal law, a request for an authenticated copy 
of a Department record may be granted by the person having the legal 
custody of the record. If you believe that you have custody of a record:
    (1) Consult your delegated authority to determine if you can grant a 
request for authentication of records; and
    (2) Consult the Solicitor's Office or, in the case of the Office of 
Inspector General, its General Counsel, concerning the proper form of 
the authentication (as authentication requirements may vary by 
jurisdiction).

Sec. 2.90  Must I get approval before testifying as an expert witness on 
          a subject outside the scope of my official duties?

    (a) You must comply with 5 CFR 2635.805(c), which details the 
authorization procedure for an employee to testify as an expert witness, 
not on behalf of the United States, in any judicial or administrative 
proceeding in which the United States is a party or has a direct and 
substantial interest. This procedure means:
    (1) You must obtain the written approval of your Deputy Ethics 
Official;
    (2) You must be in an approved leave status if you testify during 
duty hours; and
    (3) You must state for the record that you are appearing as a 
private individual and that your testimony does not represent the 
official views of the Department.
    (b) If you testify as an expert witness on a matter outside the 
scope of yoru

[[Page 37]]

official duties, and which is not covered by paragraph (a) of this 
section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.

                       Appendix A to Part 2--Fees

    The following uniform fee schedule is applicable to all constituent 
units of the Department. It states the fees to be charged to members of 
the public for services performed in searching for, reviewing and 
duplicating requested records in connection with FOIA requests made 
under subpart B of this part and to services performed in making 
documents available for inspection and copying under subpart A of this 
part. The duplicating fees stated in the schedule are also applicable to 
duplicating of records in response to requests made under the Privacy 
Act. The schedule also states the fee to be charged for certification of 
documents.
    (1) Copies, basic fee. For copies of documents reproduced on a 
standard office copying machine in sizes to 8\1/2\" x 14", the charge 
will be $0.13 per page.
    Examples: For one copy of a three-page document, the fee would be 
$0.39. For two copies of a three-page document, the fee would be $0.78. 
For one copy of a 60-page document, the fee would be $7.80.
    (2) Copies, documents requiring special handling. For copies of 
documents which require special handling because of their age, size, 
etc., cost will be based on direct costs of reproducing the materials.
    (3)-(4) [Reserved]
    (5) Searches. For each quarter hour, or portion thereof, spent by 
clerical personnel in manual searches to locate requested records: 
$2.30. For each quarter hour, or portion thereof, spent by professional 
or managerial personnel in manual searches to locate requested records 
because the search cannot be performed by clerical personnel: $4.65.
    Search time for which fees may be charged includes all time spent 
looking for material that is responsive to a request, including line-by-
line or page-by-page search to determine whether a record is responsive, 
even if the search fails to locate records or the records located are 
determined to be exempt from disclosure. Searches will be conducted in 
the most efficient and least expensive manner, so as to minimize costs 
for both the agency and the requester. Line-by-line or page-by-page 
identification should not be necessary if it is clear on the face of a 
document that it is covered by a request.
    (6) Review of records. For each quarter hour, or portion thereof, 
spent by clerical personnel in reviewing records: $2.30. For each 
quarter hour, or portion thereof, spent by professional or managerial 
personnel in reviewing records: $4.65.
    Review is the examination of documents located in response to a 
commercial use request to determine whether any portion of any document 
located is permitted to be withheld and the subsequent processing of 
documents for disclosure by excising exempt material or otherwise 
preparing them for release. Review does not include time spent in 
resolving general legal or policy issues regarding the application of 
exemptions.
    (7) [Reserved]
    (8) Certification. For each certificate of verification attached to 
authenticated copies of records furnished to the public the charge will 
be $0.25.
    (9) [Reserved]
    (10) Computerized records. Charges for services in processing 
requests for records maintained in computerized form will be calculated 
in accordance with the following criteria:
    (a) Costs for processing a data request will be calculated using the 
same standard direct costs charged to other users of the facility, and/
or as specified in the user's manual or handbook published by the 
computer center in which the work will be performed.
    (b) An itemized listing of operations required to process the job 
will be prepared (i.e., time for central processing unit, input/output, 
remote terminal, storage, plotters, printing, tape/disc mounting, etc.) 
with related associated costs applicable to each operation.
    (c) Material costs (i.e., paper, disks, tape, etc.) will be 
calculated using the latest acquisition price paid by the facility.
    (d) ADP facility managers must assure that all cost estimates are 
accurate, and if challenged, be prepared to substantiate that the rates 
are not higher than those charged to other users of the facility for 
similar work. Upon request, itemized listings of operations and 
associated costs for processing the job may be furnished to members of 
the public.
    (e) Requesters entitled to two hours of free search time under 43 
CFR 2.20(e) shall not be charged for that portion of a computer search 
that equals two hours of the salary of the operator performing the 
search.
    (11) Postage/mailing costs. Mailing charges may be added for 
services (such as express mail) that exceed the cost of first class 
postage.
    (12)-(13) [Reserved]
    (14) Other services. When a response to a request requires services 
or materials other than those described in this schedule, the direct 
cost of such services or materials to the Government may be charged, but 
only if the requester has been notified of such cost before it is 
incurred.
    (15) Effective date. This schedule applies to all requestes made 
under the Freedom of Information Act and Privacy Act after December 30, 
1987.

[52 FR 45592, Nov. 30, 1987]

[[Page 38]]

   Appendix B to Part 2--Bureaus and Offices of the Department of the 
                                Interior

    1. Bureaus and Offices of the Department of the Interior. (The 
address for all bureaus and offices, unless otherwise indicated, is U.S. 
Department of the Interior, Washington, DC 20240.)

Secretary of the Interior, Office of the Secretary
Office of Administrtative Services (for Office of the Secretary 
components)
Assistant Secretary, Territorial and International Affairs
Commissioner, Bureau of Indian Affairs
Director, U.S. Fish and Wildlife Service
Director, National Park Service, P.O. Box 37127, Washington, DC, 20013-
7127
Commissioner, Bureau of Reclamation
Director, Bureau of Land Management
Director, Minerals Management Service
Director, Bureau of Mines, Columbia Plaza, 2401 E Street NW., 
Washington, DC 20241
Director, Geological Survey, The National Center, Reston, VA 22092
Director, Office of Surface Mining Reclamation and Enforcement
Director, Office of Hearings and Appeals, 4015 Wilson Blvd., Arlington, 
VA 22203
Inspector General, Office of Inspector General
Solicitor, Office of the Solicitor

    2. Freedom of Information Officers of the Department of the 
Interior. (The address for all Freedom of Information Officers, unless 
otherwise indicated, is U.S. Department of the Interior, Washington, DC 
20240.)

Director, Office of Administrative Services (for Office of the Secretary 
components), U.S. Department of the Interior
Director, Office of Administration, Bureau of Indian Affairs
Freedom of Information Act Officer, Bureau of Land Management
Assistant Director, Finance and Management, Bureau of Mines, Columbia 
Plaza, 2401 E Street NW., Washington, DC 20241
Freedom of Information Act Officer, Bureau of Reclamation
Chief, Division of Media Information, National Park Service
Chief, Regulatory Development and Issues Management, Office of Surface 
Mining Reclamation and Enforcement
Chief, Directives Management Branch, Policy and Directives Management, 
U.S. Fish and Wildlife Service,
Chief, Paperwork Management Unit, U.S. Geological Survey, The National 
Center, Reston, VA 22092
Freedom of Information Act Officer, Minerals Management Service, 12203 
Sunrise Valley Drive, Reston, VA 22091
Information Officer, Office of Inspector General

    3. Office of Hearings and Appeals--Field Offices:

Administrative Law Judge, 710 Locust St., Federal Building, Suite 116, 
Knoxville, TN 37902
Administrative Law Judges, 6432 Federal Bldg., Salt Lake City, UT 84138
Administrative Law Judge, 2901 N. Central Ave., Suite 955, Phoenix, AZ 
85012-2739
Administrative Law Judge, 2020 Hurley Way, Suite 150, Sacramento, CA 
95825
Administrative Law Judges, Bishop Henry Whipple Federal Building, 1 
Federal Drive, rooms 674 and 688, Fort Snelling, MN 55111
Administrative Law Judge, 1700 Louisiana N.E., Suite 220, Albuquerque, 
NM 87110
Administrative Law Judge, 215 Dean A. McGee Ave., room 507, Oklahoma 
City, OK 73102
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse, 
515 9th St., Suite 201, Rapid City, SD 57701
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse, 
Rm. 3329, 316 N. 26th St., Billings, MT 59101

    4. Office of the Solicitor-- Field Offices.

                           Regional Solicitors

Regional Solicitor, U.S. Department of the Interior, 701 C Street, 
Anchorage, AK 99513
Regional Solicitor, U.S. Department of the Interior, Room E-2753, 2800 
Cottage Way, Sacramento, CA 95825
Regional Solicitor, U.S. Department of the Interior, P.O. Box 25007, 
Denver Federal Center, Denver, CO 80225
Regional Solicitor, U.S. Department of the Interior, Richard B. Russell 
Federal Building, 75 Spring Street, SW., Suite 1328, Atlanta, GA 30303
Regional Solicitor, U.S. Department of the Interior, Suite 612, One 
Gateway Center, Newton Corner, MA 02158
Regional Solicitor, U.S. Department of the Interior, Room 3068, Page 
Belcher Federal Building, 333 West 4th Street, Tulsa, OK 74103
Regional Solicitor, U.S. Department of the Interior, Lloyd 500 Building, 
Suite 607, 500 N.E. Multnomah, Portland, OR 97232
Regional Solicitor, U.S. Department of the Interior, Suite 6201, Federal 
Building, 125 South State Street, Salt Lake City, UT 84138

                            Field Solicitors

Field Solicitor, U.S. Department of the Interior, Suite 150, 505 North 
Second St., Phoenix, AZ 85004
Field Solicitor, U.S. Department of the Interior, P.O. Box M, Window 
Rock, AZ 86515

[[Page 39]]

Field Solicitor, U.S. Department of the Interior, Box 36064, 450 Golden 
Gate Avenue, Room 14126, San Francisco, CA 94102
Field Solicitor, U.S. Department of the Interior, Box 020, Federal 
Building, U.S. Courthouse, 550 West Fort Street, Boise, ID 83724
Field Solicitor, U.S. Department of the Interior, 686 Federal Building, 
Twin Cities, MN 55111
Field Solicitor, U.S. Department of the Interior, Room 5431, Federal 
Building, 316 N. 26th Street, Billings, MT 59101
Field Solicitor, U.S. Department of the Interior, P.O. Box 1042, Santa 
Fe, NM 87504
Field Solicitor, U.S. Department of the Interior, Osage Agency, 
Grandview Avenue, Pawhuska, OK 74056
Field Solicitor, U.S. Department of the Interior, Suite 502J, U.S. Post 
Office and Courthouse, Pittsburgh, PA 15219
Field Solicitor, U.S. Department of the Interior, P.O. Box 15006, 
Knoxville, TN 37901
Field Solicitor, U.S. Department of the Interior, 1100 South Fillmore, 
Amarillo, TX 79101
Field Solicitor, U.S. Department of the Interior, 603 Morris Street, 2nd 
Floor, Charleston, WV 25301.

[52 FR 45593, Nov. 30, 1987, as amended at 53 FR 16128, May 5, 1988; 58 
FR 48973, Sept. 21, 1993]
