The Honorable Lloyd J. Austin III, Secretary, Department of Defense (June 3, 2021)
Summary
A letter dated June 3, 2021 to the Honorable Lloyd J. Austin III, Secretary, Department of Defense. It states that the Select Subcommittee on the Coronavirus Crisis continues investigating allegations of waste, fraud, and abuse in the pandemic relief programs, and that the writer is concerned about the potential improper distribution of CARES Act loan funds for businesses critical to maintaining U.S. national security. It describes a $700 million loan to YRC Worldwide, now named Yellow Corporation (Yellow), as 95% of the $735.9 million disbursed under that program. The letter asks for documents and information by June 17, 2021, beginning with communications between March 1, 2020, and January 20, 2021, concerning Yellow's national security loan application.
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- Issuer
- Congressional materials
- Document type
- 2021 06 03 Clyburn To Austin Re Dod Nat Sec Loans 531Ef86Ea780
- Date
- 2021-06-03
- Case
- 2021 06 03 Clyburn To Austin Re Dod Nat Sec Loans 531Ef86Ea780
Cite this document
“The Honorable Lloyd J. Austin III, Secretary, Department of Defense (June 3, 2021).”
Dated 2021-06-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-06-03-2021-06-03-clyburn-to-austin-re-dod-nat-sec-loans-531ef86ea780/
, SHA-256 531ef86ea7803fea1215abb7eb753aa6fe22886fd2a1a5d27a16cc0d506223e7.Full text
June 3, 2021
The Honorable Lloyd J. Austin III
Secretary
Department of Defense
1000 Defense Pentagon
Washington, D.C. 20301
Dear Secretary Austin:
As the Select Subcommittee on the Coronavirus Crisis continues investigating allegations
of waste, fraud, and abuse in the pandemic relief programs, I am concerned by the potential
improper distribution of loan funds made available by the Coronavirus Aid, Relief and Economic
Security (CARES) Act for businesses critical to maintaining U.S. national security to offset
losses caused by the pandemic. A $700 million loan to YRC Worldwide, now named Yellow
Corporation (Yellow), constituted 95% of the $735.9 million disbursed as part of this program.1
In light of troubling reports regarding Yellow’s questionable eligibility for and use of the funds, I
write to seek documents and information to determine whether funds were diverted to waste,
fraud, or abuse through the previous Administration’s process for approving this substantial loan.
The CARES Act specified that national security loans and loan guarantees were made
available to “provide liquidity” to “businesses critical to maintaining national security” that were
“experiencing losses incurred as a result of coronavirus.”2 In April 2020, the Department of the
Treasury (Treasury) released guidance stating that a business would qualify for a loan if it was
“performing under a ‘DX’-priority rated contract”—meaning a contract of the highest national
defense urgency— or “operating under a valid top secret facility security clearance.”3 A
company could also qualify by securing a “recommendation and certification by the Secretary of
Defense or the Director of National Intelligence that the applicant business is critical to
maintaining national security.” The Treasury guidance reiterated that the loan funds could only
1
Department of the Treasury, Loans to Air Carriers, Eligible Businesses, and National Security Businesses
(online at https://home.treasury.gov/policy-issues/coronavirus/assistance-for-industry/loans-to-air-carriers-eligible-
businesses-and-national-security-businesses) (accessed on June 2, 2021).
2
CARES Act, § 4003.
3
Department of the Treasury, Q&A: Loans to Air Carriers and Eligible Businesses and National Security
Businesses (Updated Apr. 10, 2020) (online at https://home.treasury.gov/system/files/136/CARES-Airline-Loan-
Support-Q-and-A-national-security.pdf). DNI did not make any recommendations and certifications for this
program. See Congressional Oversight Commission, The Eighth Report of the Congressional Oversight Commission
(Dec. 31, 2020) (online at https://coc.senate.gov/sites/default/files/2021-
01/COMMISSION%20December%20Report%2012-31%20FINAL%2C%20appendix.pdf).
The Honorable Lloyd J. Austin III
Page 2
be used to “offset covered losses incurred directly or indirectly as a result of the coronavirus
pandemic.”4
On July 1, 2020, Treasury announced the first loan under the program, a $700 million
loan to Yellow.5 At the time the loan was approved, Yellow was neither performing a defense
contract of the highest national priority nor operating under a top-secret facility security
clearance. Instead, Treasury relied on a certification and recommendation by the Secretary of
Defense to approve the loan,6 calling Yellow “a leading provider of critical military
transportation” and stating that Yellow “provides 68% of less-than-truckload [LTL7] services to
the Department of Defense.”8
The nonpartisan Government Accountability Office (GAO), the bipartisan Congressional
Oversight Commission (the Commission), and even President Trump’s own Treasury Secretary,
Steven Mnuchin, have raised significant concerns about the previous Administration’s
implementation of the national security loan program and the loan to Yellow in particular.
Shortly after Treasury’s announcement of the Yellow loan, the Commission began an
inquiry into the Trump Administration’s “decision to deem YRC a business critical to
maintaining national security and the process for reaching that conclusion.”9 In response, the
Trump Administration failed to provide a clear explanation for the decision, and the limited
information they did provide raised further concerns regarding Yellow’s eligibility for a national
security loan.10 The Department of Defense (DOD) refused to appear at a Commission hearing
4
Department of the Treasury, Q&A: Loans to Air Carriers and Eligible Businesses and National Security
Businesses (Updated Apr. 10, 2020) (online at https://home.treasury.gov/system/files/136/CARES-Airline-Loan-
Support-Q-and-A-national-security.pdf).
5
Department of the Treasury, Press Release: Treasury to Provide Loan to YRC Worldwide (July 1, 2020)
(online at https://home.treasury.gov/news/press-releases/sm1049).
6
Congressional Oversight Commission, The Third Report of the Congressional Oversight Commission
(July 20, 2020) (online at https://coc.senate.gov/sites/default/files/2020-
08/20200720_Congressional_Oversight_Commission_3rd_Report.pdf).
7
LTL services involve the delivery of small-to-moderately sized shipments of goods that do not require a
full truck and trailer. See generally RAND Corp., Army Stock Positioning (2017) (online at
www.rand.org/pubs/research_reports/RR1375.html).
8
Department of the Treasury, Press Release: Treasury to Provide Loan to YRC Worldwide (July 1, 2020)
(online at https://home.treasury.gov/news/press-releases/sm1049); Congressional Oversight Commission, The Third
Report of the Congressional Oversight Commission (July 20, 2020) (online at
https://coc.senate.gov/sites/default/files/2020-
08/20200720_Congressional_Oversight_Commission_3rd_Report.pdf).
9
Id.
10
Congressional Oversight Commission, The Fifth Report of the Congressional Oversight Commission
(Oct. 15, 2020) (online at https://coc.senate.gov/sites/default/files/2020-
10/15Oct2020_The%20Fifth%20Report%20FINAL%20Updated%20Appendix%2010-20%20update.pdf) (Noting
that DOD failed to produce documents several weeks after missing an agreed upon deadline.); Congressional
Oversight Commission, The Eighth Report of the Congressional Oversight Commission (Dec. 31, 2020) (online at
https://coc.senate.gov/sites/default/files/202101/COMMISSION%20December%20Report%2012-
The Honorable Lloyd J. Austin III
Page 3
about the program, and Treasury largely rehashed the claims in its press release by asserting that
Yellow “carries 68 percent of [DOD’s] less-than-truckload [LTL] shipments and is the leading
transportation provider to the Department of Homeland Security and U.S. Customs and Border
Protection.”11
Subsequent disclosures to the Commission from DOD, produced only after the Biden
Administration assumed office, have not substantiated the claim that Yellow regularly provides
such a large share of DOD’s LTL services.12 Although DOD has represented that it could not
provide detailed information about its utilization of trucking company subcontractors, the
Commission noted that the information DOD provided regarding its LTL expenditures suggested
Yellow only provided between 20 and 40 percent of DOD’s LTL shipments.13 Further, the
Commission’s April 2021 report indicates that DOD received information from Yellow’s prime
contractor suggesting that Yellow was not “critical to maintaining national security” because of
the limited LTL services the company provides and because the loss of Yellow’s services could
be readily replaced by other companies in the trucking industry.14 Treasury relied on DOD’s
recommendation and certification and “did not do additional diligence.”15 This raises serious
questions about the decision to grant Yellow a loan of more than half a billion dollars of public
funds and, more broadly, the Trump Administration’s process for implementing the national
security loan program.
There are also serious questions about whether Yellow properly sought, obtained, and
spent the Treasury loan to ameliorate “losses incurred as a result of coronavirus.”16 Yellow has
used a substantial share of the loan funds to replace the tractors and trailers in its fleet as a part of
31%20FINAL%2C%20appendix.pdf) (“In the Commission’s view, DOD’s criteria and process for determining
whether a business is critical to maintaining national security is inadequate.”).
11
Congressional Oversight Commission, The Fifth Report of the Congressional Oversight Commission
(Oct. 15, 2020) (online at https://coc.senate.gov/sites/default/files/2020-
10/15Oct2020_The%20Fifth%20Report%20FINAL%20Updated%20Appendix%2010-20%20update.pdf);
Congressional Oversight Commission, The Eighth Report of the Congressional Oversight Commission (Dec. 31,
2020) (online at https://coc.senate.gov/sites/default/files/202101/COMMISSION%20December%20Report%2012-
31%20FINAL%2C%20appendix.pdf).
12
Congressional Oversight Commission, The Eighth Report of the Congressional Oversight Commission
(Dec. 31, 2020) (online at https://coc.senate.gov/sites/default/files/2021-
01/COMMISSION%20December%20Report%2012-31%20FINAL%2C%20appendix.pdf); Congressional
Oversight Commission, The Twelfth Report of the Congressional Oversight Commission (Apr. 30, 2021) (online at
https://coc.senate.gov/sites/default/files/2021-04/COC%20April%20Report.pdf).
13
Congressional Oversight Commission, The Twelfth Report of the Congressional Oversight Commission
(Apr. 30, 2021) (online at https://coc.senate.gov/sites/default/files/2021-04/COC%20April%20Report.pdf).
14
Id.
15
Congressional Oversight Commission, Hearing on Examination of Loans to Businesses Critical to
Maintaining National Security (Dec. 10, 2020) (online at https://coc.senate.gov/examination-loans-businesses-
critical-maintaining-national-security).
16
CARES Act, § 4003(a).
The Honorable Lloyd J. Austin III
Page 4
a long-term capital investment plan,17 which appears to be at odds with the CARES Act.18
Other factors further call into question whether Yellow’s receipt of a national security
loan was appropriate. The determination that Yellow was “critical” to national security because
it provided trucking services to DOD is undermined by DOD’s own findings that the company
engaged in a years-long scheme of unlawful conduct in providing those very services.
Investigators in the Defense Criminal Investigative Service found that Yellow had systematically
overcharged DOD for seven years by knowingly inflating the weight of thousands of shipments
it carried for DOD.19 Yellow also allegedly made false statements to cover up these
overcharging practices.20 In 2018, the Department of Justice sued Yellow for this overcharging
scheme.21 That case is still pending.22 Yellow recently agreed to settle a securities fraud lawsuit
brought by investors related to the company’s alleged overcharging practices and DOJ’s
investigation.23
Even beyond Yellow’s troubled record with the U.S. government, the company’s
financial weaknesses before the onset of the coronavirus crisis implied that a taxpayer-funded
loan would be unreasonably risky. The Commission has raised questions about “whether YRC’s
precarious financial condition at the time of the loan exposed taxpayers to a significant risk of
loss.” 24 The CARES Act only permitted the Treasury Secretary to make loans that were
“prudently incurred,” and required that any loans that were not “sufficiently secured” were
“made at a rate that reflects the risk of the loan.”25 Treasury, in line with these requirements,
created an underwriting process to assess the risk of loan applications, and that process was
17
Jim Stinson, YRC Orders 950 Trailers, 300 Tractors to Replace Aging Fleet, TransportDive (Nov. 2,
2020) (online at www.transportdive.com/news/trucking-YRC-federal-loan-tonnage-Q3-2020-earnings/588256/).
18
Department of the Treasury, Q&A: Loans to Air Carriers and Eligible Businesses and National Security
Businesses (Updated Apr. 10, 2020) (online at https://home.treasury.gov/system/files/136/CARES-Airline-Loan-
Support-Q-and-A-national-security.pdf).
19
Department of Justice, Press Release: United States Sues Freight Companies for Systematic
Overcharging of Shipments (Dec. 14, 2018) (online at www.justice.gov/opa/pr/united-states-sues-freight-companies-
systematic-overcharging-shipments).
20
Id.
21
Department of Justice, Press Release: United States Sues Freight Companies for Systematic
Overcharging of Shipments (Dec. 14, 2018) (online at www.justice.gov/opa/pr/united-states-sues-freight-companies-
systematic-overcharging-shipments); see Kushner’s Family Business Received Loans After White House Meetings,
New York Times (Feb. 28, 2018) (online at www.nytimes.com/2018/02/28/business/jared-kushner-apollo-citigroup-
loans.html); Rescue of Troubled Trucking Company with White House Ties Draws Scrutiny, New York Times (Aug.
3, 2020) (online at www.nytimes.com/2020/08/03/us/politics/yrc-coronavirus-relief-funds.html).
22
Decision & Order, U.S. ex rel. Hannum v. YRC Freight et al., 08-CV-811-A (May 10, 2021, W.D.N.Y.),
ECF No. 111 (denying Yellow subsidiaries’ motion to dismiss with respect to five of six counts).
23
See Stipulation of Settlement, Lewis v. YRC Worldwide Inc., Case No. 1:19-cv-00001-GTS-ATB (Apr.
15, 2021, N.D.N.Y), ECF No. 96.
24
Congressional Oversight Commission, The Fifth Report of the Congressional Oversight Commission
(Oct. 15, 2020) (online at https://coc.senate.gov/sites/default/files/2020-
10/15Oct2020_The%20Fifth%20Report%20FINAL%20Updated%20Appendix%2010-20%20update.pdf).
25
CARES Act, § 4003(c)(2).
The Honorable Lloyd J. Austin III
Page 5
supposed to give greater scrutiny to large loans (such as “Tier 1” loans over $300 million like
Yellow’s loan here) or loans that otherwise posed substantial risks. 26 As of mid-2020, Yellow
had over $825 million in debt that had accrued before the pandemic.27 Trade publications have
raised concerns that Yellow was at risk of a “potential bankruptcy” and that its “capital structure
will be unsustainable over the long term.”28
Despite these serious financial vulnerabilities, Treasury not only approved a substantial
loan to Yellow but also agreed to charge an interest rate four percentage points lower than the
company had received through private financing shortly before the onset of the pandemic.29
Treasury stated that it had received 29.6% of Yellow’s stock for “taxpayer compensation,” but,
given the company’s serious problems, it is questionable whether this stock “sufficiently
secured” the loan, and the interest rate charged does not appear to reflect “the risk of the loan” as
required by the CARES Act.30 It is unclear how the decision to grant such a significant loan on
these terms to a company with these financial weaknesses was approved through Treasury’s
underwriting process.
Other circumstances add to concerns about how Yellow obtained such a significant
national security loan. In late 2019, Yellow received a $600 million lifeline loan from a group
led by Apollo Global Management LLC (Apollo).31 In April 2020, Apollo reportedly lobbied
White House Senior Advisor Jared Kushner and other Trump administration officials to relax
risk requirements for other CARES Act loan programs, suggesting that the company may have
26
Government Accountability Office, Financial Assistance: Lessons Learned from CARES Act Loan
Program for Aviation and Other Eligible Businesses (Dec. 2020) (GAO-21-198) (online at
www.gao.gov/assets/gao-21-198.pdf).
27
In Unusual Deal, U.S. Treasury to Acquire 30 Percent of Trucking Company in Exchange for $700
Million Loan, Washington Post (July 1, 2020) (online at www.washingtonpost.com/business/2020/07/01/treasury-
loan-yrc-worldwide-cares-act/).
28
Congressional Oversight Commission, The Third Report of the Congressional Oversight Commission
(July 20, 2020) (online at www.banking.senate.gov/imo/media/doc/COC%203rd%20Report_7.20.20.pdf) (citing
Moody’s Investors Services, YRC Worldwide Inc. Ratings (accessed July 14, 2020) (online at
www.moodys.com/credit-ratings/YRC-Worldwide-Inc-credit-rating-834015); Truckers Cut Spending as Factory
Slowdown Weighs on Operators, Wall Street Journal (Apr. 7, 2020) (online at www.wsj.com/articles/truckers-cut-
spending-as-factory-slowdown-weighs-on-some-operators-11586295247); Standard & Poor’s, U.S.-Based YRC
Worldwide Inc. Downgraded To ‘CCC’ On Anticipated Covenant Violation, Outlook Negative (May 28, 2020)
(online at www.standardandpoors.com/en/US/web/guest/article/-/view/type/HTML/id/2450913)).
29
Treasury’s loan to Yellow was made at a rate of 3.5% plus LIBOR, while the company had received
$600 million in financing before the pandemic, in September 2019, at 7.5% plus LIBOR. See Press Release, YRC
Worldwide Announces New Term Loan Agreement, Yellow (Sep. 11, 2019) (online at
https://investors.myyellow.com/news-releases/news-release-details/yrc-worldwide-announces-new-term-loan-
agreement); Department of the Treasury, Transaction Summary (online at
https://home.treasury.gov/system/files/136/YRC-Transaction-Summary.pdf) (accessed on May 29, 2021).
30
Department of the Treasury, Press Release: Treasury to Provide Loan to YRC Worldwide (July 1, 2020)
(online at https://home.treasury.gov/news/press-releases/sm1049); CARES Act, § 4003(c)(2).
31
YRC’s New Financing Is Part of Its Latest Restructuring, Freight Waves (Sept. 11, 2019) (online at
www.freightwaves.com/news/yrcs-new-financing-is-part-of-its-latest-restructuring).
The Honorable Lloyd J. Austin III
Page 6
applied similar pressure in this instance.32 Further suggesting the decision to grant Yellow a loan
was irregular, then-Treasury Secretary Mnuchin eventually admitted that the loan to Yellow was
“risky” and testified that “we do not want to be in the long-term business of lending to this type
of company.”33
Raising further questions about the propriety of the Trump Administration’s decision to
approve the loan to Yellow, GAO issued a report in December finding significant abnormalities
in Treasury’s implementation of the national security loan program during the Trump
Administration. GAO found that a “lack of documented policies and procedures may have
weakened the consistency with which Treasury reviewed and analyzed loan applications.” GAO
also reported that Treasury “did not follow the standard process established for evaluating
applications for the YRC loan” and that “Treasury staff not otherwise involved in the loan
program helped negotiate and execute the loan.” GAO found that, unlike the way Treasury
handled other applicants, the Department “accelerated evaluating YRC’s application due to the
urgency of the business’s financial circumstances, including the possibility of YRC filing for
bankruptcy if it did not receive aid.”34
The Select Subcommittee is concerned that the previous Administration may have
mismanaged the national security loan program and squandered taxpayer funds in a manner not
authorized by law. In light of the Trump Administration’s refusal to fully cooperate with
previous inquiries, please produce by June 17, 2021, the following documents and information:
1. All communications with Yellow, Crowley Logistics Inc. (or its corporate
affiliates, such as Crowley Maritime), Apollo Global Management, Treasury, or
the White House, between March 1, 2020, and January 20, 2021, concerning
Yellow’s application for a national security loan application under CARES Act
Section 4003(b)(3), including communications regarding DOD’s process for
certifying that Yellow was “critical to maintaining national security.”
2. All documents relied on in reaching the decision to certify that Yellow was
critical to maintaining national security for the purposes of its national security
loan application, including any documents relied on for the assessment that
Yellow provides 68 percent of DOD’s LTL services.
3. All Defense Freight Transportation Services (DFTS) contracts with Crowley
Logistics (or its corporate affiliates) that cover the years 2018, 2019, and 2020.
32
Ken Dilanian & Stephanie Ruhle, Seeking Coronavirus Relief, Investment Firm with Ties to Kushner
Emails Kushner, Trump Admin, NBC News (Apr. 4, 2020) (online at www.nbcnews.com/politics/white-
house/seeking-coronavirus-relief-investment-firm-ties-kushner-emails-kushner-trump-n1176686).
33
Congressional Oversight Commission, Hearing on Examination of Loans to Businesses Critical to
Maintaining National Security (Dec. 10, 2020) (online at https://coc.senate.gov/examination-loans-businesses-
critical-maintaining-national-security).
34
Government Accountability Office, Financial Assistance: Lessons Learned from CARES Act Loan
Program for Aviation and Other Eligible Businesses (Dec. 2020) (GAO-21-198) (online at
www.gao.gov/assets/720/711174.pdf).
The Honorable Lloyd J. Austin III
Page 7
4. All DOD contracts or subcontractor agreements with Yellow Corporation
(previously named YRC Worldwide) or its corporate affiliates. For this item,
please provide responsive documents dated from January 1, 2018, to January 20,
2021.
5. Documents sufficient to show the name and address of each entity that DOD
certified as critical to maintaining national security for the purposes of a loan
application under CARES Act Section 4003(b)(3).
In addition, the Select Subcommittee requests a staff briefing by June 30, 2021, regarding
this matter.
These requests are consistent with the House’s authorization of the Select Subcommittee
on the Coronavirus Crisis “to conduct a full and complete investigation” of “issues related to the
coronavirus crisis,” including “reports of waste, fraud, abuse, price gouging, profiteering, or
other abusive practices related to the coronavirus crisis,” and the “efficiency, effectiveness,
equity, and transparency of the use of taxpayer funds and relief programs to address the
coronavirus crisis.”35
An attachment to this letter provides additional instructions for responding to the Select
Subcommittee’s request. If you have any questions regarding this request, please contact Select
Subcommittee staff at (202) 255-4400.
Sincerely,
__________________________
James E. Clyburn
Chairman
Enclosure
cc: The Honorable Steve Scalise, Ranking Member
35
H.Res. 8, sec. 4(f), 117th Cong. (2021); H.Res. 935, 116th Cong. (2020).
Responding to Oversight Committee Document Requests
1. In complying with this request, produce all responsive documents that are in your
possession, custody, or control, whether held by you or your past or present agents,
employees, and representatives acting on your behalf. Produce all documents that you
have a legal right to obtain, that you have a right to copy, or to which you have access, as
well as documents that you have placed in the temporary possession, custody, or control
of any third party.
2. Requested documents, and all documents reasonably related to the requested documents,
should not be destroyed, altered, removed, transferred, or otherwise made inaccessible to
the Committee.
3. In the event that any entity, organization, or individual denoted in this request is or has
been known by any name other than that herein denoted, the request shall be read also to
include that alternative identification.
4. The Committee’s preference is to receive documents in electronic form (i.e., CD,
memory stick, thumb drive, or secure file transfer) in lieu of paper productions.
5. Documents produced in electronic format should be organized, identified, and indexed
electronically.
6. Electronic document productions should be prepared according to the following
standards:
a. The production should consist of single page Tagged Image File (“TIF”), files
accompanied by a Concordance-format load file, an Opticon reference file, and a
file defining the fields and character lengths of the load file.
b. Document numbers in the load file should match document Bates numbers and
TIF file names.
c. If the production is completed through a series of multiple partial productions,
field names and file order in all load files should match.
d. All electronic documents produced to the Committee should include the following
fields of metadata specific to each document, and no modifications should be
made to the original metadata:
BEGDOC, ENDDOC, TEXT, BEGATTACH, ENDATTACH, PAGECOUNT,
CUSTODIAN, RECORDTYPE, DATE, TIME, SENTDATE, SENTTIME,
BEGINDATE, BEGINTIME, ENDDATE, ENDTIME, AUTHOR, FROM, CC,
TO, BCC, SUBJECT, TITLE, FILENAME, FILEEXT, FILESIZE,
DATECREATED, TIMECREATED, DATELASTMOD, TIMELASTMOD,
INTMSGID, INTMSGHEADER, NATIVELINK, INTFILPATH, EXCEPTION,
BEGATTACH.
7. Documents produced to the Committee should include an index describing the contents
of the production. To the extent more than one CD, hard drive, memory stick, thumb
drive, zip file, box, or folder is produced, each should contain an index describing its
contents.
8. Documents produced in response to this request shall be produced together with copies of
file labels, dividers, or identifying markers with which they were associated when the
request was served.
9. When you produce documents, you should identify the paragraph(s) or request(s) in the
Committee’s letter to which the documents respond.
10. The fact that any other person or entity also possesses non-identical or identical copies of
the same documents shall not be a basis to withhold any information.
11. The pendency of or potential for litigation shall not be a basis to withhold any
information.
12. In accordance with 5 U.S.C.§ 552(d), the Freedom of Information Act (FOIA) and any
statutory exemptions to FOIA shall not be a basis for withholding any information.
13. Pursuant to 5 U.S.C. § 552a(b)(9), the Privacy Act shall not be a basis for withholding
information.
14. If compliance with the request cannot be made in full by the specified return date,
compliance shall be made to the extent possible by that date. An explanation of why full
compliance is not possible shall be provided along with any partial production.
15. In the event that a document is withheld on the basis of privilege, provide a privilege log
containing the following information concerning any such document: (a) every privilege
asserted; (b) the type of document; (c) the general subject matter; (d) the date, author,
addressee, and any other recipient(s); (e) the relationship of the author and addressee to
each other; and (f) the basis for the privilege(s) asserted.
16. If any document responsive to this request was, but no longer is, in your possession,
custody, or control, identify the document (by date, author, subject, and recipients), and
explain the circumstances under which the document ceased to be in your possession,
custody, or control.
17. If a date or other descriptive detail set forth in this request referring to a document is
inaccurate, but the actual date or other descriptive detail is known to you or is otherwise
apparent from the context of the request, produce all documents that would be responsive
as if the date or other descriptive detail were correct.
2
18. This request is continuing in nature and applies to any newly-discovered information.
Any record, document, compilation of data, or information not produced because it has
not been located or discovered by the return date shall be produced immediately upon
subsequent location or discovery.
19. All documents shall be Bates-stamped sequentially and produced sequentially.
20. Two sets of each production shall be delivered, one set to the Majority Staff and one set
to the Minority Staff. When documents are produced to the Committee, production sets
shall be delivered to the Majority Staff in Room 2157 of the Rayburn House Office
Building and the Minority Staff in Room 2105 of the Rayburn House Office Building.
21. Upon completion of the production, submit a written certification, signed by you or your
counsel, stating that: (1) a diligent search has been completed of all documents in your
possession, custody, or control that reasonably could contain responsive documents; and
(2) all documents located during the search that are responsive have been produced to the
Committee.
Definitions
1. The term “document” means any written, recorded, or graphic matter of any nature
whatsoever, regardless of how recorded, and whether original or copy, including, but not
limited to, the following: memoranda, reports, expense reports, books, manuals,
instructions, financial reports, data, working papers, records, notes, letters, notices,
confirmations, telegrams, receipts, appraisals, pamphlets, magazines, newspapers,
prospectuses, communications, electronic mail (email), contracts, cables, notations of any
type of conversation, telephone call, meeting or other inter-office or intra-office
communication, bulletins, printed matter, computer printouts, teletypes, invoices,
transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates,
projections, comparisons, messages, correspondence, press releases, circulars, financial
statements, reviews, opinions, offers, studies and investigations, questionnaires and
surveys, and work sheets (and all drafts, preliminary versions, alterations, modifications,
revisions, changes, and amendments of any of the foregoing, as well as any attachments
or appendices thereto), and graphic or oral records or representations of any kind
(including without limitation, photographs, charts, graphs, microfiche, microfilm,
videotape, recordings and motion pictures), and electronic, mechanical, and electric
records or representations of any kind (including, without limitation, tapes, cassettes,
disks, and recordings) and other written, printed, typed, or other graphic or recorded
matter of any kind or nature, however produced or reproduced, and whether preserved in
writing, film, tape, disk, videotape, or otherwise. A document bearing any notation not a
part of the original text is to be considered a separate document. A draft or non-identical
copy is a separate document within the meaning of this term.
2. The term “communication” means each manner or means of disclosure or exchange of
information, regardless of means utilized, whether oral, electronic, by document or
otherwise, and whether in a meeting, by telephone, facsimile, mail, releases, electronic
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message including email (desktop or mobile device), text message, instant message,
MMS or SMS message, message application, or otherwise.
3. The terms “and” and “or” shall be construed broadly and either conjunctively or
disjunctively to bring within the scope of this request any information that might
otherwise be construed to be outside its scope. The singular includes plural number, and
vice versa. The masculine includes the feminine and neutral genders.
4. The term “including” shall be construed broadly to mean “including, but not limited to.”
5. The term “Company” means the named legal entity as well as any units, firms,
partnerships, associations, corporations, limited liability companies, trusts, subsidiaries,
affiliates, divisions, departments, branches, joint ventures, proprietorships, syndicates, or
other legal, business or government entities over which the named legal entity exercises
control or in which the named entity has any ownership whatsoever.
6. The term “identify,” when used in a question about individuals, means to provide the
following information: (a) the individual’s complete name and title; (b) the
individual’s business or personal address and phone number; and (c) any and all
known aliases.
7. The term “related to” or “referring or relating to,” with respect to any given subject,
means anything that constitutes, contains, embodies, reflects, identifies, states, refers to,
deals with, or is pertinent to that subject in any manner whatsoever.
8. The term “employee” means any past or present agent, borrowed employee, casual
employee, consultant, contractor, de facto employee, detailee, fellow, independent
contractor, intern, joint adventurer, loaned employee, officer, part-time employee,
permanent employee, provisional employee, special government employee,
subcontractor, or any other type of service provider.
9. The term “individual” means all natural persons and all persons or entities acting on
their behalf.
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