[Federal Register Volume 62, Number 137 (Thursday, July 17, 1997)]
[Proposed Rules]
[Pages 38241-38244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18518]


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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: Notice of proposed rulemaking; Request for public comment.

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SUMMARY: The Corporation for National and Community Service 
(Corporation) proposes to remove its obsolete regulations on standards 
of conduct which have been superseded by the Office of Government 
Ethics Uniform Standards of Conduct (5 CFR Part 2635). In place of 
those obsolete regulations the Corporation seeks to replace Part 1201 
with a provision for the disclosure of litigation-related information. 
The Corporation expects this proposed 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.

DATES: All comments must be received at the address listed below before 
August 18, 1997.

ADDRESSES: All comments must be mailed to the attention of Britanya 
Rapp, Associate General Counsel, Corporation for National and Community 
Service, 1201 New York Ave, Suite 8200, Washington, DC 20525. 
Fascimilies will not be accepted.

FOR FURTHER INFORMATION CONTACT: Britanya Rapp, Associate General 
Counsel, Corporation for National and Community Service at (202) 606-
5000, ext. 258.

SUPPLEMENTARY INFORMATION: The Corporation proposes 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 proposed 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.
    The proposed 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.

The Proposed Regulations

    Accordingly, and under the authority of 42 U.S.C. 12501 et seq., 
the Corporation proposes to amend Chapter XII of title 45 of the Code 
of Federal Regulations 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:

[[Page 38242]]

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 to demand 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 U.S.C. 12501 et seq.


Sec. 1201.1  Definitions.

    (a) Employee means the Chief Executive Officer of the Corporation 
and all employees, former employees, National Civilian Community Corps 
Members, and VISTA volunteers 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 employee of the 
Corporation 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 of Federal or 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 an employee of the Corporation; 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 delegate, is 
authorized to receive and accept summonses or complaints sought to be 
served upon the Corporations or its employees. All such documents 
should be delivered or addressed to General Counsel, Corporation for 
National and Community Service, 1201 New York Avenue, Suite 8200, 
Washington, DC 20525.
    (b) In the event any summons or complaint is delivered to an 
employee of the Corporation 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 Sec. 1201.4(c), the Corporation 
is not an authorized agent for service of process with respect to civil 
litigation against Corporation employees, CorpsMembers, or VISTA 
Members purely in their personal, non-official capacity. Copies of 
summonses or complaints directed to Corporation employees, 
CorpsMembers, or VISTA Members in connection with legal proceedings 
arising out of the performance of official duties may, however, be 
served upon the Corporation's General Counsel, or his/her delegate.


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 Corporation's General Counsel, or 
his/her delegate, is authorized to receive and accept subpoenas, or 
other demands or requests directed to any component of the Corporation 
or its 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 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 employee shall, after consultation with the 
Office of 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 
its 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 Corporation'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 (28 U.S.C. appendix, Rules 
4-6, or 18 U.S.C. 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 Corporation's General 
Counsel, or his/her delegate, no employee of the Corporation shall, in 
response to a demand or request in connection with any litigation, 
whether criminal or civil,

[[Page 38243]]

provide oral or written testimony by deposition, declaration, 
affidavit, or otherwise concerning any information acquired:
    (1) While such person was an employee of the Corporation;
    (2) As part of the performance of that person's official duties; or
    (3) By virtue of that person's official status.
    (b) No employee of the Corporation 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 
Corporation's General Counsel, or his/her delegate.


Sec. 1201.6  Procedure when testimony or production of documents is 
sought.

    (a) If official Corporation information is sought, through 
testimony or otherwise 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 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 
Corporation's General Counsel or his/her delegate. The Office of 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 plan of all reasonably foreseeable demands, including but 
not limited to the names of all current 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) The Corporation's General Counsel, or his/her delegate, 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 Office of 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 is required before the Corporation's 
General Counsel, or his/her delegate, 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 has been or 
is being, as the case may be, referred for the prompt consideration of 
the Corporation'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 Corporation 
attorney on behalf of the employee shall respectfully request the 
demanding court or 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 judicial or quasi-judicial authority declines 
to stay the effect of the demand in response to a request made pursuant 
to Sec. 1201.7, or if the court or other authority rules that the 
demand must be complied with irrespective of the Corporation's 
instructions not to produce the material or disclose the information 
sought, the individual upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing 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 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 substantial 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 which 
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 Corporation's General Counsel 
or his/her delegate may, in the exercise of discretion, 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 Corporation's 
General Counsel, a court of competent jurisdiction or other appropriate 
authority orders the appearance and expert or opinion testimony of a 
Corporation employee

[[Page 38244]]

such individual shall immediately inform the Office of 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 Corporation employee, CorpsMember, or VISTA Member shall comply 
with the order. If so directed by the Office of 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: July 10, 1997.
Stewart A. Davis,
Acting General Counsel, Corporation for National and Community Service.
[FR Doc. 97-18518 Filed 7-16-97; 8:45 am]
BILLING CODE 6050-28-P