Testimony by NARA Employees Relating to Agency Information and Production of Records in Legal Proceedings, 64558-64563 [E7-22494]
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section 381(a) transaction as separate
and distinct trades or businesses after
the distribution or transfer will be
determined at the time of the
transaction based upon the facts and
circumstances. Intent to combine books
and records of the trades or businesses
may be demonstrated by
contemporaneous records and
documents or by other objective
evidence that reflects the acquiring
corporation’s ultimate plan of operation,
even though the actual combination of
the books and records may extend
beyond the end of the taxable year in
which the section 381(a) transaction
occurs.
(8) Establishing an accounting
method for taking an inventory.
Notwithstanding any other provision in
any other regulation or administrative
procedure, an accounting method used
by the distributor or transferor
corporation immediately prior to the
date of distribution or transfer that
continues to be used by the acquiring
corporation in the taxable year that
includes the date of distribution or
transfer is an established method of
accounting for purposes of section
446(e).
(9) Other applicable provisions.
Section 381(c)(5) and these regulations
do not preempt any other section of the
Code or regulations that is applicable to
the acquiring corporation’s
circumstances. Section 381(c)(5) and
this § 1.381(c)(5)–1 determine only the
inventory method to be used after a
section 381(a) transaction. Specifically,
section 381(c)(5) and this § 1.381(c)(5)–
1 do not apply to assets other than
inventory that an acquiring corporation
obtains in a transaction to which section
381(a) applies.
(10) Use of the cash receipts and
disbursements method. If a party to a
section 381(a) transaction uses the cash
receipts and disbursements method
within the meaning of section 446(c)(1)
and § 1.446–1(c)(1)(i), or is not required
to use inventory accounting methods for
its goods, immediately prior to the date
of distribution or transfer, section
381(c)(5) and § 1.381(c)(5)–1 do not
apply. Section 381(c)(4) and
§ 1.381(c)(4)–1 must be applied to
determine the accounting methods that
continue after the transaction.
(11) Character of items of income and
deduction. Items of income and
deduction have the same character in
the hands of the acquiring corporation
as they would have had in the hands of
the distributor or transferor corporation
if no distribution or transfer had
occurred.
(12) Prohibited methods. An acquiring
corporation may not use the accounting
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method determined under paragraph
(a)(2) of this section if the method fails
to reflect clearly the acquiring
corporation’s income within the
meaning of section 446(b). Thus, section
381(c)(5) and these regulations do not
limit, restrict, or otherwise prevent the
Commissioner from requiring the use of
another accounting method.
(f) Effective/applicability date. The
rules of this section apply to corporate
reorganizations and tax-free liquidations
described in section 381(a) that occur on
or after the date of publication of the
Treasury decision adopting these rules
as final regulations in the Federal
Register.
Par. 5. Section 1.446–1 is amended
by:
1. Revising the first sentence in
paragraph (e)(3)(i) and adding a new
second sentence.
2. Revising the first sentence in
paragraph (e)(4)(i).
3. Adding paragraph (e)(4)(iii).
The revisions and addition read as
follows:
§ 1.446–1 General rule for methods of
accounting.
*
*
*
*
*
(e) * * *
(3) * * * (i) Except as otherwise
provided under the authority of
paragraph (e)(3)(ii) of this section, to
secure the Commissioner’s consent to a
taxpayer’s change in method of
accounting, the taxpayer generally must
file an application on Form 3115 with
the Commissioner during the taxable
year in which the taxpayer desires to
make the change in method of
accounting. See §§ 1.381(c)(4)–1(d)(2)
and 1.381(c)(5)–1(d)(2) for rules
allowing additional time, in some
circumstances, for the filing of an
application on Form 3115 with respect
to a transaction to which section 381(a)
applies.
*
*
*
*
*
(4) * * * (i) In general. Except as
provided in paragraphs (e)(3)(iii),
(e)(4)(ii) and (e)(4)(iii) of this section,
paragraph (e) of this section applies on
or after December 30, 2003.
*
*
*
*
*
(iii) Effective/applicability date for
paragraph (e)(3)(i). The rules of
paragraph (e)(3)(i) of this section apply
to corporate reorganizations and tax-free
liquidations described in section 381(a)
that occur on or after the date of
publication of the Treasury decision
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adopting these rules as final regulations
in the Federal Register.
Linda E. Stiff,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. E7–22411 Filed 11–15–07; 8:45 am]
BILLING CODE 4830–01–P
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
36 CFR Parts 1250, 1251, and 1256
[NARA–07–0006]
RIN 3095–AB32
Testimony by NARA Employees
Relating to Agency Information and
Production of Records in Legal
Proceedings
National Archives and Records
Administration.
ACTION: Proposed rule.
AGENCY:
SUMMARY: The National Archives and
Records Administration (NARA) is
proposing to revise its regulations
relating to demands for records or
testimony in legal proceedings. The rule
is intended to facilitate access to records
in NARA’s custody, centralize agency
decisionmaking in response to demands
for records or testimony, minimize the
disruption of official duties in
complying with demands, maintain
agency control over the release of
agency information, and protect the
interests of the United States. The
proposed rule affects parties to lawsuits
and their counsel.
DATES: Comments must be received by
January 15, 2008.
ADDRESSES: NARA invites interested
persons to submit comments on this
proposed rule. Comments may be
submitted by any of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: Submit comments by facsimile
transmission to 301–837–0319.
• Mail: Send comments to
Regulations Comments Desk (NPOL),
Room 4100, Policy and Planning Staff,
National Archives and Records
Administration, 8601 Adelphi Road,
College Park, MD 20740–6001.
• Hand Delivery or Courier: Deliver
comments to 8601 Adelphi Road,
College Park, MD.
FOR FURTHER INFORMATION CONTACT:
Laura McCarthy at (301) 837–3023 or
via fax number 301–837–0319.
SUPPLEMENTARY INFORMATION: NARA
regularly receives subpoenas and other
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demands for information, including
requests for documents and for NARA
employees to provide testimony in legal
proceedings in which the United States
may or may not be a party. This rule
contains NARA’s policy and procedures
in response to demands for testimony or
records in legal proceedings. In
addition, this rule consolidates existing
regulations and applies to demands in
legal proceedings where the United
States is a party and to demands in legal
proceedings where the United States is
not a party.
Many agencies have issued
regulations concerning agency
responses to demands where the United
States is not a party. The courts
recognize the authority of Federal
agencies to limit compliance with
demands in such circumstances; see for
example, United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). NARA’s
proposed rule applies whether or not
the United States is a party to the legal
proceeding. NARA believes that this is
appropriate because our receipt of a
demand in a legal proceeding whether
or not the United States is a party to the
proceeding raises many of the same
concerns. Consolidating our existing
regulations also assists third parties in
easily locating NARA’s policy and
procedures concerning demands in legal
proceedings.
NARA has in its possession the
following type of records:
• Permanently-valuable Federal
records, Presidential records, donated
and deposited historical materials in the
National Archives of the United States;
• Records belonging to Federal
agencies other than NARA that are in
NARA’s temporary physical custody;
• Records of defunct agencies that
have no successor in function; and
• NARA’s own operational records.
NARA’s responsibility to manage,
preserve, arrange, describe, or provide
access to those records places the
agency in a unique position in the
Federal government regarding demands
for records and testimony.
Requests for records that are not
classified as demands are treated as
requests for records under one of the
following authorities: the Freedom of
Information Act (5 U.S.C. 552); the
Privacy Act (5 U.S.C. 552a); the Federal
Records Act and its implementing
regulations (44 U.S.C. chs. 21, 29, 31,
33; 36 CFR parts 1250–1256); the
Presidential Records Act and its
implementing regulations (44 U.S.C. ch.
22; 36 CFR part 1270); or the
Presidential Recordings and Materials
Preservation Act and its implementing
regulations (44 U.S.C. 2111 note; 36 CFR
part 1275). This rule does not restrict
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access to records under those
authorities.
This rule applies certain restrictions
to testimony by NARA employees in
legal proceedings. These restrictions
apply whether or not the United States
is a party to the proceeding.
Authorization for employees to provide
such testimony is based upon the
following:
• The applicability of the Federal
Rules of Civil Procedure;
• A determination by NARA’s
General Counsel that NARA has a
significant interest in the legal
proceeding and that the outcome may
affect the implementation of present
policies (NARA’s Inspector General
makes the determination as to whether
an employee of NARA’s Office of the
Inspector General may provide such
testimony); or
• Other circumstances or conditions
make it necessary to provide the
testimony in the public interest.
These restrictions are necessary to
minimize the disruption of NARA’s
official business, and to protect the
agency’s human and financial resources.
NARA employees are not authorized to
testify about the content of records in
NARA’s physical custody when the
legal title of such records belongs to
another Federal agency. However,
NARA can provide a copy of such
records and certify that the copy is a
true and accurate copy of the records in
NARA’s physical or legal custody. Such
copies have the same legal status as the
original record, and when produced
under seal, must be judicially noted by
all Federal, state, and local courts. See
44 U.S.C. 2116.
This rule does not apply in instances
where an employee is requested to
appear in adjudicative, legislative, or
administrative proceedings that are
unrelated to information concerning
Federal activities or the employee’s
duties at NARA. Also, this rule does not
apply to subpoenas or requests for
information submitted by either House
of Congress or by a Congressional
committee or subcommittee with
jurisdiction over the matter that the
testimony or information is requested.
Paperwork Reduction Act
This proposed rule contains
information collection activities that are
subject to review and approval by OMB
under the Paperwork Reduction Act of
1995.
The reporting burden for this
collection is estimated to be
approximately 1.5 hours per response
for providing to NARA the information
specified in proposed § 1251.10,
including the time for gathering and
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maintaining the data needed and
completing and reviewing the collection
of information. A requestor who
produces a demand to a NARA
employee to produce documents or
testimony would be required to submit
the demand in writing to an appropriate
party as specified in § 1251.6; a demand
issued by, or under color of a state or
local court must be signed by a judge.
The information would be collected on
a one-time basis, at least 45 days before
the date the records or testimony is
required. Comments are invited on (a)
whether the proposed collection of
information is necessary for the proper
performance of NARA’s functions,
including whether the information
would have practical utility; (b) the
accuracy of NARA’s estimate of the
burden of the proposed collection of
information; (c) ways to enhance the
quality, utility, and clarity of the
information to be collected; and (d)
ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques of
other forms of information technology.
This rule is not a significant
regulatory action for the purposes of
Executive Order 12866 and has not been
reviewed by the Office of Management
and Budget (OMB). As required by the
Regulatory Flexibility Act, it is hereby
certified that this proposed rule will not
have a significant impact on small
entities because NARA receives fewer
than 25 demands per year for testimony
from individuals and small entities.
List of Subjects
36 CFR Part 1250
Confidential business information,
Freedom of information.
36 CFR Part 1251
Administrative practice and
procedure.
36 CFR Part 1256
Archives and records, Copyright,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, NARA proposes to amend
Subchapter C of 36 CFR Ch. XII as
follows:
PART 1250—PUBLIC AVAILABILITY
AND USE OF FEDERAL RECORDS
1. The authority citation for part 1250
continues to read as follows:
Authority: 44 U.S.C. 2104(a), 2204; 5
U.S.C. 552; E.O. 12600, 52 FR 23781, 3 CFR,
1987 Comp., p. 235.
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§ 1250.84
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[Removed]
2. Remove § 1250.84.
3. Add a new Part 1251 to read as
follows:
PART 1251—TESTIMONY BY NARA
EMPLOYEES RELATING TO AGENCY
INFORMATION AND PRODUCTION OF
RECORDS IN LEGAL PROCEEDINGS
Sec.
1251.1 What is the purpose of this part?
1251.2 To what demands does this part
apply?
1251.3 What definitions apply to this part?
1251.4 May employees provide records or
give testimony in response to a demand
without authorization?
1251.6 How does the General Counsel
determine whether to comply with a
demand for records or testimony?
1251.8 Who is authorized to accept service
of a subpoena demanding the production
of records or testimony?
1251.10 What are the filing requirements
for a demand for documents or
testimony?
1251.12 How does NARA process your
demand?
1251.14 Who makes the final determination
on compliance with demands for records
or testimony?
1251.16 Are there any restrictions that
apply to testimony?
1251.18 Are there any restrictions that
apply to the production of records?
1251.20 Are there any fees associated with
producing records or providing
testimony?
1251.22 Are there penalties for providing
records or testimony in violation of this
part?
Authority: 44 U.S.C. 2104; 44 U.S.C. 2108;
44 U.S.C. 2109; 44 U.S.C. 2111 note; 44
U.S.C. 2112; 44 U.S.C. 2116; 44 U.S.C. ch. 22;
44 U.S.C. 3102.
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§ 1251.1
What is the purpose of this part?
(a) This part provides the policies and
procedures to follow when submitting a
demand to an employee of the National
Archives and Records Administration
(NARA) to produce records or provide
testimony relating to agency information
in connection with a legal proceeding.
You must comply with these
requirements when you request the
release or disclosure of records or
agency information.
(b) The National Archives and
Records Administration intends these
provisions to:
(1) Promote economy and efficiency
in its programs and operations;
(2) Minimize NARA’s role in
controversial issues not related to its
mission;
(3) Maintain NARA’s impartiality
among private litigants when NARA is
not a named party; and
(4) Protect sensitive, confidential
information and the deliberative
processes of NARA.
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(c) In providing for these
requirements, NARA does not waive the
sovereign immunity of the United
States.
(d) This part provides guidance for
the internal operations of NARA. It does
not create any right or benefit,
substantive or procedural, that a party
may rely upon in any legal proceeding
against the United States.
§ 1251.2
apply?
To what demands does this part
This part applies to demands to
NARA employees for factual or expert
testimony relating to agency
information, or for production of
records, in legal proceedings whether or
not NARA is a named party. However,
it does not apply to:
(a) Demands upon or requests for a
NARA employee to testify as to facts or
events that are unrelated to his or her
official duties or that are unrelated to
the functions of NARA;
(b) Demands upon or requests for a
former NARA employee to testify as to
matters in which the former employee
was not directly or materially involved
while at NARA;
(c) Requests for the release of, or
access to, records under the Freedom of
Information Act, 5 U.S.C. 552, as
amended; the Privacy Act, 5 U.S.C.
552a; the Federal Records Act, 44 U.S.C.
chs. 21, 29, 31, 33; the Presidential
Records Act, 44 U.S.C. ch. 22; or the
Presidential Recordings and Materials
Preservation Act, 44 U.S.C. 2111 note;
(d) Demands for records or testimony
in matters before the Equal Employment
Opportunity Commission or the Merit
Systems Protection Board; and
(e) Congressional demands and
requests for testimony or records.
§ 1251.3
part?
What definitions apply to this
The following definitions apply to
this part:
Demand means a subpoena, or an
order or other command of a court or
other competent authority, for the
production, disclosure, or release of
records in a legal proceeding, or for the
appearance and testimony of a NARA
employee in a legal proceeding.
General Counsel means the General
Counsel of NARA or a person to whom
the General Counsel has delegated
authority under this part. General
Counsel also means the Inspector
General of NARA (or a person to whom
the Inspector General has delegated
authority under this part) when a
demand is made for records of NARA’s
Office of the Inspector General, or for
the testimony of an employee of
NARA’s Office of the Inspector General.
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Legal proceeding means any matter
before a court of law, administrative
board or tribunal, commission,
administrative law judge, hearing
officer, or other body that conducts a
legal or administrative proceeding.
Legal proceeding includes all phases of
litigation.
NARA means the National Archives
and Records Administration.
NARA employee or employee means:
(1) Any current or former officer or
employee of NARA, except that this
definition does not include former
NARA employees who are retained or
hired as expert witnesses or who agree
to testify about general matters, matters
available to the public, or matters with
which they had no specific involvement
or responsibility during their
employment with NARA;
(2) Any other individual hired
through contractual agreement by or on
behalf of NARA or who has performed
or is performing services under such an
agreement for NARA; and
(3) Any individual who served or is
serving in any consulting or advisory
capacity to NARA, whether formal or
informal.
Records or agency information means:
(1) All documents and materials
which are NARA agency records under
the Freedom of Information Act, 5
U.S.C. 552, as amended;
(2) Presidential records as defined in
44 U.S.C. 2201; historical materials as
defined in 44 U.S.C. 2101; records as
defined in 44 U.S.C. 2107 and 44 U.S.C.
3301.
(3) All other documents and materials
contained in NARA files; and
(4) All other information or materials
acquired by a NARA employee in the
performance of his or her official duties
or because of his or her official status.
Testimony means any written or oral
statements, including depositions,
answers to interrogatories, affidavits,
declarations, interviews, and statements
made by an individual in connection
with a legal proceeding.
§ 1251.4 May employees provide records
or give testimony in response to a demand
without authorization?
No, except as otherwise permitted by
this part, no employee may produce
records and information or provide any
testimony relating to agency information
in response to a demand without the
prior, written approval of the General
Counsel.
§ 1251.6 How does the General Counsel
determine whether to comply with a
demand for records or testimony?
The General Counsel may consider
the following factors in determining
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whether or not to grant an employee
permission to testify on matters relating
to agency information, or produce
records in response to a demand:
(a) NARA’s compliance with the
demand is required by federal law,
regulation or rule, or is otherwise
permitted by this part;
(b) The purposes of this part are met;
(c) Allowing such testimony or
production of records would be
necessary to prevent a miscarriage of
justice;
(d) NARA has an interest in the
decision that may be rendered in the
legal proceeding;
(e) Allowing such testimony or
production of records would assist or
hinder NARA in performing its statutory
duties;
(f) Allowing such testimony or
production of records would involve a
substantial use of NARA resources;
(g) Responding to the demand would
interfere with the ability of NARA
employees to do their work;
(h) Allowing such testimony or
production of records would be in the
best interest of NARA or the United
States;
(i) The records or testimony can be
obtained from the publicly available
records of NARA or from other sources;
(j) The demand is 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;
(k) Disclosure would violate a statute,
Executive Order or regulation;
(l) Disclosure would reveal
confidential, sensitive, or privileged
information, trade secrets or similar,
confidential commercial or financial
information, otherwise protected
information, or information which
would otherwise be inappropriate for
release;
(m) Disclosure would impede or
interfere with an ongoing law
enforcement investigation or
proceeding, or compromise
constitutional rights;
(n) Disclosure would result in NARA
appearing to favor one litigant over
another;
(o) Disclosure relates to documents
that were produced by another agency;
(p) A substantial Government interest
is implicated;
(q) The demand is within the
authority of the party making it; and
(r) The demand is sufficiently specific
to be answered.
§ 1251.8 Who is authorized to accept
service of a subpoena demanding the
production of records or testimony?
(a) Demands for testimony, except
those involving an employee of NARA’s
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Office of the Inspector General, must be
addressed to, and served on, the General
Counsel, National Archives and Records
Administration, Suite 3110, 8601
Adelphi Road, College Park, MD 20740–
6001. Demands for the testimony of an
employee of NARA’s Office of the
Inspector General must be addressed to,
and served on, the Inspector General,
National Archives and Records
Administration, Suite 1300, 8601
Adelphi Road, College Park, MD 20740–
6001.
(b) Demands for the production of
NARA operational records, except those
of the Office of the Inspector General,
must be addressed to, and served on, the
General Counsel. Demands for records
of the Inspector General must be
addressed to, and served on, the
Inspector General. Please note that in
accordance with section (b)(11) of the
Privacy Act, 5 U.S.C. § 552a, demands
for operational records kept in a Privacy
Act system of records require the
signature of a court of competent
jurisdiction. See Doe v. Digenova, 779
F.2d 74 (D.C. Cir. 1985); Stiles v.
Atlanta Gas Light Company, 453 F.
Supp. 798 (N.D. Ga. 1978). This
generally means that the demand must
be signed by a judge or some other
competent entity, not an attorney or
court clerk.
(c) Demands for the production of
records stored in a Federal Records
Center (FRC) must be addressed to, and
served on, the director of the FRC where
the records are stored. NARA honors the
demand to the extent required by law,
if the agency having legal title to the
records has not imposed any
restrictions. If the agency has imposed
restrictions, NARA notifies the authority
issuing the demand that NARA abides
by the agency-imposed restrictions and
refers the authority to the agency for
further action. See § 1251.8(b) for
demands for NARA operational records
kept in a Privacy Act system of records.
(d) Demands for the production of
materials designated as Federal archival
records, Presidential records or donated
historical materials administered by
NARA must be addressed to, and served
on, the appropriate Assistant Archivist,
Director of Archival Operations, or
Presidential Library Director. An
information copy of the demand must
be sent to the General Counsel.
(e) For matters where the United
States is a party, the Department of
Justice should contact the General
Counsel instead of submitting a demand
for records or testimony.
(f) Contact information for each
NARA facility may be found at 36 CFR
part 1253.
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§ 1251.10 What are the filing requirements
for a demand for documents or testimony?
You must comply with the following
requirements, as appropriate, whenever
you issue a demand to a NARA
employee for records, agency
information or testimony:
(a) Your demand must be in writing
and must be served on the appropriate
party as identified in § 1251.6. A
demand issued by, or under color of, a
state or local court must be signed by a
judge.
(b) Your written demand (other than
a demand pursuant to rule 45 of the
Federal Rules of Civil Procedure, in
which case you must comply with the
requirements of that rule) must contain
the following information:
(1) The caption of the legal
proceeding, docket number, and name
and address of the court or other
authority involved;
(2) A copy of the complaint or
equivalent document setting forth the
assertions in the case and any other
pleading or document necessary to
show relevance;
(3) A list of categories of records
sought, a detailed description of how
the information sought is relevant to the
issues in the legal proceeding, and a
specific description of the substance of
the testimony or records sought;
(4) A statement as to how the need for
the information outweighs the need to
maintain any confidentiality of the
information and outweighs the burden
on NARA to produce the records or
provide testimony;
(5) A statement indicating that the
information sought is not available from
another source, from other persons or
entities, or from the testimony of
someone other than a NARA employee,
such as a retained expert;
(6) If testimony is requested, the
intended use of the testimony, a general
summary of the desired testimony, and
a showing that no document could be
provided and used instead of testimony;
(7) A description of all previous
decisions, orders, or pending motions in
the case that bear upon the relevance of
the requested records or testimony;
(8) The name, address, and telephone
number of counsel to each party in the
case; and
(9) An estimate of the amount of time
that the requester and other parties may
require with each NARA employee for
time spent by the employee to prepare
for testimony, in travel, and for
attendance in the legal proceeding.
(c) The National Archives and
Records Administration reserves the
right to require additional information
to comply with your demand.
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(d) Your demand should be submitted
at least 45 days before the date that
records or testimony is required.
Demands submitted in less than 45 days
before records or testimony is required
must be accompanied by a written
explanation stating the reasons for the
late request and the reasons for
expedited processing.
(e) Failure to cooperate in good faith
to enable the General Counsel to make
an informed decision may serve as the
basis for a determination not to comply
with your demand.
(f) The information collection
contained in this section has been
approved by the Office of Management
and Budget under the Paperwork
Reduction Act as by OMB under the
control number 3095–0038 with a
current expiration date of May 31, 2008.
§ 1251.12 How does NARA process your
demand?
(a) After service of a demand for
production of records or for testimony,
an appropriate NARA official reviews
the demand and, in accordance with the
provisions of this subpart, determines
whether, or under what conditions, to
produce records or authorize the
employee to testify on matters relating
to agency information.
(b) The National Archives and
Records Administration processes
demands in the order in which we
receive them. Absent exigent or unusual
circumstances, NARA responds within
45 days from the date of receipt. The
time for response depends upon the
scope of the demand.
(c) The General Counsel may grant a
waiver of any procedure described by
this subpart where a waiver is
considered necessary to promote a
significant interest of NARA or the
United States or for other good cause.
ebenthall on PRODPC61 with PROPOSALS
§ 1251.14 Who makes the final
determination on compliance with demands
for records or testimony?
The General Counsel makes the final
determination on demands to
employees for testimony. The
appropriate NARA official, as described
in § 1251.8, makes the final
determination on demands for the
production of records. The NARA
official notifies the requester and the
court or other authority of the final
determination and any conditions that
may be imposed on the release of
records or information, or on the
testimony of a NARA employee. If the
NARA official deems it appropriate not
to comply with the demand, the official
communicates the reasons for the
noncompliance as appropriate.
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15:30 Nov 15, 2007
Jkt 214001
§ 1251.16 Are there any restrictions that
apply to testimony?
(a) The General Counsel may impose
conditions or restrictions on the
testimony of NARA employees
including, for example, limiting the
areas of testimony or requiring the
requester and other parties to the legal
proceeding to agree that the transcript of
the testimony will be kept under seal or
will only be used or made available in
the particular legal proceeding for
which testimony was requested. The
General Counsel may also require a
copy of the transcript of testimony at the
requester’s expense.
(b) NARA may offer the employee’s
written declaration instead of testimony.
(c) If authorized to testify pursuant to
this part, an employee may testify as to
facts within his or her personal
knowledge, but, unless specifically
authorized to do so by the General
Counsel, the employee must not:
(1) Disclose confidential or privileged
information; or
(2) For a current NARA employee,
testify as an expert or opinion witness
with regard to any matter arising out of
the employee’s official duties or the
functions of NARA unless testimony is
being given on behalf of the United
States.
§ 1251.18 Are there any restrictions that
apply to the production of records?
(a) The General Counsel may impose
conditions or restrictions on the release
of records and agency information,
including the requirement that parties to
the proceeding obtain a protective order
or execute a confidentiality agreement
to limit access and any further
disclosure. The terms of the protective
order or of a confidentiality agreement
must be acceptable to the General
Counsel. In cases where protective
orders or confidentiality agreements
have already been executed, NARA may
condition the release of records and
agency information on an amendment to
the existing protective order or
confidentiality agreement.
(b) If the General Counsel so
determines, original NARA records may
be presented for examination in
response to a demand, but they are not
to be presented as evidence or otherwise
used in a manner by which they could
lose their identity as official NARA
records, nor are they to be marked or
altered. Instead of the original records,
NARA provides certified copies for
evidentiary purposes (see 28 U.S.C.
1733; 44 U.S.C. 2116). Such copies must
be given judicial notice and must be
admitted into evidence equally with the
originals from which they were made
(see 44 U.S.C. 2116).
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
§ 1251.20 Are there any fees associated
with producing records or providing
testimony?
(a) Generally. The General Counsel
may condition the production of records
or appearance for testimony upon
advance payment of a reasonable
estimate of the costs to NARA.
(b) Fees for records. Fees for
producing records include fees for
searching, reviewing, and duplicating
records, costs of attorney time spent in
reviewing the demand or request, and
expenses generated by materials and
equipment used to search for, produce,
and copy the responsive information.
Costs for employee time are calculated
on the basis of the hourly pay of the
employee (including all pay, allowance,
and benefits). Fees for duplication are
the same as those charged by NARA in
part 1258 of this title.
(c) Witness fees. Fees for attendance
by a witness include fees, expenses, and
allowances prescribed by the court’s
rules. If no such fees are prescribed,
witness fees are determined based upon
the rule of the Federal district court
closest to the location where the witness
appears. Such fees include cost of time
spent by the witness to prepare for
testimony, in travel, and for attendance
in the legal proceeding.
(d) Payment of fees. You must submit
pay for fees by submitting to the General
Counsel a check or money order for the
appropriate amount made payable to the
following:
(1) witness fees for current NARA
employees are made payable to the
Treasury of the United States;
(2) applicable fees paid to former
NARA employees providing testimony
must be paid directly in accordance
with 28 U.S.C. 1821 or other applicable
statutes; and
(3) fees for the production of records,
including records certification fees, are
made payable to the National Archives
Trust Fund (NATF).
(e) Certification (authentication) of
copies of records. The National
Archives and Records Administration
may certify that records are true copies
in order to facilitate their use as
evidence. Request certified copies from
NARA at least 45 days before the date
they are needed. We charge a
certification fee for each document
certified.
(f) Waiver or reduction of fees. The
General Counsel, in his or her sole
discretion, may, upon a showing of
reasonable cause, waive or reduce any
fees in connection with the testimony,
production, or certification of records.
(g) De minimis fees. Fees are not
assessed if the total charge is $10.00 or
E:\FR\FM\16NOP1.SGM
16NOP1
Federal Register / Vol. 72, No. 221 / Friday, November 16, 2007 / Proposed Rules
less, or as otherwise stated in NARA
policy.
§ 1251.22 Are there any penalties for
providing records or testimony in violation
of this part?
(a) An employee who discloses
official records or information or gives
testimony relating to official
information, except as expressly
authorized by NARA or as ordered by a
Federal court after NARA has had the
opportunity to be heard, may face the
penalties provided in 18 U.S.C. 641 and
other applicable laws. Additionally,
former NARA employees are subject to
the restrictions and penalties of 18
U.S.C. 207 and 216.
(b) A current NARA employee who
testifies or produces official records and
information in violation of this part is
subject to disciplinary action.
PART 1256—PUBLIC AVAILABILITY
AND USE OF FEDERAL RECORDS
4. The authority citation for part 1256
continues to read as follows:
Authority: 44 U.S.C. 2101–2118; 22 U.S.C.
1461(b); 5 U.S.C. 552; E.O. 12958 (60 FR
19825, 3 CFR, 1995 Comp., p. 333; E.O.
13292, 68 FR 15315, 3 CFR, 2003 Comp., p.
196; E.O. 13233, 66 FR 56023, 3 CFR, 2001
Comp., p. 815.
§ 1256.4
[Removed]
5. Remove § 1256.4.
Dated: November 9, 2007.
Allen Weinstein,
Archivist of the United States.
[FR Doc. E7–22494 Filed 11–15–07; 8:45 am]
BILLING CODE 7515–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 55
[OAR–2004–0091; FRL–8496–1]
Outer Continental Shelf Air
Regulations Consistency Update for
California
Environmental Protection
Agency (‘‘EPA’’).
ACTION: Proposed rule—Consistency
Update.
ebenthall on PRODPC61 with PROPOSALS
AGENCY:
SUMMARY: EPA is proposing to update a
portion of the Outer Continental Shelf
(‘‘OCS’’) Air Regulations. Requirements
applying to OCS sources located within
25 miles of States’ seaward boundaries
must be updated periodically to remain
consistent with the requirements of the
corresponding onshore area (‘‘COA’’), as
mandated by section 328(a)(1) of the
Clean Air Act, as amended in 1990 (‘‘the
VerDate Aug<31>2005
15:30 Nov 15, 2007
Jkt 214001
Act’’). The portions of the OCS air
regulations that are being updated
pertain to the requirements for OCS
sources by the Santa Barbara County Air
Pollution Control District (Santa Barbara
County APCD), South Coast Air Quality
Management District (South Coast
AQMD), and Ventura County Air
Pollution Control District (Ventura
County APCD). The intended effect of
approving the OCS requirements for the
Santa Barbara County APCD, South
Coast AQMD, and Ventura County
APCD is to regulate emissions from OCS
sources in accordance with the
requirements onshore. The change to
the existing requirements discussed
below is proposed to be incorporated by
reference into the Code of Federal
Regulations and is listed in the
appendix to the OCS air regulations.
DATES: Any comments must arrive by
December 17, 2007.
ADDRESSES: Submit comments,
identified by docket number OAR–
2004–0091, by one of the following
methods:
1. Federal eRulemaking Portal: https://
www.regulations.gov. Follow the on-line
instructions.
2. E-mail: steckel.andrew@epa.gov.
3. Mail or deliver: Andrew Steckel
(Air-4), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through https://
www.regulations.gov or e-mail. https://
www.regulations.gov is an ‘‘anonymous
access’’ system, and EPA will not know
your identity or contact information
unless you provide it in the body of
your comment. If you send e-mail
directly to EPA, your e-mail address
will be automatically captured and
included as part of the public comment.
If EPA cannot read your comment due
to technical difficulties and cannot
contact you for clarification, EPA may
not be able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: The index to the docket for
this action is available electronically at
PO 00000
Frm 00024
Fmt 4702
Sfmt 4702
64563
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Cynthia Allen, Air Division (Air-4), U.S.
EPA Region 9, 75 Hawthorne Street, San
Francisco, CA 94105, (415) 947–4120,
allen.cynthia@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background Information
Why is EPA taking this action?
II. EPA’s Evaluation
A. What criteria were used to evaluate
rules submitted to update 40 CFR part
55?
B. What requirements were submitted to
update 40 CFR part 55?
III. Administrative Requirements
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Coordination
With Indian Tribal Government
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
I. Background Information
Why is EPA taking this action?
On September 4, 1992, EPA
promulgated 40 CFR part 55,1 which
established requirements to control air
pollution from OCS sources in order to
attain and maintain federal and state
ambient air quality standards and to
comply with the provisions of part C of
title I of the Act. Part 55 applies to all
OCS sources offshore of the States
except those located in the Gulf of
Mexico west of 87.5 degrees longitude.
Section 328 of the Act requires that for
such sources located within 25 miles of
a State’s seaward boundary, the
requirements shall be the same as would
be applicable if the sources were located
1 The reader may refer to the Notice of Proposed
Rulemaking, December 5, 1991 (56 FR 63774), and
the preamble to the final rule promulgated
September 4, 1992 (57 FR 40792) for further
background and information on the OCS
regulations.
E:\FR\FM\16NOP1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 221 (Friday, November 16, 2007)]
[Proposed Rules]
[Pages 64558-64563]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-22494]
=======================================================================
-----------------------------------------------------------------------
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Parts 1250, 1251, and 1256
[NARA-07-0006]
RIN 3095-AB32
Testimony by NARA Employees Relating to Agency Information and
Production of Records in Legal Proceedings
AGENCY: National Archives and Records Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Archives and Records Administration (NARA) is
proposing to revise its regulations relating to demands for records or
testimony in legal proceedings. The rule is intended to facilitate
access to records in NARA's custody, centralize agency decisionmaking
in response to demands for records or testimony, minimize the
disruption of official duties in complying with demands, maintain
agency control over the release of agency information, and protect the
interests of the United States. The proposed rule affects parties to
lawsuits and their counsel.
DATES: Comments must be received by January 15, 2008.
ADDRESSES: NARA invites interested persons to submit comments on this
proposed rule. Comments may be submitted by any of the following
methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: Submit comments by facsimile transmission to 301-837-
0319.
Mail: Send comments to Regulations Comments Desk (NPOL),
Room 4100, Policy and Planning Staff, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001.
Hand Delivery or Courier: Deliver comments to 8601 Adelphi
Road, College Park, MD.
FOR FURTHER INFORMATION CONTACT: Laura McCarthy at (301) 837-3023 or
via fax number 301-837-0319.
SUPPLEMENTARY INFORMATION: NARA regularly receives subpoenas and other
[[Page 64559]]
demands for information, including requests for documents and for NARA
employees to provide testimony in legal proceedings in which the United
States may or may not be a party. This rule contains NARA's policy and
procedures in response to demands for testimony or records in legal
proceedings. In addition, this rule consolidates existing regulations
and applies to demands in legal proceedings where the United States is
a party and to demands in legal proceedings where the United States is
not a party.
Many agencies have issued regulations concerning agency responses
to demands where the United States is not a party. The courts recognize
the authority of Federal agencies to limit compliance with demands in
such circumstances; see for example, United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). NARA's proposed rule applies whether or not
the United States is a party to the legal proceeding. NARA believes
that this is appropriate because our receipt of a demand in a legal
proceeding whether or not the United States is a party to the
proceeding raises many of the same concerns. Consolidating our existing
regulations also assists third parties in easily locating NARA's policy
and procedures concerning demands in legal proceedings.
NARA has in its possession the following type of records:
Permanently-valuable Federal records, Presidential
records, donated and deposited historical materials in the National
Archives of the United States;
Records belonging to Federal agencies other than NARA that
are in NARA's temporary physical custody;
Records of defunct agencies that have no successor in
function; and
NARA's own operational records.
NARA's responsibility to manage, preserve, arrange, describe, or
provide access to those records places the agency in a unique position
in the Federal government regarding demands for records and testimony.
Requests for records that are not classified as demands are treated
as requests for records under one of the following authorities: the
Freedom of Information Act (5 U.S.C. 552); the Privacy Act (5 U.S.C.
552a); the Federal Records Act and its implementing regulations (44
U.S.C. chs. 21, 29, 31, 33; 36 CFR parts 1250-1256); the Presidential
Records Act and its implementing regulations (44 U.S.C. ch. 22; 36 CFR
part 1270); or the Presidential Recordings and Materials Preservation
Act and its implementing regulations (44 U.S.C. 2111 note; 36 CFR part
1275). This rule does not restrict access to records under those
authorities.
This rule applies certain restrictions to testimony by NARA
employees in legal proceedings. These restrictions apply whether or not
the United States is a party to the proceeding. Authorization for
employees to provide such testimony is based upon the following:
The applicability of the Federal Rules of Civil Procedure;
A determination by NARA's General Counsel that NARA has a
significant interest in the legal proceeding and that the outcome may
affect the implementation of present policies (NARA's Inspector General
makes the determination as to whether an employee of NARA's Office of
the Inspector General may provide such testimony); or
Other circumstances or conditions make it necessary to
provide the testimony in the public interest.
These restrictions are necessary to minimize the disruption of
NARA's official business, and to protect the agency's human and
financial resources. NARA employees are not authorized to testify about
the content of records in NARA's physical custody when the legal title
of such records belongs to another Federal agency. However, NARA can
provide a copy of such records and certify that the copy is a true and
accurate copy of the records in NARA's physical or legal custody. Such
copies have the same legal status as the original record, and when
produced under seal, must be judicially noted by all Federal, state,
and local courts. See 44 U.S.C. 2116.
This rule does not apply in instances where an employee is
requested to appear in adjudicative, legislative, or administrative
proceedings that are unrelated to information concerning Federal
activities or the employee's duties at NARA. Also, this rule does not
apply to subpoenas or requests for information submitted by either
House of Congress or by a Congressional committee or subcommittee with
jurisdiction over the matter that the testimony or information is
requested.
Paperwork Reduction Act
This proposed rule contains information collection activities that
are subject to review and approval by OMB under the Paperwork Reduction
Act of 1995.
The reporting burden for this collection is estimated to be
approximately 1.5 hours per response for providing to NARA the
information specified in proposed Sec. 1251.10, including the time for
gathering and maintaining the data needed and completing and reviewing
the collection of information. A requestor who produces a demand to a
NARA employee to produce documents or testimony would be required to
submit the demand in writing to an appropriate party as specified in
Sec. 1251.6; a demand issued by, or under color of a state or local
court must be signed by a judge. The information would be collected on
a one-time basis, at least 45 days before the date the records or
testimony is required. Comments are invited on (a) whether the proposed
collection of information is necessary for the proper performance of
NARA's functions, including whether the information would have
practical utility; (b) the accuracy of NARA's estimate of the burden of
the proposed collection of information; (c) ways to enhance the
quality, utility, and clarity of the information to be collected; and
(d) ways to minimize the burden of the collection of information on
respondents, including the use of automated collection techniques of
other forms of information technology.
This rule is not a significant regulatory action for the purposes
of Executive Order 12866 and has not been reviewed by the Office of
Management and Budget (OMB). As required by the Regulatory Flexibility
Act, it is hereby certified that this proposed rule will not have a
significant impact on small entities because NARA receives fewer than
25 demands per year for testimony from individuals and small entities.
List of Subjects
36 CFR Part 1250
Confidential business information, Freedom of information.
36 CFR Part 1251
Administrative practice and procedure.
36 CFR Part 1256
Archives and records, Copyright, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, NARA proposes to amend
Subchapter C of 36 CFR Ch. XII as follows:
PART 1250--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS
1. The authority citation for part 1250 continues to read as
follows:
Authority: 44 U.S.C. 2104(a), 2204; 5 U.S.C. 552; E.O. 12600, 52
FR 23781, 3 CFR, 1987 Comp., p. 235.
[[Page 64560]]
Sec. 1250.84 [Removed]
2. Remove Sec. 1250.84.
3. Add a new Part 1251 to read as follows:
PART 1251--TESTIMONY BY NARA EMPLOYEES RELATING TO AGENCY
INFORMATION AND PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS
Sec.
1251.1 What is the purpose of this part?
1251.2 To what demands does this part apply?
1251.3 What definitions apply to this part?
1251.4 May employees provide records or give testimony in response
to a demand without authorization?
1251.6 How does the General Counsel determine whether to comply with
a demand for records or testimony?
1251.8 Who is authorized to accept service of a subpoena demanding
the production of records or testimony?
1251.10 What are the filing requirements for a demand for documents
or testimony?
1251.12 How does NARA process your demand?
1251.14 Who makes the final determination on compliance with demands
for records or testimony?
1251.16 Are there any restrictions that apply to testimony?
1251.18 Are there any restrictions that apply to the production of
records?
1251.20 Are there any fees associated with producing records or
providing testimony?
1251.22 Are there penalties for providing records or testimony in
violation of this part?
Authority: 44 U.S.C. 2104; 44 U.S.C. 2108; 44 U.S.C. 2109; 44
U.S.C. 2111 note; 44 U.S.C. 2112; 44 U.S.C. 2116; 44 U.S.C. ch. 22;
44 U.S.C. 3102.
Sec. 1251.1 What is the purpose of this part?
(a) This part provides the policies and procedures to follow when
submitting a demand to an employee of the National Archives and Records
Administration (NARA) to produce records or provide testimony relating
to agency information in connection with a legal proceeding. You must
comply with these requirements when you request the release or
disclosure of records or agency information.
(b) The National Archives and Records Administration intends these
provisions to:
(1) Promote economy and efficiency in its programs and operations;
(2) Minimize NARA's role in controversial issues not related to its
mission;
(3) Maintain NARA's impartiality among private litigants when NARA
is not a named party; and
(4) Protect sensitive, confidential information and the
deliberative processes of NARA.
(c) In providing for these requirements, NARA does not waive the
sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of
NARA. It does not create any right or benefit, substantive or
procedural, that a party may rely upon in any legal proceeding against
the United States.
Sec. 1251.2 To what demands does this part apply?
This part applies to demands to NARA employees for factual or
expert testimony relating to agency information, or for production of
records, in legal proceedings whether or not NARA is a named party.
However, it does not apply to:
(a) Demands upon or requests for a NARA employee to testify as to
facts or events that are unrelated to his or her official duties or
that are unrelated to the functions of NARA;
(b) Demands upon or requests for a former NARA employee to testify
as to matters in which the former employee was not directly or
materially involved while at NARA;
(c) Requests for the release of, or access to, records under the
Freedom of Information Act, 5 U.S.C. 552, as amended; the Privacy Act,
5 U.S.C. 552a; the Federal Records Act, 44 U.S.C. chs. 21, 29, 31, 33;
the Presidential Records Act, 44 U.S.C. ch. 22; or the Presidential
Recordings and Materials Preservation Act, 44 U.S.C. 2111 note;
(d) Demands for records or testimony in matters before the Equal
Employment Opportunity Commission or the Merit Systems Protection
Board; and
(e) Congressional demands and requests for testimony or records.
Sec. 1251.3 What definitions apply to this part?
The following definitions apply to this part:
Demand means a subpoena, or an order or other command of a court or
other competent authority, for the production, disclosure, or release
of records in a legal proceeding, or for the appearance and testimony
of a NARA employee in a legal proceeding.
General Counsel means the General Counsel of NARA or a person to
whom the General Counsel has delegated authority under this part.
General Counsel also means the Inspector General of NARA (or a person
to whom the Inspector General has delegated authority under this part)
when a demand is made for records of NARA's Office of the Inspector
General, or for the testimony of an employee of NARA's Office of the
Inspector General.
Legal proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer, or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
NARA means the National Archives and Records Administration.
NARA employee or employee means:
(1) Any current or former officer or employee of NARA, except that
this definition does not include former NARA employees who are retained
or hired as expert witnesses or who agree to testify about general
matters, matters available to the public, or matters with which they
had no specific involvement or responsibility during their employment
with NARA;
(2) Any other individual hired through contractual agreement by or
on behalf of NARA or who has performed or is performing services under
such an agreement for NARA; and
(3) Any individual who served or is serving in any consulting or
advisory capacity to NARA, whether formal or informal.
Records or agency information means:
(1) All documents and materials which are NARA agency records under
the Freedom of Information Act, 5 U.S.C. 552, as amended;
(2) Presidential records as defined in 44 U.S.C. 2201; historical
materials as defined in 44 U.S.C. 2101; records as defined in 44 U.S.C.
2107 and 44 U.S.C. 3301.
(3) All other documents and materials contained in NARA files; and
(4) All other information or materials acquired by a NARA employee
in the performance of his or her official duties or because of his or
her official status.
Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
Sec. 1251.4 May employees provide records or give testimony in
response to a demand without authorization?
No, except as otherwise permitted by this part, no employee may
produce records and information or provide any testimony relating to
agency information in response to a demand without the prior, written
approval of the General Counsel.
Sec. 1251.6 How does the General Counsel determine whether to comply
with a demand for records or testimony?
The General Counsel may consider the following factors in
determining
[[Page 64561]]
whether or not to grant an employee permission to testify on matters
relating to agency information, or produce records in response to a
demand:
(a) NARA's compliance with the demand is required by federal law,
regulation or rule, or is otherwise permitted by this part;
(b) The purposes of this part are met;
(c) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(d) NARA has an interest in the decision that may be rendered in
the legal proceeding;
(e) Allowing such testimony or production of records would assist
or hinder NARA in performing its statutory duties;
(f) Allowing such testimony or production of records would involve
a substantial use of NARA resources;
(g) Responding to the demand would interfere with the ability of
NARA employees to do their work;
(h) Allowing such testimony or production of records would be in
the best interest of NARA or the United States;
(i) The records or testimony can be obtained from the publicly
available records of NARA or from other sources;
(j) The demand is 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;
(k) Disclosure would violate a statute, Executive Order or
regulation;
(l) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential commercial or
financial information, otherwise protected information, or information
which would otherwise be inappropriate for release;
(m) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceeding, or compromise constitutional
rights;
(n) Disclosure would result in NARA appearing to favor one litigant
over another;
(o) Disclosure relates to documents that were produced by another
agency;
(p) A substantial Government interest is implicated;
(q) The demand is within the authority of the party making it; and
(r) The demand is sufficiently specific to be answered.
Sec. 1251.8 Who is authorized to accept service of a subpoena
demanding the production of records or testimony?
(a) Demands for testimony, except those involving an employee of
NARA's Office of the Inspector General, must be addressed to, and
served on, the General Counsel, National Archives and Records
Administration, Suite 3110, 8601 Adelphi Road, College Park, MD 20740-
6001. Demands for the testimony of an employee of NARA's Office of the
Inspector General must be addressed to, and served on, the Inspector
General, National Archives and Records Administration, Suite 1300, 8601
Adelphi Road, College Park, MD 20740-6001.
(b) Demands for the production of NARA operational records, except
those of the Office of the Inspector General, must be addressed to, and
served on, the General Counsel. Demands for records of the Inspector
General must be addressed to, and served on, the Inspector General.
Please note that in accordance with section (b)(11) of the Privacy Act,
5 U.S.C. Sec. 552a, demands for operational records kept in a Privacy
Act system of records require the signature of a court of competent
jurisdiction. See Doe v. Digenova, 779 F.2d 74 (D.C. Cir. 1985); Stiles
v. Atlanta Gas Light Company, 453 F. Supp. 798 (N.D. Ga. 1978). This
generally means that the demand must be signed by a judge or some other
competent entity, not an attorney or court clerk.
(c) Demands for the production of records stored in a Federal
Records Center (FRC) must be addressed to, and served on, the director
of the FRC where the records are stored. NARA honors the demand to the
extent required by law, if the agency having legal title to the records
has not imposed any restrictions. If the agency has imposed
restrictions, NARA notifies the authority issuing the demand that NARA
abides by the agency-imposed restrictions and refers the authority to
the agency for further action. See Sec. 1251.8(b) for demands for NARA
operational records kept in a Privacy Act system of records.
(d) Demands for the production of materials designated as Federal
archival records, Presidential records or donated historical materials
administered by NARA must be addressed to, and served on, the
appropriate Assistant Archivist, Director of Archival Operations, or
Presidential Library Director. An information copy of the demand must
be sent to the General Counsel.
(e) For matters where the United States is a party, the Department
of Justice should contact the General Counsel instead of submitting a
demand for records or testimony.
(f) Contact information for each NARA facility may be found at 36
CFR part 1253.
Sec. 1251.10 What are the filing requirements for a demand for
documents or testimony?
You must comply with the following requirements, as appropriate,
whenever you issue a demand to a NARA employee for records, agency
information or testimony:
(a) Your demand must be in writing and must be served on the
appropriate party as identified in Sec. 1251.6. A demand issued by, or
under color of, a state or local court must be signed by a judge.
(b) Your written demand (other than a demand pursuant to rule 45 of
the Federal Rules of Civil Procedure, in which case you must comply
with the requirements of that rule) must contain the following
information:
(1) The caption of the legal proceeding, docket number, and name
and address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth
the assertions in the case and any other pleading or document necessary
to show relevance;
(3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the
testimony or records sought;
(4) A statement as to how the need for the information outweighs
the need to maintain any confidentiality of the information and
outweighs the burden on NARA to produce the records or provide
testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than a NARA employee, such as a retained
expert;
(6) If testimony is requested, the intended use of the testimony, a
general summary of the desired testimony, and a showing that no
document could be provided and used instead of testimony;
(7) A description of all previous decisions, orders, or pending
motions in the case that bear upon the relevance of the requested
records or testimony;
(8) The name, address, and telephone number of counsel to each
party in the case; and
(9) An estimate of the amount of time that the requester and other
parties may require with each NARA employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) The National Archives and Records Administration reserves the
right to require additional information to comply with your demand.
[[Page 64562]]
(d) Your demand should be submitted at least 45 days before the
date that records or testimony is required. Demands submitted in less
than 45 days before records or testimony is required must be
accompanied by a written explanation stating the reasons for the late
request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General
Counsel to make an informed decision may serve as the basis for a
determination not to comply with your demand.
(f) The information collection contained in this section has been
approved by the Office of Management and Budget under the Paperwork
Reduction Act as by OMB under the control number 3095-0038 with a
current expiration date of May 31, 2008.
Sec. 1251.12 How does NARA process your demand?
(a) After service of a demand for production of records or for
testimony, an appropriate NARA official reviews the demand and, in
accordance with the provisions of this subpart, determines whether, or
under what conditions, to produce records or authorize the employee to
testify on matters relating to agency information.
(b) The National Archives and Records Administration processes
demands in the order in which we receive them. Absent exigent or
unusual circumstances, NARA responds within 45 days from the date of
receipt. The time for response depends upon the scope of the demand.
(c) The General Counsel may grant a waiver of any procedure
described by this subpart where a waiver is considered necessary to
promote a significant interest of NARA or the United States or for
other good cause.
Sec. 1251.14 Who makes the final determination on compliance with
demands for records or testimony?
The General Counsel makes the final determination on demands to
employees for testimony. The appropriate NARA official, as described in
Sec. 1251.8, makes the final determination on demands for the
production of records. The NARA official notifies the requester and the
court or other authority of the final determination and any conditions
that may be imposed on the release of records or information, or on the
testimony of a NARA employee. If the NARA official deems it appropriate
not to comply with the demand, the official communicates the reasons
for the noncompliance as appropriate.
Sec. 1251.16 Are there any restrictions that apply to testimony?
(a) The General Counsel may impose conditions or restrictions on
the testimony of NARA employees including, for example, limiting the
areas of testimony or requiring the requester and other parties to the
legal proceeding to agree that the transcript of the testimony will be
kept under seal or will only be used or made available in the
particular legal proceeding for which testimony was requested. The
General Counsel may also require a copy of the transcript of testimony
at the requester's expense.
(b) NARA may offer the employee's written declaration instead of
testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
must not:
(1) Disclose confidential or privileged information; or
(2) For a current NARA employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's
official duties or the functions of NARA unless testimony is being
given on behalf of the United States.
Sec. 1251.18 Are there any restrictions that apply to the production
of records?
(a) The General Counsel may impose conditions or restrictions on
the release of records and agency information, including the
requirement that parties to the proceeding obtain a protective order or
execute a confidentiality agreement to limit access and any further
disclosure. The terms of the protective order or of a confidentiality
agreement must be acceptable to the General Counsel. In cases where
protective orders or confidentiality agreements have already been
executed, NARA may condition the release of records and agency
information on an amendment to the existing protective order or
confidentiality agreement.
(b) If the General Counsel so determines, original NARA records may
be presented for examination in response to a demand, but they are not
to be presented as evidence or otherwise used in a manner by which they
could lose their identity as official NARA records, nor are they to be
marked or altered. Instead of the original records, NARA provides
certified copies for evidentiary purposes (see 28 U.S.C. 1733; 44
U.S.C. 2116). Such copies must be given judicial notice and must be
admitted into evidence equally with the originals from which they were
made (see 44 U.S.C. 2116).
Sec. 1251.20 Are there any fees associated with producing records or
providing testimony?
(a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon advance payment of a
reasonable estimate of the costs to NARA.
(b) Fees for records. Fees for producing records include fees for
searching, reviewing, and duplicating records, costs of attorney time
spent in reviewing the demand or request, and expenses generated by
materials and equipment used to search for, produce, and copy the
responsive information. Costs for employee time are calculated on the
basis of the hourly pay of the employee (including all pay, allowance,
and benefits). Fees for duplication are the same as those charged by
NARA in part 1258 of this title.
(c) Witness fees. Fees for attendance by a witness include fees,
expenses, and allowances prescribed by the court's rules. If no such
fees are prescribed, witness fees are determined based upon the rule of
the Federal district court closest to the location where the witness
appears. Such fees include cost of time spent by the witness to prepare
for testimony, in travel, and for attendance in the legal proceeding.
(d) Payment of fees. You must submit pay for fees by submitting to
the General Counsel a check or money order for the appropriate amount
made payable to the following:
(1) witness fees for current NARA employees are made payable to the
Treasury of the United States;
(2) applicable fees paid to former NARA employees providing
testimony must be paid directly in accordance with 28 U.S.C. 1821 or
other applicable statutes; and
(3) fees for the production of records, including records
certification fees, are made payable to the National Archives Trust
Fund (NATF).
(e) Certification (authentication) of copies of records. The
National Archives and Records Administration may certify that records
are true copies in order to facilitate their use as evidence. Request
certified copies from NARA at least 45 days before the date they are
needed. We charge a certification fee for each document certified.
(f) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
(g) De minimis fees. Fees are not assessed if the total charge is
$10.00 or
[[Page 64563]]
less, or as otherwise stated in NARA policy.
Sec. 1251.22 Are there any penalties for providing records or
testimony in violation of this part?
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by NARA or as ordered by a Federal court after NARA has had
the opportunity to be heard, may face the penalties provided in 18
U.S.C. 641 and other applicable laws. Additionally, former NARA
employees are subject to the restrictions and penalties of 18 U.S.C.
207 and 216.
(b) A current NARA employee who testifies or produces official
records and information in violation of this part is subject to
disciplinary action.
PART 1256--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS
4. The authority citation for part 1256 continues to read as
follows:
Authority: 44 U.S.C. 2101-2118; 22 U.S.C. 1461(b); 5 U.S.C.
552; E.O. 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13292,
68 FR 15315, 3 CFR, 2003 Comp., p. 196; E.O. 13233, 66 FR 56023, 3
CFR, 2001 Comp., p. 815.
Sec. 1256.4 [Removed]
5. Remove Sec. 1256.4.
Dated: November 9, 2007.
Allen Weinstein,
Archivist of the United States.
[FR Doc. E7-22494 Filed 11-15-07; 8:45 am]
BILLING CODE 7515-01-P
