Rule2022-03060
Testimony and Production of Records
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 15, 2022
Effective
February 15, 2022
Issuing agencies
National Foundation on the Arts and the HumanitiesNational Endowment for the Humanities
Abstract
The National Endowment for the Humanities (NEH) is adopting as final its proposed regulations to be followed when an NEH employee receives a demand or request to provide testimony or produce records in a legal proceeding. These procedures are designed to promote economy and efficiency in NEH's programs and operations, to minimize the possibility of involving NEH in controversial issues not related to its functions, to maintain the impartiality of NEH among private litigants, and to protect sensitive, confidential information and the deliberative process.
Full Text
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<title>Federal Register, Volume 87 Issue 31 (Tuesday, February 15, 2022)</title>
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[Federal Register Volume 87, Number 31 (Tuesday, February 15, 2022)]
[Rules and Regulations]
[Pages 8428-8430]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03060]
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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
National Endowment for the Humanities
45 CFR Part 1167
RIN 3136-AA44
Testimony and Production of Records
AGENCY: National Endowment for the Humanities; National Foundation on
the Arts and the Humanities.
ACTION: Final rule.
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SUMMARY: The National Endowment for the Humanities (NEH) is adopting as
final its proposed regulations to be followed when an NEH employee
receives a demand or request to provide testimony or produce records in
a legal proceeding. These procedures are designed to promote economy
and efficiency in NEH's programs and operations, to minimize the
possibility of involving NEH in controversial issues not related to its
functions, to maintain the impartiality of NEH among private litigants,
and to protect sensitive, confidential information and the deliberative
process.
DATES: This final rule is effective on February 15, 2022.
FOR FURTHER INFORMATION CONTACT: Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel, National Endowment for the
Humanities, 400 7th Street SW, Room 4060, Washington, DC 20506; (202)
606-8322; <a href="/cdn-cgi/l/email-protection#690e0c070a061c071a0c0529070c01470e061f"><span class="__cf_email__" data-cfemail="660103080509130815030a2608030e48010910">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
On January 4, 2022, NEH published in the Federal Register a notice
of proposed rulemaking (87 FR 210), requesting public comment on a
proposed rule regarding testimony and production of records. The agency
received one comment about the proposed rule, which did not raise a
point relevant to the consideration of the proposed rule. Accordingly,
NEH is adopting the rule as proposed.
The Federal courts have upheld the authority of a Federal agency to
establish procedures governing the production of records and testimony
by
[[Page 8429]]
personnel in legal proceedings in which the agency is not a party.
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). This rule
establishes policies and procedures that the agency will follow when,
in a legal proceeding, a current or former NEH employee receives a
demand or request to testify as to facts or events that relate to his
or her official duties or the functions of NEH or to produce official
records and information.
This rule relates to testimony and the production of records only
in connection with legal proceedings to which the United States is not
a party. It does not apply to requests under the Freedom of Information
Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C. 552a;
Congressional demands or requests for testimony or records; or legal
proceedings to which the United States is a party.
Executive Order 12866, Regulatory Planning and Review, and Executive
Order 13563, Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
Executive Order 13132, Federalism
This rulemaking does not have federalism implications. It will not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
Executive Order 12988, Civil Justice Reform
This rulemaking meets the applicable standards set forth in section
3(a) and 3(b)(2) of Executive Order 12988. Specifically, this
rulemaking is written in clear language designed to help reduce
litigation.
Executive Order 13175, Indian Tribal Governments
Under the criteria in Executive Order 13175, NEH evaluated this
rulemaking and determined that it will not have any potential effects
on Federally recognized Indian Tribes.
Executive Order 12630, Takings
Under the criteria in Executive Order 12630, this rulemaking does
not have significant takings implications. Therefore, a takings
implication assessment is not required.
Regulatory Flexibility Act of 1980
This rulemaking will not have a significant adverse impact on a
substantial number of small entities, including small businesses, small
governmental jurisdictions, or certain small not-for-profit
organizations.
Paperwork Reduction Act of 1995
This rulemaking does not impose an information collection burden
under the Paperwork Reduction Act. This action contains no provisions
constituting a collection of information pursuant to the Paperwork
Reduction Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not contain a Federal mandate that will result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year.
National Environmental Policy Act of 1969
This rulemaking will not have a significant effect on the human
environment.
Small Business Regulatory Enforcement Fairness Act of 1996
This rulemaking will not be a major rule as defined in section 804
of the Small Business Regulatory Enforcement Fairness Act of 1996. This
rulemaking will not result in an annual effect on the economy of $100
million or more, a major increase in costs or prices, significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets.
E-Government Act of 2002
All information about NEH required to be published in the Federal
Register may be accessed at <a href="http://www.neh.gov">www.neh.gov</a>. The website
<a href="http://www.regulations.gov">www.regulations.gov</a> contains electronic dockets for NEH's rulemakings
under the Administrative Procedure Act of 1946.
Plain Writing Act of 2010
To ensure this proposed rule speaks in plain and clear language so
that the public can use and understand it, NEH modeled the language of
the proposed rule on the Federal Plain Language Guidelines.
List of Subjects in 45 CFR Part 1167
Administrative practice and procedure.
0
For the reasons set forth in the preamble, the National Endowment for
the Humanities amends 45 CFR chapter XI by adding part 1167 to
subchapter D to read as follows:
PART 1167--TESTIMONY AND PRODUCTION OF RECORDS
Subchapter D
Sec.
1167.1 Purpose.
1167.2 Applicability.
1167.3 Definitions.
1167.4 Testimony and production of official records and information.
1167.5 Procedure when demand is made.
1167.6 Office of Inspector General employees.
Authority: 5 U.S.C. 301.
Sec. 1167.1 Purpose.
(a) This part sets forth policies and procedures to be followed
when an employee of the National Endowment for the Humanities (NEH)
receives a demand to provide testimony or produce official records and
information in connection with a legal proceeding in which the United
States is not a party.
(b) The provisions of this part are intended to promote economy and
efficiency in NEH's programs and operations; minimize the possibility
of involving NEH in controversial issues not related to its functions;
maintain the impartiality of NEH among private litigants; and protect
sensitive, confidential information and the agency's internal
deliberative process.
(c) This part does not waive the sovereign immunity of the United
States.
(d) This part does not create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States.
(e) This regulation is not intended to conflict with 5 U.S.C.
2302(b)(13).
Sec. 1167.2 Applicability.
This part applies to demands and requests for factual or expert
testimony or for official records or information in legal proceedings,
except that it does not apply to:
(a) Demands upon or requests for an NEH employee to testify as to
facts or events that are in no way related to his or her official
duties or to the functions of NEH;
(b) Demands upon or requests for a former NEH employee to testify
as to matters in which the former employee was not directly or
materially involved while at NEH;
(c) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C.
552a;
(d) Congressional demands and requests for testimony or records;
and
[[Page 8430]]
(e) Legal proceedings to which the United States is a party.
Sec. 1167.3 Definitions.
The following definitions apply to this part:
Agency or NEH means the National Endowment for the Humanities.
Demand means a subpoena, order, or other demand of a court or other
competent authority, issued in a legal proceeding, for the production
of official records and information or for the testimony of an NEH
employee.
General Counsel means the General Counsel of the agency, or any
person to whom the General Counsel has delegated authority under this
part.
Legal proceeding means any proceeding before a court of law,
administrative board or commission, hearing officer, or other body
conducting a legal or administrative proceeding.
NEH employee or employee means any present or former officer or
employee of NEH; any other individual hired through contractual
agreement by or on behalf of NEH, or who has performed or is performing
services under such an agreement for NEH; and any individual who served
or is serving on an NEH advisory committee.
Official records and information means all documents and material
in the custody and control of NEH; relating to information in the
custody and control of NEH; or acquired by an NEH employee in the
performance of his or her official duties or because of his or her
official status, while the individual was employed by or on behalf of
the NEH.
Request means any request in connection with an ongoing or
threatened legal proceeding, by whatever method, for the production of
official records and information or for testimony, other than a demand.
Testimony means any written or oral statement by a witness, and
includes depositions, answers to interrogatories, affidavits,
declarations, and statements at a hearing or trial.
Sec. 1167.4 Testimony and production of official records and
information.
(a) No employee may produce official records and information or
provide any testimony in response to a demand or request unless
authorized to do so by the General Counsel in accordance with this
part.
(b) The General Counsel, in his or her discretion, may grant an
employee permission to testify or produce official records and
information in response to a demand or request. In making this
decision, the General Counsel shall consider whether:
(1) Allowing such testimony or production of records would be
consistent with the purposes of this part;
(2) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(3) Allowing such testimony or production of records would be in
the best interest of NEH and the United States; or
(4) NEH has an interest in the outcome of the legal proceeding.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge or produce
official records and information, but, unless specifically authorized
to do so by the General Counsel, shall not:
(1) Disclose confidential or privileged information;
(2) Testify as to matters regarding which the General Counsel
determines that testimony would not be in the best interest of NEH or
the United States;
(3) Produce official records and information regarding which the
General Counsel determines that production would not be in the best
interest of NEH or the United States; or
(4) Testify as an expert or opinion witness with regard to any
matter arising out of the employee's official duties or the functions
of NEH. (See also 5 CFR 2635.805.)
Sec. 1167.5 Procedure when demand is made.
(a) Whenever an employee is served with a demand to testify in his
or her official capacity, or to produce official records and
information, the employee shall notify the General Counsel immediately.
(b) The General Counsel shall review the demand and, in accordance
with the provisions of Sec. 1167.4, shall determine whether, or on
what conditions, to authorize the employee to testify and/or produce
official records and information.
(c) If a demand requires a response before the General Counsel has
made the determination referred to in paragraph (b) of this section,
the General Counsel shall 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 seek a stay of the
demand pending a final determination.
(d) If a court or other competent authority orders that an NEH
employee comply with a demand notwithstanding a final decision by the
General Counsel to the contrary, or at any other stage in the process,
the General Counsel shall advise the employee on how to respond to such
order and may arrange for legal representation of the employee.
Sec. 1167.6 Office of Inspector General employees.
Notwithstanding the requirements set forth in Sec. Sec. 1167.1
through 1167.5, when an employee of the agency's Office of the
Inspector General receives a demand or request to provide testimony or
produce official records and information, the Inspector General or his
or her designee shall be responsible for performing the functions
assigned to the General Counsel under this part with respect to such
demand or request.
Dated: February 9, 2022.
Samuel Roth,
Attorney-Advisor, National Endowment for the Humanities.
[FR Doc. 2022-03060 Filed 2-14-22; 8:45 am]
BILLING CODE 7536-01-P
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</html>Indexed from Federal Register on February 15, 2022.
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