96-17711. Service of Process; Production of Official Information; and Testimony of Agency Employees  

  • [Federal Register Volume 61, Number 136 (Monday, July 15, 1996)]
    [Rules and Regulations]
    [Pages 36820-36824]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-17711]
    
    
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    ARMS CONTROL AND DISARMAMENT AGENCY
    
    22 CFR Part 608
    
    
    Service of Process; Production of Official Information; and 
    Testimony of Agency Employees
    
    AGENCY: Arms Control and Disarmament Agency.
    
    ACTION: Final rule.
    
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    SUMMARY: This rule establishes or clarifies policies, practices, 
    responsibilities, and procedures for the service of legal process upon 
    the United States Arms Control and Disarmament Agency (ACDA, the 
    Agency), its officers, and employees, and the production of official 
    ACDA information and the appearance of and testimony by ACDA employees 
    as witnesses in connection with litigation. This rule is procedural in 
    nature.
    
    EFFECTIVE DATE: July 15, 1996.
    
    FOR FURTHER INFORMATION CONTACT: Frederick Smith, Jr., United States 
    Arms Control and Disarmament Agency, Room 5635, 320 21st Street, NW., 
    Washington, DC 20451, telephone (202) 647-3596.
    
    SUPPLEMENTARY INFORMATION:
    
    General
    
        This rule is intended to clarify ACDA policies and practices 
    regarding litigation-related matters such as service of process upon 
    ACDA and ACDA
    
    [[Page 36821]]
    
    employees and the production of official ACDA information in 
    litigation. ACDA anticipates that the rule will eliminate or reduce 
    current ambiguities regarding such matters for ACDA employees, as well 
    as for private attorneys and judicial and quasi-judicial authorities. 
    ACDA also expects that this rule will promote consistency in ACDA's 
    assertions of privileges and objections, thereby reducing the potential 
    for both inappropriate, potentially harmful disclosure of protected 
    information and wasteful or inappropriate allocation of Agency 
    resources. Although the rule is largely self-explanatory, we describe 
    the general scheme of the several subsections below for the readers' 
    ease of reference.
    
    Service of Process
    
        Part 604.4(b) of 22 CFR establishes the Agency's Office of the 
    General Counsel as the designated office for the presentation of 
    administrative claims asserted under the Federal Tort Claims Act (and 
    22 CFR parts 602, 603, and 605 set forth procedures for administrative 
    requests under the Freedom of Information Act, under the Privacy Act, 
    and for declassification of national security information, 
    respectively). However, until the present, the Agency has not had 
    regulations establishing the Agency's General Counsel, or his/her 
    delegate, as the sole Agency recipient for litigation-related demands, 
    whether civil or criminal, for official Agency information, whether 
    oral or documentary, or for other Agency action. The rule also 
    clarifies that ACDA is not an agent for service on behalf of its 
    employees in respect of purely private legal disputes and explains that 
    ACDA will counsel its employees not to use their official positions to 
    evade judicial process.
    
    Compliance With Requests or Demands for Official Information
    
        Fundamentally, the compliance sections of the rule (Secs. 608.4-
    608.9) simply track, to a greater or lesser degree, similar regulations 
    which have been adopted by other federal agencies and which derive from 
    the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 
    340 U.S. 462 (1951). Thus, the principal thrust of the compliance 
    provisions of the rule is that Agency employees (including former 
    employees) must obtain the approval of the Agency's General Counsel, or 
    his/her delegate, prior to responding to any subpoenas or other 
    litigation-related requests or demands for Agency information, whether 
    classified or unclassified, that relate to the employee's official 
    duties.
        Significantly, Sec. 608.5 requires the party who initiates a 
    litigation-related request or demand for official ACDA information to 
    provide a written statement providing specified information concerning 
    the nature and scope of the demand.
        Finally, the rule describes factors, among others, that Agency 
    officials shall take into consideration when considering litigation-
    related requests or demands and specifies that Agency employees may 
    ordinarily not provide expert or official testimony on behalf of 
    private parties.
        On May 28, 1996, ACDA published a notice of proposed rulemaking (61 
    FR 26474-26477) with a 31-day comment period. No comments were received 
    during the comment period. Accordingly, the rule is adopted as 
    proposed.
    
    List of Subjects in 22 CFR Part 608
    
        Administrative practice and procedure, Classified information, 
    Government employees.
    
        Chapter VI of title 22 of the Code of Federal Regulations is 
    amended by adding a new part 608 to read as follows:
    
    PART 608--SERVICE OF PROCESS; PRODUCTION OR DISCLOSURE OF OFFICIAL 
    INFORMATION IN RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF 
    DEPOSITIONS, REQUESTS FOR ADMISSIONS, INTERROGATORIES, OR SIMILAR 
    REQUESTS OR DEMANDS IN CONNECTION WITH FEDERAL OR STATE LITIGATION; 
    EXPERT TESTIMONY
    
    Sec.
    608.1  Purpose and scope; definitions.
    608.2  Service of summonses and complaints.
    608.3  Service of subpoenas, court orders, and other demands or 
    requests for official information or action.
    608.4  Testimony and production of documents prohibited unless 
    approved by appropriate Agency officials.
    608.5  Procedure when testimony or production of documents is 
    sought--general.
    608.6  Procedure when response to demand is required prior to 
    receiving instructions.
    608.7  Procedure in the event of an adverse ruling.
    608.8  Considerations in determining whether the Agency will comply 
    with a demand or request.
    608.9  Prohibition on providing expert or opinion testimony.
    
        Authority: 22 U.S.C. 2581(j).
    
    
    Sec. 608.1   Purpose and scope; definitions.
    
        (a) This part sets forth the procedures to be followed with respect 
    to:
        (1) service of summonses and complaints or other requests or 
    demands directed to the U.S. Arms Control and Disarmament Agency (ACDA, 
    the Agency) or to any ACDA employee or former employee in connection 
    with federal or state litigation arising out of or involving the 
    performance of official activities of ACDA; and
        (2) the oral or written disclosure, in response to subpoenas, 
    orders, or other requests or demands of federal or state judicial or 
    quasi-judicial authority (collectively, ``demands''), whether civil or 
    criminal in nature, or in response to requests for depositions, 
    affidavits, admissions, responses to interrogatories, document 
    production, or other litigation-related matters, pursuant to the 
    Federal Rules of Civil Procedure, the Federal Rules of Criminal 
    Procedure, or applicable state rules (collectively, ``requests''), of 
    any material contained in the files of the Agency, any information 
    relating to material contained in the files of the Agency, or any 
    information acquired while the subject of the demand or request is or 
    was an employee of the Agency as part of the performance of the 
    person's duties or by virtue of the person's official status.
        (b) For purposes of this part, and except as ACDA may otherwise 
    determine in a particular case, the term employee includes the Director 
    of ACDA and former Directors of ACDA, and all employees and former 
    employees of ACDA or other federal agencies who are or were appointed 
    by, or subject to the supervision, jurisdiction, or control of the 
    Director of ACDA, whether residing or working in the United States or 
    abroad, including United States nationals, foreign nationals, and 
    contractors.
        (c) For purposes of this part, the term 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. This part governs, inter alia, responses to 
    discovery requests, depositions, and other pre-trial, trial, or post-
    trial proceedings, as well as responses to informal requests by 
    attorneys or others in situations involving litigation. However, this 
    part shall not apply to any claims by ACDA employees (present or 
    former), or applicants for Agency employment, for which
    
    [[Page 36822]]
    
    jurisdiction resides with the U.S. Equal Employment Opportunity 
    Commission; the U.S. Merit Systems Protection Board; the Office of 
    Special Counsel; the Federal Labor Relations Authority; the Foreign 
    Service Labor Relations Board; the Foreign Service Grievance Board; or 
    a labor arbitrator operating under a collective bargaining agreement 
    between ACDA and a labor organization representing ACDA employees; or 
    their successor agencies or entities.
        (d) For purposes of this part, official information means all 
    information of any kind, however stored, that is in the custody and 
    control of ACDA, relates to information in the custody and control of 
    ACDA, or was acquired by ACDA employees as part of their official 
    duties or because of their official status within ACDA while such 
    individuals are employed by or served on behalf of ACDA.
        (e) Nothing in this part affects disclosure of information under 
    the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
    U.S.C. 552a, Executive Order 12958, 3 CFR, 1995 Comp., p. 333, the 
    Government in the Sunshine Act, 5 U.S.C. 552b, the Agency's regulations 
    in 22 CFR chapter VI implementing any of the foregoing, or pursuant to 
    congressional subpoena. Nothing in this part otherwise permits 
    disclosure of information by ACDA or its employees except as provided 
    by statute or other applicable law.
        (f) This part is intended only to inform the public about ACDA 
    procedures concerning the service of process and responses to demands 
    or requests and is not intended to and does not create, and may not be 
    relied upon to create, any right or benefit substantive or procedural, 
    enforceable at law by a party against ACDA or the United States.
        (g) Nothing in this part affects:
        (1) The disclosure of information during the course of legal 
    proceedings in foreign courts, commissions, boards, or other judicial 
    or quasi-judicial bodies or tribunals; or
        (2) The rules and procedures, under applicable U.S. law and 
    international conventions, governing diplomatic and consular immunity.
        (h) Nothing in this part affects the disclosure of official 
    information to other federal agencies or Department of Justice 
    attorneys in connection with litigation conducted on behalf or in 
    defense of the United States, its agencies, officers, and employees, or 
    to federal, state, local, or foreign prosecuting and law enforcement 
    authorities in conjunction with criminal law enforcement 
    investigations, prosecutions, extradition, deportation or other 
    proceedings.
    
    
    Sec. 608.2  Service of summonses and complaints.
    
        (a) Only ACDA's General Counsel, or his/her delegate, is authorized 
    to receive and accept summonses or complaints sought to be served upon 
    ACDA or ACDA employees. All such documents should be delivered or 
    addressed to General Counsel, U.S. Arms Control and Disarmament Agency, 
    320 21st St. NW., Room 5635, Washington, DC 20451. Pursuant to 42 
    U.S.C. 659(b) and 5 U.S.C. 5520a(c)(1), this same officer has been 
    designated specifically to accept service of process for the 
    enforcement of the legal obligation to provide child support or to make 
    alimony payments by employees of the Agency and to accept service of 
    process for the enforcement of the legal obligation to pay monies owed 
    for other than child support or alimony by employees of the Agency, 
    respectively.
        (b) In the event any summons or complaint described in 
    Sec. 608.1(a) is delivered to an employee of ACDA 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 which directs the person attempting to make service to 
    the procedures set forth in this part.
        (c) Except as otherwise provided in Secs. 608.2(d) and 608.3(c), 
    ACDA is not an authorized agent for service of process with respect to 
    civil litigation against ACDA employees purely in their personal, non-
    official capacity. Copies of summonses or complaints directed to ACDA 
    employees in connection with legal proceedings arising out of the 
    performance of official duties may, however, be served upon ACDA's 
    General Counsel, or his/her delegate.
        (d) Although ACDA is not an agent for the service of process upon 
    its employees with respect to purely personal, non-official litigation, 
    ACDA recognizes that its employees stationed overseas should not use 
    their official positions to evade their personal obligations and will, 
    therefore, counsel and encourage ACDA employees to accept service of 
    process in appropriate cases, and will waive applicable diplomatic or 
    consular privileges and immunities when ACDA determines that it is in 
    the interest of the United States to do so. Pursuant to section 302 of 
    Executive Order 12953 (3 CFR, 1995 Comp., p. 325), ACDA's General 
    Counsel has been designated in Appendix B to 5 CFR part 581 as the 
    official to assist in the service of legal process in civil actions 
    pursuant to orders of State courts to establish paternity and to 
    establish or to enforce support obligations by making ACDA employees 
    available for service of process, regardless of the location of the 
    employee's workplace.
        (e) Documents for which ACDA's General Counsel, or his/her 
    delegate, accepts service in official capacity only shall be stamped 
    ``Service Accepted in Official Capacity Only.'' Acceptance of service 
    shall not constitute an admission or waiver with respect to 
    jurisdiction, propriety of service, improper venue, or any other 
    defense in law or equity available under the laws or rules applicable 
    for the service of process.
    
    
    Sec. 608.3  Service of subpoenas, court orders, and other demands or 
    requests for official information or action.
    
        (a) Except in cases in which ACDA is represented by legal counsel 
    who have entered an appearance or otherwise given notice of their 
    representation, only ACDA's General Counsel, or his/her delegate, is 
    authorized to receive and accept subpoenas, or other demands or 
    requests directed to ACDA or any component thereof, or its employees, 
    or former employees, whether civil or criminal in nature, for:
        (1) Material, including documents, contained in the files of the 
    Agency;
        (2) Information, including testimony, affidavits, declarations, 
    admissions, response to interrogatories, or informal statements, 
    relating to material contained in the files of the Agency or which any 
    Agency employee acquired in the course and scope of the performance of 
    official duties;
        (3) Garnishment or attachment of compensation of current or former 
    employees; or
        (4) The performance or non-performance of any official ACDA duty.
        (b) In the event that any subpoena, demand, or request is sought to 
    be delivered to an Agency employee (including former employee) other 
    than in the manner prescribed in paragraph (a) of this section, such 
    attempted service shall be ineffective. Such employee shall, after 
    consultation with the Office of the General Counsel, decline to accept 
    the subpoena, demand, or request or shall return it to the server under 
    cover of a written communication referring to the procedures prescribed 
    in this part.
        (c) Except as otherwise provided in this part, ACDA is not an agent 
    for service or otherwise authorized to accept on behalf of its 
    employees any subpoenas, show-cause orders, or
    
    [[Page 36823]]
    
    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 ACDA employee to whom such demand or 
    request is directed.
        (d) Acceptance of such documents by ACDA's General Counsel, or his/
    her delegate, 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 or other applicable rules.
    
    
    Sec. 608.4  Testimony and production of documents prohibited unless 
    approved by appropriate Agency officials.
    
        (a) No employee of ACDA 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 while such person is or 
    was an employee of ACDA as part of the performance of that person's 
    official duties or by virtue of that person's official status, unless 
    authorized to do so by ACDA's General Counsel, or his/her delegate.
        (b) No ACDA 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 employee's duties or by virtue of that employee's official status, 
    unless authorized to do so by ACDA's General Counsel, or his/her 
    delegate.
    
    
    Sec. 608.5  Procedure when testimony or production of documents is 
    sought--general.
    
        (a) If official ACDA information is sought, through testimony or 
    otherwise, by a request or demand, the party seeking such release or 
    testimony must (except as otherwise required by federal law or 
    authorized by the Office of the General Counsel) set forth in writing 
    and with as much specificity as possible, the nature and relevance of 
    the official information sought. Where documents or other materials are 
    sought, the party should identify the record or reasonably describe it 
    in terms of date, format, subject matter, the office originating or 
    receiving the record, and the names of all persons to whom the record 
    is known to relate. Subject to Sec. 606.7, ACDA employees may produce, 
    disclose, release, comment upon, or testify concerning only those 
    matters that were specified in writing and properly approved by ACDA's 
    General Counsel or his/her delegate. See United States ex rel. Touhy v. 
    Ragen, 340 U.S. 462 (1951). The Office of the General Counsel may waive 
    this requirement in appropriate circumstances.
        (b) To the extent it deems necessary or appropriate, ACDA may also 
    require from the party seeking such testimony or documents a plan of 
    all reasonably foreseeable demands, including but not limited to the 
    names of all employees and former employees from whom discovery will be 
    sought, areas of inquiry, expected duration of proceedings requiring 
    oral testimony, and identification of potentially relevant documents.
        (c) ACDA's General Counsel, or his/her delegate, will notify the 
    ACDA employee and such other persons as circumstances may warrant of 
    the decision regarding compliance with the request or demand.
        (d) The Office of the General Counsel will consult with the 
    Department of Justice regarding legal representation for ACDA employees 
    in appropriate cases.
    
    
    Sec. 608.6  Procedure when response to demand is required prior to 
    receiving instructions.
    
        (a) If a response to a demand is required before ACDA's General 
    Counsel, or his/her delegate, renders a decision, ACDA will request 
    that either a Department of Justice attorney or an ACDA attorney 
    designated for the purpose:
        (1) Appear 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 has been or 
    is being, as the case may be, referred for the prompt consideration of 
    ACDA's General Counsel, or his/her delegate; and
        (4) Respectfully request the court or authority to stay the demand 
    pending receipt of the requested instructions.
        (b) In the event that an immediate demand for production or 
    disclosure is made in circumstances that would preclude the proper 
    designation or appearance of a Department of Justice or ACDA attorney 
    on the employee's behalf, the employee shall respectfully request the 
    demanding court or authority for a reasonable stay of proceedings for 
    the purpose of obtaining instructions from ACDA.
    
    
    Sec. 608.7  Procedure in the event of an adverse ruling.
    
        If the court or other judicial or quasi-judicial authority declines 
    to stay the effect of the demand in response to a request made pursuant 
    to Sec. 608.6, or if the court or other authority rules that the demand 
    must be complied with irrespective of the Agency's instructions not to 
    produce the material or disclose the information sought, the employee 
    upon whom the demand has been made shall respectfully decline to comply 
    with the demand, citing these regulations and United States ex rel. 
    Touhy v. Ragen, 340 U.S. 463 (1951).
    
    
    Sec. 608.8  Considerations in determining whether the Agency will 
    comply with a demand or request.
    
        (a) In deciding whether to comply with a demand or request, ACDA 
    officials and attorneys shall consider, among others:
        (1) Whether such compliance would be unduly burdensome or otherwise 
    inappropriate under the applicable rules of discovery or the rules of 
    procedure 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 ACDA 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 substantial government interest is not implicated;
        (7) Whether compliance would have an adverse effect on performance 
    by ACDA of its mission and duties; and
        (8) The need to avoid involving ACDA in controversial issues not 
    related to its mission.
        (b) Among those demands and requests in response to which 
    compliance will not ordinarily be authorized are those with respect to 
    which, inter alia, any of the following factors exist:
        (1) Compliance would violate a statute or a rule of procedure;
        (2) Compliance would violate a specific regulation or executive 
    order;
        (3) Compliance would reveal information properly classified in the 
    interest of national security;
        (4) Compliance would reveal confidential commercial or financial 
    information or trade secrets without the owner's consent;
        (5) Compliance would reveal the internal deliberative processes of 
    the Executive Branch; or
        (6) Compliance would potentially impede or prejudice an on-going 
    law enforcement investigation.
    
    [[Page 36824]]
    
    Sec. 608.9  Prohibition on providing expert or opinion testimony.
    
        (a) Except as provided in this section, and subject to 5 CFR 
    2635.805, ACDA employees shall not provide opinion or expert testimony 
    based upon information which they acquired in the scope and performance 
    of their official ACDA 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, ACDA's General Counsel, or his/her 
    delegate, may, consistent with 5 CFR 2635.805, in the exercise of 
    discretion, grant special, written authorization for ACDA employees to 
    appear and testify as expert witnesses at no expense to the United 
    States.
        (c) If, despite the final determination of ACDA's General Counsel, 
    a court of competent jurisdiction or other appropriate authority orders 
    the appearance and expert or opinion testimony of an ACDA employee, 
    such employee shall immediately inform the office of the General 
    Counsel of such order. If the Office of the General Counsel determines 
    that no further legal review of or challenge to the court's order will 
    be made, the ACDA employee shall comply with the order. If so directed 
    by the Office of the General Counsel, however, the employee shall 
    respectfully decline to testify. See United States ex rel. Touhy v. 
    Ragen, 340 U.S. 462 (1951).
    
        Dated: July 1, 1996.
    Mary Elizabeth Hoinkes,
    General Counsel.
    [FR Doc. 96-17711 Filed 7-14-96; 8:45 am]
    BILLING CODE 6820-32-M
    
    
    

Document Information

Effective Date:
7/15/1996
Published:
07/15/1996
Department:
Arms Control and Disarmament Agency
Entry Type:
Rule
Action:
Final rule.
Document Number:
96-17711
Dates:
July 15, 1996.
Pages:
36820-36824 (5 pages)
PDF File:
96-17711.pdf
CFR: (11)
22 CFR 608.1(a)
22 CFR 608.1
22 CFR 608.2
22 CFR 608.3
22 CFR 608.4
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