[Federal Register Volume 74, Number 160 (Thursday, August 20, 2009)]
[Rules and Regulations]
[Pages 42028-42032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20031]


=======================================================================
-----------------------------------------------------------------------

PRESIDIO TRUST

36 CFR Part 1012

RIN 3212-AA-04


Legal Process: Testimony by Employees and Production of Records

AGENCY: Presidio Trust.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Presidio Trust is publishing as a final rule a regulation,

[[Page 42029]]

limited to the Presidio Trust's organization and management, governing 
access to Presidio Trust information and records in connection with 
legal proceedings in which neither the United States nor the Presidio 
Trust is a party. This final rule establishes guidelines for use in 
determining whether Presidio Trust employees (as defined in the final 
rule) will provide testimony or records relating to their official 
duties. It also establishes procedures for requesters to follow when 
making demands on or requests to a Presidio Trust employee for official 
documents or to provide testimony. This final rule standardizes the 
Presidio Trust's practices, promotes uniformity in decisions, conserves 
the ability of the Presidio Trust to conduct official business, 
preserves its employee resources, protects confidential information, 
provides guidance to requestors, minimizes involvement in matters 
unrelated to the Presidio Trust's mission and programs, avoids wasteful 
allocation of agency resources and avoids spending public time and 
money for private purpose.

DATES: The effective date of the regulation is September 25, 2009.

FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel, 
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 
94129-0052. Telephone: 415.561.5300.

SUPPLEMENTARY INFORMATION: 
    The Presidio Trust, a wholly-owned federal government corporation, 
on occasion receives subpoenas and other requests for documents and 
requests for Presidio Trust employees (as defined in the final rule) to 
provide testimony or evidence in judicial, legislative or 
administrative proceedings in which the Presidio Trust is not a party. 
Sometimes these subpoenas or requests are for Presidio Trust records 
that are exempt from disclosure under the Freedom of Information Act. 
The Presidio Trust also receives requests for Presidio Trust employees 
to appear as witnesses and to provide testimony relating to materials 
contained in the Presidio Trust's official records or to provide 
testimony or information acquired during the performance of the 
employees' official duties.
    Although many other federal agencies currently have regulations in 
place to address these types of requests and the Presidio Trust itself 
has rules governing requests for information under the Freedom of 
Information Act, the Presidio Trust has not previously adopted 
regulations governing subpoenas and other information requests for 
document production and testimony of Presidio Trust employees in 
judicial, legislative or administrative proceedings in which the 
Presidio Trust is not a party. Issues about such requests that have 
arisen in recent years warrant adoption of regulations governing their 
submission, evaluation and processing. Responding to these requests is 
not only burdensome, but may also result in a significant disruption of 
a Presidio Trust employee's work schedule, may involve the Presidio 
Trust in issues unrelated to its responsibilities and may impede the 
Presidio Trust's accomplishment of its budgetary goals. In order to 
resolve these issues, many agencies have issued regulations, similar to 
this regulation, governing the circumstances and manner for responding 
to demands for testimony or for the production of documents. 
Establishing uniform procedures for submission, evaluation and response 
to such demands will ensure timely notice and will promote centralized 
decision making. The United States Supreme Court upheld this type of 
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).
    Briefly summarized, the final rule prohibits disclosure of official 
records or testimony by the Presidio Trust's employees unless there is 
compliance with the rule. The final rule sets out the information that 
requesters must provide and the factors that the Presidio Trust will 
consider in making determinations in response to requests for testimony 
or the production of documents.
    This final rule ensures a more efficient use of the Presidio 
Trust's resources, minimizes the possibility of involving the Presidio 
Trust in issues unrelated to its mission or responsibilities, promotes 
uniformity in responding to such subpoenas and similar requests, and 
maintains the impartiality of the Presidio Trust in matters that are in 
dispute between other parties. It also serves the Presidio Trust's 
interest in protecting sensitive, confidential and privileged 
information and records that are generated in fulfillment of the 
Presidio Trust's responsibilities.
    The final rule is internal and procedural rather than substantive. 
It does not create a right to obtain official records or the official 
testimony of a Presidio Trust employee; nor does it create any 
additional right or privilege not already available to the Presidio 
Trust to deny any demand or request for testimony or documents. Failure 
to comply with the procedures set out in these regulations would be a 
basis for denying a demand or request submitted to the Presidio Trust.
    This rulemaking is in compliance with the Administrative Procedure 
Act (5 U.S.C. 553) and follows a 30-day comment period. During this 
period the Presidio Trust received and considered one comment. This 
comment proposed that the scope of the regulation in Section 1012.1 be 
amended to exempt suits in which Presidio Trust board members are sued 
in their official capacity. The commenter believed that some such suits 
would not qualify for treatment under these regulations pursuant to 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) and that the 
determination of whether the Presidio Trust has a direct and 
substantial interest in such suits against Presidio Trust board members 
should not be made by the Presidio Trust. The Presidio Trust considered 
this comment and believes that because the applicability of these 
regulations in any particular proceeding or circumstance is subject to 
judicial review, there is adequate assurance that the requirements set 
by the Touhy decision or other applicable law will be applied. The 
Presidio Trust will continue to review these regulations in the future, 
and if it becomes apparent that they should be modified based on 
changes in the law or experience with their implementation, then the 
Presidio Trust will do so through the rulemaking process.

Executive Order 12866--Regulatory Planning and Review

    This final rule, because it is limited to the Presidio Trust's 
organization and management, does not fall within the definition of a 
``Rule'' under Executive Order 12866 issued September 30, 1993 on 
Regulatory Planning and Review. Moreover, this final rule will not have 
an annual effect of $100 million or more on the economy nor adversely 
affect productivity, competition, jobs, the environment, public health 
or safety, nor State or local governments. This final rule will neither 
interfere with an action taken or planned by another agency nor raise 
new legal or policy issues. This final rule will not alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients of such programs. 
Therefore, it has been determined that this is not an economically 
significant rule.

Executive Order 12988--Civil Justice Reform

    This final rule has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform, and will not unduly burden 
the Federal court system. This final rule has been

[[Page 42030]]

written so as to minimize litigation and provide a clear legal standard 
for affected conduct, and has been reviewed carefully to eliminate 
drafting errors and ambiguities. Additionally, the Presidio Trust has 
not identified any State or local laws or regulations that are in 
conflict with this regulation or that would impede full implementation 
of this final rule. Nonetheless, in the event that such a conflict was 
to be identified, the final rule would preempt State or local laws or 
regulations found to be in conflict. However, in that case, (1) no 
retroactive effect would be given to this final rule; and (2) the final 
rule does not require the use of administration proceedings before 
parties may file suit in court challenging its provisions.

Executive Order 13132--Federalism

    This final rule conforms with the Federalism principles set out in 
Executive Order 13132 and would not impose any compliance costs on the 
States; and would not have substantial direct effects on the States, on 
the relationship between the National Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, it has been determined that this final rule 
does not have federalism implications.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538) as well as Executive Order 12875, the Presidio Trust 
has assessed the effects of this final rule on State, local, and Tribal 
governments and the private sector. This final rule does not compel the 
expenditure of $100 million or more in any one year by any State, 
local, or Tribal governments or anyone in the private sector. 
Therefore, a statement under section 202 of the Act is not required.

Executive Order 13175--Consultation With Indian Tribal Governments

    Pursuant to Executive Order 13175 of November 6, 2000, the Presidio 
Trust has assessed the impact of this final rule on Indian Tribal 
governments and has determined that the final rule does not 
significantly or uniquely affect communities of Indian Tribal 
governments. The Presidio Trust has also determined that this final 
rule does not impose substantial direct compliance costs or Tribal 
implications on Indian tribal governments, and therefore advance 
consultation with Tribes is not required.

Regulatory Flexibility Act and Executive Order 13272--Consideration of 
Small Entities

    This final rule has been considered in light of the Regulatory 
Flexibility Act (5 U.S.C. 602 et seq.) and Executive Order 13272 of 
August 13, 2002. This final rule will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act and Executive Order 13272, because the final rule will 
not impose recordkeeping requirements on them; it will not affect their 
competitive position in relation to large entities; and it will not 
affect their cash flow, liquidity or ability to remain in the market.

Certification

    The Presidio Trust certifies that this final rule is not expected 
to have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act or Executive Order 13272.

Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801 et seq.), as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Because this final rule is a rule of 
agency organization, procedure or practice that does not substantially 
affect the rights or obligations of non-agency parties it is not a 
``Rule'' as defined by the Congressional Review Act (5 U.S.C. 
804(3)(C)) and is not subject to it.

Executive Order 13211--Energy Effects

    This final rule is not a ``significant energy action'' as defined 
in Executive Order 13211 of May 22, 2001, because it is not likely to 
have a significant adverse affect on the supply, distribution or use of 
energy. The Presidio Trust has determined that this final rule is not 
likely to have any adverse energy effects.

The Paperwork Reduction Act of 1995

    This final rule contains no paperwork burdens or information 
collection requirements that are subject to review by the Office of 
Management and Budget under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3520).

Analysis of Environmental Impact

    The Presidio Trust has analyzed this final rule in accordance with 
the criteria of the National Environmental Policy Act of 1969 and 
determined that the rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. 
Therefore, neither an environmental assessment nor an environmental 
impact statement is required.

Government Paperwork Elimination Act

    The Presidio Trust is committed to compliance with the Government 
Paperwork Elimination Act (GPEA), which requires Government agencies to 
provide the public the option of submitting information or transacting 
business electronically to the maximum extent possible. This final rule 
contains no paperwork burdens or information collection requirements, 
and is thus in compliance with the GPEA.

Executive Order 12630--No Takings Implication

    This final rule has been analyzed in accordance with the principles 
of and criteria contained in Executive Order 12630 issued March 15, 
1988, and it has been determined that the final rule does not pose a 
risk of a taking of constitutionally protected private property.

0
For the reasons set forth in the preamble, the Presidio Trust amends 
chapter X of title 36 of the Code of Federal Regulations as follows:
0
A new part 1012, consisting of Sec.  1012.1 through Sec.  1012.11, is 
added to chapter X to read as follows:

PART 1012--LEGAL PROCESS: TESTIMONY BY EMPLOYEES AND PRODUCTION OF 
RECORDS

General Information

Sec.
1012.1 What does this part cover?
1012.2 What is the Presidio Trust's policy on granting requests for 
employee testimony or Presidio Trust records?

Responsibilities of Requesters

1012.3 How can I obtain employee testimony or Presidio Trust 
records?
1012.4 If I serve a subpoena duces tecum, must I also submit a Touhy 
Request?
1012.5 What information must I put in my Touhy Request?
1012.6 How much will I be charged?
1012.7 Can I get an authenticated copy of a Presidio Trust record?

Responsibilities of the Presidio Trust

1012.8 How will the Presidio Trust process my Touhy Request?
1012.9 What criteria will the Presidio Trust consider in responding 
to my Touhy Request?

Responsibilities of Employees

1012.10 What must I, as an employee, do upon receiving a request?

[[Page 42031]]

1012.11 Must I get approval before testifying as an expert witness 
other than on behalf of the United States in a Federal proceeding in 
which the United States is a party or has a direct and substantial 
interest?

    Authority:  16 U.S.C. 460bb appendix; 40 U.S.C. 102; 44 U.S.C. 
2901 and 3102.

General Information


Sec.  1012.1  What does this part cover?

    (a) This part describes how the Presidio Trust responds to requests 
or subpoenas for:
    (1) Testimony by employees in State, territorial or Tribal 
judicial, legislative or administrative proceedings concerning 
information acquired while performing official duties or because of an 
employee's official status;
    (2) Testimony by employees in Federal court civil proceedings in 
which the United States or the Presidio Trust is not a party concerning 
information acquired while performing official duties or because of an 
employee's official status;
    (3) Testimony by employees in any judicial or administrative 
proceeding in which the United States or the Presidio Trust, while not 
a party, has a direct and substantial interest;
    (4) Official records or certification of such records for use in 
Federal, State, territorial or Tribal judicial, legislative or 
administrative proceedings.
    (b) In this part, ``employee'' means a current or former Presidio 
Trust employee, or Board member, including a contractor or special 
government employee, except as the Presidio Trust may otherwise 
determine in a particular case.
    (c) This part does not apply to:
    (1) Congressional requests or subpoenas for testimony or records;
    (2) Federal court civil proceedings in which the United States or 
the Presidio Trust is a party;
    (3) Federal administrative proceedings;
    (4) Federal, State and Tribal criminal court proceedings;
    (5) Employees who voluntarily testify, while on their own time or 
in approved leave status, as private citizens as to facts or events 
that are not related to the official business of the Presidio Trust. 
The employee must state for the record that the testimony represents 
the employee's own views and is not necessarily the official position 
of the Presidio Trust. See 5 CFR 2635.702(b), 2635.807(b).
    (6) Testimony by employees as expert witnesses on subjects outside 
their official duties, except that they must obtain prior approval if 
required by Sec.  1012.11.
    (d) This part does not affect the rights of any individual or the 
procedures for obtaining records under the Freedom of Information Act 
(FOIA), Privacy Act, or statutes governing the certification of 
official records. The Presidio Trust FOIA and Privacy Act regulations 
are found at parts 1007 and 1008 of this chapter.
    (e) Nothing in this part is intended to impede the appropriate 
disclosure under applicable laws of Presidio Trust information to 
Federal, State, territorial, Tribal, or foreign law enforcement, 
prosecutorial, or regulatory agencies.
    (f) This part only provides guidance for the internal operations of 
the Presidio Trust, and neither creates nor is intended to create any 
enforceable right or benefit against the United States or the Presidio 
Trust.


Sec.  1012.2  What is the Presidio Trust's policy on granting requests 
for employee testimony or Presidio Trust records?

    (a) Except for proceedings covered by Sec.  1012.1(c) and (d), it 
is the Presidio Trust's general policy not to allow its employees to 
testify or to produce Presidio Trust records either upon request or by 
subpoena. However, if the party seeking such testimony or records 
requests in writing, the Presidio Trust will consider whether to allow 
testimony or production of records under this part. The Presidio 
Trust's policy ensures the orderly execution of its mission and 
programs while not impeding any proceeding inappropriately.
    (b) No Presidio Trust employee may testify or produce records in 
any proceeding to which this part applies unless authorized by the 
Presidio Trust under Sec. Sec.  1012.1 through 1012.11. United States 
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

Responsibilities of Requesters


Sec.  1012.3  How can I obtain employee testimony or Presidio Trust 
records?

    (a) To obtain employee testimony, you must submit:
    (1) A written request (hereafter a ``Touhy Request;'' see Sec.  
1012.5 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); 
and
    (2) A statement that you will submit a valid check for costs to the 
Presidio Trust, in accordance with Sec.  1012.6, if your Touhy Request 
is granted.
    (b) To obtain official Presidio Trust records, you must submit:
    (1) A Touhy Request; and
    (2) A statement that you agree to pay the costs of search and/or 
duplication in accordance with the provisions governing requests under 
the Freedom of Information Act in part 1007 of this chapter, if your 
Touhy Request is granted.
    (c) You must send your Touhy Request to both:
    (1) The employee; and
    (2) The General Counsel of the Presidio Trust.
    (d) The address of Presidio Trust employees and the General Counsel 
is: Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 
94129-0052.


Sec.  1012.4  If I serve a subpoena duces tecum, must I also submit a 
Touhy request?

    Yes. If you serve a subpoena for employee testimony or if you serve 
a subpoena duces tecum for records in the possession of the Presidio 
Trust, you also must submit a Touhy Request.


Sec.  1012.5  What information must I put in my Touhy Request?

    Your Touhy Request must:
    (a) Identify the employee or record;
    (b) Describe the relevance of the desired testimony or records to 
your proceeding and provide a copy of the pleadings underlying your 
request;
    (c) Identify the parties to your proceeding and any known 
relationships they have with the Presidio Trust or to its mission or 
programs;
    (d) Show that the desired testimony or records are not reasonably 
available from any other source;
    (e) Show that no record could be provided and used in lieu of 
employee testimony;
    (f) Provide the substance of the testimony expected of the 
employee; and
    (g) Explain why you believe your Touhy Request meets the criteria 
specified in Sec.  1012.9.


Sec.  1012.6  How much will I be charged?

    We will charge you the costs, including travel expenses, for 
employees to testify under the relevant substantive and procedural laws 
and regulations. You must pay costs for record production in accordance 
with the provisions governing requests under the Freedom of Information 
Act in part 1007 of this chapter. Estimated Costs must be paid in 
advance by check or money order payable to the Presidio Trust. Upon 
determination of the precise costs, the Presidio Trust will either 
reimburse you for any overpayment, or charge you for any underpayment, 
which charges must be paid within 10 business days by check or money 
order payable to the Presidio Trust.

[[Page 42032]]

Sec.  1012.7  Can I get an authenticated copy of a Presidio Trust 
record?

    Yes. We may provide an authenticated copy of a Presidio Trust 
record, for purposes of admissibility under Federal, State or Tribal 
law. We will do this only if the record has been officially released or 
would otherwise be released under parts 1007 or 1008 of this chapter, 
or this part.

Responsibilities of the Presidio Trust


Sec.  1012.8  How will the Presidio Trust process my Touhy Request?

    (a) The Executive Director will decide whether to grant or deny 
your Touhy Request. The Presidio Trust's General Counsel, or his or her 
agent, may negotiate with you or your attorney to refine or limit both 
the timing and content of your Touhy Request. When necessary, the 
General Counsel also will coordinate with the Department of Justice to 
file appropriate motions, including motions to remove the matter to 
Federal court, to quash, or to obtain a protective order.
    (b) We will limit the Presidio Trust's decision to allow employee 
testimony to the scope of your Touhy Request.
    (c) If you fail to follow the requirements of this part, we will 
not allow the testimony or produce the records.
    (d) If your Touhy Request is complete, we will consider the request 
under Sec.  1012.9.


Sec.  1012.9  What criteria will the Presidio Trust consider in 
responding to my Touhy Request?

    In deciding whether to grant your Touhy Request, the Executive 
Director will consider:
    (a) Your ability to obtain the testimony or records from another 
source;
    (b) The appropriateness of the employee testimony and record 
production under the relevant regulations of procedure and substantive 
law, including the FOIA or the Privacy Act; and
    (c) The Presidio Trust's ability to:
    (1) Conduct its official business unimpeded;
    (2) Maintain impartiality in conducting its business;
    (3) Minimize the possibility that the Presidio Trust will become 
involved in issues that are not related to its mission or programs;
    (4) Avoid spending public employees' time for private purposes;
    (5) Avoid any negative cumulative effect of granting similar 
requests;
    (6) Ensure that privileged or protected matters remain 
confidential; and
    (7) Avoid undue burden on the Presidio Trust.

Responsibilities of Employees


Sec.  1012.10  What must I, as an employee, do upon receiving a 
request?

    (a) If you receive a request or subpoena that does not include a 
Touhy Request, you must immediately notify your supervisor and the 
Presidio Trust's General Counsel for assistance in issuing the proper 
response.
    (b) If you receive a Touhy Request, you must promptly notify your 
supervisor and forward the request to the General Counsel. After 
consulting with the General Counsel, the Executive Director will decide 
whether to grant the Touhy Request under Sec.  1012.9.
    (c) All decisions granting or denying a Touhy Request must be in 
writing. The Executive Director must ask the General Counsel for advice 
when preparing the decision.
    (d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), 
or comparable State or Tribal law, a request for an authenticated copy 
of a Presidio Trust record may be granted by the person having the 
legal custody of the record. If you believe that you have custody of a 
record:
    (1) Consult the General Counsel to determine if you can grant a 
request for authentication of records; and
    (2) Consult the General Counsel concerning the proper form of the 
authentication (as authentication requirements may vary by 
jurisdiction).


Sec.  1012.11  Must I get approval before testifying as an expert 
witness other than on behalf of the United States in a Federal 
proceeding in which the United States is a party or has a direct and 
substantial interest?

    (a) You must comply with 5 CFR 2635.805(c), which details the 
authorization procedure for an employee to testify as an expert 
witness, not on behalf of the United States, in any proceeding before a 
court or agency of the United States in which the United States is a 
party or has a direct and substantial interest. This procedure means:
    (1) You must obtain the written approval of the Presidio Trust's 
General Counsel;
    (2) You must be in an approved leave status if you testify during 
duty hours; and
    (3) You must state for the record that you are appearing as a 
private individual and that your testimony does not represent the 
official views of the Presidio Trust.
    (b) If you testify as an expert witness on a matter outside the 
scope of your official duties, and which is not covered by paragraph 
(a) of this section, you must comply with 5 CFR 2635.802.

    Dated: August 14, 2009.
Karen A. Cook,
General Counsel.
[FR Doc. E9-20031 Filed 8-19-09; 8:45 am]
BILLING CODE 4310-4R-P