[Federal Register Volume 63, Number 20 (Friday, January 30, 1998)]
[Rules and Regulations]
[Pages 4597-4600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2369]
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CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
45 CFR Chapter XII and Part 1201
Service of Process; Production or Disclosure of Official Material
or Information
AGENCY: Corporation for National and Community Service.
ACTION: Final Rule.
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SUMMARY: The Corporation for National and Community Service is revising
this regulation regarding the disclosure of litigation-related
information. This final rule establishes consistency in the
Corporation's assertions of privileges and objections, thereby reducing
the potential for both inappropriate disclosure of information and
wasteful allocation of Corporation resources.
EFFECTIVE DATE: February 20, 1998.
FOR FURTHER INFORMATION CONTACT: Britanya Rapp, Senior Attorney
Advisor, Corporation for National and Community Service at (202) 606-
5000, ext. 258.
SUPPLEMENTARY INFORMATION: On July 17, 1997, the Corporation for
National and Community Service (hereinafter
[[Page 4598]]
``Corporation'') published, for public comment, a Notice of Proposed
Rulemaking (NPRM) to remove its obsolete regulations on standards of
conduct that were superseded by the Office of Government Ethics Uniform
Standards of Conduct (5 CFR part 2635). There were no public comments
received. The Corporation publishes this rulemaking in order to clarify
policies, procedures, and responsibilities regarding (1) the service of
legal process on the Corporation and any individuals connected with the
Corporation; (2) the production of official Corporation information in
matters of litigation; and (3) the appearance of, and testimony by, any
individuals connected with the Corporation in matters of litigation.
The Corporation expects this rule will promote consistency in the
Corporation's assertions of privileges and objections, thereby reducing
the potential for both inappropriate disclosure of information and
wasteful allocation of Corporation resources. This rule is intended
only to inform the public about Corporation procedures concerning the
service of process and responses to demands or requests and is not
intended to create any right or benefit, substantive or procedural,
enforceable at law by a party against the Corporation or the United
States.
These regulations are not subject to the provisions of the
Paperwork Reduction Act, the Freedom of Information Act, or the
Government in the Sunshine Act because they do not contain any
information requirements within the meaning of those Acts. These
regulations also do not signify a ``significant regulatory action'' as
defined by Executive Order 12866, and thus do not fall within the
requirements of that Order. Nothing in this part otherwise permits
disclosure of information by the Corporation or any individuals
connected to the Corporation except as provided by statute or other
applicable law.
List of Subjects in 45 CFR Part 1201
Administrative practice and procedure, Courts, Freedom of
information.
Accordingly, and under the authority of 42 U.S.C. 12501 et seq.,
Chapter XII of title 45 of the Code of Federal Regulations is amended
as follows:
1. The heading for Chapter XII is revised to read as follows:
CHAPTER XII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
2. Part 1201 is revised to read as follows:
PART 1201-PRODUCTION OR DISCLOSURE OF OFFICIAL INFORMATION IN
RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF DEPOSITIONS,
REQUESTS FOR ADMISSIONS, INTERROGATORIES, OR IN CONNECTION WITH
FEDERAL OR STATE LITIGATION
Sec.
1201.1 Definitions.
1201.2 Scope.
1201.3 Service of summonses and complaints.
1201.4 Service of subpoenas, court orders, and other demands or
requests for official information or action.
1201.5 Testimony and production of documents prohibited unless
approved by appropriate Corporation officials.
1201.6 Procedure when testimony or production of documents is
sought.
1201.7 Procedure when response is required prior to receiving
instructions.
1201.8 Procedure in the event of an adverse ruling.
1201.9 Considerations in determining whether the Corporation will
comply with a demand or request.
1201.10 Prohibition on providing expert or opinion testimony.
1201.11 Authority.
Authority: 42 USC Sec. 12501 et seq.
Sec. 1201.1 Definitions.
(a) Corporation Employee means the Chief Executive Officer of the
Corporation and all employees, former employees, National Civilian
Community Corps Members (hereinafter sometimes known as ``Corps
Members''), and VISTA Volunteers (hereinafter sometimes also known as
``AmeriCorps*VISTA Members''), who are or were subject to the
supervision, jurisdiction, or control of the Chief Executive Officer,
except as the Corporation may otherwise determine in a particular case.
(b) Litigation encompasses all pre-trial, trial, and post-trial
stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, or other judicial or quasi-judicial bodies or tribunals,
whether criminal, civil, or administrative in nature.
(c) Official Information means all information of any kind, however
stored, that is in the custody and control of the Corporation, relates
to information in the custody and control of the Corporation, or was
acquired by individuals connected with the Corporation as part of their
official status within the Corporation while such individuals are
employed by, or serve on behalf of, the Corporation.
Sec. 1201.2 Scope.
(a) This part states the procedures followed with respect to:
(1) Service of summonses and complaints or other requests or
demands directed to the Corporation or to any Corporation employee in
connection with Federal or State litigation arising out of, or
involving the performance of, official activities of the Corporation;
and
(2) Oral or written disclosure, in response to subpoenas, orders,
or other requests or demands from Federal or by State judicial or
quasi-judicial authority, whether civil or criminal, or in response to
requests for depositions, affidavits, admissions, responses to
interrogatories, document production, or other litigation-related
matters of:
(i) Any material contained in the files of the Corporation; or
(ii) Any information acquired:
(A) When the subject of the request is currently a Corporation
employee or was a Corporation employee; or
(B) As part of the performance of the person's duties or by virtue
of the person's position.
Sec. 1201.3 Service of summonses and complaints.
(a) Only the Corporation's General Counsel or his/her designee
(hereinafter ``General Counsel''), is authorized to receive and accept
summonses or complaints sought to be served upon the Corporation or its
employees. All such documents should be delivered or addressed to
General Counsel, Corporation for National and Community Service, 1201
New York Avenue, NW., Suite 8200, Washington, DC 20525.
(b) In the event any summons or complaint is delivered to a
Corporation Employee other than in the manner specified in this part,
such attempted service shall be ineffective, and the recipient thereof
shall either decline to accept the proffered service or return such
document under cover of a written communication that refers the person
attempting to effect service to the procedures set forth in this part.
(c) Except as otherwise provided in Sec. 1201.4(c), the Corporation
is not an authorized agent for service of process with respect to civil
litigation against Corporation Employees purely in their personal, non-
official capacity. Copies of summonses or complaints directed to
Corporation Employees in connection with legal proceedings arising out
of the performance of official duties may, however, be served upon the
General Counsel.
[[Page 4599]]
Sec. 1201.4 Service of subpoenas, court orders, and other demands or
requests for official information or action.
(a) Except in cases in which the Corporation is represented by
legal counsel who have entered an appearance or otherwise given notice
of their representation, only the General Counsel is authorized to
receive and accept subpoenas, or other demands or requests directed to
any component of the Corporation or Corporation Employees, whether
civil or criminal in nature, for:
(1) Material, including documents, contained in the files of the
Corporation;
(2) Information, including testimony, affidavits, declarations,
admissions, response to interrogatories, or informal statements,
relating to material contained in the files of the Corporation or which
any Corporation employee acquired in the course and scope of the
performance of official duties;
(3) Garnishment or attachment of compensation of Corporation
Employees; or
(4) The performance or non-performance of any official Corporation
duty.
(b) In the event that any subpoena, demand, or request is sought to
be delivered to a Corporation Employee other than in the manner
prescribed in paragraph (a) of this section, such attempted service
shall be ineffective. Such Corporation Employee shall, after
consultation with the General Counsel, decline to accept the subpoena,
and demand or request the return of it under cover of a written
communication referring to the procedures prescribed in this part.
(c) Except as otherwise provided in this part, the Corporation is
not an agent for service or otherwise authorized to accept on behalf of
Corporation Employees any subpoenas, show-cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, which are not related to the employees'
official duties except upon the express, written authorization of the
individual Corporation Employee to whom such demand or request is
directed.
(d) Acceptance of such documents by the General Counsel does not
constitute a waiver of any defenses that might otherwise exist with
respect to service under the Federal Rules of Civil or Criminal
Procedure at 28 U.S.C. Appendix, Rules 4-6 or 18 USC Appendix or other
applicable rules.
Sec. 1201.5 Testimony and production of documents prohibited unless
approved by appropriate Corporation officials.
(a) Unless authorized to do so by the General Counsel, no
Corporation Employee shall, in response to a demand or request in
connection with any litigation, whether criminal or civil, provide oral
or written testimony by deposition, declaration, affidavit, or
otherwise concerning any information acquired:
(1) While such person was a Corporation Employee;
(2) As part of the performance of that person's official duties; or
(3) By virtue of that person's official status.
(b) No Corporation Employee shall, in response to a demand or
request in connection with any litigation, produce for use at such
proceedings any document or any other material acquired as part of the
performance of that individual's duties or by virtue of that
individual's official status, unless authorized to do so by the General
Counsel.
Sec. 1201.6 Procedure when testimony or production of documents is
sought.
(a) If Official Information is sought, either through testimony or
otherwise, the party seeking such information must (except as otherwise
required by federal law or authorized by the General Counsel) set forth
in writing with as much specificity as possible, the nature and
relevance of the Official Information sought. The party must identify
the record or reasonably describe it in terms of date, format, subject
matter, the offices originating or receiving the record, and the names
of all persons to whom the record is known to relate. Corporation
Employees may produce, disclose, release, comment upon, or testify
concerning only those matters that were specified in writing and
properly approved by the General Counsel. The General Counsel may waive
this requirement in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the
Corporation may also require from the party seeking such testimony or
documents a schedule of all reasonably foreseeable demands, including
but not limited to the names of all current and former Corporation
Employees from whom discovery will be sought, areas of inquiry,
expected duration of proceedings requiring oral testimony, and
identification of potentially relevant documents.
(c) The General Counsel will notify the Corporation Employee and
such other persons as circumstances may warrant of the decision
regarding compliance with the request or demand.
(d) The General Counsel will consult with the Department of Justice
regarding legal representation for Corporation Employees in appropriate
cases.
Sec. 1201.7 Procedure when response to demand is required prior to
receiving instructions.
(a) If a response to a demand or request for Official Information
pursuant to litigation is required before the General Counsel renders a
decision, the Corporation will request that either a Department of
Justice attorney or a Corporation attorney designated for the purpose:
(1) Appear, if feasible, with the employee upon whom the demand has
been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this part;
(3) Inform the court or other authority that the demand or request
has been or is being, as the case may be, referred for the prompt
consideration of the General Counsel; and
(4) Respectfully request the court or authority to stay the demand
or request pending receipt of the requested instructions.
(b) In the event that an immediate demand or request for production
or disclosure is made in circumstances that would preclude the proper
designation or appearance of a Department of Justice or Corporation
attorney on behalf of the Corporation employee, the Corporation
Employee shall respectfully request the court or other authority for a
reasonable stay of proceedings for the purpose of obtaining
instructions from the Corporation.
Sec. 1201.8 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the
demand or request in response to a request made pursuant to
Sec. 1201.7, or if the court or other authority rules that the demand
or request must be complied with irrespective of the Corporation's
instructions not to produce the material or disclose the information
sought, the Corporation Employee upon whom the demand or request has
been made shall, if so directed by the General Counsel, respectfully
decline to comply with the demand or request, citing United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this
part.
Sec. 1201.9 Considerations in determining whether the Corporation will
comply with a demand or request.
(a) In deciding whether to comply with a demand or request,
Corporation officials and attorneys are encouraged to consider:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure
[[Page 4600]]
governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant
substantive law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Corporation Employees for the
conduct of official business;
(5) The need to avoid spending the time and money of the United
States for private purposes;
(6) The need to maintain impartiality between private litigants in
cases where a government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance
by the Corporation of its mission and duties; and
(8) The need to avoid involving the Corporation in controversial
issues not related to its mission.
(b) Among those demands and requests in response to which
compliance may not ordinarily be authorized are those when compliance
would:
(1) Violate a statute, a rule of procedure, a specific regulation,
or an executive order;
(2) Reveal information properly classified in the interest of
national security;
(3) Reveal confidential commercial or financial information or
trade secrets without the owner's consent;
(4) Reveal the internal deliberative processes of the Executive
Branch; or
(5) Potentially impede or prejudice an ongoing law enforcement
investigation.
Sec. 1201.10 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, Corporation Employees shall
not provide opinion or expert testimony based upon information that
they acquired in the scope and performance of their official
Corporation duties, except on behalf of the United States or a party
represented by the Department of Justice.
(b) Upon a showing by the requester of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the General Counsel, in the
exercise of discretion, may grant special, written authorization for
Corporation Employees to appear and testify as expert witnesses at no
expense to the United States.
(c) If, despite the final determination of the General Counsel, a
court of competent jurisdiction or other appropriate authority orders
the appearance and expert or opinion testimony of a Corporation
Employee such individual shall immediately inform the General Counsel
of such order. If the General Counsel determines that no further legal
review of or challenge to the court's order will be made, the
Corporation Employee shall comply with the order. If so directed by the
General Counsel, however, the individual shall respectfully decline to
testify.
Sec. 1201.11 Authority.
The Corporation receives authority to change its governing
regulations from the National and Community Service Act of 1990 as
amended (42 U.S.C. 12501 et seq.).
Dated: January 27, 1998.
Kenneth L. Klothen,
General Counsel, Office of the General Counsel.
[FR Doc. 98-2369 Filed 1-29-98; 8:45 am]
BILLING CODE 6050-28-P
