Testimony and Production of Records, 8428-8430 [2022-03060]

Download as PDF 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. VerDate Sep<11>2014 16:09 Feb 14, 2022 Jkt 256001 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: * * * * * PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 [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. VerDate Sep<11>2014 16:09 Feb 14, 2022 Jkt 256001 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15FER1.SGM 15FER1 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: VerDate Sep<11>2014 16:09 Feb 14, 2022 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 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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 15FER1

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]


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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES

National Endowment for the Humanities

45 CFR Part 1167

RIN 3136-AA44


Testimony and Production of Records

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

ACTION: 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


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