210 Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Proposed Rules 

proposal. You may not have another 

opportunity for comment. If you want to 

comment on this action, you must do so 

at this time. For additional information, 

please see the direct final rule published 

in the ‘‘Rules and Regulations’’ section 

of this issue of the Federal Register. 

Authority: This proposed action is issued 

under the authority of Sections 2002(a), 3006 

and 7004(b) of the Solid Waste Disposal Act, 

as amended, 42 U.S.C. 6912(a), 6926, 6974(b). 

Deb Szaro, 

Acting Regional Administrator, U.S. EPA 

Region I. 

[FR Doc. 2021–28332 Filed 1–3–22; 8:45 am] 

BILLING CODE 6560–50–P 

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: Proposed rule with request for 

comments. 

SUMMARY: The National Endowment for 

the Humanities (NEH) is proposing to 

issue 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: Send comments on or before 

February 3, 2022. 

ADDRESSES: You may send comments by 

email to gencounsel@neh.gov. 

Instructions: Include ‘‘3136–AA44’’ in 

the subject line of the email. 

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: 

Background 

The Federal courts have upheld the 

authority of a Federal agency to 

establish procedures governing the 

production of records and testimony by 

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 proposed rule would 

establish 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 proposed 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 would 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. 

Request for Comments 

NEH requests comments, which NEH 

must receive at the above address, by 

the above date. 

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 


tkelley on DSK125TN23PROD with PROPOSED RULES
Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Proposed Rules 211 

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. 

For the reasons set forth in the 

preamble, the National Endowment for 

the Humanities proposes to amend 45 

CFR chapter XI by adding part 1167 to 

read as follows: 

PART 1167—TESTIMONY AND 

PRODUCTION OF RECORDS 

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) Legal proceedings to which the 

United States is a party. 

§ 1167.3 Definitions. 

(a) Agency or NEH means the National 

Endowment for the Humanities. 

(b) 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. 

(c) General Counsel means the 

General Counsel of the agency, or any 

person to whom the General Counsel 

has delegated authority under this part. 

(d) 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. 

(e) 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. 

(f) 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. 

(g) 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. 

(h) 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. 

§ 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.) 

§ 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. 


tkelley on DSK125TN23PROD with PROPOSED RULES
212 Federal Register / Vol. 87, No. 2 / Tuesday, January 4, 2022 / Proposed Rules 

(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. 

§ 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: December 28, 2021. 

Samuel Roth, 

Attorney-Advisor, National Endowment for 

the Humanities. 

[FR Doc. 2021–28468 Filed 1–3–22; 8:45 am] 

BILLING CODE 7536–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[WC Docket No. 12–375, DA 21–1583; FR 

ID 64286] 

Wireline Competition Bureau Seeks 

Comment on Revisions to Annual 

Reporting and Certification 

Requirements for Inmate Calling 

Services (ICS) Providers 

AGENCY: Federal Communications 

Commission. 

ACTION: Solicitation of comments. 

SUMMARY: In this document, the 

Wireline Competition Bureau (WCB or 

the Bureau) of the Federal 

Communications Commission (FCC or 

the Commission) seeks comment on 

proposed revisions to the instructions 

and templates for the Annual Reports 

and Annual Certifications submitted by 

providers of inmate calling services. 

DATES: Comments are due on or before 

January 12, 2022; and reply comments 

are due on or before January 27. 2022. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 12–375, by 

any of the following methods: 

• Electronic Filers: Comments may be 

filed electronically using the internet by 

accessing the ECFS: https://

apps.fcc.gov/ecfs/. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. 

• Filings can be sent by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9050 

Junction Drive, Annapolis Junction, MD 

20701. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. 

• Effective March 19, 2020, and until 

further notice, the Commission no 

longer accepts any hand or messenger 

delivered filings. This is a temporary 

measure taken to help protect the health 

and safety of individuals, and to 

mitigate the transmission of COVID–19. 

See FCC Announces Closure of FCC 

Headquarters Open Window and 

Change in Hand-Delivery Policy, Public 

Notice, DA 20–304 (March 19, 2020). 

https://www.fcc.gov/document/fcccloses-headquarters-open-window-andchanges-hand-delivery-policy. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an email to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (TTY). 

FOR FURTHER INFORMATION CONTACT: 

Minsoo Kim, Pricing Policy Division, 

Wireline Competition Bureau, at (202) 

418–1739 or via email at Minsoo.Kim@

fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

document, Public Notice, DA 21–1583, 

released December 15, 2022. The full 

text of this document is available at 

https://www.fcc.gov/document/wcbseeks-comment-ics-annual-reportingand-certification-revisions. 

Synopsis 

By this document, the Wireline 

Competition Bureau (WCB or the 

Bureau) seeks comment on proposed 

revisions to the instructions and 

templates for the Annual Reports and 

Annual Certifications submitted by 

providers of inmate calling services 

(ICS). The Commission requires ICS 

providers to make these filings to enable 

the Commission to monitor and track 

trends in the ICS marketplace, increase 

provider transparency, and ensure 

compliance with the Commission’s ICS 

rules. 

Pursuant to delegated authority, the 

Bureau created standardized reporting 

templates (FCC Form 2301(a)) for the 

Annual Report and a related 

certification of accuracy (FCC Form 

2301(b)), as well as instructions to guide 

providers through the reporting process. 

The Bureau amended the instructions 

and template for the Annual Report in 

2020 in order to improve the type and 

quality of the information collected. 

In the 2021 ICS Order, the 

Commission revised its ICS rules by 

adopting, inter alia, lower interim rate 

caps for interstate ICS calls, new interim 

rate caps for international ICS calls, and 

a rate cap structure that requires ICS 

providers to differentiate between 

legally mandated and contractually 

required site commissions. The new 

2021 rules necessitate further changes to 

the annual reporting and certification 

templates for which WCB seeks 

comment herein. Pursuant to the 

Paperwork Reduction Act of 1995 

(PRA), WCB will publish a notice in the 

Federal Register seeking comment on 

the information collection requirements 

for the annual reporting and 

certification requirements in the Public 

Notice. 

I. Overall Structure of the Annual 

Reporting and Certification 

Requirements 

Pursuant to delegated authority, WCB 

proposes to revise the instructions and 

templates for the Annual Reports and 

Certifications to be consistent with the 

Commission’s rules. These revised 

instructions and the associated 

templates, if adopted, will consolidate 

and supplant the instructions and 

templates for earlier iterations of the ICS 

annual reporting and certification 

requirements. WCB also proposes 

improvements based on experience 

reviewing prior Annual Reports, which 

has persuaded us that revised 

instructions would help providers better 

understand the requirements, making 

the submitted reports more useful to the 

Commission and consumers. To that 

end, WCB proposes to adopt both an 

Excel-format template and a Wordformat template for the Annual Reports 

to better separate individual data items 

from narrative responses. For simplicity, 

WCB refers to these respective portions 

of the template as the Word template 

and the Excel template. WCB seeks 

comment on these proposed revisions, 

generally, and on the specific structure, 

content, and format of the proposed 

templates and instructions attached 

hereto. WCB likewise proposes minor 

revisions to the certification form. Are 


tkelley on DSK125TN23PROD with PROPOSED RULES