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. 

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. 

11. Effects on Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

12. Clarity of This Regulation 

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: 

* * * * * 

(6) INTERIOR/DOI–50, Insider Threat 

Program. 

Teri Barnett, 

Departmental Privacy Officer, Department of 

the Interior. 

[FR Doc. 2022–03135 Filed 2–14–22; 8:45 am] 

BILLING CODE 4334–60–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: 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; gencounsel@neh.gov. 

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 


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Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Rules and Regulations 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. 

■ 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. 

§ 1167.1 Purpose. 

(a) This part sets forth policies and 

procedures to be followed when an 

employee of the National Endowment 

for the Humanities (NEH) receives a 

demand to provide testimony or 

produce official records and information 

in connection with a legal proceeding in 

which the United States is not a party. 

(b) The provisions of this part are 

intended to promote economy and 

efficiency in NEH’s programs and 

operations; minimize the possibility of 

involving NEH in controversial issues 

not related to its functions; maintain the 

impartiality of NEH among private 

litigants; and protect sensitive, 

confidential information and the 

agency’s internal deliberative process. 

(c) This part does not waive the 

sovereign immunity of the United 

States. 

(d) This part does not create any right 

or benefit, substantive or procedural, 

enforceable at law by a party against the 

United States. 

(e) This regulation is not intended to 

conflict with 5 U.S.C. 2302(b)(13). 

§ 1167.2 Applicability. 

This part applies to demands and 

requests for factual or expert testimony 

or for official records or information in 

legal proceedings, except that it does 

not apply to: 

(a) Demands upon or requests for an 

NEH employee to testify as to facts or 

events that are in no way related to his 

or her official duties or to the functions 

of NEH; 

(b) Demands upon or requests for a 

former NEH employee to testify as to 

matters in which the former employee 

was not directly or materially involved 

while at NEH; 

(c) Requests for the release of records 

under the Freedom of Information Act, 

5 U.S.C. 552, or the Privacy Act of 1974, 

5 U.S.C. 552a; 

(d) Congressional demands and 

requests for testimony or records; and 


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8430 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Rules and Regulations 

(e) Legal proceedings to which the 

United States is a party. 

§ 1167.3 Definitions. 

The following definitions apply to 

this part: 

Agency or NEH means the National 

Endowment for the Humanities. 

Demand means a subpoena, order, or 

other demand of a court or other 

competent authority, issued in a legal 

proceeding, for the production of 

official records and information or for 

the testimony of an NEH employee. 

General Counsel means the General 

Counsel of the agency, or any person to 

whom the General Counsel has 

delegated authority under this part. 

Legal proceeding means any 

proceeding before a court of law, 

administrative board or commission, 

hearing officer, or other body 

conducting a legal or administrative 

proceeding. 

NEH employee or employee means 

any present or former officer or 

employee of NEH; any other individual 

hired through contractual agreement by 

or on behalf of NEH, or who has 

performed or is performing services 

under such an agreement for NEH; and 

any individual who served or is serving 

on an NEH advisory committee. 

Official records and information 

means all documents and material in 

the custody and control of NEH; relating 

to information in the custody and 

control of NEH; or acquired by an NEH 

employee in the performance of his or 

her official duties or because of his or 

her official status, while the individual 

was employed by or on behalf of the 

NEH. 

Request means any request in 

connection with an ongoing or 

threatened legal proceeding, by 

whatever method, for the production of 

official records and information or for 

testimony, other than a demand. 

Testimony means any written or oral 

statement by a witness, and includes 

depositions, answers to interrogatories, 

affidavits, declarations, and statements 

at a hearing or trial. 

§ 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. 

(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: 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 

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 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: 

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 


lotter on DSK11XQN23PROD with RULES1