42028 Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Rules and Regulations 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 0023.1 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. An 

environmental analysis checklist and a 

categorical exclusion determination are 

not required for this rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. A new § 165.1324 is added to read 

as follows: 

§ 165.1324 Safety and Security Zone; 

Cruise Ship Protection, Elliott Bay and Pier91, Seattle, Washington. 

(a) Safety and Security Zones. (1) The 

following area is a safety and security 

zone: All waters within the following 

points: a rectangle, starting at 47°37′53′′ 

N/122°23′07′′ W, thence south to 

position 47°37′06′′ N/122°23′07′′ W, 

thence east to position 47°37′06′′ N/ 

122°22′43′′ W, thence north to position 

47°37′58′′ N/122°22′43′′ W. This zone 

will be enforced only during the arrival 

or departure of Large Passenger Cruise 

Vessels at Pier 91, Seattle, Washington. 

(2) The following area is a safety and 

security zone: All waters within 100 

yards of Pier 91, Seattle, Washington, at 

approximate position 47°37′35′′ N/ 

122°23′00′′ W. This zone will be 

enforced only when a Large Passenger 

Cruise Vessel is moored at Pier 91. 

(b) Regulations. In accordance with 

the general regulations in 33 CFR Part 

165, Subpart D, no person or vessel may 

enter or remain in either Safety and 

Security Zone except for vessels 

authorized by the Captain of the Port or 

Designated Representatives. 

(c) Definitions. The following 

definitions apply to this section: 

Facility Security Officer means the 

person designated as responsible for the 

development, implementation, revision 

and maintenance of the facility security 

plan and for liaison with the COTP and 

Company and Vessel Security Officers. 

Large Passenger Cruise Vessel means 

any cruise ship over 100 feet in length 

carrying passengers for hire. Large 

Passenger Cruise Vessel does not 

include vessels inspected and 

certificated under 46 CFR, Chapter I, 

Subchapter T such as excursion vessels, 

sight seeing vessels, dinner cruise 

vessels, and whale watching vessels. 

Official Patrol means those persons 

designated by the Captain of the Port to 

monitor a Large Passenger Cruise Vessel 

security and safety zone, permit entry 

into the zone, give legally enforceable 

orders to persons or vessels within the 

zone and take other actions authorized 

by the Captain of the Port. Persons 

authorized in paragraph (e) to enforce 

this section are designated as the 

Official Patrol. 

(d) Authorization. To request 

authorization to operate within 100 

yards of a Large Passenger Cruise Vessel 

that is moored at Pier 91, contact the onscene Official Patrol on VHF–FM 

channel 16 or 13 or the Facility Security 

Officer at (206) 728–3688. 

(e) Enforcement. Any Coast Guard 

commissioned, warrant or petty officer 

may enforce the rules in this section. In 

the navigable waters of the United 

States to which this section applies, 

when immediate action is required and 

representatives of the Coast Guard are 

not present or not present in sufficient 

force to provide effective enforcement of 

this section in the vicinity of a Large 

Passenger Cruise Vessel, any Federal or 

Washington Law Enforcement Officer 

may enforce the rules contained in this 

section pursuant to 33 CFR 6.04–11. In 

addition, the Captain of the Port may be 

assisted by other Federal, state or local 

agencies in enforcing this section. 

(f) Waiver. The Captain of the Port 

Puget Sound may waive any of the 

requirements of this section for any 

vessel or class of vessels upon finding 

that a vessel or class of vessels, 

operational conditions or other 

circumstances are such that application 

of this section is unnecessary or 

impractical for the purpose of port 

security, safety or environmental safety. 

Dated: April 24, 2009. 

Suzanne E. Englebert, 

Captain, U.S. Coast Guard Captain of the 

Port, Puget Sound. 

[FR Doc. E9–19958 Filed 8–19–09; 8:45 am] 

BILLING CODE 4910–15–P 

PRESIDIO TRUST 

36 CFR Part 1012 

RIN 3212–AA–04 

Legal Process: Testimony by 

Employees and Production of Records 

AGENCY: Presidio Trust. 

ACTION: Final rule. 

SUMMARY: The Presidio Trust is 

publishing as a final rule a regulation, 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Rules and Regulations 42029 

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 final rule establishes 

guidelines for use in determining 

whether Presidio Trust employees (as 

defined in the final rule) will provide 

testimony or records relating to their 

official duties. It also establishes 

procedures for requesters to follow 

when making demands on or requests to 

a Presidio Trust employee for official 

documents or to provide testimony. 

This final rule standardizes the Presidio 

Trust’s practices, promotes uniformity 

in decisions, conserves the ability of the 

Presidio Trust to conduct official 

business, preserves its employee 

resources, protects confidential 

information, provides guidance to 

requestors, minimizes involvement in 

matters unrelated to the Presidio Trust’s 

mission and programs, avoids wasteful 

allocation of agency resources and 

avoids spending public time and money 

for private purpose. 

DATES: The effective date of the 

regulation is September 25, 2009. 

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 final 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 to 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 previously 

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, may involve 

the Presidio Trust in issues unrelated to 

its responsibilities and may impede the 

Presidio Trust’s accomplishment of its 

budgetary goals. In order to resolve 

these issues, many agencies have issued 

regulations, similar to this 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 will 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 final rule 

prohibits disclosure of official records 

or testimony by the Presidio Trust’s 

employees unless there is compliance 

with the rule. The final 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 final rule ensures a more 

efficient use of the Presidio Trust’s 

resources, minimizes the possibility of 

involving the Presidio Trust in issues 

unrelated to its mission or 

responsibilities, promotes uniformity in 

responding to such subpoenas and 

similar requests, and maintains the 

impartiality of the Presidio Trust in 

matters that are in dispute between 

other parties. It also serves 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 final rule is internal and 

procedural rather than substantive. It 

does not create a right to obtain official 

records or the official testimony of a 

Presidio Trust employee; nor does 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 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 follows a 30-day 

comment period. During this period the 

Presidio Trust received and considered 

one comment. This comment proposed 

that the scope of the regulation in 

Section 1012.1 be amended to exempt 

suits in which Presidio Trust board 

members are sued in their official 

capacity. The commenter believed that 

some such suits would not qualify for 

treatment under these regulations 

pursuant to United States ex rel. Touhy 

v. Ragen, 340 U.S. 462 (1951) and that 

the determination of whether the 

Presidio Trust has a direct and 

substantial interest in such suits against 

Presidio Trust board members should 

not be made by the Presidio Trust. The 

Presidio Trust considered this comment 

and believes that because the 

applicability of these regulations in any 

particular proceeding or circumstance is 

subject to judicial review, there is 

adequate assurance that the 

requirements set by the Touhy decision 

or other applicable law will be applied. 

The Presidio Trust will continue to 

review these regulations in the future, 

and if it becomes apparent that they 

should be modified based on changes in 

the law or experience with their 

implementation, then the Presidio Trust 

will do so through the rulemaking 

process. 

Executive Order 12866—Regulatory 

Planning and Review 

This final rule, because it is limited to 

the Presidio Trust’s organization and 

management, does not fall within the 

definition of a ‘‘Rule’’ under Executive 

Order 12866 issued September 30, 1993 

on Regulatory Planning and Review. 

Moreover, this final 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 

final rule will neither interfere with an 

action taken or planned by another 

agency nor raise new legal or policy 

issues. This final 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 final 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 final rule has been 


erowe on DSK5CLS3C1PROD with RULES
42030 Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Rules and Regulations 

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 final rule. Nonetheless, in the event 

that such a conflict was to be identified, 

the final 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 

final rule; and (2) the final rule does not 

require the use of administration 

proceedings before parties may file suit 

in court challenging its provisions. 

Executive Order 13132—Federalism 

This final 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 final 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 final rule on State, 

local, and Tribal governments and the 

private sector. This final 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 final rule 

on Indian Tribal governments and has 

determined that the final rule does not 

significantly or uniquely affect 

communities of Indian Tribal 

governments. The Presidio Trust has 

also determined that this final 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 final 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 final 

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 final 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 

final 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 final 

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 final 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 

final rule is not likely to have any 

adverse energy effects. 

The Paperwork Reduction Act of 1995 

This final 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 

final rule in accordance with the criteria 

of the National Environmental Policy 

Act of 1969 and determined that the 

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 final rule contains 

no paperwork burdens or information 

collection requirements, and is thus in 

compliance with the GPEA. 

Executive Order 12630—No Takings 

Implication 

This final 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 final 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 amends 

chapter X of title 36 of the Code of 

Federal Regulations as follows: 

■ A new part 1012, consisting of 

§ 1012.1 through § 1012.11, is added to 

chapter X to read as follows: 

PART 1012—LEGAL PROCESS: 

TESTIMONY BY EMPLOYEES AND 

PRODUCTION OF RECORDS 

General Information 

Sec. 

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? 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Rules and Regulations 42031 

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 

§ 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 

§ 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. 

§ 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 

§ 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 §§ 1012.1 through 1012.11. 

United States ex rel. Touhy v. Ragen, 

340 U.S. 462 (1951). 

Responsibilities of Requesters 

§ 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 § 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 § 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 

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. 

§ 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. 

§ 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 § 1012.9. 

§ 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. 


erowe on DSK5CLS3C1PROD with RULES
42032 Federal Register / Vol. 74, No. 160 / Thursday, August 20, 2009 / Rules and Regulations 

§ 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 

§ 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 

§ 1012.9. 

§ 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 

§ 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 § 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). 

§ 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. 

Dated: August 14, 2009. 

Karen A. Cook, 

General Counsel. 

[FR Doc. E9–20031 Filed 8–19–09; 8:45 am] 

BILLING CODE 4310–4R–P 


erowe on DSK5CLS3C1PROD with RULES