Production of Official Records or Disclosure of Official Information in Proceedings Before Federal, State or Local Governmental Entities of Competent Jurisdiction, 85196-85201 [2016-28221]
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85196
Federal Register / Vol. 81, No. 227 / Friday, November 25, 2016 / Proposed Rules
amounts less than this would have a present
value smaller than the required amount of
$262,344, and thus would fail to satisfy the
minimum present value requirement of
section 417(e)(3).
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(8) * * *
(vi) Applicability date for provisions
reflecting PPA ’06 updates and other
rules. Paragraphs (d)(1) through (4) of
this section apply to distributions with
annuity starting dates in plan years
beginning on or after the date
regulations that finalize these proposed
regulations are published in the Federal
Register. Prior to this applicability date,
taxpayers must continue to apply the
provisions of § 1.417(e)–1(d) as
contained in 26 CFR part 1 as in effect
immediately before publication of those
final regulations, except to the extent
superseded by statutory changes and
guidance of general applicability
relating to those statutory changes.
(9) Relationship with section
411(d)(6)—(i) In general. A plan
amendment that changes the interest
rate or the mortality assumptions used
for the purposes described in paragraph
(d)(1) of this section (including a plan
amendment that changes the time for
determining those assumptions) is
generally subject to section 411(d)(6).
However, for certain exceptions to the
rule in the preceding sentence, see
paragraph (d)(7)(iv) of this section,
§ 1.411(d)–4, Q&A–2(b)(2)(v) (with
respect to plan amendments relating to
involuntary distributions), and section
1107(a)(2) of the Pension Protection Act
of 2006, Public Law 109–280, 120 Stat.
780 (2006) (PPA ’06) (with respect to
certain plan amendments that were
made pursuant to a change to the
Internal Revenue Code by PPA ’06 or
regulations issued thereunder).
(ii) Section 411(d)(6) relief for change
in time for determining interest rate and
mortality table. Notwithstanding the
general rule of paragraph (d)(9)(i) of this
section, if a plan amendment changes
the time for determining the applicable
interest rate (and, if the amendment
changes the stability period described in
paragraph (d)(4)(iii) of this section, the
time for determining the applicable
mortality table), including an indirect
change as a result of a change in plan
year, the amendment will not be treated
as reducing accrued benefits in violation
of section 411(d)(6) merely on account
of this change if the conditions of this
paragraph (d)(9)(ii) are satisfied. If the
plan amendment is effective on or after
the date the amendment is adopted, any
distribution for which the annuity
starting date occurs in the one-year
period commencing at the time the
amendment is effective must be
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determined using the interest rate and
mortality table provided under the plan
determined at either the date for
determining the interest rate and
mortality table before the amendment or
the date for determining the interest rate
and mortality table after the
amendment, whichever results in the
larger distribution. If the plan
amendment is adopted retroactively
(that is, the amendment is effective prior
to the adoption date), the plan must use
the interest rate and mortality table
determination dates resulting in the
larger distribution for distributions with
annuity starting dates occurring during
the period beginning with the effective
date and ending one year after the
adoption date.
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John Dalrymple,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2016–27907 Filed 11–23–16; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 267
[Docket ID: DOD–2016–OS–0079]
RIN 0790–AJ51
Production of Official Records or
Disclosure of Official Information in
Proceedings Before Federal, State or
Local Governmental Entities of
Competent Jurisdiction
National Reconnaissance
Office, Department of Defense.
ACTION: Proposed rule.
AGENCY:
This proposed rule sets forth
procedures for the National
Reconnaissance Office (NRO) personnel
to follow for the release of official
information by NRO personnel in legal
proceedings, through testimony,
production of documents, or otherwise.
DATES: Comments must be received by
January 24, 2017.
ADDRESSES: You may submit comments,
identified by docket number and/or
Regulatory Information Number (RIN)
and title, by any of the following
methods:
• Federal Rulemaking Portal: https://
www.regulations.gov.
Follow the instructions for submitting
comments.
• Mail: Department of Defense, Office
of the Deputy Chief Management
Officer, Directorate for Oversight and
Compliance, 4800 Mark Center Drive,
SUMMARY:
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Mailbox #24, Alexandria, VA 22350–
1700.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the Internet at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT:
Lisa
Miller, (703) 808–1060.
SUPPLEMENTARY INFORMATION:
Background
Pursuant to DoD Directive 5105.23,
‘‘National Reconnaissance Office
(NRO),’’ effective October 29, 2015
(available at https://www.dtic.mil/whs/
directives/corres/pdf/510523p.pdf), the
NRO was designated as a Defense
Agency. This proposed regulation aligns
with comparable regulations for other
defense agencies. This rulemaking
discusses procedures for NRO personnel
to follow when asked to provide official
testimony in a legal proceeding. It also
informs members of the public of the
procedures for official NRO documents,
files, records or information or official
testimony which could include:
(1) Any material contained in the files
of the NRO;
(2) Any information relating to, or
based upon, material contained in the
files of the NRO, including but not
limited to summaries of such
information or material, or opinions
based on such information or material;
or
(3) Any information acquired by any
person while such person was
performing official duties while detailed
to the NRO, assigned to the NRO, or due
to that person’s official status or
association with the NRO. These
procedures also apply to subpoenas
duces tecum for any document within
the NRO’s possession and to requests for
official certification of copies of any
documents.
These procedures discussed in this
proposed rule apply to information
requests associated with:
(1) State court proceedings, to include
grand jury proceedings.
(2) Federal civil proceedings where
the United States, NRO, or any other
Federal Agency is not a party to the
case; and
(3) State and local legislative and
administrative proceedings.
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Authority
Regulatory Analysis
The authority for promulgation of this
regulatory action is 50 U.S.C. 3003(4)(f)
and 10 U.S.C. 424(b)(2), and Executive
Order 12333, ‘‘United States Intelligence
Activities’’, as amended, with particular
reference to Section 1.4 (f) and (g) and
Section 1.6 (d), (e) and (h).
Congress, when enacting the National
Security Act of 1947 (‘‘the Act’’),
intended to provide a comprehensive
program for the future security of the
United States, and provide for the
establishment of integrated policies and
procedures for the departments,
agencies, and functions of the
Government relating to the national
security. The Act was designed to
provide a Department of Defense,
including the three military
Departments of the Army, the Navy
(including naval aviation and the
United States Marine Corps), and the
Air Force under the direction, authority,
and control of the Secretary of Defense.
The Act also provided for the
establishment of unified or specified
combatant commands. The National
Reconnaissance Office is identified as
an ‘‘intelligence agency’’ under the
National Security Act of 1947, as
amended, (50 U.S.C. 3003(4)(f)).
An exemption for specified
intelligence agencies from the
disclosure of organizational and
personnel information is provided in 10
U.S.C. 424(b)(2). This exemption
provides that, except as required by the
President, no provision of law shall be
construed to require the disclosure of:
(1) The organization or any function of
an organization of the Department of
Defense (specifically the Defense
Intelligence Agency, National
Reconnaissance Office and the National
Geospatial Intelligence Agency); or (2)
the number of persons employed by, or
assigned or detailed to, any such
organization or the name, official title,
occupational series, grade, or salary of
any such person.
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
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Costs and Benefits
This proposed rule would benefit the
public and the United States
Government by providing clear
procedures for members of the public
and Government employees to follow
when official testimony or official
documents, records, files or information
are sought from NRO or from NRO
personnel in connection with legal
proceedings.
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Executive Orders 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, distribute impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This proposed rule has been
designated a ‘‘significant regulatory
action,’’ although not economically
significant because the rulemaking does
not have an annual effect on the
economy of $100 million or more, under
section 3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed
by the Office of Management and
Budget.
Unfunded Mandates Reform Act (2
U.S.C. Ch. 25)
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(2 U.S.C. 1532) requires agencies to
assess anticipated costs and benefits
before issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. In 2016, that
threshold is approximately $146
million. This rulemaking would not
mandate any requirements for State,
local, or tribal governments, nor will it
affect private sector costs.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. Ch. 6)
The Department of Defense certifies
that this proposed rule is not subject to
the Regulatory Flexibility Act (5 U.S.C.
Ch. 6) because it would not, if
promulgated, have a significant
economic impact on a substantial
number of small entities. This proposed
rule would provide clarity to U.S.
Government personnel and outside
counsel on the proper rules and
procedures to serve process on U.S.
Government officials in their official
capacity and to obtain official U.S.
Government testimony or documents for
use in legal proceedings. Therefore, the
Regulatory Flexibility Act, as amended,
does not require us to prepare a
regulatory flexibility analysis.
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Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
It has been determined that this
rulemaking does not impose reporting
or record keeping requirements under
the Paperwork Reduction Act of 1995.
Executive Order 13132, ‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This rulemaking would not have a
substantial effect on the States; the
relationship between the National
Government and the States; or the
distribution of power and
responsibilities among the various
levels of Government.
List of Subjects in 32 CFR Part 267
Legal proceedings, Testimony,
Documentation.
Accordingly, 32 CFR part 267 is
proposed to be added to read as follows:
PART 267—PRODUCTION OF
OFFICIAL RECORDS OR DISCLOSURE
OF OFFICIAL INFORMATION IN
PROCEEDINGS BEFORE FEDERAL,
STATE OR LOCAL GOVERNMENTAL
ENTITIES OF COMPETENT
JURISDICTION
Sec.
267.1
267.2
267.3
267.4
267.5
267.6
Scope and purpose.
Definitions.
Policy.
Procedures.
Service of process.
Fees.
Authority: 50 U.S.C. 3003(4)(f) and 10
U.S.C. 424(b)(2).
§ 267.1
Scope and purpose.
(a) This part establishes policy,
assigns responsibilities, and prescribes
mandatory procedures governing the
release of official information by
National Reconnaissance Office (NRO)
personnel in legal proceedings, through
testimony, production of documents, or
otherwise. This part sets forth
procedures for NRO personnel to follow
if they are subpoenaed to produce or
disclose, or to testify with respect to:
(1) Any material contained in the files
of the NRO;
(2) Any information relating to, or
based upon, material contained in the
files of the NRO, including but not
limited to summaries of such
information or material, or opinions
based on such information or material;
or
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(3) Any information acquired by any
person while such person was
performing official duties while detailed
to the NRO, assigned to the NRO, or due
to that person’s official status or
association with the NRO. These
procedures also apply to subpoenas
duces tecum for any document within
the NRO’s possession and to requests for
official certification of copies of any
documents.
(b) These procedures apply to
information requests associated with:
(1) State court proceedings, to include
grand jury proceedings.
(2) Federal civil proceedings where
the United States, NRO, or any other
Federal Agency is not a party to the
case; and
(3) State and local legislative and
administrative proceedings.
(c) These procedures do not apply to:
(1) Congressional requests or
subpoenas for testimony or documents;
and
(2) Release of official information or
testimony by NRO personnel in the
following situations, authorized:
(i) Before courts-martial convened by
the authority of the Military
Departments or in any administrative
meetings conducted by a DoD
component;
(ii) Pursuant to administrative
proceedings conducted by the Equal
Employment Opportunity and Diversity
Management (EEO&DM) Office;
(iii) In response to requests for records
or information from the United States
Department of Justice (DOJ) or other
federal government counsel
representing the United States or the
interests of the United States in
litigation;
(iv) Pursuant to the disclosure of any
information to Federal, State, or local
prosecuting or law enforcement
authorities in conjunction with an
investigation conducted by a DoD
criminal investigative organization.
(d) This part is intended to provide
guidance for the internal operation of
the NRO and to ensure the orderly
execution of NRO’s mission, not to
impede any legal proceeding.
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§ 267.2
Definitions.
For the purpose of this part:
Demand. Any subpoena, order, or
other legal summons (except
garnishment orders) that is issued by a
federal, state, or local governmental
entity of competent jurisdiction with the
authority to require the production,
disclosure, or release of official NRO
information or for the appearance and
testimony of NRO personnel as
witnesses.
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Employee or NRO employee. When
used herein refers to NRO personnel,
current or former.
General Counsel. The NRO General
Counsel, to include the Principal
Deputy General Counsel, Deputy
General Counsel, or Acting General
Counsel.
Litigation. All pretrial, trial, and posttrial stages of all existing or reasonably
anticipated judicial or administrative
actions, hearings, investigations, or
similar proceedings before civilian
courts, commissions, boards or other
tribunals, foreign and domestic. This
term includes responses to discovery
requests, depositions, and other pretrial
proceedings, as well as responses to
formal or informal requests by attorneys
or others in situations involving
litigation.
NRO personnel. Present and former
civilian employees assigned or detailed
to NRO, or employed by NRO, and
present and former military personnel
assigned or detailed to NRO, or
employed by NRO. The definition of
NRO personnel also includes
individuals hired through contractual
agreements by or on behalf of NRO.
Official Information. All information
of any kind, in any storage medium,
whether or not classified or protected
from disclosure that:
(1) Is in the custody and control of the
NRO; or
(2) Relates to information in the
custody and control of the NRO; or
(3) Was acquired by NRO personnel as
part of their official duties or because of
their official status within NRO.
Production or Produce. The
disclosure of:
(1) Any material contained in the files
of NRO; or
(2) Any information relating to, or
based upon, material contained in the
files of the NRO, including but not
limited to summaries of such
information or material, or opinions
based on such information or material;
or
(3) Any information acquired by any
person while such person was
performing official duties as detailed to
the NRO, assigned to the NRO, or due
to that person’s official status or
association with the NRO.
These procedures also apply to
subpoenas duces tecum for any
document within the NRO’s possession
and to requests for certification of
copies of any documents.
Service of Process. The delivery of a
summons and complaint, or other
document the purpose of which is to
give notice of a proceeding or to
establish the jurisdiction of a court or
administrative proceeding, in the
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manner prescribed by Rule 4, Federal
Rules of Civil Procedure, to an officer or
agency of the United States named in
court or administrative proceedings.
§ 267.3
Policy.
(a) No employee shall produce any
materials or information in response to
a demand without prior authorization as
set forth in this part. This part applies
to current and to former employees and
contractors, in accordance with
applicable nondisclosure agreements.
(b) This part is intended only to
provide procedures for responding to a
demand for production of documents or
information, and is not intended to,
does not, and may not be relied upon to,
create any right or benefit, substantive
or procedural, enforceable by any party
against the United States.
(c) Except as permitted by paragraph
(d) of this section, no NRO personnel
may provide testimony or produce
documents in any proceeding
referenced in § 267.1(b) of this part
concerning information acquired in the
course of performing official NRO duties
or because of the person’s official
relationship with NRO, except as
specifically authorized by the General
Counsel.
(d) With the approval of the General
Counsel, on behalf of the Director of
NRO, NRO personnel may testify at the
request of another Federal agency, or,
where it is in the interests of the NRO,
at the request of a State or local
government or State legislative
committee, subject to applicable
nondisclosure agreements and in
accordance with procedures set forth in
this part.
(e) Official information that is not
classified or privileged may be made
available for use in Federal and State
courts, at the discretion of the General
Counsel, who may deny requested
information or testimony under the
procedures set forth in this part, or as
otherwise authorized and warranted
under applicable law.
§ 267.4
Procedures.
(a) If official information is sought,
through testimony or otherwise, by a
litigation demand, the individual
seeking such release or testimony must
set forth, in writing and with as much
specificity as possible, the nature and
relevance of the official information
sought, and shall send such demand to
NRO Office of General Counsel (OGC),
National Reconnaissance Office,
Chantilly, VA 20151.
(b) Any NRO personnel in receipt of
a litigation request or demand for
official NRO information or the
testimony of NRO personnel as
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witnesses shall immediately notify the
NRO OGC, National Reconnaissance
Office, Chantilly, VA 20151 (703/808–
1060), and shall provide a copy of the
request or demand to the OGC, which
shall follow the procedures set forth in
this section.
(c) NRO personnel shall not produce,
disclose, release, comment upon, or
testify concerning any official
information during litigation except as
expressly authorized in writing by the
General Counsel. In exigent
circumstances, the General Counsel may
issue oral approval, but a written record
of such approval will be made and
retained in the OGC.
(d) The NRO OGC and senior NRO
officials with responsibility for the
information sought in the demand shall
determine whether any information,
materials, or testimony may properly be
produced in response to the demand,
provided that the OGC may assert any
and all legal defenses and objections to
the demand available to NRO prior to
the start of any search for information
responsive to the demand. NRO may, in
its sole discretion, decline to begin any
search for information responsive to the
demand until a final and nonappealable disposition of any such
defenses and objections raised by NRO
has been made by the entity or person
that issued the demand.
(e) In deciding whether to authorize
the release of official NRO information
or the testimony of NRO personnel
concerning official information
(hereafter referred to as ‘‘production’’)
pursuant to paragraph (d) of this
section, OGC shall consider the
following factors, among any other
pertinent considerations:
(1) Whether production would be
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;
(2) Whether production would violate
a statute, executive order, regulation, or
directive;
(3) Whether production would reveal
NRO organization, functions, or
personnel information protected from
disclosure by statute;
(4) Whether production would reveal
information properly classified in the
interest of national security;
(5) Whether production would
interfere with ongoing enforcement
proceedings, compromise constitutional
rights, reveal the identity of an
intelligence source or confidential
informant, disclose trade secrets or
similarly confidential commercial or
financial information without the
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owner’s consent, or otherwise be
inappropriate under the circumstances;
(6) Whether the disclosure would
have an adverse effect on performance
by the NRO of its official mission and
duties, to include:
(i) The need to conserve the time of
NRO personnel for the conduct of
official business;
(ii) The need to avoid spending the
time and money of the United States to
serve private purposes;
(iii) The need to avoid involving the
NRO in contested issues not related to
its official mission.
(f) The NRO OGC is responsible for
notifying the appropriate NRO
employees and other persons of all
decisions regarding responses to
demands and providing advice and
counsel as to the implementation of
such decisions.
(g) If, after NRO personnel have
received a litigation request or demand
and have in turn notified the OGC in
accordance with paragraph (b) of this
section, a response to the request or
demand is required before instructions
from the OGC are received, an attorney
from the OGC, or, as appropriate, an
attorney from the U.S. Department of
Justice (DOJ) representing the NRO,
shall appear before and furnish the
court or other competent authority with
a copy of this part; shall inform the
requestor or the court or other authority
that the request or demand is being
reviewed, and shall respectfully seek a
stay of the request or demand pending
a final determination by NRO OGC.
(h) If the court of competent
jurisdiction or other appropriate
authority declines to stay the effect of
the request or demand in response to
action taken pursuant to paragraph (g) of
this section, or if such court or other
authority orders that the request or
demand must be complied with
notwithstanding the final decision of
the General Counsel, the NRO personnel
upon whom the request or demand was
made shall notify the General Counsel
of such ruling or order. If the General
Counsel determines that no further legal
review of or challenge to the ruling or
order will be sought, the affected NRO
personnel shall comply with the
demand or order. If directed by the
General Counsel not to comply with the
demand, however, the affected NRO
personnel shall respectfully decline to
comply with the demand. See United
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951). In that circumstance, the
NRO personnel shall state the following
to the Court: ‘‘I must respectfully advise
the Court that under instructions given
to me by the General Counsel of the
National Reconnaissance Office, in
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accordance with Department of Defense
Directive 5405.2 and [this part, (32 CFR
part 267), I must respectfully decline to
[produce/disclose] that information.’’
(i) In the event NRO personnel receive
a litigation demand for official
information originated by another U.S.
Government component, the General
Counsel shall forward the appropriate
portions of the request to the OGC for
the other component. The General
Counsel shall notify the requestor,
court, or other authority of the referral,
unless providing such notice would
itself disclose classified information. To
protect classified information, the
General Counsel, in such cases, shall
notify the requestor of the referral of the
request, or positions thereof, to another
government agency without specifying
the identity of such agency. The General
Counsel shall assist in coordinating
responses by the unidentified agency to
the request to the extent necessary to
protect classified information from
unauthorized disclosure.
§ 267.5
Service of process.
(a) Service of Process Upon the NRO
or NRO Personnel Accepted in an
Official Capacity Only. This section sets
forth mandatory procedures for
accomplishing valid service of process
by registered or certified mail upon
NRO or upon NRO personnel sued or
summoned in an official capacity.
(b) Accepting service of process upon
NRO personnel in their individual
capacities at the workplace is not a
function of NRO. Acceptance of service
of process in a person’s individual
capacity is the responsibility of that
individual. Consistent with 10 U.S.C.
424, NRO will not provide the name or
address of any current or former
employee of NRO to individuals or
entities seeking to serve process on such
employee solely in his or her individual
capacity, even where the matter is
related to NRO activities.
(c) Service of a summons or complaint
upon NRO or service of process upon
NRO personnel for official information
or testimony must be made by: serving
the United States Attorney for the
district in which the action is brought,
and sending copies of the summons and
complaint by registered or certified mail
to the Attorney General of the United
States and to the General Counsel of the
National Reconnaissance Office, 15675
Lee Road, Chantilly, VA 20151–1715.
The envelope shall be conspicuously
marked ‘‘Copy of Summons and
Complaint Enclosed.’’ Parties may call
the OGC at (703) 808–1060 for guidance.
(d) Only the General Counsel or
designee is authorized to accept the
copies of the summons or complaint on
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behalf of NRO. Individual NRO
personnel sued or summoned to provide
information or testimony in an official
capacity are not authorized to accept
service of process. If the General
Counsel accepts service of process on
behalf of NRO or NRO personnel, in
accordance with this paragraph, the
documents for which service is accepted
shall be stamped: ‘‘Service accepted on
behalf of the organization in official
capacity only.’’
(1) NRO personnel who receive or
who have reason to expect to receive
service of process in any capacity
concerning a matter that may involve
testimony or the furnishing of
documents that could reasonably be
expected to involve official NRO
information shall notify the NRO OGC,
(703) 808–1060 before accepting service
and before providing the requestor,
counsel or other representative of the
party who sent the demand with any
official NRO information in response to
the demand.
(2) If service is sought in an official
capacity upon an individual who is
alleged to work at NRO Headquarters in
Chantilly, Virginia, the process server
should call OGC at (703) 808–1060 for
guidance.
(i) To protect classified NRO
employment associations and/or
classified contracts, the Office of
General Counsel shall refuse to confirm
or deny the existence or the
nonexistence of an employment
relationship with the specific individual
sued or summoned in an official
capacity (other than publicly
acknowledged senior agency officials of
NRO).
(ii) OGC shall direct the process
server to follow the procedures set forth
in this part to serve process upon the
United States Attorney for the judicial
district in which the action is brought
and to send a copy of such process to
NRO OGC by certified or registered
mail.
(iii) OGC will notify the person
summoned and the appropriate NRO
Security Officer of the legal demand.
(e) NRO does not accept personal
service of process upon NRO personnel
at NRO facilities or on NRO premises,
unless expressly directed otherwise by
the General Counsel. Process servers
will not be allowed to enter NRO
facilities for the purpose of serving
process upon any NRO personnel solely
in his or her individual capacity. The
General Counsel, on behalf of the
Director of NRO, has sole discretion to
authorize acceptance of personal service
of process upon the NRO or NRO
personnel served in their official
capacities, or served upon NRO
VerDate Sep<11>2014
14:01 Nov 23, 2016
Jkt 241001
personnel in an combined individual
and official capacity, and may exercise
this discretion in circumstances where
serving process on NRO personnel by
registered or certified mail is not
authorized by law or where, in
particular circumstances, the General
Counsel determines that acceptance of
personal service of process serves the
best organizational interests of the NRO.
(1) A process server who arrives at
NRO during duty hours without first
having contacted the NRO OGC will be
referred to the Visitor Center. The
Visitor Center is not authorized to and
shall not accept service of process upon
NRO or on behalf of any alleged NRO
personnel. The Visitor Center shall
contact OGC.
(i) The General Counsel or designee
shall review the service of process at the
Visitor Center to assess whether the
NRO person is sued or summoned in an
official or in an individual capacity. If
the person is sued or summoned in an
individual capacity, the General
Counsel shall refuse to accept service on
that basis.
(ii) If the General Counsel determines
that service is sought upon NRO or
upon an alleged employee of NRO in an
official capacity, or if the General
Counsel is concerned that official NRO
information or documents may be
relevant to the subject matter of the
proceeding, the General Counsel shall
direct the process server to follow the
procedures set forth in this part and
shall refuse to accept service on the
basis of failure to comply with
applicable regulations, unless, as an
exercise of discretion, OGC determines
that acceptance of personal service of
process best serves the organizational
interests of the NRO.
(iii) If the General Counsel exercises
discretion to accept service of process
upon NRO or upon NRO personnel in
an official capacity, in accordance with
this paragraph, the documents for which
service is accepted shall be stamped:
‘‘Service accepted on behalf of the
organization in official capacity only.’’
(iv) OGC will notify the person
summoned and the appropriate NRO
Security Officer of the legal demand.
(2) [Reserved]
(f) Litigants may attempt to serve
process upon NRO personnel in their
official capacities at their residences or
other places. Because NRO personnel
are not authorized to accept such
service of process, such service is not
effective under the Federal Rules of
Civil Procedure. NRO personnel should
refuse to accept service. However, NRO
personnel may find it difficult to
determine whether they are being sued
or summoned in their private or official
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
capacity. Therefore, NRO personnel
shall notify NRO OGC as soon as
possible if they receive any summons or
complaint that appears to relate to
actions in connection with their official
duties and shall direct such summons or
complaint to the General Counsel so
that the General Counsel can determine
the scope of service.
(g) The Commander or Chief of
Facility at NRO facilities other than
NRO Headquarters may accept copies of
service of process for himself or herself
or for NRO personnel assigned to the
installation who are sued or summoned
in their official capacities, without
officially confirming or denying the
existence or nonexistence of an
employment or contract relationship
with the summoned individual. The
Commander or Chief of Facility will
accept any such service of process by
noting on the return of service form:
‘‘Service accepted on behalf of the
organization in official capacity only.’’
The Commander or Chief of Facility will
then immediately refer the matter to the
General Counsel.
(1) No individual will officially
confirm or deny that the person sued or
summoned is affiliated with NRO as an
employee or contractor unless OGC, in
coordination with the Commander or
Chief of Facility, has first determined
both that the individual’s association
with NRO is unclassified and that such
association may be officially and
publicly acknowledged in connection
with the legal proceeding. If the NRO
person’s association with NRO is
classified, service of process shall not be
accepted unless, as an exercise of
discretion, OGC determines that
acceptance of service of process under
the circumstances best serves the
organizational interests of the NRO and
can be accomplished without officially
confirming or denying the classified
association at issue. Any such service if
accepted must be stamped on the return
of service form ‘‘Service accepted on
behalf of the organization in official
capacity only.’’
(2) Whether service is accepted or
refused, the General Counsel will
coordinate with NRO security
personnel, other federal agencies, or
other US Government personnel and
contact DOJ for guidance on how to
provide information responsive to legal
process while protecting classified
information from unauthorized
disclosure in accordance with legal
requirements. If OGC or the Commander
or Chief of Facility accepts service ‘‘on
behalf of the organization in official
capacity only’’ and that service was
directed toward an individual whose
association with NRO is or was
E:\FR\FM\25NOP1.SGM
25NOP1
ehiers on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 227 / Friday, November 25, 2016 / Proposed Rules
classified, OGC will work with the party
who made the litigation demand and/or
the court and DOJ to identify an
individual who can provide responsive
information or testimony while
protecting classified information in
accordance with legal requirements, or
will move for other appropriate relief as
necessary to protect classified
information.
(h) If any NRO person is sued or
summoned in a foreign court, that
person shall provide full documentation
of the matter securely to the cognizant
Commander or Chief of Facility. The
Commander or Chief of Facility will
immediately email a scanned copy of
the service of process to OGC, and shall
send the document securely via an
information system approved to handle
classified information, marking the
email to indicate attorney-client
privilege protections as applicable. The
person sued or summoned will not
complete any return of service forms for
the foreign court without first obtaining
approval from NRO OGC to the
cognizant Commander or Chief of
Facility in writing, and shall follow
instructions from OGC regarding how to
complete the return of service form.
OGC will coordinate with DOJ to
determine whether service is effective
and whether the NRO person is entitled
to be represented at Government
expense.
(i) The Commander or Chief of
Facility will establish procedures at the
NRO facility, including a provision for
liaison with local staff judge advocates,
if any, to ensure that service of process
on persons in their individual capacities
is accomplished in accordance with
local law, relevant treaties, and Status of
Forces Agreements. Such procedures
must be approved by the General
Counsel. Commanders or Chiefs of
Facility will designate a point of contact
to conduct liaison with the OGC.
(j) Acceptance of service of any
summons or complaint by OGC ‘‘on
behalf of the organization in official
capacity only’’ shall not constitute an
official acknowledgement or
confirmation by NRO that any
individual named in the summons or
complaint is, in fact, a current or former
employee of NRO. Acceptance of service
of process shall not constitute waiver
with respect to jurisdiction, propriety or
validity of service, improper venue, or
any other defense in law or equity
available under the laws or rules
applicable to the service of process.
§ 267.6
Fees.
(a) Consistent with the guidelines in
DoD 7000.14–R, Vol. 11A, Chap. 4,
‘‘User Fees’’ (available at https://
VerDate Sep<11>2014
14:01 Nov 23, 2016
Jkt 241001
comptroller.defense.gov/Portals/45/
documents/fmr/Volume_11a.pdf), NRO
may charge reasonable fees, as
established by regulation and to the
extent not prohibited by law, to parties
seeking, by request or demand, official
information not otherwise available
under the DoD Freedom of Information
Act, 5 U.S.C. 552. Such fees are
calculated to reimburse the Government
for the expense of providing such
information, and may include:
(1) The costs of time expended by
NRO personnel to process and respond
to the request or demand;
(2) Attorney time for reviewing the
request or demand and any information
located in response thereto, and for
related legal work in connection with
the request or demand; and
(3) Expenses generated by materials
and equipment used to search for,
produce, and copy the responsive
information See Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340 (1978).
(b) [Reserved]
Dated: November 18, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2016–28221 Filed 11–23–16; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2016–0968]
RIN 1625–AA09
Drawbridge Operation Regulation;
Youngs Bay, Astoria, OR
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard proposes to
change the operating schedule that
governs the Oregon State highway
bridge across Youngs Bay foot of Fifth
Street (Old Youngs Bay Bridge), mile
2.4, at Astoria, OR. The Oregon
Department of Transportation (ODOT) is
proposing to change the operating
schedule of the Old Youngs Bay Bridge
for several months while work is
performed on the north bascule lift. This
change would allow ODOT to operate
the double bascule draw in single leaf
mode, one lift at a time, and reduce the
vertical clearance of the non-operable
half of the span by five feet.
DATES: Comments and related material
must reach the Coast Guard on or before
SUMMARY:
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
85201
December 27, 2016. The Coast Guard
anticipates that this proposed rule will
be effective from 7 a.m. on March 1,
2017 to 5 p.m. on October 31, 2017.
ADDRESSES: You may submit comments
identified by docket number USCG–
2016–0968 using Federal eRulemaking
Portal at https://www.regulations.gov.
See the ‘‘Public Participation and
Request for Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
See the ‘‘Public Participation and
Request for Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this proposed
rule, call or email Steven M. Fischer,
Bridge Administrator, Thirteenth Coast
Guard District Bridge Program Office,
telephone 206–220–7282; email d13-pfd13bridges@uscg.mil.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
§ Section
U.S.C. United States Code
ODOT Oregon State Department of
Transportation
II. Background, Purpose and Legal
Basis
ODOT owns and operates the Old
Youngs Bay Bridge, and proposes a
temporary change to the existing
operating regulation. The Coast Guard
approved a temporary rule change
authorizing ODOT to operate the Old
Youngs Bay Bridge in single leaf mode
from May 2016 through October 2016,
document citation 81 FR 28018. No
negative impacts were observed during
that rule change. The subject proposed
regulation will allow the drawtender to
open half the draw span in single leaf
mode, from 7 a.m. on March 1, 2017 to
5 p.m. on October 31, 2017. ODOT’s
proposal would allow the construction
workers to utilize a containment system
that reduces the non-opening half of the
bridge’s vertical clearance by five feet.
Marine traffic on Youngs Bay consists of
vessels ranging from small pleasure
craft, sailboats, small tribal fishing
boats, and commercial tug and tow, and
mega yachts.
III. Discussion of Proposed Rule
This proposed rule would temporarily
amend 33 CFR 117.899 by adding the
south lift only to open in single leaf
E:\FR\FM\25NOP1.SGM
25NOP1
]]>Agencies
[Federal Register Volume 81, Number 227 (Friday, November 25, 2016)]
[Proposed Rules]
[Pages 85196-85201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28221]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 267
[Docket ID: DOD-2016-OS-0079]
RIN 0790-AJ51
Production of Official Records or Disclosure of Official
Information in Proceedings Before Federal, State or Local Governmental
Entities of Competent Jurisdiction
AGENCY: National Reconnaissance Office, Department of Defense.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule sets forth procedures for the National
Reconnaissance Office (NRO) personnel to follow for the release of
official information by NRO personnel in legal proceedings, through
testimony, production of documents, or otherwise.
DATES: Comments must be received by January 24, 2017.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) and title, by any of the following
methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Deputy Chief
Management Officer, Directorate for Oversight and Compliance, 4800 Mark
Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions available for public viewing on the
Internet at https://www.regulations.gov as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Lisa Miller, (703) 808-1060.
SUPPLEMENTARY INFORMATION:
Background
Pursuant to DoD Directive 5105.23, ``National Reconnaissance Office
(NRO),'' effective October 29, 2015 (available at https://www.dtic.mil/whs/directives/corres/pdf/510523p.pdf), the NRO was designated as a
Defense Agency. This proposed regulation aligns with comparable
regulations for other defense agencies. This rulemaking discusses
procedures for NRO personnel to follow when asked to provide official
testimony in a legal proceeding. It also informs members of the public
of the procedures for official NRO documents, files, records or
information or official testimony which could include:
(1) Any material contained in the files of the NRO;
(2) Any information relating to, or based upon, material contained
in the files of the NRO, including but not limited to summaries of such
information or material, or opinions based on such information or
material; or
(3) Any information acquired by any person while such person was
performing official duties while detailed to the NRO, assigned to the
NRO, or due to that person's official status or association with the
NRO. These procedures also apply to subpoenas duces tecum for any
document within the NRO's possession and to requests for official
certification of copies of any documents.
These procedures discussed in this proposed rule apply to
information requests associated with:
(1) State court proceedings, to include grand jury proceedings.
(2) Federal civil proceedings where the United States, NRO, or any
other Federal Agency is not a party to the case; and
(3) State and local legislative and administrative proceedings.
[[Page 85197]]
Authority
The authority for promulgation of this regulatory action is 50
U.S.C. 3003(4)(f) and 10 U.S.C. 424(b)(2), and Executive Order 12333,
``United States Intelligence Activities'', as amended, with particular
reference to Section 1.4 (f) and (g) and Section 1.6 (d), (e) and (h).
Congress, when enacting the National Security Act of 1947 (``the
Act''), intended to provide a comprehensive program for the future
security of the United States, and provide for the establishment of
integrated policies and procedures for the departments, agencies, and
functions of the Government relating to the national security. The Act
was designed to provide a Department of Defense, including the three
military Departments of the Army, the Navy (including naval aviation
and the United States Marine Corps), and the Air Force under the
direction, authority, and control of the Secretary of Defense. The Act
also provided for the establishment of unified or specified combatant
commands. The National Reconnaissance Office is identified as an
``intelligence agency'' under the National Security Act of 1947, as
amended, (50 U.S.C. 3003(4)(f)).
An exemption for specified intelligence agencies from the
disclosure of organizational and personnel information is provided in
10 U.S.C. 424(b)(2). This exemption provides that, except as required
by the President, no provision of law shall be construed to require the
disclosure of: (1) The organization or any function of an organization
of the Department of Defense (specifically the Defense Intelligence
Agency, National Reconnaissance Office and the National Geospatial
Intelligence Agency); or (2) the number of persons employed by, or
assigned or detailed to, any such organization or the name, official
title, occupational series, grade, or salary of any such person.
Costs and Benefits
This proposed rule would benefit the public and the United States
Government by providing clear procedures for members of the public and
Government employees to follow when official testimony or official
documents, records, files or information are sought from NRO or from
NRO personnel in connection with legal proceedings.
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 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, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This proposed rule has been designated a ``significant
regulatory action,'' although not economically significant because the
rulemaking does not have an annual effect on the economy of $100
million or more, under section 3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed by the Office of Management and
Budget.
Unfunded Mandates Reform Act (2 U.S.C. Ch. 25)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $100 million in 1995 dollars, updated annually for inflation. In
2016, that threshold is approximately $146 million. This rulemaking
would not mandate any requirements for State, local, or tribal
governments, nor will it affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Ch. 6)
The Department of Defense certifies that this proposed rule is not
subject to the Regulatory Flexibility Act (5 U.S.C. Ch. 6) because it
would not, if promulgated, have a significant economic impact on a
substantial number of small entities. This proposed rule would provide
clarity to U.S. Government personnel and outside counsel on the proper
rules and procedures to serve process on U.S. Government officials in
their official capacity and to obtain official U.S. Government
testimony or documents for use in legal proceedings. Therefore, the
Regulatory Flexibility Act, as amended, does not require us to prepare
a regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that this rulemaking does not impose
reporting or record keeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. This rulemaking would not have a substantial effect on
the States; the relationship between the National Government and the
States; or the distribution of power and responsibilities among the
various levels of Government.
List of Subjects in 32 CFR Part 267
Legal proceedings, Testimony, Documentation.
Accordingly, 32 CFR part 267 is proposed to be added to read as
follows:
PART 267--PRODUCTION OF OFFICIAL RECORDS OR DISCLOSURE OF OFFICIAL
INFORMATION IN PROCEEDINGS BEFORE FEDERAL, STATE OR LOCAL
GOVERNMENTAL ENTITIES OF COMPETENT JURISDICTION
Sec.
267.1 Scope and purpose.
267.2 Definitions.
267.3 Policy.
267.4 Procedures.
267.5 Service of process.
267.6 Fees.
Authority: 50 U.S.C. 3003(4)(f) and 10 U.S.C. 424(b)(2).
Sec. 267.1 Scope and purpose.
(a) This part establishes policy, assigns responsibilities, and
prescribes mandatory procedures governing the release of official
information by National Reconnaissance Office (NRO) personnel in legal
proceedings, through testimony, production of documents, or otherwise.
This part sets forth procedures for NRO personnel to follow if they are
subpoenaed to produce or disclose, or to testify with respect to:
(1) Any material contained in the files of the NRO;
(2) Any information relating to, or based upon, material contained
in the files of the NRO, including but not limited to summaries of such
information or material, or opinions based on such information or
material; or
[[Page 85198]]
(3) Any information acquired by any person while such person was
performing official duties while detailed to the NRO, assigned to the
NRO, or due to that person's official status or association with the
NRO. These procedures also apply to subpoenas duces tecum for any
document within the NRO's possession and to requests for official
certification of copies of any documents.
(b) These procedures apply to information requests associated with:
(1) State court proceedings, to include grand jury proceedings.
(2) Federal civil proceedings where the United States, NRO, or any
other Federal Agency is not a party to the case; and
(3) State and local legislative and administrative proceedings.
(c) These procedures do not apply to:
(1) Congressional requests or subpoenas for testimony or documents;
and
(2) Release of official information or testimony by NRO personnel
in the following situations, authorized:
(i) Before courts-martial convened by the authority of the Military
Departments or in any administrative meetings conducted by a DoD
component;
(ii) Pursuant to administrative proceedings conducted by the Equal
Employment Opportunity and Diversity Management (EEO&DM) Office;
(iii) In response to requests for records or information from the
United States Department of Justice (DOJ) or other federal government
counsel representing the United States or the interests of the United
States in litigation;
(iv) Pursuant to the disclosure of any information to Federal,
State, or local prosecuting or law enforcement authorities in
conjunction with an investigation conducted by a DoD criminal
investigative organization.
(d) This part is intended to provide guidance for the internal
operation of the NRO and to ensure the orderly execution of NRO's
mission, not to impede any legal proceeding.
Sec. 267.2 Definitions.
For the purpose of this part:
Demand. Any subpoena, order, or other legal summons (except
garnishment orders) that is issued by a federal, state, or local
governmental entity of competent jurisdiction with the authority to
require the production, disclosure, or release of official NRO
information or for the appearance and testimony of NRO personnel as
witnesses.
Employee or NRO employee. When used herein refers to NRO personnel,
current or former.
General Counsel. The NRO General Counsel, to include the Principal
Deputy General Counsel, Deputy General Counsel, or Acting General
Counsel.
Litigation. All pretrial, trial, and post-trial stages of all
existing or reasonably anticipated judicial or administrative actions,
hearings, investigations, or similar proceedings before civilian
courts, commissions, boards or other tribunals, foreign and domestic.
This term includes responses to discovery requests, depositions, and
other pretrial proceedings, as well as responses to formal or informal
requests by attorneys or others in situations involving litigation.
NRO personnel. Present and former civilian employees assigned or
detailed to NRO, or employed by NRO, and present and former military
personnel assigned or detailed to NRO, or employed by NRO. The
definition of NRO personnel also includes individuals hired through
contractual agreements by or on behalf of NRO.
Official Information. All information of any kind, in any storage
medium, whether or not classified or protected from disclosure that:
(1) Is in the custody and control of the NRO; or
(2) Relates to information in the custody and control of the NRO;
or
(3) Was acquired by NRO personnel as part of their official duties
or because of their official status within NRO.
Production or Produce. The disclosure of:
(1) Any material contained in the files of NRO; or
(2) Any information relating to, or based upon, material contained
in the files of the NRO, including but not limited to summaries of such
information or material, or opinions based on such information or
material; or
(3) Any information acquired by any person while such person was
performing official duties as detailed to the NRO, assigned to the NRO,
or due to that person's official status or association with the NRO.
These procedures also apply to subpoenas duces tecum for any
document within the NRO's possession and to requests for certification
of copies of any documents.
Service of Process. The delivery of a summons and complaint, or
other document the purpose of which is to give notice of a proceeding
or to establish the jurisdiction of a court or administrative
proceeding, in the manner prescribed by Rule 4, Federal Rules of Civil
Procedure, to an officer or agency of the United States named in court
or administrative proceedings.
Sec. 267.3 Policy.
(a) No employee shall produce any materials or information in
response to a demand without prior authorization as set forth in this
part. This part applies to current and to former employees and
contractors, in accordance with applicable nondisclosure agreements.
(b) This part is intended only to provide procedures for responding
to a demand for production of documents or information, and is not
intended to, does not, and may not be relied upon to, create any right
or benefit, substantive or procedural, enforceable by any party against
the United States.
(c) Except as permitted by paragraph (d) of this section, no NRO
personnel may provide testimony or produce documents in any proceeding
referenced in Sec. 267.1(b) of this part concerning information
acquired in the course of performing official NRO duties or because of
the person's official relationship with NRO, except as specifically
authorized by the General Counsel.
(d) With the approval of the General Counsel, on behalf of the
Director of NRO, NRO personnel may testify at the request of another
Federal agency, or, where it is in the interests of the NRO, at the
request of a State or local government or State legislative committee,
subject to applicable nondisclosure agreements and in accordance with
procedures set forth in this part.
(e) Official information that is not classified or privileged may
be made available for use in Federal and State courts, at the
discretion of the General Counsel, who may deny requested information
or testimony under the procedures set forth in this part, or as
otherwise authorized and warranted under applicable law.
Sec. 267.4 Procedures.
(a) If official information is sought, through testimony or
otherwise, by a litigation demand, the individual seeking such release
or testimony must set forth, in writing and with as much specificity as
possible, the nature and relevance of the official information sought,
and shall send such demand to NRO Office of General Counsel (OGC),
National Reconnaissance Office, Chantilly, VA 20151.
(b) Any NRO personnel in receipt of a litigation request or demand
for official NRO information or the testimony of NRO personnel as
[[Page 85199]]
witnesses shall immediately notify the NRO OGC, National Reconnaissance
Office, Chantilly, VA 20151 (703/808-1060), and shall provide a copy of
the request or demand to the OGC, which shall follow the procedures set
forth in this section.
(c) NRO personnel shall not produce, disclose, release, comment
upon, or testify concerning any official information during litigation
except as expressly authorized in writing by the General Counsel. In
exigent circumstances, the General Counsel may issue oral approval, but
a written record of such approval will be made and retained in the OGC.
(d) The NRO OGC and senior NRO officials with responsibility for
the information sought in the demand shall determine whether any
information, materials, or testimony may properly be produced in
response to the demand, provided that the OGC may assert any and all
legal defenses and objections to the demand available to NRO prior to
the start of any search for information responsive to the demand. NRO
may, in its sole discretion, decline to begin any search for
information responsive to the demand until a final and non-appealable
disposition of any such defenses and objections raised by NRO has been
made by the entity or person that issued the demand.
(e) In deciding whether to authorize the release of official NRO
information or the testimony of NRO personnel concerning official
information (hereafter referred to as ``production'') pursuant to
paragraph (d) of this section, OGC shall consider the following
factors, among any other pertinent considerations:
(1) Whether production would be 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;
(2) Whether production would violate a statute, executive order,
regulation, or directive;
(3) Whether production would reveal NRO organization, functions, or
personnel information protected from disclosure by statute;
(4) Whether production would reveal information properly classified
in the interest of national security;
(5) Whether production would interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity of
an intelligence source or confidential informant, disclose trade
secrets or similarly confidential commercial or financial information
without the owner's consent, or otherwise be inappropriate under the
circumstances;
(6) Whether the disclosure would have an adverse effect on
performance by the NRO of its official mission and duties, to include:
(i) The need to conserve the time of NRO personnel for the conduct
of official business;
(ii) The need to avoid spending the time and money of the United
States to serve private purposes;
(iii) The need to avoid involving the NRO in contested issues not
related to its official mission.
(f) The NRO OGC is responsible for notifying the appropriate NRO
employees and other persons of all decisions regarding responses to
demands and providing advice and counsel as to the implementation of
such decisions.
(g) If, after NRO personnel have received a litigation request or
demand and have in turn notified the OGC in accordance with paragraph
(b) of this section, a response to the request or demand is required
before instructions from the OGC are received, an attorney from the
OGC, or, as appropriate, an attorney from the U.S. Department of
Justice (DOJ) representing the NRO, shall appear before and furnish the
court or other competent authority with a copy of this part; shall
inform the requestor or the court or other authority that the request
or demand is being reviewed, and shall respectfully seek a stay of the
request or demand pending a final determination by NRO OGC.
(h) If the court of competent jurisdiction or other appropriate
authority declines to stay the effect of the request or demand in
response to action taken pursuant to paragraph (g) of this section, or
if such court or other authority orders that the request or demand must
be complied with notwithstanding the final decision of the General
Counsel, the NRO personnel upon whom the request or demand was made
shall notify the General Counsel of such ruling or order. If the
General Counsel determines that no further legal review of or challenge
to the ruling or order will be sought, the affected NRO personnel shall
comply with the demand or order. If directed by the General Counsel not
to comply with the demand, however, the affected NRO personnel shall
respectfully decline to comply with the demand. See United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951). In that circumstance, the NRO
personnel shall state the following to the Court: ``I must respectfully
advise the Court that under instructions given to me by the General
Counsel of the National Reconnaissance Office, in accordance with
Department of Defense Directive 5405.2 and [this part, (32 CFR part
267), I must respectfully decline to [produce/disclose] that
information.''
(i) In the event NRO personnel receive a litigation demand for
official information originated by another U.S. Government component,
the General Counsel shall forward the appropriate portions of the
request to the OGC for the other component. The General Counsel shall
notify the requestor, court, or other authority of the referral, unless
providing such notice would itself disclose classified information. To
protect classified information, the General Counsel, in such cases,
shall notify the requestor of the referral of the request, or positions
thereof, to another government agency without specifying the identity
of such agency. The General Counsel shall assist in coordinating
responses by the unidentified agency to the request to the extent
necessary to protect classified information from unauthorized
disclosure.
Sec. 267.5 Service of process.
(a) Service of Process Upon the NRO or NRO Personnel Accepted in an
Official Capacity Only. This section sets forth mandatory procedures
for accomplishing valid service of process by registered or certified
mail upon NRO or upon NRO personnel sued or summoned in an official
capacity.
(b) Accepting service of process upon NRO personnel in their
individual capacities at the workplace is not a function of NRO.
Acceptance of service of process in a person's individual capacity is
the responsibility of that individual. Consistent with 10 U.S.C. 424,
NRO will not provide the name or address of any current or former
employee of NRO to individuals or entities seeking to serve process on
such employee solely in his or her individual capacity, even where the
matter is related to NRO activities.
(c) Service of a summons or complaint upon NRO or service of
process upon NRO personnel for official information or testimony must
be made by: serving the United States Attorney for the district in
which the action is brought, and sending copies of the summons and
complaint by registered or certified mail to the Attorney General of
the United States and to the General Counsel of the National
Reconnaissance Office, 15675 Lee Road, Chantilly, VA 20151-1715. The
envelope shall be conspicuously marked ``Copy of Summons and Complaint
Enclosed.'' Parties may call the OGC at (703) 808-1060 for guidance.
(d) Only the General Counsel or designee is authorized to accept
the copies of the summons or complaint on
[[Page 85200]]
behalf of NRO. Individual NRO personnel sued or summoned to provide
information or testimony in an official capacity are not authorized to
accept service of process. If the General Counsel accepts service of
process on behalf of NRO or NRO personnel, in accordance with this
paragraph, the documents for which service is accepted shall be
stamped: ``Service accepted on behalf of the organization in official
capacity only.''
(1) NRO personnel who receive or who have reason to expect to
receive service of process in any capacity concerning a matter that may
involve testimony or the furnishing of documents that could reasonably
be expected to involve official NRO information shall notify the NRO
OGC, (703) 808-1060 before accepting service and before providing the
requestor, counsel or other representative of the party who sent the
demand with any official NRO information in response to the demand.
(2) If service is sought in an official capacity upon an individual
who is alleged to work at NRO Headquarters in Chantilly, Virginia, the
process server should call OGC at (703) 808-1060 for guidance.
(i) To protect classified NRO employment associations and/or
classified contracts, the Office of General Counsel shall refuse to
confirm or deny the existence or the nonexistence of an employment
relationship with the specific individual sued or summoned in an
official capacity (other than publicly acknowledged senior agency
officials of NRO).
(ii) OGC shall direct the process server to follow the procedures
set forth in this part to serve process upon the United States Attorney
for the judicial district in which the action is brought and to send a
copy of such process to NRO OGC by certified or registered mail.
(iii) OGC will notify the person summoned and the appropriate NRO
Security Officer of the legal demand.
(e) NRO does not accept personal service of process upon NRO
personnel at NRO facilities or on NRO premises, unless expressly
directed otherwise by the General Counsel. Process servers will not be
allowed to enter NRO facilities for the purpose of serving process upon
any NRO personnel solely in his or her individual capacity. The General
Counsel, on behalf of the Director of NRO, has sole discretion to
authorize acceptance of personal service of process upon the NRO or NRO
personnel served in their official capacities, or served upon NRO
personnel in an combined individual and official capacity, and may
exercise this discretion in circumstances where serving process on NRO
personnel by registered or certified mail is not authorized by law or
where, in particular circumstances, the General Counsel determines that
acceptance of personal service of process serves the best
organizational interests of the NRO.
(1) A process server who arrives at NRO during duty hours without
first having contacted the NRO OGC will be referred to the Visitor
Center. The Visitor Center is not authorized to and shall not accept
service of process upon NRO or on behalf of any alleged NRO personnel.
The Visitor Center shall contact OGC.
(i) The General Counsel or designee shall review the service of
process at the Visitor Center to assess whether the NRO person is sued
or summoned in an official or in an individual capacity. If the person
is sued or summoned in an individual capacity, the General Counsel
shall refuse to accept service on that basis.
(ii) If the General Counsel determines that service is sought upon
NRO or upon an alleged employee of NRO in an official capacity, or if
the General Counsel is concerned that official NRO information or
documents may be relevant to the subject matter of the proceeding, the
General Counsel shall direct the process server to follow the
procedures set forth in this part and shall refuse to accept service on
the basis of failure to comply with applicable regulations, unless, as
an exercise of discretion, OGC determines that acceptance of personal
service of process best serves the organizational interests of the NRO.
(iii) If the General Counsel exercises discretion to accept service
of process upon NRO or upon NRO personnel in an official capacity, in
accordance with this paragraph, the documents for which service is
accepted shall be stamped: ``Service accepted on behalf of the
organization in official capacity only.''
(iv) OGC will notify the person summoned and the appropriate NRO
Security Officer of the legal demand.
(2) [Reserved]
(f) Litigants may attempt to serve process upon NRO personnel in
their official capacities at their residences or other places. Because
NRO personnel are not authorized to accept such service of process,
such service is not effective under the Federal Rules of Civil
Procedure. NRO personnel should refuse to accept service. However, NRO
personnel may find it difficult to determine whether they are being
sued or summoned in their private or official capacity. Therefore, NRO
personnel shall notify NRO OGC as soon as possible if they receive any
summons or complaint that appears to relate to actions in connection
with their official duties and shall direct such summons or complaint
to the General Counsel so that the General Counsel can determine the
scope of service.
(g) The Commander or Chief of Facility at NRO facilities other than
NRO Headquarters may accept copies of service of process for himself or
herself or for NRO personnel assigned to the installation who are sued
or summoned in their official capacities, without officially confirming
or denying the existence or nonexistence of an employment or contract
relationship with the summoned individual. The Commander or Chief of
Facility will accept any such service of process by noting on the
return of service form: ``Service accepted on behalf of the
organization in official capacity only.'' The Commander or Chief of
Facility will then immediately refer the matter to the General Counsel.
(1) No individual will officially confirm or deny that the person
sued or summoned is affiliated with NRO as an employee or contractor
unless OGC, in coordination with the Commander or Chief of Facility,
has first determined both that the individual's association with NRO is
unclassified and that such association may be officially and publicly
acknowledged in connection with the legal proceeding. If the NRO
person's association with NRO is classified, service of process shall
not be accepted unless, as an exercise of discretion, OGC determines
that acceptance of service of process under the circumstances best
serves the organizational interests of the NRO and can be accomplished
without officially confirming or denying the classified association at
issue. Any such service if accepted must be stamped on the return of
service form ``Service accepted on behalf of the organization in
official capacity only.''
(2) Whether service is accepted or refused, the General Counsel
will coordinate with NRO security personnel, other federal agencies, or
other US Government personnel and contact DOJ for guidance on how to
provide information responsive to legal process while protecting
classified information from unauthorized disclosure in accordance with
legal requirements. If OGC or the Commander or Chief of Facility
accepts service ``on behalf of the organization in official capacity
only'' and that service was directed toward an individual whose
association with NRO is or was
[[Page 85201]]
classified, OGC will work with the party who made the litigation demand
and/or the court and DOJ to identify an individual who can provide
responsive information or testimony while protecting classified
information in accordance with legal requirements, or will move for
other appropriate relief as necessary to protect classified
information.
(h) If any NRO person is sued or summoned in a foreign court, that
person shall provide full documentation of the matter securely to the
cognizant Commander or Chief of Facility. The Commander or Chief of
Facility will immediately email a scanned copy of the service of
process to OGC, and shall send the document securely via an information
system approved to handle classified information, marking the email to
indicate attorney-client privilege protections as applicable. The
person sued or summoned will not complete any return of service forms
for the foreign court without first obtaining approval from NRO OGC to
the cognizant Commander or Chief of Facility in writing, and shall
follow instructions from OGC regarding how to complete the return of
service form. OGC will coordinate with DOJ to determine whether service
is effective and whether the NRO person is entitled to be represented
at Government expense.
(i) The Commander or Chief of Facility will establish procedures at
the NRO facility, including a provision for liaison with local staff
judge advocates, if any, to ensure that service of process on persons
in their individual capacities is accomplished in accordance with local
law, relevant treaties, and Status of Forces Agreements. Such
procedures must be approved by the General Counsel. Commanders or
Chiefs of Facility will designate a point of contact to conduct liaison
with the OGC.
(j) Acceptance of service of any summons or complaint by OGC ``on
behalf of the organization in official capacity only'' shall not
constitute an official acknowledgement or confirmation by NRO that any
individual named in the summons or complaint is, in fact, a current or
former employee of NRO. Acceptance of service of process shall not
constitute waiver with respect to jurisdiction, propriety or validity
of service, improper venue, or any other defense in law or equity
available under the laws or rules applicable to the service of process.
Sec. 267.6 Fees.
(a) Consistent with the guidelines in DoD 7000.14-R, Vol. 11A,
Chap. 4, ``User Fees'' (available at https://comptroller.defense.gov/Portals/45/documents/fmr/Volume_11a.pdf), NRO may charge reasonable
fees, as established by regulation and to the extent not prohibited by
law, to parties seeking, by request or demand, official information not
otherwise available under the DoD Freedom of Information Act, 5 U.S.C.
552. Such fees are calculated to reimburse the Government for the
expense of providing such information, and may include:
(1) The costs of time expended by NRO personnel to process and
respond to the request or demand;
(2) Attorney time for reviewing the request or demand and any
information located in response thereto, and for related legal work in
connection with the request or demand; and
(3) Expenses generated by materials and equipment used to search
for, produce, and copy the responsive information See Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340 (1978).
(b) [Reserved]
Dated: November 18, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-28221 Filed 11-23-16; 8:45 am]
BILLING CODE 5001-06-P
