Testimony and Production of Records, 8428-8430 [2022-03060]
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8428
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Rules and Regulations
only minor changes to 43 CFR part 2. A
takings implication assessment is not
required.
6. Federalism (E.O. 13132)
In accordance with Executive Order
13132, this rule does not have any
federalism implications to warrant the
preparation of a Federalism Assessment.
The rule is not associated with, nor will
it have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. A Federalism
Assessment is not required.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Does not unduly burden the
judicial system.
(b) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(c) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
8. Consultation With Indian Tribes (E.O.
13175)
In accordance with Executive Order
13175, the Department of the Interior
has evaluated this rule and determined
that it would have no substantial effects
on federally recognized Indian Tribes.
9. Paperwork Reduction Act
This rule does not require an
information collection from 10 or more
parties and a submission under the
Paperwork Reduction Act is not
required.
lotter on DSK11XQN23PROD with RULES1
10. National Environmental Policy Act
This rule does not constitute a major
Federal Action significantly affecting
the quality for the human environment.
A detailed statement under the National
Environmental Policy Act of 1969
(NEPA) is not required because the rule
is covered by a categorical exclusion.
We have determined the rule is
categorically excluded under 43 CFR
46.210(i) because it is administrative,
legal, and technical in nature. We also
have determined the rule does not
involve any of the extraordinary
circumstances listed in 43 CFR 46.215
that would require further analysis
under NEPA.
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11. Effects on Energy Supply (E.O.
13211)
(6) INTERIOR/DOI–50, Insider Threat
Program.
This rule is not a significant energy
action under the definition in Executive
Order 13211. A Statement of Energy
Effects is not required.
Teri Barnett,
Departmental Privacy Officer, Department of
the Interior.
12. Clarity of This Regulation
BILLING CODE 4334–60–P
We are required by Executive Order
12866 and 12988, the Plain Writing Act
of 2010 (Pub. L. 111–274), and the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means each rule we
publish must:
—Be logically organized;
—Use the active voice to address
readers directly;
—Use clear language rather than jargon;
—Be divided into short sections and
sentences; and
—Use lists and table wherever possible.
List of Subjects in 43 CFR Part 2
Administrative practice and
procedure, Confidential information,
Courts, Freedom of Information Act,
Privacy Act.
For the reasons stated in the
preamble, the Department of the Interior
amends 43 CFR part 2 as follows:
PART 2—FREEDOM OF INFORMATION
ACT; RECORDS AND TESTIMONY
1. The authority citation for part 2
continues to read as follows:
■
Authority: 5 U.S.C. 301, 552, 552a, 553;
31 U.S.C. 3717; 43 U.S.C. 1460, 1461.
2. Amend § 2.254 by adding paragraph
(b), revising paragraph (e) introductory
text, and adding paragraph (e)(6) to read
as follows:
■
§ 2.254
Exemptions.
*
*
*
*
*
(b) Classified records exempt under 5
U.S.C. 552a(k)(1). Pursuant to 5 U.S.C.
552a(k)(1), the following systems of
records have been exempted from
paragraphs (c)(3), (d), (e)(1), (e)(4)(G),
(H), and (I), and (f) of 5 U.S.C. 552a and
the provisions of the regulations in this
subpart implementing these paragraphs:
(1) INTERIOR/DOI–50, Insider Threat
Program.
(2) [Reserved]
*
*
*
*
*
(e) Investigatory records exempt under
5 U.S.C. 552a(k)(5). Pursuant to 5 U.S.C.
552a(k)(5), the following systems of
records have been exempted from
paragraphs (c)(3), (d), (e)(1), (e)(4)(G),
(H), and (I), and (f) of 5 U.S.C. 552a and
the provisions of the regulations in this
subpart implementing these paragraphs:
*
*
*
*
*
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[FR Doc. 2022–03135 Filed 2–14–22; 8:45 am]
NATIONAL FOUNDATION ON THE
ARTS AND HUMANITIES
National Endowment for the
Humanities
45 CFR Part 1167
RIN 3136–AA44
Testimony and Production of Records
National Endowment for the
Humanities; National Foundation on the
Arts and the Humanities.
ACTION: Final rule.
AGENCY:
The National Endowment for
the Humanities (NEH) is adopting as
final its proposed regulations to be
followed when an NEH employee
receives a demand or request to provide
testimony or produce records in a legal
proceeding. These procedures are
designed to promote economy and
efficiency in NEH’s programs and
operations, to minimize the possibility
of involving NEH in controversial issues
not related to its functions, to maintain
the impartiality of NEH among private
litigants, and to protect sensitive,
confidential information and the
deliberative process.
DATES: This final rule is effective on
February 15, 2022.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel,
National Endowment for the
Humanities, 400 7th Street SW, Room
4060, Washington, DC 20506; (202) 606–
8322; gencounsel@neh.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
On January 4, 2022, NEH published in
the Federal Register a notice of
proposed rulemaking (87 FR 210),
requesting public comment on a
proposed rule regarding testimony and
production of records. The agency
received one comment about the
proposed rule, which did not raise a
point relevant to the consideration of
the proposed rule. Accordingly, NEH is
adopting the rule as proposed.
The Federal courts have upheld the
authority of a Federal agency to
establish procedures governing the
production of records and testimony by
E:\FR\FM\15FER1.SGM
15FER1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Rules and Regulations
personnel in legal proceedings in which
the agency is not a party. United States
ex rel. Touhy v. Ragen, 340 U.S. 462
(1951). This rule establishes policies
and procedures that the agency will
follow when, in a legal proceeding, a
current or former NEH employee
receives a demand or request to testify
as to facts or events that relate to his or
her official duties or the functions of
NEH or to produce official records and
information.
This rule relates to testimony and the
production of records only in
connection with legal proceedings to
which the United States is not a party.
It does not apply to requests under the
Freedom of Information Act, 5 U.S.C.
552, or the Privacy Act of 1974, 5 U.S.C.
552a; Congressional demands or
requests for testimony or records; or
legal proceedings to which the United
States is a party.
Regulatory Flexibility Act of 1980
This rulemaking will not have a
significant adverse impact on a
substantial number of small entities,
including small businesses, small
governmental jurisdictions, or certain
small not-for-profit organizations.
Executive Order 12866, Regulatory
Planning and Review, and Executive
Order 13563, Improving Regulation and
Regulatory Review
National Environmental Policy Act of
1969
This rulemaking will not have a
significant effect on the human
environment.
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget for review.
Executive Order 13132, Federalism
This rulemaking does not have
federalism implications. It will not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
Executive Order 12988, Civil Justice
Reform
This rulemaking meets the applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988.
Specifically, this rulemaking is written
in clear language designed to help
reduce litigation.
Executive Order 13175, Indian Tribal
Governments
Unfunded Mandates Reform Act of
1995
This rulemaking does not contain a
Federal mandate that will result in the
expenditure by State, local, and Tribal
governments, in the aggregate, or by the
private sector of $100 million or more
in any one year.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rulemaking will not be a major
rule as defined in section 804 of the
Small Business Regulatory Enforcement
Fairness Act of 1996. This rulemaking
will not result in an annual effect on the
economy of $100 million or more, a
major increase in costs or prices,
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of United States-based companies to
compete with foreign-based companies
in domestic and export markets.
E-Government Act of 2002
All information about NEH required
to be published in the Federal Register
may be accessed at www.neh.gov. The
website www.regulations.gov contains
electronic dockets for NEH’s
rulemakings under the Administrative
Procedure Act of 1946.
Executive Order 12630, Takings
Plain Writing Act of 2010
To ensure this proposed rule speaks
in plain and clear language so that the
public can use and understand it, NEH
modeled the language of the proposed
rule on the Federal Plain Language
Guidelines.
Under the criteria in Executive Order
12630, this rulemaking does not have
significant takings implications.
Therefore, a takings implication
assessment is not required.
List of Subjects in 45 CFR Part 1167
Administrative practice and
procedure.
■ For the reasons set forth in the
preamble, the National Endowment for
Under the criteria in Executive Order
13175, NEH evaluated this rulemaking
and determined that it will not have any
potential effects on Federally recognized
Indian Tribes.
lotter on DSK11XQN23PROD with RULES1
Paperwork Reduction Act of 1995
This rulemaking does not impose an
information collection burden under the
Paperwork Reduction Act. This action
contains no provisions constituting a
collection of information pursuant to
the Paperwork Reduction Act.
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8429
the Humanities amends 45 CFR chapter
XI by adding part 1167 to subchapter D
to read as follows:
PART 1167—TESTIMONY AND
PRODUCTION OF RECORDS
Subchapter D
Sec.
1167.1 Purpose.
1167.2 Applicability.
1167.3 Definitions.
1167.4 Testimony and production of official
records and information.
1167.5 Procedure when demand is made.
1167.6 Office of Inspector General
employees.
Authority: 5 U.S.C. 301.
§ 1167.1
Purpose.
(a) This part sets forth policies and
procedures to be followed when an
employee of the National Endowment
for the Humanities (NEH) receives a
demand to provide testimony or
produce official records and information
in connection with a legal proceeding in
which the United States is not a party.
(b) The provisions of this part are
intended to promote economy and
efficiency in NEH’s programs and
operations; minimize the possibility of
involving NEH in controversial issues
not related to its functions; maintain the
impartiality of NEH among private
litigants; and protect sensitive,
confidential information and the
agency’s internal deliberative process.
(c) This part does not waive the
sovereign immunity of the United
States.
(d) This part does not create any right
or benefit, substantive or procedural,
enforceable at law by a party against the
United States.
(e) This regulation is not intended to
conflict with 5 U.S.C. 2302(b)(13).
§ 1167.2
Applicability.
This part applies to demands and
requests for factual or expert testimony
or for official records or information in
legal proceedings, except that it does
not apply to:
(a) Demands upon or requests for an
NEH employee to testify as to facts or
events that are in no way related to his
or her official duties or to the functions
of NEH;
(b) Demands upon or requests for a
former NEH employee to testify as to
matters in which the former employee
was not directly or materially involved
while at NEH;
(c) Requests for the release of records
under the Freedom of Information Act,
5 U.S.C. 552, or the Privacy Act of 1974,
5 U.S.C. 552a;
(d) Congressional demands and
requests for testimony or records; and
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8430
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Rules and Regulations
(e) Legal proceedings to which the
United States is a party.
§ 1167.3
Definitions.
The following definitions apply to
this part:
Agency or NEH means the National
Endowment for the Humanities.
Demand means a subpoena, order, or
other demand of a court or other
competent authority, issued in a legal
proceeding, for the production of
official records and information or for
the testimony of an NEH employee.
General Counsel means the General
Counsel of the agency, or any person to
whom the General Counsel has
delegated authority under this part.
Legal proceeding means any
proceeding before a court of law,
administrative board or commission,
hearing officer, or other body
conducting a legal or administrative
proceeding.
NEH employee or employee means
any present or former officer or
employee of NEH; any other individual
hired through contractual agreement by
or on behalf of NEH, or who has
performed or is performing services
under such an agreement for NEH; and
any individual who served or is serving
on an NEH advisory committee.
Official records and information
means all documents and material in
the custody and control of NEH; relating
to information in the custody and
control of NEH; or acquired by an NEH
employee in the performance of his or
her official duties or because of his or
her official status, while the individual
was employed by or on behalf of the
NEH.
Request means any request in
connection with an ongoing or
threatened legal proceeding, by
whatever method, for the production of
official records and information or for
testimony, other than a demand.
Testimony means any written or oral
statement by a witness, and includes
depositions, answers to interrogatories,
affidavits, declarations, and statements
at a hearing or trial.
lotter on DSK11XQN23PROD with RULES1
§ 1167.4 Testimony and production of
official records and information.
(a) No employee may produce official
records and information or provide any
testimony in response to a demand or
request unless authorized to do so by
the General Counsel in accordance with
this part.
(b) The General Counsel, in his or her
discretion, may grant an employee
permission to testify or produce official
records and information in response to
a demand or request. In making this
decision, the General Counsel shall
consider whether:
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Jkt 256001
(1) Allowing such testimony or
production of records would be
consistent with the purposes of this
part;
(2) Allowing such testimony or
production of records would be
necessary to prevent a miscarriage of
justice;
(3) Allowing such testimony or
production of records would be in the
best interest of NEH and the United
States; or
(4) NEH has an interest in the
outcome of the legal proceeding.
(c) If authorized to testify pursuant to
this part, an employee may testify as to
facts within his or her personal
knowledge or produce official records
and information, but, unless specifically
authorized to do so by the General
Counsel, shall not:
(1) Disclose confidential or privileged
information;
(2) Testify as to matters regarding
which the General Counsel determines
that testimony would not be in the best
interest of NEH or the United States;
(3) Produce official records and
information regarding which the
General Counsel determines that
production would not be in the best
interest of NEH or the United States; or
(4) Testify as an expert or opinion
witness with regard to any matter
arising out of the employee’s official
duties or the functions of NEH. (See also
5 CFR 2635.805.)
§ 1167.5
Procedure when demand is made.
(a) Whenever an employee is served
with a demand to testify in his or her
official capacity, or to produce official
records and information, the employee
shall notify the General Counsel
immediately.
(b) The General Counsel shall review
the demand and, in accordance with the
provisions of § 1167.4, shall determine
whether, or on what conditions, to
authorize the employee to testify and/or
produce official records and
information.
(c) If a demand requires a response
before the General Counsel has made
the determination referred to in
paragraph (b) of this section, the General
Counsel shall provide the court or other
competent authority with a copy of this
part, inform the court or other
competent authority that the demand is
being reviewed, and seek a stay of the
demand pending a final determination.
(d) If a court or other competent
authority orders that an NEH employee
comply with a demand notwithstanding
a final decision by the General Counsel
to the contrary, or at any other stage in
the process, the General Counsel shall
advise the employee on how to respond
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to such order and may arrange for legal
representation of the employee.
§ 1167.6 Office of Inspector General
employees.
Notwithstanding the requirements set
forth in §§ 1167.1 through 1167.5, when
an employee of the agency’s Office of
the Inspector General receives a demand
or request to provide testimony or
produce official records and
information, the Inspector General or
his or her designee shall be responsible
for performing the functions assigned to
the General Counsel under this part
with respect to such demand or request.
Dated: February 9, 2022.
Samuel Roth,
Attorney-Advisor, National Endowment for
the Humanities.
[FR Doc. 2022–03060 Filed 2–14–22; 8:45 am]
BILLING CODE 7536–01–P
NATIONAL FOUNDATION ON THE
ARTS AND HUMANITIES
National Endowment for the
Humanities
45 CFR Part 1173
RIN 3136–AA45
Indemnification of Employees
National Endowment for the
Humanities, National Foundation on the
Arts and the Humanities.
ACTION: Final rule.
AGENCY:
The National Endowment for
the Humanities (NEH) is adopting as
final its proposed policy that permits
indemnification of NEH employees in
appropriate circumstances, as
determined by the Chairperson of NEH
or the Chairperson’s designee, for claims
made against NEH employees as a result
of actions taken by them in the scope of
their employment.
DATES: This final rule is effective on
February 15, 2022.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel,
National Endowment for the
Humanities, 400 7th Street SW, Room
4060, Washington, DC 20506; (202) 606–
8322; gencounsel@neh.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
On December 20, 2021, NEH
published in the Federal Register a
notice of proposed rulemaking (86 FR
71863), requesting public comment on a
proposed rule regarding indemnification
of NEH employees. The agency received
E:\FR\FM\15FER1.SGM
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]]>Agencies
[Federal Register Volume 87, Number 31 (Tuesday, February 15, 2022)]
[Rules and Regulations]
[Pages 8428-8430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03060]
=======================================================================
-----------------------------------------------------------------------
NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
National Endowment for the Humanities
45 CFR Part 1167
RIN 3136-AA44
Testimony and Production of Records
AGENCY: National Endowment for the Humanities; National Foundation on
the Arts and the Humanities.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Endowment for the Humanities (NEH) is adopting as
final its proposed regulations to be followed when an NEH employee
receives a demand or request to provide testimony or produce records in
a legal proceeding. These procedures are designed to promote economy
and efficiency in NEH's programs and operations, to minimize the
possibility of involving NEH in controversial issues not related to its
functions, to maintain the impartiality of NEH among private litigants,
and to protect sensitive, confidential information and the deliberative
process.
DATES: This final rule is effective on February 15, 2022.
FOR FURTHER INFORMATION CONTACT: Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel, National Endowment for the
Humanities, 400 7th Street SW, Room 4060, Washington, DC 20506; (202)
606-8322; [email protected].
SUPPLEMENTARY INFORMATION:
Background
On January 4, 2022, NEH published in the Federal Register a notice
of proposed rulemaking (87 FR 210), requesting public comment on a
proposed rule regarding testimony and production of records. The agency
received one comment about the proposed rule, which did not raise a
point relevant to the consideration of the proposed rule. Accordingly,
NEH is adopting the rule as proposed.
The Federal courts have upheld the authority of a Federal agency to
establish procedures governing the production of records and testimony
by
[[Page 8429]]
personnel in legal proceedings in which the agency is not a party.
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). This rule
establishes policies and procedures that the agency will follow when,
in a legal proceeding, a current or former NEH employee receives a
demand or request to testify as to facts or events that relate to his
or her official duties or the functions of NEH or to produce official
records and information.
This rule relates to testimony and the production of records only
in connection with legal proceedings to which the United States is not
a party. It does not apply to requests under the Freedom of Information
Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C. 552a;
Congressional demands or requests for testimony or records; or legal
proceedings to which the United States is a party.
Executive Order 12866, Regulatory Planning and Review, and Executive
Order 13563, Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.
Executive Order 13132, Federalism
This rulemaking does not have federalism implications. It will not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
Executive Order 12988, Civil Justice Reform
This rulemaking meets the applicable standards set forth in section
3(a) and 3(b)(2) of Executive Order 12988. Specifically, this
rulemaking is written in clear language designed to help reduce
litigation.
Executive Order 13175, Indian Tribal Governments
Under the criteria in Executive Order 13175, NEH evaluated this
rulemaking and determined that it will not have any potential effects
on Federally recognized Indian Tribes.
Executive Order 12630, Takings
Under the criteria in Executive Order 12630, this rulemaking does
not have significant takings implications. Therefore, a takings
implication assessment is not required.
Regulatory Flexibility Act of 1980
This rulemaking will not have a significant adverse impact on a
substantial number of small entities, including small businesses, small
governmental jurisdictions, or certain small not-for-profit
organizations.
Paperwork Reduction Act of 1995
This rulemaking does not impose an information collection burden
under the Paperwork Reduction Act. This action contains no provisions
constituting a collection of information pursuant to the Paperwork
Reduction Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not contain a Federal mandate that will result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector of $100 million or more in any one
year.
National Environmental Policy Act of 1969
This rulemaking will not have a significant effect on the human
environment.
Small Business Regulatory Enforcement Fairness Act of 1996
This rulemaking will not be a major rule as defined in section 804
of the Small Business Regulatory Enforcement Fairness Act of 1996. This
rulemaking will not result in an annual effect on the economy of $100
million or more, a major increase in costs or prices, significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets.
E-Government Act of 2002
All information about NEH required to be published in the Federal
Register may be accessed at www.neh.gov. The website
www.regulations.gov contains electronic dockets for NEH's rulemakings
under the Administrative Procedure Act of 1946.
Plain Writing Act of 2010
To ensure this proposed rule speaks in plain and clear language so
that the public can use and understand it, NEH modeled the language of
the proposed rule on the Federal Plain Language Guidelines.
List of Subjects in 45 CFR Part 1167
Administrative practice and procedure.
0
For the reasons set forth in the preamble, the National Endowment for
the Humanities amends 45 CFR chapter XI by adding part 1167 to
subchapter D to read as follows:
PART 1167--TESTIMONY AND PRODUCTION OF RECORDS
Subchapter D
Sec.
1167.1 Purpose.
1167.2 Applicability.
1167.3 Definitions.
1167.4 Testimony and production of official records and information.
1167.5 Procedure when demand is made.
1167.6 Office of Inspector General employees.
Authority: 5 U.S.C. 301.
Sec. 1167.1 Purpose.
(a) This part sets forth policies and procedures to be followed
when an employee of the National Endowment for the Humanities (NEH)
receives a demand to provide testimony or produce official records and
information in connection with a legal proceeding in which the United
States is not a party.
(b) The provisions of this part are intended to promote economy and
efficiency in NEH's programs and operations; minimize the possibility
of involving NEH in controversial issues not related to its functions;
maintain the impartiality of NEH among private litigants; and protect
sensitive, confidential information and the agency's internal
deliberative process.
(c) This part does not waive the sovereign immunity of the United
States.
(d) This part does not create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States.
(e) This regulation is not intended to conflict with 5 U.S.C.
2302(b)(13).
Sec. 1167.2 Applicability.
This part applies to demands and requests for factual or expert
testimony or for official records or information in legal proceedings,
except that it does not apply to:
(a) Demands upon or requests for an NEH employee to testify as to
facts or events that are in no way related to his or her official
duties or to the functions of NEH;
(b) Demands upon or requests for a former NEH employee to testify
as to matters in which the former employee was not directly or
materially involved while at NEH;
(c) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act of 1974, 5 U.S.C.
552a;
(d) Congressional demands and requests for testimony or records;
and
[[Page 8430]]
(e) Legal proceedings to which the United States is a party.
Sec. 1167.3 Definitions.
The following definitions apply to this part:
Agency or NEH means the National Endowment for the Humanities.
Demand means a subpoena, order, or other demand of a court or other
competent authority, issued in a legal proceeding, for the production
of official records and information or for the testimony of an NEH
employee.
General Counsel means the General Counsel of the agency, or any
person to whom the General Counsel has delegated authority under this
part.
Legal proceeding means any proceeding before a court of law,
administrative board or commission, hearing officer, or other body
conducting a legal or administrative proceeding.
NEH employee or employee means any present or former officer or
employee of NEH; any other individual hired through contractual
agreement by or on behalf of NEH, or who has performed or is performing
services under such an agreement for NEH; and any individual who served
or is serving on an NEH advisory committee.
Official records and information means all documents and material
in the custody and control of NEH; relating to information in the
custody and control of NEH; or acquired by an NEH employee in the
performance of his or her official duties or because of his or her
official status, while the individual was employed by or on behalf of
the NEH.
Request means any request in connection with an ongoing or
threatened legal proceeding, by whatever method, for the production of
official records and information or for testimony, other than a demand.
Testimony means any written or oral statement by a witness, and
includes depositions, answers to interrogatories, affidavits,
declarations, and statements at a hearing or trial.
Sec. 1167.4 Testimony and production of official records and
information.
(a) No employee may produce official records and information or
provide any testimony in response to a demand or request unless
authorized to do so by the General Counsel in accordance with this
part.
(b) The General Counsel, in his or her discretion, may grant an
employee permission to testify or produce official records and
information in response to a demand or request. In making this
decision, the General Counsel shall consider whether:
(1) Allowing such testimony or production of records would be
consistent with the purposes of this part;
(2) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(3) Allowing such testimony or production of records would be in
the best interest of NEH and the United States; or
(4) NEH has an interest in the outcome of the legal proceeding.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge or produce
official records and information, but, unless specifically authorized
to do so by the General Counsel, shall not:
(1) Disclose confidential or privileged information;
(2) Testify as to matters regarding which the General Counsel
determines that testimony would not be in the best interest of NEH or
the United States;
(3) Produce official records and information regarding which the
General Counsel determines that production would not be in the best
interest of NEH or the United States; or
(4) Testify as an expert or opinion witness with regard to any
matter arising out of the employee's official duties or the functions
of NEH. (See also 5 CFR 2635.805.)
Sec. 1167.5 Procedure when demand is made.
(a) Whenever an employee is served with a demand to testify in his
or her official capacity, or to produce official records and
information, the employee shall notify the General Counsel immediately.
(b) The General Counsel shall review the demand and, in accordance
with the provisions of Sec. 1167.4, shall determine whether, or on
what conditions, to authorize the employee to testify and/or produce
official records and information.
(c) If a demand requires a response before the General Counsel has
made the determination referred to in paragraph (b) of this section,
the General Counsel shall provide the court or other competent
authority with a copy of this part, inform the court or other competent
authority that the demand is being reviewed, and seek a stay of the
demand pending a final determination.
(d) If a court or other competent authority orders that an NEH
employee comply with a demand notwithstanding a final decision by the
General Counsel to the contrary, or at any other stage in the process,
the General Counsel shall advise the employee on how to respond to such
order and may arrange for legal representation of the employee.
Sec. 1167.6 Office of Inspector General employees.
Notwithstanding the requirements set forth in Sec. Sec. 1167.1
through 1167.5, when an employee of the agency's Office of the
Inspector General receives a demand or request to provide testimony or
produce official records and information, the Inspector General or his
or her designee shall be responsible for performing the functions
assigned to the General Counsel under this part with respect to such
demand or request.
Dated: February 9, 2022.
Samuel Roth,
Attorney-Advisor, National Endowment for the Humanities.
[FR Doc. 2022-03060 Filed 2-14-22; 8:45 am]
BILLING CODE 7536-01-P
