[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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