[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conduct that were superseded by the Office of Government Ethics Uniform 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