[Federal Register Volume 87, Number 2 (Tuesday, January 4, 2022)]
[Proposed Rules]
[Pages 210-212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28468]


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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Humanities

45 CFR Part 1167

RIN 3136-AA44


Testimony and Production of Records

AGENCY: National Endowment for the Humanities; National Foundation on 
the Arts and the Humanities.

ACTION: Proposed rule with request for comments.

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SUMMARY: The National Endowment for the Humanities (NEH) is proposing 
to issue regulations to be followed when an NEH employee receives a 
demand or request to provide testimony or produce records in a legal 
proceeding. These procedures are designed to promote economy and 
efficiency in NEH's programs and operations, to minimize the 
possibility of involving NEH in controversial issues not related to its 
functions, to maintain the impartiality of NEH among private litigants, 
and to protect sensitive, confidential information and the deliberative 
process.

DATES: Send comments on or before February 3, 2022.

ADDRESSES: You may send comments by email to [email protected].
    Instructions: Include ``3136-AA44'' in the subject line of the 
email.

FOR FURTHER INFORMATION CONTACT: Elizabeth Voyatzis, Deputy General 
Counsel, Office of the General Counsel, National Endowment for the 
Humanities, 400 7th Street SW, Room 4060, Washington, DC 20506; (202) 
606-8322; [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Federal courts have upheld the authority of a Federal agency to 
establish procedures governing the production of records and testimony 
by personnel in legal proceedings in which the agency is not a party. 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). This 
proposed rule would establish policies and procedures that the agency 
will follow when, in a legal proceeding, a current or former NEH 
employee receives a demand or request to testify as to facts or events 
that relate to his or her official duties or the functions of NEH or to 
produce official records and information.
    This proposed rule relates to testimony and the production of 
records only in connection with legal proceedings to which the United 
States is not a party. It would not apply to requests under the Freedom 
of Information Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C. 
552a; Congressional demands or requests for testimony or records; or 
legal proceedings to which the United States is a party.

Request for Comments

    NEH requests comments, which NEH must receive at the above address, 
by the above date.

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13563, Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget for 
review.

Executive Order 13132, Federalism

    This rulemaking does not have federalism implications. It will 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.

Executive Order 12988, Civil Justice Reform

    This rulemaking meets the applicable standards set forth in section 
3(a) and 3(b)(2) of Executive Order 12988. Specifically, this 
rulemaking is written in clear language designed to help reduce 
litigation.

Executive Order 13175, Indian Tribal Governments

    Under the criteria in Executive Order 13175, NEH evaluated this 
rulemaking and determined that it will not have any potential effects 
on Federally recognized Indian Tribes.

Executive Order 12630, Takings

    Under the criteria in Executive Order 12630, this rulemaking does 
not have significant takings implications. Therefore, a takings 
implication assessment is not required.

Regulatory Flexibility Act of 1980

    This rulemaking will not have a significant adverse impact on a 
substantial number of small entities, including small businesses, small 
governmental jurisdictions, or certain small not-for-profit 
organizations.

Paperwork Reduction Act of 1995

    This rulemaking does not impose an information collection burden 
under the Paperwork Reduction Act. This action contains no provisions 
constituting a collection of information pursuant to the Paperwork 
Reduction Act.

Unfunded Mandates Reform Act of 1995

    This rulemaking does not contain a Federal mandate that will result 
in the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year.

National Environmental Policy Act of 1969

    This rulemaking will not have a significant effect on the human 
environment.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking will not be a major rule as defined in section 804 
of the Small Business Regulatory Enforcement Fairness Act of 1996. This 
rulemaking will not result in an annual effect on the economy of $100 
million or more, a major increase in costs or prices, significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies in domestic and export markets.

E-Government Act of 2002

    All information about NEH required to be published in the Federal 
Register may be accessed at www.neh.gov. The website 
www.regulations.gov contains electronic dockets for NEH's rulemakings 
under the Administrative Procedure Act of 1946.

Plain Writing Act of 2010

    To ensure this proposed rule speaks in plain and clear language so 
that the

[[Page 211]]

public can use and understand it, NEH modeled the language of the 
proposed rule on the Federal Plain Language Guidelines.

List of Subjects in 45 CFR Part 1167

    Administrative practice and procedure.

    For the reasons set forth in the preamble, the National Endowment 
for the Humanities proposes to amend 45 CFR chapter XI by adding part 
1167 to read as follows:

PART 1167--TESTIMONY AND PRODUCTION OF RECORDS

Sec.
1167.1 Purpose.
1167.2 Applicability.
1167.3 Definitions.
1167.4 Testimony and production of official records and information.
1167.5 Procedure when demand is made.
1167.6 Office of Inspector General employees.

    Authority:  5 U.S.C. 301.


Sec.  1167.1  Purpose.

    (a) This part sets forth policies and procedures to be followed 
when an employee of the National Endowment for the Humanities (NEH) 
receives a demand to provide testimony or produce official records and 
information in connection with a legal proceeding in which the United 
States is not a party.
    (b) The provisions of this part are intended to promote economy and 
efficiency in NEH's programs and operations; minimize the possibility 
of involving NEH in controversial issues not related to its functions; 
maintain the impartiality of NEH among private litigants; and protect 
sensitive, confidential information and the agency's internal 
deliberative process.
    (c) This part does not waive the sovereign immunity of the United 
States.
    (d) This part does not create any right or benefit, substantive or 
procedural, enforceable at law by a party against the United States.
    (e) This regulation is not intended to conflict with 5 U.S.C. 
2302(b)(13).


Sec.  1167.2  Applicability.

    This part applies to demands and requests for factual or expert 
testimony or for official records or information in legal proceedings, 
except that it does not apply to:
    (a) Demands upon or requests for an NEH 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 NEH;
    (b) Demands upon or requests for a former NEH employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at NEH;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C. 
552a;
    (d) Congressional demands and requests for testimony or records; 
and
    (e) Legal proceedings to which the United States is a party.


Sec.  1167.3  Definitions.

    (a) Agency or NEH means the National Endowment for the Humanities.
    (b) Demand means a subpoena, order, or other demand of a court or 
other competent authority, issued in a legal proceeding, for the 
production of official records and information or for the testimony of 
an NEH employee.
    (c) General Counsel means the General Counsel of the agency, 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) NEH employee or employee means any present or former officer or 
employee of NEH; any other individual hired through contractual 
agreement by or on behalf of NEH, or who has performed or is performing 
services under such an agreement for NEH; and any individual who served 
or is serving on an NEH advisory committee.
    (f) Official records and information means all documents and 
material in the custody and control of NEH; relating to information in 
the custody and control of NEH; or acquired by an NEH employee in the 
performance of his or her official duties or because of his or her 
official status, while the individual was employed by or on behalf of 
the NEH.
    (g) Request means any request in connection with an ongoing or 
threatened legal proceeding, by whatever method, for the production of 
official records and information or for testimony, other than a demand.
    (h) Testimony means any written or oral statement by a witness, and 
includes depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.


Sec.  1167.4  Testimony and production of official records and 
information.

    (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) Allowing such testimony or production of records would be 
consistent with the purposes of this part;
    (2) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (3) Allowing such testimony or production of records would be in 
the best interest of NEH and the United States; or
    (4) NEH has an interest in the outcome of the legal proceeding.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge or produce 
official records and information, but, unless specifically authorized 
to do so by the General Counsel, shall not:
    (1) Disclose confidential or privileged information;
    (2) Testify as to matters regarding which the General Counsel 
determines that testimony would not be in the best interest of NEH or 
the United States;
    (3) Produce official records and information regarding which the 
General Counsel determines that production would not be in the best 
interest of NEH or the United States; or
    (4) Testify as an expert or opinion witness with regard to any 
matter arising out of the employee's official duties or the functions 
of NEH. (See also 5 CFR 2635.805.)


Sec.  1167.5  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 notify the General Counsel immediately.
    (b) The General Counsel shall review the demand and, in accordance 
with the provisions of Sec.  1167.4, shall determine whether, or on 
what conditions, to authorize the employee to testify and/or produce 
official records and information.
    (c) If a demand requires a response before the General Counsel has 
made the determination referred to in paragraph (b) of this section, 
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.

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    (d) If a court or other competent authority orders that an NEH 
employee comply with a demand notwithstanding a final decision by the 
General Counsel to the contrary, or at any other stage in the process, 
the General Counsel shall advise the employee on how to respond to such 
order and may arrange for legal representation of the employee.


Sec.  1167.6  Office of Inspector General employees.

    Notwithstanding the requirements set forth in Sec. Sec.  1167.1 
through 1167.5, when an employee of the agency's Office of the 
Inspector General receives a demand or request 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 under this part with respect to such 
demand or request.

    Dated: December 28, 2021.
Samuel Roth,
Attorney-Advisor, National Endowment for the Humanities.
[FR Doc. 2021-28468 Filed 1-3-22; 8:45 am]
BILLING CODE 7536-01-P