[Federal Register Volume 59, Number 165 (Friday, August 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21073]
[[Page Unknown]]
[Federal Register: August 26, 1994]
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NATIONAL SCIENCE FOUNDATION
45 CFR Part 615
Testimony and Production of Official Records and Information
AGENCY: National Science Foundation.
ACTION: Final rule.
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SUMMARY: This final rule establishes procedures to be followed when a
National Science Foundation (NSF) employee is issued a court demand or
is requested to provide testimony or produce records in a legal
proceeding. These procedures are designed to promote economy and
efficiency in NSF's programs and operations, to minimize the
possibility of involving NSF in controversial issues not related to its
functions, to maintain the impartiality of NSF among private litigants,
and to protect sensitive, confidential information and the deliberative
process.
EFFECTIVE DATE: August 26, 1994.
FOR FURTHER INFORMATION CONTACT: Miriam Leder, Assistant General
Counsel, National Science Foundation, National Science Foundation, 4201
Wilson Boulevard, Room 1265, Arlington, Virginia 22230, (703) 306-1060.
SUPPLEMENTARY INFORMATION: On July 8, 1994, NSF published proposed
procedures to be followed when a National Science Foundation (NSF)
employee is issued a court demand or is requested to provide testimony
or produce records in a legal proceeding. 59 FR 35079 (July 8, 1994).
NSF received two comment letters, one from an individual who supported
adoption of the procedures as proposed, and the other from a university
concerned that the definition of the term ``employee'' could be
interpreted to include university faculty who receive NSF awards and/or
serve as peer reviewers on NSF panels.
The term ``employee'' was not intended to cover investigators under
NSF awards, and the definition has been revised to make this explicit.
However, the rule was intended to reach peer reviewers, but only as to
matters directly relating to their service for the Foundation. To the
extent this was not clear in the proposed rule, Section 615.2 has been
revised to specifically provide that the rule's procedures do not apply
to requests or demands for testimony by peer reviewers that is directly
related to their service as reviewers.
In addition to these clarifications, the final rule includes the
following four minor revisions:
Section 615.2 Applicability
The phrase ``while in leave status'' was deleted from this
provision because only Government employees can be ``in leave status''
but the provision is intended to apply to certain other individuals as
well.
Section 615.4 Legal Proceedings Before NSF or in Which the United
States Is a Party
This provision was revised to provide that the General Counsel will
arrange for testimony of current employees for the United States,
rather than for the testimony of both past and current employees.
Section 615.5 Legal Proceedings Between Private Litigants
Subsection (a) was intended to prevent employees from producing
official records and information or providing testimony unless
authorized to do so by the General Counsel. The proposed rule's
inclusion of the phrase ``or by other applicable law'' at the end of
the subsection created uncertainty as to the intent of the subsection,
and, as a result, was deleted.
Subsection (c) was revised to specifically provide that employees
may testify as to any matter, if authorized to do so by the General
Counsel.
I have determined that this proposed rule is not an economically
significant rule as that term is defined in Executive Order 12866. I
have also determined that this proposed rule, if promulgated, will not
have a significant impact on a substantial number of small entities as
that term is defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612, because it would affect only the conduct of NSF activities and
actions of NSF personnel. Pursuant to 5 U.S.C. 605(b), the rule is
therefore exempt from the initial and final regulatory flexibility
analyses requirements of sections 603 and 604.
List of Subjects in 45 CFR Part 615
Administrative practice and procedure, Courts, and Government
employees.
For the reasons set forth in the preamble, NSF hereby amends 45 CFR
by adding a new part 615 as follows:
PART 615--TESTIMONY AND PRODUCTION OF RECORDS
Sec.
615.1 Purpose
615.2 Applicability
615.3 Definitions
615.4 Legal proceedings before NSF or in which the United States is
a party
615.5 Legal proceedings between private litigants: Testimony and
production of documents
615.6 Legal proceedings between private litigants: Procedure when
demand is made
615.7 Legal proceedings between private litigants: Office of
Inspector General employees
Authority: 42 U.S.C. 1870(a).
Sec. 615.1 Purpose.
(a) This part sets forth policies and procedures to be followed
when, in connection with a legal proceeding, an NSF employee is issued
a demand to provide testimony or produce official records and
information.
(b) The provisions of this part are intended to promote economy and
efficiency in NSF's programs and operations; minimize the possibility
of involving NSF in controversial issues not related to its functions;
maintain the impartiality of NSF among private litigants; and protect
sensitive, confidential information and the deliberative process.
(c) This part is not intended to and does not waive the sovereign
immunity of the United States.
(d) This part is intended only to provide guidance for the internal
operations of NSF, and is not intended to, and does not, and may not be
relied upon to create any right or benefit, substantive or procedural,
enforceable at law by a party against the United States.
Sec. 615.2 Applicability.
This part applies to demands and requests for factual or expert
testimony or for official records or information in legal proceedings,
whether or not the United States is a party, except that it does not
apply to
(a) Demands upon or requests for an NSF 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 NSF,
(b) Demands upon or requests for a former NSF employee to testify
as to matters in which the former employee was not directly or
materially involved while at NSF,
(c) Demands upon or requests for an NSF reviewer to testify as to
matters not directly related to that individual's employment by or
service to NSF, and
(d) Congressional demands and requests for testimony or records.
Sec. 615.3 Definitions.
(a) Demand--A subpoena, order, or other demand of a court or other
competent authority for the production of records or for the appearance
and testimony of an NSF employee, issued in a legal proceeding between
private litigants.
(b) Foundation or NSF means the National Science Foundation.
(c) General Counsel means the General Counsel of the Foundation, or
any person to whom the General Counsel has delegated authority under
this part.
(d) 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.
(e) Official records and information means all documents and
material which are records of the Foundation under the Freedom of
Information Act, 5 U.S.C. 552; all other records contained in NSF's
files; and all other information or material acquired by an NSF
employee in the performance of his or her official duties or because of
his or her official status.
(f) NSF employee or employee means any present or former officer or
employee of NSF; any other individual hired through contractual
agreement by or on behalf of NSF, or who has performed or is performing
services under such an agreement for NSF; and any individual who served
or is serving on any advisory committee or in any advisory capacity,
whether formal or informal.
(g) Request means any informal request, by whatever method, for the
production of official records and information or for testimony which
has not been ordered by a court or other competent authority.
(h) Testimony means any written or oral statement by a witness,
including depositions, answers to interrogatories, affidavits,
declarations, and statements at a hearing or trial.
Sec. 615.4 Legal proceedings before NSF or in which the United States
is a party.
In any legal proceeding before NSF or to which the United States is
a party, the General Counsel shall arrange for a current employee to
testify as a witness for the United States whenever the attorney
representing the United States requests it. The employee may testify
for the United States both as to facts within the employee's personal
knowledge and as an expert or opinion witness. For any party other than
the United States, the employee may testify only as to facts within his
or her personal knowledge.
Sec. 615.5 Legal proceedings between private litigants: Testimony and
production of documents.
(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) The purposes of this part are met;
(2) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(3) NSF has an interest in the decision that may be rendered in the
legal proceeding; and
(4) Allowing such testimony or production of records would be in
the best interest of NSF or the United States.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, shall not
(1) Disclose confidential or privileged information;
(2) Testify as to facts when the General Counsel determines such
testimony would not be in the best interest of the Foundation or the
United States; or
(3) Testify as an expert or opinion witness with regard to any
matter arising out of the employee's official duties or the functions
of the Foundation.
Sec. 615.6 Legal proceedings between private litigants: 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 immediately notify the General Counsel.
(b) The General Counsel shall review the demand and, in accordance
with the provisions of Sec. 615.5, determine whether, or on what
conditions, to authorize the employee to testify and/or produce
official records and information.
(c) If a response to a demand is required before the General
Counsel has made the determination referred to in Sec. 615.6(b), 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. If the court fails to stay the demand,
the employee must appear at the stated time and place, produce a copy
of this part, and respectfully decline to comply with the demand.
``United States ex rel Touhy v. Ragen,'' 340 US 462 (1951).
(d) If a court or other competent authority orders that a demand be
complied with notwithstanding a final decision by the General Counsel
to the contrary, or at any other stage in the process, the General
Counsel may take steps to arrange for legal representation for the
employee, and shall advise the employee on how to respond to the
demand.
Sec. 615.7 Legal proceedings between private litigants: Office of
Inspector General employees.
Notwithstanding the requirements set forth in Secs. 615.1 through
615.6, when an employee of the Office of Inspector General is issued a
demand 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 with respect to such demand pursuant to the provisions of this
part.
Dated: August 23, 1994.
Charles S. Brown,
Acting General Counsel.
[FR Doc. 94-21073 Filed 8-25-94; 8:45 am]
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