[Federal Register Volume 74, Number 48 (Friday, March 13, 2009)]
[Proposed Rules]
[Pages 10853-10857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5446]
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PRESIDIO TRUST
36 CFR Part 1012
Legal Process: Testimony by Employees and Production of Records
AGENCY: Presidio Trust.
ACTION: Proposed Rule.
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SUMMARY: The Presidio Trust proposes a regulation, limited to the
Presidio Trust's organization and management, governing access to
Presidio Trust information and records in connection with legal
proceedings in which neither the United States nor the Presidio Trust
is a party. This proposed rule will establish guidelines for use in
determining whether Presidio Trust employees (as defined in the
proposed rule) will provide testimony or records relating to their
official duties. It also will establish procedures for requesters to
follow when making demands on or requests to a Presidio Trust employee
for official documents or to provide testimony. This proposed rule will
standardize the Presidio Trust's practices, promote uniformity in
decisions, conserve the ability of the Presidio Trust to conduct
official business, preserve its employee resources, protect
confidential information, provide guidance to requestors, minimize
involvement in matters unrelated to the Presidio Trust's mission and
programs, avoid wasteful allocation of agency resources and avoid
spending public time and money for private purpose.
DATES: Submit written comments on or before April 20, 2009.
ADDRESSES: Send written comments to Karen A. Cook, General Counsel,
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052.
FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel,
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052. Telephone: 415.561.5300.
SUPPLEMENTARY INFORMATION: The Presidio Trust, a wholly-owned federal
government corporation, on occasion receives subpoenas and other
requests for documents and requests for Presidio Trust employees (as
defined in the proposed rule) to provide testimony or evidence in
judicial, legislative or administrative proceedings in which the
Presidio Trust is not a party. Sometimes these subpoenas or requests
are for Presidio Trust records that are exempt from disclosure under
the Freedom of Information Act. The Presidio Trust also receives
requests for Presidio Trust employees to appear as witnesses and to
provide testimony relating to materials contained in the Presidio
Trust's official records or provide testimony or information acquired
during the performance of the employees' official duties.
Although many other federal agencies currently have regulations in
place to address these types of requests, and the Presidio Trust itself
has rules governing requests for information under the Freedom of
Information Act, the Presidio Trust has not adopted regulations
governing subpoenas and other information requests for document
production and testimony of Presidio Trust employees in judicial,
legislative or administrative proceedings in which the Presidio Trust
is not a party. Issues about such requests that have arisen in recent
years warrant adoption of regulations governing their submission,
evaluation and processing. Responding to these requests is not only
burdensome, but may also result in a significant disruption of a
Presidio Trust employee's work schedule, involve the Presidio Trust in
issues unrelated to its responsibilities and/or impede the Presidio
Trust's accomplishment of its budgetary goals. In order to resolve
these issues, many agencies have issued regulations, similar to this
proposed regulation, governing the circumstances and manner for
responding to demands for testimony or for the production of documents.
Establishing uniform procedures for submission, evaluation and response
to such demands will ensure timely notice and promote centralized
decision making. The United States Supreme Court upheld this type of
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Briefly summarized, the proposed rule will prohibit disclosure of
official records or testimony by the Presidio Trust's employees unless
there is compliance with the rule. The proposed rule sets out the
information that requesters must provide and the factors that the
Presidio Trust will consider in making determinations in response to
requests for testimony or the production of documents.
This proposed rule will ensure a more efficient use of the Presidio
Trust's resources, minimize the possibility of involving the Presidio
Trust in issues
[[Page 10854]]
unrelated to its mission or responsibilities, promote uniformity in
responding to such subpoenas and similar requests, and maintain the
impartiality of the Presidio Trust in matters that are in dispute
between other parties. It will also serve the Presidio Trust's interest
in protecting sensitive, confidential and privileged information and
records that are generated in fulfillment of the Presidio Trust's
responsibilities.
The proposed rule is internal and procedural rather than
substantive. It will not create a right to obtain official records or
the official testimony of a Presidio Trust employee nor will it create
any additional right or privilege not already available to the Presidio
Trust to deny any demand or request for testimony or documents. Failure
to comply with the procedures set out in these proposed regulations
would be a basis for denying a demand or request submitted to the
Presidio Trust.
This rulemaking is in compliance with the Administrative Procedure
Act (5 U.S.C. 553) and allows for a 30-day comment period. Interested
persons are invited to submit written comments to the Presidio Trust on
this proposed regulation, to be received on or before April 20, 2009.
Prior to issuing its final rule, the Presidio Trust will review all
comments received and consider any modifications to this proposal that
appear warranted.
Executive Order 12866--Regulatory Planning and Review
This proposed rule has been reviewed under Executive Order 12866
issued September 30, 1993 on Regulatory Planning and Review. This
proposed rule will not have an annual effect of $100 million or more on
the economy nor adversely affect productivity, competition, jobs, the
environment, public health or safety, nor State or local governments.
This proposed rule will neither interfere with an action taken or
planned by another agency nor raise new legal or policy issues. This
proposed rule will not alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients of such programs. Therefore, it has been determined that
this is not an economically significant rule.
Executive Order 12988--Civil Justice Reform
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. This proposed rule has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities. Additionally, the Presidio Trust has not identified
any State or local laws or regulations that are in conflict with this
regulation or that would impede full implementation of this proposed
rule. Nonetheless, in the event that such a conflict was to be
identified, the proposed rule would preempt State or local laws or
regulations found to be in conflict. However, in that case, (1) no
retroactive effect would be given to this proposed rule; and (2) the
proposed rule does not require the use of administration proceedings
before parties may file suit in court challenging its provisions.
Executive Order 13132--Federalism
This proposed rule conforms with the Federalism principles set out
in Executive Order 13132 and would not impose any compliance costs on
the States; and would 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. Therefore, it has been determined that
this proposed rule does not have federalism implications.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538) as well as Executive Order 12875, the Presidio Trust
has assessed the effects of this proposed rule on State, local, and
Tribal governments and the private sector. This proposed rule does not
compel the expenditure of $100 million or more in any one year by any
State, local, or Tribal governments or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
Executive Order 13175--Consultation With Indian Tribal Governments
Pursuant to Executive Order 13175 of November 6, 2000, the Presidio
Trust has assessed the impact of this proposed rule on Indian Tribal
governments and has determined that the proposed rule does not
significantly or uniquely affect communities of Indian Tribal
governments. The Presidio Trust has also determined that this proposed
rule does not impose substantial direct compliance costs or Tribal
implications on Indian tribal governments, and therefore advance
consultation with Tribes is not required.
Regulatory Flexibility Act and Executive Order 13272--Consideration of
Small Entities
This proposed rule has been considered in light of the Regulatory
Flexibility Act (5 U.S.C. 602 et seq.) and Executive Order 13272 of
August 13, 2002. This proposed rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act and Executive Order 13272, because the
proposed rule will not impose recordkeeping requirements on them; it
will not affect their competitive position in relation to large
entities; and it will not affect their cash flow, liquidity or ability
to remain in the market.
Certification
The Presidio Trust certifies that this proposed rule is not
expected to have a significant economic impact on a substantial number
of small entities under the Regulatory Flexibility Act or Executive
Order 13272.
Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.), as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Because this proposed rule is a rule of
agency organization, procedure or practice that does not substantially
affect the rights or obligations of non-agency parties it is not a
``rule'' as defined by the Congressional Review Act (5 U.S.C.
804(3)(C)) and is not subject to it.
Executive Order 13211--Energy Effects
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211 of May 22, 2001, because it is not
likely to have a significant adverse affect on the supply, distribution
or use of energy. The Presidio Trust has determined that this proposed
rule is not likely to have any adverse energy effects.
The Paperwork Reduction Act of 1995
This proposed rule contains no paperwork burdens or information
collection requirements that are subject to review by the Office of
Management and Budget under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3520).
Analysis of Environmental Impact
The Presidio Trust has analyzed this proposed rule in accordance
with the
[[Page 10855]]
criteria of the National Environmental Policy Act of 1969 and
determined that rule does not constitute a major Federal action
significantly affecting the quality of the human environment.
Therefore, neither an environmental assessment nor an environmental
impact statement is required.
Government Paperwork Elimination Act
The Presidio Trust is committed to compliance with the Government
Paperwork Elimination Act (GPEA), which requires Government agencies to
provide the public the option of submitting information or transacting
business electronically to the maximum extent possible. This proposed
rule contains no paperwork burdens or information collection
requirements, and is thus in compliance with the GPEA.
Executive Order 12630--No Takings Implication
This proposed rule has been analyzed in accordance with the
principles of and criteria contained in Executive Order 12630 issued
March 15, 1988, and it has been determined that the proposed rule does
not pose a risk of a taking of constitutionally protected private
property.
For the reasons set forth in the preamble, the Presidio Trust
proposes to amend chapter X of title 36 of the Code of Federal
Regulations by adding new part 1012 to read as follows:
PART 1012--LEGAL PROCESS: TESTIMONY BY EMPLOYEES AND PRODUCTION OF
RECORDS
Sec.
General Information
1012.1 What does this part cover?
1012.2 What is the Presidio Trust's policy on granting requests for
employee testimony or Presidio Trust records?
Responsibilities of Requesters
1012.3 How can I obtain employee testimony or Presidio Trust
records?
1012.4 If I serve a subpoena duces tecum, must I also submit a Touhy
Request?
1012.5 What information must I put in my Touhy Request?
1012.6 How much will I be charged?
1012.7 Can I get an authenticated copy of a Presidio Trust record?
Responsibilities of the Presidio Trust
1012.8 How will the Presidio Trust process my Touhy Request?
1012.9 What criteria will the Presidio Trust consider in responding
to my Touhy Request?
Responsibilities of Employees
1012.10 What must I, as an employee, do upon receiving a request?
1012.11 Must I get approval before testifying as an expert witness
other than on behalf of the United States in a Federal proceeding in
which the United States is a party or has a direct and substantial
interest?
Authority: 16 U.S.C. 460bb appendix; 40 U.S.C. 102; 44 U.S.C.
2901 and 3102.
General Information
Sec. 1012.1 What does this part cover?
(a) This part describes how the Presidio Trust responds to requests
or subpoenas for:
(1) Testimony by employees in State, territorial or Tribal
judicial, legislative or administrative proceedings concerning
information acquired while performing official duties or because of an
employee's official status;
(2) Testimony by employees in Federal court civil proceedings in
which the United States or the Presidio Trust is not a party concerning
information acquired while performing official duties or because of an
employee's official status;
(3) Testimony by employees in any judicial or administrative
proceeding in which the United States or the Presidio Trust, while not
a party, has a direct and substantial interest;
(4) Official records or certification of such records for use in
Federal, State, territorial or Tribal judicial, legislative or
administrative proceedings.
(b) In this part, ``employee'' means a current or former Presidio
Trust employee, or Board member, including a contractor or special
government employee, except as the Presidio Trust may otherwise
determine in a particular case.
(c) This part does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States or
the Presidio Trust is a party;
(3) Federal administrative proceedings;
(4) Federal, State, and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or
in approved leave status, as private citizens as to facts or events
that are not related to the official business of the Presidio Trust.
The employee must state for the record that the testimony represents
the employee's own views and is not necessarily the official position
of the Presidio Trust. See 5 CFR 2635.702(b), 2635.807(b).
(6) Testimony by employees as expert witnesses on subjects outside
their official duties, except that they must obtain prior approval if
required by Sec. 1012.11.
(d) This part does not affect the rights of any individual or the
procedures for obtaining records under the Freedom of Information Act
(FOIA), Privacy Act, or statutes governing the certification of
official records. The Presidio Trust FOIA and Privacy Act regulations
are found at parts 1007 and 1008 of this chapter.
(e) Nothing in this part is intended to impede the appropriate
disclosure under applicable laws of Presidio Trust information to
Federal, State, territorial, Tribal, or foreign law enforcement,
prosecutorial, or regulatory agencies.
(f) This part only provides guidance for the internal operations of
the Presidio Trust, and neither creates nor is intended to create any
enforceable right or benefit against the United States or the Presidio
Trust.
Sec. 1012.2 What is the Presidio Trust's policy on granting requests
for employee testimony or Presidio Trust records?
(a) Except for proceedings covered by Sec. 1012.1(c) and (d), it
is the Presidio Trust's general policy not to allow its employees to
testify or to produce Presidio Trust records either upon request or by
subpoena. However, if the party seeking such testimony or records
requests in writing, the Presidio Trust will consider whether to allow
testimony or production of records under this part. The Presidio
Trust's policy ensures the orderly execution of its mission and
programs while not impeding any proceeding inappropriately.
(b) No Presidio Trust employee may testify or produce records in
any proceeding to which this part applies unless authorized by the
Presidio Trust under Sec. Sec. 1012.1 through 1012.11. United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
Sec. 1012.3 How can I obtain employee testimony or Presidio Trust
records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a ``Touhy Request;'' see Sec.
1012.5 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951));
and
(2) A statement that you will submit a valid check for costs to the
Presidio Trust, in accordance with Sec. 1012.6, if your Touhy Request
is granted.
(b) To obtain official Presidio Trust records, you must submit:
(1) A Touhy Request; and
(2) A statement that you agree to pay the costs of search and/or
duplication in accordance with the provisions governing requests under
the Freedom of Information Act in part 1007 of this
[[Page 10856]]
chapter, if your Touhy Request is granted.
(c) You must send your Touhy Request to both:
(1) The employee; and
(2) The General Counsel of the Presidio Trust.
(d) The address of Presidio Trust employees and the General Counsel
is: Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052.
Sec. 1012.4 If I serve a subpoena duces tecum, must I also submit a
Touhy request?
Yes. If you serve a subpoena for employee testimony or if you serve
a subpoena duces tecum for records in the possession of the Presidio
Trust, you also must submit a Touhy Request.
Sec. 1012.5 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to
your proceeding and provide a copy of the pleadings underlying your
request;
(c) Identify the parties to your proceeding and any known
relationships they have with the Presidio Trust or to its mission or
programs;
(d) Show that the desired testimony or records are not reasonably
available from any other source;
(e) Show that no record could be provided and used in lieu of
employee testimony;
(f) Provide the substance of the testimony expected of the
employee; and
(g) Explain why you believe your Touhy Request meets the criteria
specified in Sec. 1012.9.
Sec. 1012.6 How much will I be charged?
We will charge you the costs, including travel expenses, for
employees to testify under the relevant substantive and procedural laws
and regulations. You must pay costs for record production in accordance
with the provisions governing requests under the Freedom of Information
Act in part 1007 of this chapter. Estimated Costs must be paid in
advance by check or money order payable to the Presidio Trust. Upon
determination of the precise costs, the Presidio Trust will either
reimburse you for any overpayment, or charge you for any underpayment,
which charges must be paid within 10 business days by check or money
order payable to the Presidio Trust.
Sec. 1012.7 Can I get an authenticated copy of a Presidio Trust
record?
Yes. We may provide an authenticated copy of a Presidio Trust
record, for purposes of admissibility under Federal, State or Tribal
law. We will do this only if the record has been officially released or
would otherwise be released under parts 1007 or 1008 of this chapter,
or this part.
Responsibilities of the Presidio Trust
Sec. 1012.8 How will the Presidio Trust process my Touhy Request?
(a) The Executive Director will decide whether to grant or deny
your Touhy Request. The Presidio Trust's General Counsel, or his or her
agent, may negotiate with you or your attorney to refine or limit both
the timing and content of your Touhy Request. When necessary, the
General Counsel also will coordinate with the Department of Justice to
file appropriate motions, including motions to remove the matter to
Federal court, to quash, or to obtain a protective order.
(b) We will limit the Presidio Trust's decision to allow employee
testimony to the scope of your Touhy Request.
(c) If you fail to follow the requirements of this part, we will
not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request
under Sec. 1012.9.
Sec. 1012.9 What criteria will the Presidio Trust consider in
responding to my Touhy Request?
In deciding whether to grant your Touhy Request, the Executive
Director will consider:
(a) Your ability to obtain the testimony or records from another
source;
(b) The appropriateness of the employee testimony and record
production under the relevant regulations of procedure and substantive
law, including the FOIA or the Privacy Act; and
(c) The Presidio Trust's ability to:
(1) Conduct its official business unimpeded;
(2) Maintain impartiality in conducting its business;
(3) Minimize the possibility that the Presidio Trust will become
involved in issues that are not related to its mission or programs;
(4) Avoid spending public employees' time for private purposes;
(5) Avoid any negative cumulative effect of granting similar
requests;
(6) Ensure that privileged or protected matters remain
confidential; and
(7) Avoid undue burden on the Presidio Trust.
Responsibilities of Employees
Sec. 1012.10 What must I, as an employee, do upon receiving a
request?
(a) If you receive a request or subpoena that does not include a
Touhy Request, you must immediately notify your supervisor and the
Presidio Trust's General Counsel for assistance in issuing the proper
response.
(b) If you receive a Touhy Request, you must promptly notify your
supervisor and forward the request to the General Counsel. After
consulting with the General Counsel, the Executive Director will decide
whether to grant the Touhy Request under Sec. 1012.9.
(c) All decisions granting or denying a Touhy Request must be in
writing. The Executive Director must ask the General Counsel for advice
when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1),
or comparable State or Tribal law, a request for an authenticated copy
of a Presidio Trust record may be granted by the person having the
legal custody of the record. If you believe that you have custody of a
record:
(1) Consult the General Counsel to determine if you can grant a
request for authentication of records; and
(2) Consult the General Counsel concerning the proper form of the
authentication (as authentication requirements may vary by
jurisdiction).
Sec. 1012.11 Must I get approval before testifying as an expert
witness other than on behalf of the United States in a Federal
proceeding in which the United States is a party or has a direct and
substantial interest?
(a) You must comply with 5 CFR 2635.805(c), which details the
authorization procedure for an employee to testify as an expert
witness, not on behalf of the United States, in any proceeding before a
court or agency of the United States in which the United States is a
party or has a direct and substantial interest. This procedure means:
(1) You must obtain the written approval of the Presidio Trust's
General Counsel;
(2) You must be in an approved leave status if you testify during
duty hours; and
(3) You must state for the record that you are appearing as a
private individual and that your testimony does not represent the
official views of the Presidio Trust.
(b) If you testify as an expert witness on a matter outside the
scope of your official duties, and which is not covered by paragraph
(a) of this section, you must comply with 5 CFR 2635.802.
[[Page 10857]]
Dated: March 9, 2009.
Karen A. Cook,
General Counsel.
[FR Doc. E9-5446 Filed 3-12-09; 8:45 am]
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