[Federal Register Volume 85, Number 164 (Monday, August 24, 2020)]
[Rules and Regulations]
[Pages 52049-52052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17050]


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GENERAL SERVICES ADMINISTRATION

41 CFR Part 105-60

[GSPMR Case 2016-105-1; Docket No. 2016-0004; Sequence No. 1]


Public Availability of Agency Records and Informational 
Materials; Technical Amendment

AGENCY: Office of Administrative Services (OAS), General Services 
Administration (GSA).

ACTION: Final rule.

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SUMMARY: GSA is amending the General Services Administration's 
regulations implementing the Freedom of Information Act (FOIA). The 
previous published final rule inadvertently excluded a subpart.

DATES: Effective: August 24, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Travis S. Lewis, Director of GSA, 
OAS, Freedom of Information Act Requester Service Center, at 202-219-
3078 or via email at [email protected] for clarification of content. 
For information pertaining to status or publication schedules, contact 
the Regulatory Secretariat Division at 202-501-4755. Please cite GSPMR 
Case 2016-105-1.

SUPPLEMENTARY INFORMATION:

I. Background

    GSPMR Case 2016-105-1; Public Availability of Agency Records and 
Informational Materials was published in the Federal Register at 85 FR 
5137 on January 29, 2020.
    Subpart 41 CFR 105-60.6 was inadvertently excluded when GSA amended 
its regulations to incorporate changes brought about by changes to the 
Freedom of Information Act (FOIA) on January 29, 2020.

II. Discussion of Changes

    GSA is issuing this technical amendment to reinstitute its 
regulations pertaining to the Production or Disclosure by Present or 
Former General Services Administration Employees in Response to 
Subpoenas or Similar Demands in Judicial or Administrative Proceedings. 
There is and was no amendment to the language of the specific 
regulations pertaining to the Production or Disclosure by Present or 
Former General Services Administration Employees in Response to 
Subpoenas or

[[Page 52050]]

Similar Demands in Judicial or Administrative Proceedings. This 
technical amendment only reinstates the unchanged, aforementioned 
regulations as reflected in the background section.
    This final rule reinstates Subpart 41 CFR 105-60.6, hereinafter 
Subpart L-41 CFR-105-60.10, which regulates the Production or 
Disclosure by Present or Former General Services Administration 
Employees in Response to Subpoenas or Similar Demands in Judicial or 
Administrative Proceedings.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives; and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Executive Order 13771

    The General Services Administration certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities within the meaning of the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq., because this editorial change does not have a 
significant impact on the public or Government.

V. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because 
this final rule does not constitute a significant GSAR revision and 41 
U.S.C. 1707 does not require publication for public comment.

VI. Paperwork Reduction Act

    This final rule does not contain any information collection that 
requires additional approval of the Office of Management and Budget 
under the Paperwork Reduction Act (44 U.S.C. Chapter 35).

List of Subjects in 41 CFR Part 105-60

    Administrative practice and procedure, Records, Information, 
Confidential business information, Freedom of Information Act, Privacy 
Act.

Emily W. Murphy,
Administrator.


0
For the reasons stated in the preamble, GSA revises 41 CFR part 105-60 
to add Subpart L to read as follows:

PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND 
INFORMATIONAL MATERIALS

Subpart L 105-60.10--Production or Disclosure by Present or Former 
General Services Administration Employees in Response to Subpoenas 
or Similar Demands in Judicial or Administrative Proceedings

Sec.
105-60.1001 Purpose and scope of subpart.
105-60.1002 Definitions.
105-60.1003 Acceptance of service of a subpoena duces tecum or other 
legal demand on behalf of the General Services Administration.
105-60.1004 Production or disclosure prohibited unless approved by 
the Appropriate Authority.
105-60.1005 Procedure in the event of a demand for production or 
disclosure.
105-60.1006 Procedure where response to demand is required prior to 
receiving instructions.
105-60.1007 Procedure in the event of an adverse ruling.
105-60.1008 Fees, expenses, and costs.

    Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).


Sec.  105-60.1001  Purpose and scope of subpart.

    (a) By virtue of the authority vested in the Administrator of 
General Services by 5 U.S.C. 301 and 41 U.S.C. 121(c) this subpart 
establishes instructions and procedures to be followed by current and 
former employees of the General Services Administration in response to 
subpoenas or similar demands issued in judicial or administrative 
proceedings for production or disclosure of material or information 
obtained as part of the performance of a person's official duties or 
because of the person's official status. Nothing in these instructions 
applies to responses to subpoenas or demands issued by the Congress or 
in Federal grand jury proceedings.
    (b) This subpart provides instructions regarding the internal 
operations of GSA and the conduct of its employees, and is not intended 
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 GSA.


Sec.  105-60.1002  Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Material means any document, record, file or data, regardless 
of the physical form or the media by or through which it is maintained 
or recorded, which was generated or acquired by a current or former GSA 
employee by reason of the performance of that person's official duties 
or because of the person's official status, or any other tangible item, 
e.g., personal property possessed or controlled by GSA.
    (b) Information means any knowledge or facts contained in material, 
and any knowledge or facts acquired by current or former GSA employee 
as part of the performance of that person's official duties or because 
of that person's official status.
    (c) Demand means any subpoena, order, or similar demand for the 
production or disclosure of material, information or testimony 
regarding such material or information, issued by a court or other 
authority in a judicial or administrative proceeding, excluding 
congressional subpoenas or demands in Federal grand jury proceedings, 
and served upon a present or former GSA employee.
    (d) Appropriate authority means the following officials who are 
delegated authority to approve or deny responses to demands for 
material, information or testimony:
    (1) The Counsel to the Inspector General for material and 
information which is the responsibility of the GSA Office of Inspector 
General or testimony of current or former employees of the Office of 
the Inspector General;
    (2) The Counsel to the GSA Board of Contract Appeals for material 
and information which is the responsibility of the Board of Contract 
Appeals or testimony of current or former Board of Contract Appeals 
employees;
    (3) The GSA General Counsel, Associate General Counsel(s) or 
Regional Counsel for all material, information, or testimony not 
covered by paragraphs (d)(1) and (2) of this section.


Sec.  105-60.1003   Acceptance of service of a subpoena duces tecum or 
other legal demand on behalf of the General Services Administration.

    (a) The Administrator of General Services and the following 
officials are the only GSA personnel authorized to accept service of a 
subpoena or other legal demand on behalf of GSA: The GSA General 
Counsel and Associate General Counsel(s) and, with respect to material 
or information which is the

[[Page 52051]]

responsibility of a regional office, the Regional Administrator and 
Regional Counsel. The Inspector General and Counsel to the Inspector 
General, as well as the Chairman and Vice Chairman of the Board of 
Contract Appeals, are authorized to accept service for material or 
information which are the responsibility of their respective 
organizations.
    (b) A present or former GSA employee not authorized to accept 
service of a subpoena or other demand for material, information or 
testimony obtained in an official capacity shall respectfully inform 
the process server that he or she is not authorized to accept service 
on behalf of GSA and refer the process server to an appropriate 
official listed in paragraph (a) of this section.
    (c) A Regional Administrator or Regional Counsel shall notify the 
General Counsel of a demand which may raise policy concerns or affect 
multiple regions.


Sec.  105-60.1004   Production or disclosure prohibited unless approved 
by the Appropriate Authority.

    No current or former GSA employee shall, in response to a demand, 
produce any material or disclose, through testimony or other means, any 
information covered by this subpart, without prior approval of the 
Appropriate Authority.


Sec.  105-60.1005   Procedure in the event of a demand for production 
or disclosure.

    (a) Whenever service of a demand is attempted in person or via mail 
upon a current or former GSA employee for the production of material or 
the disclosure of information covered by this subpart, the employee or 
former employee shall immediately notify the Appropriate Authority 
through his or her supervisor or his or her former service, staff 
office, or regional office. The supervisor shall notify the Appropriate 
Authority. For current or former employees of the Office of Inspector 
General located in regional offices, Counsel to the Inspector General 
shall be notified through the immediate supervisor or former employing 
field office.
    (b) The Appropriate Authority shall require that the party seeking 
material or testimony provide the Appropriate Authority with an 
affidavit, declaration, statement, and/or a plan as described in 
paragraphs (c) (1), (2), and (3) of this section if not included with 
or described in the demand. The Appropriate Authority may waive this 
requirement for a demand arising out of proceedings to which GSA or the 
United States is a party. Any waiver will be coordinated with the 
United States Department of Justice (DOJ) in proceedings in which GSA, 
its current or former employees, or the United States are represented 
by DOJ.
    (c)(1) Oral testimony. If oral testimony is sought by a demand, the 
Appropriate Authority shall require the party seeking the testimony or 
the party's attorney to provide, by affidavit or other statement, a 
detailed summary of the testimony sought and its relevance to the 
proceedings. Any authorization for the testimony of a current or former 
GSA employee shall be limited to the scope of the demand as summarized 
in such statement or affidavit.
    (2) Production of material. When information other than oral 
testimony is sought by a demand, the Appropriate Authority shall 
require the party seeking production or the party's attorney to provide 
a detailed summary, by affidavit or other statement, of the information 
sought and its relevance to the proceeding.
    (3) Required plan or other information. The Appropriate Authority 
may require a plan or other information from the party seeking 
testimony or production of material of all demands reasonably 
foreseeable, including, but not limited to, names of all current and 
former GSA employees from whom testimony or production is or will 
likely be sought, areas of inquiry, for current employees the length of 
time away from duty anticipated, and identification of documents to be 
used in each deposition or other testimony, where appropriate.
    (d) The Appropriate Authority will notify the current or former 
employee, the appropriate supervisor, and such other persons as 
circumstances may warrant, whether disclosure or production is 
authorized, and of any conditions or limitations to disclosure or 
production.
    (e) Factors to be considered by the Appropriate Authority in 
responding to demands:
    (1) Whether disclosure or production is appropriate under rules of 
procedure governing the proceeding out of which the demand arose;
    (2) The relevance of the testimony or documents to the proceedings;
    (3) The impact of the relevant substantive law concerning 
applicable privileges recognized by statute, common law, judicial 
interpretation or similar authority;
    (4) The information provided by the issuer of the demand in 
response to requests by the Appropriate Authority pursuant to 
paragraphs (b) and (c) of this section;
    (5) The steps taken by the issuer of the demand to minimize the 
burden of disclosure or production on GSA, including but not limited to 
willingness to accept authenticated copies of material in lieu of 
personal appearance by GSA employees;
    (6) The impact on pending or potential litigation involving GSA or 
the United States as a party;
    (7) In consultation with the head of the GSA organizational 
component affected, the burden on GSA which disclosure or production 
would entail; and
    (8) Any additional factors unique to a particular demand or 
proceeding.
    (f) The Appropriate Authority shall not approve a disclosure or 
production which would:
    (1) Violate a statute or a specific regulation;
    (2) Reveal classified information, unless appropriately 
declassified by the originating agency;
    (3) Reveal a confidential source or informant, unless the 
investigative agency and the source or informant consent;
    (4) Reveal records or information compiled for law enforcement 
purposes which would interfere with enforcement proceedings or disclose 
investigative techniques and procedures the effectiveness of which 
would be impaired;
    (5) Reveal trade secrets or commercial or financial information 
which is privileged or confidential without prior consultation with the 
person from whom it was obtained; or
    (6) Be contrary to a recognized privilege.
    (g) The Appropriate Authority's determination, including any 
reasons for denial or limitations on disclosure or production, shall be 
made as expeditiously as possible and shall be communicated in writing 
to the issuer of the demand and appropriate current or former GSA 
employee(s). In proceedings in which GSA, its current or former 
employees, or the United States are represented by DOJ, the 
determination shall be coordinated with DOJ which may respond to the 
issuer of the subpoenas or demand in lieu of the Appropriate Authority.


Sec.  105-60.1006   Procedure where response to demand is required 
prior to receiving instructions.

    (a) If a response to a demand is required before the Appropriate 
Authority's decision is issued, a GSA attorney designated by the 
Appropriate Authority for the purpose shall appear with the employee or 
former employee upon whom the demand has been made, and shall furnish 
the judicial or other authority with a copy of the instructions

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contained in this subpart. The attorney shall inform the court or other 
authority that the demand has been or is being referred for the prompt 
consideration by the Appropriate Authority. The attorney shall 
respectfully request the judicial or administrative authority to stay 
the demand pending receipt of the requested instructions.
    (b) The designated GSA attorney shall coordinate GSA's response 
with DOJ's Civil Division or the relevant Office of the United States 
Attorney and may request that a DOJ or Assistant United States Attorney 
appear with the employee in addition to or in lieu of a designated GSA 
attorney.
    (c) If an immediate demand for production or disclosure is made in 
circumstances which preclude the appearance of a GSA or DOJ attorney on 
the behalf of the employee or the former employee, the employee or 
former employee shall respectfully make a request to the demanding 
authority for sufficient time to obtain advice of counsel.


Sec.  105-60.1007  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec.  105-
60.606 pending receipt of instructions, or if the court or other 
authority rules that the demand must be complied with irrespective of 
instructions by the Appropriate Authority not to produce the material 
or disclose the information sought, the employee or former employee 
upon whom the demand has been made shall respectfully decline to 
comply, citing these instructions and the decision of the United States 
Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).


Sec.  105-60.1008  Fees, expenses, and costs.

    (a) In consultation with the Appropriate Authority, a current 
employee who appears as a witness pursuant to a demand shall ensure 
that he or she receives all fees and expenses, including travel 
expenses, to which witnesses are entitled pursuant to rules applicable 
to the judicial or administrative proceedings out of which the demand 
arose.
    (b) Witness fees and reimbursement for expenses received by a GSA 
employee shall be disposed of in accordance with rules applicable to 
Federal employees in effect at the time.
    (c) Reimbursement to the GSA for costs associated with producing 
material pursuant to a demand shall be determined in accordance with 
rules applicable to the proceedings out of which the demand arose.

[FR Doc. 2020-17050 Filed 8-21-20; 8:45 am]
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